NGOs in Ukraine: overview of the constitutional legislation.

This lecture gives the students the complete overview of the legal regulation of NGOs in Ukraine – what branches of law regulate different aspects of the NGO’s creation and functioning. The biggest part of the lecture is dedicated to the legal analysis of the constitutional legislation on NGOs – as the constitutional law is the key branch of the Ukrainian legislation. Types of acts to be covered: Constitution of Ukraine, Laws of Ukraine, decisions of the Constitutional Court of Ukraine.

Learning outcomes:

By the end of the lecture students should describe the constitutional status of NGOs in Ukraine, including the contemporary situation, problems and perspectives.

Key terms of the topic:

Branch of law	NGOs in constitutional law
Constitutional law	Constitutional status

The term ‘legal status’ is traditionally used to reflect the current status of the physical person / legal person in a certain country. Usually, it is quite difficult do define the legal status as a whole. In order to make the research easier, the scientists divide the legal status to the constitutional status, administrative status, civil status, and so on, according to the branches of law that regulate the certain (branch) aspect of the status of the physical person / legal person in the certain country.

Scientists define the term “legal status” has a wide meaning and a narrow meaning. In a narrow meaning legal status consists of the rights and duties of the physical person / legal person. In a wide meaning the legal status consists of the rights and duties of the physical person / legal person, the legal personality (правосубъектность) including the legal capacity (правоспособность, дееспособность), the guarantees of the rights of the physical person / legal person, the principles of the state’s regulation of the legal status of the physical person / legal person.

Thus, the constitutional status of NGOs consists of:

- the rights and duties of the NGOs,

- the legal personality (правосубъектность) including the legal capacity (правоспособность и дееспособность), that NGOs acquire simultaneously,

- the guarantees of rights of the NGOs,

- the principles of state’s regulation of legal status of NGOs.

All of the elements of the constitutional status of NGOs can be found in the constitutional legislation – in the Constitution and in the several Laws of Ukraine. Bylaws mostly regulate administrative, civil, tax and other statuses of NGOs in Ukraine.

Constitution of Ukraine. The Ukrainian Constitution was created according to the international standards (the relevance of the Articles 36 and 37 of the Ukrainian Constitution to the international standards was discussed during the Lecture 1). Additionally, the texts of the foreign constitutions of many democratic countries were used as the examples. So, the constitutional status of NGOs is based on the best examples and practices in this sphere. Nevertheless, there are some drawbacks in the text of the constitutional norms.

Article 36 states that citizens of Ukraine shall have the right to freedom of association into political parties and public organisations for exercising and protecting their rights and freedoms and for satisfying their political, economic, social, cultural and other interests, with the exception of restrictions established by law in the interests of national security and public order, protection of public health, or protection of rights and freedoms of other persons.

The second part of Article allows the membership in the political parties exclusively to the citizens of Ukraine. There are no such restrictions for the membership in the NGOs.

The third part of Article is dedicated to one more type of the civic associations in Ukraine – to the trade unions. According to the Constitution, citizens shall have the right to take part in trade unions with the purpose of protecting their labour and socio-economical rights and interests. Trade unions shall be public organisations uniting citizens bound by common interests in accordance with the nature of their professional activity. Trade unions shall be formed without prior permission on the basis of the free choice of their members. All trade unions shall have equal rights. Restrictions on membership in trade unions shall be determined exclusively by this Constitution and laws of Ukraine.

Part four of Article 36 states that one may be forced to join any association of citizens or be restricted in his right to belong or not to belong to political parties or public organisations, and part five guarantees that all associations of citizens shall be equal before the law.

Article 37 of the Constitution creates certain limits to the activity of NGOs (public organizations, civil associations). The first part of this Article tells that the foundation and activity of political parties and public associations shall be prohibited if their programme goals or actions are aimed at the liquidation of the independence of Ukraine, change of the constitutional order by force, violation of the sovereignty and territorial indivisibility of the State, undermining national security, unlawful seizure of the state power, the propaganda of war or violence, fomentation of inter-ethnic, racial, or religious enmity, or infringement of human rights and freedoms or the health of the population.

Article 37 also states that political parties and public associations shall not have paramilitary formations; that the prohibition of the activities of associations of citizens shall be possible only through a judicial procedure.

So, Article 37 contains quite a lot of limits to the formation and activity of NGOs in Ukraine. But every independent state in the world has such a right and widely uses it. Ukraine, as an independent state, protects its own state sovereignty and thus prohibits all of the violation of the people’s right for free elections. According to the Constitution of Ukraine, the power in the country can be gained only through fair elections. Otherwise the State favors the development of political and public activities, creative initiative of citizens and provides equal conditions of activity for their associations.

The Constitution creates only the basics of the legal status of NGOs in Ukraine. Articles 36 and 37 are dedicated mostly to the rights and duties, and to some guarantees of the NGOs’ activity. Articles of the Chapter I of the Constitution proclaim the principles of the state’s regulation of the NGOs legal status – principle sovereignty of the people, principle of the support of the civil society, principle of the rule of law, principle of the social state, principle of the priority of the human rights compared to the state’s rights (see Lecture 1 for more detailed description of these and other principles).

The constitutional principles of the state’s regulation of the legal status of NGOs create the basis for the constitutional status of the NGOs, which is detailed in the Ukrainian legislation.

Laws of Ukraine. The constitutional principles of the state’s regulation of the legal status of NGOs and the other norms of the Constitution are the basis for the several laws of Ukraine on NGOs. The most general of them is the Law of Ukraine ‘On Civic Associations’ (1992). This Law is quite an old one, and was amended many times. The main peculiarity of this Law is the following: it was created to regulate two types of the civic associations in Ukraine – political parties and civic organisations (NGOs). But in 2001 the Law of Ukraine “On Political Parties in Ukraine’ was passed. Now about 1/3 of the Law of Ukraine ‘On Civic Associations’ is not amended by Verkhovna Rada, but also is not used to regulate the activity of the political parties.

The Law of Ukraine ‘On Civic Associations’ consists of 6 chapters. Chapter I ‘General Provisions’ partly repeats the Articles 36 and 37 of the Constitution and also gives several essential definitions.

The definition “NGO” is not common for the Ukrainian legislation. The Constitution refers to the “public associations and political parties” and the Law of Ukraine ‘On Civic Associations’ refers to the civic associations and to their types: the political parties and the civic organisations.

A civic association is a voluntary civic union, founded on the basis of common interests for joint realization of the rights and freedoms by the citizens. According to the Law, any civic organization regardless of its name (people's movement, congress, association, foundation, league and so on) is considered to be a political party or a civic organization.

A political party is an association of people who adhere to a certain national program of social development, which have the main purpose of taking part in the development of the state policy, forming the central power bodies, the bodies of local and regional self-governments, obtaining representation in them.

A civic organization is an association of citizens, founded to satisfy and to protect their legitimate social, economic, creative, age, national, cultural, sports and other common interests. In the terms of our course, the civic organizations are the NGOs. This title is widely used in the literature, but very rarely in the legislation. The Ukrainian legislation still refers to the “public associations” or to the “civic organizations”. According to the scholars, the Eurointegration process soon will demand the terminological unification of the legislation about the third sector, and these terms will be harmonized with the one used in the European standards.

Chapter II “Principles of Activities and Status of Civic Associations” is the basic one for defining the constitutional status of NGOs in Ukraine. According to this chapter, the civic associations are founded and run on the basis of voluntarity, equality of all the members (participants), self-government, lawfulness and openness (transparency). They are free to choose the directions of their activities. The activities of civic associations can be limited only by the Ukrainian Constitution and laws. All the main issues of the civic association activities must be settled at meetings of all members of a civic association or their representatives. Civic associations must publish regularly their main documents, information on the composition of their governing bodies, sources of finance and expenditures.

Prohibition to restrict the rights and freedoms of citizens depending on their belonging or not belonging to civic associations. Nobody can be forced to join any civic association. Belonging or not belonging to an association can not be a ground for the restriction of rights and freedoms or for any privileges and advantages given by the State. It is not allowed to require mentioning the membership (participation) of a person of a civic association in the official documents, except for the cases determined in the Ukrainian laws. The civic associations’ officials are subject to labor, social security and social insurance legislation.

Article 8 defines the relationships between the State and civic associations. According to this Article:

- State guarantees the observance of rights and legal interests of the civic associations, legalized in the order provided by this Law;

- interference of the state bodies and officials to the civic association activities as well as interference of public associations to the state bodies and officials activities and the activities of the other civic associations is not allowed, except for the cases provided by this Law;

- Parliament defines tax preferences for some kinds of economic or other commercial activities of civic associations, their establishments, organizations and enterprises founded by them. It also defines the maximum amounts of special and general annual donations for political parties, approves the list of the all-Ukrainian civic associations, which have some pecuniary aid from the State.

Article 9 creates three different statuses of the civic associations in Ukraine. This Article is heavily criticized for having contradictions with the international standards of the NGOs, and possibly soon it will be amended. According to Article 9, civic associations are founded and act, having either all-Ukrainian, local or international status.

A civic association itself determines the territory of its activities. All-Ukrainian civic associations are associations, whose activities extend to the whole territory of Ukraine and which have local centers in the majority of its regions (oblasts). Local associations are associations, whose activities extend to the territory of a corresponding administrative-and-territorial unit or region. A civic organization has an international status if its activities extend to the territory of Ukraine and at least one other state.

Chapter III of the Law of Ukraine ‘On Civic Associations’ is called “Procedures for Making and Suspending the Activities of Civic Associations”. According to Article 11, all citizens of Ukraine, citizens the other countries, people without citizenship, who attained to the age of 18, can set up civic organizations. The founders of youth and children civic organizations should be at least 15 years of age. The decision to form a civic association is made by a constituent congress (conference) or by a general meeting.

Article is dedicated to the membership in civic associations. Any person of at least 14 years of age can be a member of any civic associations, except for the youth and children organizations. The age of youth and children civic associations’ members is determined by their statutes. Civic organizations can have no fixed individual membership. Civic associations can have collective members, if it is determined by their statutes.

All other Articles of the Chapter III contain mostly the norms which are important for the definition of the administrative, not the constitutional status of the NGOs: on the statute (regulations) of civic associations (Article 13), on the legalization of civic associations (Article 14), on the registration of civic associations (Article 15) and the denial of registration (Article 16), on the notification of foundation (Article 17), on the symbols of civic associations (Article 18) and on the suspending of activities of a civic association (Article 19).

The constitutional legal capacity (правоспособность и дееспособность ) of NGOs start simultaneously on the date of the NGO’s legalization. The legalization through the notification gives NGOs less wide legal capacity. In order to maximize the legal capacity, the NGO should be registered as a legal person.

The rights and duties as the element of the constitutional status of NGOs are listed in the Articles of the Chapter IV “Rights, Economic and Other Commercial Activities of Civic Associations’. In order to use the following rights, NGOs should be registered according to this Law and bylaws of Ukraine.

Registered civic associations have the right to fulfill the following tasks:

- participate in civil legal relations, to acquire property and non-property rights;

- present and defend their lawful interests and legal interests of their members (participants) in state and civil bodies;

- take part in political activities, to conduct public mass actions (meetings, rallies, demonstrations and so on);

- give ideological, organizational, material support to other public associations, to promote their formation;

- found establishments and organizations;

- obtain information, necessary to realize their purposes and tasks, from the state authorities and local self-government bodies;

- make proposals to the state and administration authorities;

- spread information and to popularize their ideas and purposes;

- found mass media;

- found enterprises, necessary to realize their tasks;

- other rights provided by the Ukrainian laws.

Articles 21 – 24 deal with the property and entrepreneurship rights of NGOs that is closer to their civil status, not the constitutional one. For the constitutional status of NGOs it is important that:

- civic associations can have assets and other property, necessary to carry out their statute activities;

- civic associations get the right of property over the assets and other belongings, transferred to them by their founders, members (participants) or the State, acquired from entrance fees and membership dues, donations of citizens, enterprises, institutions and organizations. Civic associations also have belongings acquired at their own expense or by other means, not prohibited by law. Political parties also have the right on property, acquired from sale of public-and-political literature, other agitation and propaganda materials, goods with their symbols, from conducting of festivals, exhibitions, lectures and other political actions;

- to realize their tasks and purposes, the registered civic associations can carry out necessary economic and other commercial activities by making of self-financing organizations and institutions with a status of legal entity and by founding of enterprises in the order determined by laws;

- civic organizations have the right on property and assets, acquired from economic and other commercial activities of self-financing establishments, organizations and enterprises, founded by them;

- property right of civic associations is realized by their higher statute bodies (general meetings, conferences, congresses etc.) in the order, determined by the Ukrainian laws and their statute documents.

The liability of NGOs is regulated by the Chapter V “Supervision and Control over the Activities of Civic Associations. Responsibility for Breaking of Laws”.

According to this chapter, there are several fields of the state supervision and control over the NGOs. The supervision over the observance of laws by civic associations is exercised by the Public Prosecutor's offices. Sources and volume of financing, tax payments of civic associations are under control of the financial bodies and tax inspection.

If NGO breaks the law, 5 types of penalties may be applied:

- warning (if the felony is not very serious, the registration body should give a warning in a written form);

- fine (if an NGO has broken the law in a gross or systematic form, a registration body or a Public Prosecutor can fine a civic association in court);

- temporary prohibition (suspending) of some kinds of activities or the whole activities of a civic association (on the appeal of a registration body or a Public Prosecutor the court can temporarily prohibit some kinds of activities or the whole activities of a civic association for a period of 3 months in order to stop the illegal activities of a civic association. Temporary prohibition of some kinds of a civic association activities can be exercised by prohibition of mass actions (meetings, rallies, demonstrations and so on), of publishing, conducting banking and financial operations and so on. A body that applied to the court to stop a civic association activity can ask to prolong the term. But the general period of temporary prohibition should not exceed 6 months. The court can renew civic association's activities in full scope if a public association has eliminated the reasons of the temporary prohibition and if a public association has applied for the renewal);

- compulsory dissolution (closing down) - on appeal of a registration body or a Public Prosecutor the court dissolve (close down) a public association in the following cases: 1) commitment of actions, specified in Article 4 of the present Law; 2) systematic or gross violation of Article 22 of the present Law; 3) conducting illegal activities after infliction of penalties provided by the present Law; 4) reduction of political organization members number up to a number when such an organization can not exist. A court simultaneously decides on the closing if a printed media organ of an association that is compulsory dissolved. Only the Constitutional Court of Ukraine can deliver a judgment to dissolve all-Ukrainian and international civic associations on the territory of Ukraine.

The Law of Ukraine ‘On Civic Associations’ (1992) was introduced after Ukraine gained its independence. Yet, this Law demonstrates Soviet, not the democratical approach to the legal (including constitutional) regulation on NGOs. The Law does not pertain to religious, co-operative societies and civic associations with the general purpose to gain profit, to commercial funds, bodies of local and regional self-government (including councils and committees of micro-districts, house, street, blocks, village, settlement committees), voluntary formations, such as public order squads, comrades' courts, other civic associations, which are founded and act according to the corresponding laws. The activities of the trade unions are determined by the Ukrainian Trade Unions Law.

The Soviet approach to the legal (including constitutional) regulation on NGOs is characterized by the essential number of laws, each of which regulates the certain type of the NGOs. It leads to the even bigger number of bylaws and makes NGOs less active in deciding the questions of their inner organization and functioning, economical and commercial activity, membership and many others. The democratical approach supposes that only the most essential details of the NGOs’ formation and functioning are regulated by the state bodies. All other problems are solved by NGOs themselves using their own resources in order to make their functioning less formalized and regulated. The democratical approach corresponds with the international standards of the civil society’s regulation and with its main principle “the less the civil society institutions are regulated by the state – the better’.

The Soviet approach is still used in Ukraine. Since the beginning of 2011 in Verkhovna Rada there are 2 main drafts of laws on NGOs lobbied by the civil society institutions: the Law of Ukraine “On Civic Associations” and the Law of Ukraine “On Charitable Activity”. Unfortunately, these two drafts continue the Soviet tradition – to regulate each type of the NGO by the separate law and numerous bylaws. Yet, the legislation about both civic associations and charitable NGOs is in such a regressive situation in Ukraine, that the lobbyists pay no attention to this old approach – they want at least to modify the old legal norms into the modern ones.

One more important source of the constitutional regulation of NGOs in Ukraine is the decisions of the Constitutional Court of Ukraine. The final parts of these decisions are considered to be de facto precedents.

Currently there are 3 decisions of the Constitutional Court of Ukraine related to the NGOs:

- Decision of the Constitutional Court of Ukraine no. 11-rp/2000 (October, 18, 2000) on the constitutionality of Articles 8, 11, 16 of the Law of Ukraine “On Trade Unions, Their Rights and Guarantees of Their Activities” (case on freedom of organization of trade unions);

- Decision of the Constitutional Court of Ukraine #18-rp/2001 (December, 13, 2001) on the compliance with the Constitution of Ukraine Article 2.4, Article 6.2, Article 10.1, and Article 10.2 of the Law of Ukraine "On youth and children non-government organizations" (case on youth organizations);

- Decision of the Constitutional Court of Ukraine no. 2-rp/2007 (June 12, 2007) on the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Articles 10.1, 11.2.3, 11.5, 11.6, 15, 17.1, 24, and item 3 Chapter VI " Final Provisions” of the Law of Ukraine "On political parties in Ukraine" (case on establishing political parties in Ukraine).

The trade unions and the youth organizations are NGOs without any doubts, according to all of the approaches and classifications. It is the discussion, though, whether the political parties are the NGOs. But anyway, the decision on case on establishing political parties in Ukraine is essential, as it might be used on the analogy.

Decision of the Constitutional Court of Ukraine no. 11-rp/2000 (October, 18, 2000) on the constitutionality of Articles 8, 11, 16 of the Law of Ukraine “On Trade Unions, Their Rights and Guarantees of Their Activities” (case on freedom of organization of trade unions). Subjects of the right to constitutional question – people’s deputies of Ukraine and the Ombudsman of the Verkhovna Rada of Ukraine – consider that the Articles 11 and 16 of the Law conflict with the provisions of part three of Article 36 of the Constitution of Ukraine on creation of trade unions without any preliminary permission and in accordance with free choice of its members.

Beside, people’s deputies of Ukraine refer to that Article 11 of the Law, stipulating the status of trade unions and Article 8 stipulating the status of association of trade unions conflict with Article 22 of the Constitution of Ukraine, since they deteriorate existing status of trade unions and their associations due to the necessity of confirmation of their statuses during the legalization.

The Constitutional Court of Ukraine while considering the case on formal construction of the notion “trade union, which carries out its activities at an enterprise, institution, organization” used in paragraph six part one of Article 43-1 of the Labor Code of Ukraine (the case of trade union, which carries out its activities at an enterprise), laid down the following legal viewpoint: “The Constitution of Ukraine does not contain limitations applicable to creation of trade unions by citizens, who are employed at a one enterprise, institution, organization” and established, in particular, that as follows from Article 36.3 of the Constitution of Ukraine “all trade unions, which were created and carry out their activities in according with their charters at enterprises, institutions, organizations, enjoy equal rights to secure labor and social rights of their members provided by the Constitution of Ukraine”.

Moreover, provisions of Article 11 of the Law, which disable creation of an independent trade union at an enterprise, institution or organization without observing the conditions stipulated by part two of this Article, leveled the right of citizens to create independent trade union at enterprise, institution or organization provided by the Constitution of Ukraine, which violate Article 22.2. of the Constitution of Ukraine securing the constitutional rights and liberties and impossibility of their cancellation.

The Constitutional Court of Ukraine at the assumption of that the right of citizens of Ukraine to freedom of association in public organizations in accordance with Article 36 of the Constitution of Ukraine including a constitutional right to create trade union may not be restricted, by either law or in practice, by the requirements concerning realization of the above right, which exclude a possibility to create a trade union as such if those conditions (requirements) cannot be objectively met, i.e. there exist a partial prohibition of realization of the right of citizens to be associated in an appropriate trade union. In the given case, the Constitutional Court of Ukraine traces unconstitutional restriction of the right of citizens to freedom of association in that this right cannot be realized by free association in another trade union of the equal status on the basis of one and the same profession or specialty in certain regions, cities of Kyiv and Sevastopol, if there exists a similar trade union, which has united a majority of the union members employed in this profession or specialty in regions, cities of Kyiv and Sevastopol.

Provision of a registration (with obtaining the legal entity status) as the only method of legalization puts obstacles in the way of realization of the right to create trade unions “based on free choice of their members” (Article 36.3 of the Constitution of Ukraine), since citizens may see the necessity in association for the purpose of securing their labor and social and economic rights in such trade union (not numerous by the quantity of its members, as a rule), which not necessarily has to have the legal entity status.

Consequently, the registration in accordance with the procedures as provided in Article 16 of the Law, even if not being a stage in creation of a trade union, still in fact means obtaining a preliminary permission to carry out its activities. The permission to carry out the activities attributable to a trade union may be obtained by an organization only after having been registered, which, in fact, is equal to the requirement to obtain the preliminary permission. This is a restriction of the right of citizens to create trade unions preliminary permission but solely in accordance with free choice of their members, as provided in Article 36.3. of the Constitution of Ukraine.

The Constitution of Ukraine has concluded that the provisions of Article 16 establishing the condition of legalization of trade unions, which in fact bind the commencement of activities of an organization created as a trade union for securing and protection of interests of employees with the time of its registration by appropriate bodies, which is equal to the requirement of obtaining a preliminary permission to create a trade union, are incompliant with Article 36.3 of the Constitution of Ukraine.

The Constitutional Court of Ukraine recognizes the constitutional invalidity of provisions of Article 11 of the Law of Ukraine “On Trade Unions, Their Rights and Guarantees of Their Activities” (hereinafter – “the Law”), which restricts the right of citizens to freedom of association, including:

- provision that make impossible creation of an independent trade union at an individual enterprise, institution or organization without meeting the conditions envisioned by part two of Article 11;

- provision, which establishes the quantitative criterion – “majority” – for the purpose of association of a trade union members in the trade union with an appropriate status;

- provision, that establishes the minimal quantity – “at least one third” – for association of members of a branch trade union or profession or specialty trade union in a trade union with the all-Ukrainian status (2.11.5).

2. Recognizes the constitutional invalidity of provisions of Article 16 of the Law in the part, which established such conditions of legalization of a trade union, that in fact chain the commencement of activities of the trade union with the time of its registration by appropriate bodies and, which is equal to requirement of availability of a preliminary permission in order to create a trade union.

3. Recognizes the compliance with the Constitution of Ukraine provisions of Articles 8, 11, 16 (except for the provisions of Articles 11 and 16 which were recognized invalid) of the Law.

Decision of the Constitutional Court of Ukraine #18-rp/2001 (December, 13, 2001) on the compliance with the Constitution of Ukraine Article 2.4, Article 6.2, Article 10.1, and Article 10.2 of the Law of Ukraine "On youth and children non-government organizations" (case on youth organizations). According to this Decision, the right to freedom of association is one of the main political rights of the citizens, principle of diversification of the social life provides the foundation for determination of the bases for exercising the constitutional rights and establishment of the civil society institutions.

Article 1 of the Constitution of Ukraine has proclaimed Ukraine democratic, social, constitutional state. The social state shall provide for development and support of the member society, public institutions, including the same through the target spending of the costs "for social needs" (Article 95.2 of the Constitution of Ukraine). The responsibility of the constitutional state is non-interference into the citizens exercising the right to freedom of association, and in the activity of such associations.

The provisions contained in Article 2.4 of the Law which determine the specific union which joins the majority of youth and children non-government organizations, violate the constitutional principles of diversification of the public life, as it assigns the exclusive monopoly status to one of the relevant civic associations.

Legislative provision for association of the majority of the legalized youth and children non-government organizations fails to comply with the constitutional provisions on freedom of association. Association of the majority of such organizations shall be performed outside of the state regulation exclusively on a basis of free declaration of intent by the members of such non-government organizations.

Article 6.2 of the Law stipulates that the youth movement in Ukraine is coordinated by the Ukrainian National Committee of Youth Organizations (UNCYO), that enjoys a status of all-Ukrainian union of youth and children non-government organizations. The state has assigned UNCYO the youth movement coordinator in Ukraine and established the statutory objects of their civic associations (unions of such associations), that contradicts the principle of diversification of the public life and violates the right to freedom of associations, in particular the possibility of free determination of the valid objects for their organizations and methods of activity by the participants of civic associations according to Article 36.1 of the Constitution of Ukraine.

Articles 10.1 and 10.2 of the Law provide for financial support for activities of youth and children non-government organizations at the expense of the state budget of Ukraine and receipt of financial support from the state only by the "unions, whose members are the majority of the registered all-Ukrainian youth and children non-government organizations".

In Article 10 of the Law, the right to receive financial support is given to one union of youth and children non-government organizations that violates the right of the citizens to freedom of association, as those association of citizens, which do not belong to the union which joins the majority of the registered youth and children non-government organizations, are restricted in the right to receive financial support.

The Constitutional Court of Ukraine conclusions: Articles 2.4, 6.2, 10.1, and 10.2 of the Law of Ukraine "On youth and children non-government organizations" fail to comply with the Constitution of Ukraine. Making the Law of Ukraine "On youth and children non-government organizations" compliant with this Decision shall be assigned to the Verkhovna Rada of Ukraine.

Decision of the Constitutional Court of Ukraine no. 2-rp/2007 (June 12, 2007) on the conformity with the Constitution of Ukraine (constitutionality) of the provisions of articles 10.1, 11.2.3, 11.5, 11.6, 15, 17.1, 24, and item 3 Chapter VI " Final Provisions” of the Law of Ukraine "On political parties in Ukraine" (case on establishing political parties in Ukraine). The subject of the right to constitutional petition - 70 People’s Deputies of Ukraine - applied to the Constitutional Court of Ukraine for recognizing unconstitutional the provisions of Articles 10.1, 11.2.3, 11.5, 11.6, 15, 17.1, 24 and item 3 Chapter VI "Final Provisions” of the Law of Ukraine "On political parties in Ukraine" as of April 5, 2001 № 2365-III (hereinafter – Law).

The right of citizens to freedom of association in political parties for the realization and protection of their rights and freedoms and satisfaction of their political, economic, social, cultural and other interests is determined and guaranteed by the Constitution of Ukraine (Article 36.1).

The provision of Article 3.2 of the Law, according to which political parties in Ukraine are established and operate only with all-Ukrainian status, conforms with the constitutional norms which guarantee freedom of political activity, not forbidden by the Constitution and laws (Article 15.4), proclaim inalienability and inviolability of human rights and freedoms (Article 21), establish the rights of everyone to free development of personality, provided rights and freedoms of other people are not violated (Article 23).

The Constitutional Court considers that the provision of Article 10.1 of the Law on the necessity of support for the establishment of a political party by signatures of no less than ten thousand citizens of Ukraine is the guarantee of implementation of the constitutional fundamentals of the activity of one of the forms of public association and a guarantee of ensuring a real national status of a political force and equal possibilities for all political parties.

The limitations established by Article 15 of the Law according to which financing of political parties by state bodies and bodies of local self-government (except for cases, indicated in the law), state and municipal enterprises, anonymous persons and other subjects is forbidden, first and foremost set equal pre-conditions for the activity of all political parties and are supposed to ensure the protection of rights and freedoms of other people who are not the members of these political associations.

The Constitutional Court considers that the legislator has a right on the basis of the Constitution and international legal acts, ratified by Ukraine, to regulate additionally the legal status of political parties by setting the procedure of their establishment, procedure of state registration and control over their activity in the norms of the Law, provided that these norms will not narrow the volume of the constitutional right to freedom of association in political parties and will not eliminate the realization of the right for everyone to the demonstration of his/her political position.

According to Article 133 of the Constitution the system of administrative-territorial structure of Ukraine consists of: the Autonomous Republic of Crimea, 24 regions, the cities of Kyiv and Sevastopol. The Constitution of Ukraine, in giving the special status to the Autonomous Republic of Crimea, simultaneously proclaims it to be an inalienable part of Ukraine (Article 134) and for this reason does not give the Autonomy special preferences as to the advantages in the formation of political parties with regard to other subjects of administrative-territorial system of Ukraine and does not attribute to its competence any issues, related to the establishment or activity of political parties (Articles 137, 138).

Distinguishing the Autonomous Republic of Crimea in Article 10.1 of the Law from the general number of subjects of the indicated system violates the constitutional principle of equality of all citizens of Ukraine depending on the place of their residence.

Such position conforms with the Decision of the Constitutional Court of Ukraine as of March 3, 1998 no. 2-rp/98 (case on association of citizens in the Autonomous Republic of Crimea), in which the Court stressed, that the Autonomous Republic of Crimea has no competence to legally regulate the establishment and activity of political parties, and also noted that the establishment of political parties with All-Crimean status only for residents of the Autonomous Republic of Crimea did not conform with the principles, established in Articles 24.1 and 24.2 of the Constitution, according to which the citizens of Ukraine have equal constitutional rights and freedoms and there may not be privileges or limitations of citizen’s rights and freedoms, in particular, depending on the place of their residence.

Thus, the Constitutional Court held:

1. To recognize as not complying with the Constitution of Ukraine (unconstitutional) the following provisions of the Law of Ukraine “On political parties in Ukraine”:

- combination of words "and no less then in 2/3 of districts" before the words “the Autonomous Republic of Crimea” in Article 10.1;

- Article 11.6 as to the formation and registration by the political party of its regional, city, district organizations, except for "in most regions", and obligatory formation and registration of these organizations in the Autonomous Republic of Crimea.

2. To recognize as complying with the Constitution of Ukraine (constitutional) the provisions of the Law of Ukraine "On political parties in Ukraine", namely:

- Article 10.1, except for combination of words "and no less than in 2/3 of districts" before the words "the Autonomous Republic of Crimea", recognized unconstitutional pursuant to item 1.2 of this Decision;

- Article 11.2.3, under which in order to register a political party "signatures of citizens of Ukraine, collected pursuant to the requirements of this Law in support of the decision on the establishment of a political party and certified by persons, who collected signatures" are submitted to the Ministry of Justice of Ukraine;

- Article 11.5, according to which the "size of registration fee is established by the Cabinet of Ministers of Ukraine";

- Article 11.6, except the provisions recognized unconstitutional in accordance with item 1.3 of this Decision;

- Article 15: "Financing of political parties is prohibited by:

1) state bodies and bodies of local self-government, except for cases, indicated in the Law;

2) state and municipal enterprises, establishments and organizations, and also enterprises, establishments and organizations, the property of which includes stakes (shares), which are state or municipal property, or belong to nonresidents;

3) foreign states and their citizens, enterprises, establishments, organizations;

4) charitable and religious associations and organizations;

5) anonymous persons or under pseudonym;

6) political parties, not included in the electoral block of political parties.

Information about the receipt at the account of a political party of funds, prohibited by this Law, is submitted to the Ministry of Justice of Ukraine by a respective bank institution. Funds, received by political parties in violation of requirements, envisaged by this Law, are transferred by political parties to the State Budget of Ukraine or exacted for the benefit of the state judicially";

- Article 17.1 (in the wording as of April 5, 2001) according to which "political party is obliged to publish annually in a national mass media the financial report about profits and expenses, and also the report on property of political party";

- Article 24:

"In case of non-fulfillment of the requirement of Article 11.6 of this Law by a political party, the reveal during three years from the day of the registration of a political party of unreliable information in the documents submitted for the registration, no nomination of its candidates by political party at presidential elections of Ukraine and elections of People’s Deputies of Ukraine whithin ten years, an institution that registered the political party, has to appeal to the Supreme Court of Ukraine with a petition on the annulment of a registration certificate. Other grounds for annulment of a registration certificate are prohibited.

The decision of the Supreme Court of Ukraine on the annulment of a registration certificate of a political party results in termination of the activity of a political party, dissolution of its leading bodies, regional, city, district organizations and primary cells and other statutory political party formations, termination of membership in political party";

- item 3 Chapter VI "Final provisions", according to which "political parties later than one year after conducting the earliest elections to the Verkhovna Rada of Ukraine in the near time after entering into force of this Law should implement necessary measures with the purpose of ensuring the implementation of the requirements of this Law, to introduce necessary clarifications into statutory documents and to submit them to the Ministry of Justice of Ukraine".

As it was mentioned, this Decision might be used to NGOs due to the analogy of law. It is important because it shows the approach of the Constitutional Court of Ukraine to the problems, which were mentioned in the constitutional petition. The same or the similar problems might arise for NGOs as well.

Mandatory reading:

1. Stewart Susan. NGO Development in Ukraine since the Orange Revolution. Peter Lang Verlag, Frankfurt a.M. et.al. 2009. pp. 177-194 (the text is included).

2. DiMaggio Paul J., Anheier Helmut K. The Sociology of Nonprofit Organizations and Sectors // Source: Annual Review of Sociology, Vol. 16 (1990), pp. 137-159 (the text is included).

Recommended reading:

Constitution of Ukraine. Chapter XI. Available at: http://www.mfa.gov.ua/data/upload/publication/mfa/en/159/constitutioneng2.doc

Law of Ukraine ‘On Civic Associations’ (1992). Available at: http://www.legislationline.org/documents/action/popup/id/7132

Decision of the Constitutional Court of Ukraine as of June 12, 2007 no. 2-rp/2007 as to the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Articles 10.1, 11.2.3, 11.5, 11.6, 15, 17.1, 24, and item 3 Chapter VI " Final Provisions” of the Law of Ukraine "On political parties in Ukraine" (case on establishing political parties in Ukraine).

Decision of the Constitutional Court of Ukraine #18-rp/2001 (December, 13, 2001) compliance with the Constitution of Ukraine Article 2.4, Article 6.2, Article 10.1, and Article 10.2 of the Law of Ukraine "On youth and children non-government organizations" (case on youth organizations).

Decision of the Constitutional Court of Ukraine no. 11-рп/2000 (October, 18, 2000) Constitutionality of Articles 8, 11, 16 of the Law of Ukraine “On Trade Unions, Their Rights and Guarantees of Their Activities” (case of freedom of organization of trade unions).

Nanivska V. T. NGO Development in Ukraine.Available at: www.icps.com.ua/files/Articles/36/71/ngo_development_eng.pdf

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