Human Rights in Ukraine – 2005: IX. Freedom of Association

2005 brought no significant changes to the situation with regard to freedom of association. 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 civil society.  The main problems remain as follows:

-  obstacles when registering associations, together with receiving non-profit-making status and the related tax concessions;

-  restrictions on types of activities of associations with regard to where they can be carried out, or what such activities involve;

 –  the lack of incentives in legislation and administrative practice with regard to 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 in evaluating the level of development of democracy in the country.

According to information from the State Committee of Statistics of Ukraine[1] as of 1 January 2005 in Ukraine there were:

108 international civic organizations (with 87,272 members registered);

345 nationwide civic organizations (with 523,954 members registered);

13,676 local civic organizations (with 5,125,498 members registered);

Using the same figures, in Ukraine the following groups are registered:

at a regional level – 4,980 (with 1,669,268 members registered);

at a local level – 2 889 (with 569,191 members registered);

at a district level –  7 698 (with 1,773,121 members registered);

initial associations  – 105,172 (6.456,598 members registered).

The Ministry of Justice, however, gave different figures, in particular for the number of civic organizations with nationwide status. According to these figures, as on 1 January 2006 2,138 civic organizations were registered (1,655 with nationwide and 483 with international status)[2].  Certainly the Ministry of Justice figures do not include local civic organizations, and there are in general doubts as to whether in fact it has this information. However one should note the significant discrepancy in the figures provided for nationwide civic organizations, with the Ministry of Justice giving a figure of 1,655, while the State Committee of Statistics says there are only 345.  The only explanation would seem to be that 1,310 organizations with nationwide status simply do not provide their mandatory reports to the State Committee of Statistics. Therefore one is more inclined to trust the Ministry of Justice’s figures.

In 2005 the Ministry of Justice  registered 181 civic organizations, 24 political parties, 5 trade unions, 9 permanently functioning arbitration courts, 70 charities, 13 branches, departments, representations of civic organizations of foreign states in Ukraine, the symbols of 32 associations of citizens, and also recorded amendments and additions which had been made to the charter documentation of over 250 civic associations. Of the registered civic organizations in terms of their objectives, aim or line of activity, those with a health or sport and physical exercise focus dominated with 31 organizations registered, followed by 25 professional organizations.  There were 11 youth organizations, 7 educational and cultural organizations, 7 organizations based on national or friends’ contacts, 4 associations of veterans and of disabled people, and others[3]

Last year the Ministry recorded amendments and supplements to charter documents of 58 political parties.  In accordance with Article 18 of the Law, its representatives participated in the work of the party congresses of the Liberal Party of Ukraine, the People’s Movement of Ukraine for Unity, the Party “Reform and Order”, the political party ““Trudova Ukraina” [“Working Ukraine”], the United Social Democratic Party of Ukraine, the Ukrainian People’s Party, the Ukrainian National Assembly, the Ukrainian People’s Party “Sobor” and others.

1.  OVERVIEW OF CHANGES TO LEGAL REGULATION

In general changes in legislation were in two reasonably fundamental areas:

–  registration of associations;

–  steps for cooperation between associations and the authorities.

In 2004 – 2005 after the passing of a law on registering legal entities in Ukraine, a system was effectively introduced of double registration of associations, first by the Ministry of Justice of Ukraine, its regional or city departments, or executive committees of local authorities (taking at least a month according to the law, while in practice from 2 to 6 months), then later by the State Registrar. This procedure was totally uncoordinated and drawn out. The Ministry of Justice, for example, issued the association with only one copy of the certificate of registration, yet the original of the document was demanded and not returned by the State Registrar, meaning that the association needed another copy.

One such problem was eliminated when parliament on 22 September 2005 passed the Law of Ukraine “On introducing amendments to Article 17 of the Law of Ukraine “On state registration of legal entities and individuals – entrepreneurs” which set down that citizens’ associations did not provide the Registrar with information regarding their organizational and legal form. Previously the computer system would not register an association unless all necessary information was filled in, whereas this was impossible about associations. It was therefore only possible to eliminate this shortcoming through introducing amendments to the law. Others however have remained.

Resolution No. 769 of the Cabinet of Ministers of Ukraine from 18 August 2005 through its amendments to the Provisions on procedure for legalizing civic associations made the registration procedure stricter.  According to the Resolution, when submitting documents to have an association registered, it is now necessary to also provide “a document which confirms the physical location of the civic association”.  It is interesting that the law on state registration of legal entities no longer envisages such practice, and business organization have long not had to state their physical address in their charter, let alone providing the relevant documents. However the Ministry of Justice has its own position which is sometimes not directed at liberalizing the registration procedure

On 8 September 2005 the Verkhovna Rada adopted the Law of Ukraine “On introducing amendments to Article 15 of the Law of Ukraine «On citizens’ associations» which changes the time periods for registration of associations by the Ministry of Justice (first registration):

"An application for registration of a local civic organization shall be considered within a 3-day period from the day that the documents were received. Notification of a decision to register or refuse registration of an organization shall be given in writing no later than the next working day after the decision is taken.

An application for registration of a nationwide or international civic organization shall be considered within one month. Notification of a decision to register or refuse registration of an organization shall be given in writing within 10 days”.

  It was only 5 months later, through Resolution No. 25 from 18 January 2006 that the Cabinet of Ministers also made the appropriate amendments to the Provisions on procedure for legalizing citizens’associations, and before that there was a conflict of norms, with the Ministry of Justice basically applying the norms of the Provisions.  In addition the body responsible for registering the association is now no longer entitled in case of need to check the information contained in the documents. Point 11 of the Provisions on turning down applications for registration which was not entirely coordinated with Article 16 of the Law on Citizens’ Associations was also abolished.

These changes are in general positive making the registration procedure shorter and easier. However the government could do considerably more: the relevant draft laws for amendments to the Resolution of the Cabinet of Ministers which did not require amendments to laws were prepared by members of the public yet were not taken into consideration.

On 4 October 2005 parliament rejected Draft Law No. 7250 from 25 March 2005 “On introducing amendments to some laws of Ukraine (in connection with the adoption of the Law of Ukraine “On state registration of legal entities and individuals – entrepreneurs”). This Draft Law effectively confirmed a system of double registration, although it did make the registration of trade unions simpler.

Only on 22 December 2005 did parliament pass the Law “On introducing amendments to the Law of Ukraine “On state registration of legal entities and individuals – entrepreneurs (draft law of State Deputy V. Musiyaka, № 4389-1 from 13 January 2005).  However, following protests from religious and some human rights organizations, the President vetoed the law which basically worsened the situation and made registration, particularly of religious organizations, more complicated.  In January the draft law was rejected, however in March 2006 parliament returned to it again and on 26 March 2006 passed a new version of the law which took into account many proposals. According to that version, from November 2007 the problem of double registration will be removed.

Under this law, the Ministry of Justice and its territorial subdivisions will carry out registration of associations and issue a certificate of registration processed by the State Registrar.

During the year the public yet again looking with hope to the new regime sought to have a basic law passed on non-profit making organizations, in particular, Law No. 0961 from 14 May 2002.  Parliament passed this draft law several years ago at the first reading as a working base, however has still to pass the law in full. In 2005 the given draft law was on the parliamentary agenda on 17 March,  7, 8, 19, 21 and 22 April, 18 and 19 May, however was never actually considered., and was, in our opinion unwarrantedly and for far-fetched reasons, sent back for a repeat second reading.  Furthermore the central legal department of the Verkhovna Rada of Ukraine suggested entirely cancelling this draft law and instructing the Cabinet of Ministers’ to draw up a new draft. A profile committee in parliament on this draft law effectively distanced itself from the reworking process, and the draft was sent for preparation to another parliamentary committee – the Committee of the Verkhovna Rada of Ukraine on issues relating to state building and local self-government. However the latter did not, unfortunately, during the period of that formation of parliament prepare the said draft law for a repeat second reading.

2.   RESTRICTIONS ON FREEDOM OF ASSOCIATION

According to Article 36 § 1 of the Ukrainian Constitution only citizens of Ukraine have the right to freedom of association, with the exception of restrictions established by law in the interests of national security and public order, the protection of the health of the population or the protection of rights and freedoms of other persons.  The Law on citizens’ associations and the Law on the legal status of aliens only allow foreign nationals and stateless individuals to be members of citizens’ associations and prohibit them from creating associations, which is hardly a warranted restriction.

Article 37 § 1 of the Constitution specifies restrictions to freedom of association:

“The establishment and activity of political parties and public associations are prohibited if their programme goals or actions are aimed at the liquidation of the independence of Ukraine, the change of the constitutional order by violent means, the violation of the sovereignty and territorial indivisibility of the State, the undermining of its security, the unlawful seizure of state power, the propaganda of war and of violence, the incitement of inter-ethnic, racial, or religious enmity, and the encroachments on human rights and freedoms and the health of the population”.

We will consider here restrictions on freedom of association in Ukraine, a large number of which do not serve the aims set down in the Constitution and in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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

According to the Head of the Department for the legalization of citizens’ associations, Nina Marchenko, the Ministry of Justice refused to register 17 political parties due to their not complying with Article 10 of the Law of Ukraine “On political parties in Ukraine”. This involved the requirement to collect at least ten thousand signatures of Ukrainian citizens in at least two thirds of the districts of at least two thirds of the regions, cities of Kyiv and Sevastopol and Autonomous Republic of the Crimea.[4]  According to figures from the Deputy Minister of Justice, L. Horbunova, in 2005 the Ministry of Justice only officially refused to register around 100 organizations[5].  One should also note the substantial number of covert refusals or cases of procrastination in registering, as well as the fact that even the Ministry of Justice does not have exact figures for the number of refusals and the grounds in each case.

  The most prominent case involved the Ministry of Justice’s refusal to register the political party “Hromadyanska partiya “Pora” [the civic party “Pora” – “It’s time”].  On 22 February 2005 the party’s founders submitted papers for registration. On 13 April the Ministry of Justice informed them that their application to register the party had been turned down due to infringements of the Law on political parties, this being in our opinion well-grounded and justified.

  For example, signatures in support of the party were forged. Of 16,143, the Ministry checked 1,053. 338 people confirmed their decision to support the creation of the party; 352 denied having giving their signatures in support of this, while it proved impossible to check the signatures of 363 others since they were not registered and did not live at the addresses given on the sheets with their signatures.  There were cases where the petition sheets gave the names of buildings, sheets or populated areas which did not exist, or which were not residential areas. Later an additional check was carried out together with representatives of the party’s founders of the signatures.  Of 1,486 signatures submitted for supplementary checks, 797 people confirmed their support for the creation of the party.  A further 85 did not confirm this, 193 people were not at home, and 127 people were not living at the address given on the petition sheets. Once again incorrect addresses were discovered, with the flats indicated on the sheets not existing in the buildings, or the addresses being those of state institutions.  Thus, according to the results of both checks, only 1,135 people confirmed their signatures in support of the party’s registration, which constituted 44.7 percent of 2,539 signatures checked.[6]

  After these irregularities were eliminated, the party made a third submission of documents for registration on 20 April 2005.  However the petition sheets were again not in compliance with the Law on political parties. The Ministry of Justice, furthermore, at a joint meeting with the founders advised them to approach the court and recommended that they include in their claim words to the effect that “as a result of appealing the actions or inaction of the Ministry of Justice the registration of the political party Pora should have been registered before 26 March 2005.”[7]

  For the party it was crucial to be registered by 26 March 2005 since this would enable them to take part in the parliamentary elections in 2006. It therefore filed a suit demanding that the actions of the Ministry of Justice of Ukraine in turning down their application for registration as a political party “Hromadyanska partiya “Pora” be declared unlawful, and that the party be given registration dating from before 26 March 2005.

  In this situation the court issued a paradoxical ruling in summer 2005 in which it effectively bound the Ministry of Justice to retrospectively, with a decision dated before 26 March 2005, register the given political party. This elicited unconcealed bemusement from a number of lawyers.  The court in this did not pay attention to all the cases where the Law on political parties had been infringed for which documentary evidence was provided. Despite doubts as to the legality of such a court ruling, the Ministry of Justice did not appeal it, and on 1 August issued a registration certificate to the political party “Pora” with the date of registration given as 23 March 2005.

RESTRICTIONS ON TYPES OF ASSOCIATIONS

Ukrainian legislation allows for many types of organizations which can be categorized as non-govern­mental (NGO) and non-commercial (or non-profit making, hereafter NPO): citizens’ associations (political parties and civic organizations), youth and children’s civic organizations, employers’ organizations, trade unions, charitable organizations, religious organizations, creative unions, associations of businesses, institutions and others. However there is effectively no general legislation on the activities of all non-profit making organizations. The majority of the organizations listed above act according to legislation for them alone, which sets down the particular procedure for their creation and their special legal status.

Legislation basically divides these organizations into two main groups:

-  organizations which meet only the needs of their members (all citizens’ associations);

-  organization created for other people (charities).

Following on logically from this division legislation sets down restrictions regarding the kinds of activities of these organizations. For example, activities based on defending civil rights from the point of view of the law may only be carried out by charitable organizations, while citizens’ organizations formally have the right only to defend the rights of their members.  Moreover charities do not have the right to defend the rights of their members.

This issue arose, for instance, when the Kyiv city civic organization “Centre for extending the content of relations” tried to register, with the process dragging on from October 2005 to January 2006. The founders had their application turned down on several occasions, each time with new reasons. One of the reasons given was that the Charter of the Centre envisaged the “promulgation of humanist values and the ideas of open civic society”, to which the founders commented that in the same Charter it was stated that the Centre “promotes only its own ideas and principles”.  The state official from the department of the Ministry of Justice confirmed the legitimacy of the refusal, claiming that in accordance with Ukrainian legislation the Centre could only promote its own activity, and not generally accepted values.

  Therefore to a full extent the activities of human rights organizations which defend the rights and fundamental freedoms of all individuals, including those of members of their organizations, do not correspond to any form of association stipulated in legislation.

  Such an entirely formal division is effectively a restriction on freedom of association. Moreover such a restriction would be difficult to justify from the point of view of the aims of the given limitation, as defined in Articles 36 and 37 of the Constitution and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Another problem is the frequent demand when describing the types of activities in the organization’s Charter to use words like “promote, assist, take part in”, that is, which do not indicate any independent activities. This is apparently necessary in order to receive non-profit making organization status. On the other hand this directly limits the legal capacity of such organizations. For example, in order to carry out publishing activities or put out media material, it is vital that the Charter directly indicates that such activity is possible, not just the promotion of the said activity.

It should also be noted that Ukrainian legislation does not allow for the creation of mixed organizations, for example, associations of citizens’ organizations and charities, or organizations which would have the right to conduct mixed activities, both for their own members, and for third parties. Ukrainian legislation also lacks provision for the creation of organizations which unite both legal entities and individuals, as members of the organization (founders). 

This division has existed since Soviet days and reflects an undemocratic approach to the fundamental institutions of a civic society, the development of which it seriously hampers.

RESTRICTIONS ON THE ACTIVITIES OF ASSOCIATIONS IN TERMS OF WHERE THEY CAN BE CARRIED OUT OR ON THE NATURE OF SUCH ACTIVITIES

Another limitation pertains to territorial restrictions on the activities of associations. Each association is registered according to a territorial principle as one of the following: international, nationwide organizations, regional, local (within the confines of a city, village or district in a city).  Moreover, in order to receive a larger territorial status, one needs the appropriate groups within the organization. This demand partially explains the large number of associations in Ukraine since a significant percentage of these are fictitious, invented in order to receive broader status.

Associations have the right to extend their activities only over the area they are registered in. For example, an association which is registered in the Darnytsa district of Kyiv does not have the right to carry out its activities in other districts of Kyiv.

The next important restriction on the types of activities of associations is connected with the narrow interpretation of the Law on citizens’ associations by the registration bodies which understand the law as saying that associations have the right to state in their charters only those types of activities which are directly foreseen by Ukrainian legislation. The charter of the association at the same time provides an exhaustive list of its types of activity. For example, publishing activities and others are often removed.

An example would be the attempt by the Ukrainian Centre for Museum Development in Kyiv to register. It was turned down on the grounds that the organization did not have the right to carry out educational activities[8].  Reference was made to the Law of Ukraine “On education” which supposedly gave an exhaustive list of types of educational activities, as well as those engaging in such activities, although this law in actual fact does not present an exhaustive list of the said activities. Later, it has to be said, the organization was in fact registered with the original types of activities.

Another problem is connected with the effective prohibition imposed by the legalizing and tax bodies on associations carrying out their own economic and commercial activities in order to at least pay their own expenses and with the obligation to spend any profits on the organization’s aims. Such activities are allowed for by a number of laws, however when registering and including the association on the Register of non-profit making organizations and institutions demands are often made that they exclude such activities.

PROCEDURE FOR COMPULSORY LIQUIDATION

Over many years in Ukraine there have only been isolated cases of compulsory liquidation of associations. Cases are also known where the court refused to order liquidation. According to figures from the Ministry of Justice, in 2005 there were no bans imposed on activities of political parties or civic organizations by the courts.[9]

Due to non-fulfilment of Article 11 § 6 of the Law on creating and registering their structural formations in the majority of regions, the cities of Kyiv and Sevastopol and in the Autonomous Republic (AR) of the Crimea, on the basis of a ruling of the Supreme Court of Ukraine from 7 June 2005, the Ministry of Justice, through Order No. 63/5 from 23 June 2005, cancelled the registration of the Kolkhoz Party of Ukraine which had been registered in October 2004.[10]

In October 2004 the Ministry of Justice submitted a petition to the Supreme Court of Ukraine asking for the political party “K” to be banned on the grounds that the party had infringed Articles 21, 24 and 37 of the Ukrainian Constitution, Article 5 of the Law of Ukraine “On political parties in Ukraine”, Point 2.3 of Section 2 of its own Charter, since it had openly and publicly encroached upon the general national indivisibility of the Ukrainian people, had committed actions which incited enmity between different national and ethnic groups, which could complicate and worsen the political situation in the country during the election campaign.

The petition stated that the party had organized a number of political rallies and demonstrations, for example, on 1 and 25 May, 26 June, 18 and 19 July 2004, as well as a “K” training course from 4 – 11 July 2004.  During the actions listed campaign material and leaflets were distributed which contained calls to incite national and ethnic enmity, insults addressed at citizens of Russian or Jewish origin.  The organizers of the actions, both verbally and through their printed material (leaflets) inflicted harm upon the honour and dignity of citizens and treated the Russian and Jewish population of Ukraine in an unfriendly and arrogant fashion.  Furthermore, calls to inter-ethnic enmity and insults directed at the Jewish population were contained also in publications of the political party “K”, posted on the official website of the party and in press releases from 24, 25, 29 May, 29 June 5 and 19 July 2004.

The Court established that the party had not been issued with “warnings” as a preliminary measure aimed at influencing such activities. The Ministry of Justice of Ukraine had not provided the Court with evidence that the political rallies and demonstrations listed in the petition had been aimed at fuelling racial enmity and at encroaching upon human rights and freedoms, nor any information about administrative or criminal prosecution of members of the party for such actions. The Court also concluded that the publications had been in the form of value judgments and had not breached the requirements of freedom of speech.

Therefore, despite the fact that some of the opinions expressed, ideas and other information aroused offence and concern among a part of the population, the Court, guided by the demands of pluralism of opinions, freedom of views and activities of political parties, and taking into consideration the legally stipulated limitations as the condition for the progress of democratic society, concluded that the grounds for closing the political party “K” had not been proven. The Supreme Court of Ukraine in its Judgment from 5 November 2004 rejected the petition from the Ministry of Justice of Ukraine calling for the liquidation of this political party.[11]

The Central Election Commission on 27 December 2005 received an application from the All-Ukrainian association “Svoboda” [“Liberty”] on registering candidates for the office of State Deputy of Ukraine [MP], put forward on 23 December 2005 at the XII congress of that association and included on the candidate list for State Deputy of Ukraine from the All-Ukrainian association “Svoboda”.  Attached were also the necessary registration documents. Having considered the documents which “Svoboda” provided, the Central Election Commission found signs in the election program of the association which violated Article 37 § 1 of the Constitution of Ukraine. This referred in particular to the following points:

“To ban communist ideology as full of hatred towards people, and which caused irreparable damage to the Ukrainian people”;

“To pass a new Law on citizenship according to which citizenship would only be granted to people born in Ukraine, or ethnic Ukrainians.  To deprive naturalized aliens of their Ukrainian citizenship for committing criminal offences”, with these containing features of encroachments on human rights and freedoms.

The Central Election Commission of Ukraine in its Ruling No. 29 from 3 January 2005 appealed to the Ministry of Justice to submit a petition to the Supreme Court of Ukraine to have the activities of the All-Ukrainian association “Svoboda” banned, and postpone making a decision about registering this political party at the parliamentary elections.

However the Ministry of Justice considered that the given points were in compliance with legislation and turned down the application from the Central Election Commission (CEC). On the basis of the Ministry of Justice’s decision, the CEC shortly afterwards registered the said association for the elections.

Legislation still does not envisage procedure for suspending an association due to bankruptcy proceedings, including where this is on the grounds of debts incurred to the state and local budgets. However broadened sanctions from the tax bodies and state social security funds more often leads to the application of tax security or tax arrest on the property of associations (except for grants of international technical aid).

PUNISHMENT FOR PARTICIPATING IN ASSOCIATIONS

According to Article 14 of the Law of Ukraine “On citizens’ associations” «the activity of citizens’ associations, which are not legalized or which have been forcibly disbanded by a court order, is illegal»  

Article 186-5 of the Code of Administrative Offences (CAO) states that «the management of citizens’ associations, which have not been legalized according to legally prescribed procedure, or which have been refused legalization, or which have been forced to disband by court order, yet continue to engage in activity, as well as participation in such associations, shall be punishable by a fine from twenty five to one hundred and thirty times the minimum wage[12] before tax (approximately 80 to 415 US dollars).

Thus, the head of an «undesirable» organization could be fined 2,210 UH (an average salary for half a year) purely because the registering body has refused to register the organization on formal grounds.  We are only aware of a few cases where Article 186-5 of the CAO was applied. However its wide application in the future could violate the right to freedom of association, since it effectively transforms a right into an obligation to form an association.

In Sevastopol on 12 December 2005 three activists from the “Sevastopol – Crimea – Russia” Front were detained. Immediately after a press conference on the subject of discrimination against Russians in the Crimea and the struggle to reunite the Crimea with Russia, they were detained by police officers, this being confirmed by the head of the district police station of the police department of Ukraine for the city of Sevastopol. Viktor Harylyuk.  An administrative protocol was drawn up against the actions of Mr Serov, as well as against the leader of “Russian viche of Sevastopol”, Oleksandr Kruglov and Yury Bystryakov, and punishment exacted under Article 186-5 of the CAO.  Following this the men detained were released.[13]

THE CASE OF THE UKRAINIAN ENVIRONMENTAL ASSOCIATION “ZELENY SVIT” [“GREEN WORLD”]

The conflict provoked by the interference of the Green Party of Ukraine in the activities of the Ukrainian Environmental Association “Zeleny svit”  [“Green World”] has dragged on for more than 11 years.

In 1994 two fifth congresses of the association took place. The first was in Kyiv on 3 – 4 December where members of the Green Party of Ukraine (GPU) were in the majority.  The former Deputy Head of GPU, Yury Samoilenko, was elected Head of UEA “Zeleny svit”.  Then from 17 – 18 December there was a scheduled congress of the environmental association in Donetsk. Most local groups within the association took part in this meeting which elected Mykola Korobko Head of “Zeleny svit”

In order to simulate representation, the organizers of the Kyiv congress infringed a large number of provisions of the Charter of “Zeleny svit” and current legislation. However these infringements, unfortunately, did not receive attention due to the inaction of the police, the prosecutor’s office and the Ministry of Justice in not responding to the relevant appeals from “Zeleny svit”.  Even before the holding of the two congresses, the Head of “Zeleny svit”, Mykola Korobko had approached the Podilsk District Police Station with regard to the theft of the association’s stamp by the previously dismissed executive director, I. Kyrylchuk.

Both factions of the association approached the Ministry of Justice (the non-party faction had first written a letter on 17January 1995) on introducing amendments to the Charter of the UEA “Zeleny svit”. The non-party faction also approached the prosecutor’s office over the seizure of the administrative office and the forging of documents of the Kyiv Congress.

However all the authorities stated that they would not intervene in the situation over “Zeleny svit” and later repeated this on several occasions in correspondence, sending the non-party faction circling around the respective state bodies.

Despite their proclaimed non-intervention, the Ministry of Justice of Ukraine approved a new stamp for the newly-elected Head of “Zeleny svit”, Yury Samoilenko. In doing so, the Ministry of Justice effectively took the side of Samoilenko and the Green Party of Ukraine and through this intervention heightened the conflict. From then on, a person who had not been supported by the majority of the association’s members received the right to use the association’s stamp and to be in charge of the funds of the Ukrainian Environmental Association “Zeleny svit”.

Mykola Korobko’s faction filed a suit against the actions of the Ministry of Justice however this suit was not reviewed for almost a year. After several postponements of the case, it was closed on the grounds of alleged lack of jurisdiction of the court, since it supposedly needed to be considered by an arbitration court. However, in order to lodge a claim with the arbitration court, one needs to present a letter with power of attorney, carrying the stamp of the organization, and the Ministry of Justice had already approved the other party’s stamp, this being the action under appeal.

  Then to strengthen their position, from 1997, on the basis of local groups of the Green Party, Yury Samoilenko created dozens of new groups within the UEA “Zeleny svit” so as to really gain a majority in the organization. The regional departments of the Ministry of Justice approved these new groups despite the fact that the documents were submitted with letters confirming membership of the UEA signed by a person who was not the legitimate Head of the association, Yury Samoilenko and carrying a stamp which had been approved by the Ministry of Justice illegally. Furthermore, in its letters (for example, № 16-68-104 from 14 April 1997), the Ministry of Justice informed the non-party faction of the organization that it had not approved Samoilenko’s stamp and in so doing provided false information and concealed the fact of its aiding the interference by the Green Party of Ukraine. Nor did it react to the letters regarding the controversy over the leadership of the organization and the illegality of having approved stamps against the wishes of the legal management of the said organization. Effectively the Ministry of Justice was now denying its illegal actions.

For example, the sixth congress of the UEA “Zeleny svit” in 1997 in Mykolaiv which was held by the non-party faction of UEA “Zeleny svit” (45 local organizations, that is, 75% of the membership of the association as of December 1994) was not recognized by the Ministry of Justice which referred to Article 6 of the Law “On citizens’ associations” which states: “All main questions regarding the activities of citizens’ associations must be resolved at gatherings of all members or representatives of the members of the associations”. On this occasion the Ministry of Justice stressed the absence at the congress of representatives of the groups from Samoilenko’s faction, a significant percentage of which were headed by leaders or active members of the local groups of the Green Party of Ukraine.

It is interesting that the so-called “sixth”, “seventh” and “eighth” congresses of Samoilenko’s faction were not officially recognized by the Ministry of Justice.  While the “ninth” congress, where the membership of the UEA “Zeleny svit” was entirely “renewed” by the previous illegitimate congresses, was, without any logic or consistency effectively recognized by the Ministry of Justice since the latter registered the amendments to the Charter of the UEA “Zeleny svit” which had been adopted at that congress.

Before the “ninth” congress in December 1998, the Deputy Head of the UEA “Zeleny svit”, O. Bahin, and a member of the control and audit commission of the UEA “Zeleny svit”, R. Sotnykova, sent a letter to the Ministry of Justice concerning the fraudulent nature of the representation at that congress since the majority of local organizations of the UEA “Zeleny svit” were not represented, this being manifestly in contravention of Article 6 of the Law “On citizens’ associations”. The Ministry of Justice continued responding that it was not intervening, and later, ignoring the requirements of Article 6, effectively gave secret recognition to this “ninth” congress, without informing the non-party faction of the UEA “Zeleny svit” that it had done so..

According to unconfirmed information, in 2001 the Ministry of Justice issued duplicates of the certificate and charter of the UEA “Zeleny svit”  to the newly-elected Head Y. Samoilenko, ignoring the fact that the originals had not been lost, and were held by the person deemed by the majority of the association to be the Head of the UEA “Zeleny svit”, M. Korobko.

As can be seen, this was not solely an internal dispute. It involved systematic actions by the legalizing body, the Ministry of Justice of Ukraine, whose illegal actions helped the Green Party of Ukraine to replace the leadership, and later the entire membership of the organization, and to distance a significant number of groups from the association’s activities. Moreover, in the opinion of the non-party faction, this conflict was orchestrated by the Green Party of Ukraine which at that time was actively cooperating with the United Social Democratic Party of Ukraine[14]  and the Administration of the President of Ukraine.  The reason for such actions may have been the active stand taken by the organization at the beginning of the 1990s in criticizing the plans for building a number of environmentally dangerous constructions, for example, the Yuzhnensk Oil Terminal (near Odessa).  This Terminal was controlled by the then son-in-law of President Kuchma, Franchuk Junior. The UEA “Zeleny svit” are inclined to believe that the subordination of state interests to Kuchma’s family business which on more than once shows itself on the “Melnychenko tapes” in the given case led to actions by the Security Service which were carried out via the Green Party of Ukraine which hid behind the coordinated actions of the Ministry of Justice, the Prosecutor’s office and the police.

At a meeting with the Deputy Minister of Justice, M. Shupenya on 22 April 2005, a representative of the UEA “Zeleny svit” showed the Deputy Minister the originals of the Charter and the Registration Certificate of the Ukrainian Environmental Association “Zeleny svit” and handed to him a written demand that the duplicates issued on the basis of untruthful information about their alleged “being lost” be removed, and that the unlawful approval of the stamp from 1995 also be cancelled.

In its written response, the Ministry of Justice instead proposed holding a general congress of the UEA “Zeleny svit”. However Y. Samoilenko categorically rejected such a congress.

At a meeting with the First Deputy Minister of Justice I. Yemelyanova on 19 July 2005 the latter was informed that there had been no response to the substance of the demands presented in the UEA “Zeleny svit” appeal at the meeting with M. Shupenya in April. For the first time, the “Zeleny Svit” representative was informed that indeed, on 14 July 2000 the Ministry of Justice had approved amendments and supplements to the Charter of the UEA “Zeleny svit”. I. Yemelyanova  promised to investigate the situation regarding the issue of duplicates.  The issue was yet again “dumped” onto the Head of the Department for citizens’ associations, N. Marchenko, who had approved most of the previous illegal actions.

In August 2005 the Executive Director of the faction of UEA “Zeleny svit” headed by Yury Samoilenko, A. Bosak filed a suit with the Desnyansky District Court in Kyiv against the Head of the Information Centre of UEA “Zeleny svit”, S. Fedorynchyk, for removing the originals of the Charter and Registration Certificate of the UEA “Zeleny svit”. The Head of UEA “Zeleny svit”, M. Korobko and Deputy Head, O. Bahin, applied to the court asking to be recognized as respondents, and a number of local organizations of the UEA “Zeleny svit” sent telegrams to the court in support of M. Korobko, O. Bahin and S. Fedorynchyk. The case was passed to the Shevchenkivsky District Court in Kyiv for consideration on the basis of the actual address of the respondent, S. Fedorynchyk. The review of this case is still continuing, however at the court hearing on 19 April 2006 the court recognized the existence of two separate organizations of the UEA “Zeleny svit”  and ruled to include the UEA “Zeleny svit”  under the leadership of M. Korobko as joint respondent  in the case.

When sent a Deputy’s request for information from the State Deputy, Yury Solomatin, regarding the case of UEA “Zeleny svit” , the Ministry of Justice for two months did not respond in any way. When Yury Solomatin raised the question of imposing a fine on the Minister of Justice, Serhiy Holovaty for administrative offences, the First Deputy Minister Krupko signed an answer claiming that the Ministry of Justice had no information about the approval of Yury Samoilenko’s stamp which, as has already been demonstrated, is entirely at odds with the truth.

3.   A FAVOURABLE ENVIRONMENT FOR THE DEVELOPMENT OF ASSOCIATIONS

  Freedom of association does not bring with it an obligation for the state to provide tax incentives for such associations. However, if one analyses the functions of associations in a democratic society, the non-profit making and socially beneficial nature of their activities, the conclusion seems called for that the state should create a favourable environment for the development of associations and their activities in order to develop and consolidate democracy and the rule of law in the country. In other words, without a broad network of nongovernmental, non-profit making and socially beneficial organizations, civic society loses its levers of influence on the state and on state policy, and it is therefore impossible to talk about real democracy in the country.

One may highlight in this respect two important components from a democratic state:

–  the state tax policy

–  the involvement of associations in devising and implementing state policy

Here we will consider only the first component,

Registration of associations according to Ukrainian legislation does not give the automatic right to any tax concessions. From the point of view of tax legislation these newly-created associations are businesses.   Associations may gain concessions for tax purposes if when making supplementary registration in the State Tax Administration the given association is included on the register of non-profit making organizations. In addition, the law on taxing the profit of businesses divides all associations into 8 types of organizations, each of which is granted concessions on exclusive sources of income.

For example, charitable foundations and charities, civic organizations formed to carry out environmental, health, amateur sporting, cultural, education or academic activities, as well as creative unions and political parties, civic organizations for the Disabled, and their local groups, if created in accordance with the Law of Ukraine “On citizens’ associations” are allowed to receive only the following income:

-  funding or property provided free of charge or in the form of non-repayable financial assistance or donations;

-  passive income;

-  funding or property which such non-profit making organizations receive from carrying out their basic activities;

-  subsidies or grants received from state or local budgets, state purpose-linked funds or within the framework of charitable, including humanitarian, aid or technical assistance which is granted to such non-profit making organizations according to the conditions of international agreements, the approval for the compulsory nature of such being given by the Verkhovna Rada of Ukraine, with the exception of subsidies on regulation of prices for paid services which are provided to such non-profit making organizations or through them to their recipients in accordance with legislation and in order to lower the said prices.

Basically only this group of associations has the right to receive donor aid by receiving non-repayable financial assistance. However their membership fees will already be taxed at the normal rate of taxation for the profits of enterprises.

Another problem is the difficulty inherent in having an association included on the Register of non-profit making organizations and institutions.

The Independent Media Trade Union of Ukraine (IMTUU) on 25 July 2005 announced that it planned to picket the State Tax Administration of Ukraine (STAU) in protest against the blocking by STAU bodies of its activities. According to the Head of the union, Serhiy Huz, the conflict had dragged on from 20 May when the Deputy Head of the State Tax Inspectorate for the Obolon district of Kyiv, Samofan, refused to allocate the trade union a non-profit making status code (Decision No. 144 from 20 May 2005). On 23 May Huz issued a press release to his colleagues in the mass media regarding the blocking by the tax inspectorate of the union’s activities. It was then also, he says, that the IMTUU approached international journalist organizations, and sent a complaint about the actions of the State Tax Inspectorate for the Obolon district of Kyiv to the State Tax Administration in Kyiv.

"On 24 May,- Hus explains – the IMTUU yet again approached the State Tax Administration in Kyiv demanding that the decision of the Obolon Tax Inspectorate be revoked and that the trade union be allocated a non-profit making status code, however they all find formal ways of fobbing us off. Shortly afterwards the IMTUU received an example which virtually copied the response of the “Obolon” tax people”.

He says that on 9 June a letter of protest was sent to President Yushchenko by the General Secretary of the International Federation of Journalists, Aidan White, the General Secretary of the National Union of Journalists in Britain and Ireland, Jeremy Dear, the Head of the European Federation of Journalists, the Vice President of the Swedish Union of  Journalists, Arne Konig, the President of the Union of Croatian Journalists, member of the Executive Committee of the International  Federation of Journalists, Jasmina Popovych, and the President of the Norwegian  Union of Journalists, Ann-Magrit Austen. In a joint letter they pointed to the biased attitude towards the IMTUU from the State Tax Administration of Ukraine. 

On 29 June the IMTUU sent their complaint to the STAU.

On 11 July, Hus, accompanied by Arne Konig, met Yushchenko’s Press Secretary, Iryna Herashchenko. Hus relates that after having to wait four hours, they met with the First Deputy Head of the STAU, Mykola Katerynchuk, who assured them that the issue would be resolved since “maybe the lawyers got something muddled”.

"On 13 July we received a call from the STAU and were informed that the issue in dispute would be resolved in IMTUU’s favour”, Hus continues. – “However by 15 July a letter to the IMTUU arrived from the STAU in which the trade union’s demands were ignored”.

Hus asserts that this attitude from the STAU forced them on 20 July to file a suit against the actions of the State Tax Administration with the Economic Court in Kyiv, and from 1 August the IMTUU Committee decided to hold a range of protest actions to express their opposition to the position of the STAU.[15]

Soon afterwards the trade union was finally included in the Register of non-profit making organizations and institutions.

4.   Recommendations:

1.  To adopt a new law «On non-commercial organizations»[16], which defines clear and standardized conditions for the creation or termination of activity of all types of NPO, including organizations, whose creation is not allowed for by Ukrainian legislations, and also for the obtaining by them of the appropriate tax incentives through gaining the status of a non-profit making organization.

2.  To simplify the procedure for registration of non-governmental organizations by creating one procedure for both non-profit making organizations and businesses, and to abolish the double registration of NPO by two State executive bodies.

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

4  To abolish the strict division between associations created for their own members and those for others

5  To abolish the practice of licensing social services which are provided by non-profit making organizations, and not from State or local budgets. To provide legislation stipulating the conditions for the state paying for social services, and for the provision of state assistance to nongovernmental non-profit making organizations.

6  To 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.  To make more transparent the provision and use of state funding directed towards citizens’ associations for carrying out state programs.

7  To remove Article 186-5 of the Code of Administrative Offences  which establishes liability for the activity of unregistered civic organizations.

8  To 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.

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

[1]  Letter from the State Committee of Statistics of Ukraine, № 14/2-2-04/539.from 21 September 2005 in response to a formal request for information. The figures are from averaging Reports on the activities of civic organizations (Form No. 1 – civic organization), which are provided by these organizations at the end of each year.

[2]  Letter №С-8566-32  from 17 April 2006, signed by the Deputy Minister of Justice, L. Horbunova,  in response to a formal request for information.  Available in Ukrainian at the “Maidan” website: http://maidan.org.ua/static/news/2006/1145867487.html.

[3]  The affirmation of human rights and freedoms, the formation of a civic society and the building of a law-based state are the priorities of the activities of the Ministry of Justice. Reports from the Press Service of the Ministry. Available on the official website: www.minjuist.gove.ua

[4]  Ibid

[5]  Letter №С-8566-32  from 17 April 2006, signed by the Deputy Minister of Justice, L. Horbunova,  in response to a formal request for information.  Available in Ukrainian at the “Maidan” website http://maidan.org.ua/static/news/2006/1145867487.html.

[6]  “The Ministry of Justice does not have legal grounds for registering the Political party Pora”.  Statement from the Press Service of the Ministry of Justice of Ukraine. Available (in Ukrainian) from the official site of the Ministry: www.minjust.gov.ua

[7]  “The meeting between Minister of Justice Roman Zvarych and those wishing to create the Political party Pora lasted over an hour on 28 April 2005”.  Statement from the Press Service of the Ministry of Justice of Ukraine. Available (in Ukrainian) at: www.minjust.gov.ua

[8]  A Letter from the Kyiv City Department of Justice of Ukraine № 07-27-667 from 9 November 2005, with the signature Sokurenko

[9]  Letter №С-8566-32  from 17 April 2006, signed by the Deputy Minister of Justice, L. Horbunova,  in response to a formal request for information.  Available in Ukrainian at the “Maidan” website http://maidan.org.ua/static/news/2006/1145867487.html

[10] The affirmation of human rights and freedoms, the formation of a civic society and the building of a law-based state are the priorities of the activities of the Ministry of Justice. Reports from the Press Service of the Ministry. Available on the official website: www.minjuist.gove.ua

[11] The newspaper “Advokatura”, № 20, from 19 November 2004.

[12]  According to Article 22.5 of the Law of Ukraine “On taxation on citizens’ income”, one minimum wage before tax is 17 UH

[13] «In Sevastopol a core of “separatists” has been crushed”.  Ihor Chemerys: the Internet publication “Independent analytical agency “Glavred”:, http://glavred.i№ fo/criminal/sca№ dals/, 12.12.05 // 12:26.

[14]  This party was headed by Viktor Medvedchuk, the Head of the President’s Administration under Kuchma, and actively supported Kuchma and Yanukovych (translator’s note)

[15] Journalists’ rights activists picket the Tax Inspectorate.  The Internet publication “Ukrainska Pravda”:  www.pravda.com.ua, 25.07.2005, 13:09.

[16] Draft Law № 0961 from 14 May 2002 року «On non-commercial organizations», tabled by State Deputies A.S. Matviyenko, H.O. Omelchenko and A.V. Yermak. The Draft Law was accepted on its first reading, however since June 2002, it has not been tabled in Parliament for its second reading.