Constitutional Problems of Freedom of Association in Ukraine

The article analyzes the foreign and national constitutional experience of freedom of association as a basic political rights and freedoms. Prominent among the guarantees of this right is a legal requirement of free and transparent procedure for the formation and organization of internal associations based on democratic principles, which, the author believes, has to fi nd a clear legal defi nition. Freedom of association is one of the essential human rights that is enshrined in many international
legal instruments – the Universal Declaration of Human Rights 1948 (Art. 20), the Convention on Freedom of Association and Protection of the Right to Organise 1948 (Art. Art. 2, 10), the Convention for the protection of Human Rights and Fundamental Freedoms 1950 (Art. 11), the International Covenant on Civil and political Rights 1966 (Art. 22). The Constitution of Ukraine (Art. 36) in accordance with generally recognized international standards ensures and protects that right. The right of freedom of association is a fundamental political right, which provides Art. 15 of the Constitution: of the economic, political and ideological diversity in public life and freedom of political activity. Freedom of association means in particular legal and factual possibility voluntarily, without coercion or prior permission form associations, or join them. However, the analysis of foreign practice shows that the constitutional laws of many modern states provides various kinds of constraints (requirements) implementation of this freedom by prohibiting the formation and activity of certain types of associations; defi nition of requirements to the statutory and policy documents parties, social organizations, their structural organization; establishment of state control over the process of their formation, fi nancing activities, statutory activity; providing relevant public authorities the right to make submissions on the suspension and termination of political and public organizations in a court. For example, the French Constitution (Art. 4) and Italy (Art. 49), fi x the general rule for political parties and associations to comply with the principles of democracy or acting in a democratic manner. The requirements of other constitutions are more specifi c, such as art. 21 German Basic Law, which guarantees the freedom of political parties, but provides that «their internal organization must conform to democratic principles». By a similar principle art. 6 Spanish Constitution establishes the obligation of political parties to have a democratic internal
structure and to function accordingly. In Portugal, internal democracy and protected at the constitutional level – in ch. 5. 51 provides that «political parties should be guided by the principles of transparency, democratic organization and management, as well as the participation of all its members». According to the author in the present conditions of legal and political transformation of the legal requirement of internal activities of the association on democratic principles is a major driver of freedom of association.