Rapport intérimaire - Rapport No. 310, Juin 1998

1. 393. The complaint in this case appears in a communication from the Union of Guianese Workers (UTG) dated 3 June 1997. The Government sent its observations in communications dated 2 March and 19 May 1998.
2. 394. France has ratified the Right of Association (Non-metropolitan Territories) Convention, 1947 (No. 84), 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) and has declared these Conventions applicable without modification to French Guiana.

A. The complainant's allegations

1. 395. In its communication dated 3 June 1997, the Union of Guianese Workers (UTG) makes a complaint to the ILO alleging infringement of freedom of association and in particular of Articles 3 and 8 of Convention No. 87. It alleges the arrest and subsequent deportation of four trade union leaders and activists as well as eight young Guianese in the months of April and May 1997, which it alleges was intended to discredit and reduce its influence.
2. 396. The UTG refers to the following arrests:
3. -- 11 April 1997, Alain Michel, member of the UTG trade union of posts and telecommunications, and four young persons, Orlando Clet, Charles Cenol, Bernard Rifort-Delem and Maurice Ho Tram Foo, were arrested and detained. The legislation regulating detention was not respected: they were allowed no telephone call to a person of their choosing; no visit by a doctor; no visit by their lawyer after 20 hours' detention; 12 April, they were deported by military plane to Martinique, to the Ducos prison, before the end of the period of 20 hours' detention. They were not able to meet with their lawyers;
4. -- 18 April, the young Thierry Blezes was arrested and deported to Martinique in the greatest secrecy on 20 April. The rights of the defence were allegedly not respected;
5. -- 22 April, at 5.55 a.m., Jean-Victor Castor, secretary responsible for training in the UTG Central Office, was arrested at his home without a court order; the means used to do so were substantial: two mobile guard vans and three disguised police cars, telephone lines ripped out, meticulous search of the premises;
   • -- the same day, Fabien Canavy, secretary-general of the local union of Cayenne and member of the UTG Central Office was questioned at his place of work at 6.30 a.m., with a similar use of force, and taken to his home which was searched;
   • -- Jean-Claude Ringuet, secretary of the UTG union of community officials of Cayenne, on learning about the police visit to his home and the search for him which was under way, went to the police station the same day around 1 p.m., accompanied by the mayor of Cayenne and several work colleagues, where he was arrested;
   • -- the young Prevot was arrested at his home on 23 April around 6 a.m., in identical conditions to those of Jean-Victor Castor.
     • The latter were allowed to see their lawyers at the end of the 20 hours of detention and were deported on 24 April at 5 a.m. to the Ducos prison in Martinique by military vessel without anyone being informed (either family or lawyer). The medical kit belonging to one of the trade union leaders, Jean-Claude Ringuet, who suffers from diabetes, and which was brought to the police station by his wife, was not accepted and he reportedly became ill in the office of the examining magistrate on his arrival at Fort-de-France:
   • -- since then, two other young persons, Pascal Cippe and Michel Marcel, were arrested and deported to Martinique to the Ducos prison, and Maurice Ho Tram Foo and Bernard Rifort-Delem were secretly placed in two different prisons in Guadeloupe.
6. 397. The offences alleged by the French magistrates to justify the imprisonment of the UTG activists are:
   • -- that in Cayenne, on the night of 12-13 November 1996, they participated in acts of violence with weapons, which did not result in a total work incapacity of the victims for more than eight days, committed by several persons or accomplices against the acting Government Procurator in Cayenne, as well as against members of his family and friends at his home;
   • -- in Cayenne, on the night of 12-13 November 1996, they committed acts of damage as an organized group against property belonging to a third party through the use of incendiary substances and likely to pose a danger to persons.
7. 398. According to the complainant organization, the investigation was carried out over a period of three months by a magistrate from Cayenne appointed by the Procurator of the Republic of Cayenne, and then transferred on the grounds of a conflict of interests. The magistrates of Fort-de-France regularly sit in Cayenne on the Court of Appeal of Fort-de-France, which is also the appeal jurisdiction of the court of Cayenne. The file is essentially made up of contradictory statements which were revoked by the witnesses who alleged that they were obtained by force. The main piece of evidence which allowed the proceedings to be initiated was an anonymous statement. The Procurator of the Republic concerned was reported to have said that he had seen no one. A person known in the neighbourhood was said to have seen young persons around the house throwing incendiary devices, without having recognized any of the persons present, although the four trade union activists in question are very well known. Most of the witnesses are young prisoners who have all allegedly retracted their statements. The complainant organization insists that trade union officials would have no reason or interest in burning the house of a Procurator of the Republic.
8. 399. The complainant then recalls the events which preceded the arrests. It explains that in November 1996 high-school students from Guiana went on strike for several weeks to obtain the establishment of a registry and the means for providing a good education and that from the beginning the UTG gave its support to the student movement, since the claims being made had, for several years, been endorsed by the Trade Union of Education Workers of Guiana/UTG. On the evening of 8 November 1996, while representatives of the students were negotiating with the prefecture, the prefect ordered the mobile guard to disperse the young persons and their parents who were demonstrating outside calmly as they awaited the result of the negotiations. Several two-wheeled vehicles, belonging to the students, were burned by the mobile guard. The demonstrators were beaten with truncheons without warning and tear gas was fired directly at the demonstrators. Several nights of rioting followed. One young person was seriously injured by a shot fired at point blank range by a police officer. Others were injured less seriously by grenades and direct shots of tear gas.
9. 400. On 9 November 1996, the UTG called for a general strike on 13 November 1996 against the repression and to obtain the adoption of the claims. More than 5,000 persons participated in the demonstration of 13 November, marching through the streets of Cayenne in a calm and dignified manner. Meanwhile, during the night of 12-13 November 1996, violent clashes occurred between young persons and the mobile guard. Several young persons arrested during the riots of the preceding days were sentenced by the court of Cayenne following a summing up by the Procurator of the Republic which, according to the complainant organization, was the final straw. That night, incendiary devices were hurled against the residence of the Procurator of the Republic, burning his door.
10. 401. Negotiations were held with the Ministers of National Education and Overseas Department and Territories throughout the day of 20 November 1996. At the end of the afternoon, the demands of the students and Guianese population were met.
11. 402. The complainant also provides an historical review of the situation. It explains that the UTG is a young central organization which was set up in November 1967. At its fifth congress in 1985, the guidelines which it adopted enabled it to develop and become stronger. On several occasions it questioned the State about its economic decisions during the major state works between 1988 and 1992, following the non-respect of labour legislation and its alleged accommodating attitude shown to major French enterprises, which resulted in a number of disputes and strikes; it has organized various actions, including strikes in October 1992 and January 1994 in association with other trade union organizations grouped together within the Unitary Trade Union Movement (MSU) or the Conference of Anti-colonialist Trade Unions of French Colonies (CSACF). Major labour disputes also occurred in 1996 and at the beginning of 1997, in particular in the local public service and transport. It was at this time that the repression began against the main leaders of the UTG. The UTG emphasizes that it had gained the majority on the Strategic Committee for the States-General of Real and Lasting Economic Development when its activists were arrested.
12. 403. Finally, the UTG recalls that from 1973, at the time of its third congress, it has campaigned for the independence of Guiana and has confirmed this position at its subsequent congresses.
13. 404. Thus the complainant would like the Government to explain its illicit attempts to limit freedom of association in Guiana and it demands the immediate release of trade union activists and young persons who have been imprisoned.

B. The Government's reply

1. 405. In its communication of 2 March 1998, the Government recalls that France has ratified Convention No. 87 and that this instrument, in the same way as freedom of association which is guaranteed by the national Constitution, applies, without any restriction, to all the territory of the Republic of which the overseas departments are part, including Guiana. The Government, in referring to the General Survey of the Committee of Experts on the Application of Conventions and Recommendations of 1994 on freedom of association and collective bargaining, also recognizes the interdependence between civil liberties and trade union rights.
2. 406. The Government points out as regards the occupational organization status of the UTG under Articles 8 and 10 of Convention No. 87 that the UTG itself recalled the position which it has adopted since 1973 calling for the independence of Guiana, a department which is not, under the French Constitution, divisible from the Republic. Three consequences result from this:
   • -- the UTG believes that it has not only an economic and social mission, as stated in the 1952 resolution concerning the independence of the trade union movement, but a political mission which is mixed with the promotion and defence of the interests of Guianese workers;
   • -- by its separatist choice, the UTG does not respect the constitutional order, although it is required to do so under the provisions of Article 8(1) of Convention No. 87 which states that "in exercising the rights provided for in this Convention workers and employers and their respective organizations ... shall respect the law of the land";
   • -- the criticism levelled by the UTG against the French State does not refer only to a particular aspect of its economic and social policy, whether national or local, but to the exercise of its sovereignty over a portion of its territory. Such an activity is in no way one of the many political activities stemming from trade union activity which are mentioned in the General Survey of the Committee of Experts.
3. 407. The action of the UTG is thus both trade union and political. Thus the UTG was the initiator of the first Conference of Anti-colonialist Trade Unions of the French Colonies (CSACF) which groups together various so-called "pro-independence" trade union organizations of French overseas territories. The positions of the UTG are broadcast by a local radio with similar views and some of its leaders are the heads of local pro-independence parties, one of which has a clear relationship with the UTG.
4. 408. Successive French Governments, accepting the interdependence between trade union rights and civil liberties, and in particular freedom of expression and association, have refused to take any action whatsoever against the UTG as authorized by the provisions of article L.481-1 of the Labour Code. Although the trade union action of the UTG goes beyond the simple defence of material and moral rights, whether collective or individual, of the persons covered by its statutes and the even incisive criticism of economic and social policies, the French authorities have always allowed it to express its views, even when the UTG has acted as a counter-power to the central State.
5. 409. The account of its participation in the States-General of Real and Lasting Economic Development, which appears in the complaint, is in this respect emblematic. These States-General made up of colleges representing the various sectors of Guianese civil society (wage-earners, socio-occupational groups, political parties) raise "the question of a change in status as a fundamental condition for genuine economic development". One of the officials of the UTG, Mr. Pindard, represents the college of (pro-independence) political parties among the officers of the strategic committee which directs the work of various colleges, and which is responsible for establishing guidelines.
6. 410. The overlap between trade union action and political action by the UTG is therefore total. The UTG participates in the States-General which debate the links between the departmental status of Guiana and its economic and social development; one of its leaders has been elected by a college grouping together political parties, which clearly proves that he is a member of one of them.
7. 411. As regards the relationship between freedom of association and the allegedly arbitrary arrests, the UTG complaint establishes a cause-and-effect relationship between the arrests made in April and May 1997 and a desire by the Government to reduce or discredit its influence. For the Government, this argument is mistaken:
   • -- according to the UTG, the Government allegedly proceeded to make arbitrary arrests of its activists, but it itself establishes a link between the riots of November 1996 in Cayenne and these arrests;
   • -- the UTG complaint does not allege that these riots had a trade union origin. On the contrary, in its complaint, the UTG states that the demonstrations by students, which soon degenerated, "have its support", which means that they were not organized by the UTG. The circumstance, supposing that this were the case, that the striking students were making the same claims that had been made for several years by the UTG education workers' trade union, would suggest rather the autonomy of the student movement;
   • -- the UTG states that on 9 November 1996 it called for a demonstration which took place on 13 November without any incident.
     • This summary shows that the UTG was not a direct party to the negotiations which were held on 8 November between the representative of the State and the students and in the demonstrations which followed. This situation shows that the Government respected freedom of association and that it has not invoked reasons of public order to prohibit it and thus limit the existence of the trade union rights protected by Convention No. 87:
   • -- finally, the UTG in its complaint recalls that the attempted burning of the residence of a Procurator of the Republic was not an instance of trade union action in its understanding of the term.
     • It is clear from the above that the UTG cannot claim that the events in question had a trade union origin or that it participated in them as such.
   • 412. As regards whether the arrest of some members of the UTG, who participated in these movements in a manner which was unrelated to trade union activity, is, as alleged, a serious violation of the principles of freedom of association, the reply can be found, according to the Government, in the General Survey of the Committee of Experts which stipulates:
     • The arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association. While being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention.
   • 413. The Government notes that rioting is not a legitimate form of trade union activity and that the UTG did not participate in this as such. If some of its members took part in violent demonstrations, it was in a capacity other than that of trade unionists and therefore the question of the application of Convention No. 87 to the case no longer arises.
8. 414. The Government believes that the UTG is acting as much as a political counterpart of the central State as a trade union organization. However, fully appreciating the link which exists between trade union activity and civil liberties, such as freedom of expression, it has always left the UTG free in both its words and its acts provided that they maintain a relationship, albeit a tenuous one, with freedom of association.
9. 415. In conclusion, the Government in replying to the UTG allegations states that the doctrine of this organization is contrary to the principle of the indivisibility of the Republic, whose authorities have ratified Convention No. 87, that the UTG is using this Convention for its own ends and that it should be noted that it does not respect legality, as required by Article 8(1) of the Convention, thus raising the question of whether the UTG, in its doctrine and practice, is an "organization", as defined by Article 10 of the Convention. The Government recalls in this connection that the General Survey stipulates that:
   • Freedom of association implies, for employers' and workers' organizations, the right to organize freely their activities and formulate programmes of action to defend all the occupational interests of their members in accordance with the law of the land.
10. 416. In its communication dated 19 May 1998, the Government indicates that all the trade unionists concerned have now been released. The Government specifies that: Alain Michel, convoked on 11 April 1997 and imprisoned on 12 April, was released on 15 September 1997; Jean Victor Castor, convoked on 22 April 1997 and imprisoned on 24 April, was released on 27 June 1997, convoked again on 21 July 1997 and imprisoned on 22 July, was finally released on 6 August 1997; Fabien Canary, convoked on 22 April 1997 and imprisoned on 24 April, was released on 29 April 1997; Jean-Claude Ringuet, convoked on 22 April and imprisoned on 24 April, was released on 26 June 1997.

C. The Committee's conclusions

1. 417. The Committee notes that the allegations made in this case concern the arrest and detention of trade union leaders and activists. It notes that the observations of the complainant and the Government on this case differ on several points.
2. 418. For the complainant, the arrest and deportation of four trade union leaders and activists as well as eight young Guianese persons in the months of April and May 1997 were designed to discredit the organization and destroy its influence. The complainant organization explains that the arrests were due to the fact that the trade union officials and activists, designated by name, had participated in a strike movement in November 1996, i.e. six months before their arrests, in support of claims made by a high school student movement which wanted to obtain the establishment of a Registry and the means for providing a good education. According to the complainant, these claims had for a number of years been made by the Trade Union of Education Workers of Guiana affiliated to the UTG. These claims were furthermore satisfied by the public authorities.
3. 419. The complainant acknowledges that acts of violence were committed during the demonstrations of November 1996, but it categorically denies that the trade union officials and activists arrested six months later were implicated in this violence.
4. 420. The complainant also acknowledges having campaigned, since 1973, for the independence of Guiana and raised in 1997 the question of a change in the status of Guiana as a fundamental condition for a genuine economic development of the territory.
5. 421. All these elements allegedly resulted in the arrest and subsequent deportation of the UTG trade unionists, mistakenly accused of having participated in the burning of the door of the house of the Procurator of the Republic of Cayenne during the student demonstrations of November 1996.
6. 422. For the Government, on the other hand, the question arises of the occupational nature of the UTG, in the sense used in Convention No. 87, namely that workers' organizations have the right to organize their activities and formulate their programme of action with a view to defending all the occupational interests of their members in accordance with the law of the land. The UTG itself refers to various positions and action which reflect a total overlap between trade union action and political action.
7. 423. Thus for the Government the participation of the UTG members in the violent demonstrations which took place in Cayenne in November 1996 cannot be considered as the exercise of trade union activity, even of a distorted kind, and was merely the expression of personal initiative or instructions given by political parties. The Government believes that there is no link between the arrest of persons suspected of having committed criminal offences and the infringement of Convention No. 87.
8. 424. The Committee notes that the Government provides observations on the political nature of certain acts and positions of the complainant, but deeply regrets that it refers only generally to the criminal offences allegedly committed by the trade union officials and activists of the UTG and other persons who have been arrested and deported since April-May 1997. The Government does not state whether these persons are still the subject of judicial proceedings. In this connection, the Committee recalls that the replies from governments against whom complaints are made should not be limited to general observations. (See Digest, op. cit., para. 21.) The Committee notes, however, that the trade unionists in question -- Alain Michel, Jean Victor Castor, Fabien Canary and Jean-Claude Ringuet -- have now been released.
9. 425. Noting the observations by the Government on the UTG, the Committee recalls that the fundamental objective of the trade union movement should be to ensure the development of the social and economic well-being of all workers and that the occupational and economic interests which workers and their organizations defend do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. (See Digest, op. cit., paras. 27 and 29.)
10. 426. As regards the allegations concerning the arrest and deportation of trade union leaders and activists of the UTG, the Committee recalls that the prolonged detention of persons without bringing them to trial because of the difficulty of securing evidence under the normal procedure is a practice which involves an inherent danger of abuse; for this reason it is subject to criticism. (See Digest, op. cit., para. 90.) It recalls that it should be the policy of every government to ensure observance of human rights and especially of the right of all detained or accused persons to receive a fair trial at the earliest possible moment. (See Digest, op. cit., para. 96.) The Committee has always attached great importance to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences. (See Digest, op. cit., para. 109.)
11. 427. In this case, the Committee notes with serious concern the slowness of the preliminary proceedings and the obstacles to the functioning of the trade union organization of which the persons concerned were members following the detention of its leaders.
12. 428. The Committee also recalls that in many cases where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the governments' replies amounted to general denials of the allegation or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegation. (See Digest, op. cit., para. 111.) The Committee has on many occasions pointed out that, where persons have been sentenced on grounds that have no relation to trade union rights, the matter falls outside its competence. It has, however, emphasized that whether a matter is one that relates to the criminal law or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information and, in particular, the text of the judgement. (See Digest, op. cit., para. 114.)
13. 429. In these circumstances, the Committee insists that the Government drop charges pending against these trade union leaders and activists and requests the Government to keep it informed in this regard.
14. 430. The Committee requests the complainant to indicate whether the other persons mentioned in the complaint are members of workers' organizations.