Regulation of activities of non-governmental organizations: change of legislation in 2003

No noticeable changes of the legislative related to the third sector activities took place in 2003 (as it occurred, say, in 2001, when Decree No. 8 toughened the opportunities to obtain foreign gratuitous aid, and Decree No. 11 did the same concerning the procedure of conduct of mass events).

Year 2003 was rather remarkable for its activity in the field of law application: the Ministry of Justice used to make decisions on warning non-governmental organizations and political parties, and brought actions against the same with the aim of their dissolution. According to information presented in the “Belarusian Market” (Y. Orekhov. “The Ministry of Justice takes the registration upon itself, the dissolution has already been mastered by it”. Belarusian Market. 2003, No. 4) more that 10 non-governmental organizations were dissolved in 2003. It has not yet come to dissolution of political parties.

New alterations were entered into the Civil Code (for it to be defined more accurately); a new type of non-profit organizations was established (the republican governmentally-owned non-governmental organizations – GONGOs);  changes were entered into procedure of registration of associations (unions) of non-governmental organizations, and procedure of conduct of mass events; non-governmental organizations were deprived of a number of possibilities related to their representation before the courts; procedure of obtaining and use of foreign gratuitous aid was changed in a certain way.

Alterations in the Civil Code

The law of the Republic of Belarus dated June 26, 2003 made alterations in the Civil Code. Such alterations clarified the provisions of Article 46 in the Civil Code. This Article sets forth the organizational and legal regulations for commercial and non-commercial organizations. Paragraph 3 of Article 46 in the Civil Code listed the organizational and legal forms of non-commercial organizations, and stated that such organizations could be established in any other forms provided for with the legislation. That wording was too broad, as the legislation in the Republic of Belarus includes all standard and legal acts (standard and legal acts of the Ministries and Departments including). According to the new wording, non-commercial organizations may be established in the forms provided for in the acts of the legislation. This is a narrower notion, and it includes the Constitution, the Civil Code, the laws, edicts and decrees of the President.

At present, in addition to non-commercial organizations provided for in the Civil Code a number of other types of non-commercial organizations exist: the National Academy of Sciences, the Belarusian Chamber of Commerce and Industry, the Republican governmentally-owned non-governmental organizations.

Activity of the Republican Governmentally-Owned Non-Governmental Organizations

On July 30, 2003 Edict of the President No. 335 “On the Republican Governmentally-Owned Non-Governmental Organizations” was adopted, that provided for opportunity to establish a new type of non-commercial organizations in the Republic of Belarus – the Republican governmentally-owned non-governmental organizations (GONGOs).

Necessity to adopt this Decree and its certain norms arouse nothing but astonishment. This is not quite clear why such type of non-commercial organizations was called the Republican governmentally-owned non-governmental organizations. The only thing in common with non-governmental organizations is the fact that such GONGOs shall be registered by the Ministry of Justice (as some of non-governmental organizations) in compliance with the provisions of Decree of the President of RB No. 2 dated January 26, 1999 (under which all non-governmental organizations shall be registered). Moreover, it has been provided for, that their activity shall be governed with the law of non-governmental organizations, to the extent not conflicting with the mentioned Decree. But in accordance with the Decree and the law of non-governmental organizations, such registration norms are temporary and will remain in force until the appropriate law of GONGOs is adopted. After such law is adopted, neither Decree No.2 nor the law of non-governmental organizations shall apply to this type of non-commercial organizations, non-governmental organizations will have nothing in common with such type of non-commercial organizations.

There are several major distinctions between such non-commercial organizations and non-governmental organizations. First, the Decree on the Republican governmentally-owned non-governmental organizations stipulates for the membership of legal persons therein, which is impossible for non-governmental organizations. Second, the Statute of any Republican governmentally-owned non-governmental organization shall be adopted by its founders or the supreme body of such organization, and approved by the President of RB. As for non-governmental organizations, there exists a rule that their statutes shall be adopted by their founders only. No approval by whomsoever is required; and moreover, it contradicts to the principle of independence of non-governmental organizations from the Government.

It is also not clear, in what the need in adoption of this Decree consists. The decrees of the President are the standard legal acts, and are intended for repeated application by an unlimited number of people. At the same time, today only one Republican governmentally-owned non-governmental organization exists. According to Edict of the President of RB No. 336 dated July 30, 2003,  the “Voluntary Society of Assistance to the Army, Air Force, and Fleet of the Republic of Belarus” (DOSAAF) has been attributed to the Republican governmentally-owned non-governmental organizations, and Edict No. 481 dated November 03, 2003 has approved its Statute. As far as no other Republican governmentally-owned non-governmental organizations have been established, it looks like this Decree was adopted  with the exclusive object of attaching a special status to the above mentioned organization.

Changes in the procedure of registration

The main document in the field of registration of non-commercial organizations is Decree of the President No. 20 dated September 11, 2003. This Decree has altered Decree No. 11 dated March 16, 1999 which regulated procedure of registration and dissolution of legal entities, and Decree No. 2 dated January 26, 1999 which regulated activities of political parties, trade unions and other non-governmental organizations.

The above Decree has changed the procedure of registration of unions (associations) of non-governmental organizations. The powers to register unions (associations) of political parties, Republican trade unions, international non-governmental organizations have been delegated to the Ministry of Justice since November 1, 2003. Prior, such powers were exercised with the regional executive committees and the Minsk City Executive Committee.

But such changes apply only to unions (associations) of political parties, Republican trade unions, non-governmental organizations. Should any union (association) be established in which at least one of the members is a commercial organization, the procedure of registration remains unchanged – it shall be registered in the respective regional executive committee or in the Minsk City Executive Committee. Ordinance of the Council of Ministers No. 1454 dated October 31, 2003, and Ordinance of the Ministry of Justice No. 25 dated October 29, 2003 were adopted in pursuance of the mentioned Decree: both entered changes in the procedure of registration of non-governmental organizations.

Conducting mass events

One of the forms of NGOs activities is conducting mass events. In 2003 the rules of conducting mass events were altered several times. On August 7, 2003 the Law of the Republic of Belarus “On Gatherings, Meetings, Street Processions, Demonstrations and Picketing” was revised. After making changes it was named “On Mass Events in the Republic of Belarus”.

Main changes apply to procedure of organization of such mass events and responsibility for violation of procedure of their conducting. While previously any mass events could be organized by any citizens of RB who have come of full legal age, reside at the territory of RB, and exercise the right of voting, – after a new version of the law has come into force such citizens may only organize the events in which up to 1000 people can participate (excluding sports, cultural, and other shows and religious events). Should participation of more than 1000 people be planned in any gathering, meeting, street procession, demonstration or picketing, such event shall be organizes either by any political party, trade union, or other organization.

Should any organization act as an organizer, it must designate persons responsible for conduct of such event. Moreover, such person must be a member of the governing body of such organization and must right a Letter of commitment to organize and conduct such event in compliance with the Law of RB “On Mass Events”. In contrast to the previous version of this law, the new version provides for responsibility for political parties, professional unions and other organizations, that act as organizers of mass events, for violation of procedure of their organization and conduct.

According to Article 15 of the Law of RB “On Mass Events”, political parties, professional unions and other organizations, authorized members of which failed to ensure appropriate procedures of organization and conduct of any gathering, meeting, street processions, demonstration and picketing  that have entailed damage in especially sizeable amount or substantial damage to the rights and lawful interests of the citizens, organizations or governmental or public interests, – may be dissolved in accordance with established procedure for single violation of the legislation of the Republic of Belarus on mass events. At all that, disruption of such mass event, temporary suspense of the organizations’ activities or irregularity of transport operation, loss of lives, causation of heavy bodily injures to one or more victims shall be deemed substantial damage; and  damage in the amount exceeding the base amount (as of the day of infringement) by ten thousand times and more shall be deemed sizeable damage. But it would be unfair to consider introduction of this norm as a toughening of responsibility of non-governmental organizations, political parties, professional unions. This norm reiterates the norm that has previously existed in paragraph 1.5 of Decree of the President of RB No. 11 dated May 07, 2001 “On Certain Measures for Improvement of the Procedure of Conduct of Gatherings, Meetings, Street Processions, Demonstrations, other Mass Events and Picketing in the Republic of Belarus”.

Toughening of responsibility of non-governmental organizations, political parties during conduct of mass events was formulated by adoption of additions to the Laws “On Non-Governmental Organizations” and “On Political Parties”. Article 29 of the Law of RB “On Non-Governmental Organizations” and Article 35 of the Law of RB were expanded with a norm that allows dissolution of any non-governmental organization (political party) for single violation of the legislation on mass events. But this may be done only in cases, directly provided for in the legislative acts of the Republic of Belarus. As of today, such alterations will not change the situation actually, as the responsibility in the form of the organization dissolution for violation of the legislation on mass events is provided for only in the aforementioned Law and Decree. Bua a very broad notion of “legislative acts” (which includes the acts of the Ministries, Departments, and local authorities) enables to provide for such grounds in the departmental standard legal acts (e.g. in the ordinances of the Ministry of Justice).

Representation in the court

Decree No. 13 of the President of RB “On Certain Issues of Civil Proceedings” appeared on April 15, 2003. This Decree has established, that authorized persons from non-governmental organizations may represent any natural persons in civil proceedings in the event that by virtue of law they are entitled to represent and defend in the court the rights and lawful interests  of the members of such non-governmental organizations and of other people.

Previously Article 22 of the Law “On Non-Governmental Organizations” granted to any non-governmental organization the powers to represent and defend the rights and lawful interests of their members before any governmental, economic, and non-governmental bodies and institutions. This general norm enabled non-governmental organizations, that provided for opportunity of legal defense of their members in their constituent documents, to participate in any legal proceedings as representatives. Now it will be possible only in the case expressly provided for by the law. Today there are no such laws.

In addition to representation right non-governmental organizations were deprived of the right to bring actions for defense other persons. Previously such opportunity was ensured in accordance with Article 86 in the Civil Code of Practice of the Republic of Belarus. This Article has established  that non-governmental organizations may apply to the court for defense of the rights and lawful interests of their members concerning any disputed arising from labour relations, and matters mentioned in Article 85 in the Civil Code of Practice (cancellation of adoption, deprivation of parental rights, alimony recovery, defense of the interests of children under age and the interest of incapable persons) in the event that it has been provided for in their constituent documents. After the above changes are made NGOs will be able to carry out such mentioned activity only if it is provided for by the law.

Use of foreign gratuitous aid

As for receipt and use of foreign gratuitous aid, one should mention that, first, rendering international technical aid has been put in order, and, second, procedure of receipt, use of foreign gratuitous aid, and control of its use has been changed. Pitting international technical aid in order was the point of Edict of the President of RB No. 460 dated October 22, 2003 “On International Technical Aid Rendered to the Republic of Belarus”,  and Ordinance of the Council of Ministers dated November 21, 2003 “On Certain Measures for Implementation of Edict of the President of RB No. 460 dated October 22, 2003”.

The mentioned documents have established, that all programs (projects) of international technical aid shall be subject to registration in the Ministry of Economy. Should such programs of international technical aid be registered, they shall get considerable tax and customs concessions:  the goods imported to RB shall be exempt from VAT, excise-duty, customs fees;  funds and other property received within such international technical aid shall not be reckoned in the taxable base for calculation and payment of income tax and real estate tax for the period of use within the tasks of such international technical aid; income derived by natural persons out of proceeds of such international technical aid shall be not subject to income tax; turnover for sale of goods (work, services) purchased (executed, rendered) in the territory of the Republic of Belarus with the purpose of implementation of such international technical aid shall be exempt from VAT, deductions and charges levied on the proceeds from sale of such goods (work, services) to the governmental special-purpose budget and off-budget funds, and local taxes and charges.

Changes in procedure of receipt, use and control of use of foreign gratuitous aid were the point of Decree of the President of RB No. 24 dated November 28, 2003 “On Receipt and Use of Foreign Gratuitous Aid”, and Edict of the President of RB No. 537 dated November 28, 2003 “On Approval of Procedure of Control of Special-Purpose Use of Foreign Gratuitous Aid” Decree of the President No. 24 has come into effect since December 13, 2003. Since the same date Decree of the President No. 8 dated March 12.2001 “On Certain Measures for perfection of Procedure of Receipt and Use of Foreign Gratuitous Aid”, that acted before, has become invalid.

In general, Decree of the President of RB No. 24 dated November 28,2003 “On Receipt and Use of Foreign Gratuitous Aid” did not change the system of receipt and use of foreign gratuitous aid utterly. Changes applied to the following: First, it has been established, that this Decree shall not apply to international technical aid and other kinds of foreign gratuitous aid rendered under the projects and programs approved by the President of the republic of Belarus, or rendered under appropriate international treaties valid for the Republic of Belarus.

Previously, in accordance with Decree No. 8, both programs approved by the President or implemented in accordance with certain international treaties, and programs approved by the Government of the Republic of Belarus were included into this list. Second, a number of powers concerning regulation such relationships has been transferred from the Department of Humanitarian Activity to the Administrative Department of the President of the Republic of Belarus. So, the Administrative Department of the President shall fix the amount of funds, value of goods (property), and specify types of foreign gratuitous aid which shall be exempt from registration.  The Administrative Department of the President shall also establish the procedure of registration of foreign gratuitous aid.

< p>Previously these issues have fallen within the terms of reference of the Department of Humanitarian Activity. Third, procedure has been provided for to get tax and customs concession for foreign gratuitous aid received. The right to exempt such foreign gratuitous aid from the customs charges and fees, VAT, excise-duty, profit tax and income tax shall be exercised by Administrative Department of the President upon agreement with the President of the Republic of Belarus. In order to be granted concession the recipients of such foreign gratuitous aid must submit to the customs body and/or to the Inspection of the Ministry of Taxes and Charges their appropriate applications and copies of certificates of registration of such foreign gratuitous aid;  specifications of such foreign gratuitous aid in the form of goods (property) indicating their name(s), quantity, cost, and planned special-purpose use (distribution) of such foreign gratuitous aid as agreed with the Department of Humanitarian Activity under the Administrative Department of the President of the Republic of Belarus. Decree No. 8 Did not specify the procedure of obtaining tax and custom concessions.

 Fourth, the Decree added one more governmental body authorized to carry out control of special-purpose use of received foreign gratuitous aid. In addition to the State Control Committee, the  Ministry of Internal Affairs, the Ministry of taxes and Charges, the State technical Committee, the Administrative Department of the President the right to control has been also vested to the Committee of State Security (KGB) of RB since December 12, 2003. Thee legislation can provide for any other governmental bodies and organizations to control special-purpose use of foreign gratuitous aid received.

Sergey Zikratsky