The following draft resolutions of the Cabinet of Ministers of Ukraine were submitted by the Ministry of Social Policy of Ukraine for the consideration of the Non-governmental Organization "Public Movement "Social Unity" within the framework of consultations with the public, namely:
- The draft resolution of the Cabinet of Ministers of Ukraine: "Some issues of social protection of people with disabilities", which provides for the approval of the Procedure for the use of funds provided for in the state budget for the social protection of people with disabilities, which defines the mechanism for the use of funds provided for in the state budget under the budget program "Social Protection of people with disabilities".
- The draft resolution "Some issues of providing financial support to non-governmental associations of people with disabilities", which provides for the approval of the Procedure for the use of funds provided for in the state budget for financial support of non-governmental associations for the provision of social services to people with disabilities.
The draft resolutions provide, in particular, the following provisions:
- Provision of financial assistance, on a par with non-governmental associations, to branches (separate subdivisions) of non-governmental associations of people with disabilities, which must be entered in the Unified State Register of Legal Entities, Individual Entrepreneurs, and Non-governmental Organizations.
- The direction of use of state support funds for non-governmental associations of people with disabilities is limited. The direction of the use of financial assistance to non-governmental associations, their branches (separate divisions) is financial support of non-governmental associations exclusively for the provision of social services to people with disabilities, which is carried out in accordance with the procedure established by the Cabinet of Ministers of Ukraine.
- According to paragraph 3 of the draft resolution of the CMU "Some issues of providing financial support to non-governmental associations of people with disabilities", one of the requirements for recipients of budget funds to receive financial assistance is to enter them in the Register of providers and recipients of social services. The recipient of budget funds can be a non-govermental association that provides social services to people with disabilities that meet the state standards of social services approved in accordance with the law.
The NGO "Public Movement "Social Unity" notes that such provisions proposed by the mentioned projects are discriminatory and contain a corruptive factor and violate the principle of equality of non-govermental associations of people with disabilities, enshrined in Part 1 of Art. 23 of the Law of Ukraine "On Non-govermental Associations":
The implementation of these provisions will lead to indirect discrimination and create conditions for double funding of certain non-governmental associations of people with disabilities in view of this.
- In accordance with part 1, 2 of Art. 13 of the Law of Ukraine "On Non-governmental Associations", a non-governmental association with the status of a legal entity may have separate subdivisions, which are formed by the decision of the relevant governing body of the non-governmental association in accordance with the statute, in the manner determined by the Law of Ukraine "On State Registration of Legal Entities, private entrepreneurs and public formations". Separate subdivisions of a non-governmental association are not legal entities, except for the cases provided for by this Law.
At the same time, in accordance with Clause 8 of Chapter V of the Law of Ukraine "On Non-governmental Associations", local branches of all-Ukrainian (international) non-governmental organizations, which operated with the status of a legal entity on the date of entry into force of this Law, by decision of the highest governing body of the All-Ukrainian (international) non-governmental organization retain the status of a legal entity after the entry into force of this Law.
The Law of Ukraine "On non-governmental Associations" entered into force on April 19, 2012. Therefore, separate subdivisions of non-governmental associations created after April 19, 2012, are not legal entities and do not have full economic legal personality, and in the case of receiving budgetary support, the distribution of costs for their activities is carried out directly by the non-governmental association. Separate subdivisions (local branches) of all-Ukrainian (international) non-governmental organizations, which operated with the status of a legal entity, retained the status of legal entities.
For example, non-governmental associations of people with disabilities, such as UTOG and UTOS, which were founded in 1933 on the day the Law of Ukraine "On Non-governmental Associations" entered into force, have been operating for almost 90 years, had all-Ukrainian status and local branches (separate subdivisions) of these non-governmental associations were formed and registered before the entry into force of the Law of Ukraine "On Non-governmental Associations", and therefore each of them has the status of a legal entity.
And therefore, singling out local (regional) units (separate units) as separate recipients of budget funds will lead to the granting of unjustified advantages to certain non-govermental associations, as it will increase the amount of aid that can be received by a large number of local units (separate units) of such public units (in particular , UTOG, UTOS).
In accordance with paragraph 61 of the General Comments No. 7 (2018) of the Committee on the Rights of People with Disabilities on the participation of people with disabilities, including children with disabilities, through the organizations that represent them in the implementation and monitoring of the Convention, the Committee, in particular, recommends to the participating states adopt the criteria for allocating funds for the purpose of conducting consultations, including with assistance:
d) distribution of funds between different organizations of the disabled on an equal basis.
Therefore, the separation of separate subdivisions (local units) as separate recipients of budget funds is contrary to international standards and General Comment No. 7 (2018) of the Committee on the Rights of People with Disabilities on the participation of people with disabilities, including children with disabilities, through organizations that represent them in implementation and monitoring of the Convention.
The possibility of receiving budget funds both by non-governmental associations of people with disabilities and by their local branches (separate units) contains a potentially corruptible factor and creates conditions for double funding of such organizations as UTOG and UTOS, since tender proposals will be able to be submitted by non-governmental associations themselves, as well as their separate units. The lack of a provision in the project on the inadmissibility of double funding of a non-governmental association of people with disabilities and the Commission's obligation to check the bids of participants for the purpose of preventing double funding is a corruption-inducing factor.
The state policy of unlimited financing of UTOG and UTOS for 90 years led to the fact that the position of these associations among non-governmental associations of people with disabilities was a monopoly for a long time.
Granting unjustified advantages to certain non-govermental associations (in particular, UTOG and UTOS) in receiving budget funding further deepens the gap between the capacity of civil society institutions and does not contribute to increasing the level of infrastructure development for the functioning of civil society institutions.
- Discriminatory and violating the principle of equality of non-governmental associations of people with disabilities, enshrined in Part 1 of Art. 23 of the Law of Ukraine "On Non-governmental Associations", there is a narrowing of the scope of providing project financing, which leads to the fact that budget financing is limited only to the provision of social services to people with disabilities.
In order to fulfill these provisions, the specified projects require the recipient of budget funds to be entered into the Register of Providers and Recipients of Social Services.
Such a restriction is unacceptable, because:
First, social service providers receive remuneration for the appropriate provision of social services in accordance with the procedure established by the legislation of Ukraine on social services. At the same time, it remains unclear the motives for introducing such a restriction established for recipients of budget funds under the direction of state support for non-governmental associations of people with disabilities, and how subjects entered in the Register of recipients and providers of social services have any advantages over other non-governmental associations of people with disabilities disability in the implementation of relevant programs.
Limiting the range of recipients of financial aid and the scope of its application is devoid of a justified purpose, creates artificial obstacles for participation in the corresponding competition of a wide range of civil society institutions (creating additional advantages for certain subjects), and contradicts the essence of financial support for non-governmental associations of people with disabilities and directly violates the principle of equality of non-governmental associations.
In accordance with the provisions of Art. 1 of the Law of Ukraine "On Social Services", social services are actions aimed at preventing difficult life circumstances, overcoming such circumstances or minimizing their negative consequences for individuals/families who are in them.
According to Art. 2 of the Law of Ukraine "On Social Services", social services are provided to achieve the following goals: prevention, overcoming and minimizing the negative consequences of difficult life circumstances.
At the same time, in order to create non-governmental associations of people with disabilities, in accordance with Art. 12 of the Law of Ukraine "On the Basics of Social Protection of People with Disabilities in Ukraine", is to ensure equal rights and opportunities of people with disabilities and their social protection, to identify and eliminate obstacles and barriers that prevent the provision of rights and satisfaction of the needs of such people, including including regarding their access on an equal basis with other citizens to objects of the physical environment, transport, information and communication, as well as taking into account individual opportunities, abilities and interests – to education, work, culture, physical culture and sports, provision of social services, involvement of people with disabilities in social activities, implementation of public control over the observance of the rights of people with disabilities, representation of their interests, and elimination of any manifestations of discrimination against people with disabilities and have the right to enjoy benefits and preferences provided for by law.
Therefore, the sphere of activity of non-governmental associations of people with disabilities is much wider than prevention, overcoming and minimizing the negative consequences of difficult life circumstances. Moreover, the limitation of state financial support for the activities of non-governmental associations of people with disabilities exclusively to activities aimed at preventing, overcoming and minimizing the negative consequences of difficult life circumstances does not correspond to the modern understanding of state policy regarding people with disabilities and, on the contrary, prevents the construction of a barrier-free space for people with a disability.
In accordance with the provisions of Art. 4 of the Law of Ukraine "On the Basics of Social Protection of People with Disabilities in Ukraine", the state's activity regarding people with disabilities is manifested in the creation of legal, economic, political, social, psychological and other conditions to ensure their rights and opportunities on an equal basis with other citizens to participate in public life and consists in:
- identification and elimination of obstacles and barriers that prevent the provision of rights and the satisfaction of needs, including in relation to access to public and civil facilities, landscaping, transport infrastructure, road service (hereinafter – facilities of the physical environment), transport, information and communication, as well as taking into account individual capabilities, abilities and interests – to education, work, culture, physical culture and sports;
- health care;
- social protection;
- ensuring the implementation of an individual rehabilitation program for people with disabilities;
- provision of adapted housing;
- conducive to social activities.
So, social protection of people with disabilities is only one of the directions of the state's activity in relation to people with disabilities. And the limitation of state financial support to non-governmental associations of people with disabilities exclusively in the sphere of providing social services hinders the development of other areas of state activity and undermines the achievements made in the field of ensuring the rights of people with disabilities in recent years. We believe that such a restriction is possible only during the existence of the legal regime of martial law, however, the provisions of the specified projects do not provide for any time limit on the validity of these norms.
It should be noted that attempts to provide unjustified and indirect preferences to UTOG and UTOS have repeatedly been the subject of a negative assessment by NAKC for the presence of corruption-inducing factors.
The proposed draft resolutions also have similar provisions, which are corruptible and about which NAKC has repeatedly expressed its negative assessment.
