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Human rights in Ukraine – 2006. X. Freedom of association

   

  [1]

The situation as far as freedom of association is concerned did not change to any significant degree in 2006. Current legislation on associations, passed in the main at the beginning of the 1990s, has long failed to meet modern conditions and the needs of a civic society.  The main problems remain as follows:

-  Legislation does not allow for the possibility of registering certain types of organizations. This applies, for example, to socially beneficial organizations which are not essentially charitable, and whose work is not confined to only defending their own rights and interests, this preventing them from being classified as civic organizations;

-  Obstacles when registering associations as well as with receiving non-profit-making status and the related tax concessions;

-  Restrictions on types of associations’ activities with regard to where they can be carried out (for example, a ban on activities in another city or region where the organization is not registered);

-  Restrictions on kinds of activities (for example. limitations on publishing activities, access to information, defending other people’s rights, etc);

-  Lack of incentives in legislation and administrative practice for strengthening and developing associations and improving their cooperation with the authorities. While this issue does not directly concern the right to freedom of association, it is one of the important factors for evaluating the level of development of democracy in the country.[2]

Numerous provisions in Ukrainian legislation, including the above-mentioned, fail to comply with Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 22 of the International Covenant on Civil and Political Rights and other international agreements to which Ukrainian is a signatory.

  As of November 2006, the following were registered with the Ministry of Justice: 1,791 nationwide civic organizations. These included 114 trade unions or their branches, 9 employers’ associations; 137 associations based on national or friends’ contacts. 153 youth organizations; 13 children’s organizations; 45 women’s organizations; 77 associations of veterans or of people with disabilities;  412 professional organizations, 56 environmental groups; 3 associations for preserving historic or cultural monuments; 332 health or physical exercise and sporting associations,  36 groups for protecting the population against the consequences of the accident at the Chernobyl Nuclear Power Plant; 153 creative organizations, 168 educational and cultural upbringing associations.

In 2006 the Ministry of Justice registered 211 civic organizations (against 181 in 2005); 12 political parties (against 24); 11 branches, departments, representations of civic organizations of foreign states in Ukraine (against 13); 82 charities (against 67); the symbols of 26 civic associations (against 32); 9 permanently functioning arbitration courts (9); 54 civic organizations received legal status through providing notification of their formation (against 31).

Regional bodies of the Ministry of Justice legalized over 2.2 thousand local citizens’ associations (against 2.4 thousand in 2005); over 1.1 thousand branches of nationwide and international civic organizations (against 1,000); around 7.2 thousand structural bodies (against 49.7 thousand) of political parties, and approximately 13.2 thousand (against 50 thousand) other original branches received legal status through providing notification of their formation.  700 local charities were registered (700 also in 2005), as well as 64 permanently functioning arbitration courts (against 53), 125 trade unions and their associations (against 75), while notification was recorded from around 850 (against 856) organizations of nationwide trade unions.

Overall, according to the Ministry of Justice and the Single State Register of Citizens’ Associations and Charities, the number of registrations fell by 23.7% in 2006 against 2005.[3]

According to researchers from the Counterpart Creative Centre, there were in total around four thousand active organizations in Ukraine during 2006, with the others effectively non-functional[4]

In 2006 the Single State Register of Citizens’ Associations and Charities had still not become fully functional.  The work on drawing up and implementing a modernised version of the Single State Register and transferring data to this version, envisaged in the Ministry’s plan of work for 2006, was not carried out. On condition of clear stipulation of the source of financing for the relevant work, the Ministry is planning to carry out this task in the first half of 2007.  There is a problem of public access to information contained in this register.

A positive feature last year was the lack of any prohibition on non-profit making organizations receiving money from their main work. During 2004 and 2005, the Law on the State Budget had suspended the relevant provisions of the Law on taxation of business profits[5]  However, throughout 2006, the full range of tax benefits for non-profit making organizations allowed by legislation were applied.  At the same time, there are a number of difficulties in applying these provisions with most civic organizations trying to avoid such activities and not receiving income from their own work. This means that virtually all nongovernmental organizations function thanks to charitable donations and (non-repayable) financial assistance.

1.  Citizens’ Associations

During 2006 the Ministry of Justice prepared a new version of the Law on Civic Associations (in the current version this is “On Citizens’ Associations”). At the same time a working group was created with representatives of civic organizations in order to prepare comments and proposals on the draft law[6]. Over the last year a number of meetings took place between the public working group and representatives of the Ministry of Justice. Yet it was only in March 2007 that the Ministry agreed to virtually all the proposals made by the public.

Although there has been a reduction in the problems experienced in registering associations, these still arise.

On 19 October 2007 the Law “On Amendments and Supplements to the Law of Ukraine “On State registration of legal entities and individuals – entrepreneurs” came into force (Law № 3575-IV from 16 March 2006). This law makes an attempt to simplify the registration procedure for citizens’ associations, political parties, charities, creative unions, lawyers’ associations, trade and industry chambers, etc.  Article 3 of the Law has been supplemented with a new fourth paragraph which obliges the Ministry of Justice to also issue a certificate of State registration of the legal entity recorded by the State Registrar.

The State Committee on Regulatory Policy and Business and the Ministry of Justice approved Regulations for passing information from offices of the Ministry to the State Registrar in order to register the certificate of State registration of the legal entity (hereafter the Regulations). These Regulations define the rules of procedure for interaction between the offices of the Ministry and the State Registrar with regard to passing on information about the registered citizens’ associations (these including legalized trade unions and their associations), charities, political parties, creative unions, territorial (local) centres of these legal entities, lawyers’ associations, trade and industry chambers, other institutions and organizations, defined by law (hereafter civic formations).

Following registration by the Ministry of Justice or its territorial body of the civic formation, its founders or authorized representatives fill in data regarding registration provided in the form of registration cards approved by Order of the State Committee on Regulatory Policy and Business from 9 June 2004 No. 67 “On approving forms for registration cards”. The Ministry or its territorial office during the next working day after receiving the completed registration card passes the card to the State Registrar of the relevant executive committee of the city council of a town with regional significance, district or district administration within the cities of Kyiv and Sevastopol. The State Register on the day that the registration card is received adds a note to the Single State Register of Legal Entities that the relevant registration has been carried out, prepares a certificate as prescribed by the Law and passes this to the Ministry of Justice or its territorial body. The certificate of State registration of the legal entity may be issued by the State Register to applicants at their written request.

  Citizens’ associations (including trade unions), charities, political parties, local branches of registered nationwide or international organizations which are legal entities and were registered before the Law on Amendments and Supplements to the Law of Ukraine “On State registration of legal entities and individuals – entrepreneurs” came into force directly submit to the State Registrar a copy of the document confirming their inclusion in the Single State Register of Businesses and Organizations of Ukraine [hereafter SSRBOU) and the completed registration card using form No. 6.

The mechanism outlined above for passing on information simplified the State registration procedure for the legal entities listed through the removal of additional registration fees, as well as in enabling founders or their authorized representatives to receive a certificate of State registration of a civic formation.

However the Law “On State registration of legal entities and individuals – entrepreneurs” in the current version rather than simplifying, actually complicates the procedure for State registration of particular types of non-profit making legal entities, in particular political parties, charities, civic organizations, lawyers’ associations, creative unions, their territorial branches, trade and industry chambers, etc, since it envisages double registration which hampers the formation of civic society organizations.

Therefore the highest-priority task in 2007 is to pass the Law “On amendments to some laws of Ukraine on registration of legal entities”, which places the functions of the State Registrar of civic organizations into the competence of the Ministry of Justice. The specific features in registration of such organizations is set out in Article 3 of the Law, i.e. the issuing of one certificate on State registration and only one registration fee (the draft law was submitted for agreeing to the Ministry of the Economy, the Ministry of Finance and the Ministry of Labour on 29 December 2006.

However the difficulty of registration of citizens’ associations cannot be attributed only to the exceptionally bureaucratic procedure for registration in the Ministry of Justice or its territorial offices. Many problems arise at the next stage, i.e. when the civic organization is registered with the State Tax Administration and entered on the Register of non-profit making organizations in order to receive a favourable taxation and tax reporting status.

We can cite what seems to us a classic example of a dispute over adding a civic organization onto the Register of non-profit making organizations, this being carried out by the relevant tax administration providing certain tax benefits for such an organization.

A judgment on 24 May 2006 by the High Administration Court of Ukraine rejected the cassation appeal from the Specialised State Tax Inspectorate in the Prymorsky District of Odessa against the ruling of the Odessa Regional Economic Court from 5 September 2005 and the judgment of the Odessa Economic Court of Appeal from 15 November 2005 in the suit lodged by the Odessa regional civic organization “The sport dancing club “Ah, Odessa”.

The first instance and appeal courts established that on 24 February 2005 the Odessa Regional Department of Justice under registration No. 901 had registered the civic organization SDC “Ah, Odessa” as a legal entity. On 10 March 2005 under No. 15,442 the Club had been added to the register of taxpayers[7].

In August 2005 the Odessa regional civic organization “The sport dancing club “Ah, Odessa”. (hereafter “Ah, Odessa” or the claimant) filed a suit in the economic court against the Specialised State Tax Inspectorate in the Prymorsky District of Odessa (hereafter the Tax Inspectorate, or the respondent) demanding that the decision taken by the tax body No. 42-15-0122 from 24 March 2005 “On refusing to include the claimant in the Register of non-profit making organizations (institutions)”  be declared null and void, and that the tax body be ordered to register the claimant in the Register of non-profit making organizations (institutions) on 24 March 2005 under the code 0006.

In providing grounds for the claim, the claimant stated that on the basis of a review of the application on form 1-RN, the respondent had taken the decision to turn down the application to have the Club included on the Register of non-profit making organizations.  The grounds given were that the norms of paragraph 8: 2.2 point 2 and paragraph 26 2.3 point 2 of the Statute of the Club “Ah, Odessa” did not comply with the requirements of Article 7.11 of the Law “On taxation of business profits”. The claimant considers that the Tax Inspectorate’s decision was taken with serious infringements of current legislation and unwarrantedly violated the claimant’s right to tax concessions.

A ruling by the Odessa Regional Economic Court from 5 September 2005 which was upheld in the judgment issued by the Odessa Economic Court of Appeal from 15 November 2005 allowed in full the demands of the Club “Ah, Odessa”.

The High Administration Court confirmed that the norms of the Statute which the claimant had referred to in their letter of 28 September 2005 concerned the issue of expenditure by a civic organization which was in no way confined to the Law “On taxation of business profits”.

We thus see that as a result of the arbitrary interpretation of legislation, with the representatives of the State Tax Administration being unable to understand that the given provisions did not relate to the sources of income of the organization, the organization was prevented from functioning normally for a year and a half.

The Law “On youth and children’s civic organizations” has finally been brought into compliance with the Constitution. The law defines the specific features of the organizational and legal principles for the creation and activity of youth and children’s civic organizations, as well as the government guarantees for safeguarding their functioning.  The Judgment of the Constitutional Court No. 18-rp/2001 from 13 December 2001 declared unconstitutional the provisions of this Law which stipulated the special status of the Ukrainian National Committee of Youth Organizations as the institution through which government financial support for the youth movement in Ukraine was provided.  Due to this, back on 6 November 2002 National Deputies Y.O.Pavlenko, O.V. Petrov and V.Y. Khomutynnik submitted to the Verkhovna Rada Draft Law No. 2372 “On amendments to the Law of Ukraine “On youth and children’s civic organizations”

The draft law proposed to remove from the Law those provisions which the Court had declared unconstitutional, namely:

, - the norm which states that the Ukrainian National Committee of Youth Organizations is a union uniting the majority of legalized Ukrainian youth and children’s civic organizations;

-  the norm which stipulates that the youth movement in Ukraine shall be coordinated by the Ukrainian National Committee of Youth Organizations;

-   the norm which envisages that government financial support for the youth movement in Ukraine is provided via financing from the State Budget of the Ukrainian National Committee of Youth Organizations.

The draft law also proposes alternative procedure for financing the youth movement in Ukraine. This procedure involves transferring the function of organizing government financial support for youth and children’s civic organizations to executive bodies which work with young people and bodies of local self-government.

The draft law was passed by Parliament at the beginning of 2007.

On 3 October 2006 National Deputy I. Herasymov registered Draft Law No. 2254 “On amendments to Article 4 of the Law of Ukraine “On fundamental principles of social protection for veterans of labour and other elderly people in Ukraine” (on providing financial assistance to civic organizations for veterans of labour). The draft law proposes allowing for the right of local authorities and bodies of local self-government to provide premises, buildings as well as other necessary property, for use without payment of communal charges. The draft law had not been considered at the end of 2006.

 

2.  Political parties

At the beginning of 2006, the Ministry of Justice website had information about 138 registered political parties in Ukraine. Over the year 12 political parties were registered (against 24 in 2005).

A number of problems exist with the functioning of political parties. The government attempts through different means to complicate the registration of new parties and the activities of those already existing in order to reduce them. It should be noted that the given measures, including increasing the number of signatures needed in support of a party are questionable from the point of view of the standards set down in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

. It is effectively impossible to create a political party according to current legislation. On the one hand it is prohibited in the country for unregistered associations to function, while on the other – it is quite unclear how one can gain the signatures of 10 thousand supporters without engaging in any kind of activity.

In our view, political parties get registered purely because the authorities do not apply legislation in full, this demonstrating positive administrative practice which is better than current legislation.

During the first six months of 2006 the Ministry of Justice refused to register 2 political parties. There were no cases where the courts were used to prohibit the activities of political parties. The main grounds for refusing to register a party are not meeting the requirement in Article 10 of the Law “On political parties in Ukraine” to gather signatures of at least ten thousand citizens of Ukraine from at least two thirds of the regions, Kyiv, Sevastopol and the Autonomous Republic of the Crimea.[8]

On 20 January 2006 the National Deputy V.M. Oluyko tabled Draft Law No. 8744 “On amendments to the Law of Ukraine “On citizens’ associations” (regarding the number of signatures from Ukrainian citizens supporting the formation of a political party). This envisages that the application to form a political party should be signed by ten thousand[9] Ukrainian citizens. However these amendments to the Law were not considered by the former parliamentary session which means that the draft law is rejected.

Yet by 12 January 2007 the National Deputies H.A. Savosin and Y.H. Zubko had introduced exactly the same draft law which has yet to be considered by parliament.

On 20 September 2006 the National Deputy B. Bezpaly tabled Draft Law No. 2198 “On amendments to the Law of Ukraine “On political parties in Ukraine” (on regulating the registration of parties and overseeing their activities)”. The draft law proposes significant amendments to the procedure for registering political parties.

In December 2006 the profile committee of the Verkhovna Rada on State construction, regional policy and local self-government issued a positive assessment recommending that the said Draft Law be accepted in its first reading. This led to a draft of the relevant parliamentary Resolution being registered however parliament has still not considered the Draft Law.

The dispute continued throughout 2006 over the creation of the political party “Narodny Soyuz Nasha Ukraina” [the People’s Union Our Ukraine”].

In July 2005 Ms Y. filed a suit with the court against the inaction of the Ministry of Justice with regard to the registration of the political party “People’s Union Our Ukraine” and called for the inaction of the Ministry in not carrying out the necessary check of material from the political party “People’s Union Our Ukraine” submitted with the application to be declared unlawful. She asked that her legitimate rights and interests be protected and that the Ministry of Justice be ordered, in accordance with Article 24 of the Law “On political parties in Ukraine”, to approach the Supreme Court with an application to annul the certificate from 22 March 2005 No. 115 of registration of the political party “People’s Union Our Ukraine”.

A ruling by the Pechersky District Court in Kyiv from 30 August 2005, upheld by the Kyiv Appeal Court in a ruling on 30 December 2005, terminated the proceedings in the case pursuant to Article 227  § 1 of the Civil Procedure Code (in the 1963 edition).

A ruling on 8 June 2006 by the High Administrative Court of Ukraine quashed the 30 December 2005 Ruling by the Kyiv Court of Appeal into the case and sent it back for another examination by an appeal court.

3.  Trade Unions

Freedom of association in a trade union, as well as being guaranteed by international norms regarding freedom of association, is also guaranteed by the International Labour Organization (ILO) Convention No. 87 Freedom of Association and Protection of the Right to Organize” which upholds the right of employees and employers to freely create their own organizations in order to put forward and defend their interests. The right of freedom of association in trade unions is enshrined also in Article 5 of the European Social Charter.

The crucial international principles involved in the right of freedom to organize in trade unions include the following:  

-  freedom of choice for employees and employers (whether to form one or several organizations at the workplace);

-  association according to profession or according to field of work (the formation of a federation or confederation);

-  independence and autonomy of organizations of employees and employers;

-  prohibition of any discrimination in freedom of association in the area of work (with the exception of the armed forces and the police whose rights are set down in national legislation);

-  the safeguarding by the government of the civil and political rights which the rights of the trade union are linked with;

-  prohibition of government interference which could restrict freedom of association.

According to ILO standards, a component feature of freedom to organize in a trade union is the right to hold collective negotiations in order to reach collective agreements and the right to strike.

Guaranteeing freedom to organize in a trade union implies both types of duties for the government -: negative and positive.  The negative duty lies in not having any norms or administrative practice in domestic legislation restricting the freedom of employees or employers to create or join an organization. This means that the government must not prohibit workers (given the observance of certain conditions) from organizing trade unions at their own discretion. At the same time, the government may not force workers to join a trade union in accordance with the law, and must not interfere in the internal affairs of the trade union. The positive duty on the other hand implies that the government is obliged to use relevant legislative or other means to guarantee observance of the right to create an organization and to protect such organizations from interference by employers.

At the beginning of 2007 information on the Ministry of Justice website stated that there were 104 all-Ukrainian trade unions registered, and 14 all-Ukrainian associations of trade unions, legalized by the Ministry of Justice.

There are a number of problems which are closely related to exercising the right of freedom to organize in trade unions, these being:

-  problems with State registration;

-  problems experienced by trade unions in carrying out their functions;

-  various types of pressure from employers on the founders and members of trade unions;

In the course of monitoring observance of the labour rights of State sector employees, it was found that many institutions did not have protocols for forming initial trade union organizations, nor application forms for employees wishing to join these organizations and have their membership fees deducted.  From the first day of work, an employee is automatically included in one of the trade unions and membership fees are charged. At the same time there are problems with the legalization of trade unions, and in the case of legalization, one has to wait months, and sometimes even years to receive the legalization documents. For example, as of March 2007 a case was awaiting examination in the Lviv Regional Court of Appeal on a suit lodged by the Sambir Free Trade Union of Education and Science against the Regional Department of Justice. The suit concerns the latter’s refusal to legalize local trade union organizations, this being an overt violation of the right to freedom of association.[10]

The High Economic Court of Ukraine in its Resolution from 11 May 2006 rejected the cassation appeal of the Open Joint Stock Company on gas supplies and services “Poltavahaz” with regard to its suit against the Free Trade Union of Machinists of that business seeking to have the trade union’s certificate of registration annulled.

The Open Joint Stock Company on gas supplies and services “Poltavahaz” had filed a suit with the Kyiv Economic Court against the Ukrainian Free Trade Union of Machinists calling for the cancellation of the registration of the initial organization  of the Ukrainian  Free Trade Union of Machinists according to its certificate from 8 June 2005 No. 36/1290.  With this certificate the Free Trade Union of employees of the Open Joint Stock Company on gas supplies and services “Poltavahaz”  of the National Joint Stock Company Naftohaz – Ukraina registered as an organizational part of the Ukrainian Free Trade Union of Machinists. The enterprise had, in this way, sought to put pressure on the trade union.

The Verkhovna Rada is planning to study the problems faced by trade unions through holding parliamentary hearings. On 11 January 2007 it passed a Resolution on holding such hearings in the Verkhovna Rada and instructed the parliamentary Committee on social policy and employment to organize hearings for April 2007 on the topic “The level of observance of the rights of trade unions and employers’ organizations in accordance with the International Labour Organization Convention No. 87 “Freedom of Association and Protection of the Right to Organize”  

On 8 September the National Deputy and leader of the trade union movement M. Volynets registered in the Verkhovna Rada Draft Law No. 2083 “On amendments to some laws of Ukraine (on registration of trade unions as legal entities)”. It did not receive consideration in 2006.  The Draft Law proposed introducing amendments to the Ukrainian Civil Code, the Law “On state registration of legal entities and individuals – entrepreneurs” and the Law “On trade unions, their rights and guarantees for their activities”. The amendments and additions envisage that trade unions together with their organizations and associations of trade unions:

- shall be considered to be formed and take on the status of a legal entity and civil legal capacity from the moment that their charter (regulations) are approved at a statutory meeting, conference or congress.

- shall lose their civil legal capacity from the moment that their activities are terminated. The trade union shall inform the legalizing body of the termination of its activities within three days from when it was removed from the List of legalized trade unions, their organizations and associations of trade unions.

- shall not be liable to pay a fee for carrying out the legalization process.

Compulsory dissolution of a trade union or association of trade unions leads to the cancellation of the certificate on legalization and removal from the List of legalized trade unions, their organizations and associations of trade unions. They also lose the rights of a legal entity, and it is mandatory to inform the legalizing authority of this in the mass media.

The given legislative proposals are fairly contradictory since they change the moment from when a trade union is considered to be formed which would lead to a number of collisions in legislation.

On 25 May 2006 National Deputies O. Yukhnovsky, V. Tsushko and V. Shpak registered in parliament Draft Law No. 949 “On trade unions and inter-professional associations in the agricultural industry. However this draft law was withdrawn on 5 October.

4.  Checks on the activities of citizens’ associations

In 2006 checks on civic organizations by the authorities became more frequent.

The Ministry of Justice in 2006 carried out checks of more than 7 thousand civic organizations to ascertain whether they were complying with the provisions of their charters. These checks resulted in more than 800 written warnings (against 2005 when 4.9 thousand organizations were checked and 750 warnings issued).[11]

For example, the Ministry of Justice and its departments at local level made a mass scale check of the actual location of civic organizations based on the information contained in their charters.

As a result of this check the Minister of Justice Oleksandr Lavrynovych stated in November 2006 that the Ministry was unable to find at their registered addresses around one tenth of the all-Ukrainian civic organizations and associations. He added that soon the percentage of civic organizations not located, and thus, in his opinion, theoretically non-existent[12], could rise even further since by that time they had only checked those organizations which had been registered from 1990-1994.[13]  However legislation does not provide for any penalties for the fact that an organization is not present at its legal address. As a result, the Ministry of Justice has no way of reacting to these infringements.

The Ministry of Justice also checked whether the activities of the civic organizations corresponded to those given in their charters.

For example, the Ministry issued a warning to the All-Ukrainian civic organization “National Committee on Combating Corruption” which points to the unacceptability of violations of legislative norms. The corresponding Ministry of Justice Order states that the warning was issued for violating the demands of the Law “On citizens’ organizations” and of the Law “On cooperation”. This was for carrying out measures to defend and represent the interests of individuals who are not members of the “National Committee on Combating Corruption”, and the unlawful interference in the activities of consumers’ associations and their unions.

The Press Service of the Ministry of Justice and the Department for legalization within the Ministry asserted that the grounds for the warning were an appeal to the Ministry by a legal entity who asked them to determine the lawfulness of the interference by the  “National Committee on Combating Corruption” in the activities of  consumers’ associations and their unions. For example, letters were sent from the Head of the Committee to the newspaper “Komsomolskaya Pravda” and Ukropspilka [the Ukrainian Central Union of Consumers’ associations]. These gave a negative assessment of the state of affairs as regards consumer cooperation and enclosed an authorization form for shareholders in consumers’ associations to fill in, authorizing the “National Committee on Combating Corruption” to represent their interests with the authorities, the law enforcement and judicial bodies. On the basis of the facts presented in the application, the Ministry of Justice found that the “National Committee on Combating Corruption” had infringed a number of articles of the Law “On citizens’ associations” (for example, paragraph two of Article 8 and paragraph one of Article 20), and “On cooperation” {Article 8).The Ministry of Justice in their conclusions stressed that the task of establishing the veracity of the information which the Committee had published in the mass media was solely within the competence of the court, while investigations were the responsibility of the law enforcement agencies.[14]

Although the above-mentioned actions are indeed based on the requirements of the Law on citizens’ associations, they illegitimately restrict freedom of association in the light of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

  In 2006, the activities of associations were not only checked by the Ministry of Justice, but by the law enforcement agencies also.

For example n the Crimea, in the course of a criminal investigation concerning separatists, the Ministry of Internal Affairs (MIA) and the Security Service (SBU) carried out interrogations and house searches of activists of the Sevastopol youth organization “Proryv” [“Breakthrough”], known for its radical statements and actions. The Crimean police launched a criminal investigation on suspicion of seeking to undermine the territorial integrity and inviolability of Ukraine. According to the MIA, the police were planning to raise the possibility of having the civic organization stripped of its State registration and of deporting its leader Alexei Dobychyn, a Russian national, back to Russia. “Proryv” activists, led by Alexei Dobychyn, had in Syvashchi on 20 January held a symbolic action of separating the Crimea from mainland Ukraine, digging up around 10 metres of the isthmus and erecting border poles with the symbols of Russia and Ukraine. In an interview to Russian television journalists present at the protest action, the leaders of “Proryv” publicly called on the Russian authorities to return Crimea to Russia.

On the next day, Saturday 21 January, law enforcement officers detained Alexei Dobychyn and one other leader of “Proryv” Alexander Dubrovsky in Sevastopol and took them to Simferopol for questioning, releasing them after this. However the criminal file was then handed by the police to the SBU and on 25 January both men were questioned in the Crimean Central Department of the Ukrainian Security Service. On that same day SBU officers carried out a search of “Proryv’s” office and in Alexei Dobychyn and Alexander Dubrovsky’s flats in Sevastopol. However by the end of the year the investigation had not resulted in anything and the organization was continuing to function.[15]

  Another incident worthy of note took place in Kherson.

  On 13 December 2006 officers of the Kherson Regional Department on Fighting Organized Crime [UBOZ] summoned for questioning two leaders of the Kherson Regional youth organization “The Youth Centre for Regional Development”. The law enforcement officers, as part of an “investigative check” asked about the organization, when it had been formed and were also interested in why Americans were interested in the problems of the youth of the Kherson region[16]  What they clearly had in mind was the fact that in 2006 the non-profit making organization “The Youth Centre for Regional Development” had received a grant from the international civic organization “Freedom House – Ukraine” to carry out a project aimed at developing youth policy in the region.[17]

On 21 December UBOZ in a separate letter explained that the check was being carried out on the basis of the Law “On the organizational and legal basis for fighting organized crime” and made the following additional demands:

“In connection with the check, on the basis of Article 12 of the Law “On the organizational and legal basis for fighting organized crime” and sending for checks of  № 16/5-1-7 from 13.12.2006, please provide certified copies of the following documents of the Kherson youth civic organization “Youth Centre for Regional Development”:

    • on State registration
    • charter documents
    • appointment of employees and their functional duties
    • documents confirming receipt of financial assistance from State executive bodies, bodies of local self-government or other sources of financing for the period from 17.10.2005 to the present
    • documents regulating relations (“grants”) and the receipt of financial assistance from foreign organizations for the period from 17.10.2005 to the present
    • documents confirming the receipt of the said monies and their further use
    • documents showing the ordering of State and local needs carried out (programmes, projects, measures) and the purpose-linked financing and material assets for the period from 17.10.2005 to the present

The next day the Centre addressed a letter to UBOZ asking for an explanation of which specific documents they needed to provide, since from the list given it was hard to understand.

In response, on 22 December, a formal act was drawn up in the Centre’s office of a control check which stated that UBOZ had been unable to carry out a check due to a refusal to provide documents. Then on 26 December UBOZ filed an application with the court to have all these documents removed, which the court allowed.

 

RESOLUTION

on removal of documents

 

Kherson   26.12.2006

.

Judge of the Komsomolsky District Court in Kherson S.A. Skoryk, having examined the application made by the UBOZ Division for the Kherson Regional Department of the MIA for permission to remove documents with material in order to check for adherence to current legislation by official representatives of the Kherson youth civic organization “Youth Centre for Regional Development” (Single State Register of Businesses and Organizations №33824578) in using money received from foreign organizations to carry out programmes on the development of youth policy in the Kherson region –

 

HAS ESTABLISHED:

 

That the UBOZ Division for the Kherson Regional Department of the MIA , in accordance with the Laws of Ukraine “On the police” and On the organizational and legal basis for fighting organized crime” is carrying out a check of adherence to current legislation by official representatives of the Kherson youth civic organization “Youth Centre for Regional Development” (SSRBOU №33824578) in using money received from foreign organizations to carry out programmes on the development of youth policy in the Kherson region .

In the application, the issue is raised of the UBOZ Division for the Kherson Regional Department of the MIA being provided with documents from the Kherson youth civic organization “Youth Centre for Regional Development” needed to ascertain whether official representatives of the Centre have complied with the law.

Having studied the application and material for the check, bearing in mind that the official representatives of the given organization refused to provide the documents, despite the order for a check №16/5-1-7 from13.12.2006 and the formal request to provide the documents №16/5-1-3247, taking into consideration the fact that in order to carry out a proper check regarding compliance with legislation by official representatives of the Kherson youth civic organization “Youth Centre for Regional Development”, being guided by Article 11.24 of the Law of Ukraine “On the police” and Article 12 of the Law “in using money received from foreign organizations to carry out programmes on the development of youth policy in the Kherson region

 

HAS RESOLVED:

 

1.  To permit the UBOZ Division for the Kherson Regional Department of the MIA to remove the following documents from the Kherson youth civic organization “Youth Centre for Regional Development” (SSRBOU №33824578) registered at the address: 117-2, flat 7, Shovkunenko Street, Kherson:

-  documents on the appointment of employees and their functional duties

o  documents confirming receipt of financial assistance from State executive bodies, bodies of local self-government or other sources of financing for the period from 17.10.2005 to the present

 

o  documents regulating relations (“grants”) and the receipt of financial assistance from foreign organizations for the period from 17.10.2005 to the present 

-   

-   

 

    • documents confirming the receipt of the said monies and their further use
    • documents showing the ordering of State and local needs carried out (programmes, projects, measures) and the purpose-linked financing and material assets for the period from 17.10.2005 to the present

 

The quality of this court ruling and its compliance with legislation are questionable, especially as regards the list of documents to be removed. Some of these documents never in fact existed.

On 29 December the documents were forcibly removed by UBOZ from the Centre’s office.

National Deputy A. Pinchuk sent a formal Deputy’s request for information to the Minister of Internal Affairs V. Tsushko, asking for a legal assessment of the actions of the Kherson UBOZ. The response from the MIA stated that UBOZ had acted within the framework of existing legislation.

The website “Maidan” published an article entitled “For Tsushko: continuing the story of the UBOZ onslaught on a civic organization”, on the unlawful actions of officers of the UBOZ Division for the Kherson Regional Department of the MIA during a check into the activities of the Kherson youth civic organization “Youth Centre for Regional Development” 

The department of internal security of the MIA in the region carried out an official check which established the following:

„An official investigation ascertained that there had been an infringement of criminal procedure legislation in the continuation of the given case. In particular, after the removal of the documentation, the police officers did not register the enforcement of a check into the activities of the “Youth Centre for Regional Development”   in the Logbook for recording crimes and did not take the relevant procedural decision. The above mentioned infringements happened as the result of an inadequate legal of professionalism from the investigation officer, as well as the lack of proper control by the management over the work of its staff.

As a result, therefore, of the official investigation, a conclusion was sent to the Kherson Regional Department of the MIA regarding disciplinary proceedings to be brought against those responsible. The relevant decision was taken.

The material of the check into the activities of the Kherson youth civic organization “Youth Centre for Regional Development” was registered in the Logbook on 18.01.2007. At present, the check into this material is still continuing.

 

5.  The Case of Koretsky and others v. Ukraine (№40269/02) in the European Court of Human Rights[18]

During 2006 there was movement in the European Court of Human Rights on considering the case based on a claim brought by Serhiy Koretsky, Andriy Horbal, Oleksiy Lobytsky and Andriy Tolochko against Ukraine regarding the alleged violation of their right to freedom of association as guaranteed by Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  

On 5 December 2006 the applicants held an official press conference in Ukraine where they gave details about the case[19] 

This case is to some extent typical for Ukraine.  The only unusual aspect is its development since the claimants, unlike the majority of Ukrainians decided to stand up for their right to freedom of association even at the expense of their own environmental work.

On 7 June 2000 four Ukrainian citizens decided to create a civic organization, “The Civic Committee for the preservation of the wild (indigenous) nature of Bereznyaky”. On 27 July they submitted an application to have the association legalized. The Department of Justice for Kyiv, as always in such cases, made verbal comments regarding the wording of the aim and other provisions of the organization’s Charter. The organization was prepared to accept some of the changes, but others they were not. They submitted a new version of the Charter however on 18 September 2000 the Kyiv Department of Justice refused to legalize the civic organization on the basis of the new version of the Charter.

 

The official grounds for the refusal were as follows:

  • Two aims of the Committee in its Charter were given, whereas the law only allows for one;
  • The Charter does not define the status of the organization and in other provisions it is stated that the Committee has the right to have representative officers in other cities of Ukraine, which does not comply ;with the restrictions of the law on an organization’s activities according to its territory;
  • The Charter mentions the use of volunteers for some of the work of the organization which violates the principle of equality of all members of the organization;
  • The Charter envisages the carrying out of publishing activities, part of which according to legislation can only be carried out by business;
  • The document proving payment of the registration fee was not attached, only a copy;
  • Other violations of Ukrainian legislation.

It should be noted that while some of the criticisms made by the Department of Justice were in compliance with legislation, others were purely the result of a permission-based interpretation of legislative norms.

The founders lodged a claim with the court against the refusal to legalize their civic organization

On 13 March 2001 the Pechersky District Court in Kyiv rejected their claim against the Kyiv Department of Justice, and this ruling was upheld on 28 August 2001 by the Kyiv Court of Appeal.  Later, on 14 March 2002, a panel of judges of the Ukrainian Supreme Court also upheld the rulings of the previous two courts.

The European Court of Human Rights received the application from the four men on 18 November 2002. In 2006 communication began over the case between the Secretariat of the European Court and the Government of Ukraine which shows that the application is being prepared for a decision as to whether to declare it admissible.

The given case is of enormous importance for Ukraine since the European Court of Human Rights will check whether the most crucial provisions of Ukrainian legislation on civic organizations meet the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This applies to:

-  registration procedure;

-  the requirements regarding the aim of an organization;

-  territorial restrictions on the activities of an organization (the organization’s status);

-  restrictions on the types of activities for civic organizations, for example, publishing activities;

-  responsibility for the activities of an unregistered association.

 

6.  Recommendations

1  Adopt relevant legislation which would define clear and standardized conditions for the creation or termination of activity of all types of non-profit making organizations, including organizations, whose creation is not allowed for by Ukrainian legislation, as well as so that they can obtain the appropriate tax incentives through gaining the status of a non-profit making organization. This would entail the following:

-  simplifying the registration procedure for nongovernmental organizations by creating one procedure for both non-profit making organizations and businesses;

-  . abolishing the territorial division of non-profit making organizations’ activity and the restriction of their activity to the administrative-territorial unit they are registered in;

-  abolishing. the strict division between associations created for their own members and those for others.

2  Adopt a Law “On amendments to some laws of Ukraine on registration of legal entities” which would transfer to the Ministry of Justice the functions of State registrar of civic organizations, the specific features in registering which are set out in Article 3 of the Law on registration of legal entities. To issue one certificate of State registration and have only one registration fee.

3  Introduce amendments to the Law on publishing activities in order to enable non-profit making organizations, and not only businesses, to establish publishing houses.

4  Review the restrictions on creating political parties.

5  Abolish the practice of licensing social services which are provided by non-profit making organizations, and not from State or local authority budgets. To provide legislation stipulating the conditions under which the government pays for social services, and provides assistance to nongovernmental non-profit making organizations

6  Stimulate charitable or other non-profit-making activity by providing tax incentives solely on condition that charitable or other socially significant activity is carried out, and not by virtue of having created a specific type of organization which may not even provide such services. 

7  Make more transparent the provision and use of government funding directed towards citizens’ associations for carrying out state programs

8  Remove Article 186-5 which establishes liability for the activity of unregistered civic organizations from the Code of Administrative Offences  

9  Sign and ratify the Convention on recognizing the legal identity of international non-governmental organizations (ETS № 124) that came into force on January 1, 1991

10  Strengthen mechanisms of cooperation and consultation between public authorities and bodies of local self-government at all levels and citizens’ associations in developing government policy in various areas, and also in their implementation and in the creation of normative acts.



[1] Prepared by Volodymyr Yavorsky, Executive Director of the UHHRU

[2] For a more detailed discussion of these issues, see the Reports “Human Rights in Ukraine – 2004” and “Human Rights in Ukraine – 2005”, which can be found at the UHHRU website www.helsinki.org.ua. Since the situation has not changed markedly, the conclusions in those reports entirely reflect the present situation.

[3]  According to the Ministry of Justice Report on implementation of the 2006 working plan which is available in Ukrainian at the Ministry website: http://www.minjust.gov.ua/0/news/8989.

[4]  The state and rate of development of nongovernmental organizations in Ukraine (2000-2006), Report on research from the charitable foundation “Counterpart”, 2006 – p. 18. Active organizations are understood to mean registered organizations existing for more than two years, which have experience of carrying out at least 2 programmes or projects, have successfully fulfilled projects and are known in their region. .

[5]  This refers to the provisions of paragraphs 2.7, 11 and 13 of the Law “On taxation of business profits” in the following version: “The main activities shall include the sale by a non-profit making organization of commodities (services) which espouse the principles and ideas which the non-profit making organization was created to defend, and which are closely connected with their main activities, if the price of such commodities (services) is lower than the usual price or where such a price is regulated by the State”.

[6] The given working group was engaged in drawing up a Public Sector Doctrine aimed at building a favourable legislative environment for associations. More information about the makeup and activities of the working group can be found at: http://doktryna.civicua.org/docs/workgroup.html.

[7] It should be noted that in this case there is a classic infringement which admittedly none of the parties to the dispute noticed. The normative documents of the State Tax Administration stipulate that a taxpayer is registered by being added to the Register of non-profit making organizations. In practice however this never happens: at first all organizations are registered according to general procedure like all enterprises, and then over a month or even two the question of whether they should be added to the Register of non-profit making organizations is considered. This means that registration drags on for at least one more month.

[8]  Response from the Ministry of Justice to a formal request for information (letter No. 32-23928-c from 28.12.06). Available in Ukrainian on the “Maidan” website http://www.maidan.org.ua/static/news/2007/1168590254.html.

[9] The current version of the law states: “An application for registration of a political party must be supported by the signatures of no less than one thousand Ukrainian citizens entitled to vote”. The given norm of the law on citizens’ associations directly contradicts Article 10 of the Law on political parties which imposes such demands.

[10]  On the results of the project “Protecting labour rights of employees of the State sector in Ukraine”, undertaken by the Free Trade Union of Education and Science of the Lviv region with the financial support of the International Renaissance Foundation. The Material was prepared by Andriy Sokolov and Olena Grabovska.

[11]  According to the Report of the Ministry of Justice on implementation of the 2006 plan of work. Available in Ukrainian at the Ministry website: http://www.minjust.gov.ua/0/news/8989

[12] This assertion is clearly dubious from the point of view of the law (the time of suspension of a citizens’ association), as well as of general standards of freedom of association which are in no way linked with the legal address of an organization. .

[13] More can be found on the UHHRU website:  http://www.helsinki.org.ua/index.php?id=1163513437.

[14]  See the UHHRU website   http://www.helsinki.org.ua/index.php?id=1165837247.

[15]  See : http://www.helsinki.org.ua/index.php?id=1138375270.

[16]  Website of “Politychna Khersonshchyna” //

http://www.politics.kherson.ua/?&lang=ukr&po=doc&doc_topic=709&menu_id=787&id=3986. Information also available on the forum site:  http://www.nokia.20gigs.com/forum/viewtopic.php?id=82&p=1.

[17] See the commentary of the International civic organization “Freedom House – Ukraine” on the “Maidan” website http://maidan.org.ua/static/news/2006/1166900412.html

[18]  Based on material provided by the civic organization “Article 11”: http://www.article11.org.ua.

[19] See information about the press conference on the UHHRU website

http://www.helsinki.org.ua/index.php?id=1165332122. and in English at: http://khpg.org/en/index.php?id=1165867484

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