Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 323, Noviembre 2000

1. 506. In communications dated 17 February and 24 March 2000 the All Ukrainian Trade Union "Solidarnost" submitted a complaint of violations of freedom of association against the Government of Ukraine.
2. 507. The Government sent its observations in communications dated 30 March and 24 May 2000.
3. 508. Ukraine has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 509. In its communication dated 17 February 2000, the All Ukrainian Trade Union "Solidarnost" complains of the revocation of their registration, granted on 30 December 1999, by resolution No. 2 of the Board of the Ministry of Justice dated 9 February 2000. The only reason given for the revocation was that the registration was contrary to the laws in force, without any further explanation. At the same time, the Board of the Ministry of Justice gave a special instruction to the National Bank of Ukraine to close the accounts of the union and also ordered the dispatch of the news of the revocation in the mass media.
2. 510. The complainant explains that, under the law (section 18 of the Act on Trade Unions, their Rights and Safeguard of their Activities), the dissemination in mass media of the cancellation of a certificate of registration may only take place in the case of forced trade union dissolution to be determined by the courts. According to the complainant the action taken by the Board of the Ministry of Justice was therefore an act of dissolution which should only be carried out by the courts and was thus in violation of the Ukrainian Constitution, the UN Declaration of Human Rights and ILO Convention No. 87.
3. 511. In its communication dated 24 March 2000, the complainant adds that the regional justice administrations in Kiev, Cherkassy and Herson have issued orders to cancel the registration of trade union links and states that the public prosecutor's departments and the civil forces interfere in trade union activity. The complainant appealed to the court against the decision of the Board of the Ministry and attached to its complaint a number of documents relevant to its appeal. In a letter to the President of Ukraine which was attached to the complaint, the complainant also indicates that it had not received any notification of the alleged irregularities in its documents and that it had only received official communication of the decision to cancel its registration on 28 February, several weeks after the decision was taken.

B. The Government's reply

1. 512. In its communication dated 30 March 2000, the Government states that the All Ukrainian Trade Union "Solidarnost" was indeed registered on 30 December 1999 under the Act on Trade Unions, their Rights and Safeguard of their Activities. The Government adds, however, that it was found upon further verification that the information provided, mainly concerning the number of members, the legal addresses of certain district organizations and the legitimacy of the constituent assembly of the All-Ukrainian Confederation, did not correspond to the real situation. In view of the unreliability of the documents, the Board of the Ministry of Justice adopted resolution No. 2 cancelling the registration of this union.
2. 513. The Government adds that the decision to cancel the registration of the All Ukrainian Trade Union "Solidarnost" did not constitute forcible dissolution, an act which can only be ordered by a court. Furthermore, the Government indicated that the union filed a suit with the Supreme Court of Arbitration to declare null and void the cancellation of its registration and the Ministry filed a corresponding counter-suit.
3. 514. In its communication dated 24 May 2000, the Government indicates that the Supreme Court of Arbitration has examined the suit and the counter-suit and found in favour of the Ministry of Justice in its ruling of 6 April 2000. The ruling declares the record of the constituent assembly of the "Solidarnost" union and its by-laws, as well as the conclusions initially reached by the Ministry of Justice when it first registered the union in December 1999, to be invalid. The Procedural Code of Arbitration provides that rulings, decisions and orders of the arbitration court acquire force of law immediately after they are adopted and are binding on enterprises, organizations and officials.

C. The Committee's conclusions

1. 515. The Committee notes that the allegations in this case concern the administrative decision to cancel a previously granted union registration and the Government's pursuit of this action with a request to the bank to close the union's account, a decision to publish the cancellation in the mass media, regional administration orders to cancel union links and interference in trade union activity by the public prosecutor departments and civil forces.
2. 516. In the first instance, the Committee notes that, according to the Government, the registration of the All Ukrainian Trade Union "Solidarnost" was cancelled because of inaccuracies concerning the number of members, the legal addresses of certain district organizations and the legitimacy of the constituent assembly of the All-Ukrainian Confederation. On appeal, the Court of Arbitration found in favour of the Ministry of Justice declaring the record of the constituent assembly of the "Solidarnost" union and its by-laws to be invalid.
3. 517. The Committee observes that there is no mention in the documentation provided by the Government, or by the complainant, of the union not having met basic criteria for registration, but rather cancellation appears to rest solely on the unreliability of the information provided. In this respect, it appears that no efforts were made to rectify and review this information with the All Ukrainian Trade Union "Solidarnost", but rather a decision was taken to cancel the union's registration with immediate effect, without notifying the union, and orders were sent to the bank to close the union's accounts and to the regional administrations to nullify organizational links.
4. 518. While noting the Government's statement that the Ministry's action did not constitute "dissolution" of the union, the Committee recalls that the cancellation of registration of an organization by the registrar of trade unions is tantamount to the suspension or dissolution of that organization by administrative authority. If the principle that an occupational organization may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decisions by a judicial authority. Furthermore, in view of the serious consequences which dissolution of a union involves for the occupational representation of workers, the Committee has considered that it would appear preferable, in the interest of labour relations, if such action were to be taken only as the last resort, and after exhausting other possibilities with less serious effects for the organization as a whole (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 669 and 677).
5. 519. The Committee is not in a position to judge the factual veracity of the information provided by the complainant with its registration application. It does however consider that the queries raised by the verification of the Board of the Ministry of Justice, which according to the legislation is to take place within one month of the application and prior to granting registration, should have been dealt with directly with the complainant. Given the information made available to it, the Committee must conclude that no efforts were made by the government authorities to resolve the alleged discrepancies in a manner so as to avoid the particularly serious effects of dissolution.
6. 520. Furthermore, while not specifically raised in the present case, the Committee considers it useful to recall its conclusions in a previous case concerning Ukraine in respect of the national requirements for registration (see 318th Report, Case No. 2038). In that case, the Committee, noting that section 11 of the Act on Trade Unions, their Rights and Safeguard of their Activities (hereinafter, the Trade Union Act) required organizational links in the majority of administrative territorial units in order to obtain all-Ukrainian trade union status, recalled that requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws. The Committee found that this requirement, read with section 16 of the Act which provides for compulsory registration of a union carried out by a legalizing body that will verify the correspondence of the status of a union in respect of section 11, was not compatible with the provisions of Convention No. 87 (see 318th Report, paras. 528-530).
7. 521. In light of the above and given the very serious consequences of the Board of the Ministry of Justice's decision to cancel the complainant's registration, the Committee requests the Government to engage immediately in discussions with the All Ukrainian Trade Union "Solidarnost" with a view to establishing the data necessary for its registration and to indicate any pure procedural formalities which may still need to be carried out by the union so that it may be re-registered without delay. The Committee requests the Government to keep it informed of the progress made in this respect.
8. 522. As concerns the closing of the complainant's bank accounts, the Committee notes from a bank communication attached to the complaint that the complainants were informed on 18 February that the flow of funds in its account was suspended. In this respect, the Committee recalls that the freezing of union bank accounts may constitute a serious interference by the authorities in trade union activities (see Digest, op. cit., para. 439). The Committee therefore calls upon the Government to take the necessary measures without delay to ensure the reactivation of the bank account of the All Ukrainian Trade Union "Solidarnost" and to keep it informed of any progress in this respect.
9. 523. Given the general nature of the complainant's allegations of interference in its activities by the public prosecutor's departments and civil forces, the Committee will limit itself to recalling the importance it attaches to the principle that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests (see Digest, op. cit., para. 447). It expects that the Government will take all necessary measures to ensure that the authorities do not infringe upon this right.