Olga Smolianko: Associations’ freedom depends on the will of state

CSOs are experiencing great difficulty while registering nowadays. The process of legitimization the activities of non-governmental organizations is often carried out at random. The orders are the same for all on paper, but in life they function in different way. A lawyer, an expert in the field of freedom of association, director of the Legal Transformation Center Olga Smolianko is reflecting on the problems existing in a registration system of public associations.

- Olga, what is today the registration system of non-governmental organizations in Belarus? How do you evaluate it? What is being simplified and, on the contrary, complicated in this process?

- The process of establishment and registration of public associations in Belarus is at the moment a complex one, long and fairly expensive. Firstly, the Belarusian legislation sets high requirements for the number of founders of public associations. Thus, to establish a republican public association you need to have at least 50 founders, 10 of which must reside in the city of Minsk, with 10 more in 4 regions of Belarus. To establish a local public organization you need the presence of at least 10 founders from the majority of the administrative-territorial units of the territory, which would be subject to this association. Paradoxically in this case is that under the law in the administrative-territorial units village councils are also included. You can count the number of founders that may be required, for example, for establishment of a Minsk regional public association, while in the Minsk region there are 22 districts, 307 rural councils, 22 towns and 20 townships. Fortunately, registration authorities do not always require such a representation of founders for the regional associations, although in practice, there exist cases of refusals of registering on this basis.

The process of establishment of international public associations is complicated, as representatives of registering authorities have different views on the establishment process of these associations due to unclear wording of the law "On public associations". For example, several years ago, the Ministry of Justice denied registration to the International Charitable Public Association (ICPA) "Slow Food" due to the fact that the organizational structure of the association was created earlier than the association itself. At the same time, this year, registration to ICPA "Center for Intercultural Cooperation" was denied on the grounds that the association was created before its organizational structure.

The indicator of the complexity of the registration process of public associations in Belarus is the comparison of procedures for their registration with the registration process of Belarusian commercial organizations. The commercial organizations are to provide around three documents and are registered under the application principle on the day of filing, and the grounds of registration refusal can only be registration statement not in accordance with the law, or filing of documents in the wrong registration agency, or providing not all the documents. Public associations are to prepare and provide for the registration an impressive set of documents and are registered under the permission principle a month after the filing of all the documents. Bodies, recording associations have broad authority to verify documents submitted for registration or to send them in different expertise. In addition, a public association can be denied registration for minor breaches of legislation in the constituent documents, as well as providing other documents and (or) data that does not meet the requirements of the law, including fraudulent, counterfeit or invalid documents. Based on the fact that the law imposes requirements even to the font size of documents submitted by the public associations for registration, and also includes the need to specify the job position, home and work telephone numbers of each of the founders, in practice there are situations where unions are denied registration because of errors in pointing out that data. Thus, there is a discriminatory approach to non-profit organizations compared to commercial ones.

The Ministry of Justice constantly refers to the improvement of legal regulation of the registration process of public associations. Minor improvements do occur, for example, in 2010, there was introduced the principle of "one window" for public associations’ registration; this fact was widely covered by the Ministry of Justice, meanwhile in the same year the list of grounds for refusal to register organizations was significantly expanded. Naturally, this fact there the authorities preferred not to mention. But these improvements do not effectively affect the change of the situation of freedom of association in the country. Thus, there is no point of talking about simplifying the registration process of public associations, as since 1999, this process is being constantly complicated.

- There are paradoxical cases when one organization is being denied the official registration while other is given consent to registration, despite one law for all. Why is consented such legal inequality? What would change the situation? Or a so-called "equality" in this matter is impossible in principle?

- In theory, the law is, really, one for all. However, as the experience of recent years shows, the decision of registration or refusal of registration of public associations, most often, depends not on whether all the legal requirements for its establishment and preparation of documents for registration are satisfied or not, but on the political will of the state. As I have already noted, our legislation allows refusing to register any "objectionable" public association. More, since 2001, the courts didn’t satisfy any claim of founders of public associations against a court decision to refuse registration. The situation can be corrected by two things: 1) the state will on systemic legislation changes in the field of legal regulation of non-profit organizations; 2) the state will on law enforcement changes. Another question is how to gain this will.

- Some associations are registered abroad, while functioning in Belarus as representative offices. This allows these associations’ members to avoid liability for activities on behalf of unregistered organizations. What obstacles on the territory of Belarus are faced to representative offices of organizations that are registered abroad, in association with this form of legitimization of their activities? What other advantages and disadvantages of this method of registration of non-state associations you could mention?

- To begin with, we can’t even clearly assert that having registered abroad a non-profit organization, its founders (members) will be able to avoid criminal liability. In this situation, there rise many legal issues. The first is: what is activity in this context? Of course, if members of the organization, registered abroad, will sign on its behalf any applications, etc., then it is legal and there is no activity on behalf of the representation. The second issue is whether the activities of an organization registered abroad, are subjected to criminal responsibility [Article 193.1 of the Criminal Code of the Republic of Belarus establishes criminal responsibility for participation in the activities of an unregistered political party, foundation, civil or religious organization, and envisages two years of imprisonment for such activities]. Indeed, in theory it turns out that these are unregistered activities of representation office, rather than of an unregistered public association, religious organization or foundation. And although our legislation prohibits also activity of unregistered representation offices, these latter are not mentioned in the list of subjects for organizing or participating in whose activities may be imposed criminal liability. On the other hand, this issue has never been considered at the level of the Belarusian court system, and the practice of considering "political cases" by the Belarusian courts in recent years certifies the possibility of taking any decision on this issue.

Belarusians are forced to register non-profit organizations abroad also because of the total dependence of possibility of gaining foreign donations (grants) in the country on the state permission. Here again, as well as with the process of organizations’ registration, is operating a selective approach in addressing the issue of registration of foreign aid provided for certain goals, for certain recipient. This issue of establishment of a non-profit organization abroad has gained great relevance after the arrest of Ales Bialiatski, head of the Human Rights Centre "Viasna", in August of this year.

- Which country’s legislation on non-governmental organizations’ registration can serve as a model for the Belarusian legislation in this area?

- I do not think that in this case the legislation on public associations’ registration exactly should serve as a model. In my opinion, in this case there is absolutely no sense to allocate non-profit organizations in a separate category. Allocating of non-profit organizations in a separate category should be done only when it comes to giving them some preferences, such as tax incentives. In managing the registration process it seems logical to have a single regulation, governing the registration processes of all legal entities. Herewith, the regulation should be clear, understandable and it should encourage creation of new organizations. Registration of legal entities should be done under the application (notification) principle. An important issue for Belarus now is also enabling of non-profit organizations to have a registered address of residence of the founders (members). By the way, here again some commercial organizations are already allowed to do this, for example, unitary enterprises.

Approaches to legal regulation of non-profit organizations, which, in my opinion, should be guided by, are also contained in a number of international instruments. For example, at the Council of Europe level there’ve been adopted the Fundamental Principles on the Status of NGOs in Europe and the explanatory note to them. Experts of certain countries have raised for several years the issue of need for establishment of "Guidelines on Freedom of Association" at the OSCE level. This document, in my opinion, would be necessary and timely.

- This issue has been addressed at the roundtable "What guarantees freedom of association in Belarus?" The issue was the abolition of Art. 193.1. and the registration process, at all. What will give us these requests’ implementation? How much is it reasonable to cancel the registration at all? What kind of problems it can cause?

- Possibility to register non-profit organizations or giving them some legal status is contained in the legislation of all the countries, but namely as an opportunity for greater efficiency of their activity, such as protection of their members’ rights or receival of tax preferences. Therefore, we are not talking about registration process abolition, we are talking about canceling the ban on the activities of unregistered organizations. In this respect Belarus is one of the few countries whose legislation contains such a ban. Other countries like Belarus are also Uzbekistan, Kazakhstan and Turkmenistan, but even in these countries there is no criminal responsibility for organizing or participating in the activities of unregistered organizations.

Of course, we can not talk about that fascist formations, for example, should be registered. But for this both the Constitution of the Republic of Belarus and the international obligations accepted by our country do introduce the possible and specific restrictions of freedom of association. And such restrictions may be prescribed by law only in the interests of national security, public order, morality, public health, rights and freedoms of others. It is also necessary to understand that the state can not simply assume at the stage of registration that the organization’ activities would violate the law. Public authorities are endowed with a clear mandate to monitor the activities of organizations, and at any time, in case the organization will harm public order, for example, contact the court for its liquidation.

- What would guarantee freedom of association in Belarus? And generally, what the public associations consider to be "freedom"? Freedom from what and for what?

- In principle, freedom of association is guaranteed by the Constitution of the Republic of Belarus. Belarus is a party to a number of international agreements by taking on the obligations to respect, in particular, freedom of association, as well. Another thing is that in practice the situation is entirely different. For example, being a party to the International Covenant on Civil and Political Rights (ICCPR) and its first Optional Protocol, Belarus has recognized the competence of the UN Committee on Human Rights to receive and consider communications from individuals subject to its jurisdiction. To date, there have been received several findings of this body with regard to Belarus on a violation of freedom of association, the last one was the last year. But Belarus has performed none of the recommendations set out in these conclusions.

With regard to the essence of the concept of "freedom of association", the disclosure of its contents is contained, in addition to international treaties, in the European Court of Human Rights, the UN Committee on Human Rights, etc. In September of this year the European Commission for Democracy through Law (Venice Commission) has prepared comments on the compatibility of Article 193.1 of the Criminal Code of the Republic of Belarus with universal human rights standards in relation to the law of unregistered associations in Belarus, where the notion of "freedom of association" is also given attention.

The essence of freedom of association is that a group of people can associate freely, independently determining the organizational structure of their association, its legitimate goals, realizing them in practice. Limitations of this activity, as I have already noted, must be prescribed by law and must pursue a legitimate aim. In addition, freedom of association implies that the state should create conditions in order to give legal status to those organizations that wish to do so under conditions which are consistent with relevant international obligations. Moreover, freedom of association not only guarantees the right to establish and to register associations, it also includes the rights and freedoms that are essential for the effective functioning of organizations in realizing their goals and protecting the rights and interests of their members.

- Olga, what are the criteria for free non-governmental organizations activity that you personally define? Which are the articles of the current Belarusian legislation that limit the ability of most non-governmental organizations? At the round table you noted that "there is already a situation vision of many expert and civil society organizations: what do they want, what do they require for the legislation system to be changed from a legal point of view ". Which of these wishes and requirements can be named decisive for the "turning point"?

- In my opinion, we’ll be able to talk about the situation change with freedom of association in Belarus only in case of the government system vision-based approaches to the law of non-profit organizations (or the concept of changes), elaborated with the engagement of interested civil society organizations of the country. Our organization, the Legal Transformation Center, has developed our vision of reforming the system of legislation on NCOs, including:

1. Abolition of criminal responsibility for organizing and participating in the activities of unregistered associations (with the exception from the Criminal Code of Art. 193, Art. 193.1) and a ban on the activities of unregistered associations (except for Part 2 of Art. 7 of the Law "On public associations").

2. Introduction of application principle of registration of public associations, by analogy with the principle of registration of commercial organizations (the single principle of registration of all legal entities).

3. Upholding the possibility of registering non-profit organizations, including associations and their organizational structures, residential founders (members) and the restoration of benefits for the rent for the premises of state ownership for all public associations.

4. Reducing the number of founders needed for the establishment and activity of public associations, abolition of the territorial principle of public associations (changes in relevant regulations).

5. Abolition of the need to register foreign grants and international technical assistance in the government bodies, as well as introducing of a list of goals, for which foreign grants and sponsorship help can be used.

6. Abolition of restriction of possibility of doing business by associations on their own, introduction of facilities during taxation of income from doing business by non-profit organizations, which are used for socially useful activity.

7. Elaboration of an open and transparent system of funding of non-profit organizations from the state budget, as well as informing citizens about the funding.

8. Regulation of inspections’ order of public associations, exception of control functions over the activities of associations from the jurisdiction of registration authorities.

9. Reduction, established law, of the list of grounds for liquidation of public associations and bringing it into line with international standards.

10. Upholding the issues of communication and partnership between public authorities at various levels and civil society actors. Attracting particular attention to issues of representation of the principles and powers, including through the establishment of advisory bodies with various non-profit organizations in the parliamentary committees, with local authorities, ministries and government.

11. Return to the discussion, revision and adoption by the Republic of Belarus of the legislative regulation, aimed at encouraging philanthropy and charity (the law "On Charitable Activity and Charitable Organizations," adopted in 2002 by the Parliament of Belarus, in consultation with non-governmental organizations), as well as making appropriate changes in tax laws of the Republic of Belarus.

12. Execution of decisions of the UN Committee on Human Rights, of the legal settlement of the mechanism of execution of decisions of international bodies.