Amendments to the law “On public associations”: NGOs’ opinions are not taken into account

For 16 years one of the expert zones of the Legal Transformation Center (Lawtrend) has been the legal regulation of NGO establishment and activities in the Republic of Belarus.

Having long experience of work with NGOs and having analysed the international law and Belarusan practice on the issue, Lawtrend prepared proposals on the draft law amending the Law of the Republic of Belarus "On Public Associations" and submitted them to the Commission on Human Rights of the House of Representatives of the National Assembly of the Republic of Belarus. 

On March 15, Lawtrend received the official reply of the National Assembly on the proposals. The Permanent Commission of the House of Representatives on human rights, national relations and mass media expressed gratitude for the analysis of the draft law and the proposals. It is also noted that the proposals have been carefully studied by the working group. However, the group decided against the amendments to the draft law in accordance with Lawtrend proposals. 

Nevertheless, despite the reluctance of government bodies to consider proposals from interested organizations on the development of legislative acts affecting their rights and interests, the Legal Transformation Center will continue its work on the preparation of proposals for the improvement of the Belarusan NGO legislation, including the law on public associations, and it will suggest other NGOs to get involved in this work.

Lawtrend expert Volha Smalianka underlined that “in spite of the refusal of public authorities to accept directly the proposals from relevant expert organizations, these proposals often have “indirect long-term effect": some of them are introduced to the legislation later. For example, the draft law on public associations that is being developed at the moment introduces some technical amendments, the importance of which has been underlined by NGOs for several years”. 

The Lawtrend proposals on the draft law "On the introduction of amendments and additions to certain laws of the Republic of Belarus on political parties and other public associations" include:  

1. Finding solutions to the questions of establishment and registration of departments of international public associations established on the territory of foreign states.

The positive moment of the draft law is the granting of the republican public association status to an international department of international public association established in a foreign country. The republican public association status, in particular, will allow the usage of the word “Belarusan” in the title of the association which is not possible now due to the fact that the current legislation demands its registration in the form of an international association. 

The problematic aspect of the draft law is the fact that it does not provide a complete picture of the process of creation of a department of public association established in a foreign country. And the provision on the establishment of department of "international public associations established on the territory of a foreign state" makes it impossible to create departments of associations established in the countries the legislation of which does not have the concept "international public association". 

We offer to change the wording from the "department of international public association established in a foreign country" to the "department of not-for-profit organization established on the territory of a foreign country" or "department of not-for-profit organization founded on the principle of membership established on the territory of a foreign state."  

2. Changed requirements for the number of founders of public associations.

The positive change brought by the draft law is the changed requirements for the number of founders of local and republican associations, that will facilitate their establishment.

At the same time, the laws of the majority of European countries do not impose the requirement of such a large number of founders for a not-for-profit organization.

We offer to return to the version of the Law of the Republic of Belarus before November 29, 1999 and set the minimum number of founders for a public association – 10 members.

The draft law also includes another new negative norm which states that the number of founders for the establishment and activities of certain types of public associations may be set by special laws on the relevant types of public associations. This norm leads to the discrimination of certain associations in comparison with others. 

We offer to remove this provision from the draft law.

3. Changed grounds for the decision to refuse the registration of a public association.

The positive moment is the setting up of the non-compliance of the charter and other documents submitted and (or) information as a ground for refusal in registration, if such violations are of irremediable nature. Whereas the current legislation provides that any kind of non-compliance of the charter requirements with the legal requirements can be a ground for refusal. However, it is illogical that with the introduction of this norm Art. 15 of the draft law assigns to the registering authorities the right to suspend registration in case of non-compliance of the charter and other documents submitted and (or) information with the legal requirements, if such violations can be removed. 

We offer to make the following wording for the suspension of registration of public associations (Part 1, Art. 15): "The state registration of a public association, union, their hymns, badges, pennants, ties, amendments and (or) additions to the charter of the public association, union is suspended by the relevant registering body for up to one month in case of non-compliance of the charter of public association, union, and other submitted documents and (or) information with the legal requirements, if such violations can be removed". 

4. Simplified procedure of the liquidation of public associations, of the exclusion of their organizational structures from the register.

The positive norm of the draft law is the simplified procedure of the liquidation of public associations and its compliance with the procedure of liquidation of other legal entities. 
At the same time the negative moment is the inclusion of another ground for the liquidation of public associations and their unions: the failure to provide a timely report to the registering authority during three consecutive years. In our opinion, the grounds for non-registration of public associations should be reduced, not expanded.

We offer to use the wording of the Law of the Republic of Belarus "On Public Associations" in force until 19 July 2005:  "repeated during the year actions for which a written warning was made". 

5. Reduced number of documents required for the registration of an association.

The positive moment of the draft law is the exclusion of the scheme of organizational structures from the list of the documents necessary for the registration of a public association.
We offer to comply the procedure of registration of public associations and their unions with the procedure of registration of commercial organizations and to apply the notification principle for the registration of public associations and their unions.

Additionally, in our opinion, the draft law of the Republic of Belarus "On the Introduction of Amendments and Additions to certain laws of the Republic of Belarus on the activities of political parties and other public associations" should also be used to include into the legislation of the Republic of Belarus the provisions to promote the development of public associations, facilitate the process of their establishment, registration and activities.

Therefore, the following amendments should be made to the Law of the Republic of Belarus “On Public Associations”:

1. To remove from the Law of the Republic of Belarus "On Public Associations" the ban to act on behalf of unregistered associations with the aim to bring further changes to other legislation, in particular – to the Criminal Code.

2. By analogy with some commercial organizations to preview the possible location of a public association at the place of residence of association’s member. By analogy with commercial organizations to preview the obligation of public associations to inform the registering authority about the location without the submission of a separate document and about the change of its location – by a simple notification.

3. To remove from the Law of the Republic of Belarus "On Public Associations" the concept of "territory of the public association’s activities".

4. To include the provision that in case of refusal in state registration the registering authority shall provide the founders with all the reasons for non-registration of the association.

5. To exclude the provision that restricts the public association’s right to do entrepreneurial activities only by creating commercial organizations or participating in them.

6. To regulate the procedure of reviews of associations by registering bodies by analogy with commercial organizations. 

Lawtrend