Informe provisional - Informe núm. 403, Junio 2023

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. 54. The Committee last examined this case (submitted in March 2017) at its June 2022 meeting, when it presented an interim report to the Governing Body [see 399th Report, paras 43–59, approved by the Governing Body at its 345th Session (June 2022)]. 
2. 55. At its meeting in March 2023 [see 401st Report, para. 6], the Committee made an urgent appeal to the de facto authorities 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 de facto authorities have not sent any information.
3. 56. 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. 57. At its June 2022 meeting, the Committee made the following recommendations [see 399th Report, para. 59]:
   • (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.

B. The Committee’s conclusions

1. 58. The Committee regrets that the de facto authorities have still not provided a response to its recommendations, even though they have been requested several times to do so, including through an urgent appeal.
2. 59. Under these circumstances and in accordance with the applicable procedural rule [see 127th Report, approved by the Governing Body at its 184th Session (1971), para. 17], the Committee is obliged to present a new report on the substance of the case without being able to take account of the information that it hoped to receive.
3. 60. The Committee reminds the de facto authorities 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 ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, 1952, para. 31]. The Committee urges the de facto authorities to be more cooperative in the future.
4. 61. The Committee recalls that this case concerns allegations of confiscation by the authorities 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.
5. 62. The Committee recalls that it previously noted with concern the absence of any final ruling by the Courts concerning the legal action presented by the union to claim certain properties. The Committee also expected the report on the holding of the congress of the union in accordance with the ruling of March 2019 of the Appellate Court of Kabul in relation to its leadership. In this context, the Committee also noted that a number of representatives of the NUAWE, including the signatory of the complaint, Mr Qaderi, have since fled the country and are in exile. The Committee expects the de facto authorities to commit to ensuring that the exiled NUAWE leadership, including Mr Qaderi, can return to the country to carry out trade union activities in an environment free of violence, pressure or threats.
6. 63. While it is mindful of the complexity of the national situation, the Committee recalls that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 62]. In this respect, the Committee emphasizes that female and male workers alike benefit from such development and negotiation. It is once again bound to call upon all responsible authorities to provide information on the steps taken to address its previous conclusions, the general nature of which it recalls below:
7. 64. The Committee firmly urges the de facto authorities 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 de facto authorities 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.
8. 65. 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, paras 84, 288 and 239]. The Committee requests the de facto authorities to provide detailed observations on the allegations of the ITUC 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.
9. 66. 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 de facto authorities 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 de facto authorities to amend the 2016 decree to ensure that this is not possible.
10. 67. In light of the current circumstances in the country, the Committee requests the de facto authorities to take all necessary measures 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.
11. 68. The Committee once again recalls that the technical assistance of the Office is available in order to pursue its recommendations.

C. The Committee’s recommendations

1. 69. 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 de facto authorities 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 de facto authorities 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 de facto authorities 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 International Trade Union Confederation (ITUC) communication of May 2022 on threats 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 de facto authorities 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 de facto authorities 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 de facto authorities to take all necessary measures 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) The Committee expects the de facto authorities to commit to ensuring that the exiled NUAWE leadership, including Mr Qaderi, can return to the country to carry out trade union activities in an environment free of violence, pressure or threats.
   • (f) The Committee recalls that the technical assistance of the Office is available in order to pursue recommendations (a) to (d).
   • (g) The Committee draws the Governing Body’s attention to the serious and urgent nature of this case.