Valiantsin Stefanovich: Freedom of Association Is Considerably Limited by Belarusian Authorities
Despite the fact that the freedom of association in Belarus is guaranteed by the Constitution and other laws, its practical use remains quite problematic. Since 2003 the authorities have carried out the liquidation campaign towards the country’s public associations. Their liquidation was initiated by organs of the Ministry of Justice and carried out by courts. In 2003 in such a way there were liquidated 38 NGOs and in 2004 – 51. Besides, about 200 organizations have already self-liquidated due to different reasons.
The authorities liquidated the NGOs which they couldn’t control. Among them there were human rights, youth and regional organizations that took an active part in the public life of the country. They dealt with monitoring of elections, mobilization campaigns, youth policy, student self-government, etc. Most often the organizations were liquidated upon Article #57 of the Civil Code of the Republic of Belarus, not the Law “On public associations” where the reasons for legal liquidation are enumerated. Article #57 regulates the liquidation of juridical bodies. In 2003 the Ministry of Justice started the practice of NGO liquidation on the basis of this article of the Civil Code, which allows liquidation of juridical bodies for “repeated or gross violation of the acting legislation”. At the same time, this article doesn’t contain the very notion of “gross violation”, leaving it up to the court to decide whether a violation is or is not a gross one. Moreover, this article lets for liquidation of a juridical body for a single violation and doesn’t specify the term during which this violation was to happen for it. For instance, in October 2003 the Supreme Court of the Republic of Belarus liquidated Human Rights Center Viasna for “gross violation of the electoral legislation” that allegedly was committed by the organization during the monitoring of the presidential election in 2001. Taking into consideration the abovementioned facts, representatives of NGOs consider the practice of the use of Article #57 of the Civil Code for liquidation of public associations by the court instances and the Ministry of Justice as contradiction to the acting legislation of Belarus. In private, Article #117 of the Civil Code contains the norm according to which the activity of religious and public organizations is regulated by the present legislation, i.e. Laws on religious and public associations and other legislative norms, not the Civil Code.
In 2005 the National Assembly of Belarus adopted a number of amendments to the laws on public associations and political parties. As a result there were enforced new editions of these laws. It’s worth mentioning that these laws were adopted without consideration of the opinion of public organizations. Independent experts called these laws openly discriminative and limiting the civil right to association.
The new editions of the laws became compilations of the previously issued decrees, rulings and the registration rules that had been adopted by the Ministry of Justice. For instance, the Law “On public associations” legalized the activity of the National commission on registration (re-registration) of public associations, which Belarusian NGOs claimed to close. This commission was established by a presidential decree in 1999 and wasn’t mentioned in any other legislative acts. Now this commission, all members of which are appointed on president’s consent, will “give conclusion concerning the possibility of registration of NGO” on the basis of the Law “On public associations”. The final decision on registration will be taken by the Ministry of Justice on the basis of the commission’s conclusion. Accordingly, one can sue against the decision of the Ministry of Justice, not the registration commission.
The new edition of the Law includes the norms of the presidential decrees that prohibit the activity of unregistered NGOs on the territory of Belarus and provide liquidation for a single violation of the order of holding of mass actions or the order of receiving free foreign aid.
It also contains the interesting term “national state-public organizations” that are established by the state and are financed from the budget. The action of the Law “On public associations” doesn’t spread on them. It’s unclear what regulates their action, then.
The new law strengthens the control of the organs of the Ministry of Justice over NGOs. Now they can control observance by all kinds of laws by NGOs, including financial legislation. NGOs are obliged to give yearly reports about the activity of their organizations, the measures held, etc. There are also such new kinds of punishment as suspension of activity of NGO for 1- 6 months or liquidation of NGO for a law violation within year’s term since the issue of a warning by the registering body. Before that, NGOs used to be liquidated for a repeated violation committed less then a year after the warning for the first case. Besides, according to the existing practice, an NGO can be always liquidated for a gross law violation on the basis of Article #57 of the Civil Code.
In 2005 the authorities also continued limiting the possibilities for financing of NGOs. In 2003 there was issued decree #40 that significantly limited the possibility to receive finances from foreign partners. In 2005 there also appeared presidential decrees #300 (1 July 2005) and #382 (17 August 2005). The former one limited the possibility of sponsor aid from Belarusian juridical bodies and entrepreneurs. This decree defines the kind of sponsor aid and embraces all kinds of juridical bodies who can act as sponsors. According to the decree, provision of equipment or office is considered as a kind of sponsor aid and is liable to obligatory registration. The decree contains the exhausting list of sponsor aid and the kinds that aren’t mentioned in it are prohibited.
The latter decree changed the notion of the international technical aid. Now it includes not only the support that is received by Belarusian NGOs on the programs that have been agreed with Belarusian government, but also the support for holding of conferences, round tables, etc. At present a foreign organization, such as OSCE, for instance, will have to register the financial means and receive the permission to use the money for paying the rent of the office.
In 2005 the authorities also considerably limited the possibilities for registration of funds. Presidential decree #302 of 1 July significantly changed the order for registration of funds. Now their status is close to the status of NGOs: they also have to have regional branches and are registered by the Ministry of Justice. One of the discriminative regulations is that it is prohibited to register a found that contains among its founders the persons who have been members of the governing bodies of previously liquidated NGOs. Such citizens are deprived of the right to register funds for three years since the liquidation of their NGOs.
It’s worth mentioning that in Belarus the activity on behalf of unregistered organizations is considered as a crime. Article #167.10 of the Code of Administrative Violations of Belarus provides for it such punishments as up to $ fine and arrest up to 15 days for the repeated violation during a year. This norm doubtlessly violates the principles of the freedom of association.
So, one can state that the right of Belarusian citizens to association is strictly limited by the country’s authorities.