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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Turkmenistan (RATIFICATION: 1997)

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, referring to the issues examined by the Committee below and questioning the independence of the trade union movement in the country. The Committee requests the Government to provide its comments thereon as well as on the 2018 observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations alleging grave violations of civil liberties and of the Convention in practice.

The Committee notes the Law on Industrialists and Entrepreneurs of 2019 and will examine its conformity with the Convention once its translation becomes available.

Article 3 of the Convention. Right of organizations to organize their administration, without interference by the public authorities. The Committee had previously noted that pursuant to section 27(3) of the Law on Public Associations, insofar as it applies to employers’ organizations, public associations must, upon a request from the Ministry of Justice, submit copies of decisions taken by their governing bodies and officers, as well as reports about their operations. A similar provision is contained in section 16(2) of the Law on Trade Unions. The Committee had requested the Government to amend these provisions as they give the authorities powers of control that go beyond those acceptable under the Convention. The Committee regrets that the Government’s reply, while extensive, is limited to general statements regarding the prohibition on the authorities to interfere in the activities of public associations and to indicating merely that such interference is permitted only in cases that are specifically prescribed by the respective laws. The Committee once again recalls that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association), such verification should be limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee therefore urges the Government to take all necessary steps to amend section 16(2) of the Law on Trade Unions and 27(3) of the Law on Public Associations, in so far as it applies to employers’ organizations, so as to ensure the application of the principles set forth above. The Committee requests the Government to provide information on all progress made in this respect.

Right to strike. In its previous comments, the Committee had noted that the provisions of the Labour Code concerning collective labour disputes did not refer to the right to strike; that according to the Government, collective labour disputes were resolved through mediation or in case of a failure, in courts; and that the parties could not refuse to participate in dispute resolution procedures. The Committee considered in this respect that while strike action was not an end in itself, it was an essential means available to workers and their organizations to protect their interests. The Committee further considered that insofar as compulsory arbitration, including through judicial proceedings, prevents strike action, it was contrary to the right of trade unions to organize freely their activities and could only be justified in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee had requested the Government to take the necessary measures, in consultation with the social partners, in order to ensure the application of this principle in law and in practice. The Committee notes with regret that the Government did not provide any information on this matter. The Committee is therefore bound to reiterate its previous request. The Committee expects the Government to provide information on all steps taken or envisaged in this respect.

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The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) received on 5 September 2018 referring to the issues raised by the Committee below and alleging grave violations of civil liberties and of the Convention in practice. The Committee requests the Government to provide its comments thereon.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee had previously noted that pursuant to section 27(3) of the Law on Public Associations (applicable to employers’ organizations), upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their governing bodies and officers, as well as reports about their operations. A similar provision is contained in section 16(2) of the Law on Trade Unions. Considering that these provisions give the authorities powers of control which go beyond those acceptable under the Convention, the Committee recalled that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association), such verification should be limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee notes that the Government considers that the obligations imposed by above-mentioned provisions do not constitute an interference with the activities of public associations. The Government informs nevertheless that the Committee’s comments will be brought to the attention of Mejilis (Parliament) which is about to examine the draft amendments to the Law on Trade Unions and the Labour Code. The Committee hopes that sections 16(2) of the Law on Trade Unions, and 27(3) of the Law on Public Associations in so far as it applies to employers’ organizations, will soon be amended so as to ensure the application of the principle above. It requests the Government to report on the developments in this regard.

Right to strike. The Committee had previously noted that the provisions of the Labour Code concerning collective labour disputes did not refer to the right to strike; that according to the Government, collective labour disputes were resolved through mediation or in case of a failure, in courts; that the parties could not refuse to participate in dispute resolution procedures; and that there were no registered cases of strikes in the country. The Committee considered in this respect that while strike action was not an end in itself, it was an essential means available to workers and their organizations to protect their interests. The Committee notes that the Government points to the absence of legislation dealing with the right to strike. The Government reiterates that there were no instances of strikes in the modern history of the country and that all labour disputes are resolved at the enterprise level through mediation and conciliation procedures. Up until now, no collective labour dispute has been brought to the attention of the courts. The Committee reaffirms that the right to strike derives from the Convention and once again requests the Government to take the necessary measures, in consultation with the social partners, to guarantee this right in law and in practice. It requests the Government to indicate all steps taken or envisaged in this respect.

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The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

The Committee notes the following new laws: the Law on Organizing and Holding Meetings, Rallies, Demonstrations and Other Mass Events (2015), the Law on Public Associations (2014) and the Law on Trade Unions (2013).

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Trade union monopoly. The Committee had previously noted that the Government’s report seemed to imply that there was only one trade union centre in Turkmenistan, the National Centre of Trade Unions of Turkmenistan (NCTUT) and requested the Government to indicate whether workers could create a trade union organization outside of that structure. The Committee notes with interest that pursuant to section 11 of the Law on Trade Unions, trade unions may create trade union centres, unions and other associations. The Committee notes the Government’s indication that no application for the registration of other independent unions has been submitted to the Ministry of Justice since 1996, when the NCTUT was registered. It further notes that while section 12 of the Law on Trade Unions clearly provides that the state registration is carried out by the Ministry of Justice, the Government indicates that the NCTUT registers sectoral trade unions and provides them with general guidance. The Committee requests the Government to clarify whether in practice, there is an obligation imposed on all unions to be members of the NCTUT, and the role of the latter in establishing and registering trade unions in the country.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee notes that pursuant to section 27(3) of the Law on Public Associations (applicable to employers’ organizations), upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their governing bodies and officers, as well as reports about their operations. A similar provision is contained in section 16(2) of the Law on Trade Unions. The Committee considers that these provisions give the authorities powers of control which go beyond those acceptable under the Convention. In this respect, it recalls that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association), such verification should be limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee requests the Government to take the necessary measures to amend sections 16(2) of the Law on Trade Unions and 27(3) of the Law on Public Associations, in so far as it applies to employers’ organizations, to ensure the application of the principle above. It requests the Government to report on all measures taken or envisaged to that end.

Right to strike. The Committee had previously noted that the provisions of the Labour Code concerning collective labour disputes did not refer to the right to strike; that according to the Government, collective labour disputes were resolved through mediation or in case of a failure, in courts; that the parties could not refuse to participate in dispute resolution procedures; and that there were no registered cases of strikes in the country. The Committee considered in this respect that while strike action was not an end in itself, it was an essential means available to workers and their organizations to protect their interests. It further considered that in so far as compulsory arbitration, including through judicial proceedings, prevents strike action, it was contrary to the right of trade unions to organize freely their activities and could only be justified in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee had requested the Government to take the necessary measures, in consultation with the social partners, in order to ensure the application of this principle in law and in practice. The Committee notes that the Government considers the Committee’s request to be beyond the scope of the Convention and reiterates the information it had previously provided. The Committee recalls that the matters raised fall within its well-recognized mandate to undertake an impartial and technical analysis of how the Convention is applied in law and practice for all ratifying member States and once again requests the Government to indicate all measures taken or envisaged to ensure the application of the abovementioned principle in law and in practice.

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The Committee recalls that in its previous direct request it had noted that in the absence of a specific legislation on trade unions and employers’ organizations, the Law on Public Associations regulated the establishment, activities and liquidation of such organizations. It also noted the Government’s indication that the National Trade Union Centre of Turkmenistan (NTUCT) had prepared a draft law on trade unions and requested the Government to provide information on its status and a copy thereof. The Committee notes that in its report the Government indicates that the draft prepared by the NTUCT has been submitted to the Government for consideration. The Committee requests the Government to provide information in its next report on the latest status of the draft legislation, a copy thereof, or a text of the new legislation, if adopted before the next reporting cycle. It reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign citizens and stateless persons. The Committee recalls that it had previously requested the Government to indicate whether foreign citizens and stateless persons could establish and join trade union organizations of their own choosing. The Committee notes that the Government indicates that foreign citizens can establish and be members of public associations and refers, in this respect, to examples of such associations (humanitarian and interest groups organizations) operating in the country. The Committee requests the Government to indicate whether stateless persons can also establish and join trade union organizations of their own choosing.

Trade union monopoly. The Committee had previously noted that the Government’s report seemed to imply that there was only one trade union centre in Turkmenistan and that there were no trade unions outside of that structure. It had requested the Government to indicate whether workers could create a trade union organization outside of the NTUCT. The Committee regrets that the Government provides no clarification in this regard, and to the contrary, appears to confirm the existence of a trade union monopoly in the country by stating that the NTUCT registers sectoral trade unions (composed of primary, i.e. enterprise-based trade unions). The Committee once again recalls that Convention No. 87 implies that pluralism should remain possible in all cases; therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers would prefer to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish. It therefore once again requests the Government to indicate whether workers can create a trade union organization outside of the NTUCT structure.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee had previously noted that, according to section 22(3) of the Law on Public Associations, upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their management committees or office holders and annual and quarterly reports about the association’s activities, as submitted to the taxation authority. According to section 22(4), public associations must inform beforehand the Ministry of Justice about the implementation of important decisions and allow a representative of the Ministry to be present on such occasions. Furthermore, according to section 22(5), a public association must assist a representative of the Ministry of Justice to ascertain whether the association is achieving its authorized purpose(s). The Committee had observed that, in so far as these provisions applied to workers’ and employers’ organizations, they gave authorities powers of control which go beyond those acceptable under the Convention. In this respect, the Committee had considered that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there were serious grounds for believing that the actions of an organization were contrary to its rules or the law (which should not infringe the principles of freedom of association); such verification should be limited to exceptional cases, for example in order to investigate a complaint, or if there had been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. The Committee had requested the Government to take the necessary measures to either amend the Law on Public Associations or to ensure that any specific legislation regulating rights and activities of workers’ and employers’ organizations guaranteed the application of this principle. The Committee regrets that no information has been provided by the Government on the measures taken in this respect. The Committee therefore reiterates its previous request and hopes that the Government’s next report will indicate all steps taken or envisaged to ensure the application, in law and in practice, of the principle above.

Right to strike. The Committee had previously noted that the provisions of the Labour Code concerning collective labour disputes did not refer to the right to strike and requested the Government to provide a copy of all relevant legislation regulating the right to strike. The Committee notes that according to the Government, collective labour disputes are resolved through mediation or in case of a failure, in courts; the parties cannot refuse to participate in dispute resolution procedures. The Government further indicates that there are no registered cases of strikes in the country. The Committee considers that while strikes action is not an end in itself, it is an essential means available to workers and their organizations to protect their interests. The Committee further considers that in as far as compulsory arbitration, including through judicial proceedings, prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests the Government to take the necessary measures, in consultation with the social partners, in order to ensure the application of this principle in law and in practice. It requests the Government to indicate in its next report all measures taken or envisaged to that end.

The Committee further notes the Government’s indication that the legislation of Turkmenistan punishes the violation of the established order for organizing and holding of assemblies, meetings, marches and demonstrations and that the engaged responsibility is of an administrative and criminal nature. According to section 223 of the Criminal Code, “violation of the legal order set out for the organization or conduct of meetings, rallies, marches and demonstrations, … after application of administrative penalty for the same acts, shall be punished by a fine of from five to ten monthly wages, or correctional work for up to one year, or by imprisonment for up to six months”. The Committee requests the Government to provide detailed information, including relevant legislative provisions or regulations setting out the order and procedure for organizing and holding of mass activities and describe concrete situations where an administrative and criminal responsibility of an individual would be involved.

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The Committee notes the Government’s first report. It further notes the relevant provisions of the Constitution of Turkmenistan (2008), the Labour Code (2009), the Law on Public Associations (2003) and the Presidential Ordinance on state registration of projects and programmes of technical, financial, humanitarian assistance and grants and the accompanying rules (2003). The Committee understands that, in the absence of a specific legislation on trade unions and employers’ organizations, the Law on Public Associations is the legislation regulating the establishment, activities and liquidation of such organizations. The Committee notes the Government’s indication that the National Trade Union Centre of Turkmenistan has prepared a draft law on trade unions and requests the Government to provide information in its next report on the current status of the draft legislation, a copy thereof, or a text of the new legislation, if it is adopted before the next reporting cycle.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign citizens and stateless persons. The Committee notes that the Constitution of Turkmenistan, in its article 28, guarantees to every citizen the right to form social associations and, by virtue of article 8, would appear to extend this right to foreign citizens and stateless persons. The Committee further notes that, pursuant to section 398 of the Labour Code, workers have the right to establish and join trade unions. The Committee also notes that, pursuant to section 1(2) of the Law on Public Associations, “citizens create public associations of their own choice and have the right to join such associations on conditions of observance of their own charters”. The Committee requests the Government to indicate whether foreign citizens and stateless persons can establish and join trade union organizations of their own choosing.

Criminal record. The Committee notes that, according to section 18 of the Law on Public Associations, authorities can refuse registration of an organization if one of its founders “has been previously sentenced for a crime, especially a serious crime”. The Committee considers that, with regard to the right of workers to establish their organizations, a law which prohibits establishment of a trade union by a person convicted of a crime is incompatible with such a right, when the activity condemned is not prejudicial to the aptitude and integrity required to establish a trade union organization. The Committee requests the Government to indicate what types of crimes are encompassed in the prohibition stipulated in section 18 of the Law and which would be applicable in the case of establishment of a trade union organization.

Trade union monopoly. The Committee notes that the Government’s report seems to imply that there is only one trade union centre in Turkmenistan and that there are no trade unions outside of that structure. The Committee recalls that Convention No. 87 implies that pluralism should remain possible in all cases. Therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 96). The Committee requests the Government to indicate whether workers can create a trade union organization outside of the National Trade Union Centre of Turkmenistan.

The Committee also requests the Government to provide a copy of the relevant provisions of the Civil Code regulating registration of public associations, including trade unions.

Article 3. Right of organizations to organize their administration without interference by the public authorities. The Committee notes that, according to section 22(3) of the Law on Public Associations, upon a request from the Ministry of Justice, public associations must submit copies of decisions taken by their management committees or office holders and annual and quarterly reports about the association’s activities, as submitted to the taxation authority. According to section 22(4), public associations must inform beforehand the Ministry of Justice about the implementation of important decisions and allow a representative of the Ministry to be present on such occasions. Furthermore, according to section 22(5), a public association must assist a representative of the Ministry of Justice to ascertain whether the association is achieving its authorized purpose(s). The Committee observes that, in so far as these provisions apply to workers’ and employers’ organizations, they give authorities powers of control which go beyond those acceptable under the Convention. In this respect, the Committee considers that the supervision of workers’ and employers’ organizations should be limited to the obligation of submitting periodic financial reports or, if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); such verification should be limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement, and should not take the form of permanent control by the authorities. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to take the necessary measures to either amend the Law on Public Associations or to ensure that any specific legislation regulating rights and activities of workers’ and employers’ organizations guarantees the application of this principle. The Committee requests the Government to indicate in its next report the measures taken in this respect.

Right to strike. The Committee notes that the provisions of the Labour Code concerning collective labour disputes do not refer to the right to strike and that the Government provides no information in this regard. The Committee therefore requests the Government to provide a copy of all relevant legislation regulating the right to strike.