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

1. 289. In a communication dated 11 October 1995, the International Union of Food, Agricultural, Hotels, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) submitted a complaint of violations of trade union rights against the Government of France/French Polynesia. The IUF supplied additional information in a communication of 24 October 1995.
2. 290. The Government sent its observations in a communication dated 23 May 1996.
3. 291. France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). These two Conventions were declared applicable, without modification, to French Polynesia.

A. The complainant's allegations

1. 292. In its complaint of 11 October 1995, the IUF explains that its affiliate organization in Tahiti, A Tia I Mua, called a general strike on 6 September 1995. On that day, disturbances were witnessed at Tahiti-Faaa airport and in the city of Papeete. The IUF affiliate organization denies any responsibility for these disturbances.
2. 293. The complainant adds that, on Saturday 9 September, a sizeable gendarme detachment in combat gear as well as armed anti-riot police burst into the A Tia I Mua confederation's main office in Papeete, where the trade union's senior officials were preparing to hold a press conference on the events having taken place on 6 September. The General Secretary, Hirohiti Tefaarere, together with 15 members of the confederation, including eight members of the executive secretariat, were subjected to violent questioning and arrests.
3. 294. The further information supplied indicates that several trade union leaders (including Hirohiti Tefaarere), present at the headquarters of A Tia I Mua, were kicked and punched whilst on the trade union's premises. A representative of the Post Office and Telecommunications Union, Henri Temaititahio, reportedly sustained a truncheon blow on his left temple and lost consciousness. Subsequently, the detainees, including Cyril Lagayic, General Secretary of the Independent Trade Unions of Polynesia (CSIP), were handcuffed and packed, faces to the floor, into a military truck and driven to a police barracks.
4. 295. The IUF states that, upon arrival at the barracks, the detained trade unionists were forced, in humiliating conditions, to kneel handcuffed with their hands behind their backs, faces to the ground. Henri Temaititahio was apparently released on the same evening, but collapsed upon leaving the police barracks. According to the IUF report, he was driven to the territorial hospital on 11 September in a serious condition, with the left side of his body suffering from progressive paralysis. Five detainees, including Cyril Lagayic, were released after police questioning. The others were brought before an investigating magistrate. The public prosecutor stated that they were liable to prison sentences of 20 years. Three trade unionists have reportedly been released on bail and eight others, including Hirohiti Tefaarere, questioned and held at the Nuutania prison.
5. 296. In its communication dated 24 October 1995, the IUF states that, on 23 October, six persons were still being detained at the Nuutania prison. These were Hirohiti Tefaarere, General Secretary, Ronald Terorotua, Irving Paro, both Deputy General Secretaries, Albert Tematahotoa, CEGELEC (hotel service) representative, Henri Temaititahio, deputy (post office) representative of A Tia I Mua and Emile Teuahau, SMPP/SOGEBA (construction) member. The IUF reports that they had been maltreated and had lodged an official complaint with the Papeete court. More specifically, the IUF indicates that Henri Temaititahio was hospitalized from 11 to 20 September and, again, from 2 to 16 October, the date upon which he was imprisoned. On 11 September he was admitted to the emergency ward of Mamao hospital after consulting his private medical practitioner, given that the right side of his body was suffering from progressive paralysis resulting from violent blows to his head and neck. By 23 October, he was no longer in a state of paralysis, but he wears a surgical collar and still suffers from loss of memory. The IUF adds that, on 12 September, three anti-riot police vans proceeded to the home of Henri Temaititahio and entered his house before the legally appointed hour, in the presence of his wife and four children.

B. The Government's reply

1. 297. In its letter dated 23 May 1996, the Government explains that the A Tia I Mua trade union called a general strike to be held on 6 September 1995. The action took the form of an occupation of the Tahiti Faaa international airport's runway and, subsequently, of acts of violence against the police on duty there, damage to aircraft awaiting departure and acts of arson.
2. 298. A judicial inquiry was opened with a view to investigating these incidents. The investigating magistrate in charge of the case issued a summons and committal order on the following grounds: disruption of air traffic; wilful damage to air traffic buildings and installations as well as to an aircraft at the airport; armed or unarmed assault upon police officers, resulting in their being temporarily unfit for work for periods of less than, or exceeding, one week; destruction by incendiary device, or other collective act of arson, of property and buildings belonging to third parties; theft, including by breaking and entering; failure to render assistance to persons in danger; failure to prevent bodily assault; damage to public buildings by collective arson. These acts are addressed by, and punishable under, articles L.282-1 and L.282-4 of the Civil Aviation Code as well as articles 309, 434, 435, 379, 381, 382, 63 subparagraphs 1 and 2, 257 and 257-3 of the Penal Code.
3. 299. Hence, the Government states that certain persons belonging to the A Tia I Mua trade union were charged and remanded in custody at the Nuutania prison pursuant to a judicial order issued in respect of common law offences.
4. 300. With reference to the alleged acts of police violence committed in connection with the arrests of the persons concerned, the Government reports that the investigating magistrate in charge of the case has opened an inquiry, the conclusions of which are as yet unknown. In the Government's view, there appears, to date, to be no substantiation of this allegation. The Government adds that, whilst in police custody, the persons concerned underwent a physical examination which revealed nothing unusual.
5. 301. On 12 December 1995, the Papeete Court of Criminal Appeal decided to release the persons who had been remanded in custody since 10 September 1995, including Mr. Hirohito Tefaarere who had been placed under court supervision, deprived of the right to leave French Polynesia and forbidden to make any public statement regarding the reasons for his detention.
6. 302. Finally, the Government states that free expression and opinion have always been respected in French Polynesia. The Government will continue to guarantee these rights both during the forthcoming general elections to the territorial assembly and also in all other circumstances.
7. 303. In an appendix to its communication, the Government adds various documents, including press cuttings reporting on the essentially political motives (halting of the nuclear tests) behind the general strike and the violence committed on 6 September 1995; they also include police statements categorically denying allegations of torture and maltreatment inflicted upon trade unionists.

C. The Committee's conclusions

1. 304. The Committee observes that this case concerns various measures taken by the authorities in response to violent clashes which occurred during a one-day general strike organized by the A Tia I Mua trade union. The complainant reports that the police burst into the trade union's main office, arrested, questioned and imprisoned trade union leaders and maltreated the trade unionists in the course of questioning.
2. 305. In its justification of these measures, the Government speaks of acts of violence, committed during the strike, both against public and private property, in particular at Tahiti international airport as well as against police officers. In its reply, it also supplied documents to suggest that the general strike was called for essentially political motives, i.e. as a protest at the resumption of French nuclear testing.
3. 306. It is incumbent on the Committee to determine, in accordance with its principles and practice, whether, in particular, the measures or action taken by the authorities were occasioned either by trade union activities or, conversely, by activities outside the trade union sphere and which were either prejudicial to public order or political in nature (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 115).
4. 307. In examining the documents at its disposal, the Committee has noted that A Tia I Mua mentioned the nuclear testing issue in its call for a general strike. Nevertheless, other claims were also made, including an increase in the minimum wage and a reduction in the health insurance scheme deficit. Hence, this general strike appears to have been called both for motives pertaining to a more strictly political rather than trade union sphere as well as for other objectives which, however, are part of the regular activities of a workers' organization.
5. 308. In any event, the demonstration held at the international airport and the resulting violence prompted the authorities to take various measures. Thus, the police entered the A Tia I Mua trade union's premises and proceeded to question the trade union leaders gathered there. In this respect, the Committee recalls that the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so (see Digest, op. cit., para. 175).
6. 309. The Committee notes in this case that, in the documents supplied by the Government, reference is made to a statement by the colonel in command of the gendarmerie unit of French Polynesia to the effect that the questioning conducted on 9 September of trade unionists took place "as part of the inquiry instituted by court order, following the rioting of 6 and 7 September". Moreover, "the arrests were conducted by officers of the criminal investigation department and under judicial supervision in accordance with the security procedures laid down by the relevant regulations". In its reply, the Government also mentions the issue of a summons by the investigating magistrate in charge of the case. It therefore appears that the action conducted by the police on the trade union's premises took place by court order as part of the inquiry into the incidents that occurred during the general strike.
7. 310. The complainant made reference to mistreatment and acts of violence committed by the police during the questioning of trade unionists. The Committee notes that the police, via their commanding officer, categorically denied these allegations and state that, whilst in custody, the persons in question underwent a physical examination which revealed nothing unusual.
8. 311. The Committee expresses concern at the serious allegations of mistreatment of trade unionists and recalls that in alleged cases of mistreatment or in the event of assaults on the physical or moral integrity of individuals, it has considered that a judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts (see Digest, op. cit., para. 53). In this case, the Committee notes that the investigating magistrate in charge of the case opened an inquiry, the conclusions of which are not as yet known. Given the importance of a climate untainted by violence, pressure or threats of all kinds for the free exercise of trade union rights, as well as the contradictory information contained in the statements by the complainant and the Government on the truthfulness of these allegations, the Committee requests the Government to keep it informed of the inquiry's results.
9. 312. Finally, the complainant organization alleged that the authorities arrested, questioned and imprisoned several trade union leaders. These measures were confirmed by the Government. The Committee notes that the Government listed the grounds for the arrests and legal action. All of these grounds are connected with acts of violence committed in the course of the demonstration. In this respect, the Committee observes that the complainant organization itself does not deny this violence inasmuch as it makes reference to disturbances, for which it claims the trade union bore no responsibility.
10. 313. In these circumstances, the Committee believes that the authorities were justified in instituting a judicial inquiry into the incidents connected with the general strike and that it was legitimate for the leaders of the trade union organizing the strike to be questioned in the course of this inquiry. Furthermore, the Committee takes note of the fact that some of these leaders were brought before an investigating magistrate and remanded in custody. They were subsequently released by court decision, although the General Secretary of the trade union was placed under judicial supervision and deprived of the right to leave French Polynesia. It therefore appears to the Committee that the said trade union leaders, after being held for questioning, were granted all the guarantees of due process in the course of an inquiry justified by acts which went beyond the bounds of normal, legitimate trade union activities.