Speech of “Viasna” Representatives at Court Debates
On 2 September 2003 the Ministry of Justice of Belarus filed to the Supreme Court the suit for liquidation of the Public association “Human Rights Center “Viasna”.
On 10 September 2003 the Supreme Court of Belarus brought the civil case on the suit of the Ministry of Justice. We disagree with the suit for the following reasons:
Public association “Human Rights Center “Viasna” was registered by the Minister of Justice of Belarus on 15 June 1999 (registration certificate #00111). According to the suit of the Ministry of Justice, as a result of the check-up that was conducted by the Ministry of Justice in order to found whether the activity of the Public association “Human Rights Center “Viasna” corresponded to the demands of the legislation and the Statute it was found that:
1. During the registration of the association its founders violated the demands of Article #13 of the Law of the Republic of Belarus “About public associations”, point 2 of the ruling adopted by the Presidential decree #2 of 26 January 1999, point 2 of the Rules, adopted by order #108 of the Ministry of Justice of 15 May 1999.
For instance, the association presented judicially invalid documents (minutes of the Constitutive assembly of founders of the association, minutes of the Constitutive assembly on establishment of Brest branch, list of members of the Board, list of the Revision commission members, list of the initiators of Vitsebsk, Brest and Homel branches), as these documents contained a number of forged signatures.
Moreover, during the registration the association didn’t confirm its republican status – it failed to meet the demands of the decision of the Republican commission on registration (re-registration) of public associations (minutes #10/158/4 of 24 March 1999): the necessary number of founders, necessary for the State registration, wasn’t confirmed in one of the four regions (8 persons instead of 10 in Mahiliow region).
Concerning this fact we state the following:
The Public association “Human Rights Center “Viasna” was established by the decision of the Constitutive assembly of 20 August 1998. The initiators were 10 persons, which completely corresponded to the demands of the legislation that acted at that time and regulated the order of establishment and registration of public associations. The documents were passed for registration to the Ministry of Justice. However, due to the preparation of changes in the legislation and the order of establishment and registration of associations, registration of the established associations was delayed for uncertain period of time by the Ministry of Justice. It was connected with the adoption of Decree of President of the Republic of Belarus #2 “About certain measures for development of the order for activity of political parties, trade unions and other public associations” of 26 January 1999. It’s worth mentioning that the registration of the Public association “Human Rights Center “Viasna” was suspended for more than 8 months. The seal of the Ministry of Justice on the Application for registration of the association witnesses that the documents were filed on 15 September 1999 and the association was registered only on 15 June 1999. By this the Ministry of Justice violated the order for registration of associations, defined by the Law of the Republic of Belarus “About public associations” and point 3 of the Rules for registration of public associations, adopted by order #108 of the Minister of Justice of Belarus of 15 May 1995.
Besides, in spring 1999 the Ministry of Justice illegally, in oral form, referring to Presidential Decree #2, demanded to present lists of founders of the association, at least 10 persons from the majority of the regions of Belarus with the signatures of these persons for the registration of the Public association “Human Rights Center “Viasna”.
At the same time, the Ruling about the State registration (re-registration) of political parties, trade unions and other public associations, confirmed by Presidential decree of 26 January 1999 #2 didn’t contain the number of members, necessary for registration of republican associations. At the moment of registration of the Public association “Human Rights Center “Viasna”, 15 June 1999, the order of creation and registration of public associations was regulated by the Law of the Republic of Belarus “About public associations” of 4 October 1994, the abovementioned Ruling and the Rules, adopted by order #108 of the Minister of Justice of Belarus of 15 May 1995. None of these documents demanded 10 founders from the majority of regions of the Republic of Belarus for registration of a republican public association as well as presentation of lists of these founders, certified with their signatures.
The demand about 10 founders from the majority of regions appeared in the Law “About public associations” (Article #8) only after the appropriate changes into were introduced, on 29 November 1999, after registration of the Public association “Human Rights Center “Viasna”. The only document, that demanded to have at least 10 founders from the majority of regions of the Republic of Belarus and to which the plaintiff refers, is the Decision of the Republican commission on registration (re-registration) of public associations (Minutes #10/158/4 of 24 March 1999). Point 1.3 of this Decision really contains this condition, but this decision can’t be considered as a legal act for several reasons. Firstly, Decree #2 adopted the Ruling about registration of public associations and the consistence of the State commission on registration (re-registration) of public associations. According to point 7 of the Ruling, this Commission concludes whether it is possible to register (re-register) public associations and submits these conclusions to the registering bodies. It has no powers to define the order of registration or introduce changes in the acting legislation. The decisions, taken by the Commission, aren’t registered in the State register of legal acts of the Republic of Belarus and are not accessible to citizens and public associations. This also concerns the Decision, to which the plaintiff refers. According to the Law of the Republic of Belarus “About legal acts of the Republic of Belarus” a legal act is an official document of the defined form which is adopted within the competence of an empowered State body (duty official) or by referendum with the execution of the procedure, defined by the legislation of the Republic of Belarus which contains the generally accepted rules of behavior concerning the indefinite circle of persons and repeated usage. According to Article #7 of the Constitution of the Republic of Belarus, the State, all its bodies and duty officials obey the Constitution and constitutional legal acts.
Legal acts of State bodies are printed or made accessible to the public in any other legal way.
So, the demands of the Ministry of Justice to present the lists of 10 founders from the majority of regions of the Republic of Belarus didn’t have any legal nature and weren’t obligatory for execution.
It’s also worth mentioning that according to point 3.3.4 of the Statute of the Public association “Human Rights Center “Viasna” its General assembly is considered competent if more than a half of the association members are present. At the Constitutive assembly of the Public association “Human Rights Center “Viasna” of 20 August 1998 10 persons were present, whereas in accordance with the lists that were presented later, the association had 50 members. The Public association “Human Rights Center “Viasna” held no other Constitutive assemblies that were registered by the appropriate minutes and elected the governing bodies of the association.
Besides, according to Article #7 of Decree #2, after the study of the documents, presented for the State registration, the registering body submits it to the Republican commission on registration (re-registration) of public associations which within the 5-day term since receiving of the materials concludes whether it is possible to register the association and submits it to the registering body.
The decision about the State registration of a public association is adopted by a registering body, being guided by the conclusion of the Republican commission on registration (re-registration) of public associations. Point 2.2 of the Decision to which the plaintiff refers gives such conclusions on a number of public associations. Accordingly, the same conclusion was made about the registration of the Public association “Human Rights Center “Viasna” and then submitted to the Ministry of Justice, which then decided to register the public association. It’s worth mentioning, that this Decision wasn’t submitted to the organization and wasn’t public. According to point 10 of the Ruling the decision to delay registration of a public association for up to 1 month can be taken if there are some violations in order of establishment of a public association.
If the reasons that resulted in the delay of the State registration are liquidated, the repeated statement about the State registration is considered in the order, provided by the Ruling. The Ministry of Justice decided to delay the registration of the public association for 1 month (letter of 15 March 1999 #04/3862) and gave it one month for correction of mistakes. All demands were executed. The Ministry of Justice decided for registration and issued the Registration certificate. At that time the Ministry of Justice had no remarks about the signatures in the lists, presented by the Ministry of Justice.
So, the Ministry of Justice violated the provided order for registration of an association: during the registration it violated the demands of the Law of the Republic of Belarus “About public associations” and other legal acts as well as point 3.3.4 of the Statute.
That’s why we think that, as there wasn’t any legal necessity to present 50 initiators of establishment of the association for the State registration, there can’t be any talk about the forged signatures in these lists. One can’t violate inexistent law.
Besides, our association repeatedly confirmed its republican status by presenting the lists of its member on the demand of the registering body, for instance, at the last check-up. Even now we are ready to present all lists of our members with their signatures meeting the demands of point 2 of Article #57 of the Civil Code of the Republic of Belarus.
At present the association has more than 50 members, including 10 persons in Mahiliow region.
On 16 May 2003 the Constitutive assembly established Mahiliow regional branch of the Public association “Human Rights Center “Viasna” that was registered by the Justice Board of Mahiliow Regional Executive Committee (Registration certificate #07-058 of 27 June 2003).
At the trial the facts of forgery of the establishing documents (minutes of the Constitutive assembly of the association founders, the minutes of the Constitutive assembly on establishment of Brest branch, the list of the Board members, the list of the Revision commission members, the lists of initiators of Vitsebsk, Brest and Homel initiators) weren’t confirmed.
What concerns the minutes of the Constitutive assemblies of the regional branches, they have no juridical force, as, according to the association Statute, the decision to establish branches is taken by the Board of the association. According to point 2 of Article #47 of the Civil Code of the Republic of Belarus, an organization is considered established since the time of its registration. At the time when the assemblies of Vitsebsk, Homel and Brest branches the Public association “Human Rights Center “Viasna” wasn’t registered. These minutes weren’t submitted to the appropriate justice boards and, accordingly, didn’t result in registration. All regional branches of the Public association “Human Rights Center “Viasna” were established only on decision of the association Board and held their Constitutive assemblies much later, after the official registration of the association. Then the minutes of these Constitutive assemblies were submitted to the justice boards, where the registration of these branches took place in accordance with the acting legislation.
At the trial the 15 persons whose signatures had been forged to the plaintiff’s mind, have been questioned. All of them, under the threat of criminal punishment for false testimony, confirmed that they put the signatures in the lists of initiators of the association establishment and the minutes of the Constitutive assemblies of the regional branches on their own free will in spring 1999. All of them have confirmed to the court that they had been or were members of the Public association “Human Rights Center “Viasna”.
It hasn’t been proved otherwise at the court and the expertise hasn’t been conducted either.
The Conclusion of a specialist, presented by the plaintiff at the court sitting, can’t be considered as evidence. By the way, the representative of the prosecution has agreed with it, saying that he had nothing against attachment of the Conclusion to the case, but not as expertise, only for simplification of the procedure of the interrogation of witnesses. This document isn’t an expert conclusion as it doesn’t meet the demands of the Civil Process Code of the Republic of Belarus. This document is not evidence in the case, but a private opinion of a specialist. The court hasn’t empowered this specialist to make any conclusions and didn’t summon him to the trial. Accordingly, this specialist is not a participant of the trial and his status doesn’t correspond to Articles #99, 100 and 101 of the Civil Process Code of Belarus. Besides, this Conclusion hasn’t been read at the trial as written evidence on the case.
According to Article #181 of the Civil Process Code the facts that, according to the law, are to be conformed by certain means, can’t be proved with any other means.
According to Article #240 of the Civil Process Code of the Republic of Belarus, decision of a case can be grounded only on the evidence which has been objectively and thoroughly checked.
According to Article #241 of the Civil Process Code of the Republic of Belarus, the court values the evidence on its own conviction which is grounded on all-sided, complete and objective investigation of all facts subject to proving at the trial according only to this law.
Every law is evaluated from the point of view of relativity, accessibility and the collection of facts – also from the point of view of sufficiency for the trial.
That’s why we consider that the fact of forgery of signatures in the documents, presented by the association to the registering body for the State registration, wasn’t confirmed at the trial. Accordingly, these documents can’t be considered as invalid and one can’t say that the Public association “Human Rights Center “Viasna” violated the law during its registration. So, there the association can’t be liquidated according to point 2 of Article #57 of the Civil Code of the Republic of Belarus and Article #29 of the Law of the Republic of Belarus “About public associations”.
2. The plaintiff asserts that the association allegedly hasn’t executed the demands of Article #72 of the Civil Code of Belarus, Article #22 of the Law of the Republic of Belarus “About public associations” and point 2.1 of the Statute: the association applied to the Supreme Court of the Republic of Belarus in the capacity of public defender concerning representation of rights and legal interests of the citizens who weren’t its members.
A copy of the letter of the Supreme Court of Belarus of 13 September 1999 #01-2387 is in the case materials as alleged evidence of this fact. This letter shows that this charge concerns the criminal trial of the former Minister of Rural Economy V.S. Liavonaw that took place at the Supreme Court.
Concerning this fact we say the following:
Article #249 of the Criminal Process Code of the Republic of Belarus of 29 December 1960 (lost its force on 1 January 2001) provided participation of public organizations and working collectives at trials. Representatives of public organizations and working collectives could be admitted to participation in a criminal trial in the capacity of public accusers or public defenders on permission of Judge.
According to the Statute of the public association (registered by the Ministry of Justice on 15 June 1999) one of the main aims of the association is defense of the rights and representation of legal interests of its members at State, economical and public bodies and organizations. Defense of rights of other citizens is allowed only in the cases and in the order, provided by the acting legislation. Article #249 of the Civil Process Code provided such possibility as the present CPC provides the possibility for public to participate in civil trials.
Besides, according to point 2.3 of the Statute edition of 1999, the methods of the association activity were: legal, consultative, informational and other necessary support to the persons who applied to the Public association “Human Rights Center “Viasna” (the new edition of the Statute was adopted by the Ministry of Justice on 7 February 2001).
Article #8 of the Constitution of the Republic of Belarus states that Belarus acknowledges the priority of the generally accepted principles of the international legislation and provides its conformity with the legislation.
According to Article No. 1 of the “Declaration about the right and obligation of certain persons, public groups and bodies to promote and defend the generally accepted human rights and basic liberties” (adopted by resolution 53/144 of the UNO General Assembly on 9 December 1998), everyone has the right to individually or in association with others to promote, try to defend and realize human rights and basic liberties at the national and international levels. According to point 3 of Article #3 of this Declaration, everyone, either individually or in association with others has the right to propose and give professional qualified legal support or other appropriate consultations and support on defense of human rights and basic liberties.
So, we think that the Public association “Human Rights Center “Viasna” had the legal right to nominate a public defender to the criminal trial of Liavonaw with the aim to evaluate this trial from the point of view of human rights organizations and Belarusian society. This trial had a wide public resonance, international and Belarusian human rights organizations considered it politically motivated. Our association agreed and agrees at present with such evaluation. That’s why the association applied to the Supreme Court of the Republic of Belarus with the written solicitation to admit its representative as public defender for Liavonaw. The court didn’t agree with our position, expressed in the letter, and didn’t admit our representative as public defender. We didn’t agree and don’t agree with the position, expressed in the letter of the Supreme Court of Belarus, but had to obey to it. The Board didn’t take any decision for nomination of a public defender, as it was demanded by Article #249 of Civil Process Code. Representative of our association wasn’t admitted to the trial, therefore he didn’t acquire the status of the public defender in the trial (representative of a public association receives the status of public defender only after the court satisfies the petition by its decision). Liavonaw’s interests in court weren’t factually presented. So, this charge of the Ministry of Justice is groundless and wire-drawn.
What concerns the violations of Article #72 of the Civil Process Code of the Republic of Belarus, in its suit the Ministry of Justice drew no facts of participation of representatives of the Public association “Human Rights Center “Viasna” at civil trials in the capacity of representatives.
That’s why we think that there are no facts of violation of Article #48 and 72 of the CPC of the Republic of Belarus, Article #72 of the Law of the Republic of Belarus “About public associations” and point 2.1 of the Statute by the Public association “Human Rights Center “Viasna”.
3. One of the violations, mentioned in the suit of the Ministry of Justice is that the association didn’t create an organization (branch) on the territory of Minsk, by which, to the mind of the Ministry of Justice, the demands of point 3.1 of the Statute were violated.
According to point 3.1 of the Statute, the Public association “Human Rights Center “Viasna” consists of regional organizations (branches). Regional organizations (branches) are established on certain territory in the Republic of Belarus by at least 10 (3) members of the Public association “Human Rights Center “Viasna”. This point of the Statute defines the structure the organization can have. It is impossible to exceed the limits of this provision of the Statute. This point of the Status has no imperative function for obligatory establishment of organizational bodies.
For the time of its activity the public association has established and registered in accordance with the legally defined order its regional branches. Mahiliow, Brest, Vitsebsk and Homel regional branches have been registered as well as Pinsk, Mazyr and Baranavichy city branches. At presence a number of regional branches of the public association are being registered. Being guided by the fact, that our public association is republican and can act on the whole territory of Belarus, the decision about the establishment of Minsk city branch hasn’t been taken by the Boards due to the fact that the juridical address of the association is in Minsk and absence of a registered branch in Minsk doesn’t limit activity on the territory of Minsk.
According to point 3.4.3 of the Statute, the Board of the association has the power to decide about creation or liquidation of the Public association “Human Rights Center “Viasna”.
It’s also worth mentioning that the representative of the plaintiff groundlessly asserts that the plaintiff found about the violation in the form of non-registration of Minsk city branch during the check-up in 2003. However, during the check-ups in 2000 and 2001 the Ministry of Justice was informed about all registered regional branches, which was reflected in the certificate on the results of the check up for the period from 1 August 2001 to 1 August 2002. This certificate mentions all regional branches of the association. At that time the ministry hadn’t any pretension against absence of branches in any regions or locations. We think that this accusation is groundless and can’t be considered as a reason for liquidation of the public association.
4. In the suit the plaintiff states that the public association has violated the demands of the electoral legislation. To prove it, the plaintiff refers to the Ruling of the Central commission of the Republic of Belarus on elections and holding of republican referenda of 8 September 2001.
On 28 August 2001 the Ministry of Justice of the Republic of Belarus issued a warning to our association for the alleged violation of the procedure of filling of the minutes of the Board sittings during nomination of observers for the Presidential election of the Republic of Belarus.
We consider this warning as non-motivated. It’s also worth mentioning that it was issued before the Ruling of the Central commission of the Republic of Belarus and for the violations that weren’t mentioned in it. The Ministry of Justice didn’t issue any warnings to the Public association “Human Rights Center “Viasna” after the Ruling was adopted.
According to point 2 of Article #29 of the Law of the Republic Belarus “About public associations”, for liquidation of a public association it is necessary to prove that the association committed a repeated violation within a year since the first warning for it. Since August 2001 our public association hasn’t received any warnings, which is confirmed by the check-ups in August 2002 and the check-up in 2003 that didn’t find any violations in the order of nomination of observers. That’s why the reference of the plaintiff to the Ruling of the Central commission and the Warning of the Ministry of Justice in 2001 can’t be a reason for liquidation of the public association.
5. One of the reasons for liquidation of the public association by the plaintiff is the violation of points 4.5 and 5.1 of the Statute of the public association: non-collection of membership fees. In 1999 the Board of the public association took the decision that, in accordance with point 3.4.3 of the Statute, defined the order and the sum of membership fees. By this decision the public association executed the demand of the Statute. Head of regional branches were put in charge of execution of this decision. Heads of branches repeatedly referred to hard material state of the association members as the reason for which it was impossible to execute the decision. At the sitting of the Board of 30 April 2003 (minutes #003) the decision about the new sum and order for payment of the membership fees beginning from January 2004 was adopted. The minutes were presented to the Ministry of Justice during the last check-up in July-August 2003.
The assertion of the plaintiff that the association members were released from paying membership fees was disproved by the minutes of the association Board of 30 April 2003, #003. It’s worth mentioning that these minutes of the Board were adopted much time before the appearance of the suit of the Ministry of Justice.
In 1999 the association Board fixed the order and the sum of membership fees. The fact that the association members didn’t pay any membership fees doesn’t mean violation of the law and the Statute by the whole association. It is non-execution of the Statute norms by the association members. This fact is confirmed by the testimony of the witness Pawlaw, Head of Vitsebsk regional branch of the association. In his testimony he confirmed that the Board took its decision in 1999 and it was impossible to raise the membership fees due to hard material state of the association members.
It’s worth mentioning that the assertions of the plaintiff that during the check-up of the association in 2003 the fact of non-collection of the membership fees was found. During the check-up of 2002 the information about non-collection of membership fees was directed to the Ministry of Justice. In its conclusion the Ministry of Justice stated that the financial accountancy of the association strictly conformed to the legislation and the Statute, which witnesses the groundlessness of the charges, stated in the suit. We ask the court to take into consideration that even if this fact is taken for a violation, the decision to liquidate the public association can’t be taken as we haven’t ever been warned for non-collection for membership fees (there is no violation, provided by Article #29 of the Law of the Republic of Belarus “About public associations”). Article #57 of the Civil Code of the Republic of Belarus doesn’t provide liquidation of juridical bodies for such violations either.
We again turn the attention of the court to the fact that the public association executed the norms of the Statute and decided to raise membership fees, but the factual absence of the payments is not the fault of the association, but a result of hard material state of its members. So, we consider this charge as groundless. Therefore it can’t provide any reason for liquidation of our public association.
So, grounding on the aforesaid, we ask:
1. To reject the suit of the Ministry of Justice of the Republic of Belarus.
Representatives of the defendant:
A. Bialiatski
V. Stefanovich
U. Labkovich
