Report in which the committee requests to be kept informed of development - Report No 332, November 2003

1. 363. The complaint is contained in a communication from the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU of BiH) dated 18 October 2002.
2. 364. In the absence of a reply from the Government, the Committee had to postpone its examination of the case twice. At its May-June 2003 meeting [see 331st Report, para. 8], the Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the information and observations of the Government had not been received in due time [GB.287/8, para. 8].
3. 365. Bosnia and Herzegovina 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. 366. In its communication of 18 October 2002, the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU of BiH) alleges that the Ministry of Civil Affairs and Communications refuses to register the complainant and its branch trade unions – CITU members – thereby infringing Articles 3 and 7 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Bosnia and Herzegovina.
2. 367. In particular, it is stated in the complaint that, in compliance with the Law on Associations and Foundations of Bosnia and Herzegovina, both the complainant and its members filed an application for registration with the Record of Associations and Foundations of Bosnia and Herzegovina in the Ministry of Civil Affairs and Communications on 24 May 2002. The complainant states that, as all legal conditions had been met, the Ministry was expected to make a decision on registration within the 30-day deadline established by article 32, paragraph 1, of the abovementioned law. However, registration did not take place. On 10 July 2002, the complainant addressed the Ministry for a second time, requesting registration. On 25 July 2002, the Ministry informed the complainant that it was impossible to carry out the registration because, prior to the submission of the application for registration to the Ministry, the complainant should have been registered in compliance with the Law on Citizens’ Associations at the level of the Federation of Bosnia and Herzegovina. The complainant adds that, by the same token, the Ministry contested as unlawful the earlier registration of the complainant at the Cantonal Court in Sarajevo and article 2 of the complainant’s statute on its legal succession to the CTU of BiH. The Ministry also contested the right of the complainant to include the name Bosnia and Herzegovina in its title, pointing out that the enactment of the law on the use and protection of the name of Bosnia and Herzegovina was under way. The complainant adds that similar responses were given by the Ministry to the branch trade unions – members of the complainant.
3. 368. The complainant states that, in light of the above, it once again addressed the Ministry in order to explain that is was the legal successor of the former Confederation of Trade Unions of Bosnia and Herzegovina which had changed its name into the Confederation of Independent Trade Unions of Bosnia and Herzegovina at a Congress held in 1990. The new Confederation was registered by the Court of Appeals in Sarajevo, and had been functioning since 1990. The most recent amendments to its registration were also made by the Court of Appeals in Sarajevo in 1996. The complainant had not re-registered in line with the Law on Citizens’ Associations of the Federation of Bosnia and Herzegovina as this law did not cover workers’ organizations that functioned at the level of the Republic of Bosnia and Herzegovina but only in one of its two entities, i.e. the Federation of Bosnia and Herzegovina. Moreover, if an obligation to register pursuant to that law existed, the complainant would have never been able to amend its registration in 1996, as this law had already been enacted and had entered into force in 1995.
4. 369. The complainant states that, as indicated to the Ministry, pursuant to the modification of its registration in 1996, it continued to function in conformity with the regulations in force during that period pursuant to the transitory provisions contained in Annex II, clauses 2 and 4, of the Dayton Peace Agreement. More specifically, Annex II, clause 2, of the Dayton Peace Agreement provided that, when the Constitution entered into force, all laws, regulations and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina would remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina. Annex II, clause 4, set forth that, until superseded by applicable agreement or law, governmental offices, institutional and other bodies of Bosnia and Herzegovina would operate in accordance with the applicable law. The complainant states that the Law on Associations and Foundations of Bosnia and Herzegovina was the first enactment concerning the registration of associations and foundations at the level of the Republic of Bosnia and Herzegovina passed by the competent authority, i.e. the Parliamentary Assembly of Bosnia and Herzegovina pursuant to the Dayton Peace Agreement. Thus, the complainant submits that, in waiting for the Law on Associations and Foundations to be enacted before seeking a new registration, it acted in accordance with the applicable laws and regulations and that, consequently, the request for registration was unjustifiably refused.
5. 370. The complainant states moreover that the Ministry refused to approve the registration and enlist the complainant in the registry with a name that includes a reference to Bosnia and Herzegovina because, in its view, there was no sufficient legal basis to entitle the complainant to use this name. The complainant states that, in its response to the Ministry, it explained that the relevant legal basis can be found in the title of the applicable law itself, that is, the Law on Associations and Foundations of Bosnia and Herzegovina, and the fact that no legal provision contests the right to use this name. Moreover, the complainant counters the Ministry’s argument that it will be possible to resolve the issue only after the enactment of the Law on the Use and Protection of the Name of Bosnia and Herzegovina, by submitting that the Law on Associations and Foundations of Bosnia and Herzegovina and the application of its provisions is not conditional on the enactment of another law.
6. 371. The complainant finally states that the Ministry has not responded to its request for information on the law which disallows its registration and the legal texts which empower the Ministry to decide on the use of the name Bosnia and Herzegovina.

B. The Committee’s conclusions

1. 372. The Committee deplores the fact that, despite the time which has elapsed since the presentation of the complaint, and bearing in mind the extreme gravity of the allegations, the Government has not provided in due time the comments and information requested by the Committee, although it was invited to send its reply on several occasions, including by means of an urgent appeal at its June 2002 meeting. In these circumstances, and, in accordance with the applicable rule of procedure [see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of this case, in the absence of the information it had hoped to receive in due time from the Government.
2. 373. The Committee reminds the Government, first, that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations concerning violations of freedom of association is to ensure respect for the rights of employers’ and workers’ organizations in law and in fact. If this procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, for objective examination, detailed factual replies concerning the substance of the allegations brought against them [see First Report of the Committee, para. 31].
3. 374. The Committee notes that the present complaint concerns allegations that the Ministry of Civil Affairs and Communications unjustifiably refuses to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU of BiH) and its branch trade unions. The Committee notes with concern that this is the third case brought before it with regard to a refusal by the authorities to register a national employers’ or workers’ organization at the level of the Republic of Bosnia and Herzegovina [see Case No. 2053, 324th Report, paras. 219-234; Case No. 2140, 329th Report, paras. 290-298].
4. 375. The Committee notes that the complainant, which is the successor to the Confederation of Trade Unions of Bosnia and Herzegovina, applied to the Ministry of Civil Affairs and Communications for re-registration in accordance with the Law on Associations and Foundations of Bosnia and Herzegovina and that the Ministry rejected the application on the following grounds:
   • – before applying for registration at the level of the Republic of Bosnia and Herzegovina on the basis of the Law on Associations and Foundations of Bosnia and Herzegovina, the complainant should have filed for registration at the level of the Federation of Bosnia and Herzegovina on the basis of the Law on Citizens’ Associations;
   • – since such application had not been made, the authorities contested the complainant’s earlier registration with the Cantonal Court in Sarajevo and its succession to the Confederation of Trade Unions of Bosnia and Herzegovina;
   • – there was no legal basis entitling the complainant to use the name Bosnia and Herzegovina and the issue could not be resolved before the enactment of the Law on Use and Protection of the Name of Bosnia and Herzegovina which was under way.
5. 376. The Committee notes that, according to the complainant, similar responses were given to its branch trade unions. The complainant states that it provided a detailed answer to the Ministry, indicating that:
   • – the Law on Citizens’ Associations is not applicable to its case given that the complainant is a general confederation with activities at the national level of the Republic of Bosnia and Herzegovina and not the Federation of Bosnia and Herzegovina which is one of its two entities;
   • – the complainant had already registered an amendment to its Constitution in 1996 and had continued to function in accordance with the applicable laws and regulations pursuant to Annex II of the Dayton Peace Agreement;
   • – the right to use the name Bosnia and Herzegovina is implicit in the title of the applicable law itself, i.e. the Law on Associations and Foundations of Bosnia and Herzegovina, and the application of this law is not conditional on the enactment of another law. Finally, there is no legal text prohibiting the use of this name.
6. 377. The Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. While the founders of an organization are not freed from the duty of observing formalities which may be prescribed by law, such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 207]. The Committee also recalls that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Digest, op. cit., 1996, para. 251].
7. 378. The Committee emphasizes that the right to official recognition through legal registration is an essential facet of the right to organize since it is a necessary condition for acquiring legal personality according to the Law on the Associations and Foundations of Bosnia and Herzegovina [article 28, paragraph 1]. The Committee recalls that the acquisition of legal personality by workers’ organizations, federations and confederations shall not be made subject to conditions of such a nature as to restrict the exercise of the right to establish and join organizations of their own choosing [see Digest, op. cit., paras. 607 and 606].
8. 379. The Committee deplores the unreasonable period which has now elapsed since the initial filing of the registration request, i.e. May 2002, and considers that the rejection of the request for re-registration of a bona fide and longstanding organization, which has already been operating for a long time in the Republic, is a violation of Article 2 of Convention No. 87, ratified by Bosnia and Herzegovina. The Committee notes moreover that the grounds invoked for the refusal to register the complainant appear clearly unjustified. The Committee strongly requests the Government to take all necessary measures urgently with a view to rapidly finalizing the registration of the complainant and its members and to keep it informed of developments in this respect.
9. 380. The Committee notes that the complainant’s request for registration was rejected in accordance with article 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina, which authorizes the Minister of Civil Affairs and Communication to accept or refuse a request for registration within 30 days from its submission and provides that, if the Minister does not adopt a decision within 30 days, the request for registration shall be considered as rejected. The Committee recalls that a provision whereby a minister may, at his discretion, approve or reject an application for the creation of a general confederation is not in conformity with the principles of freedom of association [see Digest, op. cit., 1996, para. 609]. More generally, a law providing that the right to association is subject to authorization granted by a government department purely in its discretion is incompatible with the principle of freedom of association [see Digest, op. cit., para. 245]. The Committee requests the Government to bring the legislation concerning the registration of employers’ and workers’ organizations into conformity with Convention No. 87. It reminds the Government that it can avail itself of the technical assistance of the Office in this regard. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.