Informe provisional - Informe núm. 253, Noviembre 1987

1. 357. The ICFTU presented a complaint alleging violations of the fundamental principles of freedom of association and the right to organise, in a telegram of 12 March 1987, and in communications dated 30 March and 28 July 1987. The Government of Czechoslovakia sent its observations in a letter of 28 May 1987.
2. 358. Czechoslovakia 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). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 359. The complaint initially concerned the dissolution by the Government of Czechoslovakia of the Jazz Section of the Musicians' Union of Czechoslovakia (MUC), and the prison sentences imposed against Messrs. Karel Srp and Vladimir Kuril, for continuing to engage in trade union activities as Chairman and Secretary of the Jazz Section, respectively. The complainant organisation's communication of 30 March 1987 states that several other members of the Steering Committee were also sentenced to terms of imprisonment for the "exercise of illegal lucrative activities". On 11 March 1987 the Prague District Court No. 2 sentenced Mr. Karel Srp, Chairman of the Jazz Section, to 16 months' detention, Mr. Vladimir Kuril, Secretary of the Jazz Section, to ten months, Mr. Josef Skalnik, Deputy Chairman, to a ten-month suspended sentence and three years' probation, and Messrs. Cestmir Hunat and Tomas Krivanek to two years' probation. The public prosecutor has appealed the Court's decision. Two other defendants in the trial, Messrs. Milos Drda and Vlastimil Drda were both excused from appearing in court on medical grounds, and are to stand trial at a later date. According to the ICFTU, these trade unionists were arrested on 2 September 1986 on the grounds of "operating an unauthorised enterprise", "engaging in illegal lucrative activities", and "distributing illegal publications". On 28 December 1986, a Prague court ordered the release of two members of the Jazz Section, Josef Skalnik and Milos Drda, and on 22 January 1987, another court ordered the release of Messrs. Vlastimil Drda, Tomas Krivanke and Cestmir Hunat.
2. 360. The complainant states that the arrest of the seven persons mentioned above was the culmination of several years of administrative harassment of the Jazz Section, and of anti-union discrimination in employment and judicial repression against its leaders and members.
3. 361. As regards the dissolution of the Jazz Section, the complainant traces the history of this body with a view to explaining the activities that were brought into question in court. The Jazz Section was founded on 30 October 1971 as part of the Musicians' Union of Czechoslovakia (Cesky Svaz Hudebniku), and began to offer assistance to its membership, to defend the interests of individual performers, and to publish pamphlets on jazz, contemporary music and other cultural subjects. The membership of the Jazz Section soon grew to several thousand; the Section acted as representative for jazz musicians, organised their performances, and negotiated honoraria and working conditions on their behalf; thus, it was systematically involved in all financial and organisational questions affecting jazz musicians. In 1978, the Jazz Section started to face harassment by the authorities because of the moral support it had extended to members of a musical group who had been tried for expressing views allegedly hostile to the Government. The complainant also alleges that between 1982 and 1984, the Government launched a series of attacks through the official press against the Jazz Section and its activities. In March 1983, the Government ordered the Jazz Section to disband, which it refused to do. However, following strong pressure from the Government, the MUC disbanded the Jazz Section on 15 June 1983; subsequently, leaders and members of the Jazz Section created a new section, as part of the Prague Division of the MUC. However, on 19 July 1984, the Prague Division was ordered to disband by a decree of the Ministry of Internal Affairs. Later, on 22 October, a second administrative order to this effect was issued. The Jazz Section, which would also have been dissolved as a result, replied that according to its own by-laws, it could decide on its dissolution only by way of a two-thirds majority vote of its membership. On 21 January 1985, the Ministry of Internal Affairs issued its final decision on the dissolution of the Prague Division. On 15 January 1986, the Supreme Court refused to review the legality of the administrative dissolution of the division.
4. 362. The complainant organisation alleges that Mr. Karel Srp, Chairman of the Jazz Section, lost his employment as technical editor at the government-owned Panton Recording Company on 28 February 1984, owing to his trade union activities. It also alleges that officials of the Ministry of Internal Affairs and police officers raided the headquarters of the Jazz Section, removing files, membership lists, books and cassette tapes.
5. 363. In October 1985, Mr. Petr Cibulka, a member of the Jazz Section and signatory of Charter 77, was sentenced to seven months' imprisonment for having "insulted the nation". According to the Jazz Section, however, Mr. Cibulka was prosecuted for his involvement in activities linked with the Jazz Section. This sentence was upheld on appeal on 15 January 1986 and Mr. Cibulka was sentenced to three years of "protective supervision".
6. 364. After having lost his employment, Mr. Karel Srp was accused on 18 December 1985 of "social parasitism" by the Ministry of Internal Affairs, whose officials hinted that, since he was unemployed, he could be prosecuted under such a charge, as well as under the charge of "illegal lucrative activities" allegedly carried out within the Jazz Section. The complainant states that these threats were actually linked to the authorities' displeasure at Mr. Srp's presence at the Cultural Forum of the Conference on Security and Co-operation in Europe, held the previous month in Budapest as part of the Helsinki agreements. On 8 January 1986, the authorities withdrew Mr. Srp's passport, in apparent retaliation to his trip to Budapest.
7. 365. Other members of the Jazz Section were also imprisoned: on 28 April 1986, Mr. Jaroslav Svestka was sentenced to two years' imprisonment followed by three years of protective custody for "harming the Republic's interests abroad". In this case as well, the complainant states that the sentence appears to be related to Mr. Svestka's attempts to seek international support for the Jazz Section and its members. His sentence was later reduced on appeal. Mr. Vlastimil Marek was arrested and charged with the same offence. However, he was released after two months.
8. 366. As concerns the trial of the Jazz Section's leaders, the complainant declares that, according to information in its possession, the court refused to hear the testimony of Mr. Prusha, the Section's legal adviser (Mr. Prusha had previously been prevented by the authorities from exercising his professional duties as an attorney in four civil cases). It also states that the only matters examined by the court were the accusations concerning the Jazz Section's financial activities, and that the court did not debate the legality of the Jazz Section's dissolution. Furthermore, the complainant notes that the President of the Court, Judge Vladimir Striborik, imposed considerably lighter sentences than those requested by the State Prosecutor (a four-year sentence against Mr. Karel Srp) and said that the Jazz Section's work was "of high quality ... (and) commendable, but needs a legalised form". Hence, it appears that the Judge's sentences were based on section 118, paragraph 1 of the Penal Code, which punishes illegal economic activities, whereas the prosecution had based its calls for severe sentences on section 118, paragraph 2, which concerns the exercise of illegal economic activities "involving considerable profit". According to the complainant, the application of the lighter sentences under paragraph 1 of section 118 implies that the court chose to take into account only such economic activities as were conducted after 15 January 1986, the date on which the Supreme Court refused to review the legality of the administrative dissolution of the Jazz Section of the Prague Division, and not those undertaken since 22 October 1984, as requested by the prosecution, which corresponds to the date of the second dissolution Decree issued by the Ministry of Internal Affairs.
9. 367. As concerns this Decree, the complainant states that it was informed that it had been issued on the basis of Act No. 126/68 entitled "Act on certain transitory measures to re-enforce the public order" and adopted in the wake of events which marked the country in 1968. This Act permits the dissolution, at the Ministry of the Interior's request, of organisations which threaten the stability of the State during a period of crisis, without a prior examination by a court of law. Act No. 126 provided the right of any organisation liable to administrative dissolution to lodge an appeal; this right was subsequently removed by Decree No. 99 (paragraph 6) of 22 August 1969, for a period ending 31 December 1969. The complainant alleges that the dissolution Decree of October 1984 should have mentioned the possibility of lodging an appeal, but that despite this omission, the Jazz Section had nevertheless appealed against the Decree to the Constitutional Court, on the grounds that the legislation invoked for the organisation's dissolution (namely, Act No. 126/68) was no longer in force, in view of its transitory nature. However, although the Constitutional Court was created in 1968, it was never formally installed and thus the appeal was not heard. Another legal petition to squash the Decree, introduced by the complainant before the Prague Municipal Court, was rejected ab initio and on appeal.
10. 368. In its communication of 28 July 1987, the ICFTU sent additional information concerning the dismissal of Mr. Karel Srp, alleging anti-union discrimination. On 27 November 1983, Mr. Karel Srp was given notice of dismissal from his employment with the Panton Music Fund, under the pretext of an administrative reorganisation which eliminated the post of technical editor which Mr. Srp had held for 11 years and for which he had been decorated as exemplary worker. Mr. Srp challenged the legality of the notice in court; however, the Prague District Court No. 1 rejected this challenge on 7 June 1984, and its decision was upheld on appeal on 7 September 1984. Mr. Srp remained unemployed for a certain time and subsequently found work at the JRD co-operative farm in Kamenica. According to the complainant, the court's decisions were based on the above-mentioned administrative reorganisation, and on the fact that no position within the Panton enterprise was available for Mr. Srp, who had been dismissed in accordance with the law. The complainant states that on 12 February 1987 it was informed by means of copies of crucially important documents that certain state authorities, in particular the Ministry of Culture, exceeded their mandate by seeking to have Mr. Srp dismissed owing to his activities in the Jazz Section. It appears that the authorities fabricated a situation by taking certain measures to ensure that Mr. Srp's dismissal would appear to be in accordance with the spirit of the law and international conventions. On 13 March 1987, Mr. Srp requested authorisation to re-open the matter, but the Municipal Court forwarded the matter to another jurisidiction which has yet to rule. The complainant states that at present the post of technical editor which Mr. Srp had held previously has now been reinstated. The ICFTU also reports that the sentences handed down on 11 March 1987 (see paragraph 359 above) as regards the leaders of the Jazz Section were upheld on appeal on 12 May and that Mr. Vladimir Kuril was released on 2 July after having served his sentence.

B. The Government's reply

1. 369. The Czechoslovakian Government sent its observations concerning the complainant's allegations in a communication dated 28 May 1987. As the complaint is based on the assumption that the Jazz Section was an organisation as defined by Article 10 of Convention No. 87 (in other words an organisation of workers for furthering and defending the interests of workers), the Government's reply proposes to show that this was not the case.
2. 370. The Government recalls that the Jazz Section had been set up in October 1971 as a section of the Musicians' Union, a "voluntary mutual interest organisation." Its aims and duties, as well as the nature of its activities, were subject to the "Regulations for organisations", approved by the Musicians' Trade Union Central Committee. The Government encloses a copy of this document as well as Newsletter No. 1 (dated 30 October 1971) of the Jazz Section. The Government also supplies a copy of the objectives which the Jazz Section had drawn up upon it creation, namely "to promote the development of jazz music and foster its integration into society's cultural life".
3. 371. According to the Government, the Jazz Section considerably overstepped its mandate over the course of the years; in addition to its activities in the area of music, it published books and other publications on such subjects as creative arts, photography and fiction and the translation of foreign writers. It also engaged in the production and sale of posters, the recording of music on cassettes which it then sold, the organisation of exhibits for a number of organisations and other promotional activities. In the area of music, in keeping with its objectives, the Jazz Section helped to establish groups of non-professional musicians and organised concerts and recitals for professional and amateur musicians.
4. 372. Leaving aside the questions of legality, tax evasion, copyright infringement and others which marked the Jazz Section's activities, the Government indicates that in addition to fulfilling its objectives as regards the promotion of jazz music, the Jazz Section engaged in a number of commercial operations. According to the Government, the Jazz Section's activities were never concerned with the occupational interests of its members, and the Jazz Section never aspired to become a trade union organisation, or pretended to be one. Rather, its members were jazz fans, and those among them who were employed, were organised at their workplace. Most professional musicians, with the exception of self-employed artists, belonged to the Trade Union of Workers in Art, Culture and Social Organisations; this trade union is part of the workers' movement and participates in collective bargaining on behalf of its members with their employers; the fruits of this bargaining are reflected in the regulations concerning wages and conditions of work issued by state bodies. These regulations apply to professional as well as amateur musicians.
5. 373. The Government states that none of the members of the Jazz Section considered their affiliation to the section as equivalent to membership in a trade union organisation; moreover, none of them renounced their membership in the Revolutionary Trade Union Movement owing to their membership in the Jazz Section. Thus, the Government does not consider that there is any relationship between the activities of the Jazz Section and its own obligations flowing from its ratification of Conventions Nos. 87 and 98 on freedom of association and collective bargaining.

C. The Committee's conclusions

1. 374. The case before the Committee concerns the administrative dissolution of the Jazz Section (Prague division), the loss of employment by its Chairman which, according to the complainant, represents anti-union discrimination, and the imprisonment of its Chairman and certain leaders and members of the Section for "illegal lucrative activities", among others.
2. 375. As regards the arrest and imprisonment of Mr. Karel Srp and other leaders and members of the Jazz Section, the Committee is not in a position to judge whether the grounds on which they were sentenced involved activities that can normally be considered to be trade union in character.
3. 376. As regards the question of the Jazz Section's status as an occupational organisation, the Committee considers that these workers, as professional musicians, had the right, under the principles of freedom of association, to organise in workers' associations with a view to defending their interests; to the extent that they organised for this purpose, and although the trade union aspects of their activities may not have been clearly defined at the outset, the Committee considers that they had the right to form an organisation for this purpose.
4. 377. On the basis of all the information available to the Committee, it seems that in this case the right of the workers concerned to organise and defend their occupational interests has been infringed. The Committee regrets that the organisation known as the Jazz Section was dissolved in violation of its by-laws, by the Decrees of 19 July and 22 October 1984 of the Ministry of Internal Affairs; the Committee recalls that it has always attached great importance to the generally accepted principle set out in Article 4 of Convention No. 87, according to which workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority.
5. 378. As regards the allegations concerning the raid by the police and officials of the Ministry of Internal Affairs on the headquarters of the Jazz Section, as well as the confiscation of files and membership lists, to which the Government did not reply, the Committee recalls that the search of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority, when that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the said premises material to a prosecution for a penal offence, and on condition that the search be restricted to the purposes in respect of which the warrant was issued (see 236th Report, Case No. 1269 (El Salvador), para. 536).
6. 379. The Committee regrets that the Government did not supply more information concerning the loss of employment by the Chairman of the Jazz Section, Mr. Karel Srp, on 27 November 1983. The Committee notes that Mr. Srp lost his employment as technical editor in the state-owned Panton undertaking following an administrative restructuring and the unavailability of another post for Mr. Srp; however, at present, the post of technical editor has been reinstated and filled. Although the dismissal took place in accordance with the law, the information available to the Committee would appear to indicate that the dismissal was based on the fact that Mr. Srp was the Chairman of the Jazz Section, all the more so since the dismissal took place at a time when the Government had issued an order for the Jazz Section's dissolution, and when the Jazz Section had been separated from the Musicians' Union of Czechoslovakia (MUC) on 15 June 1983. While noting that the judicial authorities have yet to render an opinion concerning Mr. Srp's dismissal, the Committee would point out that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, as stipulated in Article 1 of Convention No. 98, especially as regards dismissals, and that this protection is all the more important in the case of trade union officials (see 233rd Report, Case No. 1207 (Uruguay), para. 421, and 236th Report, Case No. 1113 (India), para. 130).