Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 386, Juin 2018

Cas no 3283 (Kazakhstan) - Date de la plainte: 17-MAI -17 - En suivi

Allegations: The complainants allege obstacles to registration created by the 2014 Law on Trade Unions, ensuing dissolution of trade unions, as well as intimidation and prosecution of trade union leaders

1. 424. The complaint is contained in communications dated 14 May, 13 October and 11 December 2017 from the International Trade Union Confederation (ITUC). IndustriALL Global Union associated itself with the complaint in a communication dated 24 May 2017.
2. 425. The Government submitted its observations in communications dated 28 July 2017, and 24 April and 22 May 2018 in light of recent significant developments.
3. 426. Kazakhstan has ratified 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 complainants’ allegations

1. 427. In their communications dated 14 and 24 May, 13 October and 11 December 2017, the ITUC and IndustriALL Global Union allege obstacles to trade union registration and dissolution of trade unions, as well as intimidation and prosecution of trade union leaders. They further refer to the repressive measures undertaken by the Government on the Confederation of Independent Trade Union of Kazakhstan (KNPRK) and its member organizations.
2. 428. By way of background, the complainants explain that upon its entry into force, the 2014 Law on Trade Unions (LTU) required all existing trade unions to re-apply for registration within one year (section 33). The complainants recall that the Law came under repeated criticism by the Committee of Experts on the Application of Conventions and Recommendations (CEACR), which considered that the Law limited the free exercise of the right to establish and join organizations as well as the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure. In particular, the CEACR had requested the Government to amend sections 11(3), 12(3), 13(3) and 14(4) of the LTU which require, under the threat of deregistration pursuant to section 10(3), the mandatory affiliation of sector based territorial and local trade unions to a national trade union association within six months following their registration. The CEACR had also requested the Government to amend section 13(2) which requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital, with a view to lowering this threshold requirement.
3. 429. The complainants allege that the Confederation of Free Trade Unions of Kazakhstan (KSPRK) (the KNPRK predecessor) and its affiliates (five sectoral and 19 enterprise-level unions) faced complicated and inconsistent registration procedures, and unnecessary interference with the right to draw up their constitutions and rules, resulting in a failure to register within the given period. The complainants point out that although section 6(6) of the Law recognizes the right to cooperate with foreign trade unions and organizations in the field of workers’ rights, registration officials have repeatedly cited affiliation to international federations as a reason to refuse re-registration.
4. 430. The complainants refer to the following examples of denial of re-registration and provide copies of the relevant documents:
   • – On 24 February 2016, the local trade union of workers of the DZO KMG was allegedly denied registration because, among other reasons, its by-laws provided for the right to join international trade union organizations; registration officials claimed that a local trade union has the right to affiliate only to a higher-level sectoral trade union.
   • – The Trade Union of Workers in the Construction sector “Decent work”, initially registered on 10 September 2012, was not successful in re-registering. In July and August 2015, registration officials sent back the union by-laws for revision for the following reasons: the union could not include the words “decent work” in its name because another union had previously used it; its by-laws lacked a detailed description and illustration of trade union logos and contained a provision on the affiliation to international trade unions. The complainants point out that in 2012, the union by-laws containing the same provisions were registered.
   • – On 16 July 2015, the sectoral Trade Union of Workers in Mass Media, PR, Advertising and Publishing “Decent work” was denied re-registration. Previously registered on 27 October 2014, the union was denied re-registration for having included the term “decent work” in its name. Moreover, registration officials pointed out that the union may not refer to the affiliation to international federations in its by-laws. In addition, the union by-laws were deemed inadequate due to the lack of details regarding the description and illustration of the union symbols and the management of trade union funds.
   • – In May and June 2015, the Yuzhno-Kazakhstanskiy Region Justice Department refused to re-register the Independent Trade Union of Workers of the “Petro Kazakhstan” of the Petrochemical Industry “Decent Work”. The registration officials pointed out that the union was not permitted to indicate the company’s address as its own despite the fact that the office of the union was located at the company premises (pursuant to the collective agreement). The registration authority also considered that the union by-laws were not sufficiently detailed on the question of membership dues.
   • – The Confederation of Free Trade Unions of Yuzhno-Kazakhstanskiy Region had been registered and active since 20 December 2001. However, registration officials refused to re-register the Confederation because it missed the deadline for registration by four days. Twelve unions affiliated to the Confederation were forced to cease their activities.
   • – In June 2015, the Trade Union of Workers of the Oil Construction Company applied for re-registration but received a written refusal on 9 July 2015, just one day before the deadline for re-registration, which made it impossible for the union to rectify the issues raised by the authorities who found that the union by-laws were not in line with the Law for the following reasons: the union’s postal code was not specified; there were minor discrepancies between the Kazakh and Russian versions; a provision stated that the union was active in Kazakhstan without specifying the region. The union made changes to the by-laws and resubmitted documents on 11 July 2015. The changes were rejected because the re-registration period ended on 10 July 2015. This decision was challenged in court but upheld.
5. 431. The complainants indicate that despite these obstacles, some unions have been re-registered. However, their new registration was cancelled after the unions did not succeed in establishing the structures required by the Law. The complainants refer to the examples of the sectoral Trade Union of the Mining, Coal and Metallurgical Industries “Decent Work” (Karaganda) and the sectoral Trade Union of Social and Domestic Workers “Justice” (Astana), which were re-registered but were not successful in establishing unions in more than half of the regions of Kazakhstan. As a result, the specialized inter-district economic courts of the Karaganda Region and Astana cancelled the registration of these unions. During the hearing, members of the sectoral Trade Union of the Mining, Coal and Metallurgical Industries “Decent Work” proposed to re-register their organization as a local trade union, as opposed to a sectoral one. This proposal was declined. According to the complainants, the re-registration of the union was cancelled before the court handed its decision. Both unions petitioned the court to refer the matter to the Constitutional Council. This request was denied. Furthermore, as the courts did not clarify the legal status of either of the unions, the complainant indicates that it is not clear whether these unions are considered to be dissolved due to the cancelation of their registration or whether they will be able to re-apply for the re-registration.
6. 432. Against the background above, the complainants refer to the case of KSPRK which was not successful in complying with the one-year deadline in order to set up the structure required by the LTU. Overall, more than 30 of its member organizations were denied re-registration, including:
   • – Confederation of Free Trade Unions of the Yuzhno-Kazakhstanskiy Region;
   • – Independent Trade Union of Medical Workers of the Municipal Hospital for Infectious Diseases, Shymkent;
   • – Confederation of Free Trade Unions of the Karaganda Region;
   • – Independent Trade Union of Medical Workers of the Clinic of MKTU;
   • – Trade Union of Workers in the Construction Sector “Decent Work”;
   • – Independent Trade Union of Medical Workers in Emergency Medical Service;
   • – Saryagashskii District Trade Union Committee of Medical Workers;
   • – Trade Union Committee of Education, Culture and Sports Workers of Shymkent;
   • – Independent Trade Union of Medical Workers in Kentau;
   • – Independent Trade Union of Medical Workers of TsAKhTig;
   • – Independent Trade Union of Workers “Vodokanal”;
   • – Trade Union of Faculty Employees of the Medical Institute of Shymkent;
   • – Independent Trade Union of Medical Workers of the Diagnostic Center; and
   • – Trade union of Workers of the Kazakh-Turkish University named after A. Yasawi.
7. The KSPRK was forced to reapply for registration as a new organization – the KNPRK. Many unions formerly affiliated to the KSPRK took a similar decision. However, they all experienced difficulties in registering their new entities.
8. 433. The complainants allege that the KNPRK registration process was extremely burdensome and irregular and explain that on 8 June 2015, the KNPRK submitted an application for registration to the Ministry of Justice, which was returned on 22 June 2015. According to the registration authority, the KNPRK did not have affiliates in more than half of the regions, cities of republican importance and the capital of Kazakhstan. The complainants state that this decision is contrary to section 10(2) of the LTU, according to which, a national trade union centre must establish the required structures six months after its registration. The KNPRK made a second attempt to register but its application was declined by Ministerial Order No. 158 of 21 July 2015, which referred to the absence of property ownership as the reason for refusal. The complainants point out that it would have been impossible for the KNPRK to acquire property without being registered as a legal entity. The owner of the union offices submitted relevant documents to the Ministry of Justice, which finally registered the KNPRK on 15 February 2016.
9. 434. The complainants further refer to the following examples of unions which also faced difficulties with registration:
   • – Registration officials did not accept for the term “and other services” to be included in the title of the sectoral Trade Union of Workers in Health and Social Development as they considered that this was not sufficiently specific for a sector union. Certain provisions of the union by-laws were sent back for revision. After rectifying the areas of concern, on 6 November 2015, the union was registered. Its branches, however, faced serious obstacles and were systematically denied registration due to minor differences in wording in the Russian and Kazakh languages versions; failure to indicate the region in the postal address; and typographical errors in the by-laws. The complainants refer, in particular, to the example of the branch office of the Health Workers’ Union in Mangistauskiy Region, which was refused registration because it had underpaid the registration fee by 0.5 tenge (about €0,0015). In many cases, registration officers did not clarify the reasons for refusal to register. As a result of these difficulties, the sectoral Trade Union of Health and Social Development Workers was unable to confirm its status by the deadline of 6 May 2016. On 5 January 2017, the union was dissolved by a decision of the Yuzhno-Kazakhstanskiy Region Specialized Inter-District Economic Court.
   • – The Trade Union of Workers in Mass Media and Telecommunications was registered on 27 October 2014. After the adoption of the Law, the union did not succeed in its efforts to re-register and was therefore forced to create a new organization, namely, the Sectoral Trade Union of Workers in Mass Media and Telecommunications. The Karaganda Region Justice Department twice denied the registration of a branch office, stating that one of its by-laws provision contradicted section 43(1) of the Civil Code, but without specifying the exact problem and outlining possible options for rectifying it. In four regions (Almaty, Aktyubinsk, West Kazakhstan and Pavlodar), registration officials refused to receive the documents to register branch offices stating verbally that the documents contained errors, without explaining the essence of the errors. Having failed to establish the branches, due to often arbitrary refusals to register branch unions, the sectoral union attempted to bring its structures into compliance with the law by setting up enterprise-level unions which are not subject to registration procedures. The required number of enterprise-level unions was met and the relevant documents were submitted to the Ministry of Justice. However, on 11 January 2017, the Ministry of Justice argued that only three branch offices of the trade union were registered. Documentation about the establishment of enterprise-level unions was completely disregarded. The official stated that the union had missed the deadline for confirming its status.
   • – The sectoral Trade Union of Workers of the Fuel and Energy Complex had also faced difficulties registering as a new union. In October 2015, the Ministry of Justice denied registration citing incorrect wording in the by-laws, such as reference to the “union legal address” rather than “location”. On 26 November 2015, the union succeeded in registering but its branches subsequently faced difficulties: registration officials in Almaty stated that the activities of the branch office in the city were in contradiction with section 43 of the Civil Code without providing any details; when registering a branch office in the Zapadno-Kazakhstanskiy Region, registration officials did not approve of the Russian–Kazakh translations of the branch office’s name.
   • – The sectoral Trade Union of Social and Domestic Workers “Justice” was established in late 2014, registered on 2 March 2015 and re-registered on 6 November 2015. However, its branches had serious difficulties in obtaining registration. The reasons provided for refusal included minor discrepancies between Russian and Kazakh languages in the by-laws, grammatical errors and mistakes in the postal code. In the Akmolinskiy region, registration officials cited the incorrect use of the Kazakh letter “k” in the branch office’s name, instead of the letter “k”, as one of the reasons for the refusal to register the branch office. As a result, the union was unable to register the number of branches required by the Law. In late 2016, the Ministry of Justice filed an application with the courts, requesting the cancellation of the trade union’s re-registration. During the hearing, the chair of the trade union, Ms Olga Rubakhova, made it clear that five branches had been registered and that the union pursued registration of enterprise-level primary trade unions in Astana and Almaty. In addition, Ms Rubakhova requested the court to refer the Law to the Constitutional Council for review. The court decided in favour of the Ministry of Justice, confirmed the cancellation of the re-registration of the sectoral union and rejected the request to refer the Law to the Constitutional Council for review. The trade union appealed the decision on 3 February 2017. On 10 March 2017, the Astana Municipal Judicial Board for Civil Cases upheld the decision arguing that the union had committed to certain structures itself and that therefore there was no interference by public authorities. The complainants consider that this argument had clearly ignored the fact that the by-laws were drafted pursuant to the Law requirements. The complainants also point out that by the time the Appellate Court reviewed the decision, the union had set up the required number of branches. Nonetheless, this fact was considered to be irrelevant by the court. While the union’s registration was cancelled, no decision was taken to dissolve its structures.
10. 435. The complainants further allege that certain trade unionists and leaders were put under surveillance by the authorities and intimidated. They allege, in particular, that in 2016, officials of the National Security Committee (KNB) repeatedly came to the KNPRK office in Shymkent to convey the message that the KNPRK should not affiliate the Mangistauskiy Region trade unions of oil workers and that several union members were put under surveillance. The complainants explain in this respect that several trade unions active in the oil sector had expressed interest in joining the KNPRK. In November 2015, the Trade Union of Workers of the Oil Construction Company, which at that time had been denied re-registration and was facing obstacles in registering as a new legal entity, expressed its desire to join the sectoral Trade Union of Workers of the Fuel and Energy Complex, a KNPRK affiliate. On 1 March 2016, the Local Trade Union of Workers “Tupkaragan” joined the sectoral Trade Union of Workers of the Fuel and Energy Complex.
11. 436. The complainants further allege systematic and arbitrary interrogation of the KNPRK chairperson, Ms Larisa Kharkova. They explain that on 6 January 2017, a complaint was filed by a former member of a local trade union affiliated to the KNPRK accusing Ms Kharkova of illegally appropriating funds amounting to 3 million tenge in the period between March 2013 and December 2016. This complaint resulted in a search warrant for Ms Kharkova’s apartment and the seizure of all KNPRK accounts. Ms Kharkova made it clear that the funds were withdrawn in line with the decisions taken by the KNPRK Coordinating Council and were spent for trade union activities such as litigation and registration procedures. The Council confirmed that Ms Kharkova had acted in accordance with its decisions when she withdrew the funds.
12. 437. Ms Kharkova was interrogated on a daily basis without any explanation provided to her or her lawyers why it was necessary. The daily interrogations interfered with Ms Kharkova’s trade union activities and infringed on her freedom of movement. She was unable to leave Shymkent to resolve issues regarding trade union registration or to petition various authorities regarding the infringement of the KNPRK rights. Ms Kharkova’s son, who works in a public hospital, was advised to take unpaid leave because of the ongoing lawsuits in relation to the KNPRK.
13. 438. According to the complainants, on 11 January 2017, the KNB officers blackmailed Ms Kharkova into participating in a press conference organized by the KNB where she would have to condemn protests in the Mangistauskiy Region and express approval of the decision to dissolve the KNPRK. In exchange, she was promised that trade unions would no longer face difficulties with the registration and that the criminal case against her would be dropped. Despite making the agreed upon statement, the promises were not kept and the pressure on the union and specifically on Ms Kharkova persisted. The complainants allege that the agreement was made under duress.
14. 439. The complainants further inform that on 29 September 2017, the appellate instance of the Regional Court of Shymkent upheld the decision of the Yenbekshinskiy District Court in Shymkent ordering Ms Kharkova to perform 100 hours of community service and imposing restrictions on her freedom of movement for the next four years. Ms Kharkova is not permitted to change residence or workplace and may only leave the city she resides in with the permission of the public authorities. The courts have further ordered that she may not hold any leadership position in a non-governmental organization, including trade unions, for five years. Furthermore, her bank accounts and other assets will be blocked for as long as the court will deem necessary. The Regional Court noted that Ms Kharkova was guilty because as the chairperson of the KSPRK and subsequently the KNPRK, she abused her power by acting in her personal interest and for personal gain thereby causing pecuniary damage to the organizations. The complainants consider that the courts decisions were not based on any proof as there is no evidence that any credible member of the KSPRK or KNPRK has claimed or shown any pecuniary damage to the union. To the contrary, the evidence remains that for the accounts in question, proper authorization was sought and approval granted by the mandated governing structure of the respective union. Proper accounting has since been completed and accepted by the authorized union structures.
15. 440. The complainants allege that Ms Kharkova, her family and trade union colleagues continue to suffer from harassment and intimidation. On 14 September 2017, the car of Ms Kharkova’s son was set on fire. Firefighters extinguished the fire and police arrived on the following day to investigate the scene. On 12 September 2017, an unidentifiable object looking like an explosive device was discovered attached to the bottom of the KNPRK press secretary’s car. Police and firefighters examined the object but did not find any explosives. On 27 September 2017, an unknown driver created a dangerous situation on the road, which resulted in a car accident in Almaty involving the husband of the KNPRK press secretary. The complainants allege that there are serious concerns that these acts of violence have been perpetrated in retaliation for the trade union activities of Ms Kharkova and the KNPRK and are intended to intimidate trade union members and leaders.
16. 441. The complainants further allege that any person associated with the workers who protested against the cancellation of the KNPRK registration became a target of intimidation and harassment. For example, Ms Ayman Tokaeva, who delivered statements of Ms Olga Rubakhova, leader of the sectoral Trade Union of Social and Domestic Workers “Justice”, to the public authorities, was repeatedly approached by unknown individuals who blocked her way or insulted her. After Ms Tokaeva made a complaint to the police, the person who harassed her was identified as Y.E. In her statement to the police, Y.E. claimed that Ms Tokaeva had injured her during an incident. As a result, a criminal case was opened against Ms Tokaeva and is still pending. On 6 February 2017, Ms Tokaeva was interrogated once more. However, the interrogation was not limited to questions concerning the incident with Y.E. The investigator asked whether Ms Tokaeva knew Ms Rubakhova, was a member of a trade union, knew Ms Kharkova and was in contact with her. The complainants consider that this information had nothing to do with the criminal case against Ms Tokaeva.
17. 442. Furthermore, the complainants allege that on 5 January 2017, around 300 workers employed at the Oil Construction Company started a peaceful hunger strike to protest against the dissolution of the KNPRK. While the workers were willing to continue working during their hunger strike, the company stopped its operations, allegedly for safety reasons. On 18 January 2017, the company’s management requested Aktau municipal court No. 2 to declare the hunger strike illegal and to expel workers from the union premises.
18. 443. The complainants allege that the court decided on both the preliminary aspects and the merits of the case in an extremely hasty manner and delivered the judgment on 19 January 2017. It found that the hunger strike was illegal because it contravened internal company laws. Moreover, the court found that the workers did not have permission to hold a public event even though workers had notified municipal authorities in advance. Journalists were misled about the court proceedings in order to prevent public exposure. Upon their arrival at the courthouse, they were told that the proceedings were already completed. However, the workers were only brought in after all journalists had left.
19. 444. On 20 January 2017, the police began to detain protesters and to write protocols of administrative offences. The protesters were taken to the Aktau municipal special administrative court. The court considered all cases during the same night and fined all workers for violating the procedure for holding public events pursuant to section 488 of the Code of Administrative Offenses. Workers were fined around 45,380 tenge (about €137). In addition, on 23 January 2017, the Mangistauskiy district court decided that workers were liable to pay compensation to the company for the losses incurred by the hunger strike. Each protester was condemned to pay 124,000 tenge (about €375) in compensation. The average salary of a worker in Kazakhstan is around 136,777 tenge (about €409).
20. 445. On 20 January 2017, Mr Amin Eleusinov, the chairperson of the Trade Union of Workers of the Oil Construction Company, and Mr Nurbek Kushakbaev, the health and safety inspector of the same union, were detained in Aktau. Mr Eleusinov was charged with embezzlement of trade union funds (section 189(4) of the Penal Code) and Mr Kushakbaev was charged with incitement of workers to continue the hunger strike (section 402(2) of the Penal Code).
21. 446. The complainants allege the following irregularities in the judicial proceedings against the trade union leaders:
    • – While pursuant to section 188 of the Criminal Procedure Code of the Republic of Kazakhstan pre-trial investigation should be conducted at the location where the alleged crime was committed, the cases were referred from Aktau to Astana without any justification provided.
    • – The police did not inform the family of the accused nor their lawyers of the arrests.
    • – Journalists were not permitted to attend the trial.
    • – There is no trace of a formal investigation into the allegations against Mr Eleusinov.
    • – Mr Kushakbaev’s indictment included declassified material from the KNB Department in Mangistauskiy Region and the Office for Combating Organized Crime, which proves that the phones of the union and its leaders have been tapped since 9 October 2015.
    • – Mr Eleusinov was blackmailed into making a false confession which was drafted by prison staff in exchange for being released; the false confession was videotaped without the presence of his lawyer and then disseminated to trade unionists by phone.
22. 447. The complainants indicate that after consulting his lawyer, Mr Eleusinov retracted the false confession. In a statement, he explained that he accepted to sign the confession because he was promised that he would be allowed to go free and did not realize the consequences of writing a confession. He also described the conditions in which he was detained: the prisoners are not allowed to lie or sit on beds from 6 a.m. to 10 p.m. and are only allowed to sit on a stool without backrest; the cell is very damp; he has been quarantined for one month; and began having heart problems and problems with his leg joints. Mr Eleusinov continues to be detained.
23. 448. The complainants inform that on 7 April 2017, Mr Kushakbaev was found guilty of inciting trade union members to continue an illegal strike. Astana District Court No. 2 sentenced him to two and a half years of imprisonment and condemned him to pay 25 million tenge (more than €75,000) in compensation to Techno Trading Ltd. (hereinafter “the enterprise”). Furthermore, he was condemned to pay 800,000 tenge (more than €2,400) in criminal costs. The court also banned Mr Kushakbaev from engaging in “public activities” for two years following his sentence. The complainants consider that criminal sanctions should have never been imposed for leading peaceful and legitimate strike actions. They contend, however, that the allegations against Mr Kushakbaev did not reflect the truth as he was not in the country when the strike was carried out and was in no way involved in its organization. According to the complainants, the judgment relied mainly on inconsistent and thus highly questionable accounts of witnesses. Furthermore, the determination of the company losses was not based on the opinion of an independent expert but of an economist employed by the company with an obvious conflict of interest.
24. 449. On 18 October 2017, Mr Kushakbaev filed an appeal with the Supreme Court arguing that under no circumstance was it reasonably probable that Mr Kushakbaev could have called for a strike action or its continuation because at the time he is alleged to have had the discussions, the strike itself was over and the court had already declared the strike illegal. Mr Kushakbaev’s appeal also covers the issue of financial damages as the company did not establish any causation between Mr Kushakbaev, the strike and the damages or loss to the company. The complainants add that the haste by the lower courts to grant such unreasonably huge amounts of damages without proof of damage or loss and without any established causal link shows the Government’s intent to send intimidating messages to leaders of independent trade unions.
25. 450. The complainants indicate that following unsuccessful appeals in the case of the dissolution of KNPRK and the cancellation of the re-registration of the Social and Domestic Sector Workers’ Union “Justice” with the Supreme Court all legal processes for seeking redress have now been exhausted.
26. 451. In view of the above, the complainants call on the Committee to urge the Government to register the KNPRK and its member organizations; simplify the registration procedures and clarify the criteria for the registration of trade unions; refer the LTU to the Constitutional Council for review; bring the LTU, in particular its sections 10(3), 11(3), 12(3), 13(2), 13(3) and 14(4), in compliance with Convention No. 87, in consultation with the social partners; allow unions at all levels to freely decide on their membership in branches, sectoral, national and international federations; and drop the criminal charges against trade union leaders and members for organizing and participating in peaceful trade union activities.

B. The Government’s reply

1. 452. In its communication dated 28 July 2017, the Government indicates that the LTU adopted in June 2014 is aimed at strengthening the organizational foundations of trade union movement and enhancing its role in protecting workers’ rights and interests. The Government also points out that discrimination against citizens on the basis of their trade union membership is forbidden and that trade unions are established on the basis of equal rights for their members. All trade unions are granted equal opportunities under the law and may carry out their activities independently of state bodies and of employers and their associations.
2. 453. Two national trade union associations currently exist and carry out their activities in the country. Between them, they represent about 3 million workers, that is, half of all employed in the country. The Government adds that in the context of mutual cooperation, it has prepared a roadmap, as part of the implementation of Convention No. 87, to develop a blueprint for an amendment of several pieces of legislation and that a tripartite working group has been set up to that end. The working group met on 31 March and 28 April 2017 to review the comments of the ILO supervisory bodies and proposed further amendments as regards the procedure for setting up and registration of trade unions, as well as the conduct of strikes under the Labour Code. On May 2017, the Interdepartmental Commission on Legislative Activities approved the blueprint for the proposed amendments.
3. 454. With regards to the cases of Messrs Eleusinov and Kushakbaev, the Government points out in its communication of 28 July 2017, as well as in its subsequent communication of 24 April, that they were convicted of criminal offences relating to the embezzlement of trade union funds (8,2 million tenge) and acts leading to continued participation in a strike declared illegal by the courts. The Government indicates that the case of Mr Eleusinov was opened on 31 January 2015 following complaints brought forward by workers. According to the Government, he admitted his guilt and on 16 May 2017 was sentenced to two years of imprisonment. As for Mr Kushakbaev, on 7 April 2016, he was sentenced to two-and-a-half years of imprisonment for having instigated the continuation of strikes which the court had previously declared illegal. According to the Government, during the appeal, he recognized the wrongdoing.
4. 455. As regards Ms Kharkova, she was convicted of misappropriation of trade union membership fees (6 million tenge) and the deposit of 5 million tenge of that amount on her personal account. She was sentenced to the minimum penalty of four years of restriction of freedom and prohibition to occupy leadership positions in any public association for five years. The Government indicates that Ms Kharkova deposited the money on her bank account following the court’s decision of 4 January 2017 to cancel the registration of the KNPRK. According to the Government, Ms Kharkova publicized her case as political, whereas the case against her was opened after members of the KNPRK filed allegations of misappropriation of trade union dues.
5. 456. Regarding the dissolution of the KNPRK, the Government indicates that its registration was cancelled by the court because the union had failed to confirm its representation in nine regions within six months following registration. The Government points out that certain structures of the Federation of Trade Unions of the Republic of Kazakhstan and of the Confederation of Labour had also been liquidated for the same reason.
6. 457. By a communication dated 22 May 2018, the Government provides the following information regarding the three trade union leaders. On 4 May 2018, at the request of Mr Eleusinov, the court granted him an early conditional release. The decision came into force on 19 May 2018. On 22 May 2018, Mr Eleusinov was released. At the request of Mr Kushakbayev on 10 May 2018, the court issued a decision regarding his early conditional release. According to the Government, he will be released from prison on the first working day upon the entry into force of the court decision on 25 May 2018.
7. 458. Regarding the case of Ms Kharkova, further to the information provided in its earlier communications, the Government indicates that the court has fully proved her guilt and that according to the Prosecutor General’s Office, there is no reason for the review and subsequent cancellation of the sentence. The Government points out that the court demonstrated leniency because in part 1, article 205, of the Criminal Code (abuse of power) the upper limit of imprisonment is four years. Also, the court granted the petition of Ms Kharkova on the exemption from the community service (100 hours per year). The Government indicates that Ms Kharkova may apply for conditional release on or after 9 February 2019 and that as from 9 November 2018, she can petition for the replacement of her restriction of freedom sentence by the payment of a fine. To that end, it is necessary that Ms Kharkova fully compensate the amount of damages.
8. 459. As regards the issue of trade union registration, the Government indicates that the necessary measures have been elaborated together with the Ministry of Justice and that it is planned to open a hotline and appoint a contact person within the Ministry of Labour and Social Protection of Population. According to the Government, 467 trade unions operate in the country (166 among them are newly created unions), the registration process is transparent and no complaints from trade unions have been received. Organizations that were previously members of the KNPRK may establish a Republican level trade union or join an existing Republican level union. In this respect, the Government points out that some of the former KNPRK members (branch trade union of workers of institutions of science and education, trade union of workers of emergency medical care, trade union of workers of multifunctional hospital in Shymkent) became part of the Commonwealth of trade unions of Kazakhstan “Amanat”.
9. 460. The Government informs that following a request of the Conference Committee on the Application of Standards (CAS) it had hosted, from 14 to 17 May 2018, an ILO high-level tripartite mission. The mission had a series of meetings, including with the Deputy Prime Minister, Mr Dosayev, Ministers of Justice, National Economy, Labour and Social Protection of the Population, Deputy Minister of Foreign Affairs and the Head of the public interest service of the General Prosecutor’s Office. In addition, the mission met with the leaders of the national trade unions, branch trade unions, the leadership of the National Chamber of Entrepreneurs “Atameken”, the Confederation of Employers and the Union of Judges. The mission had a meeting with Ms Kharkova in Astana.
10. 461. The Government further informs that the Ministry of Labour and Social Protection of Population developed a draft roadmap for the implementation of the recommendations of the CAS and the CEACR on the application of Convention No. 87. The roadmap provides for a number of activities (seminars/discussions, legislative amendments, etc.), which involve both the Government and the ILO. The Government reaffirms its commitment to continue working on bringing the legislation into conformity with the requirements of Convention No. 87.

C. The Committee’s conclusions

1. 462. The Committee notes that the complainants in this case, the ITUC and IndustriALL Global Union, allege obstacles created by the 2014 Law on Trade Unions to trade union registration, ensuing dissolution of trade unions, as well as intimidation and prosecution of trade union leaders. The Committee notes, in particular that pursuant to section 33 of the Law, all existing trade unions were required to re-register within one year following its the entry into force. It further notes that under the Law, the registration procedure consists of two stages (section 10): (1) registration (within two months of the establishment [or 12 months in the case of re-registration]); and (2) confirmation of the membership and compliance with the law (within six months). The Committee notes that at the (re)registration stage, the compliance of the union by-laws with the Law on Non-commercial Organizations (2001), the Law on Public Associations (1996), the Civil Code (1999), the Law on State Registration of Legal Entities and Record Registration of Branches and Representatives (1995), and the Law on Trade Unions is verified by the relevant authority. The union in question is then either registered or is denied registration. As indicated above, within six months following (re)registration, the (re)registered trade union shall prove that it is in compliance with the requirements set by the Law on Trade Union regarding its structure and membership. The failure to do so would result, pursuant to section 10(3), in deregistration and liquidation of the union.
2. 463. In the present complaint, the complainants allege and provide supporting evidence (copies of orders denying registration) that some trade unions were denied re-registration (first stage) because their by-laws were found not to be in conformity with either one or with all of the following pieces of legislation: the Law on Non-commercial Organizations (2001), the Law on Public Associations (1996), the Civil Code (1999), the Law on State Registration of Legal Entities and Record Registration of Branches and Representatives (1995). The Committee notes, however, that pursuant to section 1 (paragraph 2) of the Law on Non-commercial Organizations, “special aspects of legal status, establishment, activity, reorganization and liquidation of […], trade unions shall be regulated by the special Laws”. It further notes that same by-laws had been previously found in compliance with the above laws and registered. The Committee regrets that the Government provides no observations in this regard despite the fact that this situation had been brought to its attention by the direct contacts mission, which visited the country in September 2016 pursuant to a request of the CAS at its 105th Session (June 2016). The Committee notes from the direct contacts mission’s report that:
   • 15. The DCM raised the issue of difficulties with the registration encountered by the KNPRK affiliates with the Ministry of Health and Social Development and the Ministry of Justice and was assured that the authorities would look into this matter and assist the unions, as relevant. The Deputy-Minister of Justice indicated, in particular, that while trade unions which did not re-register following the entry into force of the Law on Trade Unions should be subject to mandatory liquidation upon the appeal of a competent body (i.e. the MHSD) to the court, in practice, this had never occurred. She also pointed out that the major reason for the denial of re-registration were technical mistakes and that an administrative penalty may be imposed on an official for refusing to register or re-register an organization.
   • […]
   • 37. As regards the registration of some KNPRK member organizations, the DCM expressed its trust that the Ministry of Justice together with the MHSD would look into the matter with a view to providing the necessary assistance to the organizations concerned.
3. 464. The Committee further notes that trade unions that have not succeeded in re-registering had to establish anew and follow the two-step procedure. Trade unions that have succeeded in passing this stage had six months to complete the second stage. The Committee notes the requirements set by the Law on Trade Unions in this respect:
   • – sections 11(3), 12(3), 13(3) and 14(4) require the mandatory affiliation of sector-based, territorial and local trade unions to a national trade union association within six months following their registration; and
   • – section 13(2) requires a sector-based trade union to represent no less than half of the total workforce of the sector or related sectors, or organizations of the sector or related sectors, or to have structural subdivisions and member organizations on the territory of more than half of all regions, cities of national significance and the capital.
4. 465. The Committee notes that the above provisions have been reviewed by the CEACR which requested the Government to engage with the social partners in order to review the abovementioned sections so as to ensure the right of workers to freely decide whether they wish to associate with or become members of a higher-level trade union structure and to lower thresholds requirements for the establishment of higher-level organizations.
5. 466. The Committee notes with deep concern that ultimately, the failure to comply with the above requirements, either at the first or second stage of the (re)registration procedure by its members organizations, led to the revocation of the KNPRK registration despite the assurances given to the direct contacts mission by the Ministry of Justice and the Ministry of Labour and Social Development that they would look into this matter and assist the unions, as relevant.
6. 467. The Committee notes the information provided to it by the Government, as well as the information provided by the Government to the CEACR as noted in its most recent comments published in 2018. It notes, in particular, the Government’s expressed intention to amend the Law on Trade Unions so as to: (i) lower the minimum membership requirement from ten to three people in order to establish a trade union; and (ii) simplify the registration procedure (so as to combine the two stages). While welcoming this information, the CEACR noted that the proposed amendments did not address its concerns and once again recalled that the free exercise of the right to establish and join organizations implies the right of workers to freely decide whether they wish to associate or become members of a higher-level trade union structure and that the thresholds requirements to establish higher-level organizations (currently set at over half of the workforce) should not be excessively high. The Committee welcomes the Government’s renewed expressed intention to bring its legislation into conformity with Convention No. 87 and expects that the Law on Trade Unions would be amended without further delay. It requests the Government to keep it informed of all progress made in this respect.
7. 468. The Committee notes the allegations in relation to the KNPRK chairperson. The complainants allege that the courts found Ms Kharkova guilty of abusing her power as the chairperson of the KSPRK, and subsequently the KNPRK, by acting in her personal interest and for personal gain and thereby causing pecuniary damage to the organization. According to the complainants, on 29 September 2017, the appellate instance of the Regional Court of Shymkent upheld the decision of the Yenbekshinskiy District Court in Shymkent ordering Ms Kharkova to perform 100 hours of community service and imposing restrictions on her freedom of movement for the next four years. Ms Kharkova is not permitted to change residence or workplace and may only leave the city she resides in with the permission of the public authorities. The courts have further ordered that she may not hold any leadership position in a non-governmental organization, including trade unions, for five years. Her bank accounts and other assets will be blocked for as long as the court will deem necessary. The complainants consider that the courts decisions were not based on any proof as there is no evidence that any credible member of the KSPRK or KNPRK has claimed or shown any pecuniary damage to the union. To the contrary, the evidence remains that for the accounts in question, proper authorization was sought and approval granted by the mandated governing structure of the respective union. Proper accounting has since been completed and accepted by the authorized union structures. The Committee expresses its deep concern over the situation where not only the KNPRK was liquidated but its chairperson was found guilty of misappropriation of its funds in a process alleged to be devoid of any evidence. The Committee takes note of the visit of a tripartite high-level mission to Kazakhstan. The Committee notes that the mission met with Ms Kharkova. The Committee notes the Government’s indication that the decision in her case is final, but that the court had granted Ms Kharkova’s petition to exempt her from the community service (100 hours per year). The Government further indicates that Ms Kharkova may apply for conditional release on or after 9 February 2019 and that as from 9 November 2018, she can petition for the replacement of her restriction of freedom sentence by the payment of a fine. To that end, it is necessary that Ms Kharkova fully compensate the amount of damages (6 million tenge). The Committee requests the Government to keep it informed of any developments in this regard and to indicate, should Ms Kharkova compensate the said amount, how and to which entity the said funds will be devolved.
8. 469. The Committee further notes with concern that two trade union leaders, Mr Eleusinov, chairperson of the Trade Union of Workers of the Oil Construction Company, and Mr Kushakbaev, health and safety inspector of the same union, have been convicted and sentenced in application of section 189 (appropriation or embezzlement) and 402 (incitement to continue a strike declared illegal by the court) of the Penal Code, respectively. The Committee notes the information provided by the Government in relation to the case of Mr Eleusinov who was found guilty of misappropriation of trade union funds and sentenced to two years of imprisonment. The Committee notes, in particular, his early conditional release on 22 May 2018.
9. 470. The Committee notes that by its decision of 7 April 2017, a copy of which was transmitted by the complainants, Astana regional court sentenced Mr Kushakbaev to two and half years of imprisonment and condemned him to pay to the enterprise damages amounting to approximately 25 million tenge (€63,000) and a fine amounting to approximately €1,900. The Committee notes that the decision is based on the following information established by the court. From December 2016 up to 9 January 2017, Mr Kushakbaev, as an experienced trade unionist (health and safety inspector of the Trade Union of Workers of the Oil Construction Company), provided advice to the deputy chairperson of the Trade Union of the Techno Trading Ltd., who later on, together with other trade unionists, organized and conducted a strike at the enterprise. Specifically, two strikes were conducted by workers of the two production units. The strike that took place from 15 to 26 December 2016 was declared illegal by the court on 28 December 2016 and the strike that took place between 23 and 26 December 2016 was declared illegal by the court on 28 December 2016. As workers from both production units did not return to work on 28 December 2016, the enterprise imposed a lockout in one production unit as from 29 December and closed the other production units for renovation. However, following a request from the community elders, the enterprise revoked the lockout as from 5 January 2017. As not all workers returned to work, the production was not launched on that day, nor on the following day. According to one of its accountants, due to the strikes in questions, between 15 December 2016 and 6 January 2017, the enterprise suffered losses of about 91 million tenge. The enterprise considers that Mr Kushakbaev is responsible for 25 million tenge in damages for the period between 28 December 2016 and 6 January 2017. At the same time, it is accepted by the court that Mr Kushakbaev was away from the country between 25 December 2016 and 4 January 2017 and that the leaders of the trade approached Mr Kushakbaev for advice regarding the situation occurred after 28 December 2016 (declaration of the strike illegal, lockout and closing for renovation) only upon his return, on 4 January at about 5 p.m. It is alleged that Mr Kushakbaev suggested to the trade union leaders in question to call a hunger strike. The Committee notes from the court decision that the “incitement to continue an illegal strike” by Mr Kushakbaev took the form of advice provided to the trade union leaders of the enterprise who then conveyed the messages to the workers and took their own decisions as to future action. The Committee notes that the leaders of the Trade Union of the Techno Trading Ltd. who organized the strikes and, following the declaration of their illegality, transmitted messages to the striking workers inciting them to continue striking, were initially charged under section 402 of the Penal Code. However, as they have admitted their guilt, the case against them was dropped and they then appeared as witnesses testifying against Mr Kushakbaev who refused to plead guilty.
10. 471. The Committee notes that pursuant to section 402 of the Penal Code:
    • 1. Calls for continued participation in the industrial action, recognized by court as illegal, committed publicly or with the use of mass media or information and communication networks, as well as bribery of employees for this purpose -
      • shall be punished by the fine in the amount of up to one thousand monthly calculation indices or correctional works in the same amount, or restriction of liberty for the term of up to one years, or imprisonment for the same term, with deprivation of the right to occupy determined posts or to engage in a determined activity for the term of up to one year or without it.
    • 2. The same actions, inflicted substantial harm to the rights and legal interests of citizens or organizations or legally protected interests of society or the state or entailed the mass disorders, -
      • shall be punished by the fine in the amount of up to three thousand monthly calculation indices or correctional works in the same amount, or restriction of liberty for the term of up to three years, or imprisonment for the same term, with deprivation of the right to occupy determined posts or to engage in a determined activity for the term of up to three years or without it.
11. 472. Recalling that penal sanctions should not be imposed on any worker for participating in a peaceful strike [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 954], the Committee requests the Government to take the necessary measures to review section 402 of the Penal Code in order to bring it into conformity with principles of freedom of association. The Committee notes the Government’s indication that Mr Kushakbaev’s petition for an early release has been granted by the court and that the court decision will enter into force on 25 May 2018. He will then be released on 28 May 2018.
12. 473. Finally, in view of the issues raised in relation to a number of legal provisions already being reviewed within the framework of the regular supervisory procedure, the Committee draws the legislative aspects of this case to the attention of the CEACR.

The Committee’s recommendations

1. 474. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that sections 11(3), 12(3), 13(2) and (3), and 14(4) the Law on Trade Unions would be amended without further delay in consultations with the social partners so as to ensure the right of workers to freely decide whether they wish to associate with or become members of a higher-level trade union structure and to lower thresholds requirements to establish higher-level organizations. It requests the Government to keep it informed of all progress made in this respect.
   • (b) The Committee requests the Government to keep it informed of any developments regarding the case of Ms Kharkova and to indicate, should she decide to compensate 6 million tenge, how and to which entity these funds will be devolved.
   • (c) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.