The International Journal
of Not-for-Profit Law
Volume 1, Issue 1, September 1998
ICNL is working as part of USAID-funded consortia led by Counterpart International in the five Central Asian republics and in Ukraine and Belarus. In each republic, ICNL is supported by a local partner in the following five key areas:
- technical assistance for writing laws and regulations affecting NGOs;
- promoting appropriate implementation of NGO laws, developing in-country capacity on NGO legal issues;
- promoting NGO self-regulation, and
- fostering cross-border linkages.
Different elements of the program are given priority depending on the needs and political/legal environment of the respective republic in which ICNL is working. ICNL has local consultants working with it in each republic and relies heavily on their advice and input.
To the degree possible, each of these elements of ICNL’s work is accomplished through the process of encouraging NGO/Government/Parliament collaboration. This approach models the democracy-building sought by both USAID and ICNL throughout its worldwide program.
In addition to these projects funded by USAID, ICNL has worked in all of the other NIS Republics, working cooperatively with a variety of different partners and funders.
REGIONAL OVERVIEW – NGO Framework Legislation in Central Asia
The post-soviet law on Public Associations is currently in effect in all Central Asian countries (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan). Kazakhstan, Kyrgyzstan, Uzbekistan, and Turkmenistan adopted new Civil Codes, which contain provisions regulating non-commercial organizations. In all countries there are efforts taken by NGOs and/or governments to develop and adopt other NGO draft laws, which would regulate the NGO sector more comprehensively. In addition the implementation of the Law on Public Associations is different from country to country: from the most temperate, beneficial for NGOs approach in Kyrgyzstan to the most restrictive and repressive for NGOs in Turkmenistan.
For a complete listing of Documents ICNL has in its documentation center on the NIS/ Central Asia region, Click Here!
The Republic of Armenia is currently revising legislation affecting the not-for-profit sector. Ms. Nazeli Vardanian, Legal Specialist at the NGO Center (NGOC) sponsored by the Armenian Assembly of America, is currently reviewing the draft laws on Charity and on Grants. Local NGO groups are summarizing their suggestions on changes to these drafts for submission to the relevant parliamentary committees and for a follow-up dialogue meeting between representatives of government agencies, the RoA National Assembly, and NGOs. NGOC, together with the Young Lawyers’ Union, has been asked to review the existing NGO legislation in Armenia and has requested assistance from ICNL in performing this task. Review of the existing legislation has been necessitated by the adoption of a new Civil Code in early May. For further information on the legislative initiatives in Armenia, please contact Ms. Vardanian or the Director of NGOC, Nouneh Doudoyan at firstname.lastname@example.org.
NGOC is also publishing a newsletter “Armenian NGO News in Brief,” and the first issue appeared on September 14. For further information, including subscription information, please contact email@example.com. NGOC’s web site address is http://ngoc.am.
For a complete listing of Documents ICNL has in its documentation center on Armenia, Click Here!
The main law regulating NGOs in Azerbaijan is the Law on Public Associations (1992.) In 1997-1998 three new draft laws were prepared by Azeri NGOs with the assistance of international NGOs: the Law on Grants, the Law on Non-commercial Organizations, and the Law on Charity and Charitable Activity. However, only the draft Law on Grants was submitted to the Parliament. Even though it passed two readings it has not been adopted yet. In addition, the new Civil Code draft was prepared in 1997. It is expected that the new Civil Code will be presented to the Parliament for consideration in 1998.
For a complete listing of Documents ICNL has in its documentation center on Azerbaijan, Click Here!
1. Framework Legislation
The main law regulating NGOs is the Law on Public Associations (1992.) Other laws regulating NGOs are the Law on Freedom of Religious Confession and Associations (1992), the Law On Labor Unions (1992), and the Law on Political Parties (1994.) While many provisions of these laws do not satisfy the needs of NGOs, it is currently difficult for NGOs to initiate NGO law reform in Belarus.
In 1997 a new draft Civil Code was considered by the Parliament. If adopted, the new Civil Code would regulate organizational forms of NGOs similar to the Russian Civil Code. While approved by the Parliament the draft Civil Code was not approved by the President.
2. Tax Legislation
The main laws regulating taxation of NGOs are the Law on Taxes on Income and Profit (1991) and the Law on Value Added Tax (1992.) Most tax benefits are applied to all entities carrying out activities listed in tax laws. NGOs are free from paying income tax on entry- and membership- fees and donations if certain requirements of the law are followed. There is no differentiation between mutual and public benefit organizations.
Further information on the NGO legislation in Belarus can be obtained by contacting in Minsk Elena Tonkacheva, President of Belorussian NGO Independent Society for Legal Research (375-172)29 00 01 (tel/fax); (375-172) 36 55 17 (tel.), or in Washington Natalia Bourjaily, ICNL Program Director for NIS firstname.lastname@example.org.
For a complete listing of Documents ICNL has in its documentation center on Belarus, Click Here!
NGO legislation in Georgia is one of the most advanced and progressive in NIS. The Law on Public Associations was adopted in 1994. New Civil and Tax Codes were adopted in 1997. Georgian NGOs actively participated in drafting and lobbying these important laws. The Law on Non-commercial Organizations was drafted in 1997. It is expected that it will be considered by the Parliament in 1998. In addition, NGOs prepared a draft Law on Charity, which was considered by NGOs throughout the country. However, different NGO groups had controversial opinions regarding this draft law, and many were not sure whether the law is needed.
The Georgian Young Lawyers Association (email@example.com), Horizonti Foundation (www.horizonti.org), and the have both participated in the development of the legislation in Georgia. Further information on the NGO legislation in Georgia can be obtained by contacting Natalia Bouijaily, ICNL Program Director for NIS at firstname.lastname@example.org.
ICNL’s Complete catalog of documents for Georgia can be found here!
Kazakhstan adopted a new Law on Public Associations in 1996. However, the 1996 Law on Public Associations contains provisions very similar to the provisions in other old post-soviet Public Associations laws. Religious organizations are still regulated under the same law as public associations. There is no differentiation between public benefit and mutual benefit associations in Kazakh legislation.
The Civil Code was adopted in 1994. The Civil Code has provisions on different forms of non-commercial organizations: institution, public association, consumer’s cooperatives, public foundations and religious associations. However, more comprehensive regulation of these forms of non-commercial organizations is required. Moreover, although the current legislation (Civil Code and Tax Code) contain references and benefits for “charitable” activities, nowhere can a definition of “charity” or “charitable activity” can be found in Kazakh law.
In 1997, the Ministry of Justice requested technical assistance from USAID to draft a law on Charity. Despite the request, the President of Kazakhstan adopted a List of Laws for the Parliament’s consideration in 1998, which does not include any form of NGO legislation. However, lack of enumeration in the list does not preclude the introduction of laws by parliamentary initiative. In early, 1998, a few of parliamentarians expressed interest in drafting new law defining charity and requested assistance from the UNDP and ICNL. Subsequently, a working group was formed under the auspices of the UNDP.
The current working group was established in May 1998, and is comprised of senators, deputies, international consultants and NGO representatives. This working group will be focusing on drafting the Law on Charity and lobbying the government to include NGO law in the 1999 Agenda of the Kazakhstan Parliament. ICNL has further been invited by the Senate Legislative Committee to work on subsequent NGO legislation on foundations and institutions.
Issues under consideration include the following:
- the need for a Commission to establish charitable status of an NGO;
- the composition of the proposed Commission and the source for its authority; and
- shifting the auspices of the working group form the UNDP to that of the Parliament (both houses–Senate and Majilis).
For more information on the UNDP/ICNL legislative initiative contact Vadim Nee, ICNL local partner and NGO law specialist (7-3272) 62-16-44 [email@example.com] or the UNDP NGO Resource Center (7-3272) 62-83-26 or fax at (7-3272) 78-14-50 [firstname.lastname@example.org]. For information on NGO development contact the Counterpart Consortium in Almaty Kazakhstan (7-3272) 62-16-44 or fax at (7-3272) 60-86-06 [email@example.com].
For a complete listing of Documents the ICNL has in its documentation center on Kazakhstan, Click Here!
1. Framework Legislation
The 1991 Law on Public Associations is the primary law governing noncommercial organizations. This law contains the same principles and deficiencies as the All-Union Public Associations Law and other Public Associations Laws in Central Asian countries. Kyrgyzstan also adopted the Tax Code (1996) and the Civil Code (1996). The regulating environment in Kyrgyzstan seems more beneficial for the NGOs than in other countries of the region.
Various deputies and NGOs were interested in improving the environment for NGOs. The end result was three competing draft laws, all of which governed the same topic–non-commercial/non-governmental organizations. In October 1997, ICNL provided comments on the three competing NGO draft laws and facilitated a joint drafting group. The drafting group consisted of the leading drafters of all draft laws (four deputies and NGO umbrella organizations).
The drafting group consolidated the three existing draft laws to create a comprehensive NGO draft law. With on-going technical assistance, the draft law was developed. Over a dozen round table meetings were held in regions of Kyrgyzstan where NGOs and local governmental leaders had an open opportunity to comment on and discuss the NGO draft law. These meetings were organized by the USAID funded-National Democratic Institute and local umbrella NGO, Interbilim.
The draft was finalized and submitted to the Parliament (Jorkhu Kenesh) of Kyrgyzstan for legislative analysis. It has also been submitted to the Ministry of Justice for review in accordance with Kyrgyz legislative procedure. It is expected that the draft law will be considered by the Parliament during the fall session of 1998.
The group of deputies from the lower chamber of Parliament suggested revising the Law on Public Associations instead of adopting a new comprehensive NGO law. They submitted a draft of revised Law on Public Associations to the Parliament in May, 1998. If adopted in existing form, the proposed draft law will make insubstantial changes to current legislation and may delay adoption of other NGO legislation. Currently, both sides are engaged in lobbying effort to protect their drafts.
The Association of Attorneys of Kyrgyzstan started working on the draft law which defines “charity” and “charitable activity”. The initiative is supported by the NGO community and by the deputies, and funded by Eurasia Foundation. ICNL is also providing technical assistance with drafting this law.
Despite all this activity, governmental attention is focused on proposed changes to the legislative structure. The change in structure could come about in the fall of 1998 by means of a presidentially called referendum. The changes would ultimate create a dual chamber parliament that would predominantly consist of presidentially appointed representatives.
Issues under consideration include the following:
the need for progressive changes in legislation or conformity with the pre-existing system, and
an upcoming referendum which would drastically change the structure of Parliament and inevitable lead to a pro-executive form of government.
According to the Tax Code, NGOs should enjoy some forms of preferential tax treatment. Still, these advantages are difficult to use because of unclear definitions and contradictions. Thus, at the request of the Barents Group (which is currently working with the Finance Committee of the Parliament), ICNL proposed changed to the Tax Code. The changes were submitted to the Parliament and are currently under consideration. If adopted these changes would simply allow NGOs to utilize tax benefits, which already exist in the Tax Code.
For more information on the NGO law initiative contact Interbilim in Bishkek, Kyrgyzstan at (3312) 26-87-11 or 66-05-16 [firstname.lastname@example.org] or ICNL in Almaty, Kazakhstan at (7-3272) 62-16-44 or fax (7-3272) 60-86-06 [email@example.com]. For information on NGO development contact the Counterpart Consortium at (3312) 61-00-35 or fax (3312) 22-38-13 [firstname.lastname@example.org]. For information regarding the proposed referendum and governmental activity contact the National Democratic Institute at (3312) 66-01-66 or 66-01-67 [email@example.com].
For a complete listing of Documents ICNL has in its documentation center on Kyrgyzstan, Click Here!
1. Framework Legislation:
The Moldovan NGO legislation is one of the most advanced in the NIS region. The new Law on Public Associations was adopted in 1996. The Law on Charity and Sponsorship was adopted in 1995. Moldovan NGOs drafted both laws and successfully lobbied them. Moldovan legislation establishes clear criteria of public benefit organizations. A Certification commission similar to the UK Charity Commission grants charity status to be applied to NGOs.
In 1997 Moldovan NGOs drafted the Law on Foundations. This draft law is currently submitted to the Parliament.
2. Tax Legislation
The new Tax Code was adopted in 1997. According to the new Tax Code certified public benefit organizations receive additional tax benefits. The procedure of certification of public benefit organizations is established in the Law on Public Associations.
Further information on the NGO legislation in Moldova can be obtained by contacting in Washington Natalia Bourjaily, ICNL Program Director for NIS.
For a complete listing of Documents ICNL has in its documentation center on Moldova, Click Here!
1. Framework Legislation
The Russian system of NGO legislation is the most advanced and complex system among the NIS countries. The main laws regulating NGOs on the federal level are the Civil Code (1994), the Law on Non-commercial Organizations (1996), the Law on Public Associations (1995) the Law on Charitable Activity and Charitable Organizations (1995.) In addition to federal laws many subjects of Russian Federation adopted separate laws regulating NGOs. One of the first and the most progressive laws adopted on the sub-federal level is the Law of the City of Moscow on Charitable Activity (1996) which established the procedure of voluntary “passportization” of NGOs seeking charity status and related to it benefits in the City of Moscow.
Many NIS countries use Russian NGOs laws as model laws. While many provisions of these laws are well drafted, there are some major deficiencies in NGO legislation system. Many of these deficiencies are related to adoption of more specific law on Public Associations prior and without coordination with more generic Law on Non-commercial Organizations.
Among major initiatives with drafting new NGO laws are the drafting of the Law on Foundations and the Law on Social Contracting. The development of NGO legislation is especially active on the level of subjects of the Russian Federation.
In 1996, ICNL prepared an Analysis of the New Legislation on Non-commercial Organizations in Russia. Further information on the NGO legislation in Russia can be obtained by contacting in Washington Natalia Bourjaily, ICNL Program Director for NIS firstname.lastname@example.org.
2. Legislation on Religious Organizations
By W. Cole Durham, Jr.
A new Russian federal law “On Freedom of Conscience and on Religious Associations” (the “Law”) went into effect on October 1, 1997. Under the Law, all religious organizations registered in Russia prior to that date must re-register before December 31, 1999 in compliance with all the Law’s new requirements. In signing the law, President Yeltsin acceded to nearly five years of pressure from conservative forces in Russia to cut back on the religious freedom protections established in the landmark Law of the Russian Soviet Federative Socialist Republic on Freedom of Religion adopted on October 25, 1990. The Law has attracted a great deal of controversy because of a key provision that imposes a fifteen-year waiting requirement on religious groups before they can acquire full legal status as a religious organization. The Law also has a number of vague provisions transparently aimed at “dangerous sects” which vest extensive discretion in registering authorities, allowing them to refuse to register, to dissolve, and to ban some religious groups.
In practice, at least at the federal level, while individual problems continue to arise, the Law as implemented has thus far proven to be less problematic than critics at first expected. A major reason for this is that the Law contains a provision that allows religious groups that had established “centralized religious organizations” prior to the adoption of the Law to circumvent the fifteen-year requirement. That is, new religious organizations can be created either by waiting out the fifteen-year limitation period or by being confirmed as an affiliated group by an existing centralized organization. At least at the federal level, this requirement has thus far been interpreted in a reasonable and flexible manner that has avoided problems for many groups. How the Law will be implemented at the local level remains to be seen. Prior to passage of the new Law, approximately twenty or thirty of the “subjects of the federation” (republics, autonomous regions, etc.) had passed local laws dealing with religious issues which are for the most part very restrictive, and violate the constitution of the Russian Federation and Russia’s international treaty obligations. This pattern of violation of religious freedom rights appears to enjoy strong political support at local levels in many areas, and there are significant worries that such patterns of local noncompliance with constitutional and legal norms will continue under the new Law.
The Law itself is a complex legal document, and it reflects even more complex political and historical considerations. It raises a number of significant issues both under the Russian Federation Constitution of 1993 and under international human rights law. These issues cannot be explored in detail here. However, an extensive analysis of the Law and its background has recently been published in a special symposium issue of the Emory International Law Review, and in addition to being available in hard copy, and the articles from this issue have been published electronically on the web. The URL for the web page where hyperlinks to the various articles can be found is: http://www.law.emory.edu/EILR/volumes/win98/wintoc.html.
A project to provide technical assistance that may lead to amendments to the Law to make it more friendly to religious freedom has been undertaken by the International Academy for Freedom of Religion and Belief. Their web page describes this and other projects they have undertaken to further religious freedom internationally. The URL for the web page is www.religfreedom.org. Persons to be contacted include James Wood, President and Lee Boothby, Vice President.
By W. Cole Durham, Jr.
Chair of Board, ICNL
Professor of Law, Brigham Young University
For a complete listing of Documents ICNL has in its documentation center on Russia, Click Here!
The legal and economic framework of Tajikistan collapsed under the weight of a civil war. After a drawn out process of reconciliation, a coalition government is attempting to restructure the legal framework of the country in order to provide a new stability for the country. The government, in conjunction with multi-national efforts, is attempting to move forward in reconstructing a shattered social and political framework. In order, to step up this process, the government has set forth an optimistic agenda of new laws to be heard in the Parliament.
In 1997, at the request of the Ministry of Justice, ICNL prepared comments on two NGO draft laws; the Ministry prepared one draft and the other draft was prepared by a group of NGOs. ICNL provided technical assistance to the drafters in modifying their drafts and is currently promoting a dialogue between the Government and NGOs regarding NGO draft laws.
Again at the request of the Ministry of Justice, ICNL and Counterpart Consortium conducted a workshop (Dushanbe, April 15-16, 1998) with government officials, members of the National Reconciliation Commission (leaders of the opposition parties), and NGOs. Participants at the roundtable adopted a plan for NGO law reforms in Tajikistan and created a working group which included NGOs, government and opposition party representatives as well as deputies. The working group proposed changes in the draft Law on Public Associations to the Parliament.
On May 23, 1998, the Parliament of Tajikistan adopted the draft law on Public Associations (Unions) and one week later the President signed the bill into law. Many changes to the draft Law on Public Associations proposed by the working group were adopted by the Parliament.
The new Tajik Civil Code is in the drafting process. In August 1998, at the request of the Minister of Justice, ICNL provided comments on the draft Civil Code section on “Legal Entities,” addressing provisions on non-commercial legal entities.
A new Law on Political Parties was also adopted by Parliament. However, this law prohibited the Islamic Party and also the Tajik Communist Party. According to local experts the adoption of the Law on Political Parties might damage the process of national reconciliation and overall reform efforts.
The difficult political situation shifts the priorities of the government’s attention from NGO problems to resolving military conflicts between the government and the groups of the opposition. Thus, current issues are focused on national reconciliation and maintaining peace within the country.
For more information on the NGO law initiative contact ICNL in Almaty, Kazakhstan at (7-3272) 62-16-44 or fax (7-3272) 60-86-06 [email@example.com]. For information on NGO development contact the Counterpart Consortium in Dushanbe, Tajikistan at (3772) 21-65-14 or fax (3772) 21-75-59 [firstname.lastname@example.org].
For a complete listing of the Documents ICNL has in its documentation center on Tajikistan, Click Here!
The right to create a “public association” stems from the Constitution of Turkmenistan. Such associations are specifically regulated by the Law on Public Associations of 1992, which includes trade unions and political parties. Although the organization forms of NGO are limited by the lack of recognition within the law, the listing of association forms does seem to be exclusive. The law also maintains a tier structure regarding territorial regulation of NGOs; local, oblast and national levels.
For the most part, the only legislative reform in Turkmenistan prior to 1998 was relative to commercial legislation. In the Spring of 1998, ICNL initiated a program in Turkmenistan and met with the Chairman of the Legislative Committee of the Turkmenistan Parliament in May of this year. ICNL was invited to make recommendations and comments to the proposed Civil Code of 1998. ICNL submitted comments to the civil code sections applicable to public associations and other legal entities in June of 1998. In July of 1998, the Turkmenistan Parliament adopted a new Civil Code. It has yet to be published but should be made public in September of 1998.
ICNL was also invited by the Legislative Committee to assist in the formation of a revised law on public associations in the next year.
Issues under consideration include the following:
what forms of legal entities does the new Civil Code create;
when will Parliament revise the current public associations law;
NGO/governmental relations; and generally
NGO registration requirements.
For more information regarding the new Civil Code and reform of NGO legislation, contact ICNL in Almaty, Kazakhstan at (7-3272) 62-16-44 or fax (7-3272) 60-86-06 [email@example.com]. For information on NGO development contact the Counterpart Consortium in Ashgabad, Turkmenistan, at (3632) 35-71-20 of fax (3262) 24-38-51 [firstname.lastname@example.org].
For a complete listing of the Documents ICNL has in its documentation center on Turkmenistan, Click Here!
1. Framework Legislation:
Currently there are two main laws regulating NGOs: the Law on Public Associations (1992), and the Law on Charity and Charitable Activity (1997). While the Law on Charity and Charitable Activity for the first time in Ukrainian legislation tried to differentiate between public and mutual benefit organizations this differentiation is not clear. There is no clear criteria for public benefit (charitable) organization. Also the law does not establish any mechanism on how to determine whether an NGO is of public or mutual benefit. As a result the Law on Charity and Charitable Activity does not set the basis for providing additional benefits to public benefit NGOs. In addition, some provisions of this law contradict the Ukrainian tax laws.
The draft Law on Civic Organizations was prepared by the NGOs working group which joined three original competing drafts in 1997. The draft Law on Civic Organizations was scheduled for readings with the Verkhovna Rada (Parliament) of Ukraine of previous convocation. However, it has never been considered, and, due to elections of the new Verkhovna Rada (spring 1998), the draft Law on Civic Organizations has to be re-registered with Verkhovna Rada. If adopted this law would allow to establish different organizational forms of NGOs.
While the new Civil Code is in drafting process it is still unclear when the drafting will be accomplished and when the new Civil Code will be submitted to Verkhovna Rada’s consideration.
2. Tax Legislation
The main laws regulating taxation of NGOs are the Law on Company Income Tax (1995) and the Law on the Value Added Tax (1997). According to tax laws there is no differentiation between mutual and public benefit organizations. In addition, the Law on Tax on Profit gives a broad definition of non-profit organization which includes government budgeted entities. Some provisions of tax laws do not comply with the Law on Charity and Charitable Activity.
Further information on the NGO legislation in Ukraine can be obtained by contacting in Kiev Anatolij Tkachuk, Director of the Ukrainian NGO Institute of Civic Initiatives (380-044) 295-43-98 (tel./fax,) or in Washington Natalia Bourjaily, ICNL Program Director for NIS email@example.com.
For a complete listing of the Documents ICNL has in its documentation center on Ukraine, Click Here!
In 1996-97 at the request of UNDP, ICNL expert and Polish Professor Kurczewski (an ICNL Board member) assisted the Uzbekistan government in creating a joint working group which included NGO representatives, leading lawyers, government officials and parliamentarians. This working group drafted a NGO draft law, which would substantially change the regulation and forms of NGOs. Although the draft was submitted to the Council of Ministers in early 1997, no official decision regarding the draft has come from the government.
ICNL with USAID funding has organized a serious of seminars of NGO law reforms to promote the NGO draft law and to generally discuss NGO legislative reform in all five regions of Uzbekistan. It is expected that as a result of these seminars a new drafting initiative will be established in September, 1998 to revise the NGO draft law. The core of the working group will stem from a quasi-governmental institution, the Institute on Monitoring Legislation. Akhtam Tursunov, Deputy of Parliament, heads the Institute.
Issues under consideration include the following:
what fundamental approach to the upcoming draft–whether it will remain a law on “NGOs” or a revision of the current legislation, and to obtain governmental approval of the initiation of this proposed legislation (due in August).
Further information on the NGO law or current legislation, one may contact Inna Bagdasarova, Advocate and ICNL local partner in Tashkent, Uzbekistan (3712) 76-29-66 [firstname.lastname@example.org]. For information on overall NGO development contact the Counterpart Consortium in Tashkent Uzbekistan at (3712) 76-29-66 or fax (3712) 78-14-50 [email@example.com].
For a complete listing of the Documents ICNL has in its documentation center on Uzbekistan, Click Here!