A toughening experience for NGOs
There has been a great deal of speculation about when the draft law “On civic organizations” [No. 3371] drawn up by the Ministry of Justice, discussed, supplemented and assessed by NGOs, and put forward from the Cabinet of Ministers will finally be adopted. Civic organizations are adamant that this is needed.
See, for example, their call to the Prime Minister to keep her commitments http://www.helsinki.org.ua/en/index.php?id=1254823593
So what needs to be improved?
Ms Yatskiv points out that registering a civic, charitable or religious organization for the first time is difficult. There are huge numbers of such organizations in the country, confronting a medley of problems: creating and registering an organization; organizing its activities, reporting, relations with the authorities, defending the rights of its members or other legal issues. However 70%, she says, of appeals pertain to issues of legalization and State registration.
Hardly surprising, she says, since the process begins with legalization (registration), which for a local organization involves providing seven to ten documents, then registration in the single register and being placed on the records.
A telling detail is seen in the prices charged by law firms for help in registration. These in Kyiv are from 2 thousand UAH for commercial enterprises, and from 4-7 thousand for civic organizations and charities. There are even offers, for a considerable supplement to this fee, to organize legalization between 3 and 5 working days (whereas the maximum period is 2 months).
Ukrainian legislation has long been recognized as not in keeping with international standards, and as restricting the development of civic organizations. This was, as reported at the time, confirmed by a European Court of Human Rights judgment in the Case of Koretskyy and others v. Ukraine.
The Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe state that “The rules governing the acquisition of legal personality should, where this is not an automatic consequence of the establishment of an NGO, be objectively framed and should not be subject to the exercise of a free discretion by the relevant authority.
Territorial status remain a separate problem when these even have to be included in the name of the organizations, as well as the restriction of activities to ones own members, the large number of documents demanded, interference in the creation of management bodies, checks on the wording of acts of association beyond that demanded by the law.
In April 2008, in its Judgment in the Case of Koretskyy and others v. Ukraine, the European Court found that Ukraine had violated Article 11 of the European Convention on Human Rights, including over territorial restrictions on the organization’s activities. The Court also stressed that the authorities had too broad discretionary powers as to whether or not to register an organization.
It also stated in 48 that “according to section 16 of the Associations of Citizens Act “the registration of an association may be refused if its articles of association or other documents submitted for the registration contravene the legislation of Ukraine”. The Act does not specify whether that provision refers only the substantive incompatibility of the aim and activities of an association with the requirements of the law, in particular with regard to the grounds for the restrictions on the establishment and activities of associations contained in section 4 of the same Act, or also to the textual incompatibility of the articles of association with the relevant legal provisions. Given the changes to the text of the Civic Committee’s articles on which the authorities were insisting in the present case, the Court notes that the provision at issue allowed a particularly broad interpretation and could be read as prohibiting any departure from the relevant domestic regulations of associations’ activities. Thus, the Court finds that the provisions of the Associations of Citizens Act regulating the registration of associations are too vague to be sufficiently “foreseeable” for the persons concerned and grant an excessively wide margin of discretion to the authorities in deciding whether a particular association may be registered. In such a situation, the judicial review procedure available to the applicants could not prevent arbitrary refusals of registration”.
It is thus not only the legislation that is in question, but its application.
The author expresses doubts as to whether the authorities really are willing to support civic society. One particularly worrying occasion giving rise to such doubts was following their latest approach to the Ministry of Justice, asking for explanation as to whether it was compulsory to indicate territorial location in the name of the organization. In response they received an approach from the Department of Legalization and Regulation of the work of credit history bureaux of the Ministry of Justice. This Department asked for copies of the acts of association confirming that the organization has the right to carry out consultations for organizations. They even ended up doubting the fact that the organization was registered since it’s not in the electronic register (which is still just starting up) and a stamp and the relevant code from the single State register are still not proof. So how do you prove that the sky is blue?
Tetyana Yatskiv reiterates that the problems are not only in flawed legislation, but in its interpretation, application and the degree of discretion given specific officials.
She stresses that the law does not oblige a civic organization to have a supervisory body, it does not require territorial status to be in the name, and does not envisage refusals to legalize an organization via the latter’s notifying of its existence. Yet various initiative groups of activists prepare their documents for legalization and registration because they can’t wait about for the draft law to be passed. They become hardened though this first encounter with administrative – registration obstructions.
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