We would like to express our deepest sympathy to the victims who have lost their lives or suffered injury during yesterday’s violent clashes with police following weeks of peaceful demonstration for basic civil rights. Our thoughts are with all the people of Ukraine, especially those who have suffered personal loss or who have been harmed trying to ensure the rights of assembly, freedom of expression and media.
Like the people of Ukraine, we are deeply concerned about the recent legislative developments which provoked the peaceful protests of Ukrainian citizens defending their civil rights.
We urge the Government of Ukraine to immediately repeal Bill 3879 as, not only has this legislation resulted in violence and bloodshed, it violates European and international human rights and legislation.
The European Foundation Centre has outlined the legal arguments for the repeal of Bill 3879 and offers its support and expertise to the Government and peoples of Ukraine to support the process of establishing a fair and enabling environment for philanthropy in Ukraine.
Legal justification for the repeal of Bill 3879
– European Foundations strongly oppose the harsh restrictions introduced in Bill 3879 as they contravene Ukrainian citizens’ rights to freedom of assembly, press and operations of civic society, which are at the core of Europe’s values.
– Ukrainian NPOs should continue to enjoy the same operating environment as their European and international counterparts, to allow the flourishing philanthropy sector to continue to make significant contributions to society in Ukraine.
– The Bill’s punitive fiscal measures and demands to register and label Ukrainian NPOs receiving foreign funding and non-Ukrainian NPOs engaging in “political” activities in Ukraine as “foreign agents” are detrimental to philanthropic progress and are at odds with European laws and practices.
The new laws:
– are contrary to overall legislative trends in the EU;
– are in direct conflict with Council of Europe NGO principles;
– stigmatise civil society organisation receiving foreign funding by labelling them as foreign agents; this is alien to any democratic European country;
– introduce undefined notions of “political” and “extremist” activity to justify discretionary decisions to outlaw civic activism;
– impose overly strict accounting and reporting requirements on organisations receiving foreign aid;
– violate the principle of “ultima ratio” of banning public associations and branches of foreign NPOs.
On 16th January this year the Parliament of Ukraine has, under dubious procedural circumstances, adopted the repressive Bill 3879. This bill, “On Making Amendments to the Law of Ukraine on the Judiciary and the Status of Judges and Procedural Laws on Additional Measures for Protecting the Security of Citizens”, provides harsh restrictions on freedom of assembly, media and operations of civil society at a time when civic protests are rife across Ukraine and are ending in deaths and casualties.
The bill is an unacceptable attack on civil society in Ukraine and the EFC calls on the Ukrainian authorities to overturn Bill 3879 and bring legislation in line with Ukraine’s European and international commitments and existing practices and regulations in Europe.
Ukrainian civil society shares the same values and freedoms with the rest of Europe and in recent years the Ukrainian philanthropic sector has seen steady, positive progress and has made significant contributions to the country and society. The Ukrainian foundation sector is a vital part of the European and international foundation community, and both EFC and DAFNE have been working closely with the Ukrainian foundation sector to exchange views and establish best practices.
The new Ukrainian Law on Charity and Charitable Organisations, signed by the President in February 2013, was a positive signal and we are now deeply concerned about these new developments, which put significant barriers to philanthropic work and civil society as whole in Ukraine.
With the new bill, the Ukrainian authorities appear to be seeking to control and penalise NGOs engaged in political activities and that receive support from foreign sources, such as governments and foundations. The new Ukrainian bill labels such NGOs as “foreign agents” and demands that they register and publicly identify and name themselves as such, and imposes on them an additional tax burden (see amendments to the Tax Code of Ukraine). Without the tax exempt status, the NGO must pay an astronomical 19% corporate tax on every dollar/euro received. It also requires branches of foreign NGOs that wish to engage in “political activities” to register the status as a “public association performing functions of a foreign agent” according to the new Article 20 paragraph 8 and 9 of the law on public associations.
We oppose the legislative changes for the following reasons:
– Contrary to overall legislative trends in the EU
The principle/concept and legislative demands to be registered as a foreign agent do not exist in any EU country. Also NGOs in Europe do not lose tax exemption if they receive foreign funding.
– Conflict with Council of Europe NGO principles
The European foundation sector has become more international. We believe strongly that charitable contributions should easily flow from one country to another, without the concern that beneficiaries will suffer negative consequences for receiving these funds. This right of NGOs to freely operate and to receive funding from national and foreign legal entities and individuals is at the core of the “Fundamental principles of the status of NGOs in Europe”, adopted in 2002 by the Council of Europe and is common practice throughout the EU. Foundations and NPOs should also be able to operate freely through setting up branches across Europe. The fact that foreign branches that wish to engage in “political activities” must register with the status of “foreign agent” will deter many foreign NPOs currently working or intending to work in Ukraine.
– Stigmatisation though the labelling as “foreign agent”
Furthermore, the labelling as “foreign agents” stigmatises these organisations and undermines their valuable work for the benefit of Ukrainian society.
– Unclear definition of “political” and “extremist” activity leads to discretionary decisions
The changes refer to NGOs performing “political activity”, a term which does not appear to be very clearly defined and thus open to interpretation and potential abuse. According to the new part six of Article 1 of the association law (non-official translation), political activities are: “engagement in the organisation and implementation of political campaigns with the purpose of influencing decisions rendered by public authorities, modification of the state policy that they have determined, as well as shaping the public opinion pursuing the said goals”. While it is generally accepted that party political activities undertaken by public-benefit organisations can be restricted in European countries, organisations carrying out other “political” public-benefit activities must not be restricted since this is guaranteed by the freedom of assembly and speech. The bill also introduces the possibility for civil society actors to be accused of “extremism”, in Article 4, part 1, association law, a term vaguely defined, which appears to make room for discretionary accusations.
– Overly strict accounting and reporting requirements on organisations performing the function of “foreign agents”
Organisations falling under this category must register in a specific “foreign agent” register. They must also provide the registration authority with documents listing its governing bodies as well as information concerning the amount of foreign financial recourses, planned and actual spending areas, and planned and actual activities on a monthly basis. They must also publish on the internet and in Ukrainian newspapers a report every three months. From a comparative perspective it can be concluded that such strict reporting requirements are not to be found anywhere else in Europe1. Any charitable organisation receiving money for or giving money to good causes has to report it to the relevant authorities but this is done on a reasonable and more manageable yearly basis.
– Banning of public associations and branches of foreign NPOs must be “ultima ratio”
The revision of association law gives the court the remit to ban all public associations in case of breach of sections of the Ukrainian Constitution or other listed legal obligations (including failure to register in the foreign agents register or to adhere to the reporting requirements mentioned in the previous point or the performance of “illegitimate seizure of political power” or “extremist” activities). Article 30 association law also provides powers to the court to ban branches of foreign NGOs. While supervisory mechanisms exist in other European countries, the ban of an organisation is always the “ultima ratio” and may not be justified immediately in case of non-compliance with reporting requirements. From a comparative perspective it can be concluded that such wide powers of supervisory mechanisms do not exist in other European countries.
Hence we call on the Ukrainian authorities to bring legislation in line with European and international standards.
This statement will be sent to the relevant authorities in Ukraine and the European institutions, as well as disseminated within the philanthropic community.
Contacts:
European Foundation Centre
Hanna Surmatz
hsurmatz@efc.be
Donors and Foundations Networks in Europe
Rosa Gallego
rgallego@fundaciones.org
