Statement on Ukraine’s Draft Laws on NGO Reporting and Tax Obligations
The Human Rights Information Centre (HRIC), the Netherlands Helsinki Committee (NHC) and the Helsinki Foundation for Human Rights (HFHR) call upon the Ukrainian authorities to immediately withdraw from the Verkhovna Rada (the Ukrainian Parliament) draft laws No. 6674 and 6675 introducing changes to Ukraine’s regulations on required public reporting and tax obligations for non-governmental organisations (NGOs). These proposals are incompatible with international standards on the work of civic organisations and will have a negative impact on the functioning of civil society in Ukraine.
On 10 July 2017 the Administration of the President of Ukraine submitted to the Verkhovna Rada draft laws No. 6674 “On Amendments to the Tax Code of Ukraine for providing public information on financing of the activities of civil society organizations and the use of international technical assistance”[1] and No. 6675 “On amending certain legislative acts concerning “public openness regarding the funding of the work of civic organizations and the use of international technical assistance”.[2]
Draft law No. 6674 puts on NGOs receiving funds which exceed a certain amount a requirement to disclose detailed information, including personal and sensitive data of the NGOs staff members on their websites and to share this information with the tax authorities. Draft law No. 6675 introduces reporting requirements for individuals who are not staff members of NGOs but who work for them as experts, consultants, contractors (etc.), and who receive payments from donors through international technical assistance. The NGOs would be obliged to publicly report on their received funds, names of their donors and to disclose payments made from these funds. In addition to that, the draft proposes penalties for NGOs’ failure to report publicly, such as the exclusion of the concerned NGO from the state’s registry of non-profit organisations.
The HRIC, the NHC and the HFHR stress that civil society organisations have to be accountable and transparent about their work and funding in order to be credible, professional as well as to ensure public trust.. Both the Council of Europe (CoE) and the Organisation for Security and Cooperation in Europe (OSCE) recommend that states “encourage and facilitate” transparency of not-for-profit organisations. Therefore, NGOs can be legally obliged to provide financial information and an overview of their activities to a designated supervising body.[3] However, every state also has both international and national obligations to protect the rights of individuals who work for NGOs.
Freedom of association is a human right crucial to the functioning of a democratic society, as well as an essential prerequisite for other fundamental freedoms. For the pursuit of their activities, associations should enjoy the freedom to seek, receive and use financial, material and human resources, regardless if they are domestic, foreign or international.[4] Moreover, the European Court of Human Rights (ECtHR) has recognized that the state has a positive obligation to secure the enjoyment of the right to freedom of association. In particular, it has found that a “genuine and effective respect for freedom of association cannot be reduced to a mere duty on the part of the State not to interfere; […] Accordingly, it is incumbent upon public authorities to guarantee the proper functioning of an association or political party, even when they annoy or give offence to persons opposed to the lawful ideas they are seeking to promote”.[5]
In light of these standards, a state cannot – when placing conditions on organizations such as a reporting requirement – make such conditions “unnecessarily burdensome, and [they] shall be proportionate to the size of the association and the scope of its activities, taking into consideration the value of its assets and income”.[6]
The HRIC, the NHC and the HFHR are deeply concerned that the draft laws introduce several requirements which do not meet Ukraine’s international obligations, nor do they serve a legitimate goal. Instead, they seem to aim at imposing strict and repressive state control over NGOs. The requirement of proportionality does not seem to have been taken into account in the proposed legislation. The proposed penalties for NGOs which fail to comply with the requirements, such as deregistration and loss of the non-profit status, have a purely punitive character and seem to be disproportional to the “misconduct” of an organisation. This might have an adverse and chilling effect on NGOs and create a hostile environment for civil society organisations. Furthermore, the unclear and discriminatory regulations, as well as the increased bureaucratic requirements they impose might have a wider, negative impact on the existing relations between the non-governmental sector and the public authorities in Ukraine.
Given the above, the HRIC, the NHC and the HFHR call upon the Ukrainian authorities to withdraw from the Verkhovna Rada draft laws No. 6674 and 6675 in the current wording and ensure that any proposed changes comply with international standards. We also encourage the Ukrainian authorities to hold a public debate on transparency of funding and use of international assistance by NGOs, as well as to consult the envisaged proposals with civil society groups which will be affected by the changes.
[1] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62214.
[2] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62215.
[3] Council of Europe’s Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe, 10 October 2007, http://bit.ly/2xqahgK, point 62, and Guidelines on Freedom of Association, OSCE/ODIHR and Venice Commission of the Council of Europe, 2015, http://www.osce.org/odihr/132371?download=true, paragraph 104.
[4] Guidelines on Freedom of Association, OSCE/ODIHR and Venice Commission of the Council of Europe, 2015, http://www.osce.org/odihr/132371?download=true, paragraph 102.
[5] European Court of Human Rights, Ouranio Toxo and Others v. Greece (Application no. 74989/01, judgment of 20 October 2005), para. 37, <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-70720>. See also Inter-American Court of Human Rights, Huilca-Tesce v. Peru, 3 March 2005, Series C no. 121, para. 77; and Inter-American Court of Human Rights, García y Familiares v. Guatemala, 29 November 2012, Series C no. 258, paras. 117-118.
[6] Guidelines on Freedom of Association, OSCE/ODIHR and Venice Commission of the Council of Europe, 2015, http://www.osce.org/odihr/132371?download=true, paragraph 104. The Guidelines have very detailed explanatory sections on reporting and supervision, see subsection 2 parts E and F.
