Olha Chernovol

Ukrainian licensed attorney who works as a postdoctoral fellow at the University of Ottawa with Jennifer Quaid on her SSHRC-CRSH-funded project exploring non-trial resolutions in anti-corruption matters.

Fellow at the uOttawa Human Rights Research and Education Centre

DIASPORA ENGAGEMENT & CONTRIBUTIONS FOR POLITCAL PARTIES IN UKRAINE

The political party funding issue in Ukraine is currently the subject of considerable debate. Such debates concern several areas. The political party’s financial reporting is first and key discussion area. It is a well-known fact that political party in Ukraine can be funded in several ways – state funding and third party’s contributions. Since the pandemic began, political parties were given the right to voluntary financial reporting. Then this right was extended in connection with the full-scale war beginning. Accordingly, currently there is a lot of discussion about the need to return the political party’s mandatory financial reporting.

Another area of discussion includes the concerns about political party support by third parties. Mostly, such discussions arise because of suspicions that such third parties can be dealing with Russia at some point. In this regard, experts point about the need to create mechanisms that will establish stricter control over such contributions.

Can political parties in Ukraine be supported by contributions from the Ukrainian diaspora? – is another common question for discussion. Such a question is complex and does not have a clear answer. To find out the answer to this question, it is necessary to analyze the provisions of the relevant legislation – the Law on Political Parties in Ukraine dated 04/05/2001 No. 2365-III.

Let’s start with the analysis of restrictions regarding the list of persons who are prohibited from making contributions to support political party activity. Inaccordance with the Article 15 of the above-mentioned Law on Political Parties, the following restrictions are established for several types of persons including foreign states, foreign legal entities, legal entities with 10 percent of the authorized capital or voting rights non-residents ownership, as well as legal entities whose ultimate beneficial owners (controllers) are foreigners or stateless persons. The lawmakers are also indicated in the restriction list the natural persons who are not citizens of Ukraine (foreigners and stateless persons), as well as anonymous persons or persons under a pseudonym.

That is, as we can see, the Law contains a direct restriction on the political party funding by foreigner. Further, the issue of legislative regulation of membership in a political party should be investigated. It should be emphasized that by analogy with the exclusions regarding the list of persons who cannot fund political parties, the Law on Political Parties also contains a clear list of prohibitions regarding the list of persons who can be political party member. For the most part, such list of prohibitions includes representatives of state bodies and citizens of Ukraine who are enrolled in voluntary formations of territorial communities. It means that, the Law on Political Parties does not define a clear restrictions that foreign citizens (representatives of the diaspora) cannot be a member of a political party in Ukraine.

In addition, if we try to analyze the provisions of the Law on Political Parties which define the procedure for the political party establishment and registration (Article 10 of the Law), we can mark that “… A political party is created by a group of citizens of Ukraine consisting of at least 100 people…”. Thus, we can conclude that at the stage of political party creation, there is a direct rule that only citizens of Ukraine can found it.

Analyzing the subject of the political party funding possibility by representatives of the diaspora, it should be emphasized that the lawmaker, in accordance with the law, granted political parties the right to maintain international relations with political parties, public organizations of other states, international and intergovernmental organizations, establish international unions (Article 12 of the Law on Political Parties).

The right on political party international activity is detailed in the Article 13 of the Law on Political Parties. However, the limits of such international activity are established, in particular:

– can enter into agreements that do not contradict with the laws and international agreements of Ukraine.

– international organizations may sign agreements exclusively that do not place the political party in a subordinate or dependent position with respect to any other foreign organization or political party;

– may establish international unions or join such unions (federations), the statutes of which provide for the creation of only consultative or coordinating central bodies.

The Constitution of Ukraine prohibits Ukrainians from having any other citizenship. Although officials and deputies have passports from other states illegally. Also, it is well-known that many representatives of the Ukrainian diaspora have dual citizenship. In 2021, a draft law on providing to Ukrainians a right to have dual citizenship was proposed. However, this draft law has not been adopted yet.

Considering the issue of the political party funding possibility by the diaspora, we can come to several conclusions. Firstly, the provisions of the Law on Political Parties establish a clear prohibition that foreign citizens cannot fund political parties. Secondly, only citizens of Ukraine can establish a political party. Thirdly, the law provides possibility of international cooperation for a political party.

Now let’s try to explain the above-mentionedconclusions through the political party funding by the representatives of the Ukrainian diaspora prism. It is a well-known fact that representatives of the Ukrainian diaspora usually have two passports – Ukrainian and the country where they immigrated to. The provisions of the Law on Political Parties do not prohibit foreign citizens from being members of a political party. Yes, the party must be founded exclusively by citizens of Ukraine, but it is not specified whether in the future the foreigner can be its member. Also, the fact that representatives of the Ukrainian diaspora have two passports comes into play here, therefore, due to this unsettled law, a representative of the diaspora can actually use his Ukrainian passport.

Another point is international cooperation. The Law on Political Parties contains clear provisions regarding the fact that political parties are given the right to international cooperation with political parties, public organizations of other states, and international and intergovernmental organizations, to conclude cooperation agreements and to carry out other measures that do not contradict the laws and international agreements of Ukraine. The limits of such cooperation are also established. The existing definition regarding the right of a political party to international cooperation in fact provides an opportunity for a political party to cooperate with organizations founded by the diaspora within the framework of international cooperation. It is possible that such cooperation may include some support and funding options, given the harsher conditions of ongoing war.

Summarizing all the above, it should be noted that due to the existing gap in the issue of political party funding by representatives of the diaspora, lawmakers need to establish more clearly regulations for clarifying it.