Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 305, Novembre 1996

Cas no 1834 (Kazakhstan) - Date de la plainte: 23-JANV.-95 - Clos

Allegation: Prohibition on the acceptance, by national trade unions, of financial assistance from international organizations

1. 372. In a communication dated 23 January 1995, the Independent Trade Union Centre of Kazakstan (ITUCK) submitted a complaint of violations of freedom of association against the Government of Kazakstan. It presented additional information in a communication dated 17 September 1995.
2. 373. In a communication dated 11 September 1996, the Government provided its observations on the complaint.
3. 374. Kazakstan has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 375. In its communication of 23 January 1995, the ITUCK indicates that it has lodged a complaint pursuant to the adoption of the Civil Code of Kazakstan by Parliament. In effect, under the terms of section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations".
2. 376. The ITUCK considers the adoption of such a provision to be in violation of workers' rights and of freedom of association since it prevents national trade unions from having free contacts, albeit financial ones, with international workers' organizations. Moreover, the ITUCK points out that it is a recently established confederation of free trade unions which is trying to build up a new democratic trade union movement in Kazakstan. It would be very difficult for it to survive without the assistance and training of trade union organizations from developed countries.
3. 377. In its more recent communication, the ITUCK adds that the Government has incorporated the above provision in the text of the new Constitution (article 5) which was adopted by referendum on 30 August 1995. The ITUCK therefore calls upon the ILO to take the necessary measures to ensure that the Government complies with freedom of association principles.

B. The Government's reply

1. 378. The Government recalls in its communication of 11 September 1996 that article 16 of the Constitution of Kazakstan guarantees the right of association to all citizens of the State in public organizations including trade unions. This provision is reinforced by the Civil Code of the Republic and by the laws on public associations and on trade unions. Furthermore, the Government adds that the mechanism for funding public associations is governed by article 106 of the Civil Code of the Republic. Pursuant to this article, public associations are funded, inter alia, from entrance fees, member dues, voluntary contributions, donations, receipts from lectures, exhibitions, etc. The funding of political parties, public associations and trade unions by foreign persons or States as well as by international organizations is not permitted. This provision is reinforced by article 5 of the Constitution to the same effect. The Government is of the opinion that this prohibition contravenes neither international human rights law nor the provisions of the relevant ILO Conventions and does not limit, in any way, possible cooperation with foreign entities.

C. The Committee's conclusions

1. 379. The Committee observes that the allegation in the present case concerns the prohibition of the right of national trade union organizations in Kazakstan to receive financial assistance from international workers' organizations. The Committee notes that this prohibition is contained in section 106 of the Civil Code of Kazakstan and is reinforced by a newly adopted constitutional provision.
2. 380. In this respect, the Committee reminds the Government that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 632). The Committee considers that all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers respectively, whether they are affiliated or not to the latter.
3. 381. In view of the above-mentioned principles, the Committee therefore calls on the Government to take steps to amend section 106 of the Civil Code as well as article 5 of the new Constitution so as to lift the prohibition on the acceptance by national trade unions, including the complainant, and in the meantime, not to obstruct the acceptance, of financial assistance from international organizations of workers. It requests the Government to keep it informed of any progress made in this respect.

The Committee's recommendations

1. 382. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee calls upon the Government to take steps to amend section 106 of the Civil Code as well as article 5 of the new Constitution so as to lift the prohibition on the acceptance by national trade union organizations, including the complainant, and in the meantime, not to obstruct the acceptance, of financial assistance from international organizations of workers. It requests the Government to keep it informed of any progress made in this regard.

Z. Annex

• Provisions of the Civil Code and of the Constitution referred to by the
• complainant
• The Civil Code of Kazakstan
• Section 106:
• "It is forbidden for political parties, non-governmental organizations with
• political goals and trade unions to receive any kind of foreign financial
• assistance from any foreign countries, foreign organizations, foreign citizens
• and international organizations."
• The Constitution of Kazakstan
• Article No. 5 (paragraph No. 4):
• "Financial assistance to political parties and trade unions from foreign
• governments, foreign citizens, foreign companies, foreign NGOs, and
• international organizations is forbidden in the Republic."