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CIVIL SOCIETY: AWAY FROM POLITICS TOWARDS COOPERATION WITH THE AUTHORITIES
Yuri Chausov
Summary
The state keeps its tight legal framework for the registration and activity of nonprofit organizations (NPOs). However, in recent years the dynamics of the legislation is targeted primarily at improving existing restrictions instead of introducing new ones. The practice of targeted repressions against the most influential leaders of the sector is continued. In the process of adaptation to the existing conditions, an increasing number of agencies are trying to distance themselves from formal politics (elections, parties) and thus to take a stand convenient for a dialogue with the authorities, or at least one that would prevent state interference into their activities. Today this trend is carried out with varying degrees of success: in the area of entrepreneurship, agro-tourism and ecology the dialogue is assessed by public actors as productive, in the area of human rights defense it is seen as ineffective and formal. Non-membership based NPO forms (institutions) are registered in the simplest way; their share in the structure of newly registered organizations is growing. At the same time mass membership organizations are gradually replaced by institutions and funds.
Trends:
• Change of the legislation regulating NPO creation and activities on the background of no further tightening;
• Rise in the number and growth of importance of non-membership based NPOs (agencies and foundations);
• Maximum distance of NPOs from political activity;
• Desire of NPOs to build a constructive dialogue with the authorities.
The legal framework of nonprofit organizations
In 2014 the legislation regulating the questions of creation and activity of public associations (PA) underwent some changes: on February 20, there came into effect the law On changes and amendments being made to some laws of the Republic of Belarus on the activities ofpolitical parties and other public associations, adopted on November 4, 2013. However, the overall legal environment for nonprofit organizations (NPos) remained the
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same. The main obstacles for NPO activity are both at the level of legal regulation and enforcement practice:
a) the order of state procedure of registration of public associations, political parties, their organizational structures, as well as funds is complex and cumbersome and makes it possible for state registration authorities to arbitrarily deny registration on minimal grounds;
b) there is a ban for various forms of NPos without state registration, the violation of which provides criminal penalties under article 193 of the Criminal Code — up to two years of imprisonment;
c) the legislation establishes significant limitations to obtain financing of NPOs from domestic and foreign sources, at the same time tax incentives for donors are minor and do not contribute to charity and philanthropy;
d) the right of NPOs to conduct peaceful assembly is limited, so is the freedom of expression.
On February 20, 2014 the changes and amendments to the law On public associations came into effect. They were introduced by the law of November 4, 2013 On changes and amendments being made to some laws of the Republic of Belarus on the activities of political parties and other public associations. Among the positive novelties of the law are the mitigation criteria of regional representation of the founders while creating republican NPOs. The general requirement regarding the number of founders has not changed: to create a national association one needs 50 people. But if earlier it was necessary to have no less than 10 founders from the four regions and the city of Minsk, now the minimum representation is at least 1 founder from the four regions and Minsk.
The law also reduced the list of documents necessary for registration, clarified some issues of international NGOs registration and foreign offices of NGOs, made other technical improvements. At the same time, the law introduced a new ground for liquidation of NGOs: failure for three consecutive years to submit annual reports to the registration authority.
The act imposed the rule about the possible establishment of political parties by the conversion of NGOs (article 10 of the Law On political parties in a new edition). However, the at-
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tempt of the Belarusian Slavic Committee to use this provision underwent failure: the reorganization of the association into a party encountered pressure from the security services.
In February 2014 by-laws were adopted aimed at bringing about the registration of associations in accordance with the new edition of the Law of the Republic of Belarus On public associations. on February 3, the Belarusian Ministry of Justice adopted resolution No. 32 On amendments and additions to the decree No. 48 of the Ministry of Justice of the Republic of Belarus ofAugust 30, 2005. This regulation establishing the procedure of processing and reviewing documents related to the registration of political parties, trade unions and other NGos was published very late — only on February 20, i.e. on the day when the amended version of the law On public associations entered into force.
This decree does not regulate the issues of registration, liquidation, de-registration of organizational structures of political parties and NGOs any more. For them the Council of Ministers issued resolution No. 141 dated of February 18, 2014 that introduced two separate decrees which entered into force on February 20: Decree on the procedure for record of organizational structures of political parties and public associations and Decree on the procedure of termination of the activity of organizational structures ofpolitical parties and public associations.
Decree No.19 of the Ministry of Justice of the Republic of Belarus of January 21, 2014 changed the application forms for state registration of non-profit organizations and for state registration of changes and/or amendments to the charters of such organizations. These changes are relevant for NPOs that are created or registered in the form of institutions or associations (unions).
In accordance with decree No. 799 of the Council of Ministers of Belarus of August 18, 2014 the validity of the certificate of approval of the name of newly created institutions and associations is reduced from three to one month. This change came into effect on November 30, 2014 and limited the founders of newly established institutions in the possible duration of the activities aimed at registration of a legal entity.
In accordance with decree No. 55 of the President of the Republic of Belarus dated January 30, 2014 the funding of
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costs of the NGO Belarusian Republican Youth Union will be continued in 2014—2015. at the same time the expense items for which the NGO Belarusian Republican Youth Union receives direct governmental funding, are not published, as the list of these items is for office use only.
Statistics of the growth of the nonprofit sector
According to the Belarusian Ministry of Justice, in 2014, 86 new NGOs were registered (1 international, 72 local and 13 national), 3 Unions (associations) and 11 new local funds. These figures are slightly higher than in 2013, when 70 new NGOs, 1 association and 11 funds were registered. Nevertheless, the figures of the last two years were below the indicators of 2007-2012 (see Table 1).
Table 1. Dynamics of the number of public associations in Belarus
1 January 2006 1 March 2007 1 January 2008 1 January 2009 1 January 2010 1 January 2011 1 January 2012 1 January 2013 1 January 2014 1 January 2015
The number of newly registered associations (based on the results of the previous year) 85 100 94 - 94 134 118 111 70 86
The total number of registered associations in the country on a specified date 2247 2223 2255 2221 2225 2325 2402 2477 2521 2596
Dynamics in comparison with the previous year -12 -24 +32 -34 +4 + 100 +77 +75 +44 +75
Source: Ministry of Justice of the Republic of Belarus.
As of January 1, 2015 in Belarus 37 trade unions (33 republican trade unions, 1 territorial and 3 trade unions in organizations) and 23,032 trade union organizations, 2,596 NGOs, including 228 international, 709 national and 1,659 local were
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registered. 40,259 organizational NGOs, also 33 NGO unions (associations), 155 funds (14 international, 5 republican and 136 local), 7 republican state-public associations were registered.
Compared with 2013, the total number of public associations increased by 2.9%. The number of registered funds increased by 6.9%.
In general, newly created associations do not differ greatly in the nature of their activity. Basically, their work does not focus on societal challenges and the achievement of socially significant aims; in most cases they try to meet the interests of the members of these associations. As in previous years, more than half of the newly registered NPos in 2014 are sports ones, which corresponds to the long-term trends for the third sector: the share of sports associations reached 57% (in 2013 — 53%, in 2012 — 51%, in 2011 — 53%). Out of 11 new funds 8 position themselves as charity organizations, while in 2013 their number was 9.
In 2014, there were registered 44 non-government organizations, which is the highest rate of NPO registration of this legal form (in 2013 there were 39, in 2012 — 26, in 2011 — 27). The tendency towards growth had been observed since 2011.
A new trend is registration of institutions whose goals are similar to goals of commercial structures or contributing to business development: institutions of financial intermediation, consulting, mediation, etc. This trend of newly registered establishments took the first place (11 new organizations), having pushed aside to the second place social assistance and the provision of services (fell to 9 from 13 in 2013). At the same time, unlike in 2013, there were no records of registration of human rights agencies (as well as other forms of NPOs) or agencies that protect the rights of certain categories of citizens.
Restrictions on the activities of civil society organizations
According to the Ministry of Justice1, in the first half of 2014 the registration authorities checked the activity offifteen NGOs. During this period there were issued 51 written warnings, out
“Аб дзяржаўнай рэгістрацыі грамадскіх аб’яднанняў, фондаў у 2014 годзе.” Министерство юстиции Республики Беларусь. 6 Feb. 2015. Web. 7 Apr. 2015. <http://minjust.by/ru/site_menu/news?id=1761>.
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of which 42 were issued by the Ministry of Justice and 9 — by Regional Offices of Justice. For violation of legislation activities two NGOs (1 national and 1 local) are suspended by legal means; two local NGOs are closed down judicially at the suit of Regional Departments of Justice.
In September the Justice Department of Mahiliou region filed a lawsuit on suspension of the activity of the public association Mahiliou Human Rights Center (one of the few regional human rights organizations that have a registered status) for three months. The basis for the suit was the claim about the legal address which the judicial authorities had refused to re-register upon the application of the organization. During the trial, the organization found a new legal address and submitted the relevant documents for registration, the case of the suspension of activities was anulled.
A political prisoner, significant for the Belarusian third sector, the head of the Human Rights Center Viasna (devoid of registration by court decision in 2003) Ales’ Bialiacki was released on amnesty on June 21, 2014.2 In 2011 he was sentenced to 4.5 years for tax evasion on donations that were used for human rights activities of this NGO.3
The educational institution Centre for Legal Transformation faced serious pressure. On October 29 in respect of the chairperson of the Board of this organization Elena Tonkachyova, a Russian citizen who has lived in Belarus for the last 30 years, the decision was taken to cancel her permanent residence permit. On N ovember 5, the Department of Internal Affairs of the Administration of Pervomaisky district of Minsk made the decision to expel Ms Tonkachyova from the country. At the same time she is denied entry to Belarus for the next three years.4
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“Ales Bialiatski released on amnesty on 21 June 2014. ” Frontline Defenders. 23. Jun. 2014. Web. 8 Apr. 2015. <http://www.frontlinedefenders.org/ AlesBialiatskireleased>.
“Opinions adopted by the Working Group on Arbitrary Detention concerning Ales Bialiatski’s case.” Viasna. 24 Feb. 2012. Web. 7 Apr. 2015. <http://spring96.org/en/news/60213>.
The basis for the deprivation of Ms Tonkachyova’s residence permit and expatriation was minor speeding of the car that belonged to Ms Tonkachyova.
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Higher authorities and the courts refused to satisfy the complaint of the human rights activist. Representatives of the Belarusian civil society and several international organizations link the expulsion of Tonkachyova with her professional activities and consider such a decision a form of politically motivated pressure on the human rights organization. on February 21, 2015 Ms Tonkachyova left the territory of Belarus.
Depoliticization of civil society
The trend of depoliticization of the “third sector”, observed during the last decade, acquired in 2014 the most prominent features. If during the presidential elections of 2001 and 2006 a significant part of civil society organizations was involved in the political process (different kinds of mobilization, youth campaigns, election observation) in the run-up to the election of 2015 the situation is qualitatively different. NGos do not bind the realization of their missions with the opportunities provided during the election period. For many organizations, the experience of the 2010 election resulted in a negative relation to the presidential elections destabilizing the planned strategy.
Exceptions are rare and highly conditional: such formally social and non-political structures as the campaign Tell the truth! and the movement For Freedom, in practice, operate in the field of political opposition and are identified as parties and even play a leading role in the coalition Popular Referendum. However in both existing opposition coalitions (Talaka and Popular Referendum) numerous NGos, declared as members, do not work de facto. This situation contrasts with the 2006 election, when a single candidate from the opposition was a person from the structures of civil society and became a single candidate largely due to the support of NGos.
on the contrary, the scope of activities formerly associated with the opposition, received an impetus to the development in 2014 due to a complete break with the political agenda. initiatives in support of the Belarusian culture (Budzma Belarusami (‘Let’s be Belarusians!’), language courses (Mova nanova, Mova ciKava, etc.), distribution of embroidered shirts and Belarusian national symbols (symbal.by, Paznac Siabe Belarusam (‘Mark
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yourself as a Belarusian’) and other numerous and Internet-coordinated charitable, humanitarian, animal welfare projects ceased to encounter resistance from the authorities, and then received the support of business.
In the end, in the Belarusian civil society the final understanding was formed that is the mission of any organization, no matter how this mission is linked to political objectives (strengthening of national identity and advocating the interests of business, the protection of human rights), can be sooner implemented if the question of power and the unacceptability of the regime are removed from the agenda. recent protest activity is increasingly taking place spontaneously, without the participation of civil society organizations and even without the desire of NGos to use or accept the agenda, created in the process of expression of social discontent and protests against the deteriorating socio-economic situation in the country.5
Elements of public dialogue
in December 2014 the Ministry of Foreign affairs of Belarus invited human rights NPos to discuss the draft national report of the republic of Belarus on the implementation of recommendations received by the end of the first round in 2010, in the framework of the ii round of the united nations universal Periodic review (uPR) of human rights.6 The invited organizations had the opportunity to provide comments to the draft national report. However, unlike during the preparation of the report within the first round of the UPR in 2009—2010, this time representatives of unregistered NPOs were not involved in the discussion. In the final version of the national report recommendations made by NPOs were not taken into account, the
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Чыжова, Таццяна. “Пратэстная актыўнасць ў Беларусі ў 2014 годзе (вулічныя акцыі, выбарчыя пікеты, сацыяльныя канфлікты).” Інстытут “Палітычная сфера”. Web 8 Apr. 2015. <http://palityka.org/ wp-content/uploads/2015/03/Chyzhova_Pratesty-2104.pdf>. “Национальный доклад к универсальному периодическому обзору (второй цикл). Республика Беларусь. Минск, 2015 год.” Министерство иностранных дел Республики Беларусь. Web. 8 Apr. 2015. <http://mfa.gov.by/upload/UPR_Belarus_National_Report.pdf>.
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consultations of NPOs with the government were of a purely formal character.7
According to the results of the first round of the uPR in 2010, Belarus received recommendations to improve the observation of freedom of association and the legal environment for civil society organizations. some of these recommendations were recognized by Belarus as acceptable, but in the end no changes for the better happened in this area: the legal conditions for the implementation of freedom of association and NPos remain the worst in the region. NPos prepared a number of alternative reports to the uPR, including a General report of a Broad Coalition of Human rights organizations,8 as well as a special report on the Legal status of NPos and Freedom of Association.
In December 2014 the Ministry of Economy submitted for public discussion a draft National strategy of sustainable socioeconomic development of the Republic of Belarus for the period till 2030 (NSSD—2030). A number of nonprofit organizations sent their proposals to the draft of this document, most of which were not taken into account.
In comparison with previous years the dialogue platform of the civil society forum Eastern Partnership lost its significance. Ignoring by the state of this structure has led to the fact that NPos ceased to consider it as an effective tool: the intensity of communication in the framework of the forum decreased, and the annual conference of the forum ceased to be an event in the sector and collected fewer participants than in previous years.
NGos attempts to influence the dialogue about the possible entry of Belarus to the Bologna process were active but not efficient. However, the promotion of the public dialogue by the * 1
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“Ольга Смолянко: В Наццокладе МИД нет объективной оценки ситуации со свободой ассоциаций в Беларуси.” EuroBelarus.
1 Apr. 2015. Web. 8 Apr. 2015. <http://www.lawtrend.org/freedom-of-association/olga-smolyanko-v-natsdoklade-mid-net-obektivnoj-otsenki-situatsii-so-svobodoj-assotsiatsij-v-belarusi>.
“Второй периодический обзор Беларуси. Доклад коалиции белорусских НПО.” РПГА “Беларускі Хельсінкскі Камітэт”. 15 Sep. 2014. Web. 8 Apr. 2015. <http://belhelcom.org/sites/default/files/ Альтернативный доклад по УПО_Беларусь_ru.pdf>.
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state is observed in those areas where such a dialogue serves as an additional incentive to attract foreign financial assistance.9
Conclusion
it is likely that the above mentioned trends are long-term. Provided that the political regime remains the same, NGos will distance themselves from political activities, tending to occupy a favorable position in the process of interaction with the state (even if this interaction is ineffective) to avoid repressive reactions to their activities.
Tough legislation has probably reached its peak, which allows the state to control civil society within the required limits. new restrictive regulations may be introduced, but they are rarely enforced and rather serve as a preventative means to keep NPos within the required bounds and support the mentioned trend of depoliticization.
This trend can be changed by events associated with the presidential election of 2015, if a repressive response from the authorities goes beyond the ordinary level, as it happened in 2010. at the long-term normalization along the line official Minsk — Europe some gradual qualitative changes aimed at normalizing relations between the state and civil society can be expected, including gradual change to the legal framework for NPOs.
The second factor that may influence the development of the NPO sector, and the country as a whole, is the conflict in the east of ukraine. along with the development of humanitarian initiatives (assistance to victims and reception of refugees) a possible escalation of the war may, on the one hand, transform the agenda of NPOs in the direction of greater depoliticization and orientation on the stability of the political system, on the other hand, it may contribute to the radicalization of some social groups.
Зуйкова, Алена and Андрей Егоров. “Роль и место гражданского общества в системе донорской помощи для Беларуси (2006—2012).” EuroBelarus. 12 Dec. 2014. Web. 8 Apr. 2015. <http://cet.eurobelarus. info/ru/library/publication/2014/12/09/rol-i-mesto-grazhdanskogo-obschestva-v-sisteme-donorskoy.html>.
