Publication

Freedom of associations

Prepared by Volodymyr Yavorkyi, a member of UHHRU administration.

 

  1. General overview

Major changes to legislation that improved legal regulation of associations, in particular, public associations and charitable organization became effective in 2013.[1] In 2015 positive changes were adopted to the tax legislation and legislation on registration and liquidation of associations.

According to the State Statistics Service, 69175 public organizations, 720 their unions, 26255 trade unions and their associations, 14495 political parties and their cells were registered as of November 01, 2015.[2] On year ago there were 75057 registered public organizations.

On November 26 the Parliament adopted a law draft “On State Registration of Legal Entities, Natural Persons and Public Organizations”[3] in order to set the same procedures for establishment and liquidation for all legal entities.

On April 09, the Parliament adopted a law “On Conviction of Communist and National Socialist (Nazi) Totalitarian Regimes in Ukraine and Propaganda Prohibition of their Symbolics”[4], which restricted the freedom of associations[5].

On July 23, the Ministry of Justice approved three legal opinions of the Board regarding compliance with the Law of Ukraine “On Conviction of Communist and National Socialist (Nazi) Totalitarian Regimes in Ukraine and Propaganda Prohibition of their Symbolics” concerning the Communist Party of Ukraine[6], Communist Party of Ukraine (updated)[7] and Communist Party of employees and rural people[8], which stated that:

  • names of these parties don’t comply with part two of article 3 of the above-mentioned Law.
  • Symbolic of these parties doesn’t comply with part one of article 4 of the above-mentioned Law.

It was also determined that the articles of incorporation of the Communist Party of Ukraine (updated) don’t contain provisions that promote the communist totalitarian regime according to article 1 of the Law, but incorporation documents of the other two parties contain provisions that focus on propaganda of the communist totalitarian regime.

As a result of these orders the Ministry of Justice filed a claim in court about a ban on these three parties.

On September 30, 2015 the County Administrative Court of the city of Kyiv made a decision to stop activity of the Communist Party of employees and rural people according to the claim of the Ministry of Justice[9].

On September 30 the same court and judge made a decision to stop activity of the Communist Party of Ukraine (updated)[10].

On December 16 the County Administrative Court of the city of Kyiv made a decision to sustain a claim of the Ministry of Justice in full and stop activity of the Communist Party of Ukraine based on the Law on decommunization[11]. This decision was appealed.

Besides, because of decision of the Ministry of Justice regarding the Law on decommunization of the Communist Party of Ukraine it was prohibited to take part in local elections in autumn 2015.

In December the Venice Commission of the Council of Europe made a common interim decision about the Law on decommunization, where it clearly pointed out its violation of the freedom of associations[12].

Previously, in July 2014 the Ministry of Justice filed a claim in court about a ban on the Communist Party of Ukraine for anticonstitutional activity.[13] As a result of search made in court by the Prosecutor’s Office regarding another criminal case, the court refused to review the case and it was transferred to Kyiv County Administrative Court, where it was supposed to be reviewed in January 2016.

In general Ukraine has favorable conditions for establishment and operation of associations. In particular, there are no significant financial restrictions about money receipt or expenditure. At the same time, there is an administrative responsibility for participation in an unregistered public organization, which is a violation of the European Convention on Human Rights.

 

Recommendations

  • Exclude article 186-5 of the Code of Administrative Violations, which establishes responsibility for management or participation in unregistered associations of citizens.
  • Exclude restrictions about establishment and activity of political parties and other associations, use of symbolics, as well as restrictions regarding participation in elections for political parties, which are not liquidated in a judicial procedure from the Law of Ukraine “On Conviction of Communist and National Socialist (Nazi) Totalitarian Regimes in Ukraine and Propaganda Prohibition of their Symbolics”.
  • Make changes to the Law of Ukraine “On public Associations”, which will complete the list of rights of public associations provided by article 21 of this law with the right to represent and defend rights of its members, other people upon their request, initiate claims regarding public interests.
  • The Ministry of Justice should generalize the practice of filing legal claims about liquidation of political parties and public associations and make it comply 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.
  • To the Superior Administrative Court of Ukraine: generalize the judicial practice regarding claims on liquidation (withdrawal of the certificate of incorporation) of political parties and public associations.
  • Develop and adopt changes to the Law of Ukraine “On political parties” in order to make it company with international standards[14].
  • Make changes to part 2 of article 50 of the Administrative Procedure Code of Ukraine, which will include public associations without a corporate status to the list of plaintiffs in the administrative case.
  • Simplify formation of professional unions and their associations according to the requirements of the International Labor Organization Conventions No.87 “On freedom of association and protection of rights to organization”, in particular, allow possibility of their formation without registration.[15]

[1] Find more about the law on public associations here: http://www.ucipr.org.ua/pages/7, and here: “Operational conditions of public associations. Implementation of the Law of Ukraine “On public associations” and regional development programs for public society in 2013.” Ukrainian Center for Independent Political Research. 2014. http://www.ucipr.org.ua/publications/anons-umovi-diialnosti-gromadskikh-obednan-realizatciia-zakonu-ukraiini-pro-gromadski-obednannia-ta-regionalnikh-program-rozvitku-gromadianskogo-suspilstva-u-2013-rotci-avtori-m-v-latciba-a-o-shimchuk-a-o-krasnosilska.

[2] http://www.ukrstat.gov.ua/.

[3] Draft law No.2983 dd.02.06.2015, http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_2?id=&pf3516=2983&skl=9.

[4] http://zakon3.rada.gov.ua/laws/show/317-19.

[5] Find more about this law here: Analysis of the Law on prohibition of communist symbols, http://khpg.org.index.php?id=1430493970

[6] Order No.1312/5 dd.23.07.2015, http://zakon3.rada.gov.ua/laws/show/v1312323-15.

[7] Order No.1313/5 dd.23.07.2015, http://zakon3.rada.gov.ua/laws/show/v1313323-15.

[8] Order No.1314/5 dd.23.07.2015, http://zakon3.rada.gov.ua/laws/show/v1314323-15.

[9] http://reyestr.court.gov.ua/Review/51867521.

[10] http://reyestr.court.gov.ua/Review/51867526.

[11] http://reyestr.court.gov.ua/Review/54392066.

[12] Find text of the conclusion in Ukrainian here: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282015%29041-ukr, in English here: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282015%29041-e.

[13] Find test of the claim here: http://www.istpravda.com.ua/articles/2014/07/9/143697/.

[14] Find, in particular, Principle of legal regulation of the activity of political parties, OSCE, http://www.osce.org/ru/odihr/81988.

[15] http://zakon3.rada.gov.ua/laws/show/993_125.

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