Imagine that you are a student and you become a member of the University Student Club that organizes debates and other student activities. The organization receives funding from a partner University abroad to support some of its activities, or even to provide scholarships to underprivileged students. 4 years later, after you graduate with honors, you apply for a job in the state administration as you believe your knowledge could be used in support of your country. But then suddenly you learn that there is a law that prohibits all members of associations (like the University Student Club) that have received funding from abroad to become state officials.
Or imagine that you are a young expert that has already developed a career in the state administration and have risen to be one of the most respected experts in the Ministry. You could be the next head of department or maybe the next vice-minister. But the Parliament has just adopted a new law that disqualifies you from serving in the state administration and you are fired because 8 years ago you were a member of a sports association that received funding from abroad.
Or imagine that you are the Board member of a respected organization helping young children without parents. The organization is famous and supported by a number of people and institutions in your country but still part of its funding comes from foreign sources. A new law is adopted that will require that you pass every year a polygraph test to prove you are loyal to your country and do not serve foreign interests.
While these cases seem fictional, they could become a reality for Ukraine. Currently 3 draft laws have been introduced in the Ukrainian Parliament which would impose limitations to the work of CSOs such as:
- Prohibition for certain individuals associated with foreign-funded CSOs to serve either on the Boards of state banks, state enterprises or to be state officials;
- Introduction of a special regime of registration and reporting for foreign-funded CSOs;
- A requirement for executive managers and/or persons, elected to the senior organ of a foreign-funded CSO to pass a polygraph test.
The three draft laws are
- draft law 3193-1 on state bodies,
- draft law 3326 on lustration and
- draft law 3564 on foreign funding.
The draft law 3193-1 on state bodies introduces limitations for people associated with foreign-funded CSOs to serve as members of the supervisory boards of state-owned enterprises and business associations, as well as state banks.
The proposed amendments to the draft law 3326 on lustration impose a ban on individuals to become state officials, if they have been engaged in the last 10 years with a CSO (public association or another non-profit company) which directly or through some third parties has received funds, property or services from foreign sources.
The draft law 3564 on foreign funding contains the most restrictions and introduces several requirements for organisations receiving foreign funding and the people associated with them including limitations to become state officials; requiring organizations to register as organizations “with foreign support”; subjecting such organizations to additional reporting; labelling all materials and communication from such organizations as prepared with foreign support; and requiring executive managers and/or persons, elected to the senior organ of a public association with foreign support to pass a polygraph test (with their consent), among others.
Based on request from local partners, ECNL reviewed the draft laws regarding their compliance with international and European standards and provided an initial analysis of the law. ECNL is concerned that the draft laws are likely not compliant with international and European standards as they interfere with freedom of association, access to funding, privacy, as well as the prohibition of discrimination and inhuman and degrading treatment. They also seem not to be compliant with the principles of legality, foreseeability and legitimate aim of the restrictions.
If adopted the draft laws will:
- Stigmatise CSOs;
- Have retroactive effect (and sanction individuals for engaging in activities which at the time of their implementation were not illegal);
- Lead to legal uncertainty (as to which individuals may be affected and in what cases);
- Discriminate specifically against individuals engaged with CSOs;
- Violate the privacy and human dignity of CSO leaders that will have to prove their loyalty to Ukraine by passing a polygraph test.
As a general effect, the draft laws will likely discourage individuals to engage with CSOs because of the possible negative consequences that may affect them personally.
The analysis was prepared as part of the Technical Assistance Ukraine project, managed by the European Center for Not-for-Profit Law Stichting (ECNL). The project is made possible by the International Center for Not-for-Profit Law (ICNL) through the Civic Space Initiative, financed by the Government of Sweden.The analysis was produced partially with the financial support of the European Union.