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11.12.2006

System for legalizing civic associations equates to censorship of civic society and the fight against it in the European Court of Human Rights - Press Release

   

Proceedings are underway in the European Court of Human Rights in the case of Koretsky and others v. Ukraine (№40269/02).  The given case is interesting in that the applicants are demanding fundamental changes in the relations of citizens and civic association with the state.

Probably anybody who has tried to create a new civic organization has run up against obstacles created by the state registration bodies subordinate to the Ministry of Justice (the censorship of charter documentation, “advice”, applications for registration being turned down, banal bribe-taking, or others). The state, which talks so much about the development of civic society, is systematic in nipping the manifestations of such a society in the bud.

The Judgment in the case №40269/02 of Koretsky and others v. Ukraine will not only determine the future development of civic organizations in Ukraine, but could also provide a general model for the relationship between government structures and the public in all countries that have ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. 

This was the message at a press conference on Tuesday, 5 December 2006, given by the applicants in case №40269/02 Serhiy Koretsky, Andriy Horbal, Oleksiy Lobytsky and Andriy Tolochko, together with their legal representative in the European Court of Human Rights Taras Shevchenko.

The press conference was also attended by the Deputy Minister of Justice Valeria Lutkovska, Ukraine’s Representative in the European Court of Human Rights Yury Zaitsev and the Director of the Department for the legalization of civic associations within the Ministry of Justice Olena Semyorkina.  A full transcript of the discussion will be posted on the site www.article11.org.ua in the near future.

“At the beginning of the year 2000, aware of the rights guaranteed us under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms we resolved to attempt to put these rights into practice. We decided to create a civic organization, not “as is done” according to unwritten practice in Ukraine, but an organization that we really need and that will achieve the aims we set and be effective”.

We created the “Civic Committee for the preservation of the wild (indigenous) nature of Berezhnyaky”. Our task was to prevent disaster looming in Kyiv. We stated the aim for the formation and functioning of the new organization in the Charter openly, not hiding behind standard clichés and not concealing the essence behind general phrases. This was a test for state registration agencies of their ability to work in conformity with international norms for a democratic society.

The Civic Committee’s application for registration was turned down. As grounds for this rejection the Kyiv Department of Justice used seven unlawful reasons (not foreseen by Articles 4 and 16 of the Law “On citizens’ associations):

  • The aim of the Committee in its Charter is formulated in two points;
  • The executive directorate of the Committee has the right to organize the everyday economic activity of the organization;
  • The Committee states its right to carry out non-profit making publishing activities;
  • The Committee declares its right to have representative offices in other cities in Ukraine;
  • A photocopy of the document proving payment of the registration fee with the possibility of checking it against the original (the Department of Justice clearly tried to take the original of the receipt);
  • And finally, the Committee planned to use volunteers for some of its planned actions!

And even the fact that the founders conceded to certain demands from the state registration body, and adopted a new version of the Charter, we still failed to meet the requirements of the registration body.

After all the actual aim and tasks of the new organizations remained essentially unchanged (cf. appendix 2). And the authorities did not want to allow such an organization at that time. The environmental organization was declared outside the law. In accordance with Article 27 of the Law of Ukraine “On citizens’ associations”, an organization which is refused registration must be disbanded. Participation in the activities of such an organization are liable to administrative or criminal prosecution.

We lodged an appeal with the court against the actions of the Kyiv City Department of Justice (a subdivision of the Ministry of Justice). Not surprisingly, we lost all court cases within Ukraine, with the actions of the Department of Justice being found to be “not in contravention of domestic legislation”. The judgment of the Supreme Court was final and “not subject to appeal”.

After this we had no choice but to appeal against the legislation and court practice of Ukraine. Therefore,

on 12 September 2002 an application was lodged with the European Court of Human Rights, which is now Case № 40269/02 of Koretsky and others v. Ukraine (although the essence of our demands are in fact standing up “for Ukraine”)” 

We expressed the substance of our claim as follows: “We ask the Court to rule that the State of Ukraine violated Article 11 of the Convention (the right of freedom of association with others) in the process of legalization of the “Civic Committee for the preservation of the wild (indigenous) nature of birch forests”, and to order it to (recommend that it) bring its legislation, executive and court practice into conformity with norms of international law on human rights. We ask in particular for measures to be taken to prevent the censorship of charters of newly created civic associations, the putting forward of supplementary recommendations and demands, as well as other forms of pressure on newly-created civic associations in the process of legalizing their existence”. (quoted from the Application lodged with the European Court).

“We demand a reform of the state system of legalization of citizens’ associations and its democratization for the benefit of civic society. We call for the functions of state registration bodies to be limited to registration itself, and to prevent cases where these bodies take upon themselves the function of banning nongovernmental organizations, with this being exclusive the role of the courts”, the press release states.

The violation took place in 2000. The Ministry of Justice has since 2001 been defending its right to censorship (by making amendments to the charters of citizens’ associations) in the courts.

When in spring 2006 the case came up on the European Court’s agenda for consideration, it became clear from the official response of the Ukrainian Government (from 14 June 2006) that the attitude of the authorities to the public has not changed and the executive branch of power is sticking firmly to the position taken in 2000.  Their line is that there was no violation, that their treatment of the “Civic Committee for the preservation of the wild (indigenous) nature of birch forests” was as it should have been, and that they will continue to do the same with all those who dare to “stick up for their rights”. The level of awareness of executive and judicial bodies so far remains unchanged

The formal grounds for the actions of the Department of Justice were the claim that the Charter did not “comply” with various, arbitrarily chosen, articles of laws of Ukraine. And the actions of the Department were deemed by the courts to be “not in contravention of domestic legislation”. Such an approach demonstrates the legal illiteracy of our judicial system. In a law-based state all would be different: the actions of citizens are “not in contravention of legislation”, and they have the right to everything that is not prohibited by law. And it is the actions of state bodies that must be clearly restricted by the formulations of laws and checked in terms of their “compliance with the law”. That is, state bodies have the right to do only what they are assigned to do and must not step outside these boundaries. From this we have the criteria of “compliance”. Members of the public have the fundamental rights and freedoms guaranteed by the Convention, and the possibility of being guided not only by the law, but by their own will.

It is time that society recognized the role of the system for legalizing citizens’ associations as being equivalent to a means of control by the state over civic society. Today this system is a relic of long past times. It can be used (and is clearly used) not only be state, but by shadow groups in order to stifle unwanted citizens’ associations and to modify civic activity in society

This judgment will have impact on each citizen of Ukraine when they determine whether it is worth taking the trouble to participate in creating and legalizing their own citizens’ organization. Will they wish to exercise their fundamental right? Do many people dare to do this nowadays?

Society must know that in the European Court of Human Rights a case is being considered with likely ramifications for each Ukrainian citizen.

Finally, the applicants announce the creation of a human rights group “Article 11”. The aim of the group is to monitor observance of the right to freedom of peaceful assembly and freedom of association with others in Ukraine (Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). “Article 11” calls on all those who have encountered violations of the above-mentioned right to send information to the following address: report@article11.org.ua. The information will be placed on the site www.article11.org.ua for general access. .      

 



Appendix 1

The European Convention for the Protection of Human Rights and Fundamental Freedoms

 

Article 11
Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(Rome, 4 November 1950)

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