Rapport intérimaire - Rapport No. 283, Juin 1992

Cas no 1600 (Tchécoslovaquie) - Date de la plainte: 26-SEPT.-91 - Clos

1. 375. The World Federation of Trade Unions (WFTU) submitted a complaint of violation of trade union rights against the Government of the Czech and Slovak Federal Republic in a communication dated 26 September 1991. The Trade Union Association of Bohemia, Moravia and Slovakia (OSCMS) and the Trade Union of Private Sector Employees associated themselves with this complaint in letters dated 27 September and 13 October 1991, respectively. The WFTU and the OSCMS furnished additional information in communications dated 16 and 29 January 1992.
2. 376. The Government provided certain information in communications dated 24 January and 30 April 1992.
3. 377. The Czech and Slovak Federal Republic 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 complainants' allegations

1. 378. In its communication of 26 September 1991, the World Federation of Trade Unions (WFTU) submits allegations concerning a decision taken by the federal Minister of the Interior on 21 August 1991 to expel it from the Czech and Slovak Federal Republic. It alleges that its right to appeal against this decision might not be respected. In letters dated 27 September and 13 October 1991 the Trade Union Association of Bohemia, Moravia, and Slovakia (OSCMS) and the Trade Union of Private Sector Employees also submit allegations concerning the decision of 21 August 1991.
2. 379. The WFTU explains that at the beginning of 1991 the federal Minister of the Interior had already decided to expel it from the Czech and Slovak Federal Republic. Subsequently, on 28 March 1991 the Minister cancelled the expulsion order in a ruling which was not subject to appeal.
3. 380. The WFTU states that later, on 21 August 1991, a new decision was taken to end the WFTU's activities and close its headquarters in the Czech and Slovak Federal Republic. The WFTU was notified of this decision on 4 September 1991.
4. 381. The WFTU also states that it submitted an appeal to the federal Minister of the Interior on 17 September, within the legal time-limit and in accordance with the country's administrative regulations, with the objective of obtaining a temporary stay of the measure ending its activities and closing its headquarters in the Czech and Slovak Federal Republic. The complainant states that it is in a legal quandary as a result of these various decisions, since it is faced with two entirely conflicting rulings (that of 28 March cancelling the first expulsion order, and the ruling of 21 August which again ordered the Federation's expulsion).
5. 382. According to the complainant, one of the reasons the Ministry's first expulsion order was overturned on 28 March 1991 was that the Minister did not respect the rights of the defence. The organisation points out that it had no previous information on the case and was in no position to present a defence in respect of the allegations brought against it - which the ruling on appeal moreover found to be unsubstantiated. The complainant alleges that the same violation of the rights of the defence occurred when the later decision was taken on 21 August. It expresses its concern that this extremely serious denial of justice may be upheld without appeal. It thus emphasises the urgency of its complaint.
6. 383. The complainant considers the ruling of 21 August 1991 to be a flagrant violation of several of the provisions of Convention No. 87. To begin with, the Minister justified his decision on the ground that it was impossible to have any control over the WFTU's activities. In the WFTU's opinion, such a point of view violates the principle under which governments must not interfere in the activities and internal affairs of trade unions, which must be able to carry out their activities in accordance with their own rules. Only in the case of a violation of the law or a criminal offence may the intervention of an independent judicial authority in the affairs of a trade union organisation be justified. According to the WFTU, the ruling is an administrative decision taken without any specific charges and in the absence of any supporting evidence.
7. 384. The WFTU also points out that no administrative or civil court is competent in this matter. The appeal must be made to the Minister who took the decision and who alone decides whether to overturn or confirm it. According to the WFTU, the special commission which examines appeals is not a court, but an advisory administrative body. This is clear from the wording of the decision taken on 28 March 1991. There is no real opportunity to lodge appeals before an impartial and independent authority, since the administrative authority acts as the sole judge of its own actions.
8. 385. The WFTU is of the opinion that this situation violates the Committee on Freedom of Association's principles under which national laws and regulations that do not permit a trade union organisation to lodge an appeal against an administrative authority with a judicial court are contrary to the principles of freedom of association. Specifically, the WFTU requests that the decision of 21 August be cancelled, or that the process calling for appeals to be made to the federal Minister of the Interior be suspended until the WFTU has the opportunity to appeal to a court.
9. 386. In its communication of 16 January 1992, the WFTU states that on 23 December 1991 the Minister of the Interior of the Czech and Slovak Federal Republic rejected the WFTU's appeal against the ruling of 21 August 1991. He revoked the WFTU's authorisation to have its headquarters and conduct its activities in the Czech and Slovak Federal Republic. The WFTU states that this decision is not subject to appeal. It points out that this ruling once again violates the principles of freedom of association, according to which any control by the administrative authorities over trade union activity is unacceptable and that, if there were to be any control, it would have to be exercised by an independent judicial authority.
10. 387. The WFTU also points out that the ruling of 23 December 1991 violates national law in that (1) no new elements were submitted since the first decision was reached, (2) no specific charges were made, with the exception of the vague term "other serious reasons" without specifying which reasons, (3) the WFTU was not permitted to make its case for the defence, and (4) this ruling was made after a previous decision was taken by the same authority on 28 March 1991, which had closed the case and was thus still in effect. That decision overturned the first decision to expel the WFTU from the territory of the Czech and Slovak Federal Republic since "the investigation did not provide satisfactory proof that the WFTU had carried out activities which, by law, would require that its authorisation to have its headquarters and conduct its activities in the Czech and Slovak Federal Republic be revoked by administrative means" and that "the WFTU's representatives did not have access to the basic documentation for the case before the decision was taken, and were not able to express their opinions about the file or to contribute to it, in violation of the laws concerning administrative regulations".
11. 388. The WFTU notes that the concept of "other serious reasons" invoked by the Minister's decision is not defined in any Czechoslovak laws. This is explicitly required by the provisions of article 22 of the International Covenant on Civil and Political Rights, ratified by Czechoslovakia on 23 December 1975, and by the provisions of clauses 1, 2 and 3 of article 27 of the Charter of Fundamental Rights and Freedoms adopted by the Federal Assembly on 9 January 1991, which entered into force on 8 February 1991. These provisions guarantee and set the scope of trade union rights and freedom of association. Clause 1 stipulates that "everyone shall have the right to associate freely with others for the protection of their economic and social interests"; clause 2 that "trade unions shall be established independently of the State ..."; and clause 3 that "the law may limit trade union activities and the activity and creation of similar organisations protecting economic and social rights in cases involving measures essential to the protection, in a democratic society, of state security or public order, or the rights and freedoms of others".
12. 389. The complainant also points out that the Minister took his decision and notified the WFTU of it just one week before 1 January 1992, when the Act of 5 November 1991 came into effect. This Act modified the Civil Code and instituted an administrative jurisdiction within the common law courts. The complainant states that it was astonished that this decision was taken in such an arbitrary manner, thus depriving the WFTU of the opportunity it would shortly have had to lodge an appeal with an independent court in order to have it examine the legality of the Minister of the Interior's ruling.
13. 390. The WFTU concludes that the Government should be especially careful to ensure observance of national and international law by its administrative bodies in accordance with Article 3, paragraph 2 and Article 4 of Convention No. 87. It should, moreover, consistently ensure that trade union rights may be exercised freely in the country.
14. 391. In a communication dated 29 January 1992, the Trade Union Association of Bohemia, Moravia and Slovakia (OSCMS) confirms this information and states that the decision taken on 23 December 1991 is illegal since the previous ruling of 28 March 1991 was still in effect. For this reason, the OSCMS points out that it will consider itself bound by the ruling of 28 March 1991 in its relations with the WFTU and with the federal authorities.

B. The Government's reply

1. 392. In its communication of 24 January 1992 the Government states that, following the rejection of the WFTU's appeal, the WFTU requested the State Prosecutor of the Republic to examine the legality of the administrative procedure. The Government points out that, since an investigation is under way, it is waiting for it to end before communicating its observations concerning the allegations in question.
2. 393. In its communication of 30 April 1992, the Government states that a discussion was held concerning the WFTU at its meeting of 9 April 1992. The Government points out that, according to information from the State Prosecutor, the WFTU lodged an appeal with the federal Supreme Court requesting it to examine the legality of the Minister of the Interior's decision. This judicial procedure is currently under way and has yet to be completed. The State Prosecutor's office considers that it would be inappropriate for it to express an opinion on this question while the case is being heard by the State's highest judicial authority. The Government concludes by pointing out that it does not want to present its final observations before the proceedings have been completed.

C. The Committee's conclusions

1. 394. First, the Committee regrets that, despite the time which has elapsed since the complaint was presented and the ILO's requests that the Government send its observations on these matters, the Government has only forwarded partial information indicating that an investigation is under way.
2. 395. The Committee notes that, according to the allegations, the federal Minister of the Interior decided at the beginning of 1991 to revoke the WFTU's authorisation to have its headquarters in Prague and to conduct its activities in the Czech and Slovak Federal Republic, and that this ruling was overturned on 28 March 1991 by a decision which was not subject to appeal.
3. 396. It further notes that, according to the complainants, a second decision to revoke the WFTU's authorisation to have its headquarters and conduct its activities in the country was taken by the same Minister on 21 August 1991 and that the WFTU's appeal against this second decision was rejected on 23 December 1991, also by a decision not subject to appeal.
4. 397. The Committee notes that the complainants specifically allege: (1) that the WFTU is in a legal quandary, since it is faced with two entirely conflicting decisions (the one dated 28 March 1991 overturning the first expulsion order and not subject to appeal, and the other of 21 August, again ordering the Federation's expulsion and confirmed by the final decision taken on 23 December 1991); (2) that the Minister did not respect the rights of the defence; (3) that national law was violated by the decision of 28 August 1991, as were the principles of international law guaranteeing the right to organise, and specifically the principles of freedom of association.
5. 398. The Committee can only note that the allegations brought to its attention relate to a serious measure taken against an organisation which is representative of part of the international trade union movement.
6. 399. To enable it to reach a decision in full knowledge of the facts surrounding this case, the Committee requests the Government urgently to send detailed information on the reasons justifying the decision to expel the WFTU from the Czech and Slovak Republic, as well as information on the proceedings initiated by the WFTU before the federal Supreme Court.

The Committee's recommendations

1. 400. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government limits its reply to a statement that an investigation is under way.
   • (b) To enable it to reach a decision in full knowledge of the facts surrounding this case, the Committee requests the Government urgently to send it detailed information on the reasons justifying the decision to expel the WFTU from the Czech and Slovak Republic, as well as information on the proceedings initiated by the WFTU before the federal Supreme Court.