REPRESENTATION (article 24) - RUSSIAN FEDERATION - C108 - 1996

1. Seafarers' Union of Russia

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Report of the Committee set up to consider the representation made by the Seafarers' Union of Russia under article 24 of the ILO Constitution alleging non-observance by the Russian Federation of the Seafarers' Identity Documents Convention, 1958 (No. 108)

Report of the Committee set up to consider the representation made by the Seafarers' Union of Russia under article 24 of the ILO Constitution alleging non-observance by the Russian Federation of the Seafarers' Identity Documents Convention, 1958 (No. 108)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

A. Introduction
1. By a communication dated 16 March 1995, the Seafarers' Union of Russia made a representation under article 24 of the ILO Constitution alleging the non-observance by the Government of the Russian Federation of the Seafarers' Identity Documents Convention, 1958 (No. 108).
2. The Seafarers' Identity Documents Convention, 1958 (No. 108) was ratified by the USSR on 4 November 1969 and is in force for the Russian Federation.
3. The provisions of the Constitution of the International Labour Organization concerning representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
5. In accordance with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of the Russian Federation and brought the representation before the Officers of the Governing Body.
6. At its 263rd Session (June 1995) (Endnote 1) the Governing Body decided, on the recommendation of its Officers, that the representation was receivable, and set up a committee to examine it, composed of Mr. H. Schrama (Government, Netherlands, Chairperson), Miss C. Hak (Employer, Netherlands) and Mr. K. Tapiola (Worker, Finland).
7. In accordance with article 4, paragraph 1(c) of the Standing Orders, the Committee invited the Government to submit its observations on the representation by 31 August 1995. The Government made observations in a letter dated 22 June 1995. In addition, a note verbale of 21 August 1995 from the Permanent Mission of the Russian Federation transmitted a letter dated 15 August 1995 in which the Ministry of Transport requested that a representative of the Director-General undertake a direct contacts mission to Moscow. At its meeting during the 264th Session (November 1995) of the Governing Body, the Committee considered that the need and the timing of such a visit could be more usefully decided upon in due course after it made an initial and substantive examination of the ample documentation already provided.
8. By a letter of 19 January 1996, the Seafarers' Union of Russia provided further information consisting of copies of correspondence exchanged between the Union and the Government, as well as copies of inter-ministerial correspondence. This information was transmitted to the Government to enable it to make any observations.
9. The Committee met in June and November 1995, and in March 1996.
B. Examination of the representation
I. Allegations made by the complainant organization
10. The Seafarers' Union of Russia states that the new Regulations concerning seafarers' passports, approved by Government Decree No. 146 of 24 February 1994 (superseding Decree No. 997 of 31 December 1974), contravene the Seafarers' Identity Documents Convention, 1958 (No. 108).
11. The complainant organization further notes that under paragraph 1 of the Regulations, only Russian shipowners can apply for seafarers' passports, in violation of the right of the seafarer to apply in person for the identity document (Article 2, paragraph 1, of the Convention). It is also alleged that the former state-owned shipping companies, using their old relations with the seaport authorities responsible for issuing seafarers' passports, are obstructing private Russian shipowners and placement agencies from obtaining such documents. The Union further claims that this obstruction results in a high rate of unemployment and a low level of remuneration for Russian seafarers.
12. The complainant organization attached to the representation a letter from the Chairman of the Association of Working Collectives of Placing Companies and Shipping Companies of Novorossiisk. This letter states that since 1994, the Master of the Commercial Seaport of Novorossiisk has refused to issue passports to seafarers assigned to work on vessels by members of the Association of Working Collectives of Placing Companies and Shipping Companies of Novorossiisk, although all seafarers assigned by members of the Association had been subjected to the necessary verification and had permission to undertake international navigation. According to the letter, the Master of the port of Novorossiisk was protecting the interest of the Novoship Company, a former state-owned shipping company, by refusing to cooperate with other companies hiring seamen by denying them their seafarers' passports. The complainant organization considers that a seafarer's passport serves as an identity document and allows a seafarer to work in his trade. Thus, the refusal of the Master of the port of Novorossiisk to issue seafarers' passports to seamen hired by a company other than the Novoship Company violates these seamen's constitutional right to work.
13. The complainant organization also included in the representation a letter dated 1 February 1995 from the Chairman of the Black Sea and Azov Sea regional organization of the Seafarers' Union of Russia indicating that both seafarers and shipping companies continued to complain that the Master of the port of Novorossiisk was refusing to issue passports to seafarers, including those assigned to work on vessels.
14. According to the complainant organization, under paragraphs 5 and 7 of the Regulations, a seafarer's passport is issued for a term of up to five years, but the bearer may only keep it for the period of his engagement on board a Russian vessel.
15. The complainant organization considers that under the Convention a seafarer is a person who has all the necessary certificates and diplomas of maritime competence. It alleges, however, that the authorities, in particular the Sea Transport Department of the Ministry of Transport, principal drafter of the Regulations, defines a seafarer with reference to Article 1, paragraph 1, of the Convention as a person who is engaged in any capacity on board a Russian vessel in international navigation. In other words, only a person who has entered into an employment relationship with a Russian shipowner could be considered a seafarer.
16. The complainant organization states that contrary to the provision of Article 1, paragraph 2, of the Convention, the Government did not consult the Seafarers' Union of Russia while the Regulations concerning seafarers' passports were in the drafting stage. It further states that it has unsuccessfully appealed to the Government to bring the Regulations into conformity with the Convention.
17. The complainant organization states that pursuant to paragraphs 6 and 7 of the Regulations, the seafarer must hand in his citizen's passport upon issue of a seafarer's passport and, at the end of the engagement period, he must surrender his seafarer's passport to the competent state authority. When seafarers surrender their citizens' passports, serious difficulties and obstacles arise with regard to their abilities to exercise their legal capacity under civil law. Furthermore, in practice, the procedures of issuance and surrender of seafarers' passports prescribed by the Regulations entail payment of considerable fees by seafarers. The complainant organization considers that the Regulations for issuing seafarers' passports deny Russian seafarers the right to freely exit the country to obtain work in their trade.
18. In its letter of 19 January 1996, the complainant organization provided the text of the conclusions dated 27 September 1995 by the Department of State Administration and Legal Affairs of the President of the Russian Federation regarding the conformity of the Regulations on seafarers' passports and the Instructions on the application of these Regulations, with the Seafarers' Identity Documents Convention, 1958 (No. 108) and the Constitution of the Russian Federation.
19. In its conclusions, the Department of State Administration and Legal Affairs of the President of the Russian Federation states that the Regulations concerning seafarers' passports and the Instructions on the application of these Regulations deny a seafarer his right to apply independently for a seafarer's passport, since this document may be issued only to persons working on board vessels engaged in international navigation (paragraph 1 of the Regulations) and on the shipowner's application (paragraph 3 of the Instructions). The Department of State Administration and Legal Affairs concludes that neither the Regulations nor the Instructions contain any provision reflecting Article 1, paragraph 2, of the Convention, and that paragraph 3 of the Instructions contravenes Article 2, paragraph 1, of the Convention, as well as article 37 of the Constitution of the Russian Federation.
20. It also considers that paragraph 7 of the Regulations and paragraph 26 of the Instructions, which require a holder of a seafarer's passport to surrender this document at the place he received it upon completion of his term on a vessel, contravene Article 3 of the Convention.
21. The Department of State Administration and Legal Affairs also refers to paragraph 6 of the Regulations which requires a person who has received a seafarer's passport to surrender his Russian citizen's passport at the place where the seafarer's passport is issued. The Department is of the opinion that this provision infringes seafarers' rights as citizens of the Russian Federation and leads to considerable difficulties in the exercise of civil acts.
22. The Department of State Administration and Legal Affairs adds that the bodies competent to issue seafarers' passports may engage in "red tape" and, consequently, the value of Russian seafarers' labour decreases, leading to unemployment. Moreover, the current Regulations on the issue and return of seafarers' passports give rise to legalized extortion practices against seafarers.
23. The Department of State Administration and Legal Affairs concludes that the Regulations concerning seafarers' passports and the Instructions on the application of these Regulations contravene the Constitution of the Russian Federation and the Convention, and therefore, in accordance with article 115(3) of the Constitution of the Russian Federation, may be repealed by the President of the Russian Federation. Furthermore, in order to achieve an acceptable solution to the problems referred to above, it would be appropriate for the Government of the Russian Federation to hold consultations with the representatives of shipowners concerned and the Seafarers' Union of Russia, in conformity with Article 1, paragraph 2, and Article 4, paragraph 6, of the Convention.
II. The Government's observations
24. In its written observations presented in June 1995, the Government (Ministry of Transport) states that the Seafarers' Union of Russia broadly interprets the definition of the term "seafarer" contained in Article 1, paragraph 1, of the Convention. According to the Government, this broad interpretation will wrongly increase the number of persons eligible for seafarers' passports, and consequently, ordinary citizens will be holders of seafarers' passports enabling them to cross state borders even though they are not members of crews on Russian merchant ships engaged in foreign trade.
25. The Government states that the Regulations, approved by Decree No. 146 of 24 February 1994, do not, nor have they ever, posed any kind of problem to persons working on Russian merchant ships engaged in foreign trade or who are sent by Russian shipowners to work on foreign vessels. The Regulations apply to all shipowners registered on Russian territory, regardless of the form of ownership.
26. The Government adds that the investigation of the claims concerning the refusal by a captain in the port of Novorossiisk to provide seafarers' passports to certain individuals at the request of private shipping companies, revealed that those individuals were not members of a crew on a Russian merchant ship engaged in foreign trade and the order not to issue them seafarers' passports came not from the shipowners, but from a firm hiring specialists to work on foreign-owned vessels. Furthermore, no case has been brought to court.
27. As to Russian citizens who were previously crew members on a Russian vessel, wishing to leave the country to seek employment, individually or through placement agencies, on foreign-owned vessels, the legislation applicable is the law dated 20 May 1991, governing departure and entry into Russian territory with a citizen's passport for foreign travel issued by the authorities of the Ministry of Internal Affairs of the Russian Federation.
28. The Government states that the Regulations concerning seafarers' passports approved by Decree No. 146 of 24 February 1994, were issued to bring the legislation on this matter into conformity with the Constitution of the Russian Federation and to approve a new format for the seafarer's passport with the Russian emblem. The Ministry of Transport, the Committee on Fisheries, the Ministry of Foreign Affairs, the Ministry of Internal Affairs, the Federal Borders Service, the Federal Security Service, the Ministry of Justice and the Department of State Administration and Legal Affairs of the Office of the President of the Russian Federation, drafted and approved the Regulations.
29. In a letter dated 6 April 1994 (forwarded by the complainant organization with its communication of 16 March 1995), the Department of Marine Transport of the Ministry of Transport of the Russian Federation replied to an appeal dated 5 March 1994 from the Seafarers' Union of Russia to the President of the Russian Federation. In this letter, the Department of Marine Transport of the Ministry of Transport concluded that the complainant organization's reference to section 7, concerning the need to give prior notification to the Seafarers' Union of Russia before the adoption of the Regulations on seafarers' passports, of the Act of the USSR on trade unions, their rights and safeguards for their activities, dated 10 December 1990 (in force at the time the complainant organization made its representation), was groundless.
30. In a letter dated 21 December 1995, included as supplementary information forwarded by the complainant organization with its letter of 19 January 1996, the Ministry of Justice addresses the Seafarers' Union of Russia and indicates that having considered the conclusions dated 27 September 1995, of the Department of State Administration and Legal Affairs of the President of the Russian Federation, is of the opinion that the Regulations concerning seafarers' passports do not, on the whole, run counter to the legislation of the Russian Federation, but that paragraph 6 of these Regulations, under which a seafarer must hand in his citizen's passport upon issuance of a seafarer's passport, to a certain extent contradicts the legislation in force and the Constitution of the Russian Federation.
III. The Committee's conclusions
31. The Committee notes that the situation referred to in the representation relates essentially to the application of Articles 1; 2, paragraph 1; 3; 4, paragraph 6; and 6 of the Convention.
32. Article 1 of the Convention reads as follows:
Article 1
1. This Convention applies to every seafarer who is engaged in any capacity on board a vessel, other than a ship of war, registered in a territory for which the Convention is in force and ordinarily engaged in maritime navigation.
2. In the event of any doubt whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each country after consultation with the shipowners' and seafarers' organizations concerned.
33. Article 1 sets forth the scope of the Convention, stating in paragraph 1 that it applies to seafarers engaged in any capacity on board a vessel, and referring in paragraph 2 to the categories of persons to be regarded as seafarers under the Convention. This determination is to be made by the competent authority in each country after consultation with the shipowners' and seafarers' organizations concerned.
34. Article 1 was adopted by the Conference Committee --
on the understanding that the phrase "every seafarer who is engaged in any capacity on board a vessel" referred not only to crew members actually employed on board ship at any given time but also to all persons who might be regarded as genuine seafarers within the definition laid down by the competent authority in accordance with the provisions of paragraph 2 of this Article. (Endnote 2)
35. The status of "seafarer engaged in any capacity on board a vessel" is thus not an exclusive or limitary notion, but rather would correspond to the competent authority's definition of genuine seafarers. While the scope of the Convention extends to seafarers, the categories accorded this status can vary according to the decision of each competent authority. The Convention imposes the condition that the determination of status be made following consultation with the organizations concerned. The Committee also considers that the protection under the Convention extends not only to seafarers who have been issued an identity document and are working on board Russian vessels engaged in maritime navigation, but also to seafarers engaged on vessels registered in another territory for which the Convention is in force.
36. The Committee notes that the complainant organization has stated that it was not consulted in drafting the Regulations concerning seafarers' passports. The Committee concludes that the Government did not fulfil its obligation under Article 1, paragraph 2, of the Convention.
37. The Committee also draws the Government's attention to Article 4, paragraph 6, of the Convention, under which "the precise form and content of the seafarer's identity document shall be decided by the member issuing it, after consultation with the shipowners' and seafarers' organizations concerned". The Committee considers that the Government's failure to consult the shipowners' and seafarers' concerned prior to adopting these Regulations, violates Article 4, paragraph 6, of the Convention.
38. The Committee would in this context also draw the Government's attention to section 7 of the Act of the USSR on trade unions, their rights and safeguards for their activities, dated 10 December 1990, in force at the time the complainant organization made its representation, which explicitly provided that trade unions have the right to participate in drafting statutory instruments on labour and social and economic matters and "(r)egulatory instruments affecting the labour, social and economic rights and interests of workers shall be adopted ... with not less than one week's prior notice to the trade unions concerned." The current law on this matter, in force since 20 January 1996, is the Act of the Russian Federation on trade unions, their rights and safeguards for their activities, dated 12 January 1996. Section 11 of this new Act provides that federal state authorities examine draft laws affecting workers' labour and social rights, taking into account suggestions from the all-Russian trade unions and their affiliates. This section also provides that the local governments examine and adopt draft regulatory instruments concerning workers' labour and social rights, taking into consideration the opinion of the appropriate trade unions. Finally, this section grants trade unions the right to submit to the state authorities their proposals for the adoption of laws and regulatory instruments concerning labour and social matters.
39. Under Article 2, paragraph 1, of the Convention, "(e)ach Member for which this Convention is in force shall issue to each of its nationals who is a seafarer on application by him (italics added) a seafarer's identity document conforming with the provisions of Article 4 of this Convention ...".
40. Paragraph 1 of the Regulations concerning seafarers' passports provides that the seafarer's passport is issued to persons working on Russian vessels engaged in international navigation or assigned by the shipowner for work on foreign vessels. This paragraph further provides that the seafarer's passport is an official document certifying the identity of its holder both abroad and within the borders of the Russian Federation.
41. In accordance with paragraph 2 of the Regulations and paragraph 3 of the Instructions, a seafarer's passport is issued by the regional authorities of the Ministry of Transport of the Russian Federation. This includes the masters of ports and the management of river basin administrations in inland waterways transport, and also the Department of Marine Transport and the Department of Inland Waterways Transport of the Ministry of Transport of the Russian Federation and the Fisheries Commission of the Russian Federation, who exercises control over vessels engaged in international navigation.
42. The Committee observes that Article 2, paragraph 1, of the Convention requires the competent authority to issue a seafarer's identity document to a seafarer on application by him. It notes, however, that according to paragraphs 9 and 10 of the Instructions, seafarers' passports can only be applied for by a shipowner (paragraph 9) and in practice only by shipowners on a list approved by the authorities (paragraph 10). While the seafarer might prefer to request the identity document through a third party, such as a shipowner or a placement agency, he must have the right to obtain the document personally, as required under Article 2, paragraph 1, of the Convention. The Committee, therefore, concludes that the Regulations and Instructions concerning the application of seafarers' passports should be amended accordingly.
43. As to the matter referred to by the complainant organization, the Committee considers that the refusal of the Master of the Port of Novorossiisk to issue seafarers' passports to seamen who had been hired by the Association of Working Collectives of Placing Companies and Shipping Companies of Novorossiisk, contravenes Article 2, paragraph 1, of the Convention.
44. Article 3 of the Convention provides that: "(t)he seafarer's identity document shall remain in the seafarer's possession at all times".
45. According to paragraph 7 of the Regulations and paragraphs 14 and 26 of the Instructions on seafarers' passports, the Russian citizen's passport is surrendered in exchange for the seafarers' passport. On completion of the engagement on board a vessel, the seafarers' passport must be surrendered and the citizen's passport is returned. The seafarers' passport is then destroyed (paragraph 26, Instructions) by the authorities.
46. The Committee notes that the complainant organization states that the procedure for issuance and restitution to the seafarer of his identity document for each voyage entails payment of unreasonable and excessive fees. (The Department of State Administration and Legal Affairs of the President refers to "red tape".) Moreover, the complainant organization states that the national regulations impede the seafarer's right to freely leave the country to seek employment abroad. In this regard, the Committee considers that the essence of the Convention would be distorted if obtaining this document were subject to bureaucratic delay or payment of such fees. The Committee calls on the Government to ensure that neither the procedure nor the amount of fees creates obstacles to the issuance of documents or runs counter to the purpose of the Convention.
47. The Committee considers that the issuance to seafarers (Article 1) of an identity document to remain in their possession (Article 3) is distinct from the limited conditions under which the document may be used (Article 6).
48. The complainant organization further notes that the seafarer is required to surrender his Russian citizen's passport in exchange for his seafarers' passport. While ordinarily this would appear prima facie as a question of Russian constitutional law, it could however have a bearing on the application of the Convention. The Committee thus considers that the absence of a valid national passport could, inter alia, prevent a Russian seafarer from taking temporary shore leave in or transiting a third country (for which the Convention is not in force) to join his ship or for repatriation. The Committee further observes that the impossibility of taking temporary shore leave could result in long periods of on-board confinement for seafarers while the ship is in port. The Committee, therefore, concludes that section 7 of the Regulations and paragraphs 14 and 26 of the Instructions run counter to the purpose of the Convention in general, and to Articles 1 and 6 in particular.
49. The Committee concludes that the Government should review Decree No. 146 of 24 February 1994, the Regulations and the related Instructions concerning seafarers' passports, with a view to bringing these texts into conformity with the Convention, and to hold bona fide consultations with the shipowners' and seafarers' organizations concerned as required by the Convention.
IV. The Committee's recommendations
50. The Committee recommends the Governing Body:
(a) to adopt the present report, with particular regard to the following points:
-- the failure to consult with shipowners' and seafarers' organizations as to the categories of persons recognized as seafarers (paragraph 36) and concerning the form and content of the identify document (paragraph 37);
-- the obligation to allow seafarers to apply personally for their identity document (paragraph 42);
-- the refusal to issue identity documents to bona fide seafarers (paragraph 43);
-- bureaucratic delays and imposition of excessive and unreasonable fees in issuing seafarers' identity documents (paragraph 46);
-- the right of seafarers to keep the identify document in their possession at all times (paragraph 47);
-- the surrender of the citizen's passport and the resulting complications (paragraph 48);
-- inconsistencies and contradictions between the Regulations (Decree No. 146 of 24 February 1994) and related Instructions with regard to obligations under the Convention (paragraph 49);
(b) to request the Government of the Russian Federation to submit a report by September 1996 in accordance with article 22 of the Constitution, containing complete information on the measures taken to apply the Convention in law and in practice, so as to enable the Committee of Experts on the Application of Conventions and Recommendations to examine at its next session the application of the Convention by the Russian Federation;
(c) to declare closed the procedure initiated as a result of the representation in question.
Endnote 1
GB.263/5/1.
Endnote 2
International Labour Conference, 41st Session, Geneva, 1958, Record of Proceedings, Appendix IX, p. 246.