Informe provisional - Informe núm. 386, Junio 2018

1. 69. The complaint is contained in a communication from the National Union of Afghanistan Workers and Employees (NUAWE) dated 6 March 2017. In a communication dated 26 April 2018, the International Trade Union Confederation (ITUC) associates itself with the case.
2. 70. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on several occasions. After its March 2018 meeting, the Government was invited to provide its reply in relation to the case and was informed that, in accordance with the procedural rules, given the time that has elapsed, the Committee could present a report on the substance of the case, even if the requested observations or information have not been received in due time. To date, the Government has not sent any information.
3. 71. Afghanistan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 72. In its communication dated 6 March 2017, the complainant denounces violations of trade union rights by the Government, in particular the issuance of a unilateral decision on confiscation of trade union premises and property without a court order.
2. 73. The complainant alleges that, on 31 August 2016, the Government issued a decree mandating the Ministry of Interior, the Ministry of Finance and the Afghanistan Independent Land Authority (ARAZI) to seize all trade union property of the NUAWE, the Afghanistan Farmers’ Cooperative Union and the Youth Union and to transfer and register it under state ownership. The complainant explains that the NUAWE is a legally registered entity with a statute and 17 legally acquired premises (five in the capital Kabul and 12 in the provinces) that were certified by a notary, officially registered and paid for with union membership fees. The majority of the buildings (13 out of 17) are used as facilities for trade union activities, three are leased out for regular income in order to finance trade union statutory activities, staff salaries and other legal obligations and one building has been unlawfully usurped by the Ministry of Defence without payment of lease. The complainant also indicates that none of the premises were donated or assigned to the NUAWE by the Government without payment; instead, all were legally purchased and settled by the union’s own financial resources.
3. 74. The complainant further alleges that the Government’s unilateral decision ordering confiscation of trade union property was only preceded by the appointment of an ad hoc advisory body, dominated by members of the Cabinet and representatives of other government agencies with an additional presence of two non-governmental organizations. One of the recommendations issued by the ad hoc advisory body with regard to the complainant indicated that the union in its current legal status was established after the entry into force of the 2003 Law on Social Organization, that all its properties had been bought before 2003 and that the relevant authorities of the Government were authorized to take any decision on the properties of the union. It also stated that a joint committee should be assigned to determine the movable and immovable properties, provide a list of all such properties and submit it to the President of Afghanistan for a final decision.
4. 75. According to the complainant, the Government thus justifies the seizure of the union’s premises by the fact that its property had been acquired prior to the entity’s registration as a social organization under the 2003 Law on Social Organization, which governs the status of trade unions in Afghanistan. However, the complainant explains that the entity had been established and had operated as a non-governmental organization prior to the entry into force of the 2003 Law when it had legally purchased its property. Furthermore, in the complainant’s view, the Government’s decision to arbitrarily confiscate trade union property without a court order and without consultation with the concerned trade unions is a serious violation of both the Constitution of Afghanistan, which stipulates in its article 40 that no one’s property shall be confiscated without the order of the law and decision of a competent court, and of the principles of freedom of association. The complainant emphasizes that financial independence and protection of trade union assets and property are inalienable essentials for the right of trade unions to organize their statutory obligations and administration without intervention, manipulation and interference by the public authorities. However, by taking measures to strip the trade union of its assets, the Government is depriving it of the use and enjoyment of its property rights and of the ability to effectively execute its legitimate operational activities which, in turn, will reduce the union’s ordinary activities due to the lack of financial resources.
5. 76. Finally, the complainant requests the Committee to urge the Government to immediately withdraw its decision to seize union property, which should only be allowed with a court order, and to allow for appeal against any such court order, as well as against the pertinent Government decree.
6. 77. In a communication dated 26 April 2018, the ITUC requests to be associated with the complaint of NUAWE and alleges that since the filing of the original complaint, the Government has intensified its efforts at confiscating and taking over the legitimately acquired properties of the NUAWE thus rendering the union’s activities inoperative. In particular, the ITUC denounces recent attempts at violent takeover and occupation of the NUAWE offices by the police and the armed forces, the freezing of the union’s bank accounts without a judicial authorization, failure to renew its license, as well as failure to engage with the union and the hindering of freedom of expression and press.

B. The Committee’s conclusions

1. 78. The Committee regrets that since the presentation of the complaint in March 2017, the Government has not yet provided its observations, even though it has been requested several times to do so. The Committee requests the Government to be more cooperative in the future.
2. 79. Hence, in accordance with the applicable procedural rules, given the time that has elapsed, the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 80. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report of the Committee, published in 1952, para. 31].
4. 81. The Committee notes the complainant’s allegations that, in August 2016, the Government issued a decree ordering the seizure of the complainant’s premises and their transfer under state ownership and that this measure was not accompanied by a court order or any consultations with the trade union. The Committee also notes that, according to the complainant, the Government justifies the confiscation of property by the fact that it was acquired prior to the NUAWE’s registration as a social organization under the 2003 Law on Social Organization, while the complainant maintains that the entity had been established and had operated in the form of a non-governmental organization well before the entry into force of the 2003 Law. From the documents provided, the Committee also understands that the August 2016 decree seems to consider the complainant’s properties and buildings as properties of the State, which should be returned to it, whereas the complainant argues that all properties were legally purchased and settled by the union’s own financial resources and none of them were donated by the Government without payment.
5. 82. While noting that the exact origin of the premises, as well as the impact of having acquired the property before the entry into force of the 2003 Law remain disputed, the Committee observes from the information available that all properties currently in the NUAWE’s possession appear to be directly or indirectly used for legitimate trade union purposes (the majority are used as facilities for trade union activities, while some are leased out so as to allow for financing of trade union activities, staff salaries and other legal obligations). Noting in this regard the serious concerns expressed by the complainant that by confiscating its property, the Government is depriving the trade union of its ability to effectively execute trade union activities, the Committee regrets that the Government does not provide any observations on these grave allegations. In these circumstances, the Committee must recall that it is stated in the resolution on trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th Session (1970), that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights. The confiscation of trade union property by the authorities, without a court order, constitutes an infringement of the right of trade unions to own property and undue interference in trade union activities. The occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities [see Compilation of decisions of the Freedom of Association Committee, sixth edition, 2018, paras 275, 288 and 287]. In light of the above, the Committee urges the Government to provide its observations on the complainant’s allegations without delay so that it may examine this question in full knowledge of the facts and, in particular, to indicate the exact reasons for the alleged transfer of the complainant’s property under state ownership. In the meantime, in view of the significant risk that such measures can have on trade union activities, the Committee requests the Government to suspend the application of the August 2016 decree ordering confiscation of the complainant’s property pending any judicial review and to ensure that any property already seized without a valid court order is returned to the complainant.
6. 83. The Committee further understands from the text of the 2016 decree that, in addition to ordering the transfer of the complainant’s property to the Government, it also mandates the Ministry of Justice to review, in light of the applicable laws, the continuation of the activities of the NUAWE and two other trade unions, and proceed accordingly. While it does not have sufficient information at its disposal to provide full conclusions in this regard, the Committee emphasizes that workers’ organizations have the right to freely organize their administration and activities without interference from the authorities. It further recalls that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association [see Compilation, op. cit., para. 986]. The Committee, therefore, requests the Government to clarify whether the 2016 decree can indeed lead to administrative intervention in or control over trade union affairs and whether, in particular, administrative suspension or dissolution of a trade union could be a possible consequence of the review undertaken and, if so, invites the Government to amend the 2016 decree to ensure that this is not possible.
7. 84. Finally, the Committee takes note of the additional information submitted by the ITUC and requests the Government to provide detailed observations on the allegations contained in the ITUC communication: intensified efforts of the Government to confiscate and take over the legitimately acquired properties of the NUAWE, including recent attempts at violent takeover and occupation of the NUAWE offices by the police and the armed forces, the freezing of the union’s bank accounts without a judicial authorization, failure to renew its license, as well as failure to engage with the union and the hindering of freedom of expression and press.