Informe definitivo - Informe núm. 378, Junio 2016

Caso núm. 3145 (Federación de Rusia) - Fecha de presentación de la queja:: 27-MAY-15 - Cerrado

Allegations: The complainant alleges criminal prosecution, conviction and imprisonment of trade union activists Mr Leonid Tikhonov, chairperson of the Russian Trade Union of Dockers’ (RPD) primary trade union of workers of the “Vostochny Port” Company, and Ms Natalia Bondareva, chief accountant of the union, for the exercise of trade union activities

1. 719. The complaint is contained in a communication dated 27 May 2015 from the Confederation of Labour of Russia (KTR).
2. 720. The Government of the Russian Federation sent its observations in a communication dated 24 November 2015.
3. 721. The Russian Federation 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 complainant’s allegations

1. 722. In its communication dated 27 May 2015, the KTR explains that Mr Leonid Tikhonov was elected deputy chairperson of the Russian Trade Union of Dockers’ (RPD) primary trade union of workers of the “Vostochny Port” Company, in 1997 and elected chairperson in 2002. Ms Bondareva joined the primary trade union on 16 July 2008 and was its chief accountant.
2. 723. The KTR explains that when the company collective agreement for the 2009–11 period expired in November 2011, the employer refused to maintain the same conditions as in the previous collective agreement while the primary trade union wished to maintain them. The primary trade union scheduled a mass meeting for 4 December 2011, to coincide with the election to the State Duma. The KTR alleges that in order to prevent the mass meeting from taking place, the employer agreed to renew the collective agreement with the wording proposed by the workers, but dissatisfied, began to ask the primary trade union for financial and other documents and called for an audit of the primary trade union’s financial activities.
3. 724. The KTR indicates that according to section 377(4) of the Labour Code, in cases provided for by the collective agreement, the employer allocates financial resources to a primary trade union for mass cultural, sports and recreational activities. The company collective agreement for the 2009–11 period contained such a provision. Pursuant to paragraph 6.24 of the agreement, the company and trade unions active within it would take on the obligation to organize mass cultural, sports and recreational activities for workers of the company and their families. For that purpose, the employer would transfer, on a monthly basis, to the account of trade unions, funds amounting to 1 per cent of the payroll of union members. According to the complainant, in practice, this commitment was already respected by the employer for about eight years. During these years, there was a practice of submitting to the employer simple written reports with copies of documents confirming expenditures. Paperwork was done in a relatively simple manner. The funds for mass cultural activities were devoted in particular to the purchase of New Year gifts for workers and their children. However, in recent years, many workers preferred to receive cash instead of gifts. According to the KTR, the practice was known and recognized by the employer.
4. 725. The KTR explains that in 2011, the committee of the primary trade union organization decided to buy souvenirs and prizes for children of trade union members and to give to trade union members themselves an amount of 500 Russian ruble (RUB) as New Year gifts. However, some union shop committees subsequently purchased and gave their members gifts in kind.
5. 726. The KTR further explains that in 2012, a conference of workers, attended by two trade unions active at the company and other workers, decided to call on the employer to increase wages as there had been no increase for more than two years. On 2 June 2012, noting an increase in the port’s freight turnover and shareholders’ dividends, the primary trade union, with Mr Tikhonov’s active participation, held a protest meeting to demand wage increases, increases in bonuses and benefits for long service.
6. 727. The complainant alleges that on 19 June 2012, police officers entered the offices of the primary trade union and, without a search warrant, conducted a search and seized trade union documents. On 22 June 2012, a second search was carried out with a search warrant approved by an investigator and a judge. According to the KTR, during both searches, documents were seized with procedural violation as no inventory was made and entire folders were taken without being registered. On 22 June 2012, criminal proceedings were instituted against Mr Tikhonov and Ms Bondareva. Following an investigation, both trade unionists were formally accused of embezzlement of RUB10,000 in 2009 and RUB359,571 in 2011. The union has repeatedly challenged the actions of the police officials, including in connection with the violation of procedure for conducting searches, to no avail.
7. 728. An audit commission of the RPD audited, from 4 to 6 March 2013, the expenditure by the primary trade union of funds allocated by the company in 2009 and 2011 for cultural activities. The KTR explains that although it was not possible for the audit commission to proceed with a complete verification of the budget due to the fact that all relevant documents had been seized by the police, members of the primary trade union who were interviewed confirmed receipt of RUB500 per person. The money was paid out in the following manner: once the funds were received in the bank, Ms Bondareva and Mr Tikhonov transferred the money to the chairpersons of the shop floor committees and work group organizers (without putting it on record) so that the latter could either purchase gifts or give cash to the workers. The KTR alleges that in court and during the investigation, the chairpersons of the shop floor committees confirmed the receipt of those amounts, but the court did not accept their testimonies because they were trade union activists. The complainant explains that the chairpersons of shop floor committees distributed the money among trade union members but that not all of them produced receipts; some submitted blank cheques that were then filled in by Ms Bondareva herself. Subsequently Mr Tikhonov and Ms Bondareva approved a financial report on the basis of the sale receipts submitted.
8. 729. The KTR argues that the violation of the rules regarding the filing of accounting documentation thus consists of the fact that there were no statements on the transfer of funds to the chairpersons of the shop floor committees and directly to trade union members. It further points out that while for this type of offence provision is made for an administrative liability, the investigation and the court concluded to the misappropriation and embezzlement of funds.
9. 730. According to the complainant, during the investigation, the witnesses were heard with the direct participation of the employer: the security staff of the company took workers one by one to the local police department for questioning or invited them to the port security services offices. Workers were required to give evidence that they had not received New Year gifts from the union in December 2011, including in the form of cash. At the same time, they were warned that they could lose their jobs. While the majority of workers/trade union members did not give in to employer’s pressure and confirmed that they did receive a New Year gift in cash, some workers agreed to testify to the contrary. According to the KTR, later, 13 workers, who in the course of investigation had testified that they did not receive the money, refused to testify to that effect in court; however, when the prosecutor pointed out to those workers that they would be prosecuted for perjury they confirmed their initial testimony about the non-receipt of the money.
10. 731. The complainant further alleges that around 300 members of the primary trade union were questioned during the preliminary investigation, but their testimony, confirming the receipt of money was not included in the indictment. During the trial, the defence submitted a motion to summon those persons as witnesses directly in court, but the court refused to grant the petition. In the course of the judicial proceedings, 29 workers questioned as witnesses stated that they did not receive RUB500 from the primary trade union. According to the complainant, the court accepted the testimony of these workers as evidence proving the guilt of Mr Tikhonov and Ms Bondareva and did not take into account the fact that eight of those workers were not members of the primary trade union in December 2011 and thus, were not entitled to receive any gifts. The court excluded the testimony of witnesses confirming the receipt of gifts in cash stating that the witnesses: “are or were activists of the primary trade union, and for this reason, in the opinion of the court, by testifying in court and providing evidence that has been objectively refuted during the trial by testimony of [other] witnesses questioned … they do not wish to incur negative effects for the defendants.”
11. 732. The KTR further points out that the company, i.e. the employer, appeared as the victim in the criminal case and argues that pursuant to the legislation in force, from the moment the funds are transferred to the trade union account they become trade union property and the employer loses the ownership right over the funds. Since the RPD audit commission did not find any misuse of funds, it did not appeal to the police or the prosecutor’s office as an injured party.
12. 733. On 15 December 2014, the Nakhodka city court of Primorsky Krai found Mr Tikhonov and Ms Bondareva guilty of committing a crime under section 160(3) of the Criminal Code – embezzlement (stealing of other people’s property entrusted to the offender, committed by a person using his official position, and on a large scale). The court found them guilty of embezzling RUB10,000 in 2009 and RUB359,571 in 2011 (approximately €6,709 in total at the May 2015 exchange rate). Mr Tikhonov was sentenced to three years and six months in prison with the prohibition to engage in union activities for three years, while Ms Bondareva was sentenced to one year and two months of imprisonment.
13. 734. The complainant points out that section 160(3) of the Criminal Code provides for a number of alternative possible penalties that may be imposed on a person convicted of this offence:
    • – a fine ranging from RUB100,000 to RUB500,000 or the salary or other income for a period ranging from one to three years;
    • – prohibition to hold certain positions or engage in certain activities for a period of up to five years;
    • – forced labour for a period of up to five years, with or without restriction of freedom for a period of up to one-and-a-half years;
    • – imprisonment for up to six years, with or without a fine of up to RUB10,000 or the salary or other income for a period of up to one month, with or without restriction of freedom for up to one and a half years.
14. 735. The complainant indicates that the court did not motivate the choice of the most severe form of punishment, imprisonment, and did not consider the possibility of giving the trade unionists a less harsh punishment despite the absence of previous criminal convictions and lack of aggravating circumstances. It further points out that this case has caused a major public outcry and that acts of solidarity have taken place in Moscow, St Petersburg, Vladivostok, Yeisk and Wrangell village in the city of Nakhodka. The complainant concludes that in light of the facts above, it is clear that the two trade unionists were prosecuted and condemned for the exercise of lawful trade union activities.

B. The Government’s reply

1. 736. In its communication dated 24 November 2015, the Government points out that pursuant to section 5(1) of the Law on Trade Unions, trade unions are independent from the executive authorities, local governments, employers and their associations, political parties and other organizations and are not accountable to them or subject to their control. Furthermore, pursuant to paragraph 6.24 of the company’s collective agreement of 25 November 2008, the employer is to finance cultural, sports and leisure activities for workers and members of their families arranged by trade union organizations. This paragraph also stipulates that trade unions must provide a quarterly report to the employer on how this money is spent.
2. 737. The Government indicates that the Ministry of Labour requested and received information from the Ministry of Justice, the Investigative Committee, the Office of the Prosecutor-General and the Ministry of Internal Affairs on the matters raised in the complaint. In this respect, the Ministry of Justice points out that under section 8.1(2) of the Code of Criminal Procedure, judges hear and determine criminal cases in conditions that preclude external influence. Interference by the state authorities, local government authorities, other bodies, organizations, officials or individuals in the administration of justice by judges is forbidden and results in criminal liability with penalties prescribed by law. The Ministry also adds that under article 6 of the European Convention on Human Rights and article 14 of the International Covenant on Civil and Political Rights, everyone, in the determination of any criminal charge against them, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, based on the presumption of innocence and with the provision to them and their counsel of procedural means to advocate their position; it is impossible to exercise the right to a fair judicial hearing if the court has not heard and not considered on the merits all arguments advanced during the proceedings by the prosecution and the defence and has not granted them equal procedural rights.
3. 738. The Government points out that paragraphs 1 and 2 of article 46 of the national Constitution enshrine the right to a legal defence. Furthermore, a judicial decision can be reviewed on appeal; a procedure, other than judicial, for reviewing court decisions is impermissible as a matter of principle, since that would mean it would be possible to replace judicial decisions with the administrative decisions, which would be an indisputable departure from the vital safeguards of the independence, comprehensiveness and exclusivity of judicial authority. In addition, section 297 of the Code of Criminal Procedure states that a court’s verdict and sentence must be lawful, justified and fair. A verdict and sentence is considered lawful, justified and fair if it is decided in accordance with the requirements of the Code and based on the correct application of the criminal law.
4. 739. In relation to the facts exposed by the complainant, the Government argues that an inquiry into the allegation that the wages of dockworkers at the company had not increased during the 2010–12 period demonstrated that this allegation is unsubstantiated. In accordance with section 134 of the Labour Code, under the terms of the collective agreement, wages were indexed every quarter. Furthermore, with regard to the alleged disputes between the union and the employer regarding financial reporting, the Government indicated that these disputes have been subject to multiple claims filed by Mr Tikhonov with the Far East Transport Prosecutor’s Office and the Primorsky territory state labour inspectorate. On examination, no infringement of federal law or the rights of trade union members was found. Equally, no evidence was found to corroborate the allegations regarding the unlawful search of the primary trade union organization’s premises on 19 June 2012. The examination of premises, buildings and facilities was authorized by Nakhodka City Court and Ms Bondareva, present during the search, did not make any comments thereon.
5. 740. The Government indicates that a case against Mr Tikhonov was instituted on 22 June 2012, for an offence under section 160(3) of the Criminal Code following a claim by the management that the union leader had stolen money. In light of the evidence gathered, on 29 January 2013, Mr Tikhonov and Ms Bondareva were charged with offences under section 160(3) of the Criminal Code. The following day, criminal case No. 700428 was referred, under section 220 of the Code of Criminal Procedure, to the Nakhodka Transport Prosecutor and then to the court.
6. 741. With regard to the alleged refusal of the court to hear witnesses in favour of the defence, the Government points out that the court did examine and then dismissed the application for a number of witnesses to be heard or for their testimonies to be disclosed. However, after the dismissal, neither party objected to the closing of the judicial investigation.
7. 742. The Government further indicates that on 15 December 2014, Nakhodka City Court found Mr Tikhonov and Ms Bondareva guilty of offences under section 160(3) of the Criminal Code. After changes made to the sentences on appeal on 17 May 2015, Mr Tikhonov was sentenced to three years and four months of imprisonment in a correctional colony with an ordinary regime and prohibited him from holding trade union organizational and administrative posts for three years. Ms Bondareva was sentenced to one year of imprisonment in a correctional colony with an ordinary regime.
8. 743. According to the Government, there were no social demands, rallies, marches, pickets or strikes in connection with this case.

C. The Committee’s conclusions

1. 744. The Committee notes that the complainant in this case alleges criminal prosecution, conviction and imprisonment of trade union activists Mr Tikhonov, chairperson of the RPD primary trade union of workers of the “Vostochny Port” company and Ms Bondareva, chief accountant of the primary trade union, for the exercise of trade union activities. The following facts related by the KTR and supported by the documents transmitted in its communication dated 27 May 2015 are not disputed by the Government.
2. 745. Pursuant to paragraph 6.24 of the collective agreement for 2009–11, the company and trade unions active within it undertake an obligation to organize mass cultural, sports and recreational activities for the employees of the company and their families. For this purpose, the employer transfers, on a monthly basis, to the account of the trade unions, funds amounting to 1 per cent of the payroll of the trade unions members. Further, pursuant to this provision, the union has an obligation to report to the employer on how the money is spent. In the absence of the report or if the money is not used for the prescribed objective, the employer has the right to suspend money transfers.
3. 746. In October 2013, following an investigation, both trade unionists were formally accused of embezzlement of RUB10,000 in 2009 and RUB359,571 in 2011. From the text of the indictment and of the court decision, the Committee understands that RUB10,000 in 2009 were supposedly allocated for a day trip to waterfalls near Steklianuha village, and RUB359,571 in 2011 were allocated for New Year gifts (in cash or in kind) for trade union members. On 15 December 2014, both trade unionists were found guilty of misappropriation/embezzlement (section 160(3) of the Criminal Code) by the Nakhodka City Court and sentenced Mr Tikhonov to three years and six months (three years and four months on appeal) of imprisonment in a correctional colony with an ordinary regime and prohibited him from holding trade union organizational and administrative posts for three years and Ms Bondareva to one year and fourth months (one year on appeal) of imprisonment in a correctional colony with an ordinary regime.
4. 747. The Committee notes that the KTR claims, however, that the investigation that has led to the conviction of trade unionists was a result of the employer’s retaliation following union’s activities relating to the collective bargaining which occurred at the end of 2011 and the protest action in support of workers’ demands to increase wages on 2 June 2012.
5. 748. The complainant further alleges that the two searches of the union’s premises on 19 June 2012 were conducted in violation of the procedure in force. According to the KTR, the union has repeatedly challenged the action of the authorities. The Committee notes that the Government disputes this claim and indicates that the search was authorized by the Nakhodka City Court and that no complaints in this respect have been made.
6. 749. The Committee notes that in March 2013, an audit commission of the RPD audited the expenditure of the funds allocated by the company to the primary trade union in 2009–11 for cultural activities. The complainant provides a copy of its conclusions. The commission noted that it was not possible to proceed with a complete verification of the budget due to the fact that all relevant documents had been seized by the authorities without leaving copies. It therefore interviewed several members of the union who confirmed that in December 2011, chairpersons of the shop floor committees received money in cash to be distributed among trade union members. The complainant explains that the chairpersons of shop floor committees distributed the money among trade union members but that not all of them produced receipts; some submitted blank cheques that were then filled in by Ms Bondareva herself. Subsequently Mr Tikhonov and Ms Bondareva approved the financial report on the basis of the sale receipts submitted.
7. 750. The KTR argues that the violation of the rules regarding the filing of accounting documentation thus consists of the fact that there were no statements on the transfer of funds to the chairpersons of the shop floor committees and directly to trade union members; for this type of offence, the legislation in force foresees an administrative liability. Instead, the investigation and the court concluded to the misappropriation and embezzlement of funds.
8. 751. The KTR points out that the employer appeared as the victim in the criminal case and argues that pursuant to the legislation in force, from the moment the funds are transferred to the trade union account they become trade union property and the employer loses the ownership right over the funds. Since the RPD audit commission did not find any misuse of funds, it did not appeal to the police or the prosecutor’s office as an injured party. The Committee notes that the city court judge disagreed with this line of argument and concluded that by virtue of section 377 of the Labour Code and provision 6.24 of the collective agreement, the money entrusted to the union for mass activities remains the employer’s, who is equally responsible for the organization of mass activities. In these specific circumstances, the Committee considers that this particular aspect of the case does not incur violation of freedom of association principles.
9. 752. The Committee further notes from the text of the indictment, transcript of the court proceedings and the judgment itself that none of the witnesses nor the complainants themselves could attest to taking part in the trip or confirm that the trip took place in October 2009. It further notes that an absolute majority of witnesses heard by the court have either denied the receipt of New Year gifts in December 2011 or could not confirm their receipt with certainty. The court also questioned expert witnesses and employees of the companies where the gifts in kind have been allegedly purchased. They have corroborated the prosecution’s indictment.
10. 753. At the same time, the Committee notes with concern the following elements in this case. It notes the complainant’s allegation that under the employer’s threat of dismissal, witnesses were pressured to testify that they had not received New Year gifts in cash. In this respect, it notes from the transcript of court proceedings that a number of workers left the union between 2012 and 2014 and that some clearly stated in court that this was due to the investigation and “constant questionings”.
11. 754. The Committee further notes the complainant’s allegation that around 300 members of the primary trade union were questioned during the preliminary investigation and confirmed the receipt of money. The KTR argues that during the trial, the defence submitted a motion to summon those persons as witnesses directly in court, but the court refused to grant the petition. It further points out that in the course of the judicial proceedings, 29 workers stated that they did not receive RUB500 from the primary trade union. The Committee understands from the judgment that the court has indeed accepted the testimony of these workers as evidence proving the guilt of Mr Tikhonov and Ms Bondareva and did not take into account the fact that several of those workers have clearly indicated that they were not members of the RPD primary trade union in December 2011 and thus, were not entitled to receive any gifts. Furthermore, the court excluded the testimony of witnesses confirming the receipt of gifts in cash stating that the witnesses: “are or were activists of the primary trade union, and for this reason, in the opinion of the court, by testifying in court and providing evidence that has been objectively refuted during the trial by testimony of [other] witnesses questioned … they do not wish to incur negative effects for the defendants.”
12. 755. The Committee further notes that the complainant points out that while section 160(3) of the Criminal Code provides for a number of alternative possible penalties that may be imposed on a person convicted of this offence, it chose the most severe form of punishment, imprisonment, despite the absence of previous criminal convictions and lack of aggravating circumstances.
13. 756. In view of the above and despite the extensive information provided, the Committee is not in a position to conclude to the guilt or innocence of the two trade unionists. It considers, however, that taken together, the elements highlighted above may shade the perception of justice and draws the Government’s attention to the importance that should be attached to the principle that not only must justice be done, it must also be seen to be done. In the light of its foregoing conclusions, and in the absence of elements of proof which would allow the Committee to conclude that there was a violation of trade union rights, the Committee considers that this case does not call for further examination.

The Committee’s recommendation

1. 757. In the light of its foregoing conclusions and in the absence of elements of proof which would allow the Committee to conclude that there was a violation of trade union rights, the Committee invites the Governing Body to decide that this case does not call for further examination.