Informe provisional - Informe núm. 292, Marzo 1994

Caso núm. 1640 (Marruecos) - Fecha de presentación de la queja:: 22-ABR-92 - Cerrado

1. 579. The Committee examined this case at its February 1993 meeting (see 286th Report, paras. 612-646, approved by the Governing Body at its 255th Session (March 1993)), at which it drew up interim conclusions.
2. 580. The World Confederation of Labour (WCL) subsequently communicated additional information in a letter dated 5 April 1993. The Government sent new observations in communications dated 15 July and 6 October 1993.
3. 581. Morocco has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has, however, ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 582. At its February 1993 meeting, the Committee examined allegations relating to the arrest and sentencing of two trade union leaders, intimidation and repression by the authorities against trade union organizations during the preparations for the May Day celebration and a series of anti-union measures taken against workers, trade union leaders and their organizations by the Government and the authorities.
2. 583. At that meeting, the Committee formulated the following recommendations (see 286th Report of the Committee, para. 646):
   • (a) The Committee emphasizes that the right to express opinions through the press or otherwise is an essential aspect of trade union rights and expresses its deep concern regarding the gravity of the sentences handed down against Mr. Noubir El Amaoui, the General Secretary of the CDT, and Mr. Driss Laghnimi, the regional secretary of the UGTM in Sidi Slimane.
   • (b) In order that it may have at its disposal all the information necessary on this aspect of the case, the Committee requests the Government to provide without delay detailed information on the charges pressed against Messrs. El Amaoui and Laghnimi and to communicate the text of the verdicts handed down against them, with the reasons therefor. The Committee also requests the Government to communicate the texts of the judgements handed down by the Court of Appeal.
   • (c) Regarding the irregularities which reportedly took place during the arrest and trial of Messrs. El Amaoui and Laghnimi, the Committee requests the Government to indicate on the basis of which provisions Mr. El Amaoui's arrest was ordered, and to provide its observations concerning the allegations made by the complainants in this regard and also concerning the circumstances of Mr. Driss Laghnimi's arrest.
   • (d) Noting that the Government has not replied to the allegations concerning measures of intimidation taken against the organizers of the 1992 May Day demonstrations, the Committee urges the Government to provide the required information without delay.
   • (e) Regarding the allegations concerning the surrounding and prohibition of access to the CDT's premises on 21 April 1992, the refusal by the authorities to issue to trade union leaders documents acknowledging that their organizations were legally established or renewing such documents, the refusal by state offices and enterprises to carry out judgements handed down in favour of workers, the failure to reinstate civil servants and the violent intervention of the police leading to one death during a demonstration by workers of the Bahia-Baladi enterprise in Rabat, the Committee requests the Government to communicate its observations on these allegations without delay.

B. Additional information sent by a complainant organization

1. 584. In a communication dated 5 April 1993, the World Confederation of Labour (WCL) states that the interview granted by Mr. El Amaoui to the newspaper El País (11 March 1992) contained nothing which exceeded "the admissible limits of controversy".
2. 585. The WCL considers that it is part of the role of trade unions and their leaders to criticize the way economic and social government policy is administered, especially when it is administered to the detriment of most of the population. According to this organization, quite apart from the fact that the concept is entirely subjective and therefore cannot have any legal significance, in his interview Mr. El Amaoui challenged a collective body, the Government, and not a specific person.
3. 586. The WCL also quotes the Committee of Experts on the Application of Conventions and Recommendations, which stated that "the Government has paralyzed most collective bargaining procedures. (The Democratic Confederation of Labour (CDT) and the General Union of Moroccan Workers (UGTM)) refer to the Central Medical Advisory Council which is to be removed by section 364 of the draft Labour Code, the Central Prices and Wages Committee which has not met since 1961, the Central Collective Agreements Council which is no longer provided for in the draft Labour Code, the Conciliation and Arbitration Committees responsible for the settlement of collective disputes, and the Central Council of the Public Service which has not met since 1961." (See Report of the Committee of Experts of 1992, Report III (Part 4A), p. 276.)

C. Additional reply of the Government

1. 587. In a communication dated 15 July 1993, the Government states that Messrs. Noubir El Amaoui and Driss Laghnimi, on the occasion of the national holiday on 9 July 1993, were granted a pardon, by virtue of which they were released before having completed their respective prison sentences.
2. 588. In a letter dated 6 September 1993, the Government states that freedom of opinion and expression are part of the fundamental rights recognized by legislation and in practice for all citizens, irrespective of their political or trade union affiliation. In practical terms, this right is exercised within the limits of the rights of others. Any statement which is contrary to dignity and any contemptuous or insulting statement which does not contain any specific accusation are considered to derogate from these rights. The legislation in force lists the sanctions to be applied in the event of infringement of the rules governing freedom of expression.
3. 589. According to the Government, the acts with which Mr. Noubir El Amaoui was charged are insult and libel under sections 46 and 48 of the Press Act, and the prosecution of this person took place in accordance with the provisions of section 71 of the same Act, which grants the Government the right to demand the institution of proceedings if it has been insulted and libelled. The proceedings against Mr. Noubir El Amaoui were instituted on the basis of a demand presented by the Prime Minister after discussion within a ministerial council, as the law grants the Prime Minister the right to represent the Government in legal proceedings.
4. 590. The criminal investigation department carried out an investigation of the acts with which Mr. Noubir El Amaoui was charged, as part of the assignment entrusted to it by the Public Prosecutor's Office in Rabat, within whose territorial jurisdiction the legal proceedings fall. After examining the documents of the case, the Public Prosecutor's Office concerned concluded that the statements made by the person concerned to the Spanish newspaper contained all of the elements of the offences of insult and libel provided for in sections 46 and 48 of the Press Act. Moreover, according to the Government, while he was being interrogated by the criminal investigation department, the person concerned admitted his responsibility as well as the accusations against him.
5. 591. The Government states that, since the press offences had not yet been subjected to flagrante delicto proceedings, Mr. El Amaoui had remained at liberty. He was sent a summons which met all of the requirements laid down in section 72 of the Press Act, such as the charge, legal description and applicable legislative provisions.
6. 592. At his trial, Mr. Noubir El Amaoui enjoyed adequate guarantees to prepare his defence with the assistance of a substantial number of lawyers. Defence counsels' pleadings took up almost all of the hearings, in which the lawyers were able to freely take up any issues they chose. The person concerned addressed the court himself at the end of the hearing and launched into a long speech in which he displayed political criticism and personal ideas in full freedom.
7. 593. The trial itself took place in compliance with all of the requirements as to publicity laid down by the law. The lawyers and the public were authorized to attend it in full freedom, except for certain security arrangements intended to maintain order after a group surrounded the premises of the hearing, repeating slogans which cast aspersions on the dignity of the court and of justice, breaking down doors and preventing public servants from entering the courtroom, to the extent that the actions of this group began to jeopardize the safety of the person concerned himself.
8. 594. Once the court had gathered evidence of Mr. Noubir El Amaoui's guilt of the charges against him, it ordered his arrest and imprisonment in accordance with section 400 of the Code of Penal Procedure. On 17 April 1992 it handed down a verdict sentencing him to two years' prison and a fine of 1,000 dirhams, which was upheld by the Appeal Court of Rabat.
9. 595. The Government states further that, in response to a petition for pardon submitted in accordance with the legislation in force, Mr. Noubir El Amaoui was released under the royal pardon which was granted in this case.
10. 596. As regards Mr. Driss Laghnimi, the Government states that the facts of the case date back to 5 May 1992, when workers affiliated to the General Union of Moroccan Workers and the Union of People's Trade Unions attempted to settle a dispute between them regarding the hiring of several workers by a company. A proposal to hire the same number of workers belonging to each of the two trade unions was approved by the workers affiliated to the Union of People's Trade Unions, who then made statements glorifying the national holy places, which displeased Mr. Laghnimi; the latter then uttered disparaging remarks about these places.
11. 597. After he had been heard and the witnesses had testified, Mr. Laghnimi was brought before the Public Prosecutor of the Court of the First Instance of Sidi Slimane, which decided to prosecute him for making disparaging remarks about the holy places, under section 179 of the Criminal Code, and to bring him before the court under arrest, by virtue of Case No. 153/92 involving an offence, with flagrante delicto.
12. 598. According to the Government, at the trial the defence counsel's pleadings were heard and the hearing was presided over by the President of the court in conformity with the law. The court turned down a request of defence counsel to defer judgement and, on 18 May 1992, handed down a verdict sentencing him under the charges brought against him. The verdict was upheld by the Appeal Court of Kénitra on 20 July 1992.
13. 599. Regarding these two cases, the Government notes that the Committee on Freedom of Association has stated in connection with previous cases that the parties should refrain from libel when expressing trade union or political opinions and it affirms that it does not understand why the cases at issue should be exempted from this rule.
14. 600. As regards the allegations concerning the issuance of documents acknowledging the establishment and renewal of trade union branches, the Government states that the allegations contained in the complaint concerning the teaching sector in the areas of Tan Tan and Polman are utterly unfounded. As regards the local branch of the National Teachers' Union in the town of Tan Tan, its founding documents were filed with the local authorities by its general secretary, who received an acknowledgement on 12 April 1992, contrary to what was stated in the above-mentioned complaint. According to the Government, the allegations concerning the Polman area are false, since the attempt to set up a section of the National Teachers' Union in the town of Maysour did not meet legal requirements, as can be seen from the following details:
    • - the persons who organized the meeting with the intention of setting up a local branch of the trade union do not all exercise the same occupation as required by the legislative provisions in force, as some of them work in the teaching sector while the others work in public works;
    • - the meeting organized for this purpose on 12 May 1991 had not been announced to the competent authority in accordance with the legislation in force;
    • - the premises where the meeting took place turned out to be the headquarters of the local executive of the Socialist Union of Popular Forces Party.
15. 601. As regards the initiative to set up a trade union section in the town of Polman, it also failed to comply with legal requirements for the following reasons:
    • - the room which had been rented to serve as headquarters for the trade union is located inside a private residence in front of which several persons assembled on 10 November 1991, having been called together to set up a trade union section;
    • - the group which put forward the initiative included persons belonging to the teaching sector, public works, the water company and the forestry sector, not to mention a farm worker who had nothing to do with administration;
    • - the persons concerned had not announced the meeting in question to the competent bodies.
16. 602. As regards the demonstrations on 1 May 1992, the Government refers to the information it had already sent.
17. 603. Lastly, concerning the information on the observations made by the Committee on Freedom of Association regarding the allegations that means of intimidation has been used against the organizers of these demonstrations, the Government states that it will communciate this information as soon as it receives it from the competent bodies to which it has written to this effect.

D. The Committee's conclusions

1. 604. First of all, the Committee notes the fact that Messrs. Noubir El Amaoui and Driss Laghnimi were granted a pardon on the occasion of the national holiday on 9 July 1993, by virtue of which they were released before having completed their respective prison sentences.
2. 605. As regards the charges brought against these persons, the Committee notes that Mr. El Amaoui was sentenced for libel and slander under sections 46 and 48 of the Press Act for having uttered, according to the information supplied by the Government, statements insulting and libelling the Government in a Spanish newspaper. As regards Mr. Laghnimi, the Committee notes that he was sentenced, under section 179 of the Criminal Code, for uttering disparaging remarks about the holy places, since, again according to the Government, he had made these remarks about said places during a dispute between workers affiliated to the General Union of Moroccan Workers and the Union of People's Trade Unions concerning the hiring of several workers by a company.
3. 606. Notwithstanding the pardon granted to these two persons, the Committee once again deplores the severity of the sentences handed down against them. The Committee recalls once again the fundamental principle that the right to express opinions through the press is an essential aspect of trade union rights. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 172.) While it is true that when expressing their opinions, trade unions and their leaders should not exceed the admissible limits of controversy and should refrain from excessive language, as the Committee has stated before (see 254th Report, Case No. 1400, para. 198), the Committee considers that the freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the government's economic and social policy. The Committee requests the Government to supply information on the defamatory nature of the statements made by the General Secretary of the CDT, Mr. El Amaoui.
4. 607. The Committee is of the view that it may be difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character; these two notions overlap and it is inevitable, and sometimes usual, for statements uttered by the trade union movement to cover questions having political aspects as well as strictly economic and social questions. (See Digest, op. cit., para. 359.) The Committee draws the Government's attention to the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970, defining as rights which are essential to the normal exercise of trade union rights, inter alia, freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The Committee therefore urges the Government to take all necessary measures to guarantee respect of this principle.
5. 608. As regards the irregularities which allegedly took place during the arrest and trials of Messrs. El Amaoui and Laghnimi, the Committee observes that the Government states that the arraignments and trials took place with respect for the guarantees of the right of defence and publicity. Faced with the contradiction between the statements made by the complainant organizations and the information supplied by the Government, the Committee can only recall the principle 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. 108.)
6. 609. Regarding the authorities' refusal to issue trade unionists with documents acknowledging the establishment and renewal of branches of trade unions, the Committee notes the Government's statement to the effect that the allegations concerning the teaching sector in the Tan Tan and Polman areas are utterly unfounded. According to the Government, a document acknowledging the establishment of the local branch of the National Teachers' Union in the town of Tan Tan was in fact sent to the General Secretary of this trade union; however, when sections of the same trade union were set up in the towns of Maysour and Polman, the prerequisites laid down by the law were not complied with: the founders did not all belong to the same occupation, the founding meetings were not announced to the competent authority and the premises where the meetings took place were not independently owned (the premises in question belong to a political party and to a private individual).
7. 610. In these circumstances, the Committee reminds the Government that while the founders of a trade union must observe formalities concerning publicity or other similar formalities which may be prescribed by law, such requirements must not be equivalent in practice to previous authorization, or constitute such an obstacle that they amount in practice to outright prohibition. (See Digest, op. cit., para. 263.) The Committee therefore urges the Government to ensure that workers are able, without previous authorization, to freely establish organizations of their own choosing, in accordance with the principles of freedom of association and, in particular, that the formalities prescribed by law for the establishment of a trade union are not applied in such a way as to delay or prevent the setting up of occupational organizations.
8. 611. Concerning the allegations that measures of intimidation were taken against organizers of the demonstrations planned for 1 May 1992, the Committee notes that the Government will send information in this respect as soon as it receives it from the competent bodies. The Committee requests the Government to provide this information without delay.
9. 612. Regarding the other allegations which are still pending in this case, in particular those concerning the surrounding of the CDT's premises and prohibition of access to them on 21 April 1992, the refusal by state offices and enterprises to carry out judgements handed down in favour of workers, the failure to reinstate civil servants and the violent intervention of the police leading to one death during a demonstration by workers at the Bahia-Baladi enterprise in Rabat, the Committee notes with regret that the Government has not sent a reply. The Committee therefore urges the Government to provide the observations requested without delay.

The Committee's recommendations

1. 613. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes that Mr. Noubir El Amaoui, General Secretary of the CDT, and Mr. Driss Laghnimi, regional secretary of the UGTM in Sidi Slimane, were granted a pardon on the occasion of the national holiday on 9 July 1993, by virtue of which they were released before having completed their respective prison sentences. Nevertheless, the Committee deplores the severity of the sentences handed down against Messrs. Noubir El Amaoui and Driss Laghnimi, and draws the Government's attention to the resolution adopted in 1970 by the International Labour Conference concerning trade union rights and their relation to civil liberties, defining as rights which are essential for the normal exercise of trade union rights, inter alia, freedom of opinion and expression, and in particular the right to hold opinions without interference and the right to seek, receive and impart information and ideas through any media and regardless of frontiers. The Committee urges the Government to take all the necessary measures to guarantee respect of this principle. The Committee requests the Government to supply information on the defamatory nature of the statements made by the General Secretary of the CDT.
   • (b) The Committee requests the Government to ensure the respect of the principle 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.
   • (c) The Committee requests the Government to ensure that workers are able, without previous authorization, freely to establish organizations of their own choosing, in accordance with the principles of freedom of association and, in particular, that the formalities prescribed by law for the establishment of a trade union are not applied in such a way as to delay or prevent the setting up of occupational organizations.
   • (d) The Committee requests the Government to communicate as soon as possible its observations on the allegations concerning measures of intimidation against the organizers of the May Day 1992 demonstrations.
   • (e) Noting with regret that the Government has still not replied to the allegations concerning the surrounding of the CDT's premises and the prohibition of access to them on 21 April 1992, the refusal by state offices and enterprises to carry out judgements handed down in favour of workers, the failure to reinstate civil servants and the violent intervention of the police leading to one death during a demonstration by workers at the Bahia-Baladi enterprise in Rabat, the Committee urges the Government to supply the observations requested without delay.