May 13, 2009

The following proposals are provided in an effort to cooperate with efforts to improve the federal law regulating nongovernmental organizations (NGOs) and to ensure the full enjoyment of the right to freedom of association. Russian law regulating and providing for the right to freedom of association is comprised of universally recognized principles and norms of international law, international treaties to which the Russian Federation is a party, the Constitution of the Russian Federation, federal laws of the Russian Federation, as well as regulations adopted by the Russian government and its agencies. 

We would like to draw your attention to the Fundamental Principles on the Status of Non-governmental Organisations in Europe (the Fundamental Principles), which are consistent with the requirements of international law, and which elaborate on the rights and responsibilities of NGOs. The Fundamental Principles were developed at several multilateral meetings held by the Council of Europe, and represent a collection of the Council of Europe's best practices. The Fundamental Principles should serve as guidelines for reforming both state law and regulations. We would also like to turn your attention to the Council of Europe's bodies that provide assistance in bringing national legislation into line with the European Convention on Human Rights (ECHR) by request of member states, and in particular, the European Commission for Democracy through Law (known as the Venice Commission), which provides expertise in areas of constitutional rights.

The following proposals and comments are based on these fundamental standards and principles.

Universally recognized principles and norms

In our opinion, the current Russian administrative regulations are contradictory, cumbersome, and inconsistent with international principles and norms. Therefore, we propose codifying legal norms which regulate the activities of NGOs and public associations operating without registration. The right to freedom of association; state guarantees of this right; the status of newly created organizations; and the procedure of their creation, activity, reorganization, and liquidation should all be regulated by universally recognized principles and norms of the international law, the international treaties to which the Russian Federation is a party--including the International Convent on Civil and Political Rights--the Civil Code of the Russian Federation, and codified legislation.

The European Convention on Human Rights allows a state's interference[1] in an organization's right to freedom of association only if:

  • it is provided for by law;
  • it is necessary for a democratic society;
  • in the interests of national security or public safety;
  • for the prevention of disorder or crime;
  • or for the protection of health or morals, or the protection of the rights or freedoms of others.

Therefore, the NGO law and its interpretation and implementation should be based on the following principles:

  • Principle of lawfulness: The actions and decisions of government officials must be lawful, well-grounded, and made in strict accordance with international norms and federal legislation of the Russian Federation. A violation of the law can result in a declaration, in accordance with the procedures established by the law, that the authorities' action (or inaction) was unlawful and groundless. In such a case, authorized officials should be brought to justice according to the procedures established by the law, and for victims of unlawful actions, a procedure for restoring their rights should be provided for.
  • Principle of non-interference: Government officials should not interfere in the activity of NGOs, except in cases directly provided for by the law.
  • Presumption of good faith: An organization is considered to be functioning in good faith until proven otherwise by the appropriate decision of the authorized official. The goal of government officials is cooperation with NGOs in their work, cooperation in realizing the right to freedom of association, assisting organizations in their activities, eliminating shortcomings in their operation, and preventing the infringement of the law.
  • Principle that government actions be transparent, easy to understand, and predictable: The actions and decisions of government officials and agencies with regard to NGOs should be clearly stipulated by the law, well-grounded, and easy to understand. For the benefit of transparency, citizens should have easy access to information about plans and procedures, as well as reports by the government bodies.

Creation, registration and reorganization

The Fundamental Principles state that the process for registering a legal entity should be simple to understand and carried out and formulated objectively, and that application of registration rules should not be left to the discretion of officials. The existing registration regime and rules, which can be interpreted excessively broadly and subjectively, contradict these principles; as, for example, an organization may be refused registration if its founding documents contradict the constitution or laws of the Russian Federation, or the documents are prepared in an "inappropriate manner." In our opinion, registration must be presumptive, barring exceptional circumstances. Therefore, we propose the following:

  1. Incorporate into law the internationally accepted term "nongovernmental organization" (NGO).
  2. Incorporate into law and provide definitions to the following concepts: address (location) of a permanently functioning body of the NGO; address for correspondence (or postal address); location of the NGO's property; address of activity; and establish that all correspondence to the NGO be sent to its postal address.
  3. Define in the law the following concepts: "volunteer"; "territory of the activity of an NGO"; "enlightening activity"; unify in the legislation the meaning of the term "grant."
  4. Provide for the fact that an NGO may, at any time from the moment of its formation, submit documents for registration as a legal entity.
  5. Make the registration procedure for NGOs equivalent to that of commercial organizations. Legally establish the registration procedure for NGOs as one of notification.
  6. If the registration procedure for NGOs is one of authorization, establish a clear list of criteria to determine if the NGOs activity is in accordance with the goals of its charter;
  7. Provide for an NGO and its founders to receive information about registration at any time from the date of submission of documents;
  8. The basis for refusing to register an NGO as a legal entity should be in accordance with the principles provided for in the Convention for the Protection of Human Rights and Basic Freedoms and specifically: in the interest of national security; in the interest if public order; with the aim of preventing disorder and crime; to safeguard health and morals; for the protection of the rights and freedoms of others. The list of grounds for refusal should be clear, finite, and not subject to broad interpretation.
  9. Allow for the registration procedure to be suspended for a specific period of time to correct deficiencies in the submitted documents without forfeiting the application fees.
  10. Provide for the right of NGOs to carry out any kind of activity that does not violate the law as well as any entrepreneurial activity not prohibited by law.
  11. Legally allow for the free transformation of NGOs from any organizational-legal form to any other.

Reporting

  1. Create a unified system of reporting for NGOs based on the principle of "a single window" (reporting to only one agency) and "a single date" (reporting only once a year) for annual reporting of NGOs to all state bodies.
  2. NGOs which make available public reports on their activities should be exempt from the requirement to periodically report to state bodies on qualitative and quantitative indicators of their activities.
  3. NGOs should be required to report to state bodies only on issues of compliance with tax regulations or compliance with the conditions of various forms of activities requiring licenses (for example, the possession of a valid license for the provision of medical services).

Inspections

In accordance with the Fundamental Principles, NGO activity should be considered lawful in the absence of any evidence to the contrary; NGOs should not be subjected to the seizure of their documents without an objective basis for such preventative measures and without an appropriate court order. NGOs that are legal entities should enjoy the same capacities as are generally enjoyed by other legal entities. The same obligations and sanctions as well as administrative, civil, and criminal laws should be applied to NGOs as are ordinarily applied to all legal entities.

The current regulations contradict these requirements. Therefore, we recommend the following:

  1. Audits should be conducted with the view that the creation and operation of NGOs is a realization of the constitutional right to the freedom of association. The procedure, bases, timeframes, authority, and responsibilities of those taking part in an audits should be established by federal law. It is unacceptable for the body responsible for conducting audits to also be responsible for adopting regulations on their conduct.
  2. Enact a prohibition on duplicative control and repeated audits. The NGO materials and activity audited by one government body should not duplicate those audited earlier by a different government body.
  3. Establish that it is prohibited to demand documents from an NGO that were already presented to another government body, for example, tax declarations.
  4. Demands for documents should refer to clearly-defined and specific documents, as opposed to broad demands for documents such as all financial documents for 2006 or an accounting ledger.
  5. The formation of audit plans should be based on open, easy to understand, and objective criteria that are defined in federal law.
  6. Audit plans should be freely available.
  7. Unplanned audits should be permissible only in cases when the NGO oversight agency receives complaints from individuals or organizations, or information from other government bodies, local self-government, or the media about harm to the life or health of individuals, animals, plants, the environment, government security, and in cases of natural or man-made disaster, or in cases of the threat of such harm. 
  8. NGOs should be given the opportunity to take part in the drafting of report on the results of an audit (like with tax audits), which must include an account of the objections and remarks of the NGO being audited.
  9. Establish that in cases of substantial violation of an NGO's rights and the procedures for conducting an audit, a final decision on the results of the audit can be declared unlawful and unfounded (as with tax audits). If the time requirement for drafting a report on the results of an audit or for producing the report is violated, the audit should be declared unlawful and the NGO should not be held responsible (as is the case with administrative violations).
  10. Institute an exceptional court procedure for suspending the activity of an NGO.
  11. Institute an exceptional court procedure for bringing NGOs to justice and halting their activity as a legal entity.

Suspensions and suspensions of activity, rulings that organizations are nonfunctioning, and involuntary liquidation

According to the Fundamental Principles, in most cases the appropriate sanction against an NGO will be the requirement to rectify its affairs and/or the imposition of an administrative, civil, or criminal penalty on it and/or any individuals directly responsible. Penalties shall be based on the law in force and observe the principle of proportionality. The current regulations, which allow, for example, liquidation with only two violations of the law, clearly contradict these requirements. Therefore, we propose:

  1. Any decision that restricts the activity of an NGO or results in its suspension should be made only by a court (suspension, involuntary liquidation etc.).
  2. Institute a separate court procedure to review such cases. Currently, cases are "equal" adversarial proceedings, for example, by suit of the prosecutor. There should be a distinct procedure, under which such cases should be treated the same as other cases involving the government and individuals. Review of such cases in the first instance should be under federal jurisdiction. It is also necessary to codify the presumption of innocence of NGOs, and to allow judges to work with NGOs in collecting information, and not restrict it to information provided by the NGO.
  3. The grounds for involuntary liquidation or the suspension of activity should be based on the principles laid out in the European Convention on Human Rights. Forbid involuntary liquidations for "deficiencies," for example, a violation of the required period for convening a general meeting.
  4. Establish a procedure to restore the rights of organizations that were mistakenly or illegally removed from the register, ruled nonfunctioning, or liquidated.

Human Rights Watch

Moscow Helsinki Group

Association AGORA

Youth Human Rights Movement

Human Rights Resource Center

 

[1] By "interference," we mean any actions and decisions of governmental bodies and authorized officials that limit the right to freedom of association, such as the decision to refuse registration of NGOs  (hereinafter we also include public associations in this term), decisions to inspect such organizations, bringing NGOs to justice, decisions to prohibit the activity of organizations, their liquidation, etc.

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