2011 24/09
zakon

Belarusian existing system of registration of public associations and political parties is very complicated and provides official ample opportunities to restrict constitutional right to freedom of association.

A series of civil cases challenging the decisions of the Ministry of Justice of the Republic of Belarus about refusal of registration of a public association continue in Belarus.

Another complaint is about a refusal of the Justice Ministry to register the Human Rights NGO “For Fair Elections”. The first meeting on the case was held on September 20 in the Supreme Court. And although the decision on the case is still pending, one of the founders of the association Valer Uhnaliou already told the reporter of UDF.BY that, in his opinion, the Supreme Court will not satisfy their complaint.

As told by Valer Uhnaliou, the main arguments of the founders were not accepted by the court. The court dismissed the petition for the admission of videotapes of the constituent assembly as evidence that the meeting took place in accordance with the law.

- The court took into account the unfounded, unsubstantiated allegations of the representative of the Ministry of Justice that the constituent assembly didn’t take place, or took place not the right way and not the right place, and in general it is impossible to hold a meeting in such a short time. The main conclusion of the Ministry of Justice – the documents we have filed for registration are fraudulent, – said V. Uhnaliou. He noted that all the arguments of Justice Ministry could be refuted, if the video was accepted as a document of the case.

Taking into account all similar previous cases, as well as the current legislation in Belarus, the founders of the new public association have really little reason to be optimistic. “Shtodzionnik” conducted a legal analysis of the situation to find out how real it was to register a public association in Belarus and what difficulties would members of civil society face when trying to do this.

It should be noted at once that in contrast to significantly simplified procedure of state registration of commercial entities and individual entrepreneurs, the procedure of state registration of public associations and political parties in recent years remained practically unchanged and is still very bureaucratic, which provides the registration authority wide powers to refuse such registration.

For example, under regulation of the state registration of business entities approved by the Decree № 1 of the President of Republic of Belarus of 16.01.2009, citizens of Belarus shall file a registration authority only three documents for state registration of a commercial legal entity:

- Application on state registration according to the Ministry of Justice approved form.
- Charter (foundation agreement – for profit organization serving only on the basis of the foundation agreement) in duplicate without notarization, its electronic copy.
- The original or a copy of payment document confirming payment of state fees.

Additionally you may need only a report of the constituent assembly, if the number of founders is more than three people, and they commissioned one of them to sign the appeal.

The provision also prohibits the registration authority to demand any other documents from the founders.

Also, the registration authority is given only three fair and understandable reasons for not implementing the registration of a commercial legal entity, which virtually eliminate abuse by officials. They are as follows:

- Failure to submit all necessary documents for state registration of certain provisions;
- Processing the application for state registration with violation of legal requirements;
- Submission of documents to the wrong registration authority.

It is not surprising that the procedure of state registration of the entity in Belarus is one of the most liberal in the world, and such registration procedure belongs to the declarative by right.

Completely different is the situation with registration of public association in Belarus.

In addition to the declaration, charter and payment of state duty, the citizens of Belarus who wish to establish a public association shall provide the registering body the following:

- Minutes of the founding congress, conference, general meeting or any other constituent assembly;
- The list of founders, in the prescribed form, which among other things, provides an indication of place of work (study) of each founder and work phone number;
- List of members of elected bodies of the association in the prescribed form, with the same data as in the previous list;
- Decision of the supreme body of the association on the investment of at least three members of the governing body of the association with the authority to represent the association in the process of state registration or in court (if the decision is reflected in the minutes of the constituent events, a separate document is not required);
- Document certifying the legal address of association (the location of the governing body);
- Proof of payment for reporting on the state registration of the association in a periodical;
- Graphical presentation of the organizational structures of the association, indicating their location, which is a scheme of statutory bodies and organizational structures including their subordination relations.

In general, this list of required documents is much bigger than when registering a commercial entity. But, still it is not as terrible as it seems at first glance. If desired, all of these documents are possible to collect without serious time and money.

The process of reviewing the documents by the registering authority is of much greater interest.

Let me remind you that the when registering the commercial entity the executive committees consider only the submitted documents and the contents of the application for state registration. If there are no grounds for refusal of registration, a new commercial entity will be born on the same day without any founder’s suffering.

But in considering the documents submitted for registration of public association bodies the Ministry of Justice is lodged with greater powers.

First, the decision on registration of a public association takes 30 times longer (one month).

Secondly, the registrar examines not only the application but also the charter and other documents for their compliance with legislation, good order and the validity of the documents, validity of the information contained in the documents and whether the name of association is corresponding to the laws. In layman’s terms, it will be also interesting to know that Belarusian legislation even lays stress to the font size and spacing line in all documents.

Thirdly, the registration authorities when necessary (legislation does not specify the necessity cases) check the submitted documents by:

- requiring for familiarization original versions of documents and other materials from the applicant;
- requiring information and explanations from the representatives of associations and other interested individuals and organizations on issues related to the state registration of the association;
- Requesting the state bodies, institutions and organizations;
- Obtaining opinions of public officials and experts on issues arising in connection with state registration of associations;
- Other actions arising from the law.

The list of grounds under which authorities of the Ministry of Justice have the right to refuse registration of public association also thrills. This decision is made in case of:

- violation of the established order of creation of the association, if such violation is unrecoverable;
- Non-compliance with the constituent documents of association with the legislation;
- presentation of other documents and (or) information that does not meet the requirements of the law, including fraudulent, counterfeit or invalid documents;
- inconsistency of the name of association, including abbreviated, conditions of membership in the union with legal requirements and (or) their constituent documents;
- not eliminating of violations that led to the suspension of state registration of the association within one month.

All these facts actually show that one can legitimately refuse registration of the public association on the grounds that in the list of founders their office phone number or work location of one of the founders has been listed incorrectly, or because the protocol of the constituent assembly was printed in 13 font size.

Naturally, as the true state of law, Belarus provides its citizens the right to appeal against the refusal of the Ministry of Justice to the appropriate court, as did the founders of the Human Rights NGO mentioned above “For Fair Elections”.

Civil Procedure Code of Republic of Belarus formalized the principles of such justice, including:

- Each party is to prove the facts relied upon as the basis of their claims or demands;
- For the court none of the evidence has predetermined force;
- The basis of the decision on the case can only be formed by evidence subjected to thorough and objective review.

In such cases it should be taken into account that if at the ordinary civil process parties are of equal rights and responsibilities, in civil proceedings at case examining coming out from administrative legal relations, the legislator has provided some benefit to the applicant of the complaint. So according to art.339 of Civil Procedural Code of Republic of Belarus, the court examines the legality and validity of the actions of state bodies, organizations and officials, whose actions (inaction) are being appealed, and in cases formalized by law – just their legality.

State organs, organizations and officials must provide the court with the materials which were the basis for relevant action (or inaction).

If we apply this to the court’s review of the complaint related to the refusal of the Ministry of Justice to register the public association on Human Rights “For Fair Elections”, in this case, the Ministry of Justice is charged to provide the court with credible and properly made proof that the documents for the registration of public association are fraudulent. The founders of public associations are not required to prove the reverse, although they have the right to do so.

In general, on paper everything is done for any unjustified act of officials, including officials from the Ministry of Justice to be canceled. But the practice review of similar cases in Belarus is for some reason formed in favor of the Justice Ministry. Perhaps, indeed, the law is not as terrible as those who interpret it.

Aliaksandr Mіshyn

Quoting www.ej.by,
Prepared by Ales LETA,
Belarusian Legal Portal,
by.prava-by.info

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