Ratified treaties¹

Act restricting the possibility of creating more than one union at the local and provincial levels and subordinating recognition of new organizations to authorization of the Ministry of Justice/ Decision of unconstitutionality/ Reference to international law to strengthen a decision based on domestic law

Several Ukrainian parliamentarians as well as the ombudsman (Parliament Commissioner for Human Rights) asked the courts to decide an issue of unconstitutionality concerning the Act on trade unions that had just been adopted by Parliament, claiming that the text violated not only the articles of the Ukrainian Constitution recognizing freedom of association but also ILO Convention No. 87 and the International Covenant on Economic, Social and Cultural Rights, both ratified by Ukraine.

The claimants contested the constitutionality of Article 11 of the Act setting the conditions for the creation of trade unions at the local, provincial and national levels. Under that Article, in order to obtain legal status, local unions were required to have at least three local union sections or at least nine members working in several businesses. As a result of that provision, associations of workers organized in a single business were not granted legal status and were forced to join a larger union. The motion also challenged the provisions of Article 11, granting the status of provincial unions only to organizations with a majority of existing union members in a branch or a region. The claimants alleged that those provisions forbade union pluralism at the provincial level.

Finally, the claimants also challenged the validity of Article 16 of the law concerning the procedure for registering unions. Under that provision, the registration of an organization by the Ministry of Justice was a prerequisite to obtaining legal status, the minister being able to refuse the registration if he considered that the rules of the Article 11 mentioned above had not been respected.

The Court based its decision on Articles 36 and 37 of the Constitution of Ukraine recognizing freedom of association. It stated that the provisions protected trade union pluralism and that this principle was seriously hindered by Article 11 of the Act which was the object of the appeal. The Constitutional Court then stated that Article 16 of the text had the effect of subordinating the creation of trade unions to prior authorization, a condition expressly prohibited by the Constitution.

In order to strengthen its reasoning, the Constitutional Court pointed out that the provisions that had been brought into question also contravened ILO Convention No. 87 and the International Covenant on Economic, Social and Cultural Rights. The Court pointed out that the guarantees included in those two instruments had been fully incorporated into the Constitution of Ukraine. The Court stated the following:

 “The substance of these provisions of international treaties has been incorporated in the text of the Constitution of Ukraine, in particular in articles 36 and 37, which contain similar guarantees and cautions with regard to the exercise of citizens’ right to freedom of association, including in trade unions. In view of the fact that certain provisions of the Act have been found to be unconstitutional inasmuch as they violate citizens’ right to freedom of association, the Constitutional Court of Ukraine notes that the requirements laid down by the International Covenant on Economic, Social and Cultural Rights and the ILO Convention [No. 87] have not been adequately incorporated in it.”

Basing its decision both on the text of its Constitution and on the provisions of relevant international treaties, the Constitutional Court of Ukraine decided the unconstitutionality of the articles of the Act on trade unions that had given rise to the litigation.

¹ ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); International Covenant on Economic, Social and Cultural Rights, 1966.