Rapport intérimaire - Rapport No. 46, 1961

Cas no 208 (France) - Date de la plainte: 24-DÉC. -59 - Clos

1. 8. The complaints of infringement of freedom of association submitted to the I.L.O against the Government of France (Ivory Coast) originate from the I.F.C.T.U and the W.F.T.U. The allegations of the first-named organisation are contained in four communications dated 20 October, 26 October, 7 November and 18 December 1959; the complaint of - the W.F.T.U is contained in a communication dated 21 November 1959. All these communications were transmitted to the French Government, which forwarded observations by the Government of the Ivory Coast by two letters dated 16 February and 20 April 1960.
2. 9. The complainants allege that the Government of the Ivory Coast took a number of repressive measures which are contrary to the principles of freedom of association, subsequent to a three-day strike called to protest against the arrest of Mr. Yao N'Goh Blaise, General Secretary of the Trade Union Committee (Intersyndicat) of Public Employees of the Ivory Coast. This is a co-ordinating body which includes all public employees' associations without distinction of affiliation. According to the complainants, the measures complained of range from the suspension or dismissal of officials to the shooting of demonstrators, and include a number of arrests. Although they are interlinked, these allegations will for convenience be analysed separately in the following paragraphs.

A. A. The complainants' allegations

• Allegations concerning the Suspension and Dismissal of Officials and Public Employees on Grounds of Strike Action
  10. 10 The complainants allege that the protest and sympathy strike referred to above was declared illegal by the Government, which requested the strikers to return to work on pain of dismissal. The complainants state that most of the strikers returned to work but that others declined to be intimidated. Thus 225 officials and administrative employees were suspended and 325 definitively dismissed.
  11. 11 In its reply the Government does not deny the facts-although the figures which it gives, as they appear from a statement by President Houphouet-Boigny communicated by the I.F.C.T.U, are somewhat different, namely 319 suspensions and 213 dismissals-but adds the following details. When at the beginning of October 1959 various organisations of officials or administrative employees publicly announced their intention of stopping work, the Government took the necessary steps to ensure the continuity of the public services, for which it is responsible and which is essential to the life of the country and its inhabitants. A decree dated 8 October 1959 authorised the Government to take requisition measures; a further decree of the same date requisitioned officials and employees of public administrations, services and establishments and of the State's territorial communities for the dates of 8, 9 and 10 October 1959.
  12. 12 The Government states that some officials and public employees refused to remain at their posts. They were in a small minority. It was against them that individual measures were taken. These measures, the Government states, were rigorously selective and tailored to the conduct of the persons concerned. While some, whose attitude had demonstrated that they were devoid of the sense of public service necessary for any official, were dismissed, others were the subject of no more than temporary exclusion measures. These measures, says the Government in its reply, were announced in decrees of 10 October 1959.
  13. 13 It would seem to follow from the elements of information available to the Committee that the authorities considered the strike as being more political than social in character. It was indeed a protest strike against the measures taken against Mr. Yao N'Goh Blaise, who had himself been, it would appear, removed on the charge of abusing his position as a trade union leader for political ends. In this connection the Government states in its communication dated 20 April 1960 that the non-trade union activities of the person in question ran counter to public order " under the republican régime which the Ivory Coast has freely adopted ". Mr. Yao N'Goh Blaise, declares the Government, has multiplied his contacts with the emissaries of foreign countries which have manifested their hostility to the régime which the Ivory Coast has chosen for itself and to the programme undertaken by the Government. Although warned in May to cease his seditious political activity, the person concerned did no such thing; on the contrary, under the cover of his trade union activities, his actions led to malcontents grouping themselves around him and caused an agitation which was detrimental to public order. The Government, therefore, was obliged " to offer him facilities to enable him to go to a country which had chosen a régime and a policy of the kind that he preferred ". But there has been no expulsion, and Mr. Yao N'Goh Blaise, who was born in the Ivory Coast, is free to return and live there provided that he agrees to abide by the laws and institutions of the country. The slogans used by the strikers, if it is true that they were so used (" Down with the Community, long live communism ") would tend to confirm the political aspect of the strike. It would also seem to follow, both from government statements and those of the complainants, that the trade unions concerned had not contacted their employer, namely the Government, before beginning their movement. The Government emphasises in this connection that the demonstration on the public highway organised by the friends of Yao N'Goh Blaise on 8 October 1959 in protest against his departure from Abidjan was not announced in accordance with the provisions of the law (section 2 of the Legislative Decree of 23 October 1935 respecting the measures for strengthening the maintenance of public order, promulgated as Law No. 59-118 of 27 August 1959 in the official gazette of the Republic of Ivory Coast dated 1 September 1959). It would seem to be for these various reasons that the Government declared the strike illegal and requisitioned officials so as to ensure the continuity of the public services.
  14. 14 As the Committee has already observed, the mere fact of a strike being regarded as unlawful in any country would not be sufficient to cause the Committee to refrain from examining the merits of a case; it would also be necessary for the conditions that had to be fulfilled, under the law, in order to render a strike lawful, to be reasonable conditions, and not such as to place a limitation on freedom of association.
  15. 15 In several previous cases the Committee has considered that for a strike designed to bring pressure to bear on a government on a political question to be treated as illegal is not a violation of freedom of association, and that for a government to inform a trade union that a proposed strike would, according to the legal advice which it had received, be illegal because it was not in furtherance of a trade dispute would not constitute an infringement of freedom of association either. Moreover, in several previous cases the Committee has accepted that a strike, to be legal, may be subject to certain formalities and have to conform to certain legislative requirements; thus the Committee has recognised, for example, that previous notice to the administrative authorities and obligation to have recourse to conciliation and arbitration procedures in collective disputes before starting a strike are required in the laws and regulations of a large number of countries and that provisions of this kind could not be regarded as constituting an infringement of freedom of association.
  16. 16 In the present case it would seem that the Government declared the strike to be illegal for similar reasons: the non-occupational nature of the strike, declaring the strike without having given the notice required by law. However, in its reply, after recalling that the Preamble to the Constitution of 1946, the guarantees of which were renewed in the Constitution of the Community dated 4 October 1958, proclaims that the right to strike is granted to citizens subject to the laws regulating the exercise of the right, the Government states that it has taken the view that, in the absence of any such regulation, the recognition of the right to strike cannot be regarded as excluding the placing of any necessary limitations on its exercise, as on the exercise of any other right, in order to prevent its being utilised abusively or in a manner contrary to the requirements of public order, and that it is for the Government, as it is responsible for the proper operation of public services, to determine itself, in respect of such services, the nature and extent of the limitations in question. According to this statement, it would seem that the function is reserved to the authorities alone, in each case, to determine in their discretion what limitations should be placed on the right to strike and to determine them unilaterally without the existence of any legal text, apart from the general principle enunciated in the Constitution, laying down criteria on the basis of which the Government could act and by which it would be bound. It appears to the Committee that there is serious danger of such a system giving rise to abuse and that this fact should be drawn to the attention of the Government.
  17. 17 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the danger of abuse entailed by a régime under which, where the right to strike is recognised by the Constitution of the Community, it is left to the governmental authorities alone to determine in their discretion the limitations which shall be placed upon its exercise, and to express the hope that regulations prescribing the criteria to be followed in this connection may be drawn up and brought into force at the earliest possible date.
  18. 18 As regards the requisitioning of officials and the suspension or dismissal of those who did not observe the requisition order, the Committee, in a previous case - in which the strikers had been called up - considered that mobilisation in order to break a strike movement may imply very serious consequences for the workers and for the exercise of their trade union rights, and recommended the Governing Body to draw the attention of the Government to the possibility of abuse involved in the mobilisation of workers in industrial disputes and to emphasise the undesirability of recourse to such measures except for the purpose of maintaining essential services in circumstances of the utmost gravity.
  19. 19 While recognising that there is an important difference between requisitioning and mobilising workers-the former not involving subjection of the persons concerned to military authority-the Committee considers that the requisitioning of workers in the case of a dispute may also involve the possibility of abuse if it is not accompanied by the necessary safeguards, and recommends the Governing Body to draw this fact to the notice of the Government.
• Allegations concerning the Arrest of Trade Unionists Who Had Taken Part in the Strike
  20. 20 The complainants allege that after the strike a number of trade unionists were arrested; their names and occupations are given by the I.F.C.T.U. In its reply the Government recognised that, after the demonstrations, proceedings were instituted by the judicial authorities against a number of persons. These proceedings, the Government states, took their normal course and the seriousness of the events with which the persons proceeded against were charged was evaluated by the courts. After careful consideration by examining magistrates sentence was passed in January 1960. Among the accused persons, several were sentenced by the criminal court of first instance (tribunal correctionnel) to one year's imprisonment for organising a non-declared and forbidden demonstration and for participating in it; others were sentenced to eight months' imprisonment for taking part in a non-declared and forbidden demonstration.
  21. 21 In its reply the Government stresses the fact both that the sentences were passed after ordinary judicial proceedings containing full safeguards for the persons concerned, and that they were passed in virtue of Law No. 59-118 of 27 August 1959 concerning the strengthening of public order, the Law having " no other purpose but to ensure public order in the Ivory Coast against anyone disturbing it, for the benefit of all citizens ". The Government goes on to say that the fact of persons' belonging to trade union organisations cannot exempt them from observance of legal provisions of a general nature and that, similarly, it would be an abuse of language to label as infringements of the free exercise of trade union freedoms sentences regularly passed under the ordinary law against various individuals just because those individuals were members of trade union organisations.
  22. 22 In support of these statements the Government furnishes the text of the enactment pursuant to which the sentences were passed and the text of the judgment handed down. It would appear from these documents that the persons concerned enjoyed the benefit of normal judicial procedure attended by adequate guarantees, in the sense that they were brought before an ordinary court, sitting in public session, that the accused were defended by counsel of their own choosing and that they had the right to lodge appeals, although they did not avail themselves of that right.
  23. 23 In these circumstances, although the sentences passed-unless there are considerations in the case to which no reference is made in the Government's reply-may appear to have been severe, the Committee, observing that the possibilities of appeal under the national procedure to an independent tribunal have not been fully exhausted, recommends the Governing Body, as it did in an earlier case for a similar reason, to decide that this aspect of the case does not call for further examination.
• Allegations concerning the Shooting of Strikers
  24. 24 The complainants allege that on 8 October 1959 the workers on strike were gathered in front of the employment office and that, when they wished to enter it, they were forbidden admission by the forces of public order. The workers then withdrew and formed into a spontaneous procession through the streets of the town where they again came up against the forces of public order, which fired on the crowd, causing, according to the I.F.C.T.U, 17 casualties, one of whom was seriously wounded, and according to the W.F.T.U, 23 casualties and one death.
  25. 25 In reply to this allegation the Government writes as follows: " While it is true that demonstrations designed to disturb public order were organised in Abidjan in October 1959, it is incorrect that there were any deaths or casualties on this occasion. As the head of the Government of the Ivory Coast said in October 1959, these demonstrations led to neither death nor injury."
  26. 26 The Committee is here faced with two contradictory statements. According to the complainants, the demonstrations mentioned above caused injuries, and even one death; according to the Government-which is quite categorical in its statements-there was neither one nor the other. It is to be noted that compared with the categorical statement by the Government the allegations of the complainants are couched in fairly vague terms which do not exactly correspond in the communications of the I.F.C.T.U and the W.F.T.U. In these circumstances the Committee might normally have considered that the complainants had not produced sufficient proof in support of their allegations and have recommended the Governing Body to decide that they did not, for this reason, call for further examination. However, in view of the seriousness of the allegations, the Committee considers it more appropriate to recommend the Governing Body to ask the two complaining organisations for additional information in support of their allegations, particularly for the names and descriptions of the persons stated to have been killed or injured.

The Committee's recommendations

1. 27. In the circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the danger of abuse entailed by a régime under which, where the right to strike is recognised by the Constitution of the Community, it is left to the governmental authorities alone to determine in their discretion the limitations which shall be placed upon its exercise, and to express the hope that regulations prescribing the criteria to be followed in this connection may be drawn up and brought into force at the earliest possible date;
   • (b) to draw the attention of the Government to the possibility of abuse involved in the mobilisation of workers in industrial disputes and to the need for such a measure to be attended by all necessary guarantees and not to be resorted to except in circumstances of the utmost gravity;
   • (c) to note, while observing that the sentences passed on trade unionists who took part in the strike appear to have been severe, that the possibilities of appeal, under the national procedure, to an independent tribunal were not fully exhausted, and to decide for this reason that this aspect of the case does not call for further examination;
   • (d) to request the two complaining organisations, for the reasons indicated in paragraphs 24 to 26 above, for additional information in support of their allegations that demonstrators were killed or wounded when the police fired on them, and, in particular, as to the names and status of the persons alleged to have been killed or wounded;
   • (e) to take note of the present interim report with regard to the part of the case referred to in subparagraph (d) above, it being understood that the Committee will report further thereon when it has received the information requested from the complainants.
     • Geneva, 24 May 1960. (Signed) Roberto AGO, Chairman.