Report in which the committee requests to be kept informed of development - Report No 279, November 1991

Case No 1520 (Haiti) - Complaint date: 26-JAN-90 - Closed

1. 204. The Committee examined this case at its meeting of November 1990 when it presented an interim report to the Governing Body which appears in paragraphs 401 to 420 of its 275th Report. This report was approved by the Governing Body at its 248th Session (November 1990). To date the Government has not sent its observations on the allegations made, and thus in its 278th Report (approved by the Governing Body at its 250th Session (May-June 1991)) the Committee drew the attention of the Government to the fact that, in accordance with the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1971), it would present at its next meeting a report on the substance of the case, even if the information or observations from the Government had not been received in time.
2. 205. Haiti 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).

A. Previous examination of the case

1. 206. The allegations pending from the Committee's examination of this case in November 1990 refer to the violent arrest on 1 November 1989 of the trade union officials, Messrs. Jean Auguste Mesyeux, of the Autonomous Central of Haitian Workers (CATH), Evans Paul de la Kid, an official of the Democratic Unity Confederation (CUD) and Etienne Marineau, a member of the "17 September" People's Organisation; attacks against the CATH headquarters and destruction of its furniture on 6 November 1989 by individuals wearing military uniforms and against the premises of the Haitian Workers' Confederation (CTH) on 15 January 1990; the detention and subsequent disappearance on 12 January 1990 of the President of the Trade Union Confederation of Public Transport (CSTP), Mr. Nally Bauharnais; the break-in into the home of the deputy secretary-general of the National Confederation of Haitian Teachers (CNEH) Mr. André L. Joseph, who is allegedly under constant surveillance and against whom death threats have been made and death threats against other officials of this organisation: Lourdes Edith Joseph, Evelyne Margron Bertoni, Guy Alexandre and Guy Lochard.

B. The Committee's conclusions

1. 207. The Committee notes with deep regret that after a previous examination of the case without the Government's response, and in spite of the time which has elapsed since the complaint was presented and the repeated requests addressed to the Government that it furnish its comments and observations in this matter, the Government has failed to reply to the allegations of the complainant confederations.
2. 208. In these circumstances, and in accordance with the corresponding rule of procedure (see para. 17 of the Committee's 127th Report, approved by the Governing Body at its 184th Session (November 1971)), the Committee must again submit a report on the substance of the matter, even in the absence of information which it had hoped to receive from the Government.
3. 209. First of all, the Committee reiterates to the Government that the purpose of the whole procedure set up in the ILO for the examination of violations of freedom of association is to promote respect for trade union rights in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them. (See the Committee's First Report, para. 31.)
4. 210. The Committee notes that the allegations in the present case concern: (1) the arrest and detention of three trade unionists, and the ill-treatment to which they were subjected (Messrs. Mesyeux, Evans Paul de la Kid and Marineau); (2) the assault and sacking of the premises of the CATH; (3) the arrest and disappearance of a trade union leader, Mr. Bauharnais; (4) the sacking of the premises of the CTH; (5) the intimidation and threats to the lives of CNEH officials.
5. 211. In these circumstances the Committee wishes to stress that a genuinely free and independent trade union movement can only develop where fundamental human rights are fully respected and guaranteed. As stated in the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference in 1970, the absence of civil liberties removes all meaning from the concept of trade union rights, and the rights conferred upon workers' and employers' organisations must be based on respect for those civil liberties. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 68 and 72.)
6. 212. As regards the allegations, which the Government has not refuted, according to which three trade union leaders were arrested and subjected to torture and ill-treatment while they were preparing to exercise their trade union functions, and are detained under the false accusation of conspiring against the Government, the Committee recalls that the arrest and detention of trade unionists and trade union leaders in the exercise of their activities or trade union rights constitutes a violation of the principles of freedom of association, and that such actions may create a climate of fear and intimidation which hampers the normal development of such activities.
7. 213. While workers and their trade unions should, in accordance with Article 8 of Convention No. 87, respect the law of the land like other persons or organised collectivities (this Article also provides that the law of the land should not impair the guarantees provided for in the Convention), they must also benefit, as any other person, from proper legal procedures which conform with the principles contained in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In particular, this means that they have the right: to be informed, at the time of arrest, of the reasons for the same; to be informed as soon as possible of the accusations brought against them; to be brought promptly before a competent judge; to be held in preventive custody for the shortest possible period in order to facilitate a judicial inquiry; to have the time and facilities necessary for the preparation of their defence; to communicate without hindrance with the legal counsel of their choice and to be promptly judged by an impartial and independent judicial authority. These guarantees of proper judicial procedures should not only be expressed in legislation, but also, and especially, be applied in practice.
8. 214. Moreover, the Committee has often pointed out that governments should give the necessary instructions to ensure that no detainee is subject to ill-treatment, and that any person deprived of his liberty must be treated with humanity and with respect for the inherent dignity of the human person. When there is evidence of such ill-treatment in spite of these instructions, governments should carry out inquiries to identify and punish the parties responsible for the same and impose effective and sufficiently dissuasive sanctions to prevent its recurrence, and take such measures as may be necessary to compensate the damages suffered by the victims. (See Digest, paras. 83-86.)
9. 215. As regards the acts of intimidation and the threats made against the officials of the CNEH, the break-in into the home of its deputy general secretary and the surveillance to which he has been subjected, the anonymous threats to the lives of CTH officials, the assault and sacking of CATH premises by individuals wearing military uniforms, as well as the sacking of the CTH headquarters, the Committee notes that these are serious acts which reveal a general climate of violence and intimidation which is far from conducive to the normal exercise of trade union rights, and which call for energetic measures by the Government. In situations of this kind an independent judicial inquiry constitutes an appropriate means for clarifying the facts, identifying responsible parties, punishing the guilty parties and preventing the recurrence of such actions.
10. 216. Such a judicial inquiry is particularly called for in the event of the death or disappearance of an individual, as in the case of Mr. Bauharnais, whose whereabouts are still unknown since his arrest on 12 January 1990.

The Committee's recommendations

• C. The Committee's recommendations
  217. 217 In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
       • (a) The Committee deeply regrets that the Government has not furnished its comments or observations on the serious allegations in this matter.
       • (b) The Committee deplores the failure of the Government to take the necessary measures to ensure that trade unions, their leaders and members, may exercise their activities in a climate of respect for civil liberties and fundamental human rights.
       • (c) The Committee requests the Government to keep it informed of the accusations that have been brought against these persons, to release immediately those against whom no charges have been brought, to ensure that the others are judged promptly by an independent and impartial tribunal, and that they enjoy all judicial guarantees, and to communicate as soon as possible to the Committee the complete text of the judgements.
       • (d) The Committee notes with deep concern that the Government has not yet furnished information concerning the acts of intimidation and violence denounced by the complainants. It urgently requests the Government to institute independent judicial inquiries to determine the facts, to punish the guilty parties and to prevent the repetition of such actions, and to keep it informed of the results of inquiries into:
         • - the arrest and disappearance, on 12 January 1990, of Nally Bauharnais;
         • - the attack on the premises of CATH and CTH;
         • - the threats to the lives of, and the measures of surveillance and harassment against, the leaders of the CATH, CTH and CNEH.