Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Turkmenistan (Ratification: 1997)

The Committee recalls that in its previous direct request it had noted that in the absence of a specific legislation on trade unions and employers’ organizations, the Law on Public Associations regulated the establishment, activities and liquidation of such organizations. It also noted the Government’s indication that the National Trade Union Centre of Turkmenistan (NTUCT) had prepared a draft law on trade unions and requested the Government to provide information on its status and a copy thereof. The Committee notes that in its report the Government indicates that the draft prepared by the NTUCT has been submitted to the Government for consideration. The Committee requests the Government to provide information in its next report on the latest status of the draft legislation, a copy thereof, or a text of the new legislation, if adopted before the next reporting cycle. It reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign citizens and stateless persons. The Committee recalls that it had previously requested the Government to indicate whether foreign citizens and stateless persons could establish and join trade union organizations of their own choosing. The Committee notes that the Government indicates that foreign citizens can establish and be members of public associations and refers, in this respect, to examples of such associations (humanitarian and interest groups organizations) operating in the country. The Committee requests the Government to indicate whether stateless persons can also establish and join trade union organizations of their own choosing.

Trade union monopoly. The Committee had previously noted that the Government’s report seemed to imply that there was only one trade union centre in Turkmenistan and that there were no trade unions outside of that structure. It had requested the Government to indicate whether workers could create a trade union organization outside of the NTUCT. The Committee regrets that the Government provides no clarification in this regard, and to the contrary, appears to confirm the existence of a trade union monopoly in the country by stating that the NTUCT registers sectoral trade unions (composed of primary, i.e. enterprise-based trade unions). The Committee once again recalls that Convention No. 87 implies that pluralism should remain possible in all cases; therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers would prefer to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish. It therefore once again requests the Government to indicate whether workers can create a trade union organization outside of the NTUCT structure.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee had previously noted that, according to section 22(3) of the Law on Public Associations, upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their management committees or office holders and annual and quarterly reports about the association’s activities, as submitted to the taxation authority. According to section 22(4), public associations must inform beforehand the Ministry of Justice about the implementation of important decisions and allow a representative of the Ministry to be present on such occasions. Furthermore, according to section 22(5), a public association must assist a representative of the Ministry of Justice to ascertain whether the association is achieving its authorized purpose(s). The Committee had observed that, in so far as these provisions applied to workers’ and employers’ organizations, they gave authorities powers of control which go beyond those acceptable under the Convention. In this respect, the Committee had considered that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there were serious grounds for believing that the actions of an organization were contrary to its rules or the law (which should not infringe the principles of freedom of association); such verification should be limited to exceptional cases, for example in order to investigate a complaint, or if there had been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee had requested the Government to take the necessary measures to either amend the Law on Public Associations or to ensure that any specific legislation regulating rights and activities of workers’ and employers’ organizations guaranteed the application of this principle. The Committee regrets that no information has been provided by the Government on the measures taken in this respect. The Committee therefore reiterates its previous request and hopes that the Government’s next report will indicate all steps taken or envisaged to ensure the application, in law and in practice, of the principle above.

Right to strike. The Committee had previously noted that the provisions of the Labour Code concerning collective labour disputes did not refer to the right to strike and requested the Government to provide a copy of all relevant legislation regulating the right to strike. The Committee notes that according to the Government, collective labour disputes are resolved through mediation or in case of a failure, in courts; the parties cannot refuse to participate in dispute resolution procedures. The Government further indicates that there are no registered cases of strikes in the country. The Committee considers that while strikes action is not an end in itself, it is an essential means available to workers and their organizations to protect their interests. The Committee further considers that in as far as compulsory arbitration, including through judicial proceedings, prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests the Government to take the necessary measures, in consultation with the social partners, in order to ensure the application of this principle in law and in practice. It requests the Government to indicate in its next report all measures taken or envisaged to that end.

The Committee further notes the Government’s indication that the legislation of Turkmenistan punishes the violation of the established order for organizing and holding of assemblies, meetings, marches and demonstrations and that the engaged responsibility is of an administrative and criminal nature. According to section 223 of the Criminal Code, “violation of the legal order set out for the organization or conduct of meetings, rallies, marches and demonstrations, … after application of administrative penalty for the same acts, shall be punished by a fine of from five to ten monthly wages, or correctional work for up to one year, or by imprisonment for up to six months”. The Committee requests the Government to provide detailed information, including relevant legislative provisions or regulations setting out the order and procedure for organizing and holding of mass activities and describe concrete situations where an administrative and criminal responsibility of an individual would be involved.