Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 307, Juin 1997

1. 237. The Confederation of Independent Trade Unions of Croatia (CITUC) presented a complaint against the Government of Croatia in a communication dated 30 January 1997, alleging violations of trade union rights. Further information was received from the CITUC in a communication of 10 March 1997. In response to the allegations, the Government forwarded observations and information in a communication of 16 April 1997.
2. 238. Croatia has ratified both 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. 239. In its communication of 30 January 1997, the CITUC alleges that in being denied registration it has been discriminated against due to its independence and political affiliation.
2. 240. As background, the complainant first recounts the history of the CITUC. Established on 28 June 1990 as a new, democratic and independent trade union confederation, the CITUC was constituted by newly established trade unions that had withdrawn from the Union of Autonomous Trade Unions of Croatia. Mladen Mesi , President of the Independent Trade Union of Airplane Staff of Croatia, was elected as CITUC's first President. While the CITUC at one time represented over 100,000 members, during 1992-93 several trade unions withdrew, bringing the membership to 20,000. The CITUC has occupied one of three trade union seats on the national tripartite Economic and Social Council. It is also one of two trade union confederations in Croatia to have become a full member of the Trade Union Community of "Alps Adriatic" and of the Forum of the European Trade Union Confederation.
3. 241. According to the complainant, on 23 March 1995, Ivan Muselinovi , manager of the gas and oil production sector of INA, a state-owned company, led a group of people in forcibly entering the main office of CITUC in Zagreb. They expropriated the premises, moveable property, official seals and the documentation and archives of the organization. Charges of trespassing were laid. The Municipal Court ruled on 4 April 1995, as a temporary measure, that the defendants were to restore the old lock on the entrance door or submit the key to the new lock to the prosecutor. The complainant states that the group led by Mr. Muselinovi has continued to use the premises, logo, insignia and seal. Mr. Muselinovi 's justification, according to the complainant, is that an extraordinary congress of CITUC was held on 17 March 1995, during which he was elected the new President. The complainant emphasizes, however, that the prerequisites for calling an extraordinary congress pursuant to the constitution of the CITUC were not fulfilled. The complainant points to Mr. Muselinovi 's position in the state-owned company and the fact that he, along with a lawyer and a manager of another company, initiated the calling of the extraordinary congress, as evidence that the removal of the leadership was politically motivated.
4. 242. Mr. Muselinovi applied to be registered as the person authorized to represent the CITUC in the Register of Associations and other Social Organizations. In a decision dated 13 June 1995, the Ministry of Administration rejected the application. This decision was appealed to the Administrative Court, which ruled on 11 July 1996 that the case was to be referred back to the Ministry of Administration for further examination. Under the new Labour Code, 1996, the Ministry of Labour and Social Welfare ("the Ministry") became responsible for such matters. In a decision of 10 October 1996, the Ministry accepted Mr. Muselinovi 's application for registration. The Ministry in its decision examined whether the extraordinary congress had been called in accordance with the CITUC constitution, and also whether the decision to elect Mr. Muselinovi was in conformity with the constitution.
5. 243. Prior to the Ministry's decision to accept Mr. Muselinovi 's registration, the CITUC under Mr. Mesi , applied, as required under the new Labour Code, to be entered in the Register of Associations. The Ministry in a decision of 29 February 1996, interrupted the registration procedure pending a final ruling on who was authorized to represent, and thus to register, the organization. Mr. Mesi subsequently lodged a complaint before the Administrative Court against the Ministry's decision of 10 October. Finally, in a decision of 25 November 1996, the Ministry rejected Mr. Mesi 's application for registration of the CITUC since Mr. Muselinovi had been found to be the person authorized to represent the association, and the Labour Code prohibits the registration of more than one association under the same name.
6. 244. The CITUC characterizes the facts of the case as a violation of Article 2 of Convention No. 87, in particular, the right of workers' organizations to establish organizations without previous authorization. The complainant also advances that there has been a breach of Articles 3, 4 and 7 of the Convention. The complainant contends that the Ministry prohibited the CITUC from pursuing trade union activities before all legal means had been exhausted, because of its independence and because it is not "politically correct" in the eyes of the current authorities. The aim of the ban, according to the complainant, was to discipline and weaken the trade union movement in Croatia.

B. The Government's reply

1. 245. In response to the allegations, the Government emphasizes recent changes in the labour legislation. The Government asserts that freedom of association is protected under the country's Constitution and has been addressed in the Labour Code, 1996. Pursuant to the Labour Code, existing trade unions are not required to re-establish; however, registration is required if they are to acquire legal capacity. Pending registration, trade unions are entitled to undertake the activities for which registration is required, including collective bargaining and organizing strikes. The Government stresses that the provisions of the new law regarding the establishment and registration of trade unions comply fully with Conventions Nos. 87 and 98.
2. 246. Regarding the specific allegations, the Government notes that the Ministry received two applications for registration from trade union confederations, both calling themselves the "Confederation of Independent Trade Unions of Croatia", each represented by different persons and consisting of different members. Prior to the application of the new law, the Ministry of Administration received a request for a change in the registration of the person authorized to represent the CITUC. The request was rejected, then brought before the Administrative Court. The Ministry, having been informed of the pending legal proceedings regarding the person authorized to represent the CITUC, suspended the registration procedure until the resolution of the matter. On 11 July 1996, the Administrative Court overturned the decision of the Ministry of Administration.
3. 247. The Ministry took into account the decision of the Administrative Court, and conducted the procedure that it had mandated to determine the person authorized to represent the Confederation. The Ministry ruled on 15 November 1996 regarding the registration of the CITUC and the registration of Messrs. Muselinovi and Toto as the authorized persons. According to article 166 of the Labour Code, the name of the organization applying for registration must differ from the name of an already registered organization. Since the application for registration presented by Mr. Mesi concerned an organization with the same name as one already registered, the Ministry rejected the application. The matter has been referred on appeal to the Administrative Court. The Government submits that the procedure was conducted in accordance with the legislation and without violating Convention No. 87. In addition, it contends that any further analysis of the procedure would be an attempt to determine facts, which is the competence of the court, and would prejudge the pending court decision. The Government undertakes to forward the decision to the Committee as soon as it is handed down.

C. The Committee's conclusions

1. 248. The Committee notes that the allegations of violations of freedom of association in this case arise out of two closely associated events: the dispute regarding the leadership of the CITUC and the subsequent obstacle to registration of the CITUC under the presidency of Mr. Mesi .
2. 249. With respect to the dispute as to the authorized representative of the CITUC, the Committee recalls that generally it is not competent to make recommendations regarding internal dissension within a trade union organization, as long as the Government did not intervene in a manner that might affect the exercise of trade union rights and the normal functioning of the organization. In cases of this nature, the Committee has emphasized the importance of judicial intervention in settling the question of the leadership and representation of the organization concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 965, 970). The Committee notes that Mr. Mesi has lodged a complaint before the Administrative Court against the Ministry's decision of 10 October 1996 to register Mr. Muselinovi as the person authorized to represent the CITUC. The complainant has not questioned the impartiality of the appeal procedure. Assuming that the Administrative Court is able to deal with the substance of the case, as discussed below, the Committee considers that the principle that such a dispute should be settled by a judicial authority has been respected.
3. 250. Regarding the refusal to register the CITUC under the presidency of Mr. Mesi , the Committee recalls that if the conditions for granting registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a workers' organization, this would constitute a violation of freedom of association (see Digest, op. cit., para. 259). In the case at hand, the registration of the CITUC under Mr. Mesi was denied for two reasons: first, because of the dispute regarding who was entitled to represent the organization, which has been addressed above; second, because the organization that Mr. Mesi was seeking to register had the same name as another organization that had already been registered. Regarding the second reason, the Committee notes that it is a reasonable, and in order to avoid confusion, normally a desirable requirement that two organizations not have the same name and does not amount to previous authorization.
4. 251. The complainant alleges that the refusal to register the CITUC was tainted by political considerations and was an attempt to weaken the trade union movement in Croatia. The Committee recalls that the refusal to register a union because the authorities, in advance and in their own judgement, consider that this would be politically undesirable, would be tantamount to previous authorization (see Digest, op. cit., para. 268). The Committee further recalls that an appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against an unlawful or ill-founded decision by the authorities responsible for registration (see Digest, op. cit., para. 264). The Committee notes that in the case at hand, the administrative decision denying registration is subject to appeal pursuant to article 173(3) of the Labour Code, 1996, and that an appeal has been launched. As noted above, the complainant has not questioned the impartiality of the appeal procedure. The Committee reminds the Government that on appeal the judge should be able to deal with the substance of the case to determine whether there has been a violation of the principles of freedom of association (see Digest, op. cit., para. 267). The wording of article 173(3) is ambiguous in this regard since it states that the administrative decision "shall be final and can be challenged before an administrative tribunal". Therefore, the Committee requests the Government to provide further details regarding the jurisdiction of the Administrative Court regarding the leadership dispute and the refusal to register. The Committee further requests the Government to keep it informed of the status of the proceedings before the Administrative Court and to forward a copy of the Court's decision as soon as it is handed down.