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Human rights in Ukraine – 2004. XI. FREEDOM OF ASSOCIATIONS

   

The situation with regard to freedom of association did not change significantly in 2004. The registration of non-profit organizations became more complicated, and legal regulation in general still failed to comply with contemporary conditions and the requirements of civic society.

Ukrainian legislation allows for many types of organizations which can be categorized as non-governmental (NGO) and non-commercial (or non-profit-making, hereafter NPO): associations of individuals (political parties and civic organizations), youth and children’s civic organizations, employers’ organizations, trade unions, charitable organizations, religious organizations, creative unions, associations of businesses, and others.

Civic organizations can exist by creating a legal entity, or without such a legal entity, however they must give notification of their creation. Religious communities may exist even without such notification. All other non-commercial organizations may exist only in the form of legal entities. A shortcoming of legislation is the legally unclear status of an unregistered organization and the impossibility for them to defend their rights.

Most of these organizations may form associations of such organizations.

However Ukrainian legislation does not allow for the creation of organizations which unite both legal enovide independent supervision as to the lawfulness of monitoring, and the question about the financing for producing and implementing a system of monitoring was resolved.

The first version of the alternative Draft Law was tabled on 26 March 2004. Further refinements were made to the draft with the participation of the public, and in particular, the Public Council under the Committee of the Verkhovna Rada on Freedom of Speech and Information. Comments from the Security Service of Ukraine and the Chief Scientific and Specialist Administration of the Verkhovna Rada of Ukraine were also taken into consideration. The Draft was sent for comments to State executive bodies, civic organizations and representatives of the business sector. As a result, the refined Draft was introduced to replace the previous proposal. The Draft Law has passed through hearings in four committees of the Verkhovna Rada of Ukraine, and all of them have recommended that it be passed.

5. Recommendations

1. To pass legislation on protection of personal data in accordance with Standards of the European Council and European Union (in particular, Directive No. 95/46 of the European Parliament and the Council «On the protection of the individual with regard to automated personal data processing and the unimpeded movement of this information», Directive No. 97/66 of the European Union on the processing of personal data and protection of privacy in the sphere of telecommunications, the Convention of Europol, Recommendation No R (99)5 with regard to protection of private life in the Internet, Recommendation No R (81)1 on automated medical data bases, Recommendation No R (83)10 on scientific research and statistics; Recommendation No R (85)20 on direct marketing; Recommendation No R (86)1 related to social security issues, Recommendation No R (87)15 regarding the police; Recommendation No R (89)2 on seeking employment, Recommendation No R (90)19 related to salary payments and associated operations provided by the Cabinet of Ministers of the European Council, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and others);

2. To sign and ratify international documents concerning the protection of personal data, in particular, the European Convention of 1981 on the protection of individuals in connection with automated processing of personal data, and the Supplementary Protocol to the Convention on the protection of individuals in connection with automated processing of personal data involving surveillance bodies and flows of information across borders;

3. To run training sessions for judges with regard to protection of privacy when considering cases on the protection of personal data, the issuing of search warrants, or warrants for wiretapping or other interception of information from channels of communication;

4. To introduce the practice of issuing a public annual report on the use of investigative operations which infringe upon the right to privacy (secret search, the interception of information from channels of communication), in which the number of court warrants issued for these measures, divided between the subdivisions who carry out investigative operations (the police, the tax police, SSU, etc), the effectiveness of the measures taken (the number of criminal investigations launched or submitted to court, etc) and other information.

5. To create a special State executive body to carry out independent supervision over adherence to law in the sphere of protection of personal data and access to information.

Information about interception operations
(Internet monitoring data for 2004)

Date of Interception

Objects of Interception

Source of information in the Internet

Consequences

March
2004

State Deputy David Zhvanya (bloc «Nasha Ukraina» (Our Ukraine), Russian politician Rybkin and Boris Berezovsky

http://www. rupor. org/index. php? id=1092743112

Internet edition on human rights RUPOR.

The Security Service of Ukraine (SSU) was passed information saying that «Zhvanya is a criminal, because acting on a prior agreement with Boris Berezovsky he took part in the kidnapping (of Rybkin), and in the latter’s illegal detention …»

May 14,
2004

Serhy Nechyporenko, Prosecutor of Shevchenkivsky District of Kyiv

http://ua. proua. com/print. php? p=news/2004/05/26/134026. html

A bug was installed in the private office of Serhy Nechyporenko, the Prosecutor of Shevchenkivsky District of Kiev.

A criminal case was launched with regard to the interception. The Prosecutor’s office is investigating.

September
2004

Valeriy Probiy-Golova, authorized representative of Viktor Yushchenko for

territorial electoral district № 1, Head of his Crimea electoral headquarters

http://www. khpg. org/index. php? id=1097697480

Bulletin of Kharkiv human rights group «Human Rights», No. 26, 2004

AR of Crimea: Telephones of V. Yuschenko`s supporters are tapped.

October 10,
2004

State Deputies, Parliament’s technical personnel, members of electoral headquarters and journalists

Internet publication «Telekrytyka» (Telecritics) and «Trybuna» (Tribune) – news report dated October 10.

A. Shkil, People`s Deputy of Ukraine, filed a request to G. Vasylyev, the General Prosecutor of Ukraine.

November 6,
2004

Father Vitaly Kosovsky (Ukrainian Orthodox Church of the Moscow Patriarchate) and Yuriy Levenets (member of V. Yanukovych’s electoral headquarters)

http://5tv. com. ua/pr_archiv/136/0/255/

Program «Zakryta Zona» [Closed Zone] on Channel 5.

Conversation about payment for priests’ campaigning activities.

November 9,
2004

Head of Department of Internal Control over Administrative Premises of the City Trade Complex «Kalynovsky Rynok» (Kalynovsky Market)

http://www. gazeta. lviv. ua/articles/2004/11/12/36/

«Lvivska gazeta» (Lviv newspaper), November 12, 2004, № 208 (532)

A bugging device was detected in the private office of the Head of Department of Internal Control over Administrative Premises of the City Trade Complex «Kalynovsky rynok»

An act was directed to the Regional Prosecutor’s office and the regional department of the Security Service of Ukraine. At a press conference held at the Chernivtsy Regional Depart­ment of the Ministry of Internal Affairs of Mykola Kharabara, atities and individuals, as members of the organization (founders), and also associations of different types of non-governmental organizations. We consider such restrictions by the law to be unfounded.

NPO in legislation differ as to the purpose for which they are created, and also as to their procedure for formation. Each type of NPO has its own special aspects of legal regulation which are defined by a separate law in which the procedure is outlined for their founding, activities and liquidation.

Such a quantity of types of non-governmental organizations has little justification. This is confirmed also by the fact that, from the point of view of tax legislation, they are not differentiated at all. Nor are they differentiated in their essence, as forms of exercising freedom of association. The given unjustified division has survived from Soviet times and now presents serious obstacles for the development of NPO, by artificially limiting their legal capacity.

There is, therefore, a certain contradiction in legislation. Tax legislation identifies only two forms of organization: businesses and non-profit-making organizations. The status of a non-profit-making organization is obtained through separate procedure. We therefore have the situation where, for example, a civic organization or charity register, but are not given non-profit-making organization status. This means, that from the point of view of tax legislation, they are businesses. And such organizations can not be considered «non-commercial» (non-profit-making) organizations» in the full understanding of this term, since they can engage in commercial activity virtually without restrictions.

In accordance with Article 14 of the Law of Ukraine «On citizens’ associations» «activity of citizens’ associations, which are not legalized or which are forced to disband by court order, is illegal».

According to Article 186-5 of the Administrative Offences Code, «the management of citizens’ associations, which have not been legalized according to legally prescribed procedure, or which have been refused legalization, or which have been forced to disband by court order, yet continue to engage in activity, as well as participation in such associations, shall be punishable by a fine from twenty five to one hundred and thirty minimum wages before tax (approximately 80 to 415 US dollars). Thus, the head of an «undesirable» organization could be fined 2,210 UH (an average salary for half a year) purely because the registering body has refused to register the organization on formal grounds. For comparison, the fine for engaging in business activity without registration is fixed by the same Code as 8 – 15 minimum wages before tax. Unfortunately, the law does not allow for automatic legalization of citizens’ associations in cases where the registering body does not give notification of a motivated refusal to legalize the organization within the legally stipulated time period.

We are not aware of any examples where Article 186-5 of the Administrative Offences Code has been applied. However its application in the future could violate the right to freedom of association, since it effectively changes the right to establish an association into an obligation.

The founders (founder) of a charitable organization can be citizens of Ukraine, foreign nationals or stateless individuals, who are at least 18, but cannot be legal entities. Founders of civic organizations can be citizens of Ukraine, foreign nationals or stateless individuals, who are at least 18, or, in the case of youth or children’s organizations – 15 years old. In order to establish a citizens’ association, there must be an agreement between at least three people who fulfil the above-mentioned conditions.

Foreign nationals or stateless individuals may not form trade unions, but they can join them, if this is foreseen by the unions’ charters. Such restrictions violate their rights: the basic function of trade unions is to protect the labour and social rights of employees, this effectively being denied «non-citizens». This concept is a relict from Soviet days, when trade unions were viewed as a political organization of the proletariat, and any aliens as potential threats to national security.

Religious organization may only be formed by citizens of Ukr Deputy Chief of this Department, stated that the detected device was «home-made, not professionally manufactu­red». He did not make public any detailed information about the bugging saying that it was not available.

October 20 – October 21,
2004

Viktor Medvedchuk, Serhiy Kluyev, Oleh Tsaryov and others from Viktor Yanukovych`s team

http://www. zerkalo-nedeli. com/nn/show/526/48743/

«Dzerkalo Tyzhnya» No. 15 (526)

Phone conversations of Viktor Medvedchuk, Serhiy Kluyev, Oleh Tsaryov and other members of Viktor Yanukovych’s team during the second Presidential electoral campaign in Ukraine.

November 26, 2004

Heads of electoral headquarters of V. Yanukovych, Ukrainian Presidential Candidate

Interception records proving the falsification of elections were made public at the official press conference of the State Deputy O. Rybachuk.

December 23,
2004

Serhy Kluyev and an unidentified woman

http://5tv. com. ua/pr_archiv/136/0/265/

«Channel 5»

Serhy Kluyev has a conversation with an unidentified woman regarding the location of the opponent’s electoral headquarters and private office of Viktor Yushchenko.

January 2005

Administrative office of the company «Foxtrot» in Kyiv

http://www. pravda. com. ua/archive/?5023-28-77

Ukrayinska Pravda»

A bugging device was detected in the administrative office of the company «Foxtrot» in Kyiv.

The Security Service of Ukraine (SSU) initiated a criminal investigation.

February 10, 2005

Citizens of Sumy

http://www. rupor. org/index. php? id=1108047997

Internet edition on human rights RUPOR.

As reported by Yury Udartsov, the Regional Prosecutor, at the collegial panel convened on February 8, the staff of special police divisions are, without any grounds, carrying out investigative operation of «Protection» category based on the consent of Heads of interregional divisions of the Department for Fighting Organized Crime. This lets them carry out interception and surveillance operations.

February 17, 2005

Viktor Yuschenko and Yulya Tymoshenko

http://www. cripo.com.ua/?sect_id=10&aid=3479

«Ukrayina Kryminalna» (Criminal Ukraine)

Security Service of Ukraine (SSU) have initiated a criminal investigation over wiretapping of Yuschenko and Tymoshenko last year.

The Security Service of Ukraine (SSU) has initiated a criminal investigation over wiretapping in 2004.



[1] For more detailed information, see: «Privacy and Human Rights». Privacy International Report – In «Freedom of Information and the Right to Privacy in Ukraine», Vol. 2. – Kharkiv: Folio, 2004, pp. 5-29; Dovydas Vitkauskas. The right to respect for privacy under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. /Freedom of Expression and Privacy, Issue # 1, 2004. – pp.15-29.

[2] ECHR, Klass and others v. Germany: Judgment 4 July 1978

[3] Friedl, (Peck, Perry)

[4] For more detailed information on privacy of communications, see article: Yevhen Zakharov. Criminal Investigation Activities and Communications Privacy. – In: Freedom of Information and the Right to Privacy in Ukraine, Vol.2. – Kharkiv: Folio, 2004. – pp. 45-60.

[5] Право на повагу до особистого та сімейного життя: цивільно-правові аспекти в законодавстві і судовій практиці України. Н.Петрова. Європейська Конвенція з прав людини: основні положення, практика застосування, український контекст / The right to respect for private and family life: civil and legal aspects in the laws and legal practice of Ukraine. N.Petrova. The European Convention on Human Rights: key provisions, application practice, the Ukrainian context / Edited by. O.L.Zhukovska. – Published by VIPOL CJSC, Кyiv, 2004. – p. 403.

[6] Report on results of the work of law enforcement authorities’ on fight against prostitution business, detection of AIDS risk groups and results of their AIDS testing, approved by Order No. 436 of the State Committee of Statistics of Ukraine dated December 10, 2002.

[7] This subsection was prepared by Ruslan Topolevsky, Kharkiv human rights group.

[8] The Draft Law No. 2618 of January 10, 2003 was proposed by State Deputies: M. Rodionov, S. Nikolayenko, I. Yukhnovsky, P. Tolochko, and K. Sytnyk. It passed through its first reading on May 15, 2003.

[9] Parliament or, using the Ukrainian term, Verkhovna Rada – these terms are used in the text interchangeably. State Deputies (to the Verkhovna Rada) are therefore Members of Parliament (translator’s note)

[10] A patronymic is one’s father’s name, used after one’s personal name: The use of name and patronymic is common in Russia and parts of Ukraine, in situations where Mr / Ms might be used in English. (translator’s note)

143 For more information see the section. «The Right to Privacy and Personal Identification» in the book «Freedom of Information and the Right to Privacy in Ukraine», v. 2. – Kharkiv: Folio, 2004. – p. 65-136.

144 Data protection: experience of Hungary. /Freedom of Speech and Privacy, No.3, 2003. – p. 28-33.

[13] www.sbu.gov.ua

[14] Draft Law № 4042-1 «On the interception and monitoring of telecommunications», introduced into parliament by State Deputy V, Lebedivsky

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