Compilation of decisions of the Committee on Freedom of Association

Trade union and employers organizations rights and civil liberties2

Guarantee of due process of law

1. The Committee stressed the importance that should be attached to the right of freedom and security of person and freedom from arbitrary arrest and detention, as well as to the right to a fair trial by an independent and impartial tribunal, in accordance with the provisions of the Universal Declaration of Human Rights.

1. Because of the fact that detention may involve serious interference with trade union rights and because of the importance which it attaches to the principle of fair trial, the Committee has pressed governments to bring detainees to trial in all cases, irrespective of the reasons put forward by governments for prolonging the detention.

1. It is one of the fundamental rights of the individual that a detained person should be brought without delay before the appropriate judge, this right being recognized in such instruments as the United Nations International Covenant on Civil and Political Rights and the American Declaration of the Rights and Duties of Man. In the case of persons engaged in trade union activities, this is one of the civil liberties which should be ensured by the authorities in order to guarantee the exercise of trade union rights.

1. It is one of the fundamental rights of the individual that a detainee be brought without delay before the appropriate judge and, in the case of trade unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights.

1. Anyone who is arrested should be informed, at the time of the arrest, of the reasons for the arrest and should be promptly notified of any charges brought against her or him.

1. 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.

1. The Committee has emphasized the importance that should be attached to the principle that all arrested persons should be subject to normal judicial procedure in accordance with the principles enshrined in the Universal Declaration of Human Rights, and in accordance with the principle that it is a fundamental right of the individual that a detained person should be brought without delay before the appropriate judge, this right being recognized in such instruments as the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man and the American Convention of Human Rights.

1. Detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority.

1. Respect for due process of law should not preclude the possibility of a fair and rapid trial and, on the contrary, an excessive delay may intimidate the employers leaders concerned, thus having repercussions on the exercise of their activities.

1. As concerns allegations that legal proceedings are overly lengthy, the Committee has recalled the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied.

1. Justice delayed is justice denied.

1. The absence of guarantees of due process of law may lead to abuses and result in trade union officials being penalized by decisions that are groundless. It may also create a climate of insecurity and fear which may affect the exercise of trade union rights.

1. The safeguards of normal judicial procedure should not only be embodied in the law, but also applied in practice.

1. The Committee has drawn attention to the importance that should be attached to the principle that not only must justice be done, it must also be seen to be done.

1. When the Government carries out investigations on trade unions and their members, they should be based on duly founded accusations and kept strictly confidential, in order to prevent trade unions, their officials and members from being stigmatized, a situation that could pose a threat to their lives or safety.

1. Due process of law should include the non-retroactive application of the criminal law.

1. 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.

1. If a government has sufficient grounds for believing that the persons arrested have been involved in subversive activity, these persons should be rapidly tried by the courts with all the safeguards of a normal judicial procedure.

1. In 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 allegations.

1. In many cases, the Committee has asked the governments concerned to communicate the texts of any judgements that have been delivered together with the grounds adduced therefor.

1. The Committee has emphasized that when it requests a government to furnish judgements in judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary. The very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known.

1. The Committee has 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.

1. If in certain cases the Committee has reached the conclusion that allegations relating to measures taken against trade unionists did not warrant further examination, this was only after it had received information from the governments showing sufficiently precisely that the measures were in no way occasioned by trade union activities, but solely by activities outside the trade union sphere that were either prejudicial to public order or political in nature.

1. When it appeared from the information available that the persons concerned had been judged by the competent judicial authorities, with the safeguards of normal procedure, and sentenced on account of actions which were not connected with normal trade union activities or which went beyond the scope of such activities, the Committee has considered that the case called for no further examination.

1. Any trade unionist who is arrested should be presumed innocent until proven guilty after a public trial during which he or she has enjoyed all the guarantees necessary for his or her defence.

1. The Committee has recalled that the International Covenant on Civil and Political Rights, in Article 14, states that everyone charged with a criminal offence shall have the right to adequate time and the necessary facilities for the preparation of their defence and to communicate with counsel of their own choosing.

1. Article 14 of the International Covenant on Civil and Political Rights provides that everyone convicted of a crime shall have the right to his/her conviction and sentence being reviewed by a higher tribunal according to law.

1. The right to legal counsel of ones own choosing should result in an obligation on the Government to investigate allegations of harassment of lawyers and ensure that the defendants can benefit from unobstructed legal counsel.

1. The Committee is not required to express an opinion on the question of the granting of permission for a foreign lawyer to plead.

1. The Committee considered that the provisions of a legislation which permit the Minister in his discretion to confine trade union leaders to a particular area, to prohibit them from entering the areas in which they normally carry on their trade union activities, and to hold them in solitary confinement for a 90 days' period which can be renewed, without trial or even without charges being laid, are incompatible with the right to exercise trade union activities and functions and with the principle of fair trial.