Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 2053 (Bosnia and Herzegovina) - Complaint date: 25-AUG-99 - Closed

Allegations: Refusal of the authorities to register a trade union

1. 219. The present complaint was presented in a communication dated 25 August 1999 from the Associated Workers' Trade Union of the Republic of Bosnia and Herzegovina (URS/FBiH).
2. 220. The Government submitted its reply in a communication dated 24 August 2000.
3. 221. The Republic of Bosnia and Herzegovina has ratified both 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 complainant's allegations

1. 222. In its communication of 25 August 1999, the complainant organization submits that it was created, its leadership elected, its by-laws and programme adopted, all in accordance with the applicable Statute (Act 6/95 on the Association of Citizens). Having completed all the required documentation and obtained all the authorizations, which took a long time, the URS/FBiH filed an application for registration with the Ministry of Justice on 2 July 1998, which replied on 4 July 1998 with a request to amend some technical aspects of the by?laws, and in particular to change the name of the union.
2. 223. The complainant did bring some of the required changes to its by-laws in due time, except the name. They were then informed by the authorities that if the URS/FBiH did not change their name their application would be rejected, which is in fact what happened sometime later.
3. 224. The complainant organization submits that the Ministry of Justice has had enough time to appreciate the difference between them and the existing trade union controlled by nationalistic parties and filed an appeal with the Supreme Court on this issue. The judgement had not been received at the time that the complaint was lodged.
4. 225. According to the URS/FBiH, the Ministry of Justice abuses its power and manipulates the law, through its interpretation of what organization has the right to be registered. The main and real reason for the rejection of the registration request is that the position of the existing trade unions, which are totally under the control of the Government and nationalistic parties, would be jeopardized by the creation of a new and democratic workers' organization.

B. The Government's reply

1. 226. In its communication of 24 August 2000, the Government indicates that the registration request of the Associated Workers' Trade Union was rejected on account of their failure to comply with the timeframe prescribed by law for entry into the Register of the Ministry of Justice. Attached to the Government's communication are a letter dated 5 November 1999 from the Ministry of Justice, and the judgement of the Supreme Court, dated 22 March 2000.
2. 227. The letter of the Ministry of Justice confirms that the registration request of URS/FBiH was rejected since section 27(8) of the Law on Civil Associations provides that such requests must be submitted within 15 days from the date on which a constituent assembly is held. In this case, the constituent assembly was held on 16 May 1998 and the registration request was submitted on 23 June 1998, i.e. outside the prescribed delays. The Ministry of Justice further argues that sections 3(2) and 3(12) of the same Act provide for the establishment of two different types of associations: those directly founded by individuals, and those founded by already existing associations. The name submitted in the present case could be misleading as it implied that it was a trade union of already registered workers' associations. For this reason, the complainant was invited to change its name, to make it clear that it was an association of individuals rather than a union of associations, which it failed to do within the 30 days prescribed by law. The request was therefore rejected.
3. 228. The complainant appealed to the Supreme Court, which confirmed the rejection decision. The Court specifically mentioned in its decision that it would not enter into a discussion as to whether or not the reasons for the decision of the Ministry of Justice were "correct and legitimate", but based itself strictly on the complainant's failure to file the request within the legally prescribed timeframe.

C. The Committee's conclusions

1. 229. The Committee notes that this case concerns the refusal by the Ministry of Justice to register a trade union, firstly because of a failure to comply with the timeframe prescribed by law, and secondly on account of the name chosen by its founding members, which the competent authorities considered misleading. The Committee also notes that the complainant appealed to the Supreme Court, which confirmed the rejection decision, based on the first motive only.
2. 230. While observing that, strictly speaking, the complainant might have slightly overstepped the legally prescribed timeframe for submitting its registration request, i.e. 23 days, the Committee cannot but note that said timeframe between a constituent assembly and the filing of the registration request is extremely short, as is the case for the allowed period for modifying a name deemed to be inappropriate or misleading. The Committee further notes that there do not seem to exist other substantive reasons why the organization could not be registered.
3. 231. The Committee recalls that while the founders of an organization are not freed from "the duty of observing formalities which may be prescribed by law … such requirements should not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 207]. The Committee also recalls that the "formalities prescribed by law for the establishment of a union should not be applied in such a way as to delay or prevent the establishment of occupational organizations [Digest, ibid., para. 249].
4. 232. The Committee emphasizes that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers' or employers' organizations must take in order to be able to function efficiently, and represent their members adequately.
5. 233. The Committee notes that an unreasonable period has now elapsed since the initial filing of the registration request, i.e. June 1998, and considers that such a registration rejection, on narrow and technical grounds, of an otherwise bona fide organization is not conducive to the establishment of sound industrial relations. The Committee therefore requests the Government to initiate discussions with the complainant as soon as possible with a view to finalizing rapidly the registration process of the complainant organization, and to keep it informed of developments in this respect. The Committee also requests the Government to bring the legislation into conformity with Convention No. 87. The Committee brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

• he Committee's recommendations
  234. 234 In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
       • (a) The Committee requests the Government to initiate discussions with the complainant as soon as possible with a view to finalizing rapidly the registration process of the complainant organization, and to keep it informed of developments in this respect.
       • (b) The Committee requests the Government to bring the legislation concerning the registration of trade unions into conformity with Convention No. 87.
       • (c) The Committee brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Z. ANNEX

• Allegations: Refusal of the authorities to register a trade union
  219. 219 The present complaint was presented in a communication dated 25 August 1999 from the Associated Workers' Trade Union of the Republic of Bosnia and Herzegovina (URS/FBiH).
  220. 220 The Government submitted its reply in a communication dated 24 August 2000.
  221. 221 The Republic of Bosnia and Herzegovina has ratified both 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).