Report in which the committee requests to be kept informed of development - Report No 396, October 2021

Case No 3386 (Kyrgyzstan) - Complaint date: 29-JUN-20 - Follow-up

Allegations: The complainants allege that if adopted, the draft Law on Trade Unions would violate freedom of association and collective bargaining rights. They further allege acts of interference and pressure on the FPK and its leadership

1. 453. The complaint is contained in a communication from the Mining and Metallurgy Workers’ Union of Kyrgyzstan (GMPK) dated 29 June 2020. In communications dated, respectively, 18 August and 9 December 2020, IndustriALL Global Union and the Trade Union of Food and Processing Industry Workers of the Kyrgyz Republic associated themselves with the complaint and provided additional information. In a communication dated 15 February 2021, the Federation of Trade Unions of Kyrgyzstan (FPK) associated itself with the complaint and further provided additional information in a communication dated 10 June 2021.
2. 454. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case twice. At its May–June 2021 meeting [see 395th 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, it could present a report on the substance of this case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any observations.
3. 455. Kyrgyzstan 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).

The complainants’ allegations

1. 456. In their communications dated 29 June, 18 August and 9 December 2020, and 15 February and 10 June 2021, the GMPK, IndustriALL Global Union, the Trade Union of Food and Processing Industry Workers of the Kyrgyz Republic and the FPK put forward the following two sets of allegations: (1) if adopted, the draft Law on Trade Unions pending in Parliament would violate freedom of association and collective bargaining rights; and (2) interference by the State authorities in the internal governance and matters of the FPK and its affiliates, as well as pressure on their leaders.

Draft Law on Trade Unions

1. 457. The complainants allege that the draft Law on Trade Unions in question was prepared by members of Parliament without any consultation and discussion with trade unions and employers’ organizations. The draft was submitted to Parliament on 27 May 2019, returned for a second reading on 30 April 2020, passed the second reading on 6 November 2020, adopted in the third reading on 31 March 2021 and sent to the President for signing. On 6 April 2021, a rally of workers was held in front of the building of the Government House, where the Office of the President is located. The delegation of protesters was received by representatives of the Office of the President who promised to bring all objective information to the attention of the President. The President did not sign the draft, returned it to Parliament with objections and instructed it to form a conciliation commission with representatives of the cabinet of Ministers, associations of employers and trade unions to prepare agreed upon draft legislation.
2. 458. The complainants consider that the draft contravenes the national Constitution and international labour standards, in particular Conventions Nos 87 and 98, and if adopted, would seriously undermine freedom of association in Kyrgyzstan and put an end to union democracy and independence. The complainants raise, in particular, the following issues.
3. 459. The complainants indicate that the draft Law grants the right to establish and join trade unions only to individuals who have reached 14 years of age and are engaged in labour (professional) activities, thus depriving students and pensioners of this right.
4. 460. The complainants further allege that section 7 of the draft Law regulates in detail internal rules, activities and functioning of workers’ organizations, the contents of trade union statutes and their structure. The complainants allege, in this respect, that draft provisions transcend the framework of formal requirements and significantly hinder the establishment and development of trade unions by providing for a rigid hierarchy wherein any trade union organization, starting with workplace unions and going all the way to sector-wide unions, should be affiliated to a higher union structure or association, and that all unions should be affiliated to the national trade union association. Moreover, when defining the national trade union association, the draft Law makes a direct reference to the FPK. The functioning of trade unions outside of the prescribed structure is not allowed. Thus, the draft Law establishes a single system of trade unions as the only one allowed. Affiliates are accountable to and controlled by the Federation in terms of their activities. The Federation has the right to approve statutes of its affiliates, which should be aligned with provisions of the FPK statutes. The statutes of primary trade unions affiliated to sectoral and territorial trade union associations shall not contradict the statutes of the corresponding associations. Trade union organizations of all levels are obliged, within six months of the draft Law coming into force, to reorganize themselves and to amend their statutes. The failure to comply with the legal requirements entails the dissolution of the union and transfer of their assets to the FPK (section 35).
5. 461. The complainants further point out that the draft Law prescribes the procedure for electing a chairperson of the Federation and establishes the duration of his or her mandate and contains a definitive list of grounds for early relief from office. For instance, the chairperson of the Federation can be relieved from the post if he or she acquires foreign citizenship. In addition, the draft Law legally establishes age restrictions for members of the Council of the Federation and its chairperson who shall be between 35 and 60 years of age. The draft Law also contains detailed definitive lists of tasks and functions of sectoral and territorial trade union associations and their regional branches.
6. 462. The complainants also point out that section 29 of the draft Law introduces a new obligation to publish in the media an annual report on trade unions’ financial and economic activities. They explain that currently, trade unions, like commercial and other non-commercial organizations must submit reports to the State tax authorities, Social Fund and statistical bodies.
7. 463. The complainants believe that the adoption of the draft Law may affect the participation of Kyrgyzstan in the EU GSP+ programme, which Kyrgyzstan has enjoyed since early 2016 and which gives the right to the producers to export about 6,000 commodity items to Europe at zero-tariff rates. The annual trade turnover between Kyrgyzstan and the European Union is about US$1 billion, of which about US$100 million is exports under the GSP+ programme. One of the conditions of the GSP+ programme is the fulfilment of obligations under 27 international conventions on human rights, good governance, labour and environmental standards.
8. 464. The complainants indicate that the Government of Kyrgyzstan provided its assessment of the draft Law on 4 July 2019. In the Government’s opinion, a number of draft provisions contradicts several pieces of legislation, which take precedence over the Law on Trade Unions. According to the complainants, some of the Government’s arguments referred to potential violations of freedom of association guaranteed by Convention No. 87. In this respect, the complainants indicate that, among others, the Government expressed its concern regarding the apparent legislated monopoly of the FPK; detailed regulation of issues relating to the internal governance of trade unions (i.e. their organization, membership, structures, and operation); and the requirement that the statutes of local and primary trade union organizations that are part of sectoral and territorial trade union associations should not contradict the statutes of respective associations and that statutes of member organizations of the FPK should not contradict the FPK statutes. Regarding the latter, the complainants indicate that in the Government’s opinion the registration procedure would become complicated for trade unions and the registering authority if the latter is required to verify not only the compliance with the legislation in force but also with the statutes of higher-level trade union organizations to which the organizations in question are affiliated. The complainants indicate that so far the Government’s position was not taken into account by Parliament.
9. 465. The complainants explain that the draft Law is being lobbied by the Committee on Social Affairs, Education, Science, Culture and Healthcare of Parliament, whose speaker is Ms Gulkan Moldobekova, the spouse of the former Chairperson of the FPK, Mr Mirbek Asanakunov. The complainants link this fact to the alleged interference in the FPK internal matters as follows.

Interference by the state authorities in trade union activities

1. 466. By way of background, the complainants explain that on 16 January 2017, by the decision of the FPK Council, Mr Asanakunov was confirmed to be an elected FPK Chairperson. In accordance with the FPK statutes, holding elected trade union positions for at least five years is a prerequisite for being elected. Later on, however, the FPK Council members became aware of the fact that, while running for the position of the Chairperson, Mr Asanakunov had provided forged documents to certify his five years of experience in elected trade union positions. Mr Asanakunov did not have the required length of service as an elected union officer; consequently he was not eligible to run for the FPK leadership position. Based on this information, in 2019, the Deputy Chairperson of the Central Committee of the Industrial, Utility and Entrepreneurship Workers’ Union, an FPK affiliate, initiated litigation seeking to cancel the decision of the FPK Council to confirm his election. On 9 January 2020, the Supreme Court confirmed that the FPK Council’s decision of 16 January 2017 was invalid. On this basis and due to his involvement in the lobbying of the unconstitutional draft Law on Trade Unions in order to expand his powers, on 5 February 2020, the FPK Council relieved Mr Asanakunov of his post. Ms Rysgul Babayeva was elected FPK acting Chairperson.
2. 467. The complainants indicate that the court dismissed Mr Asanakunov’s appeal of the Council’s decision. According to the complainants, Mr Asanakunov then referred the matter to law enforcement authorities, ranging from regional police departments to the Ministry of the Interior, the Office of the Prosecutor General, members of Parliament and the Chairperson of the Social Policy Committee. The complainants allege that the former FPK Chairperson published negative information regarding trade union activities and defamed members of the FPK Council by making fabricated and vile accusations against them. At the request of Mr Asanakunov, on 7 February 2020, pretrial proceedings were initiated into the alleged falsification of the Council decision of 5 February 2020. Mr Asanakunov has also alleged that US$100,000 and jewellery disappeared from his office. As part of the investigation into Mr Asanakunov’s allegations, following the decision of Sverdlovsky District Court of Bishkek, on 20 March 2020, a safe box – property of the FPK – was seized from the office of the FPK Chairperson. Searches of the FPK Council members’ residences were conducted and members of the FPK Council were subject to interrogations.
3. 468. The complainants further allege that on 3 June 2020, the FPK acting Chairperson, Ms Babayeva, while under medical treatment, was forcibly taken by law-enforcement officers to a police station where she was subjected to an interrogation that lasted several hours. The interrogation concerned the procedure of the FPK Council meeting on 5 February 2020 and the decision to remove Mr Asanakunov from his duties. During the interrogation, Ms Babayeva was subjected to psychological pressure and received threats that she could be detained for a longer time. On 9 June 2020, charges were brought against Mr Kanatbek Osmonov, the Chairperson of the Kyrgyz Trade Union of Forestry Workers, under the following provisions of the Criminal Code: section 219 – raiding; section 233 – abuse of power; and section 359 – forgery of documents. The following day, Sverdlovsk District Court in Bishkek placed him under home arrest for two months without the right to use telecommunications and the internet. Later, the term of his home arrest was extended by another two months. Mr Osmonov was, to all intents and purposes, dismissed from his post. According to the complainant, on 3 July 2020, the court decided to dismiss Mr Osmonov from his posts of the FPK Deputy Chairperson and Chairperson of the Trade Union of Forestry Workers. On 21 August 2020, Ms Babayeva was served a notice of charges informing her that she was suspected of committing the following crimes: abuse of power; forgery of documents; and raiding, punishable by up to five years of imprisonment. According to the complainants, in June, July and August 2020, similar notices of charges were served to the following members of the FPK Council: Mr Sultakeyev, Chairperson of the Trade Union of Construction and Industrial Building Materials Workers of Kyrgyzstan; Mr Agliulin, Chairperson of the Jelal-Abad Regional Council of Trade Unions; and Mr Toktogulov, Chairperson of the Central Committee of the Education and Research Workers’ Union of Kyrgyzstan. According to the complainants, Mr Sultakeyev was also removed from his post. In their later communications, the complainants informed that on 26 February 2021, the pretrial proceeding against Messrs Osmonov, Agliulin and Sultakeyev and Ms Babayeva were terminated because of the absence of criminal elements in their actions. All previously imposed measures against these persons were cancelled. Not agreeing with the investigator’s order, Mr Asanakunov applied to the Sverdlovsky District Court of Bishkek to cancel the order of the investigator and to resume the investigation. On 1 April 2021, the Court cancelled the order of the investigator. The trade union appealed to the Judicial Board of Bishkek City Court, which, by a decision of 26 April 2021, left the ruling of the district court unchanged. With this, according to the complainants, the criminal investigation could be resumed and the persecution of trade union leaders continue.
4. 469. The complainants further allege that as part of the examination of the draft Law on Trade Unions, an ad hoc Committee of Members of Parliament was set up under the supervision of a Member of Parliament, Mr T. Tillayev. The complainants allege that he exceeded his authority by ordering the State Service for Combatting Economic Crimes to look into the financial and economic activities of trade unions, including the legality of deducting and spending 1 per cent of trade union member dues deducted from workers’ salaries, as well as allocating trips for health cures. A senior investigator of the Investigations Department of the State Service for Combatting Economic Crimes decided to open an audit. On 18 June 2020, an investigating judge of the Bishkek Pervomaisky District allowed original accounting documents of the FPK and of its 26 sectoral and regional trade union associations for the period 2015–20 to be seized. The decisions taken by the investigator and the investigating judge were appealed, but the pressure and the demand to submit financial accounting documentation for auditing continue. As a result, FPK work is paralysed, as its bank accounts have been frozen, making it impossible to pay wages to its employees and carry out regular activities. According to the complainants, in total, since October 2019, the ad hoc Committee of parliamentarians mandated to examine the implementation of the Law on Trade Unions has initiated and renewed over 52 criminal cases related to the activities of trade unions in the country.
5. 470. The complainants further allege that in the autumn of 2020, the head of the investigation group of the Bishkek State Department of the Interior requested the court to suspend Ms Babayeva from her post of FPK acting Chairperson. On 12 November 2020, the Sverdlovsky District Court of Bishkek ruled in favour of suspension until the pretrial proceedings were completed and the case was heard in court. This court ruling cannot be appealed. On 21 November 2020, the ad hoc Committee decided that the Government and the General Prosecutor’s Office should suspend the elections of the FPK chairperson and chairpersons of all sectoral trade unions to allow it to complete its investigation of trade unions. The FPK was informed thereof by the Vice Prime Minister on 23 November 2020.
6. 471. The complainants indicate that at the end of December 2020, Mr Asanakunov, with the support of members of Parliament and some representatives of the Government, in pursuit of the goal of obtaining the powers and rights to dispose of assets, financial and main funds of the FPK, organized and held a meeting announced as a “Special XXIV Congress of the FPK”. The said “Special Congress” was held on the basis of the decision of the Organizing Committee for the Preparation for a Special XXIV Congress of the FPK dated 18 December 2020. The complainants consider that the decision of the Organizing Committee for the Preparation for a Special XXIV Congress, the Special XXIV Congress of the FPK held on 25 December 2020, as well as the decisions it adopted are invalid. The FPK appealed to the Pervomaisky District Court of Bishkek. On 18 March 2021, the Court ruled on interim measures. In particular, it forbade the defendants (Mr Asanakunov et al.) to own, use and dispose of the fixed assets and properties of the FPK; to participate and vote in meetings of the FPK Council, to organize and conduct extraordinary and regular FPK congresses; to sign documents and make any decisions regarding personnel issues and issues of financial and economic activities of the FPK, the Office of Health Resort and Tourist Organizations and health resort institutions of the FPK; to apply to any financial, credit and banking institutions representing themselves as leaders of the FPK in order to open bank accounts on behalf of the FPK and conduct any financial transactions on bank accounts belonging to the FPK; or to represent themselves as leaders of the FPK in dealings with the tax authorities, statistical authorities, the Social Fund and other Government agencies. The accounting department of the FPK is forbidden to issue any cash payments and material valuables to the defendants. Due to the fact that the ruling of the District Court is subject to immediate execution, an application was submitted to the Bailiff Service Unit. However, the defendants having access to the administrative building of the FPK, vehicles, other assets and documentation, disregarded the order. The bailiff filed an application to the Department of Internal Affairs of Pervomaisky district of Bishkek. On 26 April 2021, Bishkek City Court, having considered the private complaint of Mr Asanakunov et al. against the ruling of the Pervomaisky District Court of Bishkek dated 18 March 2021, refused to satisfy the complaint and left the ruling of the court of the first instance in force. Mr Asanakunov et al. filed a cassation appeal to the Supreme Court, the consideration of which was expected in June 2021.
7. 472. The complainants allege that Mr Asanakunov, with the support of his wife, a Member of Parliament, Ms Moldobekova, puts pressure on the regional trade union councils to paralyse their activities, and refer in this respect to the case of Jalal-Abad Regional Council of Trade Unions, where the Chairperson had been allegedly ousted and replaced by the deputy.

B. The Committee’s conclusions

1. 473. The Committee regrets the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has not provided the requested observations and information in time, even though it has been asked to do so several times, including through an urgent appeal made at its June 2021 meeting. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
2. 474. The Committee reminds the Government 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. 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].
3. 475. The Committee notes that the complainants in this case, the GMPK, IndustriALL Global Union, the Trade Union of Food and Processing Industry Workers of the Kyrgyz Republic and the FPK put forward the following two sets of allegations: (1) if adopted, the draft Law on Trade Unions pending in Parliament would violate freedom of association and collective bargaining rights; and (2) interference by the State authorities in the internal governance and matters of the FPK and its affiliates, as well as pressure on their leaders. The Committee notes that the complainants allege that the draft Law on Trade Unions was prepared by members of Parliament without any consultation and discussion with trade unions and employers’ organizations. It was submitted to Parliament on 27 May 2019, adopted in the third reading on 31 March 2021 and sent to the President for signing. The President formulated several objections and sent it back to Parliament with an instruction to form a conciliation commission with representatives of the Cabinet of Ministers, associations of employers and trade unions to prepare an agreed upon draft legislation. The Committee understands from publicly available information that since the last communication of the complainants, on 30 June 2021, the new draft was adopted by Parliament and sent to the President for signing. The President vetoed the draft once again.
4. 476. The Committee notes the complainants’ allegation that the draft Law was prepared without consultations with the social partners and in this respect recalls that on numerous occasions it has drawn the attention of governments to the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1540]. The Committee also recalls that tripartite consultation should take place before the Government submits a draft to the Legislative Assembly or establishes a labour, social or economic policy [see Compilation, para. 1532]. The Committee understands that the draft Law on Trade Unions emanates from members of Parliament and not from the Government. It recalls nevertheless that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, para. 46].
5. 477. The Committee observes that in its latest comments, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) noted with concern that in addition to regulating in detail the internal functioning of unions by imposing excessive mandatory requirements for trade union by-laws and elections, the draft Law on Trade Unions (first version) imposed a trade union monopoly. The Committee notes from these comments that in its report, the Government indicated that in its opinion, some of the draft provisions were not in conformity with the national legislation, the Constitution and international labour standards. The Committee welcomes the fact that for this reason among others the President vetoed the first version of the draft Law.
6. 478. From a publicly available version of the second version of the draft Law on Trade Unions which was also vetoed by the President on technical grounds, the Committee notes, in particular, that while the draft no longer imposes a trade union monopoly, it explicitly singles out the FPK as the only representative of workers in the social dialogue at national level, provides it with exclusive rights and regulates in detail its rights, organization and structure (Chapter 3, as well as sections 15(3) (1), 16(2) and 17(2)). These sections raise concerns similar to those set out in the original complaint in respect of the first draft. The Committee further considers that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities. It recalls that freedom of association implies the right of workers and employers to elect their representatives in full freedom and to organize their administration and activities without any interference by the public authorities [see Compilation, para. 666].
7. 479. Regarding the right of retired persons to join trade unions (section 1(2)), the Committee recalls that the right to decide whether or not a trade union should represent retired workers for the defence of their specific interests is a question pertaining to the internal autonomy of all trade unions [see Compilation, para. 413].
8. 480. Regarding the obligation for the statutory aims and objectives of lower-level trade unions (primary and sectoral) to correspond to the statutes of the higher-level union to which they are affiliated (section 7, paragraph 5 and section 8, paragraph 5), the Committee recalls that, as a rule, the autonomy of trade unions and higher-level organizations, including as regards their various relationships, should be respected by public authorities. Legal provisions impinging on this autonomy should therefore remain an exception and, where deemed necessary by reason of unusual circumstances, should be accompanied by all possible guarantees against undue interference [see Compilation, para. 583].
9. 481. The Committee further notes that section 25 imposes onerous responsibilities on trade unions (inter alia, an obligation to publish in the mass media an annual report on their financial and economic activities, an obligation to submit to the employer and to the Cabinet of Ministers information on the implementation of collective bargaining agreements, including on the measures aimed at improving health and well-being of workers, an obligation to ensure that its members respect the national legislation on the organization and conduct of strikes, peaceful meetings, marches, pickets and demonstrations; etc.). The Committee considers that such additional obligations imposed on trade unions may entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organizations or impede the lawful exercise thereof. The Committee recalls that control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions [see Compilation, para. 711]. In this respect, the Committee notes the complainants’ indication that in addition to the proposed obligation to publish a report in the mass media, trade unions must currently file their annual report with three different State authorities.
10. 482. Observing that the draft Law has once again been returned to the Parliament for reconsideration, the Committee requests the Government to take the necessary measures to ensure that any draft Law on Trade Unions being considered will be the subject of full and meaningful consultations with the social partners and bear in mind the conclusions above. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard should it so desire.
11. 483. The Committee notes the allegations of interference into internal governance of the FPK and its affiliates. The Committee observes that while some of the matters raised by the complainants are the results of internal conflicts within the FPK and/or its affiliates, others relate to the numerous and continuing investigations of trade unions by the State authorities. The Committee recalls that the Government has an obligation to adopt a completely neutral attitude in disputes within the trade union movement [see Compilation, para. 1612]. The Committee observes, however, that the allegations in this case would appear to indicate that the FPK internal conflict had been exploited by at least some State authorities, which has resulted in numerous investigations and psychological pressure exercised on trade union leaders, thereby paralysing the work of the FPK and some of its affiliates. The Committee urges the Government to conclude without further delay any pending investigations involving the FPK and its affiliates, to return all documents concerning their internal administration and to ensure that its bank accounts can be used to conduct their legitimate trade union activities. The Committee urges the Government to inform it of all developments in this regard. Further noting the alleged request of the ad hoc Parliamentarian Committee (mandated to examine the implementation of the Law on Trade Unions) to suspend the election to the position of the FPK chairperson as well as to the leadership positions of its affiliates until the completion of all investigations, the Committee requests the Government to provide its observations thereon without delay and recalls in this respect that freedom of association implies the right of workers and employers to elect their representatives in full freedom [see Compilation, para. 585] and that the public authorities should refrain from any interference which might restrict the exercise of the right of workers’ organizations to elect their own representatives freely, whether as regards the holding of trade union elections, eligibility conditions or the re-election or removal of representatives [see Compilation, para. 590].
12. 484. The Committee draws the legislative aspects of this case to the attention of the CEACR.

The Committee’s recommendations

1. 485. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following:
   • (a) The Committee regrets that the Government has not replied to the allegations in this case, even though it has been asked to do so on several occasions, including through an urgent appeal, and requests it to reply as soon as possible.
   • (b) The Committee requests the Government to take the necessary measures to ensure that any draft Law on Trade Unions being considered will be the subject of full and meaningful consultations with the social partners and bear in mind the conclusions above. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard should it so desire.
   • (c) The Committee urges the Government to conclude without further delay any pending investigation involving the FPK and its affiliates, to return all documents concerning their internal administration and to ensure that its bank accounts can be used to conduct their legitimate trade union activities. The Committee urges the Government to inform it of all developments in this regard.
   • (d) The Committee requests the Government to provide its observations without delay on the alleged request of the ad hoc Parliamentarian Committee (mandated to examine the implementation of the Law on Trade Unions) to suspend the election to the position of the FPK chairperson as well as to the leadership positions of its affiliates until the completion of all investigations.
   • (e) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.