Human rights in Ukraine – 2008. 10. FREEDOM OF ASSOCIATION

  [1]

I. Overview

There were no major changes in the situation with freedom of association in 2008. Current legislation on associations, passed in the main at the beginning of the 1990s, has long failed to meet modern conditions, the needs of civic society as well as international standards, in particular, Article 11 of the European Convention on Hunan Rights.

In April 2008 the European Court of Human Rights issued its Judgment in the Case of Koretskyy and Others v. Ukraine[2], in which it found that Ukraine had violated the applicants’ right of association. The Court found that Ukraine’s law on citizens’ associations did not meet the quality requirements demanded by the European Convention on Human Rights, and that certain restrictions were not necessary in a democratic society.

The following provisions and administrative practice, for example, unwarrantedly restrict freedom of association:.

-  Restrictions regarding the aim in creating an association;

-  Restrictions on possible legal forms of association and legally stipulated in advance means of management and structure of the association though the implementation of the mandatory principle of «democratic management»;

-  Restrictions on many forms of associations’ activities;

-  Restrictions on the territorial activities of associations (territorial status of an association);

-  Discriminatory and excessively complicated procedure for registration of associations;

-  Restrictions on membership and taking on volunteers due to a broad interpretation of the mandatory principle of equality of all members of the association;

-  Restrictions on business activity and on using the profits received for the activity of the association as per articles of association.

However positive moves are apparent, linked with the completion of a draft law «On civic organizations» [3] drawn up by the Ministry of Justice together with a working group which included members of the public. The draft law prepared is a significant step towards ensuring freedom of association and on the whole complies with international standards. The Ministry of Justice submitted it to the Cabinet of Ministers on 10 October 2008 (letter № 9138-0-4-08-18) and it was approved at a meeting of the latter on 22 October with comments taken into consideration. It was later reworked in the Ministry of Justice and on 31 October once again submitted to the Cabinet of Ministers, which tabled it for consideration in the Verkhovna Rada.[4]. Although it requires certain insignificant changes and amendments, the bill is basically ready to be passed, however there is little knowledge of it and understanding of its provisions among members of the public. . The Supreme Court also lacks knowledge and understanding of it, judging by the opinion[5] it published on the draft law where the majority of points run counter to the case law of the European Court of Human Rights.

II. Formation of associations

 One of the most serious problems remains the considerable obstacles which the State puts in the way of those creating associations. These obstacles are to a large degree artificial, being the result of numerous clashes in legislation and do not comply with European human rights standards.

The timescale for registration when it comes to most associations (charitable, religious, international civic organizations, etc) is discriminatory. Such discrimination is fixed at a legislative level, but is exacerbated in practice. For example, a profit-making enterprise is registered within 14 days by virtually all bodies and can begin functioning. The period of registration for a civic organization may stretch from one month to nine. This is due to numerous cases where the authorities fail to meet time limits, to double State registration and to complicated procedure for receiving non-profit making status, with the latter making it possible for an organization to not have income taxed (this takes between one and two months). Difficulties with procedure for civic formations, with these being more complicated than for business structures, prompted the Ministry of Justice to prepare for the Cabinet of Ministers an initiative on simplifying the procedure for registering associations of citizens and other civic formations. The draft Law «On amendments to some laws regarding registration of legal entities»« was submitted by the Ministry to the Cabinet of Ministers on 8 January 2009. The draft law proposes to replace the system of various registering bodies (executive committees, State administrations) with a single registering authority – offices of the Ministry of Justice, with single timeframes also proposed for all registration procedures. This draft law is extremely progressive and could resolve many problems with egistration of organizations

However difficulties with registration of organizations are not only to be attributed to the exceptionally bureaucratized procedure for registration in the Ministry of Justice and its territorial offices. Many problems arise at the next stage – registration of the organizations in the State Tax Administration and inclusion in the Register of non-profit making organizations in order to receive concessionary tax and reporting status

The District Administrative Court in Kyiv on 24 March 2008 issued a ruling allowing a claim brought by the Credit Union «NSPU» against the State Tax Inspectorate in the Pechersky District of Kyiv, and revoking Decision N 206/15-02 form 6 December 2007 which refused to add the Union to the Register of Non-profit-making Organizations (Institutions). In this case the tax officials refused to grant the Credit Union non-profit making organization status on the grounds that the source of its income was supposedly wider than that stipulated by the law on taxation of the profits of businesses. However the court found that the tax officials were not authorized to check the articles of association of legal entities, and that their duty lay in formally determining compliance of the articles of association with the demands of the law on taxation of the profits of businesses. However in practice instances remain widespread where the tax officials broaden the range of grounds for granting non-profit making status.

The bodies which register organizations (the Ministry of Justice, its local departments and bodies of local self-government) systematically interfere in the internal management of organizations during registration

Legislation is not sufficiently clear in defining either the degree to which failure of the charter to comply with legislation is admissible, or clear grounds for refusing to legalize the organization. This gives huge scope for manipulation by the authorities which many of them use. We should add that discrepancies in the articles of association have no relation to the real activities of the organizations involved, and the checking of the articles is therefore of a purely formal nature.

An important problem remains the inability to create different types of associations as one chooses. One cannot, for example, create associations of legal entities and individuals, associations of citizens’ associations and other types of organizations, such as charities, associations of charities or charities founded in accordance with a will, and others.

Perhaps the greatest problem for human rights organizations remains the constitutional provision that a civic organization may only be involved in defending the rights of its own members. This provision is reflected in the Law on Citizens’ Association and leads to considerable restrictions on their activities. It effectively prohibits organizations formed for the benefit of the public since charities are not entitled to engage in human rights protection at all. This is one of the most common grounds for refusing to register an organization. It should be noted that on the grounds on provisions in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Ministry of Justice has removed these restrictions in its draft law on civic organizations.

There are still considerable restrictions on types of activities which associations can engage in. Areas of activity, such as publishing, expert assessments and many others, not clearly permitted by laws, are not available to associations. This restriction has been found by the European Court of Human Rights to not comply with Article 11 of the European Convention.[6]

Another problem is the maintenance of an association’s territorial status with this limiting the association’s activities exclusively to the place where it is registered – a village, city, district of a city, district of a region, etc. There are no such restrictions on profit-making organizations this being yet more evidence of discrimination of restricting legislation against associations. This restriction was also found to violate Article 11 of the European Convention by the Court in Strasbourg.[7]

Major restrictions remain on the creation of associations by foreign nationals or stateless persons, even when these are legally and permanently resident in Ukraine. They may not, for example, form trade unions or religious organizations. Among other things, this is not in line with the European Convention on the Legal Status of Migrant Workers which Ukraine has ratified. That recognizes the right of foreign nationals to create civic organizations except organizations created to protect their economic and social rights, not counting political parties and trade unions. A draft law has, however, been registered in parliament proposing amendments to legislation in connection with ratification of this agreement.

There is still no full register of all citizens’ associations. Effectively only exact information about legalization is available where this has involved the Ministry of Justice, however there is only approximate information regarding local associations. The Ministry of Justice decided not to create only a register of civic associations, but rather a register of legalized civic formations, with open access to this information: political parties and their structures, civic and charitable organizations, courts of arbitration, etc. In an Order from 19 December 2008 № 2226/5, the Ministry of Justice approved Regulations on a Single Register for civic formations. The Minister is planning that technical work on implementing the Single Register will be completed by 31 March 2009. Unimpeded provision of information from the Register in response to requests from individuals and legal entities is envisaged from 1 October 2009.

According to figures from the Ministry of Justice the number of registrations, with inclusion in the Single State Register of Citizens’ Associations and Charitable Organizations fell in 2008 by 29.9%.

During 2008 the Ministry of Justice legalized 237 civic organizations (in 2007 – 277), and also registered (noted) amendments made to the articles of association of 322 civic formations (against 336 a year earlier), registered the symbols of 28 (against 37) civic formations, and 10 (against 18) permanently functioning courts of arbitration, 52 (against 82) charitable organizations and 20 (against 4) political parties.

In 2008 territorial offices of the Ministry of Justice legalized over 2.5 thousand local citizens’ associations (about the same as in 2007) and over 1, 000 (against 900) branches of all-Ukrainian and international civic organizations. They registered over 700 local charities (around 700 in 2007), approximately 5 thousand (around 2.3 thousand) structures of political parties, and legalized via written notification of creation 13 thousand (against over 4.5 thousand) primary centres of political parties.

Statistics of associations’ registration [8]

According to information from the State Committee of Statistics, obtained from the Singe State Register of Businesses, Organizations and Institutions (SSRBOI), the number of organizations with legal entity status is absolutely at variance with Ministry of Justice figures. For example, as of 1 January 2009 the SSRBOI had registered 16, 719 parties and their branches, 59, 321 civic organizations, 21, 425 religious organizations and 11, 660 charities.[9]

In 2008 Central Departments of Justice refused to legalize over 800 civic formations, and territorial offices of the Ministry turned down over 400 civic formations. The largest numbers of refusals during 2008 were issued by the Central Departments for the Cherkasy, Donetsk, Dnipropetrovsk, Kyiv and Odessa regions, the city of Kyiv and the Crimea.

There is no information as to the reasons for such refusals.

A separate problem is with the formation of trade unions, the legalization of which encounters certain artificial administrative obstructions.

Many problems also arise when registering religious organizations, and this receives separate attention in the section «Freedom of thought, conscience and religion».

III. Checks on the activities of associations

During 2008, the Ministry of Justice in implementation of its controlling duties, checked the adherence to their articles of association of 65 civic organizations legalized from 1995-1996 (against 9 in 2007). Territorial offices of the Ministry checked activities as per their articles of association of around 7.3 thousand civic associations (against 6.5 thousand in 2007). Around 730 warnings were issued (against around 550 in 2007). These activities were carried out most actively by the main departments of justice in the Kyiv, Lviv, Cherkasy, Donetsk and Odessa region, the Central Department of the Ministry of Justice for the Crimea, the Zhytomyr and Kherson regions.

In 2008 the existence of structural creations was checked of the following political parties: «Great Ukraine», «European Party of Ukraine»; «Party of Humanists of Ukraine»; «Political Association «Direct Action». According to the results of the checks, standard failings were uncovered regarding observance of legislation, the provisions of their articles of association. The heads of the political parties were sent recommendations on eliminating the infringements.

During the last two years the Ministry of Justice, in the course of checks as to whether political parties are observing the demands of their own acts of association with regard to formation of delegations for higher managerial bodies (congresses, conferences), has uncovered failures in the activities of 18 political parties (10 in 2008 and 8 tin 2007).

The forms of reporting for associations to state bodies of statistics have become stricter. From 1 January 2008 the central statutory bodies of legalized civic organizations must by 10 March of each year submit extended reports to the statistics offices according to where the organizations are located. Besides information about the number of members, branches, and also use of funding, civic organizations must indicate how many meetings, seminars, training courses or other measures were carried out in accordance with the objectives of their articles of association[10]

IV. Temporary ban on types of activities and the liquidation of associations

On 6 November the Kharkiv District Administrative Court, on the basis of material from the SBU [Security Service] allowed the application of the Kharkiv Regional Prosecutor to forcibly dissolve the Kharkiv regional civic organization «Eurasian Youth Union»[11] No official reason was given. In an interview with the Head of the SBU it was stated that the action was «on the basis of investigative material which we collected and submitted.»

It is interesting that despite its non-recognition of Ukraine’s independence, this organization did not call to violence or other unlawful means of changing the territorial system. It spoke out only for a change in the system which clearly does not contravene legislation.

In 2007 the activities of this organization were temporarily suspended as we discussed in more detail in last year’s Report. Then effectively the Union’s activities was banned on the formal grounds of non-observance of the territorial restriction of the activities of a civic organization, specifically for holding a picket of the SBU in Kyiv although according to legislation the organization was entitled to act only in the Kharkiv region.

Such grounds for suspending an organization are a clear violation of freedom of association, as has already been confirmed in the Case of Koretskyy and others v. Ukraine.

Previously, on the basis of material from SBU, a court in December 2006 banned the activities of the Sevastopol youth organization «Proryv» [«Breakthrough»] and in November 2007 the Donetsk Court of Appeal upheld the ruling of the Donetsk District Administrative Court regarding the forced dissolution of the organization «Donetsk Republic».

The leadership of SBU also regrets that it does not have more power to suspend the activities of organizations which it does not like:

«If, say, the Progressive Socialist Party of Ukraine is holding so called actions against Ukraine’s foreign policy course, these protest actions, radical in their nature, are effectively behaving like parasites on our democratic laws. We should certainly not persecute people or organizations for their words. However in a normal law-based society organizations are well aware that it is unacceptable to destabilize and destroy one’s own country, abusing freedom of speech. Obviously that is the sign of the high level of legal culture of party leaders and the heads of civic organizations.

We do not have the powers which we had under Soviet legislation. We don’t have the right to persecute nongovernmental organizations or work with political parties. At the same time all the destructive anti-Ukrainian activities are presently concentrated under the protection of parties or organizations. That is our problem. We therefore resort to prophylactic, explanatory measures, although it’s long time that the fiscal authorities carry out a thorough check of the sources of income and spending in those political associations. For example, why there’s always a cynical assurance of cash in the «protest actions» they organize.»[12].

Such calls to check activities permitted by law, like the «mythical» prophylactic measures with regard to activities not prohibited by law and carried out in accordance with the law, cannot but arouse concern.

V. Participation in associations: joining, sanctions for participation, forced membership

There were no cases recorded during the year of forced membership in associations or of sanctions for participating.

However problems do exist with regard to membership of trade unions, with the heads of independent or newly formed trade unions experiencing persecution.

VI. Recommendations [13]

1. Change the current law «On citizens’ associations» by passing a law «On civic associations»[14], which should be in line with the requirements of the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Recommendations of the Committee of Ministers of the member states of the Council of Europe «On the legal status of nongovernmental organizations in Europe» (СМ/Rec(2007)14). The following, among other measures, are needed::

-  Make the registration procedure cheaper, quicker and non-discriminatory as compared with profit-making organizations.

-  Abolish double registration of civic organizations by concentrating all registration functions on the Ministry of Justice and its local departments, and also cancel double payment for registration via the introduction of a single registration fee. This is already in fact allowed for in the draft law drawn up by the Ministry of Justice and submitted for consideration to the Cabinet of Ministers;

-  Remove restrictions on types of activities for associations.

-  Recognize the right of civic organizations to not only defend the rights and interests of their own members, but also allow them to engage in any activities helping other individuals or society as a whole;

-  abolish territorial restrictions on associations’ activities (the all-Ukrainian status may remain, however it should not lead to a restrict of the territory of local associations, while the procedure for gaining all-Ukrainian status should be voluntary.

-  Provide the possibility of creating different forms of associations (associations of legal entities and individuals, associations of citizens’ associations and other types of organizations, for example, charities, etc)

-  Abolish the obligation for local branches of civic organizations to register (we are not speaking of associations and unions of civic associations where the members are independently legalized citizens’ associations);

-  Recognize the right of civic organizations to engage in economic activities without the purpose of receiving and dividing between the founders of the profits, but rather directed the profits towards fulfilling activities as per the articles of association

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

3. Introduce amendments to the law on charities and charity activities in order to:

-  harmonize the procedure for their registration with civic associations and other legislation, and also abolish double registration;

-  Cancel territorial restrictions over the activities of charitable organizations;

-  Make it possible to create other forms of charities, for example, funds (including those created in accordance with a will.

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

5. Sign and ratify the Convention on recognizing the legal rights of an international nongovernmental organization (ETS № 124), which came into force on 1 January 1991.

6. Bring legislation, in particular the law on citizens’ associations, on freedom of conscience and religious organizations with norms with the European Convention on the Legal Status of Labour Migrants, ratified by parliament in April 2007.

7. Abolish the practice of licensing social services which are provided by non-profit making organizations, and not from State or local authority budgets. Involve nongovernmental non-profit making organizations.in providing social services paid for by the State and local budgets

8. Legislate the conditions of State assistance to nongovernmental non-profit making organizations, for example, stipulating the criteria for such assistance and the procedure for receiving it. Make the procedure for providing and using State funding directed at civic associations for carrying out State programmes competitive and open.

9. 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.

10. Ensure the functioning and accessibility of registers of citizens’ associations, charities, religious organizations, trade unions and other associations.

^[1] By Volodymyr Yavorsky, UHHRU Executive Director.

[2] Judgment from the European Court of Human Rights from 3 April 2008 in the case of Koretskyy and Others v. Ukraine (Application no. 40269/02) available at: http://echr.coe.int/ECHR/EN/Header/Case-. See also preliminary comments on the case in “Human Rights in Ukraine” – 2006 after the case was declared admissible

[3] The new name and version of the current law “On citizens’ associations”.

[4] Draft Law № 3371 from 14 November 2008 “On civic organizations””, http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=33677.

[5] Supreme Court website , http://scourt.gov.ua/

[6] Judgment from the European Court of Human Rights in the case of Koretskyy and Others v. Ukraine .

[7] Ibid.

[8] Information as of 1 January 2009 generalized from that provided by the Ministry of Justice www.minjust.gov.ua. The information is, moreover, fairly contradictory. There are, for example, discrepancies in information releases from the press centre for different periods, as well as in information from the reports on the work of the Ministry of Justice over recent years

[9] Number of subjects of SSRBOI according to their field of economics, and their organizational legal forms, as of 1 January 2009, reports from the State Department of Statistics http://ukrstat.gov.ua/operativ/operativ2009/edrpoy/edrpoy_u/opfg/arh_ks_za_opf09.htm.

[10] Order of the State Committee of Statistics № 365 from 01.10.2007 “On approving instructions regarding filling in the forms of state statistical surveillance No. 1-civic organization, “Report on the activities of civic organizations” // Legislation for organizations and civic society. Electronic bulletin No. 10, October 2007 http://ucipr.kiev.ua.

[11] Court passes ruling on forced dissolution of the Kharkiv civic organization “Eurasian Youth Union” // Notification from the SBU Press Centre from 7 November 2008 http://sbu.gov.ua/sbu/control/uk/publish/printable_article?art_id=82834.

[12] Valentin Nalyvaichenko: “Time to de-KGB-ize the country” // The newspaper Silski Visti” № 48 and 49, 20 and 24 April, respectively http://sbu.gov.ua/sbu/control/uk/publish/printable_article?art_id=78253.

[13] Some of these recommendations, as well as their more extensive presentation, are contained in the Strategy for promoting the development of civic society through a strategy of promotion by State executive bodies approved by Cabinet of Ministers Instruction №105-I from 21 November 2007..

[14] Draft Law № 3371 from 14 November 2008 “On civic organizations”, http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=33677