Implementation of the right to freedom of association in Belarus: 2008 analysis

In 2008 the situation in the field of the freedom of association in Belarus was extremely ambiguous. With the government expressing unfavourable attitude towards the activity of independent NGOs and opposition political parties, there emerged a number of new tendencies, dealing with the Belarus-EU and Belarus-US dialogue. The inner political situation was aggravated by a factor of foreign-policy, by making it even more multidimensional; the freedom of association is still controlled by the Belarusian government. The circumstances admit of no haste in taking evaluating the freedom of association and the situation with NGOs in 2008: one would not speak of any cardinal change, neither would one state the absence improvement in the field.

On the one hand, the legal climate for the emergence and work of NGOs and non-profit organizations remains extremely unfavourable (the government lifted renting benefits for public associations). The state, in the majority of cases, continued the practice of ungrounded bans for newly created NGOs, put pressure on registered NGOs and opposition parties, harassed members of unregistered NGOs and movements. In spite of numerous protests and continuous criticism by both Belarusian and international human rights organizations, the Belarusian legislation still provides for criminal prosecution of unregistered NGOs, political parties, religious organizations and foundations. There were no considerable improvements in the legislation concerning NGOs or any signs of the state’s willingness to make such changes.

On the other hand, in 2008 the civil society in Belarus tended to be put less pressure on; the state abandoned the policy of using most violent and restrictive measures, which, to a certain extend, contributed to the implementation of the freedom of association in Belarus, e.g. the state liberalized the procedure of registration for such non-profit organizations as institutions and unions of legal persons. In spite of the fact that the procedure of registration for NGOs remains extremely complicated and admits of ungrounded refusals, the year of 2008 was marked by a number of positive decisions when certain NGOs obtained state registration, including the For Freedom movement. In 2008 Article 193-1 of the Criminal Code providing criminal prosecution for unregistered NGOs was not used so often as it used to be used in 2006 and 2007, its first victim Zmitser Dashkevich having been finally released.

These minor steps were first of all caused by Belarus’ desire to reestablish its relationship with the world community. In this connection the government was forced to avoid violent practice on the domestic level, including brutal repressions against NGOs and restrictions of the freedom of association. However, one cannot speak of any actual compliance with the European standards in the field of interrelations between the state and the civil society. Thus, certain improvements in 2008 are not so far systematic, but rather fragmentary and theoretical. Some of these improvements (registration of several NGOs) can to a certain degree be viewed as signs to be perceived by the EU. Minor positive steps in the filed of actual political decisions are not followed by any liberalization of the legislation on NGOs, or even law enforcement practice in general.

Throughout 2008 there were no considerable changes concerning the legal status of NGOs. In April 2008 a Young Front member Katsiaryna Salauyova was sentenced to a BYR 1,750,000 fine under Article 193-1. Later, two similar cases were terminated – a Young Front member Andrei Tsianiuta in April and two Zhlobin activists (Kiryl Atamanchyk and Arsen Yahorchanka) in May. There were no other registered cases of criminal prosecution under the article in 2008.

Young Front Leader Zmitser Dashkevich, sentenced to imprisonment under Article 193-1 in 2006, was finally released in January 2008. In spite of the inconsistent procedure of his release, it has a major significance: at present there are no convicts sentenced for membership in unregistered NGOs in Belarus.

However, in 2008 the Article was used as a means of intimidation of civil activists, including prosecutor’s warnings of possible criminal prosecution, e.g. in November 2008, when head of the public association For the Free Development of Business Viktar Harbachou was warned by Barysau district prosecutor Uladzimir Shpakouski of possible criminal prosecution for representing an unregistered organization in mass media. On 10 December during a conversation with the prosecutor Mr.Harbachou was once again warned of possible criminal prosecution. The organization For the Free Development of Business applied for registration in 2007, but received a refusal from the Ministry of Justice. The organization was later registered in Ukraine.

Thus, there were not any signs of the state’s willingness to abolish Article 193-1 of the Criminal Code.

The official legal status remains unobtainable to numerous NGOs that have politically active members. Over the period of 10 months of 2008 the Ministry of Justice and its regional offices denied registration to the Belarusian Christian Democrats, the Kaucheh republican voluntary association, the For Freedom movement, the Haryzantal association, the Elders public association, the Center for the Support of Chernobyl Initiatives, as well the Khvarang Youth Taekwondo Youth Club, the League of Fitness Youth Association, the Harps of Aeolus Youth Association, the Bethel Youth Association, the Union of Leftist Parties, the Razam Trade Union of Small-Scale Business and other organizations. In 2008 both Rechytsa district executive committee and Mahiliou city administration refused to register the local offices of the independent Belarusian Trade Union of Radio-Electronic Industry. In August 2008 Hrodna City Department of Justice for a seventh time denied registration to the Belarusian Social-Democratic Hramada’s local office. The organizations that tried to appeal the decision in court (including For Freedom, Haryzantal, the Elders, the BCD) were afterwards turned down by verdicts of courts, which were not critical enough when considering the claims and supported the decisions of the executive bodies.

On 17 October the Ministry of Justice denied registration to the Nasha Pakalenne Public Association of Retired Persons – it was their third refusal over the past two years.

On 23 October the Ministry of Justice denied registration to the Haryzantal Public Association – it was their second failure over the past year.

In November Mahiliou City Executive Committee for a seventh time denied registration to independent Belarusian Trade Union of Radio-Electronic Industry due to ‘the absence of a legal address’, having considered the matter for three months.

In late 2008 the Supreme Court considered at least two claims against decisions by the Ministry of Justice to deny registration to the public associations of the social-ecological Center for the Support of the Chernobyl Initiatives and the social-patriotic union Haryzantal. In both cases the trials were delayed after the Ministry of Justice demanded to make a graphological examination of the founders’ signatures and, despite the fact they appeared in court and confirmed their will to participate in the creation of the above-mentioned organizations. Moreover, in Haryzantal’s case the court initiated a re-examination, even after the first examination confirmed the authenticity of the signatures.

While analyzing the reasons for the numerous decisions to deny registrations, one can arrive at a conclusion that, the accuracy of the application cannot guarantee a positive decision in case there political opponents of the existing regime among the founders of the NGO. It is the opponents of the regime and human rights NGOs for whom the official status still remains an insuperable obstacle.

The registration (after 3 subsequent failures) of the For Freedom movement on 17 December 2008 was one of the few positive moves in 2008. So was the registration of the Belarusian People’s Front Homel regional office on 18 December 2008, after numerous negative decisions throughout the year.

After the registration of the For Freedom movement, a number of organizations that used to be denied legal status, reaffirmed their willingness to rejoin the legal system of Belarus, including the Assembly of NGOs Asambleya (denied registration in 2003), the Party of Liberty and Progress (three times denied registration), the Human Rights Center Viasna (illegally liquidated in 2003 and denied registration in 2007), the public association For Free Business Development (denied registration in 2007), Belarusian Christian Democracy (denied registration for two times).

In total, in November 2008 there were 69 newly registered public associations (4 international, 12 republican and 53 local Pas), 9 new foundations (3 international and 6 local), 2 new public association unions, including the Kaucheh Voluntary Public Association (denied registration in spring 2008), the International Ecological Public Association ‘Nature and Us’, the Public Association ‘The Club of BATE Football Fan Club’, the Charitable Public Association ‘Drop of Life’, the Republican Public Association of the Azarychy Fascist Death Camp victims, the Skala Charitable Public Association, the Republican Public Association of Person-Oriented Psychiatrists, the International Public Association ‘Center for Support of Sportsmen Grand’, the International Public Association ‘Knights of Outremer’, the Belarusian Public Association of Teachers of Russian Language and Literature, the International Charitable Children’s Foundation Chance, the International Alferov Foundation for Support of Education and Science, the International Foundation for Development of Rural Territories and others. In May 2008 Minsk City Department of Justice registered the Public Association for Comparative and Legal Research, founded by ex-members of the Center of Constitutionalism and Comparative and Legal Research, liquidated in 2005. Over 10 months of 2008 the Ministry of Justice registered 27 new offices of political parties, 754 offices of trade unions, 7628 offices of public associations. In general, the statistics are close to the number of active NGOs in 2007, but are higher than those of 2005 and 2006.

As for the violent liquidations of Belarusian NGOs and parties by decrees of the court, in 2008 the Belarusian authorities stopped the practice. In February 2008 the Ministry of Justice withdrew a claim against the Belarusian Party of Communists, lodged with the Supreme Court on 4 January 2008 after the party was accused of maintaining political activity (formation of new offices and participation in international conferences) following an earlier decision by the Supreme Court to suspend its activity for 6 months.

In February 2008 the Ministry of Justice withdrew its claim against the Belarusian Helsinki Committee, lodged on suspicion of tax violations. However, the organization was not relieved of the tax sanctions and is due to pay over BYR 180,000,000 to the state budget for the violations allegedly committed during the implementation of a project financed in the framework of the European Commission program in 2002-2003. Due to the sanctions, the Belarusian Helsinki Committee is deprived of a right to use its bank account, with donations being confiscated by the state.

There was only one recorded fact of an NGO being liquidated in 2008 due to financial scandals within the organization: the Ministry of Justice, following a claim by one of its co-founders carried out an inspection of the Charity to Children public association. As a result the Ministry of Justice lodged a claim with the Supreme Court to initiate liquidation of the organization.

Several NGOs and political parties were inspected by the Ministry of Justice after their leaders and members participated in mass actions (meetings, demonstrations etc.). The Belarusian Party of Communists, BPF and the United Civil Party were asked to provide explanations concerning the participations of their members in the 10 January 2008 entrepreneurs protest action in Minsk. However, after the explanations were provided, the issue was settled, with no negative consequences for the above-mentioned organizations. At the same time, shortly after the 10 January action, the Ministry of Justice lodged a claim with the Supreme Court against the Republican Public Association ‘Perspektyva’, which engages in protecting the rights of small businessmen. However, the claim was later withdrawn. Later, following a similar procedure, the Ministry of Justice asked for explanations concerning the participations of some of the members of the above-mentioned parties and NGOs in the 28 September 2008 action.

Thus, in 2008 the Ministry of Justice and courts were far from using liquidation as the most brutal sanction against NGOs and political parties. Moreover, the number of less violent sanctions – written warnings – was also decreased, as compared with the previous years. In April 2008 the Ministry of Justice warned the Public Association BPF Adradzhennie on accusation that its Hrodna regional office did not have a legal address. The organization’s attempt to appeal the decision was not a success, and on 6 May 2008 the Ministry of Justice resolved to deny registration to its Hrodna regional office, without a decision by the Supreme Court. In February 2008 the Supreme Court turned down a claim by the Conservative Christian Party BPF against a written warning served by the Ministry of Justice after the party released a statement to state officials, education departments, judicial bodies etc. entitled ‘Assimilation is a crime against humanity’ (at the same time, the Court refused to initiate a linguistic examination of the statement – the Ministry of Justice claimed that it contained brutal slanderous accusations against the national policy of the Russian Federation). In January 2008 the Ministry of Justice issued another warning to the Agrarian Party.

The Ministry of Justice continued the practice of exercising close control over Belarusian NGOs. Over the first ten months of 2008 the Ministry of Justice inspected 41 republican NGOs, which is less when compared with the previous years. According to the information provided by the Ministry, the exposed flaws were corrected ‘in the course of work’ and resulted in no sanctions. The Ministry’s interest towards political parties was especially intensified during the 2008 parliamentary election. The Ministry held inspections of every party running a candidate in the election. Many of them were extraordinary and brutally violated the existing legislative procedures.

NGOs were also actively inspected by tax inspections and other state bodies of control. In July 2008 the tax inspection examined the assets of the BPF Party. In August the party’s central office was visited by fire inspection. A month later the office was visited by a representative of the Ministry of Justice. There were also recorded facts of inspections of human rights NGOs – the Republican Public Association ‘Legal Initiative’ and the Belarusian Helsinki Committee (the latter was not accused of any tax violations). It should be observed that the tax department also inspected a number of organizations that had not been active for a long period of time: the Public Association ‘Belarusian Foundation Kasiapeya’ (closed down in 2003) and the Belarusian Euroatlantic Association (liquidated 10 years ago).

On 19 December 2008 the President issued a decree #689 ‘On Certain Measures to Improve Control and Inspection Activity in the Republic of Belarus, which provided for a 6-months suspension of all inspections. It may be a step towards the decrease of control over Belarusian NGOs and political parties.

Apart from official inspections, the authorities interfered in the work of NGOs, using illegal means of control. On 18 November 2008, before the For Freedom movement was granted registration, its central office was visited by the police and court executors. They levied distress on the property of the organization, referring to a court decision awarded to the previous owner of the premises. In March 2008 the police carried out an illegal search of the office of a number of local NGOs and confiscated printed materials.

The Belarusian authorities did not fulfill any of the decisions by the UN Human Rights Committee, naming mass liquidations and refusals to grant registrations to Belarusian NGOs as groundless violations of the International Covenant on Civil and Political Rights. As yet, there are three decisions by the Committee concerning violations of the freedom of association in Belarus: the Helsinki-XXI Human Rights Association, liquidated in 2001; The Homel Regional Public Association ‘Public Initiatives, liquidated in 2003; the Public Association Human Rights Center Viasna, liquidated in 2003. In October 2008 Uladzimer Katsora, member of the liquidated Public Initiatives Association, addressed the Constitutional Court with a demand to fulfill the decision by the UN Human Rights Committee and re-register the NGO. Similar appeals were sent to the Ministry of Foreign Affairs and the Ministry of Justice. However they were turned down.

In May 2008 the Supreme Court considered a claim by Ales Bialiatski, Valiantsin Stefanovich and Uladzimer Labkovich against the decision by the Supreme Court of 27 October 2007, which reaffirmed the verdict of the Ministry of Justice to deny registration to the Public Human Rights Association Viasna. The organization was co-founded by ex-members of the Human Rights Center Viasna, closed down by a court decision in 2003. However, the Supreme Court turned down the claim.

At present, the Belarusian authorities knowingly refuse to fulfill the decisions by the UN Human Rights Committee, which is now considering a number of claims from other Belarusian NGOs, closed down by the government.

In April 2008 several decrees by the President lifted rent benefits for non-governmental organizations. As a result, hundreds of NGOs had to pay an extremely high rent, since the Belarusian legislation requires that an NGO cannot obtain a legal address without an office. The authorities started giving privileges to certain, mainly pro-governmental, organizations. The decision by the President put a number of NGOs on the verge of bankruptcy.

In December 2008 head of the Public Association Human Rights Center Raisa Mikhailouskaya announced a possible termination of the organization’s activity due to a multiple rent increase (from 109 to 480 Euro per month). In December 2008 the Society for the Protection of Historical and Cultural Monuments was evicted from its office after it failed to pay the new rent. Many NGOs say the increased rent is a heavy burden for their activity, including the Belarusian Language Society, the Belarusian Association of Legal Advisers, the Belarusian Union of Businessmen, the Belarusian Society of Valuers, the Belarusian Association of Journalists, the Belarusian Culture Foundation.

The special state body, responsible for defining rent rates – the Republican Commission for the Optimization of the Use of Administrative Buildings, Industrial Premises and Other State Property – granted rent benefits to all the pro-governmental political parties of Belarus. At the same time all the opposition parties and many NGOs were denied benefits, including the Public Association BPF Adradzhennie, the Belarusian Language Society and others. Only a few NGOs were able to regain rent benefits, including the Public Association ‘ABC of Business’ and the Belarusian Congress of Pro-Democratic Trade Unions.

In August 2008 the housing department of Minsk Savetski Borough threatened to cancel the contract with the BPF party. On 4 December 2008 the Minsk Regional Disabled Center was forced to leave its office after its rent contract was canceled by the local authorities.

Throughout 2008 there were numerous facts of harassment and administrative prosecution for conducting constituent assemblies. On 29 December Kletsk District Court fined the local activist Siarhei Panamarou BYR 1,050,000 for conducting a meeting of the founders of the Belarusian Voluntary Society for the Protection of Historical and Cultural Monuments on 7 December.

At the same time, the authorities kept turning down applications by civil activists and NGOs to hold mass actions, aimed at the implementation of their constituent activity. For example, the authorities turned down an application by member of the Belarusian Helsinki Committee Pavel Levinau to hold a picket commemorating the 60th anniversary of the Universal Declaration of Human Rights on 10 December 2008. In October 2008 the authorities did not provide premises to the BPF party to hold a meeting commemorating the 20th anniversary of the foundation of the party. Minsk city authorities banned the ‘Belarusian Books to Children’ action on 1 November 2008.

When analyzing the impact of the foreign policy aspect on the domestic Belarusian policy in the field of the freedom of association and NGOs, we cannot but mention the resolutions by the European Union. The 2006 document ‘What can the EU give to Belarus?’ names respect for the freedom of association as one of the key conditions to be implemented by the Belarusian government for the sake of Belarus-EU dialogue. The statement showed the significance of the issue for European partners.

In 2008 the condition was developed in new European resolutions, which named several criteria for the evaluation of possible changes in Belarus. The European Parliament resolution of 9 October 2008 called the Belarusian government to relieve obstacles for the creation and work of NGOs (Article 8, part C), as well as abolish criminal prosecution for the activity on behalf of an unregistered public associations, foundations, religious organizations and political parties by lifting Article 193-1 of the Criminal Code (Article 8, part A). The adoption of the resolution and the 6-month period allocated for its implementation was an important move towards actual evaluation of changes inside Belarus. Belarusian NGOs welcomed the demands by the European structures and worked out their own treatment of possible actions to implement the resolution, by making it more precise. The following steps were considered as the most significant for the Belarusian civil community:

1. The abolition of Article 193-1 of the Criminal Code, providing for criminal prosecution for the activity on behalf of an unregistered public association, political party, religious organization or foundation. It would not be sufficient to abolish the use of the Article de facto, for criminal prosecution for the activity of public associations itself puts the Belarusian civil society at risk. The abolition of criminal prosecution for the activity of unregistered initiatives and groups also requires adequate changes to the ‘Law on Public Associations’, the ‘Law on Political Parties’ and other acts of the Belarusian legislation, which provide for restrictions for the activity of unregistered groups.
2. The abolition of the practice of arbitrary refusals to grant registration to public associations and political parties, created by the opponents of the existing regime. IN particular, the registration of the organizations which have been many times denied registration due to legally groundless reasons: the Public Association ‘Human Rights Center Viasna’, the Social and Patriotic Public Association ‘Haryzantal’, the Social Public Association ‘Belarusian Christian Democracy’ etc. Such associations and coalitions of political parties, as the Union of the Leftist Parties, should have opportunities to obtain registration, as well as their local structures.
3. 3. The implementation of the decisions by the UN Human Rights Committee concerning the facts of illegal restrictions of the freedom of association by the Belarusian government. The competence of the body to consider the facts of human rights violations in Belarus is acknowledged by the Belarusian authorities, but so far its decisions on concrete cases have not been fulfilled by the Belarusian government. In particular, the case of the illegal liquidation of the Public Association Human Rights Center Viasna and the Homel Regional Public Association Civil Initiatives. The rehabilitation of the rights of their members may be accomplished in two ways: through reviewing the previously awarded judgments to close down the associations or through their re-registration as new organizations.
4. The abolition of the ban on the use of private apartments as the legal address by no-profit organizations (public associations, political parties, foundations etc.), in case the apartments are the property of the founders of these organizations. At present the ban is realized under Article 272 of the Civil Code and Article 8 of the Housing Code. The abolition of the ban may be accomplished through the adoption of a separate legal act, similar to the President’s Decree #29 of 17 December 2002, which determined the legality of using legal addresses.
5. The legal provision of rent benefits for public associations, political parties, trade unions.
6. The abolition of the practice of interfering in the process of creating public associations, namely their constituent assemblies.

The above-stated points proposed by the Assembly of Pro-Democratic NGOs, were mentioned in the statement ‘The Priorities of the United Pro-Democratic Forces of Belarus concerning the Reform of the Legislation for the sake Democratization of the Situation in the Country within the Nearest 6 Months’, which was approved by a collective meeting of representatives of political parties and public associations of Belarus on 20 October 2008.

At the same time, it should be observed that the abolition of criminal prosecution for the activities of public associations is the basic condition – this opinion is conventionally coordinated by a majority of Belarusian human rights activists during a conference ‘193-1: the Current Situation and the Ways of Overcoming its Sequences’ on 29-30 May 2008 in Vilnius. The conference was attended by representatives of the Assembly of Pro-Democratic NGOs, leading human rights organizations of Belarus (the Human Rights Center Viasna, the Belarusian Helsinki Committee, the Legal Initiative, the Mahiliou Human Rights Center, the For Freedom Movement, the Foundation for the Development of Legal Technologies, the Human Rights Alliance, the Legal Assistance to Citizens) and other concerned organizations, as well as a representative of the Swedish Initiative for Democracy and Human Rights.

It is obvious that the clearly stated propositions by the European authorities affected Belarus’ attitude towards the issue of the implementation of the freedom of association. However, the government have not yet introduced any changes in to the legislation, which would inevitably and systematically reform the situation in the field of NGOs, independent of the current political regime.