Observación (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Kazajstán (Ratificación : 2000)

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Observación

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 and 28 September 2021, referring to the issues raised by the Committee below.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (the Conference Committee) in June 2021 concerning the application of the Convention. The Committee observes that the Conference Committee welcomed that further steps towards implementing the 2018 road map were made, in particular amendments to the law. However, it regretted that not all previous recommendations have been fully addressed so far. In this regard, the Conference Committee took note of the continuing restrictions in practice on the right of workers to form organizations of their own choosing, in particular the unduly difficult re-registration and deregistration processes, which undermine the exercise of freedom of association. The Conference Committee also noted with concern the numerous allegations of violations of the basic civil liberties of trade unionists, including violence, intimidation and harassment. The Committee notes that the Conference Committee requested the Government to: (i) bring all national legislation into line with the Convention to guarantee full enjoyment of freedom of association to workers’ and employers’ organizations; (ii) ensure that the allegations of violence against trade union members are completely investigated, notably in the case of Mr Senyavsky; (iii) stop judicial harassment practices of trade union leaders and members conducting lawful trade union activities and drop all unjustified charges, including the ban for trade unionists to hold any position in a public or non-governmental organization; (iv) continue to review developments in the cases of Mr Baltabay and Ms Kharkova; (v) resolve the registration of the Congress of Free Trade Unions (KSPRK) and the Industrial Union of Employees of the Fuel and Energy Sector so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay; (vi) review with the social partners the law and practice concerning the registration of trade unions with a view to overcoming existing obstacles; (vii) refrain from showing favouritism towards any given trade union and put an immediate stop to the interference in the establishment and functioning of trade union organizations; (viii) remove any existing obstacles in law and in practice to the operation of free and independent employers’ organizations in the country, in particular repeal of provisions in the Law on the National Chamber of Entrepreneurs (NCE) on accreditation of employers’ organizations with the NCE; (ix) ensure that workers’ and employers’ organizations are not prevented from receiving financial or other assistance by international workers’ and employers’ organizations; and (x) fully implement the previous recommendations of the Committee and the 2018 road map. The Committee also notes that the Conference Committee requested the Government to accept a direct contacts mission of the International Labour Office before the next session of the International Labour Conference with full access to the organizations and individuals mentioned in the observations of the Committee of Experts.

The Committee recalls that in their previous observations, the ITUC and the Federation of Trade Unions of Kazakhstan (FPRK) denounced the sentencing of a trade union leader Mr Baltabay to seven years of imprisonment in July 2019 for the alleged misappropriation of approximately US$28,000 of union dues. Mr Baltabay was released in August 2019 after being pardoned by the President and given a fine of US$4,000 in exchange for his remaining prison sentence. Mr Baltabay insisted on his innocence, refused to pay the fine or recognize the presidential pardon, and argued in court that criminal charges of large-scale misappropriation of funds levied against him were politically motivated and unfounded. The Committee further recalls that on 16 October 2019, Mr Baltabay was given a new prison sentence of five months and eight days of imprisonment for union-related activities and for not paying the fine. While Mr Baltabay was released from jail on 20 March 2020, the Committee notes that according to the ITUC, he is still banned from any public activity, including trade union activities, for seven years, as per the previous sentence.

The Committee notes from the ITUC observations, that Ms Larisa Kharkova, the Chairperson of the now liquidated Confederation of Independent Trade Unions of Kazakhstan (KNPRK), who was sentenced to four years of restriction on her freedom of movement and a five-year ban on holding any position in a public or non-governmental organization, continues to serve her sentence.

The Committee notes that the Government does not dispute the facts as outlined by the ITUC, but indicates that judicial decisions in the cases of Ms Kharkova and Mr Baltabay were made in respect of ordinary crimes, namely the “misappropriation and embezzlement of entrusted property” and the “abuse of office”, and were not related to their participation in legal trade union activities. The Government indicates that the period of restricted freedom imposed on Ms Kharkova expires on 9 November 2021.

The Committee takes due note of the information provided and refers to the conclusions and recommendations of the Committee on Freedom of Association (CFA) which continues to examine cases of Mr Baltabay and Ms Kharkova in the framework of Case No. 3283 (see 392nd Report, October 2020). It requests the Government to indicate whether Ms Kharkova and Mr Baltabay are still prevented from holding a trade union office.

The Committee recalls that it had previously noted with deep concern the ITUC allegation of assault and injuries suffered by Mr Dmitry Senyavsky, the Chairperson of a trade union of workers of the fuel and energy complex in the Karaganda region, and urged the Government to investigate the matter without delay and to bring the perpetrators to justice. The Committee had noted the information provided by the Government confirming the assault by unknown persons on 10 November 2018. According to a forensic medical report, Mr Senyavsky suffered mild damages to his health. The Committee recalls the Government’s indication that while pretrial investigations were opened under section 293(2)(1) of the Criminal Code (disorderly conduct), they were later suspended pursuant to section 45(7)(1) of the Criminal Procedure Code (failure to identify the person who committed a crime) until new circumstances (evidence) would come to light.

The Committee notes the ITUC indication that no progress has been made in investigating the attack. The ITUC points out that absence of effective investigations and judgements against guilty parties reinforce the climate of insecurity for victims and impunity for perpetrators, which are extremely damaging to the exercise of freedom of association rights in Kazakhstan. The Committee notes the Government’s indication that the work to solve this case continues. The Committee requests the Government to provide detailed information on all developments in this respect.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee recalls that following the entry into force of the Law on Trade Unions in 2014, all existent unions had to be re-registered. It recalls in this respect that the KNPRK affiliates were denied registration/re-registration, which ultimately led to the KNPRK’s liquidation. The Committee further recalls the ITUC allegation of denials to register organizations, which previously formed the KNPRK, as well as the refusal to register the KSPRK (the name under which the successor of the KNPRK had last tried to re-register) and the Industrial Trade Union of Employees of the Fuel and Energy Sector. In its previous observation, the Committee had noted the Government’s explanation that in the event that the registering authority (Ministry of Justice) identifies shortcomings, it issues a reasoned refusal. The Government further indicated that the KSPRK had received a reasoned refusal and that the Ministry of Labour and Social Protection of the Population (MLSPP) had held a series of meetings with the representatives of the Congress regarding the refusal to register it. The Government had pointed out that if the trade union in question rectified the indicated shortcomings, the Ministry of Justice stood ready to re-examine the application for registration. However, according to the Government, the applicant had not yet addressed the relevant registering authority. Having duly noted the information provided by the Government, the Committee requested the Government to continue to provide information on the status of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector.

The Committee notes the ITUC indication that the KSPRK remains unregistered and that the Industrial Union of Employees in the Fuel and Energy Sector is undergoing a process of dissolution following a court decision dated 5 February 2021 to suspend its activities. The Committee further notes that the Government reiterates the information previously provided regarding the refusal to register the KSPRK and its predecessor and that the irregularities pointed out by the registering authority have not been addressed and no reapplication for registration has been submitted. The Government further indicates that by its decision of 6 May 2021, the civil and administrative appellate court decided not to change the verdict of the Shymkent special inter-district economic court of 5 February 2021 that the activities of the Industrial Union of Employees in the Fuel and Energy Sector should be suspended for six months. In order to resume its activities, the sectoral trade union was required, within six months of the court’s February 2021 decision coming into effect, to resolve the irregularities regarding the numerical strength of its affiliates (subdivisions, member organizations) in territory covering more than half of the country’s regions. As of August 2021, the union had not applied for registration of its affiliates. The Government also indicates that on 13 August 2021 Mr Kuspan Kosshygulov was appointed chairperson of the Union.

The Committee notes the Government’s indication that there are currently three national trade union associations, 54 sectoral, 34 territorial and 365 local trade unions, which bring together around 3 million workers, or half of all the country’s employees. Since the adoption of changes to the legislation in May 2020, one sectoral trade union (the “Byrlyk” union of workers in construction, housing and utilities, and transport, registered on 22 July 2021) and 37 local unions have been formed. The Government further indicates that a permanent working group exists to review areas of concern involving the registration of trade unions. Its members include representatives of the MLSPP, the Ministry of Justice and three national trade union associations (the FPRK, the Kazakhstan Labour Confederation and the “Amanat” Trade Union). While noting that new trade unions have been established and registered since the amendment of the legislation in 2020, the Committee observes that its longstanding concern regarding the registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector is yet to be resolved. The Committee requests the Government to take the necessary steps for the resolution of the issue of registration of the KSPRK and the Industrial Union of Employees of the Fuel and Energy Sector so as to allow them to enjoy the full autonomy and independence of a free and independent workers’ organization, to fulfil their mandate and to represent their constituents without further delay. The Committee further requests the Government to continue engaging with the social partners to review the difficulties identified by trade unions seeking registration with a view to finding appropriate measures, including legislative, to fully give effect to Article 2 of the Convention and to ensure the right of workers to establish organizations without previous authorization. It requests the Government to provide information on all progress made in this respect.

With reference to the conclusions of the Conference Committee, the Committee encourages the Government to continue reviewing the application of the Law on the National Chamber of Entrepreneurs (NCE) in practice with the social partners to ensure that its provisions on accreditation of employers’ organizations with the NCE do not hinder the right of employers’ organizations to organise their administration and activities and to formulate their programmes.

Article 3. Right of organizations to organize their activities and to formulate their programmes. The Committee recalls that it had previously requested the Government to amend section 402 of the Criminal Code (2016), according to which an incitement to continue a strike declared illegal by the court was punishable by arrest for the duration of up to 50 days and in certain cases (substantial damage to rights and interest of citizens, mass riots, etc.) up to two years of imprisonment,

The Committee notes the Government’s indication that on 9 June 2021, the President of the Republic signed a decree on further human rights measures to be taken in Kazakhstan following which, the Government approved a plan of urgent human rights-related measures, including in respect of the right to freedom of association. The Government points out, in particular, that with a view to implementing the ILO recommendations, the intention under the Plan is to work towards further changes to national legislation, including with a view to further reviewing section 402 of the Criminal Code. The Committee requests the Government to provide information on all steps taken thus far, and planned for the future, to review section 402 of the Criminal Code so as to ensure that simply calling for a strike action, even one declared illegal by the courts, does not result in detention or imprisonment.

Article 5. Right of organizations to receive financial assistance from international organizations of workers and employers. The Committee had previously noted the Government’s reference to its Ordinance No. 177 of 9 April 2018 “On the adoption of a list of international and state organizations, foreign and Kazakhstani non-governmental organizations and funds which can provide grants”, which determined 98 international organizations allowed to provide grants to physical and legal persons in Kazakhstan. In this connection, the Committee welcomed the Government’s indication that the MLSPP was ready to examine the possibility of including in that list the ITUC and the International Organisation of Employers if a request to that effect is made. The Committee notes that the Government reiterates its previous statement and indicates that any such request should outline the reasons and specific objectives and state the areas in respect of which the grants are provided. The Committee trusts that the list contained in the Ordinance will be amended, if need be upon the Government’s initiative, to include international workers’ and employers’ organizations and requests the Government to provide information on the measures taken to that end.

The Committee trusts that a direct contacts mission of the International Labour Office requested by the Conference Committee will take place as soon as the situation so permits.