Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bosnia and Herzegovina (Ratification: 1993)

The Committee takes note of the Government’s report, as well as the discussion concerning the application of the Convention which took place at the Conference Committee on the Application of Standards in June 2007. Furthermore, the Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007 and those made by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) dated 13 October 2007. The Committee requests the Government to provide information in respect of the matters raised in these two communications in its next report.

The Committee also takes note of the report of the mission to Bosnia and Herzegovina following the request made by the Conference Committee on the Application of Standards in June 2007. It notes with interest the cooperation extended by the Government to the mission. It observes from the mission report the multifaceted elements involved in resolving the outstanding registration matters, which arise within a highly complex political system. It expresses the firm hope that concrete steps will be taken in the very near future, through the full commitment of all the parties concerned, so as to ensure full respect for the right to organize throughout the territory.

Articles 2 and 4 of the Convention. 1. Requirement of previous authorization for the establishment of employers’ and workers’ organizations and dissolution or cancellation of registration. The Committee recalls that in its previous comments it had noted that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Justice to accept or refuse a request for registration and provides that the request shall be considered as rejected if the Minister does not adopt a decision within 30 days. The Committee notes with interest from the Government’s report the concrete steps taken by the Ministry of Justice to amend this Law taking into account the Committee’s previous comments and so as to provide for a simpler and faster registration procedure with more reasonable deadlines. It notes that the pre-draft Law on this matter has now been forwarded to the Council of Ministers for consideration and the adoption of the draft Law. Due to the current stoppage of the functioning of the Council of Ministers, the Government was not in a position to indicate when consideration of the pre-draft would be completed.

The Committee recalls that legislation which makes the registration and acquisition of legal personality a prerequisite for the existence and functioning of organizations and, at the same time, does not clearly define the reasons for refusal to grant a registration request, confers on the competent authority a genuinely discretionary power which is tantamount to a requirement for previous authorization. The Committee expresses the firm hope that the Council of Ministers will be able to conclude their review of the pre-draft to amend the Law on Associations and Foundations in the very near future so that the necessary amendments to ensure that workers and employers can freely establish organizations of their own choosing without previous authorization may be adopted shortly in the Parliament. It further hopes that the necessary amendments will be made to sections 30(2), 34 and 35 as regards dissolution or cancellation of registration along the lines of its previous requests. In the meantime, it requests the Government to send a copy of the proposed amendments transmitted to the Council of Ministers so that it may examine their conformity with the Convention.

2. Registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). The Committee further recalls that in its previous observation it had noted the unreasonable period which had elapsed since the filing of a registration request by the Confederation of Independent Trade Unions of Bosnia and Herzegovina and had requested information on the measures taken or contemplated in order to grant registration to this organization as soon as possible. The Committee notes the information provided in the Government’s report that resolution of this matter has been stalled because the current legislation requires that any refusal to register an organization must be first reviewed by a second instance internal body called the Appeals Commission. This Commission, appointed by the Council of Ministers, has not been convened due to a lack of internal capacity. The Committee notes with interest, however, that the Ministry of Justice has undertaken concrete measures to inform the Council of Ministers of this difficulty and has emphasized the need to establish the Appeals Commission, as, in its absence, the appellants are denied a right to an effective legal remedy. In response to a request from the Council of Ministers once apprised of this situation, the Ministry of Justice drafted a proposal for the decision on the appointment of the Appeals Commission, which has been forwarded to the competent bodies for their views prior to submitting a pre-draft decision to the Council of Ministers for consideration and adoption.

The Committee must nevertheless observe with regret that the question of the registration of the SSSBiH has still not been resolved, nor has the SSSBiH been assured of an appeal process to resolve the issue. The Committee notes from the mission report that the SSSBiH’s appeal to the ordinary courts had been rejected on procedural grounds, as the law required a second instance administrative appeal prior to having access to the judicial system. The Committee considers that such a situation, which has lasted for five years now, is unacceptable in that it provides no recourse for the defence of workers’ basic right to organize. The Committee further notes from the mission report that the practical obstacles to registration appear to emanate from a number of different sources and for a variety of non-legal reasons. The Committee emphasizes that the right to organize is a fundamental right which must be ensured for the good of the nation as a whole and that any other considerations can be addressed within the framework of respect for this right. The Committee recalls that Article 2 of Convention No. 87 guarantees workers the right to establish and join organizations of their own choosing. While duly noting the current stoppage of the functioning of the Appeals Commission established by the Council of Ministers, the Committee expresses the firm hope that the necessary measures will be taken in the very near future to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina. It requests the Government to indicate in its next report the progress made in this respect. Further noting with deep concern the absence of judicial recourse due to the non-functioning of the Appeals Commission for several years now, the Committee requests the Government to give serious consideration to amending the Law on Foundations and Associations so as to eliminate the requirement of a second administrative appeal step and to permit appeals directly to the judicial system.