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
- 63. The Committee last examined this case (submitted in March 2017) at its October 2019 meeting, when it presented an interim report to the Governing Body [see 391st Report, paras 74–83, approved by the Governing Body at its 337th Session (October–November 2019)].
- 64. The Government sent observations in communications dated 13 October 2020 and 1 February 2021.
- 65. 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
A. Previous examination of the case- 66. At its October 2019 meeting, the Committee made the following recommendations [see 391st Report, para. 83]:
- (a) The Committee urges the Government to provide its observations on the complainant’s allegations without delay so that it may examine this question in full knowledge of the facts and, in particular, to indicate the exact reasons for the alleged transfer of the complainant’s property under state ownership. In the meantime, in view of the significant risk that such measures can have on trade union activities, the Committee requests the Government to suspend the application of the August 2016 decree ordering confiscation of the complainant’s property pending any judicial review and to ensure that any property already seized without a valid court order is returned to the complainant.
- (b) The Committee requests 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.
- (c) The Committee requests the Government to provide detailed observations on the allegations contained in the ITUC communication: intensified efforts of the Government to confiscate and take over the legitimately acquired properties of the NUAWE, including recent attempts at violent takeover and occupation of the NUAWE offices by the police and the armed forces, the freezing of the union’s bank accounts without a judicial authorization, failure to renew its license, as well as failure to engage with the union and the hindering of freedom of expression and press.
B. The Government’s reply
B. The Government’s reply- 67. In its communications dated 13 October 2020 and 1 February 2021, the Government indicated that the Appellate Court of Kabul decided that the tenure of the leadership board of the NUAWE had ended, that the authority of the previous chair and members of the Union had ceased and their activities under those titles would be in breach of the Court’s decision, and that new elections must take place. The Government states that with the agreement of all parties involved, an organizing committee composed of 26 members was established to facilitate the organization of the election by 19 January 2021. However, despite the efforts of the Committee, security and logistical challenges resulted in inability of many members to attend the meeting in Kabul. Therefore, the Congress was postponed. The Government adds that the organizing committee had access to a bank account to ensure the proper organization of the Congress. Once a legitimate leadership is elected, the ownership of the rest of the banking accounts of the union will be transferred to it. The claim of the union over certain properties is a legal issue. Based on the Constitution and the legislation of Afghanistan, the courts of the judicial branch have exclusive jurisdiction over such disputes. The Government indicates that the union has launched a legal claim in the courts in Kabul for these properties. The Government would defend itself before the courts and would respect their final decision.
C. The Committee’s conclusions
C. The Committee’s conclusions- 68. 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.
- 69. The Committee takes note of the information provided by the Government in its communications of October 2020 and February 2021 according to which, 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 adds that the bank accounts of the union will be transferred to the elected legitimate leadership of the NUAWE. The Government also indicates that the union launched a legal action before the courts in Kabul to claim certain properties. While it would defend itself before the courts, the Government will respect their final decision. 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.
- 70. The Committee observes from publicly available information that the Congress of the NUAWE has since taken place, electing its leadership.
- 71. In the light of the above, 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 indicate any steps taken to comply with the final decision.
- 72. The Committee recalls that the International Trade Union Confederation (ITUC) requested to be associated with the complaint of NUAWE in April 2018, denouncing: (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. In this regard, the Committee 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.
- 73. The Committee 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 of decisions of the Committee on Freedom of Association, sixth edition, 2018, 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.
The Committee’s recommendations
The Committee’s recommendations- 74. 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 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.
