Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 320, Marzo 2000

1. 415. The complaint in this case is contained in a communication from the National Union of Workers of Cape Verde - Trade Union Confederation (UNTC-CS) dated 26 April 1999. The UNTC-CS sent additional information in a communication dated 25 August 1999. The Government sent its observations in a communication dated 16 August 1999.
2. 416. Cape Verde 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).

A. The complainant's allegations

1. 417. In its communication dated 26 April 1999, the National Union of Workers of Cape Verde - Trade Union Confederation (UNTC-CS) states that by Legislative Decree No. 34/98 the Government dissolved the Cape Verde News Agency and the New Cape Verde Newspaper, both state-run public communication media, and set up a single organ, INFORPRESS, in their place. The complainant points out that the journalists employed by these media had learned of their dissolution through the Official Bulletin, and had at no time received any information concerning their future employment prospects. In these circumstances, the journalists turned to the Transport, Telecommunications, Hotel and Tourism Trade Union (SITTHUR). In a communication dated 17 February 1998, the latter organization requested the Deputy Prime Minister to provide an explanation by the 19th of the same month. Not having received a reply by the deadline, the SITTHUR again wrote to the Minister on 20 February 1998 announcing that a protest demonstration would be held on the 23rd of the same month, following which a document would be handed to him. According to the complainant, on 19 February 1998 the decision to hold the demonstration was communicated to the Municipal Council and the Chief of the Public Order Police of Praia, indicating the place where the demonstrators would gather and their itinerary.
2. 418. The complainant alleges that on 23 February 1998, when the journalists had gathered in front of the SITTHUR premises and prepared to begin the demonstration, a group of police officers arrived and, using threats, prevented the demonstration and seized the demonstrators' placards. The complainant states that despite the fact that the demonstration had been prevented by the police, a small group of journalists led by the Permanent Secretary of the SITTHUR, Mr. Carlos Fermino Monteiro Lopes, went to the Deputy Minister's office in order to hand over the document as planned. Once the document had been handed over, as they were on their way to work, the Permanent Secretary of the SITTHUR and another officer of the UNTC-CS, Mr. Juliao Varela, were detained by three police officers and taken to the police station of Facenda in the city of Praia, where they were imprisoned for over four hours. On the same day they were brought before the judicial authority of Praia, which ordered their immediate release and set a trial date for 3 March 1998. The trade union officers were accused of aggravated disobedience for having organized a strike before 6 p.m. and without police authorization, and of insulting the police officers who had detained them.
3. 419. Concerning the former charge against them, the complainant states that there is an Act of 1990 (Act No. 81/III/90 of 29 June) prohibiting the holding of parades and processions before 6 p.m. on weekdays, but that they considered this provision to have been tacitly revoked after the democratic regime had come to power in 1991 and in particular after the new Constitution of 1992 had entered into force. The complainant states that the judicial authority lifted the charge of aggravated disobedience against the trade union officers but that, being unable to prove that they had not committed the offence of insulting police officers, they had been sentenced to a month's imprisonment, which had been commuted to a fine.
4. 420. Lastly, the complainant expresses concern at the decision handed down by the Supreme Court of Justice following the appeal lodged by the trade union officers sentenced for insulting police officers, to the effect that Act No. 81/III/90 of 29 June is in conformity with the Constitution and its purpose is to regulate the exercise of the right to strike, not to restrict it. According to the complainant, under this decision, excessive restrictions are placed on the workers' right to demonstrate, since they can only hold demonstrations after 6 p.m., i.e. at night.

B. The Government's reply

1. 421. In its communication dated 16 August 1999, the Government states that on 19 February 1998 the SITTHUR trade union sent a note informing the Chairman of the Municipal Council of Praia and the First Police Squad of Achada de Santo Antonio that on 23 February 1998 the employees of Cabo-Press and the New Cape Verde Newspaper would hold a demonstration planned to begin at 10 a.m. On 23 February 1998, a police officer went to the premises of the SITTHUR union and informed trade union officer Carlos Lopes that the demonstration should be held after 6 p.m. and not in the morning, as this was forbidden by law. The Government states that the trade union officer replied that the demonstration had to take place, since the workers had already gathered in the trade union premises.
2. 422. According to the Government, faced with this reply the police officer ordered his subordinates to seize the placards and disperse the demonstrators. The Government adds that a group of eight or ten workers headed for the Ministry of Communication to hand a document to the Minister. The Government states that two trade union officers on their way to the Ministry met a police officer who warned them that they had already been told twice that they should not demonstrate as this was completely illegal. According to the Government, trade union officers Mr. Carlos Lopes and Mr. Juliao Varela insulted the police officers for which they were subsequently detained.
3. 423. Concerning the allegation that the trade union officers had been detained for over four hours and then transferred to the judiciary, which ordered their immediate release, the Government points out that without wishing to dispute the truth of this assertion, the allegation shows that the persons in question had been detained just long enough to draw up the relevant report and submit it to the judicial authority. The Government points out that once the facts described above had been proved, the judicial authority sentenced the trade union officers for insulting the authorities and the charge of disobedience was dismissed, since it was ascertained that the demonstration had not taken place. The Government adds that the judicial authority of first instance declared the Act of 1990 partly unconstitutional, given that the right to demonstrate should be free without any regulation by the legislator, but that in a decision on an appeal the Supreme Court of Justice had found that the Act of 1990 was perfectly constitutional and was entirely valid in the legal system of Cape Verde. The Government emphasizes that it should be pointed out in any case that the trade union officers in question had been sentenced for insulting police officers and that this cannot be considered as an act violating the right to strike. Lastly, the Government points out that Cape Verde is a democratic State governed by the rule of law, which enshrines public freedoms and the separation of powers as underlying principles of the democratic system and that as regards the Act respecting demonstrations to which the complainant objects, the Government is not competent to amend it, as this is for the National Assembly to do.

C. The Committee's conclusions

1. 424. The Committee observes that in this case the complainant alleges that the police prevented a protest demonstration called by the Transport, Telecommunications, Hotel and Tourism Trade Union (SITTHUR) on account of the dissolution of the Cape Verde News Agency and the New Cape Verde Newspaper, and that two trade union officers were arrested and prosecuted for aggravated disobedience (for non-compliance with the provisions of Act No. 81/III/90 prohibiting the holding of parades and processions before 6 p.m. on weekdays) and insulting police officers.
2. 425. As regards the allegation concerning the prohibition of a protest demonstration called by the SITTHUR union, the Committee notes that the Government states that: (1) the police had informed the trade union that under the legislation the demonstration should be held after 6 p.m. and not in the morning; and (2) the judicial authority of first instance had declared the Act of 1990 partly unconstitutional, given that the right to demonstrate should be free without any regulation by the legislator, but subsequently the Supreme Court of Justice had concluded that the Act of 1990 was perfectly constitutional and entirely valid in the Cape Verde legal system. In this respect the Committee recalls that "workers should enjoy the right to peaceful demonstration to defend their occupational interests" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 132). In this respect, the Committee considers that the time restriction placed by legislation on the right to demonstrate is not justified and may render that right inoperative in practice. In these circumstances, the Committee requests the Government to take steps to amend the legislation so that workers' organizations may freely enjoy the right to peaceful demonstration without unreasonable restrictions, in particular with regard to time. The Committee requests the Government to keep it informed in this respect.
3. 426. Concerning the alleged detention for a period of four hours, and the subsequent prosecution and sentencing of SITTHUR officers Mr. Carlos Fermino Monteiro Lopes and Mr. Juliao Varela for allegedly insulting police officers, the Committee observes that the complainant's and the Government's versions agree that the police appeared at the SITTHUR premises and prevented the holding of a planned demonstration, seizing the demonstrators' placards. The Committee notes that according to the complainant a group of workers and trade union leaders were detained after having given a document to the Ministry of Communication, whereas according to the Government they were detained on their way to the Ministry. In any event, the Committee notes that the trade union officers in question were detained for four hours and sentenced by the judicial authorities for insulting police officers but the charge of disobedience was dropped as it was understood that the demonstration had not taken place.
4. 427. Concerning the sentencing for insulting police officers - one month's imprisonment (according to the complainant the sentence was commuted to a fine) - the Committee observes that the Government states that the trade union officers had insulted police officers, while the complainant points out that they had been sentenced because they were unable to prove the contrary of the police's assertions. The Committee notes that the police authorities intervened on two occasions to prevent a peaceful demonstration, which is a legitimate trade union activity, seized the demonstrators' placards and detained two trade union members and officers, charging them with an offence (disobedience) for having attempted to hold a demonstration with another group of workers, this charge having subsequently been dismissed, and for insulting police officers at the time of their detention. Given that the alleged insults had been prompted by a detention based on an offence (disobedience) which according to the judicial authority had not been committed, the Committee deplores the fact that the trade union members have been fined for insulting behaviour.
5. 428. In these circumstances, given that the trade union officers in question had been detained for four hours, according to the Government, so that a report could be drawn up, the Committee recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity constitute, whatever its nature or duration, an obstacle to the exercise of trade union rights. (See Digest, op. cit., para. 77.) The Committee requests the Government to take this principle into account in future.