Series of restrictive draft laws may negatively affect the civil society environment in Ukraine: March-May 2020

Over the past months, there have been several legislative initiatives that negatively affect the environment in which civil society functions. The initiatives are not in line with international standards and may restrict the rights to freedom of association, peaceful assembly and expression, as well as limit the access to funding and participation in policy-making. Several of the initiatives, including from ruling party MPs, attempt to introduce foreign funding limitations or introduce the concept of “foreign agent” legislation in Ukraine. It remains to be seen if any such proposals would be eventually adopted but the mere abundance of such attempts is a worrying sign for the potential threat to civil society in Ukraine. A brief overview with rapid analysis and interpretation against international standards of these draft laws is available below and organized around the areas we have identified as violated according to our CSO Meter framework:  

Limitations to the freedom of association and participation in decision-making

  • Four draft laws on lobbying and advocacy were registered (No. 3059 «On state registration of subjects of lobbying and lobbying in Ukraine»; Draft Law No. 3059-1 «On lobbying»; No. 3059-2 «On legal and transparent regulation of lobbying», No. 3059-3 «On lobbying»). The draft laws are not in line with international standards. Namely, they provide broad definition of lobbying which might be applied to any interaction between civil society and public authorities, instead of being clearly and narrowly defined. Also they provide high and disproportionate penalties for violating the laws, instead of following the principles of necessity and proportionality. Such provisions in the laws can affect the ability of CSOs to engage in the public debate and participate in the decision-making process (e.g. different advocacy efforts on national and local level), and put forward excessive burden and potential harassment.

Limitations to the freedom of association and access to funding

  • A draft law No. 3193-1 «Draft Law on amendments to legislative acts to ensure equal rights and opportunities for citizens in representation in supervisory boards and governing bodies of state unitary enterprises, business associations and state banks and fair formation and effective operation of such supervisory boards taking into Ukraine’s national interests» (Servant of the People) was registered. Namely, according to the amendments, members of CSOs who cooperated with foreign donors are prohibited from being members of the supervisory boards of state-owned enterprises and banks. This is not in line with international standards, as CSOs and the individuals associated with them, should not be subject to discriminatory measures by state bodies, as a result of cooperating with foreign donors. Such provisions further contribute to stigmatization of the civil society sector.
  • A draft with similar objectives but with much further reach is Draft Law No. 3564 on Amendments to Some Legal Acts Regarding Transparency of CSOs Receiving Foreign Funding which was registered at the Parliament by MP Oleksandr Dubynskyy (Servant of the People) on May 29, 2020. In addition to prohibiting the leadership of CSOs having received foreign funding for the last 5 years to be CEOs or members of the Steering Committees of public enterprises and enterprises with public share, it also proposes an amendment to the Law on Public Associations introducing the concept of “foreign agent” in Ukraine. Under the proposed amendment, CSOs receiving foreign funding will have to:
    • include a disclaimer in their publications that they are funded from abroad;
    • provide copies of such publications to the Ministry of Justice;
    • submit separate annual reports listing the foreign sources of funding to the Ministry of Justice (that will create a register of CSOs with foreign funding on its website) and Parliament, as well as publish them on their websites; and
    • the leadership of such CSOs shall be tested for polygraph to verify whether there is a potential betrayal of the state interests of Ukraine.

The draft law would cover all public associations receiving funding from foreign countries, international organizations, foreign NGOs, foreign individuals, including funds from international technical assistance, if they meet the following criteria: (1) conduct activities in the area of democracy, governance, law enforcement, foreign policy, etc., (2) the foreign support received during calendar year is over 50% of the CSO total annual funding; and (3) the total funding of such CSOs is over EUR 50 000. In addition, the draft law also applies to charities that received over 50% of their total annual funding from foreign support during the calendar year.

  • A draft law No. 3326 (Opposition Platform – For Life) on Amendments to the Law of Ukraine “On purification of power” (on prevention of external influence on the interests of the state). The Draft Law prohibits members and employees of CSOs receiving funds from international donors to hold public office. Moreover, all public officials who were members of such CSOs in the last 10 years shall be dismissed. This is a violation of citizen’s right to hold a public office. Similarly, as above, the members of the CSOs that received funds from international donors should not be subject to discriminatory measures by state bodies.
  • A draft law «On supplementary reporting for CSOs and the electronic declaration of CSO leaders» (Servant of the People): the document introduces an electronic declaration of property and income for CSO managers who have received a grant from a ministry or city council. Additional detailed reporting is also required from the CSOs that have received the grant. These provisions are not in line with international standards. Namely, CSOs themselves, as well as their members, donors and employees should not be special objects of state control (e.g. declaring property and income). Furthermore, oversight and supervision of CSOs should not be more exacting than the oversight and supervision applicable to private businesses. Finally, the reporting requirements for both recipients and providers of funding should not be burdensome and create additional pressure on CSOs (this draft law has not yet been introduced in Parliament).

Limitations to freedom of assembly and expression

  • A draft law No. 3291 «On the prohibition of peaceful assembly at the courts» (Servant of the People) restricts the right to peaceful assembly. It is forbidden to hold meetings, demonstrations, pickets, protests at a distance 50 meters and less to the premises of court buildings. It is also forbidden to post and display posters, banners, flags, political symbols, loudspeakers, sound reproducing and lighting equipment. The National Police of Ukraine and the National Guard of Ukraine may suspend such meetings. These limitations are not in line with international standards as organizers should be able to choose the place of gathering. The limitation on posting and displaying posters, banners, etc. is also not in line with international standards. Namely, the freedom of expression provides the right to seek, receive and impart information and ideas in any possible form. Freedom of expression may be limited, but based on clear law and strictly necessary to achieve legitimate aims.