Definition of NGOs

The Constitution contains a list of different associations of citizens, including public associations, political parties, religious organizations, groups of citizens, and movements (Articles 6, 8, 10, 25, 26, 28, 31 of the Constitution). Civil Code considers the notion of “non-profit organizations” in relation to legal entities established in the form of consumers’ co-operatives, social or religious organizations, owner’s funded institutions, charitable and other foundations and also in other forms prescribed by the law (Para. 3 of the Art. 50 of the Code).

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Definition of NGOs

The Constitution contains a list of different associations of citizens, including public associations, political parties, religious organizations, groups of citizens, and movements (Articles 6, 8, 10, 25, 26, 28, 31 of the Constitution). Civil Code considers the notion of “non-profit organizations” in relation to legal entities established in the form of consumers’ co-operatives, social or religious organizations, owner’s funded institutions, charitable and other foundations and also in other forms prescribed by the law (Para. 3 of the Art. 50 of the Code). The Civil Code also determines that in relation to social and religious organizations (associations), charitable and other public foundations, groups of legal entities (associations and unions) their founders and participants have no property rights (Para. 3 of Art. 48 of the Civil Code). Among different forms of unions of citizens only in relation to associations we can say about membership and it is not related with getting profit as the main purpose.

Founding of NGOs

Public association shall be established based on free initiative of not less than three founders which shall be individuals. Along with individuals it is allowed by the law that the founders could be the legal entities created in the form of public associations. Decisions on creation of a public association, approval of its Charter and forming the governing, control, and audit bodies shall be taken at the session (conference) or general meeting (Art. 10 of the Law “On Public Associations”). A public foundation has no members and shall be established by citizens and legal entities based on voluntary contributions (Art. 130 of the Civil Code). Organization in the form of institution shall be created by the owners (Art. 132 Code). To ensure coordination of joint activity and protection of common interests, profit and non-profit organizations can create unions of legal entities registered in the form of non-profit organizations (Art. 133 of the Civil Code and Art. 11 of the Law “On Public Associations”). The condition for registration of religious organization shall be availability of not less than ten members (Art. 10 of the Law “On Religion and Religious Organizations”).

Aims that may be pursued by NGOs, and rules applicable to members

Public associations shall be established to implement and protect civil, political, economic, social and cultural rights and freedoms of citizens, participation in creation of sovereign, democratic, legal, secure and unitary state of Tajikistan (Art. 6 of the Law “On Public Associations”). Among non-profit organizations only public associations allow membership of individuals. Public foundations have no members and should pursue their charitable, social, cultural, educational and other common helpful aims (Para. 1 of Art. 130 of the Civil Code). Institution created by an owner implements managerial, social and cultural and other non-profit functions (Art. 132 of the Civil Code). Unions of legal entities shall be established by organizations to ensure coordination of joint activity and protection of common interests and shall be registered in the form of non-profit organizations (Art. 133 of the Civil Code and Art. 11 of the Law “On Public Associations”).

Functioning of NGOs without state registration

Public association of citizens shall be considered to be established from the moment of taking decision on its establishment, approval of its Charter and forming governing and control and audit bodies at the session (conference) or general meeting. Such decisions shall be effective during three months and allow submitting documents to register the organization as the legal entity. However, legal capacity of organization as the legal entity shall start from the moment of its state registration (Art. 10 of the Law “On Public Associations”). In practice, citizens can establish informal unions, but the issue of their acknowledgement remains unsolved.  Thus, constitutional right to unite is restricted by provisions of the Civil Code considering associations only as legal entities that automatically require their registration.

Registration requirements for NGOs

For state registration of a public association it is necessary to submit the following documents to the registration body (Art. 14 of the Law ):

- Application signed by members of governing body with indication of place of residence;

- Two copies of Charter of public association;

- Minutes of constituent session (conference) or general meeting, including decision on establishment of public association, approval of its Charter and forming governing and control and audit bodies;

- Data about founders – name, address, position, name of organization (if the founder is the legal entity);

- Document on payment of registration duty;

- Document on providing a legal address of public association.

Documents shall be submitted during three months from the day of conduction of a constituent session (conference) or general meeting. Registration of public associations shall be implemented during 30 days from the moment of presenting the listed documents (For associations special requirements on terms of registration are established. They are different from general procedure of a legal entity’s registration. In accordance with the general procedure, documents have to be submitted during a month and registration is implemented not later than during 10 days). The indicated term shall be suspended for the period of elimination of deficiencies of constituent documents revealed by the registration body during their processing. Data about organization shall be included in the Unified Register of Legal Entities.

The law envisages payment of a duty for registration of a legal entity in the form of non-profit organization and also duties for issuing certificate of registration of public association which are presented by separate payments. Duty for registration of the legal entity which is a non-profit organization is equal to twentyfold minimum wage (240 Somoni or $80).

The state duty for issuing association’s registration certificate is determined by the territory of activity and amounts to (Para. 8 Clause 5 Art. 4 of the Law “On State Duty”):

- Tenfold minimum wage (120 Somoni or approximately $40) (In accordance with the Decree of the President of November, 4, 2004 the minimum wage has to be 12 Somoni. Correlation of USD to Somoni is $1– 3,0421 Somoni (February, 26, 2005)) – for local public associations;

- Twentyfold minimum wage (240 Somoni or approximately $80) – for countrywide public associations;

- Two hundredfold minimum wage (2400 Somoni or approximately $800) – for international public associations.

Authorized state bodies and NGO registry

The state registration of public associations spreading its activity throughout the whole territory of the Republic of Tajikistan and one or more foreign state, the territory of Dushanbe, its rayons and the towns with the direct governing of the central powers shall be implemented by the Ministry of Justice of the Republic of Tajikistan. The state registration of local public associations shall be implemented by Administrations of Justice of Local Executive Bodies (Hukumats) of Gorno-Badahshan Autonomous Region and other Regions (Art. 14 of the Law “On Public Associations”). Departments of the Ministry of Justice provide data on establishment, reorganization and liquidation of a legal entity to the local Statistics and Tax bodies in the area of activity of a legal entity.  

Denial of registration to NGOs

The state registration of a legal entity and registration of its representatives and branches can be denied based on the following (Art. 13 of the Law “On State Registration of a Legal Entity”):

- Non-observance of legal requirements on procedure of establishment of a legal entity;

- Non-compliance of the submitted documents with the legislation;

- Availability of registration of other legal entity with the same name in the territory of the Republic of Tajikistan.

Basis for denial of state registration of a legal entity are provided in conclusion of legal examination. Denial of state registration based on motives of inexpediency of establishment of an organization is prohibited.  

Branch offices of NGOs

For official acknowledgement of a subject of economic activity without a status of a legal entity it is necessary to implement registration of representative offices and branches of a legal entity in the corresponding registration body.

For registration of representative offices and branches of a legal entity it is necessary to provide the following documents:

- Application of a legal entity for registration of its representative offices and branches;

- Copies of constituent documents of a legal entity, which establishes a representative office or branch, certified by the State Notary;

- Decision of an authorized body of a legal entity (on establishment of a representative office or branch, approval of its Charter, appointing the Director);

- Provision on a representative office or branch of a legal entity;

- Power of Attorney given to Director of a representative office or branch;

- Document confirming location of a branch or representative office;

- Receipt or draft of payment of state duty.

Data regarding representative offices and branches shall be included in the Unified State Register of Legal Entities. Based on the results of the registration of representative offices and branches Extract from the Register shall be provided. In accordance with the general procedure of registration of legal entities the registration of branches shall be implemented during 10 days and for public associations the terms shall be 30 days (Art. 9 of the Law “On State Registration of a Legal Entity” and Art. 14 of the Law “On Public Associations”).

Operational requirements for international NGOs

Organizations, affiliates or branches and representative offices of international non-profit, nongovernmental organizations shall be established and implement their activity in the territory of the Republic of Tajikistan in accordance with the Law “On Public Associations” and other laws of the Republic of Tajikistan (Art. 32 of the Law “On Public Associations”). It remains unclear how it is possible to solve the issues relating to difference and lack of some organizational and legal forms or constituent documents in legislation of a foreign state, but required in accordance with the legislation of Tajikistan.

As it was mentioned for receiving a certificate of registration an international public association pays duty at the rate of two hundredfold minimum wage (2400 Somoni or approximately $800). There is a provision in the Law which also relates to foreign legal entities, however, its connection with previous payment is not determined: for the state registration of non-profit organizations with participation of foreign subjects the Ministry of Justice and its bodies collect a state duty at the rate of fiftyfold minimum wage (600 Somoni or approximately $200) (Subpara. 4 of Para. 1 of Clause 5 of Art. 4 of the Law “On State Duty”).

Re-registration requirements for NGOs

A legal entity shall be entitled for re-registration in the following cases (Art. 16 of the Law “On State Registration of a Legal Entity):

- Making changes and additions to the constituent documents of a legal entity;

- Reorganization of a legal entity;

- Taking court decision regarding reorganization of a legal entity;

- In other cases prescribed by the legislation.

Changes and additions to the constituent documents of registered legal entities shall be made based on decision of founders or an authorized body. A legal entity shall be obliged during a month from the moment of taking decision on making changes and additions to constituent documents to submit to the registration body an application on re-registration.

In case of re-registration the following documents shall be provided to the registration body:

- Application for re-registration;

- Decision of an authorized body of a legal entity on making changes and additions to the constituent documents;

- Constituent documents with made changes approved in accordance with the established procedure;

- Originals of previously registered constituent documents and certificates on state registration;

- Confirmation of registration of a legal entity in a tax body;

- Certificate confirmed the legal address and location of a legal entity;

- Receipt or draft of payment of state duty.

Base on the results of re-registration certificate of re-registration of a legal entity shall be provided. In case of reorganization (amalgamation, dividing, joining, restructuring, separation) of a legal entity, the statement on hand over or a balance of remaining assets indicating the corresponding assignee for obligations of a reorganized legal entity shall be provided to the registration body.

Changes and additions in the constituent documents shall be obliged to registration in accordance with the same procedure and terms as the state registration of legal entities and shall be effective from the moment of their registration. For providing certificates on registration of changes and additions to the constituent documents and re-registration of legal entities the duty at the rate of 50% of the state registration duty shall be collected (Subparagraph 3 of Clause 5 of Art. 4 of the Law “On State Duty”).

Right of appeal of NGOs

Denial or evasion of state registration by the registration body can be appealed to the Court (Art. 13 of the Law “On State Registration of a Legal Entity”) The Law “On Public Associations” determines that denial of registration or evasion from registration shall be appealed to the Supreme Court of the Republic of Tajikistan, Court of Gorno-Badahshan Autonomous Region, or regional Court respectively (Art. 15 of the Law “On Public Associations”). An interesting feature of Tajik legislation is that managerial responsibility for groundless denial of registration is provided not for all subjects, but only for denial in registration of entrepreneurs and enterprises (Art. 258 of the Criminal Code and Art. 164(3) of the Code on Administrative Offences).

Authorized state bodies granting financial and other benefits to NGOs

It is prescribed by the legislation that the state has to render material and financial support to youth, children, charitable organizations and organizations of disabled people, but there is no mention about responsible authority. Support has to be provided through the policy of tax exemptions, ensuring the right of children organizations to use school premises, non-school establishments, clubs, palaces and houses of culture, sport and other buildings free of charge or under preferential terms. State support can be implemented in the form of financing of programs useful for society or in other forms which are not prohibited by the legislation (Art. 8 of the Law “On Public Associations”). In practice, there is no the necessary policy of the state to render targeted assistance to public associations through their involvement in social and other programs.

Foreign funding of NGOs

Legislation allows public associations to receive foreign financial and other support. The restriction applies to organizations having political purposes. Among the sources of financing of public associations, it is indicated, in particular, voluntary contributions and donations, income of manufactory, economic, business activity, actions taken in accordance with the Charter and also other revenues not prohibited by the law (Art. 24 of the Law).

Tax exemptions for NGOs

Support has to be provided through the policy of tax exemptions, ensuring the right of children organizations to use school premises, non-school establishments, clubs, palaces and houses of culture, sport and other buildings free of charge or under preferential terms. State support can be implemented in the form of financing of programs useful for society or in other forms which are not prohibited by the legislation  (Art. 8 of the Law).

Instead of rendering direct assistance to organizations implementing socially useful programs the state provided in the Tax Code complex definitions of “charitable activity” and “charitable organization”, through which it was planned to provide support of such activity, mainly, at the expense of subjects of economic activity (Art. 11 and 20 of the Tax Code). The state envisaged an opportunity of rendering direct support and also deduction from taxable profit (income) at the amount of payments for charitable purposes which do not exceed two percents of taxable profit (income) (Art. 133 of the Tax Code). While studying the provisions of the Tax Code it becomes evident that support depends only on the will of a part rendering assistance and is also complicated by deficiencies of legislation (For example, in accordance with paragraph 3 of Article 201 of the Tax Code it is impossible calculate VAT ).

On the one hand, it is unclear how the status of “charitable organization” can be granted? What are the necessary requirements that organizations have to meet to receive payments? What is the expediency of the status without provision of real assistance? On the other hand, profit organizations need to confirm the charitable character of support or compliance of recipient to the status of charitable organization that burden the reporting documentation. Thus, support of charitable activity becomes a matter of little attraction and charitable organizations themselves (particularly, public associations and public foundations) remain, in fact, without support. Perhaps, the most tangible form of support of associations and charitable organizations is profit tax exemption of charitable transfers, membership duties and donations (Art. 129 of the Tax Code).

Reporting requirements for NGOs

All legal entities are subjected to periodical reporting in Tax bodies and State Statistics bodies. In accordance with the Tax Code, reporting requirements are determined by reporting tax period – calendar month, quarter and year. Moreover, legal entities, their representative offices and branches are obliged to submit data regarding their functioning to the registration body annually before the 1 of March to include them in the Unified State Register.

Termination, dissolution, and liquidation procedure for NGOs

Activity of organization can be suspended for making actions exceed the bounds of purposes and tasks established by the Charter and break the current legislation and also legitimate interests of legal entities and individuals. The registration body or Office of Public Prosecutor makes written notice to the governing body of public association. To eliminate deficiencies one month shall be given, however, the term can be prolonged by the body which made the notice. If during the established term deficiencies are not eliminated, the authorized body shall appeal to Court with a claim to suspend activity of the organization up to three months. In case of elimination of deficiencies the Court shall take the decision on renewal of activity of organization and if deficiencies are not eliminated – the registration body or the Office of Public Prosecutor shall appeal to Court with an application on liquidation (Art. 28 and 29 of the Law “On Public Associations”).

Liquidation of public association is possible based on the decision of the session (conference) or general meeting of the organization in accordance with its Charter or judicially. Liquidation of organization judicially can be implemented in the following cases (Articles 19 and 30 of the Law):

- Propaganda of racial, national, social, religious or local hostility, propaganda of war, appeals to forcible overthrow of constitutional structure, formation of armed groups;

- Violations which serve the basis for suspending activity of the public association are not eliminated during the established term.

In case of liquidation the following documents should be submitted to the registration body: application, copy of decision of liquidation of a legal entity, originals of constituent documents, certificate of state registration or re-registration of a legal entity, liquidation statement, approved by the authorized body. The registration body during ten days from the moment of completion of the liquidation process shall include the data regarding liquidation of a legal entity in the State Register, and shall inform the Statistics and Tax bodies in the area of location of a legal entity which is liquidated about liquidation of a legal entity and shall give the Extract from the Unified State Register.

Liquidation of international and nationwide associations and associations which activity covers the territory of Dushanbe, its rayons, towns and rayons with the direct governing of the central powers shall be implemented in accordance with the Decision of the Supreme Court of the Republic of Tajikistan by submitting of the Ministry of Justice of the Republic of Tajikistan or the General Prosecutor of the Republic of Tajikistan. Liquidation of local public associations shall be implemented based on the Decision of the Court of Gorno-Badahshan Autonomous Region, the relevant regional Court by submitting of Administrations of Justice or Prosecutor of Gorno-Badahshan Autonomous Region and Regions (Art. 30 of the Law).

Participation in law-drafting that affects the status of NGOs

The Constitution gives the right of legislative initiative to deputies of both Chambers of the Parliament (Majlisi Oli) – the members of  Majlisi Milli that operates by sessions and the deputies of Majlisi Namoyandagon that operates permanently, President, Government,  and also deputies of the representative body of Gorno-Badahshan Autonomous Region, Majlis of People’ s Deputies. The right of legislative initiative belongs to the Constitutional Court, Supreme Court and High Economic Court on the issues which are under their jurisdiction (Art. 58 of the Constitution).

In 2001, the Permanent Commission on Legal Issues of Interparliamentary Committee of Belorussia, Kazakhstan, Kyrgyzstan, Russian and Tajikistan (Renamed to Inter-parliamentary Assembly of Eurasian Economic Community (IPA EURASEC )) discussed the draft of model law “On procedure of exercising the right of citizens for legislative initiative”. However, no provisions which could provide the right were adopted at the national level. So, citizens and groups of citizens can participate in legislative activity only indirectly – suggesting their initiatives to the subjects having the right of legislative initiative in accordance with the Constitution.

Analysis is provided by the OSCE ODIHR Expert Dmitry Kabak, with assistance of the Bureau for Human Rights and Rule of Law, Tajikistan, which provided the necessary legal acts.

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