Informe definitivo - Informe núm. 49, 1961

Caso núm. 184 (Haití) - Fecha de presentación de la queja:: 29-JUL-58 - Cerrado

1. 21. The complaint of the I.C.F.T.U was submitted to the I.L.O on 29 July 1958 and was transmitted to the Government of Haiti by a letter dated 11 August 1958. The Government forwarded its observations to the Office by a communication dated 25 September 1958.
2. 22. When it examined the case at its 20th Session (November 1958), the Committee took the view that it would be necessary to obtain further information from both the complaining organisation and the Government before it could make its recommendations to the Governing Body. The Committee decided, therefore, to adjourn its examination of the case until the information in question had been received.
3. 23. Having been informed of this decision, the Government of Haiti and the I.C.F.T.U forwarded the further information requested of them by two letters dated 8 and 10 January 1959 respectively. In a letter dated 5 February 1959 the Government forwarded its comments on the supplementary information contained in the I.C.F.T.U's communication dated 10 January 1959, which had been transmitted to the Government by the Director-General.
4. 24. When it examined the case further at its 21st Session (February 1959), the Committee was able to make final recommendations to the Governing Body on all except one aspect of the allegations. These recommendations, and the reasoning on which they were based, are contained in the 33rd Report. With respect to the allegations with which it did not feel that it could deal finally at that time, the Committee made an interim report, considering it necessary to obtain additional information from the Government before formulating its final conclusions.
5. 25. This request for further information was conveyed by the Director-General to the Government, which forwarded a reply to the Office on 22 April 1959.
6. 26. At its 22nd Session (May 1959) the Committee adjourned its examination of the case until its next session, in accordance with a request made by the I.C.F.T.U by a telegram dated 21 May 1959, in which it stated that further information was being forwarded.
7. 27. The further information referred to by the complainant was forwarded to the Office by a communication dated 27 August 1959 and was transmitted to the Government of Haiti for its observations by a letter dated 3 September 1959.
8. 28. The Government replied by a letter dated 30 October 1959; this reply having been received by the Office too late to permit of its being examined by the Committee at its 23rd Session (November 1959), the examination was adjourned until the 24th Session of the Committee.
9. 29. At its 24th Session (February 1960) the Committee considered it necessary to ask the Government to clarify certain aspects of the matter and adjourned its examination of the case pending the receipt of the information in question. The Government was requested to furnish this information by a letter from the Director-General dated 9 March 1960.
10. 30. At its 25th Session (May 1960) the Committee, not having received the further information requested from the Government, adjourned its examination of the case until its present session.
11. 31. The information requested was forwarded to the Office by the Government of Haiti by a letter dated 23 June 1960.
12. 32. Having regard to the explanations given in paragraph 24 above, the present document relates only to the one set of allegations still outstanding.
    • Allegations relating to Measures Taken against Mr. Nathanael Michel, General Secretary of the National Union of Workers of Haiti (U.N.O.H)

A. A. The complainants' allegations

1. 33. In its original complaint, the I.C.F.T.U alleges that, on 5 January 1958, Mr. Nathanael Michel, General Secretary of the U.N.O.H, was arrested and kept in prison without any charges having been brought against him. After being released from prison on 20 January 1958, Mr. Michel was assigned a forced residence for several weeks. Moreover, it is stated, Mr. Michel was removed from his post as a teacher at the Haiti Central School of Arts and Crafts.
2. 34. Although they do not make a specific statement to this effect, the complainants, in their communication dated 29 July 1958, allow it to be understood that these measures originated in the trade union activities of Mr. Michel, and they consider in particular that the removal from office of the person concerned constitutes a contravention of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Haiti, Article 1 of which provides that workers shall enjoy adequate protection against acts calculated to cause the dismissal of or otherwise prejudice a worker because of his participation in union activities.
3. 35. In its first reply dated 25 September 1958 the Government affirms that Mr. Michel was never disturbed on account of his trade union activities and that the measures taken against him originated in his political activities, while he had also been guilty of embezzlement. In support of its claim that the measures taken against Mr. Michel were not connected with his trade union activities, the Government annexes to its reply a copy of a letter addressed to Mr. Michel by the new President of the U.N.O.H. In this letter it is stated " for reasons of a purely political character you were arrested on 15 January of this year and set free after 22 days of imprisonment but kept under police supervision. Since this last police measure was cancelled for you and for others, through the intervention of the U.N.O.H and of certain national and international democratic organisations, you have stayed underground for personal reasons " and, further on: " The members of the Committee of the U.N.O.H are prepared to help you in any action you may take to clear yourself of the charge of communism which has recently been laid at your door."
4. 36. In several earlier cases the Committee has been called upon to formulate conclusions on the application of measures which, even though of a political character and not intended to restrict trade union rights as such, may nevertheless affect the exercise of such rights. When it examined the present case in November 1958 the Committee took the view that, as the person concerned had trade union responsibilities, the measure taken with regard to him was likely, even if that were not intended, to affect the exercise of trade union rights.
5. 37. The Committee pointed out that, if in certain previous cases it has reached the conclusion that allegations relating to measures taken against trade union militants did not call for further examination, this has been after it has received information from the governments showing sufficiently precisely and with sufficient detail that the arrests were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.
6. 38. In the present case the Committee noted that the Government did not give details of the activities which caused measures to be taken against the person concerned. In these circumstances, and having regard to the fact that the measures in question were taken at a moment when trade union elections were being held in the organisation of which Mr. Michel was general secretary, the Committee considered that, in order to be able to reach a conclusion in full knowledge of all the circumstances, it should request the Government to furnish more detailed information with respect both to the specific reasons for the measures complained of being taken and, in particular, to the particular activities which had been held against him.
7. 39. Further, in view of the complainants' allegation that Mr. Michel was arrested and kept in custody without any specific charges having been made against him, and of the fact that the Government, in its reply dated 25 September 1958, made no observations on this particular aspect of the case, the Committee, having regard to the importance which it has always attached 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, decided, in November 1958, to request the Government to be good enough to furnish information concerning the procedure followed when the measures against Mr. Michel were taken and concerning the guarantees attending such procedure.
8. 40. In response to these requests for information the Government, in a communication dated 8 January 1959, began by confirming the statements made in its previous observations, forwarded on 25 September 1958. It pointed out further that the U.N.O.H, an affiliate of the Inter-American Regional Organisation of Workers (O.R.I.T) and the organisation to which Mr. Michel belonged, took part in the O.R.I.T - I.C.F.T.U Conference in Bogotá in December 1958, its delegate being Mr. Fritzner Sainvil, now general secretary of the U.N.O.H in succession to Mr. Michel. This delegate, freely chosen, according to the Government, by the organisation in question, was duly accredited and participated in the normal way in the work of the Conference. Yet, declares the Government, it is precisely the I.C.F.T.U which has submitted a complaint concerning Mr. Michel to the I.L.O.
9. 41. Referring more specifically to the particular points raised by the Committee, the Government, in further observations dated 8 January 1959, declared that the measures taken against Mr. Michel were taken pursuant to legal provisions adopted because of the abnormal political situation prevailing in Haiti. These legal provisions, a copy of which was annexed to the Government's communication of 8 January 1959, are the following:
   • (a) Order of the Military Council of the Government dated 26 September 1957 proclaiming a state of martial law throughout the territory of the Republic;
   • (b) Order of the President of the Republic dated 2 May 1958 declaring a state of siege throughout the territory of the Republic and suspending the guarantees prescribed by articles 17, 18, 19, 21, 26, 68 and 70 of the Constitution;
   • (c) Decree of the Legislative Body dated 31 July 1958 suspending the guarantees prescribed by articles 20, 21, 25, 90 (paragraph 7), 94, 119 and 123 of the Constitution and according full powers to the Head of the Executive for a period of six months.
     • The Government also annexed to its reply the text of the Constitutional guarantees contained in the articles of the national Constitution mentioned in the orders and decree cited above.
   • 42. When it examined the case at its 21st Session (February 1959), the Committee observed that it was clear from the texts cited by the Government that the reasons which caused them to be put into application must be sought in the disturbed political situation experienced in Haiti.
10. 43. The Committee recalled that in many previous cases in which it had had to examine allegations against countries which were in a state of political crisis or had just passed through grave disturbances (civil war, revolution, etc.), it had considered it necessary, when examining the various measures taken by the governments, including some against trade union organisations, to have regard to such exceptional circumstances when examining the merits of the allegations. However, in cases in which it has had before it complaints of alleged infringements of freedom of association under a state of siege or emergency or by virtue of national security legislation, the Committee, while indicating that it is not called upon to comment on the necessity for or desirability of such legislation, which is a purely political consideration, has always taken the view that it must consider what repercussions the legislation might have on trade union rights.
11. 44. While refraining, therefore, from commenting on the political aspects of the state of emergency pursuant to which the measures complained of had been taken against Mr. Michel, the Committee, in February 1959, nevertheless affirmed once again the importance which it attaches to the principle that measures of detention should be accompanied by adequate judicial safeguards applied within a reasonable period and to the right of all detained persons to receive a fair trial at the earliest possible moment, and recommended the Governing Body to draw these points to the attention of the Government of Haiti.
12. 45. With regard to the particular case of Mr. Michel and to the measures taken against him, the Committee, at its February 1959 Session, observed that, while the Government referred to the legal texts and to the procedures pursuant to which the measures were taken, it nevertheless made no mention of the reasons that caused them to be taken. For these reasons the Committee asked the Director-General to obtain further information from the Government on this point.
13. 46. Responding to that request for further information by a communication dated 22 April 1959, the Government, in order to show that the reasons for the measures taken against the person concerned were completely unconnected with his trade union functions or activities, furnishes a copy of a confidential letter addressed to the Secretary of State for Labour, on 20 October 1958, by the Secretary of State for Home Affairs and National Defence, in which it is stated: " Mr. Nathanael Michel, former general secretary of the National Union of Workers of Haiti, was removed from his post by the members of that organisation because he had pawned a ciné-camera, a duplicating machine and other articles belonging to that organisation in a pawnshop belonging to Mr. Appolon Thézine. Being trade union property, these articles could not be disposed of or mortgaged except under certain specific conditions prescribed by legislation. Mr. Michel took no heed of this fact. Secondly, he was removed from his post by the General Assembly of the U.N.O.H. Being enraged, he tried to ascribe his dismissal to political causes and made all sorts of efforts to break up the organisation. In order to avoid the possibility that any dangerous action by this swindler should imperil the continued existence of this trade union organisation, Mr. Michel was assigned a forced residence in Gressier."
14. 47. This accusation made against Mr. Michel by the U.N.O.H was, the Government affirms, the only reason for the action taken against him by the government police services. The Government adds that because of his constant political activities directed against the Government, " which were partly responsible for the repressive action taken against him ", Mr. Michel thought it desirable to seek sanctuary in the Embassy of Venezuela and then, subsequently, went to Venezuela.
15. 48. At its 22nd Session (May 1959) the Committee, taking account of a telegram dated 21 May 1959 from the I.C.F.T.U informing it of the despatch of further information and requesting, accordingly, an adjournment, decided to adjourn its examination of the case to a later session. The further information referred to by the complainants is contained in a communication dated 27 August 1959.
16. 49. In this communication the complainants seek to furnish information on a number of points which, they state, has been forwarded to them by Mr. Michel himself from the United States where he would appear to have gone after a brief stay in Venezuela.
17. 50. According to the information received by the complainants, after the dissolution of a number of occupational associations ordered following the change of régime in June 1957, the U.N.O.H waged a campaign of protest which resulted in Messrs. Isidore and Michel, respectively president and general secretary of the U.N.O.H, being summoned to the Dessalines Barracks, where threats were made that they would be tortured and the headquarters of the U.N.O.H would be closed if the protest campaign waged by that organisation was not terminated.
18. 51. In the observations made by the Government in a communication dated 30 October 1959 in respect of the further information furnished on 27 August 1959 by the I.C.F.T.U, the Government formally denies that, following the change in the Presidency of the Republic, any massive dissolutions of trade unions took place and challenges the complainants to furnish a list of the organisations claimed to have been dissolved. The Government also affirms that Messrs. Isidore and Michel were never summoned to the Dessalines Barracks to be threatened with torture on account of the trade union affairs of the U.N.O.H and, in support of its statement in this connection, it adduces the text of a declaration made by Mr. Isidore, indicating that neither he nor Mr. Michel was summoned to the Dessalines Barracks, and that no pressure was exercised by the authorities in respect of the trade union affairs of the U.N.O.H.
19. 52. The complainants again having mentioned the arrest and imprisonment of Mr. Michel, the Government refers to its earlier communications in respect of the reasons which occasioned these measures.
20. 53. The complainants also recall that Mr. Michel was dismissed from his post as a teacher at the Haiti Central School of Arts and Crafts " under the pretext that he had resigned in accordance with the regulations of that Department ". In this connection the Government forwards the text of a letter from the National Department of Education which gives the reasons for the removal of Mr. Michel from his post as a teacher in the Central School of Arts and Crafts, the summary of these reasons being that the person concerned stayed away from his work without having obtained authorisation to do so, thus rendering himself liable to the application of the disciplinary provisions of the National Education Regulations (section 39), according to which prolonged absence without reason and without prior authorisation may entail dismissal.
21. 54. The complainants then allege that the reason for which Mr. Michel, after being released, was placed in forced residence resulted from his refusal of the proposals made by the Government that he should resign from the U.N.O.H. The I.C.F.T.U also alleges that, in April 1958, the Secretary of State for Labour convened separately the leaders of the organisations affiliated to the U.N.O.H in order to ask them to give their aid to the Government by disavowing the Executive Committee of the organisation.
22. 55. In its reply dated 30 October 1959 the Government denies that it asked Mr. Michel to resign from his post as general secretary of the U.N.O.H and declares, on the contrary, that it has always refrained from intervening in the administration of occupational associations. It also denies ever having convened the leaders of the trade union organisations affiliated to the U.N.O.H in order to ask them to give their aid to the Government by disavowing the Executive Committee of the organisation.
23. 56. " Under the Government's threat to close down the Union's offices" continue the complainants " the Management Committee had unanimously decided to place the audiovisual apparatus belonging to the U.N.O.H in safe keeping lest it be destroyed or confiscated by the authorities. Accordingly, an electric generator and a Delco, together with the necessary papers, were entrusted to a business firm, the understanding being that when the U.N.O.H took the equipment back it would pay a sum of $50 to the owner of the firm. Mr. Michel was subsequently accused of fraudulent conversion and false pretences at the U.N.O.H's expense but in fact it is clear that he was only carrying out the instructions of the U.N.O.H committee without deriving any personal advantage from so doing."
24. 57. In opposition to this interpretation of the facts, the Government gives an entirely different version, supported by various pieces of evidence emanating respectively from the U.N.O.H and from Mr. Thózine, owner of the " business house ". In the first place it would appear from these documents that in Haiti the expression " business house " means the office of a person who lends on security. It would also appear from a memorandum drawn up by the U.N.O.H that Mr. Michel wrongfully used the apparatus belonging to a trade union in order to secure a personal loan and that, moreover, he retained a number of other objects belonging to the organisation. In this connection, the memorandum of the U.N.O.H con-tained the following statement: " By pledging a projector and a duplicating machine belonging to the U.N.O.H, Mr. Nathanael Michel acted arbitrarily and without the knowledge of the other members of the Management Committee of the union. It was a personal action from which he alone derived benefit." It would also appear from the letter from the pawnbroker, Mr. Thézine, that the latter attempted, by laying a complaint before the police, to have Mr. Michel arrested for fraud and misuse of funds because, in the words of Mr. Thézine, as he was not the owner of the apparatus in question, he did not have the right to pledge it. But at that time, adds Mr. Thózine, Mr. Michel " had already gone underground ".
25. 58. When it considered the case at its 24th Session (February 1960), the Committee took the view that further clarification on certain points would be necessary before it could make its final recommendations to the Governing Body.
26. 59. Thus, the Committee observed that, according to the Government's communication dated 30 October 1959, Mr. Michel appeared to have been dismissed on the ground that he had absented himself, without leave, from his work at the Central School of Arts and Crafts, where he was a teacher. But, observed the Committee, it appeared from the other information in its possession that Mr. Michel was in prison at the time of such dismissal.
27. 60. The Committee also noted that, in its observations, the Government declared that the offences committed by Mr. Michel were the only reason, or at least the essential reason, for the measures taken against him, and, therefore, the Committee could not understand why, that being the case, those measures were taken pursuant to an exceptional procedure and not under the common law penal procedure.
28. 61. By a letter dated 9 March 1960 the Director-General, on behalf of the Committee, requested the Government to be good enough to furnish its observations on the two points mentioned above. The Government replied by a communication dated 23 June 1960.
29. 62. With regard to the first point, the Government refers to section 21 of the Act of 19 September 1952, which reads as follows:
30. 21. The detention of an employee in custody for not more than 15 days followed by acquittal shall likewise be a case of suspension of the contract without liability for the employer or employee.
    • The employee shall, within three days of the date on which detention commenced, inform the employer of the reason why he is unable to report for work, and shall return to work within the two days of the date on which the circumstance ceases to exist; if he fails to do so, the contract shall be deemed to be terminated without liability for either side. If so requested by the employee, the director of the prison shall issue the necessary certificates in evidence of the facts mentioned in this article.
    • The Government declares that Mr. Michel, contrary to this section of the Act, did not inform his chief of his imprisonment, which is why the General Directorate of National Education applied the disciplinary measure prescribed by section 21 of the Act of 19 September 1952.
31. 63. It would appear from the explanations given by the Government that Mr. Michel failed to comply with the legal requirements in that he did not furnish information to his superior indicating the reasons for his absence from work and that, thereupon, the General Directorate of National Education considered itself justified in applying the provisions of the Act, which stipulate the termination of the contract where such information is not furnished.
32. 64. With respect to the second point raised by the Committee, the Government refers in the first place to its earlier statements and seeks to justify the application of an exceptional procedure in the case of Mr. Michel on the ground that, apart from the other offences committed by him, he was guilty of anti-government political activities of a reprehensible character.
33. 65. Although the explanations given by the Government--including those set forth in paragraphs 47 and 64 above-still remain obscure to a certain extent, it would nevertheless appear to be fairly clear from these explanations and from the documents furnished in support thereof that the reasons for the measures taken against Mr. Michel had their origin in political considerations and, also, in common law offences stated to have been committed by Mr. Michel. However this may be, it would not seem to be established that the measures complained against resulted from his trade union activities.

B. B. The Committee's conclusions

1. 66. In earlier cases in which the Committee has had to examine allegations relating to the prosecution of trade union officials and active trade unionists, it considered that the only question to be answered was the real reason for the arrests or trials. Only if these were ordered by reason of the trade union activities properly so called of the arrested persons had a violation of freedom of association occurred.
2. 67. Moreover, the Committee observes that the complainants base their latest further information solely on statements by Mr. Michel (see paragraph 49 above). The Committee considers that, although the question of proof must be judged in each case according to the particular circumstances, a complaint which is based solely on statements by the person directly concerned is, especially in particular equivocal circumstances such as those subsisting in the present case, necessarily somewhat suspect and could not be regarded as substantiated by adequate evidence.

The Committee's recommendations

1. 68. In these circumstances, while regretting even if it be true that the measures taken against Mr. Michel were mainly occasioned by common law offences stated to have been committed by the person concerned-that the ordinary penal procedure was not utilised in his case in preference to an exceptional procedure, and emphasising once again the importance which it attaches to the fact that measures of detention should be accompanied by adequate judicial safeguards applied within a reasonable period and to the right of all detained persons to receive a fair trial at the earliest possible moment, the Committee considers that the complainants-whose allegations in this case are based solely on the statements of the person accused-have not furnished proof that the measures complained against constituted, in this instance, an infringement of freedom of association. The Committee, therefore, recommends the Governing Body to decide, subject to the observations made above, that the case does not call for further examination.