Informe provisional - Informe núm. 12, 1954

A. Analysis of the Complaints

1. 429. The complaints submitted contain the following main allegations:
   • (a) Mr. Alain Le Léap, Secretary-General of the General Confederation of Labour and Vice-Chairman of the World Federation of Trade Unions, was arrested illegally by the French Government in October 1952 for his activities against war and especially the war in Viet-Nam.
   • (b) Mr. Lucien Molino, Secretary of the French C.G.T, and Mr. André Tollet, Secretary of the Departmental Union of the Confederated Trade Unions of the Seine were also arrested in March 1953, while warrants for the arrest of Mr. Benoit Frachon, Secretary of the C.G.T, and Mr. Marcel Dufriche, the officer of the Confederation responsible for questions relating to young workers, were issued.
   • (c) The Government, in flagrant disregard of legal principles governing searches, in the absence of the leaders of the C.G.T, had files stolen from the premises of the C.G.T, had furniture and safes smashed and broken open on these premises and had funds belonging to organised workers seized.
2. 430. These obstacles to the normal functioning of the French C.G.T are, it is alleged, but one of the many measures of repressions taken against an ever-increasing number of trade union organisers in France and in the territories under French domination.
3. 431. The proceedings instituted against trade union organisers are said to be arbitrary and illegal in character and, through these organisers, the C.G.T and the entire French trade union movement are under attack.
4. 432. The complainants further allege that the French authorities have been unable to justify either in law or in fact the accusation that the leaders in question attempted to " demoralise the army and the nation " and committed " actions tending to prejudice the authority of France in the territories subject to that authority " (article 76-3 and article 8 of the French Penal Code). The texts upon which the indictment is based are said to be inapplicable. Indeed, article 76-3 of the Penal Code, which was introduced in French legislation by a Legislative Decree of 1940, provides, it is argued, that the indictment must prove that there is an attempt at demoralising the army and the nation; this attempt must be of a more or less secret character and show itself through deliberate acts perpetrated with the express intention of prejudicing national defence. This article, it is claimed, is not applicable in peacetime and had not been submitted within the proper time limit to the French Parliament for ratification, as the law requires in order to make it applicable. With respect to article 80 on " actions tending to prejudice the authority of France in the territories subject to that authority ", it is said that this article is not applicable to Tunisia, Morocco and Indo-China, since a Bill was introduced in 1950 to make article 80 applicable to these territories. Nevertheless the leaders of the C.G.T were indicted on the grounds of having made statements expressing solidarity with the peoples of these territories.
5. 433. Even if the texts referred to were applicable, it is alleged that the acts with which the leaders of the C.G.T are charged do not fall within the scope of this law. The charges laid against these persons refer to their " state of mind ", their supposed " intentions ", and their " language ". The French authorities thus reintroduced in France crimes of opinion and crimes of speech. The mere fact of opposing government policy is considered punishable by law. The acts of which the trade union leaders are accused have no " secret " character since the alleged acts are public speeches made in the course of trade union meetings and articles published in the trade union press, some of which were published a long time ago and had never before been the subject of legal proceedings. The leaders of the C.G.T did not act with the intention of prejudicing national defence but with the intention of defending the interests of the working class and of the people of France since they consider that the present policy of the French Government is contrary to the interests of France. The mere fact of issuing statements in favour of the right of self-determination is also held against them.
6. 434. A series of illegal and irregular measures are said to have been taken by the French authorities against the leaders of the C.G.T.: imprisoned trade union leaders are kept in preventive custody in flagrant violation of the principles of French law according to which any indicted person is assumed to be innocent until his guilt has been proved by due process of law; the trade union leaders concerned are treated as common law criminals and refused the status of political prisoners; this is a flagrant violation of the principle of the separation of powers since the proceedings instituted were the subject of ministerial consideration and a result of the searches was communicated to the Government.
7. 435. The measures taken against the trade union leaders in question are, it is claimed, an attempt by the French Government to force the workers by means of a series of police operations to submit to a policy which they consider contrary to their vital interests. Every trade union organisation is being denied the right to take up a position and to act in the defence of peace, while it is the accepted prerogative and a duty of every trade union leader to tell the workers that their interests lie in the struggle for peace in accordance with the tradition of the trade union movement. The same applies to the prerogative of trade union organisations to take up a position and to act in the interest of the defence of the independence of the peoples and of their right to self-determination. The defence of these principles is also accepted as a ground of accusation against these leaders.

B. Analysis of the Reply

1. 436. In its reply the Government, referring to the proceedings instituted before the Permanent Military Tribunal of Paris against several leaders of the General Confederation of Labour, points out that, since the case has been laid before a military tribunal and the preliminary inquiry has been started, it is impossible for the Executive Branch of the Government to interfere in the procedure. The Government further emphasises that the principle of the separation of powers, introduced in France by the Act of 16-24 August 1790, which provides for the setting up of an independent judicial system, is fully respected in France. The rules governing the procedure of military courts are based on this principle and the Military Code of Justice of 1928 effected a complete assimilation of the procedure of military courts with that of the ordinary civil courts. The persons subject to military law enjoy the same guarantees in respect of, inter alia, the right of defence and the right of appeal. The Code of 1928 does not, therefore, provide the Government with any means of laying down directives to military judges who have the task of carrying out a judicial inquiry.
2. 437. The Government declares, therefore, that in the present case the military examining judge, in complete independence and with all the information resulting from the preliminary inquiry at his disposal, ordered all searches and confiscations likely to aid in discovering the truth, drew up the necessary personal indictments and made a ruling on the penal status of the persons arrested under regular legal warrants.
3. 438. The accused have the right to put forward any legitimate arguments or to seek the annulment of any measure taken against them which they consider irregular. The legislation in force allows them to appeal against any of the examining judge's decisions and to submit through their counsels any memoranda or conclusions on which the court of appeal, which in the present case is the Lower Court of Appeal, will have to take a decision. The accused trade union leaders have made full use of this prerogative, especially by appealing against the successive decisions refusing bail. The Government further points out that, among the numerous incidents of procedure, it is appropriate to mention those which justified the decisions rendered on 30 July and 25 August 1953 by the Lower Court of Appeal of the Paris District. In the opinion of the Government these decisions-the first, which ordered a further inquiry, and the second, which requested that the accused should be set free on bail - are particularly worthy of consideration in view of the criticisms made by the World Federation of Trade Onions, since:
   • (a) the Lower Court of Appeal took note of both the importance and the gravity of the charges made against the accused in the course of the inquiry and the fact that several elements constituting " an undertaking of demoralisation " were brought out in the course of this inquiry;
   • (b) this High Court, before which counsel had laid numerous memoranda putting forward arguments in law, decided to postpone its decision on these until it is in a position to reach a conclusion in full knowledge of all the facts gathered during the inquiry.

C. C. The Committee's conclusions

1. 439. The Committee, noting that France is now involved in operations of war in Indo-China, considers that the question of determining whether French trade union leaders may, in such circumstances, demand the right to conduct a campaign against such operations of war in which their country is taking part raises " a political question directly related to international security ", which, in accordance with the principle defined by the Governing Body, on 22 November 1951 and endorsed by the Committee in its First Report, it would not appear appropriate, at first sight, for the I.L.O to discuss, because such an action on the part of the I.L.O. " would be inconsistent with its traditions and prejudicial to its usefulness in its own sphere ".
2. 440. The Committee recalls that, in a number of cases-for example, those relating to Iran (Case No. 6), Malaya (Case No. 30) and the Philippines (Case No. 22) -it has felt that it should have regard, when examining the allegations presented, to exceptional circumstances resulting from internal crises or operations of war.
3. 441. In the present case the complainants allege that the Government violated the free exercise of trade union rights when it arrested arbitrarily a certain number of leaders of the General Confederation of Labour of France and when it ransacked the premises of that Confederation.
4. 442. In its reply the Government did not submit detailed observations in respect of these allegations. It appears that the Government deliberately refrained from doing so in view of the fact that " since the case has been laid before a military tribunal and the preliminary inquiry has been started, it is impossible for the Executive Branch of the Government to interfere in the procedure ".
5. 443. In this respect the Committee notes that the principle according to which all persons indicted should receive a fair trial at the earliest possible moment-principle of which the Committee has on several instances stressed the importance appears to have been fully respected in this case since it is readily apparent from the statements made by the Government that the persons subject to military law enjoy, since 1928, the same guarantees in respect of, inter alia, the right of defence and the right of appeal as those enjoyed by persons subject to ordinary civil law. These persons have the right, in particular, to appeal against any of the examining judge's decisions and to submit through their counsels any memoranda or conclusions on which the Lower Court of Appeal will have to take a decision.
6. 444. The Committee notes especially that the Lower Court of Appeal set the accused free on bail after consideration of two appeals against the examining judge's decisions. It appears, therefore, that one of the main objections contained in the complaints, namely, the preventive detention of a certain number of trade union leaders, has now become pointless since these leaders are once again free to exercise their trade union activities.
7. 445. As to the basic reason for the institution of proceedings against the trade union leaders concerned and for the other measures which resulted from the proceedings, the Committee notes that the reason for the institution of these proceedings, in the opinion of the complainants, was the attitude of the persons concerned as regards the war in Viet-Nam. The complainants allege that the fact of denying a trade union organisation the right to act in the defence of peace and to entreat the workers not to submit to a policy which they consider contrary to their vital interests constitutes a violation of trade union rights. The Government pointed out that the Lower Court of Appeal, although it decided to postpone its decision on the case as a whole, had already taken note of both the importance and the gravity of the charges made against the accused as a result of the preliminary inquiry and the fact that several elements constituting " an undertaking of demoralisation " had been brought out in the course of this inquiry.

446. The Committee, while appreciating the reasons which have caused the Government to take the measures which it has taken, nevertheless considers that the pending judicial decision may make available to it valuable elements of information and, for this reason, recommends the Governing Body to postpone the examination of the case for the time being.