Public formations for the protection of public order and the state border: special aspects of registration

To establish a Public Formation on protection of public order and the state border, you need to gain a support of the Ministry of Internal Affairs of Ukraine and the State Border Guard Service of Ukraine.

But what to do if you have no such support, but still have a desire to create the formation and carry out the abovementioned activities?

In this publication, we will elaborate on the procedure for setting up such a formation, the inconsistencies in legislation, as well as offer alternative solutions to the issue.

What does the law say?

Citizens of Ukraine have the right to participate in the protection of public order and the state border. For this purpose, they must create a public formation (hereinafter - the PF). The basic principles of the establishment and operation of such formations are regulated by the Law of Ukraine “On the Participation of Citizens in the Protection of Public Order and State Border” (hereinafter - the Law).

1. Establishment process 

Such formations shall be created at the General Meeting of Citizens, and the total number of founders shall be no less than 10 people.

Depending on the type of activities to be carried out by the PF (protection of public order or the state border), the decision on the PF creation shall be supported by the territorial department of the National Police or a subdivision of the State Border Guard Service of Ukraine. 

Note! The exact form of support is not set forth in the Law.

2. Mandatory conditions

The PF shall have an organizational document. Depending on the type of activities to be carried out by the public formation, it shall submit its organizational document to the approval of the management of the territorial department of the National Police or a subdivision of the State Border Guard Service of Ukraine before registration.

In addition, the organizational document shall be approved by the local council of the district, where the public formation intends to carry out its activities.

Our service: Registration Of A Public Formation On Protection Of Public Order And State Borders

Inconsistencies in legislation and practical solutions

The Law itself uses two terms: Part 1 of Article 1 states that citizens have the right to set up non-governmental organizations to participate in protection of public order, while Part 2 of the same Article uses the term “public formations”.

At first glance, it looks like a play on words, and some people may think that these are the same concepts. But according to paragraph 3, part 1 of Article 1 of the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Formations”, public formations include non-governmental organizations, political parties, trade unions, etc. This means that the concept of a formation is broader.

Related article: Classification Of Forms And Types Of Non-Governmental Associations In Ukraine 

Non-governmental associations are divided into:

• Non-governmental organizations – an association of natural persons.
• Non-governmental unions – an association of legal persons. 

Which legal structure will suit best?

Since the formation on protection of public order is an association of citizens, there is no way, but to choose a non-governmental organization.

Thus, before creating a Public Formation on protection of public order and the state border, it is necessary to choose the legal structure of the non-governmental organization. When preparing the organizational documents of such an organization, it is necessary to take into account the peculiarities of both laws mentioned above.

What do you need to pay attention to when creating such a formation? 

The Law of Ukraine “On Non-Governmental Associations” stipulates that a non-governmental organization can be created by two persons, but according to the Law of Ukraine “On the Participation of Citizens in the Protection of Public Order and State Border”, at least ten citizens are required to create an organization.

We would like to focus on the word “citizens”. Since both foreigners and stateless persons can be founders of a non-governmental organization. But if the organization is created for the purpose of protection of public order and the state border, only citizens of Ukraine can be the founding members.

What to do if you cannot get approval from the National Police and the local council, but you still want to carry out security activities? 

The easiest and most effective option is to register a private security company. Of course, there are many differences between a security company and a Public Formation engaged in protection of public order:

• A private company cannot protect the state border. 
• A PF is a non-profit structure, whose goal is not primarily for profit, and therefore it does not pay profit tax. A private security company is a business entity, i.e. a tax payer. 

But if your key goal is to provide security services, a private company is a good way to achieve it.

One of the reasons is that local government authorities, for example, may conclude agreements with private security companies to protect property and people, that can also be considered a form of protection of public order.

In addition, we have extensive experience in obtaining security licenses for communal enterprises, whose activities, owing to their form of incorporation, were directly related to the protection of public order in cities and towns.

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