Informe provisional - Informe núm. 399, Junio 2022

Caso núm. 3269 (Afganistán) - Fecha de presentación de la queja:: 06-MAR-17 - Activo

Allegations: The complainant organization 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

1. 43. The Committee last examined this case (submitted in March 2017) at its June 2021 meeting, when it presented an interim report to the Governing Body [see 395th Report, paras 63–74, approved by the Governing Body at its 342nd Session (June 2021)]. 
2. 44. The preparatory commission for the congress of the National Union of Afghanistan Workers and Employees (NUAWE) sent additional information in communications dated 19 June and 17 July 2021. The International Trade Union Confederation sent additional information in a communication dated 17 May 2022.
3. 45. At its meeting in March 2022 [see 397th Report, para. 7], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1971), it could present a report on the substance of the case, even if the requested information or observations had not been received in due time. To date, the Government has not sent any information.
4. 46. 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. Previous examination of the case

1. 47. At its June 2021 meeting, the Committee made the following recommendations [see 395th Report, para. 74]:
   • (a) The Committee firmly urges the Government to ensure that the matters first giving rise to this complaint, in particular as regards the confiscation of the complainant’s properties, are addressed without delay. It expects a rapid decision of the Courts concerning the legal claim of the NUAWE in this regard and requests the Government to indicate any steps taken to comply with the final decision.
   • (b) The Committee urges the Government to carry out an investigation into the allegations contained in the ITUC communication of April 2018 with respect to the attempts by the police and the armed forces to take over and occupy the NUAWE offices so as to determine the facts and identify those responsible to ensure that any such acts do not recur. It also urges the Government to provide detailed observations on the allegations concerning the freezing of the union’s bank accounts without judicial authorization, the failure to renew the union’s licence, as well as the failure to engage with the union and the hindering of freedom of expression and press.
   • (c) The Committee urges 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.

B. Additional information received

1. 48. In communications dated 19 June and 17 July 2021, the preparatory commission for the NUAWE recalls that, in its decision of 4 March 2019, the Appellate Court of Kabul decided that the tenure of the leadership board of the NUAWE had ended, that the authority of the previous chairperson, Mr Maroof Qaderi, and of members of the board of directors had ceased, and that with the agreement of all parties involved – including the signatory of this complaint Mr Qaderi, an organizing committee composed of 26 members was established to facilitate the organization of the election of the new chairperson and board of directors by 19 January 2021. However, the congress was postponed. The preparatory commission indicates that work is still underway to hold the congress of the NUAWE in accordance with the ruling of the Appellate Court of Kabul, and to end the long-standing crisis within the organization. According to the preparatory commission, until the congress can take place, the NUAWE remains under its authority.
2. 49. In a communication dated 17 May 2022, the International Trade Union Confederation (ITUC) indicates that, since the new authorities took power in August 2021, trade union leaders are under direct threat and therefore forced into exile. Some NUAWE leaders, including Mr Qaderi, were relocated abroad, at the same time as others, including Mr Mohammad Ashraf Samadi the vice president of NUAWE, lead the team in the country. The ITUC indicates that the NUAWE officially made a request to the new authorities to open the union’s office and to renew its registration, but no positive response has been received. The ITUC also denounces that, on 27 March 2022, the authorities seized the union’s properties, including those in the provinces, confiscated materials and documents, and expelled its staff. Finally, the ITUC informs that, in the absence of the renewal of the registration of the NUAWE in the country rendering its operation illegal, Mr Qaderi and other union leaders have established the NUAWE in exile.

C. The Committee’s conclusions

1. 50. The Committee recalls that this case concerns allegations of confiscation by the Government of legitimately acquired trade union premises and property without a court order, including attempts at violent takeover and occupation of the NUAWE offices by the police and the armed forces, as well as the freezing of the union’s bank accounts, failure to renew its licence and the hindering of freedom of expression and press.
2. 51. The Committee recalls that, in June 2021, the Government informed that following a decision of the Appellate Court of Kabul in relation to the leadership of the NUAWE, all parties agreed to establish an organizing committee for the election of a new board of the organization in January 2021, which was postponed due to security and logistical challenges. The Government added that the bank accounts of the union would be transferred to the elected legitimate leadership of the NUAWE. The Government also indicated that it would respect any final ruling by the Courts concerning the legal action presented by the union to claim certain properties. The Committee notes with concern that the Government has not since provided any additional information, in particular concerning steps taken to comply with its previous recommendations.
3. 52. The Committee notes the information provided by the preparatory commission for the Congress of the NUAWE, dated June and July 2021, recalling that, in its ruling of March 2019, the Appellate Court of Kabul decided that the tenure of the leadership board of the NUAWE had ended, and that the authority of the previous chairperson, Mr Maroof Qaderi, and of members of the board of directors had ceased. The preparatory commission asserted that all parties to the internal conflict within the union – including the signatory of this complaint Mr Qaderi – signed an agreement for the establishment of an organizing committee composed of 26 members to facilitate the organization of the election of the new chairperson and board of directors by 19 January 2021. However, the congress was postponed. According to the preparatory commission, work is still underway to hold the congress of the NUAWE in accordance with the ruling of the Appellate Court of Kabul, and to end the long-standing crisis within the organization. Finally, the preparatory commission stated that until the congress could take place, the union was under its authority. The Committee notes that the preparatory commission has not since provided any new information on the holding of the congress of the NUAWE. The Committee is further aware through publicly available information that the signatory of the complaint, Mr Qaderi, and other representatives of the NUAWE have fled the country and are in exile.
4. 53. In the light of the above and mindful of the complexity of the national situation, the Committee calls upon all responsible authorities to provide information on the steps taken to address its previous conclusions the general nature of which it recalls below:
5. 54. The Committee firmly urges the Government to ensure that the matters first giving rise to this complaint, in particular as regards the confiscation of the union’s properties, are addressed without delay. In this regard, it expects a rapid decision of the Courts concerning the legal claim of the NUAWE and requests the Government to provide detail information on the status of the court proceedings and indicate any steps taken to comply with the final decision once it is made.
6. 55. The Committee further recalls that the International Trade Union Confederation (ITUC) which associated itself with the complaint in April 2018, denounced: (i) attempts at violent takeover and occupation of the NUAWE offices by the police and the armed forces; (ii) the freezing of the union’s bank accounts without judicial authorization; (iii) the failure to renew the union’s licence; and (iv) the failure to engage with the union and the hindering of freedom of expression and press. The Committee notes with concern the allegations of the ITUC contained in its communication dated 17 May 2022, that, since the new authorities took power in August 2021, trade union leaders are under direct threat and therefore forced into exile. Some NUAWE leaders, including Mr Qaderi, were relocated abroad, as others led the team in the country. The Committee notes the indication that despite an official request from the union, the authorities refused to re-open the union’s office and to renew its registration. It notes with grave concern the allegation that the authorities have seized the trade union properties in the provinces, confiscating materials and documents, and expelling its staff. In this regard, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. It also recalls that 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. Lastly, the Committee recalls that the right of workers’ and employers’ organizations to express opinions through the press or otherwise is an essential aspect of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 84, 288 and 239]. The Committee once again requests the Government to carry out an investigation into the allegations contained in the ITUC communication with respect to the attempt by the police and the armed forces to take over and occupy the NUAWE offices so as to determine the facts and identify those responsible to ensure that any such acts do not recur. It also urges the Government to provide detailed observations on the other allegations of the ITUC, in particular those contained in its latest communication of May 2022 on threats against unionists forcing their exile, the refusal to renew the union’s registration and the confiscation of the union’s properties and documents, including in the provinces.
7. 56. The Committee also recalls that its previous conclusions also concerned the text of the 2016 decree which, in addition to ordering the seizure of the complainant’s premises and their transfer under state ownership, gave mandate to 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. In this regard, the Committee emphasized that workers’ organizations have the right to freely organize their administration and activities without interference from the authorities. It further recalled that measures of suspension or dissolution by the administrative authority constitute serious infringements of the principles of freedom of association [see Compilation, para. 986]. The Committee urges 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.
8. 57. In light of the current circumstances in the country, the Committee requests the Government to indicate the measures taken to ensure that all workers’ and employers’ organizations may carry out their legitimate trade union activities in a climate that is free from violence, pressure and threats of any kind.
9. 58. In further consideration of the current circumstances in the country, the Committee recalls that the technical assistance of the Office is available in order to pursue its recommendations.

The Committee’s recommendations

1. 59. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly urges the Government to ensure that the matters first giving rise to this complaint, in particular as regards the confiscation of the complainant’s properties, are addressed without delay. It expects a rapid decision of the Courts concerning the legal claim of the National Union of Afghanistan Workers and Employees (NUAWE) in this regard and requests the Government to provide detailed information on the status of the court proceedings and indicate any steps taken to comply with the final decision once it is made.
   • (b) The Committee urges the Government to carry out an investigation into the allegations contained in the International Trade Union Confederation (ITUC) communication of April 2018 with respect to the attempts by the police and the armed forces to take over and occupy the NUAWE offices so as to determine the facts and identify those responsible to ensure that any such acts do not recur. It also urges the Government to provide detailed observations on the allegations concerning the freezing of the union’s bank accounts without judicial authorization, the failure to renew the union’s licence rendering its operations illegal, as well as the serious allegations contained in the ITUC’s communication of May 2022 on threat against trade unionists forcing their exile and the confiscation, in March 2022, of the NUAWE’s properties and documents, including in the provinces.
   • (c) The Committee urges 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.
   • (d) In light of the current circumstances in the country, the Committee requests the Government to indicate the measures taken to ensure that all workers’ and employers’ organizations may carry out their legitimate trade union activities in a climate that is free from violence, pressure and threats of any kind.
   • (e) In further consideration of the current circumstances in the country, the Committee recalls that the technical assistance of the Office is available in order to pursue recommendations (a) to (d).
   • (f) The Committee draws the Governing Body’s attention to the serious and urgent nature of this case.