Informe definitivo - Informe núm. 333, Marzo 2004

1. 920. The complaint is contained in a communication dated 19 December 2002 from the Association of Russia’s Trade Unions SOTSPROF (SOTSPROF).
2. 921. The Government forwarded its observations in a communication dated 5 September 2003.
3. 922. 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. 923. In its communication dated 19 December 2002, the Association of Russia’s Trade Unions SOTSPROF alleges that the state bodies of executive power interfere in the administration of the organization.
2. 924. In particular, the complainant states that, on 26 March 2002, the tax authorities issued a warrant authorizing inspection of the premises of the SOTSPROF and its structural and territorial divisions. The inspection, during which certain documents were seized, was conducted on 27 March 2002. On the date of the complaint, the documents were still not returned and no criminal charges have been filed.
3. 925. The complainant further states that on 24 May 2002, the Ministry of Taxation and Tax Collection of Moscow Southwest Inspection decided to conduct an on-site tax inspection of the Association with a view to verifying the calculation and the payment of taxes on income of physical persons. In this connection, the SOTSPROF was requested to present the following documents dated from 1 January 1999 to 1 May 2002: banking documents, cash payment documents, certain financial reports, contracts with legal and physical persons and inventory of all of its assets.
4. 926. Considering that such inspections violate the provisions of the Federal Law on Trade Unions, as well as Article 3 of Convention No. 87, the SOTSPROF lodged complaints with the courts and the Moscow Department of the Ministry of Taxation and Tax Collection of the Russian Federation. However, the courts declared that there has been no violation of national legislation nor of Convention No. 87 and therefore, the actions of the tax police were found legal and the complaints of the trade union were rejected. Despite the SOTSPROF’s objections, the tax authority decided to conduct the investigation of the financial activities of the organization. Nevertheless, considering that the trade union cannot expose its members to the risk of prosecution by the State, which could take place if the state bodies got hold of financial documents concerning the activities of the union, the trade union had decided not to comply with the request of the authorities. Following the refusal to produce the documents, the tax authority imposed a heavy fine on the chairperson of the Association.
5. 927. The complainant further states that by an order of the tax authority dated 9 September 2002, all operations of the bank accounts of the SOTSPROF were suspended from 24 October to 12 November 2002. The formal motive given by the tax authority was a request to submit information on a certain category of tax payment for the first six months of 2002, whereas this kind of information is presented to the tax authorities once a year. The Association had earlier submitted the report, in accordance with the established procedure. The complainant alleges that the freezing of bank accounts had virtually paralysed the activities of the Association and of its largest trade union branch.
6. 928. Furthermore, on 18 December 2002, tax police along with inspectors, conducted another search on the premises of the SOTSPROF and seized its documents.

B. The Government’s reply

1. 929. In its communication of 5 September 2003, the Government states that, as concerns the reference made by the complainant organization to Article 3 of Convention No. 87, the tax inspections do not impinge on any of the rights of trade union organizations provided for by this Article. According to the Government, the reference to the Federal Law on Trade Unions is also groundless, as section 24 refers only to prohibition of financial inspections. The tax inspections carried out by tax authorities are not restricted under the legislation. The complainant organization been a taxpayer, the tax inspection into its activities was conducted in order to verify the regularity and punctuality of the deduction and transfer of taxes on the income of physical persons, in accordance with section 24 of the Taxation Code. In accordance with the requirements of sections 31 and 87 of this Code, the tax inspectors demanded banking and cash documents, advance accounts, agreements with individuals and juridical persons, and inventories of fixed capital and non-material assets liable to taxation. The originals of these documents were returned to the union on 23 January 2003.
2. 930. According to the Government, the investigation into the allegations in the present case showed that, as concerns the search of the union’s premises and seizure of documents, certain violations of the Federal Law on Investigative Operations were indeed committed. The Moscow City Office of Public Prosecutor brought a representation before the chief of the Moscow Division of the Federal Tax Police Service demanding that the violation be redressed, the rights of the taxpayers restored and the guilty parties punished. These demands were fully met.
3. 931. The Government further states that the Inspection of the Southwest Moscow Administrative District Division of the Ministry of Taxation and Tax Collection did decide to suspend the bank operations of the Association SOTSPROF. However, this erroneously taken decision was revoked on 3 December 2003. The Government further states that since the union is not involved in any business activity, claims that the union had suffered losses cannot be sustained.
4. 932. Finally, the Government states that despite the provided by the legislation, right to appeal against the verdict of the court, the complainant organization chose not to appeal the court decision to reject the SOTSPROF’s claim, therefore all available means to defend its interests were not used by the organization. In this respect, the Government adds that part 3 of Article 46 of the Constitution of the Russian Federation provides that citizens have the right to make use of intergovernmental bodies to defend their human rights and freedoms on two conditions: that the Russian Federation is party to a relevant international agreement and that all available means of legal protection within the country have been exhausted.

C. The Committee’s conclusions

1. 933. The Committee notes that the complainant in this case alleges acts of interference by the authorities in the trade union administration. In particular, the complainant states that the tax authorities conducted several on-site inspections with a view to verifying the calculation and the payment of taxes on income of physical persons. Moreover, the complainant alleges that by the order of tax authorities, the bank operations of the Association were suspended from 24 October to 12 November 2002.
2. 934. As concerns the inspections by the tax authorities, during which documents related to financial activities were seized, the complainant alleges that such inspections are contrary to the national legislation, which prohibits the authorities from conducting financial investigations into trade union activities. The Committee notes the Government’s reply, according to which, the complainant organization is a taxpayer and could be subject to tax inspections. The Government further states that the tax inspections could not be considered to be financial investigations, prohibited under national legislation. The Committee also notes that the Government admits that certain irregularities were committed during the search of trade union premises. The Government states, however, that measures have been taken to restore the rights of the trade union and to punish the guilty parties. According to the Government, the seized documents were returned to the union on 23 January 2003.
3. 935. The Committee considers that while tax investigations should be differentiated from the discretionary investigations into all financial activities of trade unions, the question at issue is whether such investigations can be accompanied by searches of trade union premises without a judicial warrant. The Committee is of the view that while trade unions cannot claim immunity against the searching of their premises, such searches should be possible only when a warrant has been issued for the purpose by the regular judicial authority, when the latter is satisfied that there is a good reason to presume that such a search will produce evidence for criminal proceedings under the ordinary law, and provided the search is restricted to the purpose for which the warrant was issued [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 180]. The Committee regrets that certain irregularities took place during the tax inspection of the financial activities of the complainant organization and urges the Government to take the necessary measures in order to prevent such irregularities in the future. The Committee also requests the Government to take the necessary measures in order to ensure that no search of trade union premises is possible without a judicial warrant.
4. 936. As concerns the freezing of trade union accounts, the Committee notes from the documents submitted by the complainant, as well as from the Government’s statement, that the tax authority, which took the decision to freeze trade union accounts, revoked its decision as soon as it noticed the technical error leading to such decision. The Committee also notes the Government’s claim that since the complainant organization was not involved in any business activity, it could not have suffered losses.
5. 937. Recalling that the freezing of union bank accounts constitutes a serious interference by the authorities in trade union activities [see Digest, op. cit., para. 439], the Committee regrets that following a technical error, the tax authorities took a decision to freeze the SOTSPROF’s bank accounts. The Committee urges the Government to take the necessary measures in order to prevent such irregularities in the future.
6. 938. As concerns the question of national remedies, the Committee notes that article 46(3) of the Russian Constitution provides that “everyone shall have the right to turn to interstate organs concerned with the protection of human rights and liberties when all the means of legal protection available within the State have been exhausted”. The Committee would like to point out it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.