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CIVIL SOCIETY: NEW GEOPOLITICAL REALITIES AND CHALLENGES OF FINANCIAL STABILITY
Yury Chausov
Summary
In 2015, the search for ways to normalize relations of Belarus with the West was the main factor influencing the activities of civil society organizations (CSO). Legal restrictions for CSOs remained the same, including political censorship during the registration of public associations and foundations, undesirable for the authorities. However, the authorities reformed the legislation on foreign funding, which affected the interests of CSOs.
Under the influence of the conflict in Ukraine and taking into account the role of Minsk as a negotiating platform, the West aimed for normalization of relations with the Belarusian authorities, which contributed both to opening of new 'windows of opportunity' for CSOs and to reducing the impact of those CSOs of the democratic spectrum which were integrated into a confrontational model of relations of foreign policy actors in the previous five years.
Trends:
• Permanent regulatory restrictions for CSOs;
• Simplification for donors funding governmental projects and programs along unchanged conditions for attracting CSO financing;
• Reducing impact of human rights organizations and CSOs as democratic lobbyists on the international arena;
• Opening of opportunities for a dialogue of CSOs with the government without achieving any notable results;
• Changing conditions of CSOs functioning in connection with the thaw in relations between Belarus and the West;
• A growing importance of social, charitable and cultural projects in civil society.
In 2015, the Belarusian Third Sector nominated less highprofile initiatives than in previous years. Large-scale projects and strategies which used to be popular did not capture global attention in the circles of civil society. If on the eve of the previous parliamentary elections the politicized part claimed a decisive role in political processes, in 2015 civil
society did not show interest in the upcoming presidential elections.
From an ambition to understand the interaction of the EU with Belarus (shown in the 'Dialogue on Modernization') the sector moved to much more mundane aims that is to expert assistance to the government in the implementation of economic reforms in the framework of the program 'Reforum'. If earlier discussions about the European sanctions against Belarus were a topic of heated debate, after the presidential elections CSOs perceived the suspension (with a view to complete abolishing) of sanctions if not indifferently then at least calmly.
These processes can be assessed in different ways: negatively— as a failure of CSOs in a political struggle, or positively — as a return of the Third Sector to their primary functions and the release of CSOs from political aspirations that are not typical for them. In any case, these processes influenced the concentration of CSO projects on narrow topics and industry trends, as well as on a further elimination of fundamental differences between CSOs of the democratic spectrum and NGOs loyal to the authorities.
In June 2015 the national platform of the civil society Forum Eastern Partnership, an influential actor at the European level, changed its leader to a former Chairwoman of the Council of youth and children's organizations Svetlana Koroleva and took a course on turning into a full-fledged umbrella structure with developed regulations, a permanent executive and membership. Against this background, the number of participants in the conferences of the National platform dramatically reduced and the refusal of political ambitions was accompanied by an intensification of work in sectoral working groups corresponding to the components of the Eastern Partnership.
Within the sector the previous trends of increasing depoli-ticization continued. During the presidential election campaign nearly all democratic CSOs, with the exception of those that specialize in election monitoring, either ignored the campaign or were sharply critical of the participants. It is significant that as a result of the election the national platform of the FCS Eastern Partnership issued a statement imposing responsibility
for falsification of the election on the current government and the opposition.1
Overall, national CSOs are still present on the arena of Belarusian-European cooperation, but their influence has waned: they do not form trends anymore and follow a course in the footsteps defined by the state and the European subjects.
The state sets the rhythm and processes within the country. Loyalty to popularization of the national culture symbols makes the increased demand for embroidered t-shirts not an intrasectoral phenomenon but a serious fashion. Tolerant (in comparison with obtaining foreign funding for CSOs) attitude to the processes of crowdfunding, social entrepreneurship, various forms of non-political interaction of CSOs with business within the charity and corporate social responsibility makes the mentioned directions attractive for CSOs.
On the other hand, illustrative regulatory restrictions on the activities of some CSOs remain. Thus, only a direct political solution did not let a criminal case of the ethno-anarchist band Poshuh turn into a new large-scale process with new political prisoners. In December 2015, Belarusian human rights community recognized Mikhail Zhemchuzhny, a founder of the organization Platform, as a political prisoner.
Thus, in 2015 the most important factors in the development of civil society were connected with the external conditions for their activity, to which the organizations adapted.
Growth statistics of the nonprofit sector
According to the Ministry of Justice, in 2015 106 new NGOs were registered in Belarus, which generally corresponds to the usual rate of associations registered annually (see Table 1). Compared with 2014, the total number of registered NGOs increased by 2.7% (from 2 596 on January 1, 2015 to 2 665 on January 1, 2016). Also during the year 11 new funds were registered (see Table 2).
"Беларуская нацыянальная платформа паставша кропку у выбарчай кампани 2015 года." Civil Society Forum. 1 Dec. 2016. Web. 12 Apr. 2016. <http://npbelarus.info/belaruskaya-natsyiyanalnaya-platforma-p/>.
Table 1. The development of the number of NGOs in Belarus, 2003—2016
m © in r- oc o\ o fS m in
o o o © o o o © ^ g ^ g g
fS fS fS © fS © fS © fS © fS o fS fS fS o fS fS fS fS
S3 t b b b b b b b b b b b b
-a o = = £ £ £
u Q i — § i i i i i i i i 1 i i
1-S 1"! 1"! 1"! 1-S 1-S 1-S I-! 1-S 1-S 1-S 1-S 1-S
O O
The number of newly registered
NGOs (based on the results of 94 155 61 85 100 94 — 94 134 118 111 70 86 106
the previous year)
The total number of registered
NGOs in the country on a 2248 2214 2259 2247 2248 2255 2221 2225 2325 2402 2477 2521 2596 2665
certain date
Table 2. The development of the number of funds in Belarus, 2008—2016
oo o o\ o o fS m m
fS b fS b fS b fS b fS b fS b fS b fS b fS b
£ £ £ £
§ § § § § § § § §
1-S 1-S 1-S 1-S 1-S 1-S 1-S 1-S 1"!
The number of newly registered funds (at the end of the previous year) 9 9 8 14 21 22 11 11 11
The total number of registered funds in the country on a certain date 64 75 84 99 119 139 145 155 164
In spring 2015 the information about the newly registered legal persons was removed from the website of the Ministry of Justice in the process of website reorganization. On the site a section on registered NGOs and their associations was left. However, the data are renewed not regularly; the information about some registered organizations is not reflected in this section. The removal of this information eliminates the possibility of a full quantitative and qualitative analysis of registered non-profit organizations, because there is no data on the registration of institutions that have recently become the most popular form for the registration of CSOs.
Changes in legislation affecting the financial activities of CSOs
On August 23, 2015, the President signed Decree No. 5 On foreign gratuitous aid that approved the Regulations on the procedure for obtaining, recording, registration, use of foreign gratuitous aid (FGA). This act does not change the rigid restrictive system of registration and use of the FGA.2
The new system of FGA registration established by the decree does not conform to international obligations of Belarus and to the international standards in the field of freedom of association, e. g. to the OSCE guidelines on freedom of association. Laws of Belarus in this area remain one of the toughest in the OSCE region, even taking into account the general trend of stricter regulation of foreign financing in the CIS countries.
The decree saves the need for pre-registration of FGA at the Department on Humanitarian Activity of the Administrative Department of the President, which allows the authorities to arbitrarily refuse permission to use the FGA. Also limits of the list of purposes for which FGA may be obtained, remain. New items were added to the list, however it does not include the following: educational activities, human rights, promotion of
«Анализ изменений законодательства об иностранной безвозмездной помощи.» Lawtrend. Web. 12 Apr. 2016. <http://www.lawtrend.org/free-dom-of-association/analiz-izmenenij-zakonodatelstva-ob-inostrannoj-bezvozmezdnoj-pomoshhi>.
a healthy lifestyle, gender equality, protection of animals and other aspects of NGO activities. FGA for purposes that are not listed can be obtained only by a decision of the office of the President. FGA senders are citizens of Belarus, permanently residing abroad, and foreign citizens; FGA recipients are classified as foreign citizens and stateless persons permanently residing in Belarus.
Positive changes introduced by the new decree include an exception from the concept of the FGA of anonymous donations received in Belarus. This eliminates the statutory provision, which did not work in practice, but turned the work of the charity and other organizations on the use of funds collected in the donation boxes into punishable activities.
The decree imposes more stringent reporting requirements, strengthens state control over the use of the obtained FGA, complicates the process of exemption of this aid from taxes, and creates a preference to humanitarian projects and programs approved by the state, compared to the projects of CSOs. The administrative and criminal responsibility for violation of the order for usage of foreign donations, which is criticized by civil society, remains. For public associations, even a single violation of the procedure for obtaining the FGA may be grounds for liquidation.
In 2015 there was a reform of international technical assistance (ITA). On October 23 a number of regulations on implementation of ITA projects (programs) came into force, the resolution of the Council of Ministers of the Republic of Belarus of July 13, 2015 No. 590 On changes and amendments in some resolutions of the Council of Ministers of the Republic of Belarus can be considered the main of them. The regulation introduced a one stop principle in all ITA projects through the Ministry of Economy, reduced the number of documents for registration and processing.
The Commission on international technical cooperation under the Council of Ministers created the Coordination Council with the participation of representatives of state bodies, non-governmental sector (including representatives of the Belarusian Helsinki Committee and other independent CSOs), ITA donors. The Center for international
technical assistance of the European Union was established in Minsk.3
Despite a number of technical improvements the principle of the permissive system of FGA and ITA registration that does not meet the international obligations of Belarus, remained unchanged. The problem of distinguishing FGA and ITA concepts remained. A new procedure of obtaining and registering aid from abroad facilitates the efforts of state agencies, but does not simplify the task for NGOs.4
Now the FGA and ITA looks for the Belarusian government like an attractive target grants which, unlike loans, should not be returned. Even in the period of confrontation with the European Union and the U.S. Belarus received more than EUR 100 million of aid a year from foreign foundations, and an increase of the flow (perceived as subsidies) under the conditions of crisis can be very helpful.
The Belarusian Foreign Ministry began negotiations with German political foundations (the Friedrich Ebert Foundation and the Adenauer Foundation) about the opening of their missions in Minsk.
The law of the Republic of Belarus of December 30, 2015 On amendments and additions to some laws of the Republic ofBelarus on entrepreneurial activity and taxation5 expanded the number of recipients of tax benefits, but the practice of nominal naming of recipients of corporate donations in the Tax code that exist in the preferential regime, remained unchanged.
«Положение о Центре международной технической помощи Европейского Союза в Республике Беларусь.» Центр МТП ЕС в Беларуси. Web. 12 Apr. 2016. <http://cu4eu.by/coordination_unit/position.> «Нововведения в законодательство о реализации проектов международной технической помощи: обзор и комментарий.» Lawtrends. Web 12 Apr. 2016. <http://www.lawtrend.org/freedom-of-association/novovvedeniya-v-zakonodatelstvo-o-realizatsii-proektov-mezhdunarodnoj-tehnicheskoj-pomoshhi-obzor-i-kommentarij-lawtrend.>
«О внесении изменений и дополнений в некоторые законы Республики Беларусь по вопросам предпринимательской деятельности и налогообложения.» Национальный правовой Интернет-портал Республики Беларусь. 1 Jan. 2016. Web. 12 Apr. 2016. <http://www.pravo. by/main.aspx?guid=12551&p0=H11500343&p1=1>.
4
Under the conditions of complicated humanitarian aid and the economic crisis, in 2015 the Belarusian CSOs actively developed crowdfunding mechanisms. Platforms for charity and social projects fundraising Ulej.by, Maesens.by and Talaka became the most visible manifestations of this trend. It appears that the change of attitude to internal fundraising, the increase in the share of domestically collected funds for CSO projects should soon become a long-term trend that will inevitably entail a change in the direction of organizations.
Restrictions on activities of civil society organizations
The practice of unjustified refusals to register NGOs and foundations continued. On June 10—11, the Supreme Court of Belarus considered the complaint of the initiators of the human rights association 'For fair elections' on the refusal to register the organization. The Ministry of Justice for the third time refused to register this association (the first time was in 2011, the second one in 2013).
The UN Committee on human rights prepared considerations of October 10, 2014 No. 2153/2012 in connection with the second refusal to register the association 'For fair elections' which took place in 2013. According to the considerations, the Republic of Belarus violated the rights of citizens to freedom of association, when it had not registered the organization in 2011 during the first attempt to obtain the status of a legal entity. Nevertheless, on June 11, 2015 once again, the Supreme Court declared the decision of the Ministry of Justice to refuse the Association in registration legal and reasonable.
The case of refusal to register the association 'For fair elections' is an illustration of many problems with the freedom of CSOs in Belarus: organizations repeatedly and for extended periods of time are denied in registration due to either minor and easily avoidable violations of a technical nature, or due to surveys of founders that are unspecified by law. However, the courts do not overturn decisions of the registering authorities to refuse the registration, and the decisions of the UN Committee on human rights concerning violations of freedom of association are not fulfilled.
The Ministry of Justice also refused to register the youth NGO 'Modern view' of the National research and educational association 'Tell the truth', a socio-educational public association 'Movement of mothers 328', and a Cultural and educational public association 'New alternative'. In the last two cases the legal authorities introduced a dangerous practice that could potentially become a serious threat to the creation of any new NGO: the reason for the refusal was the presence of subject activities and tasks in the statutes of these two CSOs that go beyond the limits specified in name of the nature of their activities.
Common unreasonable refusals in registration of new NGOs facilitate the registration of CSOs in the form of institutions nonprofit organizations, created by one owner. Due to the relatively simple procedure of registration, this form is becoming more popular for newly established organizations. However, a number of activities (e.g. representation of interests of organization members in court, protection of their rights and legitimate interests in governmental bodies, the nomination of representatives to electoral commissions or election observers) are not available for CSOs that are registered as institutions.
Criminal responsibility for activity of unregistered CSOs under article 1931 of the Criminal code envisaging punishment by a fine, arrest or deprivation of liberty for a term up to two years, remains one of the most serious restrictions of freedom of association in the Belarusian legislation, despite the fact that new sentences under this article have not been recorded since 2008. In 2015, the examination under article 1931 of the Criminal code of the activity of unregistered religious organizations was carried out in respect of one of the Protestant churches of Homiel due to the fact that it conducted worship services outside the district in which it was registered.6
The facts of pressure on CSO7 activists and the preservation of restrictive regulation of their activities did not become an
"Гомельская пракуратура папярэдзша пастара Шкалаенку." Гомельская весна. 28 July 2015. Web. 12 Apr. 2016. <http://gomelspring.org/be/ news/4078.>
«Ситуация с правами человека. Аналитический обзор.» Правааба-рончы цэнтр "Вясна". Web. 12 Apr. 2016. <http://spring96.org/files/ reviews/ru/review_2015_ru.pdf>.
obstacle to the start of a dialogue between Belarus and the European Union and the United States. After the release of political prisoners and the presidential election almost without the use of violence, the way to the dialogue of the official Minsk with the Western partners opened.
Currently, the value of the dialogue and interaction with the Belarusian authorities to Western partners outweighs the importance of human rights and freedoms for CSOs. Under these circumstances external actors cease to consider the attitude of the CSOs that communicate human rights and a democratic agenda, and pay more attention to those CSOs that are ready for dialogue with the state authorities and the promotion of ideas of evolutionary change in Belarus.
Conclusion
Due to reduced external financing and increased competition, as well as the reorientation of major donors on priority financing of state programs and projects of CSOs loyal to the authorities, in cooperation with state agencies, organizations that in the previous two decades were the hallmark of Belarusian civil society will be replaced by organizations of a different orientation. It is possible to predict the growth of social and charity CSOs, especially those that combine external funding with fundraising for the activities within the country using both crowdfunding and corporate donations, as well as the growth of loyal CSOs, building their work on an open model without an explicit and direct confrontation with the existing political model. This will entail refocusing of the activities of many CSOs, especially in terms of dialogue facilitation inside the country. The question whether this model of activity is more efficient compared to its predecessor remains open.
