Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 272, Juin 1990

1. 171. The Committee examined this case at its meetings in February and November 1988 when it submitted interim reports to the Governing Body (see, respectively, 254th Report, paras. 474-492, approved by the Governing Body at its 239th Session (February-March 1988); and 259th Report, paras. 553-563, approved by the Governing Body at its 241st Session (November 1988)).
2. 172. The Government subsequently sent certain information and observations in communications dated 26 July 1989 and 6 April 1990; the complainant organisation submitted further information and made additional observations in a communication dated 7 January 1990.
3. 173. Bahrain 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. Previous examination of the case

1. 174. The allegation which remained pending after the last examination of this matter by the Committee concerned the arrest and detention of a trade union leader, namely Mr. Ibrahim Al Kassab, President of the General Committee of Bahrain Workers, employed, according to the complainant, by the ALBA Aluminium Company.
2. 175. At its meeting in February 1988, the Committee had recalled the importance of a prompt and fair trial by the judiciary in all cases of arrest and detention of trade unionists and requested the Government to supply information on the situation of Mr. Ibrahim Al Kassab.
3. 176. In a letter dated 14 June 1988, the Government had admitted that the Bahrain public security forces had arrested Mr. Ibrahim Al Kassab, but stated that he had stood trial in Case No. 1987/State Security 1/36. According to the Government, the court had handed down a verdict of guilty on 26 October 1987 and had sentenced him to five years' imprisonment, to count from the date of his arrest.
4. 177. The Government maintained that this matter did not concern the right to organise and the right to work, as alleged by the complainant. It added that Mr. Al Kassab had not been detained or arrested through the enforcement of any exceptional measures, but that he was accused of having committed a criminal offence, brought to trial under the Penal Code of the State of Bahrain and sentenced to a term of imprisonment.
5. 178. At its November 1988 meeting, the Committee had recalled that when, in reply to complainant's allegations that trade union officials or workers have been arrested for trade union activity, governments maintain that the persons in question were arrested and sentenced for criminal offences without mentioning the nature of the offences, the Committee always requests the government to specify the exact charges brought against these persons and to supply a copy of the judgement with the reasons adduced.
6. 179. In order to be able to reach conclusions on this matter in full knowledge of the facts, the Committee had therefore requested the Government to specify the facts which had given rise to the arrest of Mr. Al Kassab, to communicate the charges brought against him, to indicate the section of the Penal Code under which he had been sentenced and to supply a copy of the judgement concerning him (Case No. 1987/State Security 1/36), with the reasons adduced therefor.
7. 180. The Committee had also requested the complainant to provide all complementary information at its disposal in this case.

B. The Government's reply

1. 181. In a communication dated 26 July 1989, the Government sends a copy of the judgement requested. It concerns 18 persons, but its contents, in relation to Mr. Al Kassab, may be summarised as follows.
2. 182. First, Mr. Al Kassab and all the other accused are charged with belonging to the Bahrain National Liberation Front which adopts communist principles and resorts to revolutionary violence, force, threats, the use of arms and explosives, crimes, murders, strikes, demonstrations, agitation and other illegal means to implement its plans, namely to destroy the State's political, social and economic system and to replace it by a communist regime, to grant authority to the working class and to support it to the detriment of other classes so that it might seize power. Such activity is subject to penalties laid down in section 159/1-3 of the Penal Code.
3. 183. Secondly, Mr. Al Kassab and all the other accused are charged with illegal possession of pamphlets and publications which attack and libel the State's political, social and economic systems and accuse the authorities of tyranny, oppression and corruption. These publications thus advocate and encourage the destruction of the said system by use of force, threats and other illegal methods designed to replace the existing regime by an illegal regime; this is subject to penalties laid down in sections 64 and 161 of the Penal Code.
4. 184. Three further charges are made against some of the accused, including Mr. Al Kassab. They are accused of having:
   • - encouraged and advocated, by recourse to force, threats and other illegal methods, the overthrow and change of the State's political, social and economic system by distributing pamphlets and publications to the population and in public places; these publications attack and libel this system, accuse the authorities of tyranny, oppression and corruption and incite the population to oppose the authorities and the said regime in order to bring it down and replace it by an illegal regime; this is subject to penalties laid down in section 160 of the Penal Code;
   • - called for adhesion to the Bahrain National Liberation Front, which is punishable by virtue of section 159/1-2 of the Penal Code;
   • - been in possession of equipment to print or duplicate the above-mentioned publications, which is liable to penalties laid down in section 64/161 of the Penal Code.
5. 185. The court concluded that the accused were guilty to various degrees, basing its judgement on their confessions recorded in written statements they had drawn up in the presence of the police and the judge, and on the evidence found during searches (publications, pamphlets, printing and duplication equipment, notably a computer at Mr. Al Kassab's house). For his part, Mr. Al Kassab was found guilty on five of the above-mentioned charges and sentenced to five years' imprisonment.
6. 186. The court pointed out in its judgement that the accused had denied the actions with which they were charged and the genuineness of the confessions, maintaining that they had been wrung out of them under physical and moral pressure from the police. However, it ruled that these confessions had been voluntarily and freely made to the judge, as there was no evidence to the contrary.
7. 187. Furthermore, the court noted in its reasoning that:
   • - the Constitution guarantees to individuals, within the confines of the law, freedom of opinion and expression, as well as freedom of association which is based on national principles, provided that the objectives of associations are legal and the means used to attain them peaceful;
   • - the Constitution bans the setting up of associations which set out to destroy the state system established in accordance with the Constitution and also bans recourse to force, threats and other non-peaceful means enabling said associations to attain their objectives;
   • - an association or organisation does not need to call openly for recourse to such methods; it is enough that the plans they intend implementing imply they do resort to such methods; this is the case of the Bahrain National Liberation Front, as borne out by the publications and pamphlets it prints, which call on the population to oppose the authorities and undermine them, and encourage workers to go on strike, although these are activities banned by the Penal Code of Bahrain.

C. New information

1. 188. In its communication of 7 January 1990, the complainant organisation points out that according to the charge sheet (of which it encloses a copy), Mr. Al Kassab was sentenced for trade union activities, although the document does mention other charges. In the bill of indictment, Mr. Al Kassab is charged with:
   • - having belonged to an illegal workers' organisation which advocated that trade union and workers' activities should resort to force, threats and other illegal means, thus infringing the Penal Code;
   • - having been in possession of pamphlets undermining the political, social and economic system and which described the present regime as tyrannical and corrupt, thus infringing the Penal Code;
   • - having distributed illegally in public places pamphlets calling for the establishment of trade unions and containing attacks against the regime, thus infringing the Penal Code;
   • - having called for adhesion to an illegal workers' organisation, thus infringing the Penal Code.
2. 189. The complainant organisation also encloses the comments of the Federation of Workers of Bahrain, alleging that there was a flagrant violation of the Constitution during the course of this case. According to the Federation, the judgement of the Supreme Civil Appeals Court is illegal in so far as:
   • - the case was immediately referred to the Supreme Court, which excludes any subsequent appeal;
   • - the hearings were held in camera;
   • - there were no lawyers during the pre-trail examination of the case;
   • - the confessions of the accused were obtained under torture;
   • - the Public Prosecutor's Office is under the Ministry of the Interior, which is contrary to the principle of the separation of powers.
     • Furthermore, the Federation points out that Mr. Al Kassab was sentenced in spite of the total lack of material proof - apart from the computer and floppy discs seized which are not forbidden possessions - and that the other allegations are not supported by any witness's account or documentary proof.
   • 190. The International Confederation of Arab Trade Unions (ICATU) finally states that Mr. Al Kassab is at present detained in Djo prison, in a desert area near the sea; the humidity and heat in this area make life unbearable for the prisoners, who are subjected to continuous harassment and infringements of their human dignity. For the slightest error, whether genuine or invented, they are deprived of their right to take a walk or to medical care; they are sometimes even prevented from washing or from fulfilling their natural physiological needs.
3. 191. In its letter of 6 April 1990, the Government refers to its communication of 26 July 1988 and merely reaffirms that the allegations of the complainant organisation are false and misleading.

D. The Committee's conclusions

1. 192. First of all, the Committee notes the radically differing description of the charges against Mr. Al Kassab given by the two parties. According to the Government, Mr. Al Kassab was engaged in subversive political activities. For its part, the International Confederation of Arab Trade Unions maintains that Mr. Al Kassab was sentenced in spite of the fact that he was only carrying out normal trade union activities. Moreover, the assessment of the wording of the bill of indictment varies in the same way. According to the translation of the judgement of 29 October 1987, the authorities mainly reproach Mr. Al Kassab for belonging to the Bahrain National Liberation Front, of communist allegiance, which advocates not only revolutionary violence but also recourse to strikes, demonstrations, etc. From this standpoint, Mr. Al Kassab's trade union activities in the strict sense of the word could be viewed, according to the Government, as part of an overall strategy to bring down the present regime. However, according to the translation of the report of the Federation of Workers of Bahrain submitted by the International Confederation of Arab Trade Unions on 7 January 1990, the bill of indictment merely accuses Mr. Al Kassab of belonging to an illegal workers' organisation and of carrying out various actions to promote the aims of this organisation.
2. 193. Despite the additional information received, the Committee does not unfortunately have enough cogent facts at its disposal to be able to accept one or other version as to the real nature of the activities that are impugned against Mr. Al Kassab. The Committee nevertheless would recall several well-established principles in this respect. First, it is not competent to consider purely political allegations; it can, however, consider measures of a political character taken by governments in so far as these may affect the exercise of trade union rights. Secondly, under the terms of Article 8 of Convention No. 87, workers and employers and their respective organisations, like other persons or organised collectivities, are bound to respect the law of the land, provided that it does not impair the guarantees provided for in the Convention which implies compliance with basic rights, and in particular freedom of opinion expressed through speech and the press. Thirdly, even when trade unionists are charged with political or criminal offences which, according to the Government, have no relation to their trade union functions, they should benefit from normal judicial proceedings, which implies that they must be informed of the charges brought against them, have adequate time for the preparation of their defence, be able to communicate freely with the counsel of their own choosing and have the right to a prompt trial by an impartial and independent judicial authority.
3. 194. The Committee wishes to stress the importance it attaches to this third point. As it has already mentioned, the safeguards of normal judicial procedure should not only be embodied in the law, but also applied in practice (Digest of decisions and principles of the Committee on Freedom of Association, third edition, 1985, para. 112); in other words, justice must not only be done but it must also be clearly seen to be done. Furthermore, any arrested persons, including trade unionists, should be presumed innocent until proved guilty after a public trial during which they have enjoyed all the guarantees necessary for their defence (Digest, para. 123). And it would seem from the allegations - that have not been refuted - that Mr. Al Kassab's trial was held in camera and that he did not benefit from the services of a lawyer; furthermore, Mr. Al Kassab retracted his confessions, coerced from him under physical and moral pressure from the police. Finally, the Federation of Workers of Bahrain stresses the absence of any material evidence and witnesses' accounts to support the charges made against the accused. The Committee therefore considers - if only on this account - that Mr. Al Kassab did not enjoy all the guarantees necessary for his defence during a public and proper trial.
4. 195. The Committee, noting that Mr. Al Kassab, who was sentenced to five years' imprisonment from the date of his arrest - i.e. 13 July 1986 (see 254th Report, para. 186) - has already been detained for nearly four years under particularly trying conditions, recommends the Government to take the necessary measures to release Mr. Al Kassab as soon as possible.