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12. FREEDOM OF ASSOCIATION

   


[1]

   I. Overview

      The situation with freedom of association is gradually deteriorating compared to previous years. This is due to the general deterioration of the environment for NGOs, in particular, an increase in pressure from the authorities and curtailment of possibilities of cooperation with the authorities. At the same time, the new legislation for NGOs was adopted, which may bring about significant improvements in freedom of association next year.

      The Ukrainian legislation does not meet international standards and largely unduly restricts freedom of association. However, this was partly made up for by positive administrative practice which did not use in full all legal restrictions. However, in recent years this practice has gradually worsened: the number of inspections by certifying bodies kept increasing, as well the number of requirements during the registration or re-registration of NGOs, which are not specified by the law, and number of actions for liquidation of public organizations.

     On March 22, 2012 the Parliament passed a new law "On public associations"[2], which had been developed and promoted by NGOs for several years. It will take effect on January 1, 2013. In general, the new law on public associations is in line with European standards and practice of the European Court of Human Rights. It also eliminates issues identified in the judgment of the European Court of Human Rights Koretsky and others vs. Ukraine. Specifically, Section 10 of Article 12 of the new law clearly defines the grounds for refusal to register an association:

      1) the presence in the statute and decisions reflected in the minutes on the formation of public association of provisions conflicting with the Constitution of Ukraine, Article 4 of this Law;

      2) violation of Articles 7 and 10 of this Law (requirements for founders and name of association).

      In addition, it contains no restrictions on the territory of activity of the association, possibility of involvement of volunteers, and possibility to independently determine their activities.

      However, it may be fully estimated only after it enters into force. In 2012, the regulation was carried out under the old law.

      On July 5, 2012 parliament passed the long-awaited law "On Charity and Charitable Organizations"[3]. On July 31 it was sent to the President, but of the Report preparation date[4] the President neither signed the law, nor vetoed it. This is an overt violation of the Constitution: the law is not enacted yet, and nobody knows the exact date when it happens. According to many experts, this law takes into account the international standards on freedom of association and positive experience of regulation in other countries and is also a major step forward intended to improve situation with freedom of association in the future.     

      II. Creating associations

      There are many obstacles to the creation of associations, including NGOs. The situation is aggravated not only by certain provisions of the law on associations, which violate international standards, but also the lack of clear definition of the grounds for refusal of registration. In general, the registration procedure is not sufficiently clear, allowing the legalization body not to register the association of citizens or to delay such registration for many months without any reasons whatsoever.

      There is no official statistics of refusals to register in the country. According to experts, the incidence is rather high. In most cases they will return your documents for revision without refusal, which reduces the number of refusals of registration, but, in fact, it is against the law, because such actions are not required by law.

      Such refusals are different in content, but most often they violate the European Convention on Human Rights and the Constitution. In particular, such refusals do not even determine how the possible shortcomings of the statute threaten the interests specified in Article 11 of the Convention or the second paragraph of Article 39 of the Constitution, national security, public order, public health or the rights of others. Often, such refusals are groundless and are based on rather arbitrary interpretation of the statute of the organization and legislation.

      Next case also illustrates the problem of ineffective legal remedies against the willfulness of registration bodies. In this case, having received the refusal of registration, the founders went to court, spent three years on litigation, and as a result, having received a positive judgment, they failed to register the organization. Since, according to law, the court cannot compel the registration, and can only cancel the order turning down the registration; therefore there can be an infinite number of such refusals to register. In fact, the appeals yield no positive results.

       In previous Reports on human rights in Ukraine, we described the case of public organization "Association of Falun Dafa." Since 2001, its founders legalized the organization by notification. And since 2006, they are seeking legal status for public organization. The founders received five refusals of registration with different arguments. After the first two failures they changed the statutory documents. They lodged a complaint concerning the third refusal in 2009. The case went up to the Supreme Administrative Court, which approved the decision of the local court and canceled the order refusing registration of the NGO. During the judicial reviews, the organization received the fourth refusal, although it had not filed new documents. When they turned to the executors, on May 7, 2012 they received the fifth refusal of registration. After that, the founders decided to appeal to the European Court of Human Rights for violation of the freedom of association.

      Here are more examples of appeals filed against refusals of registration.

      In February 2012 the Central Administration of Justice in Kyiv sent the public organization “Committee for Socio-Economic and Legal Policy” the notification demanding to bring the documents into compliance with the current legislation to enable their consideration. The founders of the organization filed a complaint against refusal to register. On March 30, 2012 the District Administrative Court of Kyiv decided to partially satisfy their appeal and ordered the Central Administration of Justice in Kyiv to re-consider the registration of NGO “Committee for Socio-Economic and Legal Policy” and pass judgment in accordance with the active legislation of Ukraine[5].

      In the Volyn Oblast, the Youth Association “Volyn Human Rights Group” was refused registration. The dispute arose from the fact that the association planned to carry out its activities in two oblasts, but the law does not clearly specify who should register such organization. The foundation registration notification was sent to the Ministry of Justice of Ukraine for consideration, which sent this application for registration down to Central Administration of Justice in the Volyn Oblast. The latter issued an Order no. 144 of March 28, 2012 on the basis of legal opinion from 03.28.2012 refused to legalize the Youth Association by way of notice of establishment. Although the procedure of refusal of registration of public organizations deciding to go legal by notification is not specified by law at all. The organization believed that under Article 14 of the Law of Ukraine "On Public Associations" the legalization of public organizations whose activities cover the territory of two or more political subdivisions is conducted by the appropriate higher authority, i.e. the Ministry of Justice of Ukraine. As a result of legal expertise the registration authority recognized the name and the goal of social organization as inconsistent with the legislation, and that the legislation contains different interpretations of the term “region”. On April 19, 2012 the Volyn District Administrative Court turned down the appeal against the order refusing registration. Refusing to allow the NGO’s appeal the Court adjudicated that the appeal about sending legalization notification to the registration body of the Ministry of Justice of Ukraine cannot be allowed because Ukrderzhreyestr is not included in the structure of the Ministry of Justice of Ukraine[6].

      Moreover, there are cases of illegal refusal of state registration of changes in the NGOs’ constituent documents. As a result of legal expert evaluation, the bodies of legalization motivate the refusals of registration by changes in constituting documents. Very often they are based on nothing but the conviction of the registration authority.

      The resolution of Lviv Administrative Court of April 19, 2012[7] satisfied the lawsuit of NGO "Public accusation" against the Main Department of Justice in the Lviv Oblast and ordered the Justice Administration to register changes in the statutory documents of the organization. The organization changed its name from the NGO "Public accusation" to NGO "Revealing occupational incompetence of officials and corruption “Public accusation.” The legalizing body explained its position that the legislation provides a comprehensive list of bodies (officials) designed to reveal the incompetency of civil servants. According to officials, since the purpose of the plaintiff under the statute does not provide for revealing incompetence of officials and corruption, respectively, the new name of the organization (NGO " Revealing occupational incompetence of officials and corruption Public accusation”) conflicts with other provisions of the statute, including the purpose of the NGO set out in paragraph 2.1 of the statute, because it directly informs that the goal is to identify incompetency of officials and corruption. However, the court in its decision did not agree with these arguments and found that there was no evidence presented that the change of name of the NGO Public accusation would result in grounds for restricting the activities of such organizations under Art. 4 of the Law of Ukraine "On Public Associations".

      During registration there is a mandatory filing stage making organization registered as a nonprofit organization and assignment to it of nonprofit status. This frees the organization from paying income tax. The State Tax Service grants this status according to individually procedure. In fact, it is a necessary additional step of registration because without it the NGO is acting as a company and is significantly limited in financial activities.

      On September 11, 2012 the State Tax Service of Ukraine published on its site the draft order of the Ministry of Finance of Ukraine "On Approval of the Register of non-profit institutions and organizations"[8], whereby the order granting the status of non-profit NGOs should be changed. The experts think that the project could endanger public organizations. In particular, it does not clearly define the terms of the status assignment to non-profit non-governmental organizations[9]. However, by the end of the year the current order remained unchanged.

      In the light of obtaining non-profit status it is interesting to look at the decision of the Supreme Administrative Court of Ukraine made on September 18, 2012 in the action of Kalush city public organization of the All-Ukrainian Society "Lemkivshchyna" against the resolution of Ivano-Frankivsk District Administrative Court of October 10, 2008 and the decision of the Lviv Administrative Court of Appeal of December 21, 2009[10]. In this case the tax agency refused to enter the organization into the register because its statute contains no exhaustive list of activities as required by §7.11.13, §7.11 of the Art.7 of the Law "On Corporate Income Tax". The Supreme Administrative Court of Ukraine admitted that the tax agency and courts had acted unlawfully and overturned their decision because the statute of the organization did not contradict the legislation, and the tax legislation establishes a comprehensive list of activities, the income from which is taxable.     

      III. The liquidation of political parties

      Basing on the results of monitoring of the activities of political parties the Ministry of Justice continued the mass practice of filing lawsuits about liquidation of political parties.

      Here are some examples from the practice of the Supreme Administrative Court of Ukraine.

      On November 13, 2012 the Supreme Administrative Court of Ukraine rejected the appeal of the Ministry of Justice of Ukraine in an attempt to cancel the registration certificate of the political party "Kozak People's Party"[11]. The Ministry of Justice brought an action before the court in 2010, but the District Administrative Court of Kyiv on September 30, 2011 dismissed the lawsuit and the Kyiv Appeal Court on April 18, 2012 upheld this decision. The political party was founded in 2010, but failed to set up the required number of cells within 6-month period. The Supreme Administrative Court of Ukraine in its ruling stated that: "In accordance with the provisions of the Law of Ukraine "On Political Parties in Ukraine" and allowing for the decision of the Constitutional Court of Ukraine on October 16, 2007 no. 9-rp/2007 and Art. 36 of the Constitution of Ukraine, the violation of six-month term, during which a political party ensures the creation and registration of its structural formations in fourteen administrative-territorial units of Ukraine, cannot be absolute grounds for revocation of the certificate of a political party.

      Article 37 of the Constitution of Ukraine provides for exceptional cases when the activities of legalized associations are prohibited by the courts, in particular, their activity intended to liquidate the independence of Ukraine, change of constitutional order by force, violation of its sovereignty and territorial integrity, undermining its security, unlawful seizure of state power, propaganda of war, violence, incitement to ethnic, racial, or religious hatred, attacks on human rights and freedoms, health of population... "

      On October 9, 2012 the Supreme Administrative Court of Ukraine[12] also rejected the appeal of the Ministry of Justice and upheld the decision of the District Administrative Court of Kyiv of June 30, 2011 and the decision of the Kyiv Administrative Court of Appeal of March 29, 2012 in the case of cancellation of the registration certificate of the political party "Pariya Ukrayinskoyi Molodi" dated September 8, 2010, for reasons of non-compliance with the provisions of part six of Article 11 of the Law of Ukraine of April 5, 2001 no. 2365-III "On Political Parties in Ukraine" demanding to ensure that within six months from the date of registration the political party should set up and register in the manner prescribed by this law its oblast, city and regional organizations in most regions of Ukraine, Kyiv, Sevastopol, and the Autonomous Republic of Crimea. The court stated: "The Court of First Instance, with which the Court of Appeal agreed, rightly basing on the fact that at the time of the trial the requirements of the part six of Article 11 of the Law no. 2365-III (including the decisions of the Constitutional Court of Ukraine of June 12, 2007 no. 2-rp/2007 and of October 16, 2007 no. 9-rp/2007) to ensure the formation and registration in the manner prescribed by this Law its oblast and city (in Kyiv and Sevastopol) organizations in most regions of Ukraine the defendant had executed."

      On April 3, 2012 the Supreme Administrative Court of Ukraine partly allowed the appeal of the political party “Zakon i poriadok”[13]. The court decided to revoke the Award of the Regional Administrative Court of Kyiv of April 6, 2011 and the award of the Kyiv Administrative Court of Appeal of October 25, 2011, and send the case for a re-trial by the court of first appearance. The court ruling read: "The courts of previous instances have found that according to the certificate no. 181-pp. the Ministry of Justice on April 23, 2010 registered the political party “Zakon i poriadok”. In violation of Part 6 of Article 11 of the Law of Ukraine “On Political Parties in Ukraine” within six months from the date of registration the political party failed to ensure the set up and registration in the manner prescribed by this Law of its oblast, city and district organizations in most regions of Ukraine, Sevastopol and the Autonomous Republic of Crimea. The plaintiff, as the body that had registered the political party on the basis of Article 24 of the above law applied to court for cancellation of the registration certificate of the defendant on the grounds of non-compliance with Article 11 of the Law of Ukraine “On Political Parties in Ukraine”. The courts also found that by the time of trial by the court of first appearance the defendant had registered its oblast organizations in fifteen oblasts of Ukraine.

      The court of first appearance denying the claim referred to the circumstances that by the time of adjudication of this case the defendant had fulfilled the requirements of Part 6 of Article 11 of the Law of Ukraine “On Political Parties in Ukraine” registering party oblast organizations in fifteen oblasts.

      The Court of Appeal annulling the decision of the trial court and satisfying the claims proceeded from the fact that the certificate of registration of a political party shall be revoked because after six-month period the defendant failed to register its oblast, city and regional organizations in most oblasts of Ukraine, Sevastopol, and the Autonomous Republic of Crimea, that is failed to satisfy the requirements of Art. 11 of the Law of Ukraine @On Political Parties in Ukraine”…

     The courts of previous instances found that by the time of the decision of the trial court the political party “Zakon i poriadok” had set up and registered in accordance with the law the oblast structural units in fifteen oblasts of Ukraine, which exceeded one half of the administrative-territorial units of Ukraine listed in Part 6 of Art. 11 of the Law of Ukraine “On Political Parties in Ukraine”.

      However, the courts of first and appeal instance failed to review the arguments of the defendant regarding the gravity of reasons for violating the terms of registration of oblast and city organizations that submitted objective reasons for violating the terms of registration of oblast branches of the party, the said circumstances were not adequately assessed in legal sense by the courts which prevents the court of cassation to determine the correctness of the findings of the courts of previous instances. "     

      IV. Temporary prohibition of activities and liquidation of NGOs

      Numerous decisions to liquidate NGOs were observed.

      In late March 2012 the SSU informed through the media that it had discovered the extremist religious organization of Wahabee Muslims. According to SSU, the leaders of the NGO "Straight Way" distributed the brochure "Violation of monotheism" written by Sunni theologian Abdul Aziz ar Rayyis. It contained calls to religious enmity and hatred, and promoted the ideology of Islamic fundamentalist Wahabism. As the Deputy Prosecutor of Odesa Serhiy Neykov told the media, they instituted a criminal case against the leaders of the NGO "Straight Way" under Art. 161, part 1 (deliberate acts aimed at inciting national, racial or religious enmity and hatred). They also reported that the apartments of the two leaders of the "Straight Way"–– Egyptian Oda Khaled and Syrian Masri Mohammad––were searched. They found the explosives––four TNT charges, two electric detonators to them, smoke bombs, and training grenade RGD-5. They also found a lot of Wahabee literature with calls to the religious war against heretics and tutorials for subversives. Both Oda Khaled nicknamed "Abdulkarim" and Mohammad Masri were detained. The NGO was registered in 2008. It placed the work on a broad footing only in 2010 by renting an office in a former one-story store. As it turned out, under the guise of "social organization" a real mosque was discovered[14].

      On May 4, 2012 the District Administrative Court delivered the judgment[15] compulsory dissolution (liquidation) of NGO "Straight Way" for inciting ethnic and religious hatred. In its judgment the court stated: "As seen from the conclusion of religious experts of the State Committee of Ukraine on Nationalities and Religions, the content of the brochure "Violation of monotheism", which was distributed by Public organization "Straight Way" contains a number of basic provisions and definitions contradicting the current legislation of Ukraine and should not be distributed in Ukraine. These materials contain calling for inciting religious hatred and enmity, propagate Islamic fundamentalist ideology of Wahabee movement recognized in many countries as a radical extremist sect of Saudi Arabia, members and supporters of which use radical political measures against members of other religions and beliefs…".

      On June 14, 2012 the Odesa Administrative Court of Appeal upheld the judgment of May 4[16].

      Another example also occurred in Odesa and is quite a dangerous technology of closing the unwanted NGOs.

      The NGO "Human Rights Organization "Altera"was registered by the Main Administration of Justice in the Odesa Oblast in October 2011. An outsider has filed a lawsuit against the actions of the Main Administration of Justice involving the NGO as a third person, who demanded to cancel the order for registration of the organization. At first, the court kept repeatedly returning the claim, but on April 23, 2012 the Odesa District Administrative Court decided[17] to satisfy the claim and cancel the order for registration. Notably, there were no NGO’s representatives in the courtroom. The verdict read: "…The plaintiff notes that he accepts and shares the goal of creating and main tasks of the NGO "Human Rights Organization "Altera" and wants to become a member as such right is granted him under Article 36 of the Constitution of Ukraine, Articles 1, 6 of the Law of Ukraine "On Public Associations" and the statute of the organization. Thus, violations of the law committed during the registration of NGO "Human Rights Organization "Altera" disregarding his rights as a person who intends to become a member of this organization. In addition, the plaintiff stated that the statute of the organization does not comply with clause 6 of Part 2 of Article 13 of the Law of Ukraine "On Public Associations" and the general principles of the establishment and operation of public associations…

      The Court holds that the order of the Main Administration of Justice in the Odesa Oblast no. 1110 - o/d from 13.10.2011 about the registration of the NGO "Human Rights Organization "Altera" should be cancelled based on the following:

     ... §2.2.5 of Section 2 of the statute of NGO "Human Rights Organization "Altera" provides for the right of organization to generalize judicial practice. However, paragraph 3 of Part 1 of the article of the Law of Ukraine "On the Judicial System and Status of Judges" specifies that the authority of generalization of judicial practice in Ukraine is endowed with high specialized courts ... Thus, the NGO "Human Rights Organization "Altera" along with any other persons is entitled to exercise informal generalization of judicial practice. In paragraph 3 of Part 1 of article of the Law of Ukraine "On the Judicial System and Status of Judges" there is no term "official". However, as noted above, this norm of the law implies a formal generalization of judicial practice. Given the above, the statute of the organization had to mention the right of organization to carry out informal generalization of judicial practice only.

      In addition, the statute of NGO "Human Rights Organization "Altera" does not define the procedure of accountability of the executive body of the organization through its main body––the general meeting––as well as procedures for members of the organization through their parent body securing the control of the executive body of the organization ...

      Given the above, it appears that the statute of NGO "Human Rights Organization "Altera" does not include the order of internal reporting and control declared in the statute of the organization ...

      …The court deems that the provisions of subparagraph 3 of part 1 of section 5 of the statute concerning the applicability to the members of disciplinary measures in the form of disqualification are against the law ..."

      There are also many examples when the legalization authorities exercising control over the legality of the NGO submit claims for its liquidation. The biggest number of lawsuits was initiated in the Autonomous Republic of Crimea and Odesa Oblast. In other oblasts the legalization authorities do not especially use this right. It should be noted that the number of examples increased over the past few years.

      On April 12, 2012 the District Administrative Court of the Autonomous Republic of Crimea allowed the claim of Leninsky District Administration of Justice of the Autonomous Republic of Crimea against the NGO "Eastern-Crimean Society for Renewable Energy" about the forced dissolution (liquidation) of the Public organization[18]. The Justice Administrations motivated the claims by the fact that despite repeated appeals and warnings the Public organization failed to submit information about the implementation of statutory activities, it is not situated at the legal address, it has neither records management nor accounting, produces no financial reports on taxes and obligatory payments, makes no payments in the manner and amount prescribed by law in violation of Articles 24, 26 of the Law of Ukraine "On Public Associations" and harms the interests of the state despite the inability of the state and its authorized agencies (tax inspection, pension fund) to control the financial and economic activities of the NGO which also evades meetings and re-election of statutory organs.

      They also allowed the claim of Leninsky District Administration of Justice of the Autonomous Republic of Crimea about forced dissolution against the Public Organization "Lenin District NGO "Protecting Children of War" by the resolution of the District Administrative Court of the Autonomous Republic of Crimea on July 26, 2012. The resolution reads: "As of March 2006 the Leninsky District Administration of Justice of the Autonomous Republic of Crimea and Registration service of Leninsky District Administration of Justice of the Autonomous Republic of Crimea received no records of the meetings of the statutory bodies about the re-election of the said bodies. The founders and members of the governing body of the public organization "Leninsky District NGO "Protecting Children of War" failed to respond to the inquiries of registration service of Leninsky District Administration of Justice of the Autonomous Republic of Crimea (from 11.04.2012, no. 02/02-01/09/340, 11.04.2012 no. 02/02-01/09/341) and submitted no materials on statutory activities."[19]

      The District Administrative Court of the Autonomous Republic of Crimea allowed the claim of the Main Department of the Ministry of Justice of Ukraine in the Autonomous Republic of Crimea against the Crimean republican public association "Crimean Tatar Block" about forced dissolution (liquidation) of the public organization[20].

      On 22 August 2012 the resolution of the Odesa Regional Administrative Court allowed the claim of Reni District Administration of Justice of Odesa Oblast against the Reni regional public organization "Ukrainian Social Democratic Youth" about the forced dissolution (liquidation) of the association of citizens.

      Interesting is the following judgment: the legalizing organ initiates the audit of the organization suggesting working out a new redaction of the statute. The organization and its members are satisfied with the current version of the statute, and the legislation from the moment of registration until the check underwent no changes. After the failure to meet the "requirements" the officials initiated action to terminate the organization.

     On December 09, 2010 the Odesa Regional Administrative Court decided to allow the claim of Ovidiopol District Administration of Justice of Odesa Oblast and the Public organization "Public Association "Zoria Dolyny" was forcefully dissolved (liquidated). The respondent filed an appeal.

      The legalizing authority performed an inspection of the NGO "Public Association "Zoria Dolyny", which is confirmed with the act of 06.10.08, in the course of which the breaches were established: the purpose of the NGO "Public Association "Zoria Dolyny" and Section 2.2. of the Statute are contrary to Article 3 of the Law of Ukraine "On Public Associations"; §3.2 specifies that the members of the association may include individuals over 18 years old, which violates Article 12 of the Law of Ukraine "On Public Associations"; §3.8, §3.9 of the Statute give the members of the "Public Association "Zoria Dolyny" the right to be informed about the activities of the NGO "Public Association "Zoria Dolyny" (except confidential info), the restriction violates the principles of the establishment and operation of public associations, in particular the principles of equality of members and transparency fixed by Article 6 of the Law of Ukraine "On Public Associations"; §9.4 of the Statute specifies that funds consist of, including other revenues received by legal means, which violates §7.11.3 of the Law of Ukraine "On Corporate Income Tax"; in confirmation of the location of organization the latter submitted the decision of the executive committee of Novodolynsk Village Rada, while legally the association was non-existent. Also, the act contains proposals to amend the Statute or present a new redaction and provide a proof of legal address of the organization, of which to inform the district administration of justice within a month. The defendant failed to comply with the comments of the act of inspection, and therefore the plaintiff issued a warning to prevent violations of legislation no. 497-01-101 from 19.06.2009 according to Clause 1 of Article 28 of the Law "On Public Associations". Due to the neglect of warning by public organization "Public Association "Zoria Dolyny" and in order to prevent violations, the plaintiff went to court demanding to liquidate the organization.

      On July 11, 2012 the Resolution of Odesa Administrative Court of Appeal partially allowed the appeal of the organization and repealed the resolution of the District Administrative Court of December 9, 2010 and adopted a new resolution in the case in which it dismissed the case of Ovidiopol District administration of Justice in Odesa Oblast vs. the NGO "Public Association "Zoria Dolyny" about the forced dissolution (liquidation) of the said NGO[21].

      The Court noted that "justifying their claims the plaintiff, and subsequently the Court of First Instance proceeded from the fact that the non-governmental organization "Public Association "Zoria Dolyny" failed to account for the warning of Ovidiopol District Administration of Justice in Odesa Oblast no. 497-01-101 from 19.06 .2009 about bringing the statute in line with the requirements of the law and considered it a good cause for the forced dissolution (liquidation) of the association, on the basis of Article 32 of the Law of Ukraine "On Public Associations". However, this position is erroneous based on the fact that, in accordance with the foregoing provisions there is no such reason for liquidation of the organization as non-compliance. The Civil Chamber notes that such penalty as the liquidation of public organization is an extreme measure and is applicable in cases mentioned in Article 32 of the Law "On Public Associations", namely actions which by their nature are systematic or act in flagrant violation of the requirements of the legislation of Ukraine. However, the plaintiff discovered no such circumstances. In this case, as the result of inspection by the controlling authority and non-fulfillment of its requirements the said authority used warning to bring the social organization to justice. The text of the plaintiff’s judgment bears no clear indications that the latter ordered the defendant to commit any act; therefore one cannot assume that the warning remained unheeded. Moreover, the plaintiff’s decision itself looks like penalty for committing a violation, but not the obligation to perform certain actions. Given the above, the Civil Chamber believes that the court of first instance violated the rules of substantive and procedural law in deciding the case, and therefore the judgment is subject to cancellation with the adoption of a new resolution."

      Unlike other legal bodies, the public organization cannot be stopped by the court adjudication in the case of a claim filed by a tax authority, if the organization fails to submit tax accounts. However, in cooperation with the public prosecution bodies and legalizing body such claims bring about positive results.

      On the one hand, the Tax Authorities are empowered to manage tax accounts. However, they cannot initiate action for termination of NGOs on this basis under the law. Article 46 of the Law "On State Registration of Legal Entities and Individual Entrepreneurs" implies that one of the cases of termination of state business registration of an individual entrepreneur is a judgment on the cessation of business of the individual entrepreneur. Pursuant to part 2 of Article 46 of the said Law the grounds for a court decision on cessation of business of the individual entrepreneur are as follows: adjudication in bankruptcy; entrepreneurial activity prohibited by law; failure to submit to the state tax service the annual advance VAT report; and financial statements according to law. Thus, the law indicates that possibility concerning entrepreneurial activity only.

      There are other examples where the courts decide on claims of the tax administrations intended to curb public organizations that do not submit tax returns. This practice is maintained by courts in different oblasts, because the NGOs did not appeal the decision (even failed to appear in court hearings, so the founders and members were not interested in continuing the activity of the organization), and they took effect.     

      V. Recommendations

      1) Ensure proper implementation of the Law "On public associations".

      2) The President must sign the new law "On Charity and Charitable Organizations".

      3) Remove Article 186-5 of the Administrative Code, which establishes the responsibility for managing or participating in unregistered public organizations.

      4) It is necessary to thoroughly investigate cases of harassment of civic activists and citizens' associations.

      5) The State Registration Service should summarize the practice of filing lawsuits intended to liquidate political parties and public organizations and to bring it into line with the requirements of Article 11 of the European Convention on Human Rights, Article 37 of the Constitution of Ukraine and practice of the European Court of Human Rights.

      6) Higher Administrative Court of Ukraine should summarize the judicial practice concerning claims for liquidation (annulment of the certificate of registration) of political parties and public organizations.

 

 

[1] Prepared by Volodymyr Yavorsky, Member of the UHHRU Board. The section also contains comments by Tetiana Yatskiv, Center for Public Advocacy (Lviv). See, e. g., T. Yatskiv, Review of judicial practice in protection of rights of civil society organizations in 2012, http://www.lawngo.net/index.php?itemid=2015.

[2] See: http://zakon2.rada.gov.ua/laws/show/4572-17.

[3] See: http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=37599.

[4] December 3, 2012.

[5] Resolution of the District Administrative Court of Kyiv on March 30, 2012 in case no. 2a-2893/12/2670 http://www.reyestr.court.gov.ua/Review/23674153

[6] Decision of Volyn District Administrative Court on April 19, 2012 in case no. 2a/0370/961/12 http://www.reyestr.court.gov.ua/Review/23688390

[7] Resolution of Lviv Administrative Court of April 19, 2012 in case number 2a-894/12/1370 filed by the NGO "Public accusation" in the Main Department of Justice in the Lviv Oblast for recognition and wrongful commitments, cancellation of order and take action. http://www.reyestr.court.gov.ua/Review/24011393

[8] See: http://www.sts.gov.ua/regulyatorna-politika-/regulyatorna-politika/2012-rik/61832.html.

[9] Ministry of Finance decided to change the procedure for granting non-profit status of NGOs, UCIPR http://www.ucipr.org.ua/publications/minfin-virishiv-zminiti-poriadok-nadannia-statusu-nepributkovosti-nuo/lang/www.transparency.org.

[10] See the full text of the decision: http://www.reyestr.court.gov.ua/Review/27479915.

[11] The full text of the decision is here: http://www.reyestr.court.gov.ua/Review/27479915.

[12] The full text of the decision is here: http://www.reyestr.court.gov.ua/Review/26441654.

[13] See full text of the decision: http://www.reyestr.court.gov.ua/Review/23548579.

[14] See more: SBU sealed mosque in Odesa: two persons Wahhabi are at the investigatory isolation ward, explosives found in their apartments/ / Segodnia Daily, March 30, 2012,

[15] The decision is available here: http://www.reyestr.court.gov.ua/Review/24011680.

[16] The decision is available here: http://www.reyestr.court.gov.ua/Review/24965962.

[17] See the full text here: http://www.reyestr.court.gov.ua/Review/24011782.

[18] Decision of the Administrative Court of ARC on April 12, 2012 in case no. 2a-2036/12/0170/6   http://www.reyestr.court.gov.ua/Review/24077714

[19] Decision of District Administrative Court of ARC on July 26, 2012 in case number 2a-6243/12/0170/13 http://www.reyestr.court.gov.ua/Review/25456129

[20] Decision of the District Administrative Court of ARC in case no. 2a-13523/11/0170 / http://www.reyestr.court.gov.ua/Review/21566758

[21] Resolution of Odesa Administrative Court of Appeal of 11 July 2012 in case no. 2-a-3380/10/1570 http://www.reyestr.court.gov.ua/Review/25295128

 

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