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Intervention by the judicial authorities (Dissolution and suspension of organizations)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1108 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061108 Intervention by the judicial authorities (See also para. 464)699. The Committee considers that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed. (See the 1996 Report, para. 666; 315th Report, Case No. 1935, para. 22; 327th Report, Case No. 1581, para. 110; and 329th Report, Case No. 2181, para. 760.) 700. The suspension of the legal personality of trade union organizations represents a serious restriction on trade union rights and in matters of this nature the rights of defence can only be fully guaranteed through due process of law. (See the 1996 Digest, para. 678.) 701. Any measures of suspension or dissolution by administrative authority, when taken during an emergency situation, should be accompanied by normal judicial safeguards, including the right of appeal to the courts against such dissolution or suspension.(See the 1996 Digest, para. 679; and 300th Report, Case No. 1799, para. 212.) 702. Even if they may be justified in certain circumstances, measures taken to withdraw the legal personality of a trade union and the blocking of trade union funds should be taken through judicial and not administrative action to avoid any risk of arbitrary decisions.(See the 1996 Digest, para. 680.) 703. If the principle that an occupational organization may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decisions by a judicial authority.(See the 1996 Digest, para. 681; and 306th Report, Case No. 1884, para. 690.) 704. Any possibility should be eliminated from the legislation of suspension or dissolution by administrative authority, or at the least it should provide that the administrative decision does not take effect until a reasonable time has been allowed for appeal and, in the case of appeal, until the judicial authority has ruled on the appeal made by the trade union organizations concerned.(See the 1996 Digest, para. 682; 323rd Report, Case No. 2075, para. 518; and 327th Report, Case No. 1581, para. 110.) 705. Judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87. In effect, if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; the judges hearing such an appeal could only ensure that the legislation had been correctly applied. The same problem may arise in the event of the suspension or dissolution of an occupational organization.(See the 1996 Digest, para. 683; and 310th Report, Case No. 1908, para. 22.) |
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