Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 336, Marzo 2005

1. 145. The Committee has already examined the substance of this case at its March and November 2002 and March 2004 meetings, and on those occasions it presented interim reports to the Governing Body [327th Report, paras. 140-161; 329th Report, paras. 160 174; 333rd Report, paras. 182-215; approved by the Governing Body at its 283rd, 285th and 289th Sessions].
2. 146. The complainant organization sent new allegations and additional information in communications dated 3 May, and 8 and 27 June 2004.
3. 147. The Government has sent its replies in communications dated 3 September and 3 November 2004.
4. 148. Algeria 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. Previous examination of the case

1. 149. In its previous examination of the case, the Committee made the following recommendations [see 333rd Report, para. 215]:
   • (a) The Committee requests the Government to specify reasons for which the complaint of the SNAPAP against the decision to close its Oran premises was, in its view, groundless, to indicate whether the rulings to suspend the complainant organization and to close its Oran office are still in force and, if this is the case, to revoke these decisions.
   • (b) The Committee urges the Government to take the necessary steps to ensure that the seven workers who were dismissed from the Prefecture of Oran are reinstated in their posts without delay and without loss of pay, and that they receive adequate compensation should reinstatement prove impossible. The Committee requests the Government to keep it informed of all steps taken in this respect.
   • (c) Regarding the representativeness of the complainant organization, the Committee requests the Government to take legislative or other steps so as to allow the determination of the representativeness of the complainant organization on the basis of objective and pre-established criteria, without revealing the identity of its members – for instance, by organizing ballots. The Committee requests the Government to keep it informed of measures taken in this respect.
   • (d) The Committee once again urges the Government to take the necessary steps to ensure that workers who are members of the SNAPAP can establish and join federations and confederations of their own choosing. It also requests to be kept informed with regard to the effective recognition of the Algerian Confederation of Independent Trade Unions (CASA) and of the Union of Civil Protection Officers. The Committee reminds the Government that the Office is at its disposal for assistance in this area.
   • (e) As regards the allegations of violent acts perpetrated by the authorities on 29 January 2003, namely, the beating of union members who were holding a sit-in, the Committee requests the Government to communicate its observations on these allegations without delay.
   • (f) With regard to the allegations concerning the arrest and detention of Mr. Salim Mecheri, National Secretary of the SNAPAP, Mr. Fodhil Agha and Mr. Djilali Bensafi, members of the trade union branch at the Oran Teaching Hospital (OTH), for posting notices about a lawful general strike in the health sector, and the allegation that the police summoned for questioning Mr. El Hachemi Belkhir, Mr Mohamed Benahmed, Mr. Rabeh Mebarki, Mr. Mokhtar Mesbah, Mr. Benchâa Benatia, Mr. Mohamed Bekhil and Mr. Djeloul Amar Behida, the Committee requests the Government to communicate its observations on these new allegations without delay.
   • (g) Concerning Mr. Bourada and Mr. Himer who, according to the Government, tried to force their way into the office of the Director of the OTH while addressing insults and death threats against him, the Committee requests the Government to provide a copy of the judgement by which they were condemned.
   • (h) Concerning the decision to cancel the transfers of the members of the National Vocational Training Union, the Committee requests the Government to provide its observations on these new allegations.

B. New allegations

1. 150. In its communication of 3 May 2004, the SNAPAP alleges that Mr. Khaled Mokhtari, Secretary-General of the National Union of Legal Personnel (UNPJ), was subjected to disciplinary measures in violation of trade union rights. At the 11 December 2003 session of its national council, the UNPJ had presented a list of demands, one of the essential points on which concerned the opening of negotiations with the ministry involved, and a motion in principle for a sit-in to be held in front of the ministry. As the ministry did not respond to these demands, the executive of the UNPJ decided on 23 April 2004 to hold the sit-in on 5 May. On 27 April, Mr. Mokhtari was suspended from his duties for being absent for the whole of 24 April, despite the fact that he had in fact been recovering from an illness. On 28 April, Mr. Mokhtari was put on probation (meaning that he was obliged to present himself to the authorities four times a week and was prohibited from leaving the commune) on the grounds of his having incited a mob. The SNAPAP considers this punishment unjustified and disproportionate and believes it to be an act of intimidation against its members and trade unionists in general.
2. 151. In its communication of 8 June 2004, the complainant organization states that seven trade union members working at the headquarters of the Prefecture of Oran were placed on probation, given suspended sentences of six months and fined DZD5,000. Six trade union members working at the training hospital were remanded in custody for four days, given suspended sentences and dismissed from their positions. The Prefect of Oran is pressurizing workers to withdraw their membership of the SNAPAP and to denounce the involvement of the ILO in the conflicts between the SNAPAP and the Algerian authorities.
3. 152. In its communication dated 27 June 2004, the complainant organization accuses departments of the Ministry of Labour of showing bias by stating their acknowledgement, in a communication of 22 June 2004, of the election of new SNAPAP leadership bodies and the election of Mr. Belkacem Felfoul as the SNAPAP President, which took place at a so-called “extraordinary congress” held at Sidi Fredj on 25 and 26 May 2004. The complainant organization disputes the legitimacy of this congress, and insists that Mr. Malaoui’s position as Secretary-General was confirmed at a SNAPAP management conference held in Algiers on 19 June; his term of office will be completed in March 2005 and a congress must be held during the first four months of 2005 with a view to an election.

C. The Government’s new reply

1. 153. In its communication of 3 September 2004, the Government presents detailed observations in reply to the recommendations and requests contained in the 333rd Report of the Committee.
2. 154. With regard to the complaint by the SNAPAP regarding the closure of its Oran premises and related issues [Recommendation 215(a) of the 333rd Report], the Government notes that it has sent the Committee its reasons for closing the premises and recalls that the decision to close the premises was based on a bailiff’s statement that the SNAPAP trade union section at the Prefecture at Oran was no longer representative in the sense given by sections 34-37bis of Act No. 90-14 of 2 June 1990 concerning forms of exercise of trade union rights, and that it could therefore no longer carry on trade union activities in the workplace. The closure of the premises is a result of this lack of representativeness. This concerned only the Oran section, and not the organization itself, which continues to carry out its activities freely at national level. In order to reopen an office on Prefecture premises, the trade union section will have to prove its representativeness within the Prefecture by means of elections demonstrating that its membership makes up at least 20 per cent of the total number of eligible workers (section 35 of Act No. 90-14 of 2 June 1990). Under this Act, the SNAPAP is allowed to bring the matter before a competent court of law. However, aware that it would not be able to meet the required legal conditions, it has not taken this path.
3. 155. With regard to the seven workers dismissed from the Prefecture of Oran [Recommendation 215(b)], the Government recalls its previous statement that the sanctions taken against these trade union members resulted from serious professional errors committed by them within a public administration building, namely, behaviour of a type to cause serious disruption to the running of public services. This took the form of a demonstration inside the premises of the Prefecture with signs and placards, followed by hindrances to people’s freedom to work, disruption of public order and damage to public property. This led the employer to take the matter to court where the demonstrators were given suspended sentences of three months and charged fines of DZD5,000. After the sentencing, the demonstrators’ employer summoned them before a joint committee sitting as a disciplinary council which decided to dismiss them. Therefore, a work relationship could no longer continue between these workers and their employer, the public administration.
4. 156. With regard to the representativeness of the complainant organization [Recommendation 215(c)], the legislation provides that, in the framework of a single employer, those trade unions shall be considered as representative that group together at least 20 per cent of all workers (articles 34-37bis of Act No. 90-14 of 2 June 1990). By virtue of section 40 of the same Act, any organization may establish a structure in any enterprise, institution or administration in order to ensure the representation of the workers covered if it groups together at least 30 workers. The employer organization is obliged to verify the application of these conditions, without any distinction or exception. No trade union organization claiming to be representative at the Prefecture of Oran has provided it with any information that would allow it to verify that organization’s representativeness with a view to forming a union section in the workplace. Despite this, the SNAPAP has benefited from financial assistance from the State in the context of the promotion of social dialogue. The Government recalls that Act No. 90-14 has been recognized as being in conformity with Convention No. 87.
5. 157. With regard to the possibility of establishing federations and confederations, the effective recognition of the Algerian Confederation of Independent Trade Unions (CASA) and the Union of Civil Protection Workers [Recommendation 215(d)], the Government states that the SNAPAP is registered as a trade union organization for public administration personnel and not as a confederation of trade union organizations. In a letter dated 20 April 2003, the Government reminded the SNAPAP of the substance of section 4 of Act No. 90-14 of 2 June 1990, which provides that “unions, federations, and confederations shall be governed by the same provisions as those which apply to trade union organizations”. In no way does this provision present an obstacle to the establishment of unions or federations. Civil protection officers may form a trade union organization if they so wish; as soon as such an organization is registered, it may affiliate to a confederation of their choice. As regards the CASA, the Government sent its observations to the Committee at the appropriate time, and the competent authority sent, on 30 April 2001, its own observations to the parties that were proposing the establishment of the confederation (a copy of which forms Annex 2 of the Government’s communication). These parties, which include the SNAPAP, have still not replied to these observations to this day; this would indicate that it was an isolated initiative on the part of a single trade union organization rather than an expression of the collective will of [all] the trade union organizations involved. Whatever the case, the competent authority awaits this response in order to be able to complete its examination of the issue.
6. 158. With regard to the allegations of violent acts perpetrated on 29 January 2003 against union members who were holding a sit-in [Recommendation 215(e)], the Government states that the individuals involved were disrupting public order and endangering public and private property, and that this led the authorities to intervene in order to maintain order and protect property and persons. This intervention had nothing to do with any alleged violations of trade union rights; rather, it fell under the authorities’ mandate to maintain public order and protect persons and property.
7. 159. As regards the allegations concerning the arrest and detention of Mr. Salim Mecheri, Mr. Fodhil Agha and Mr Djilali Bensafi, and the questioning by police of Mr. El Hachemi Belkhir, Mr. Mohamed Benahmed, Mr. Rabeh Mebarki, Mr. Mokhtar Mesbah, Mr. Benchâa Benatia, Mr. Mohamed Bekhil and Mr. Djeloul Amar Behida [Recommendation 215(f)], the Government states that Mr. Mecheri, Mr Agha and Mr Bensafi insulted, threatened and used force against the Director of the OTH, who requested officers on guard at the hospital to intervene. In a gesture of peace, the Director declined to press charges against the individuals concerned, despite their irresponsible behaviour; they were released and the case was closed. As concerns the seven other trade union members who were civil protection officers of the Prefecture of Oran, these individuals began protest actions on 4 January 2004 by launching a hunger strike and inciting workers to strike and to hinder the freedom of others to work. This constitutes a serious violation of section 34 of Act No. 90-02 of 6 February 1990 concerning the prevention and settlement of [collective] labour disputes and the exercise of the right to strike, and is an offence punishable by prison. Moreover, a bailiff’s statement established the fact that the SNAPAP did not have the legally required representativeness necessary to announce a strike. No administrative proceedings have been launched against those involved but a complaint has been submitted to the competent court in respect of the above events.
8. 160. The Government encloses a copy of the judicial decisions given against Mr. Bourada and Mr. Himer [Recommendation 215(g)].
9. 161. Concerning the decision to cancel the release of certain members of the National Vocational Training Union (UNFP) for the purposes of trade union work [Recommendation 215(h)], the Government states that this issue is regulated by Act No. 90 14 of 2 June 1990, which provides that only trade union organizations that are registered and representative at national level may demand the release of members for trade union work and engage in collective bargaining with the employer organization. As it has never submitted an application for official recognition to the competent authority, the UNFP does not legally exist in the terms given in section 4 of Act No. 90-14.
10. 162. The Government adds that conflicts have recently flared up within the leadership of the SNAPAP itself. Its leadership bodies have held several different management congresses, whose legitimacy has not yet been determined by the courts. Thus, Mr. Rachid Malaoui was Secretary-General of the SNAPAP from 2001 until the extraordinary congress of December 2003, which resulted in the election of Mr. Hamna Boumkhila as Secretary-General. On 24-25 May 2004, the SNAPAP held a further extraordinary congress which elected Mr. Belkacem Felfoul (a founder member of the SNAPAP) as Secretary-General. Further, a general labour inspectorate report of 2 August 2004 shows that a complaint was submitted to the Court of El Harrach (Prefecture of Algiers) by Mr. Felfoul against Mr. Malaoui on various grounds relating to the financial management of the SNAPAP and concerning his recognition as the legitimate Secretary-General of the organization. The Government will provide a copy of the decision of the Court once it has been passed. There are currently three leadership bodies, each of which claims to be legitimate. The internecine squabbles of the SNAPAP have caused it to lose support, harmed its ability to mobilize workers and damaged its representativeness. The election of new leadership bodies of trade unions is regulated by section 14 of Act No. 90-14, which provides that “leadership bodies of trade union organizations shall be elected and renewed in accordance with democratic principles and in compliance with the rules governing them”. Where an internal conflict arises, the parties concerned can take the matter before the relevant courts, which are the only competent bodies in this regard. For its part, the administration is observing strict neutrality and is making sure not to favour any one of the factions until the Court has given its decision on the matter.
11. 163. With regard to the allegations of the SNAPAP concerning Mr. Khaled Mokhtari, the Government states in its communication of 3 November 2004 that Mr. Mokhtari’s claim to be a member of the “National Union of Legal Personnel” is false and that the founder members of this so-called trade union organization have never submitted an application to be recognized as such, as required by sections 4 and 10 of Act No. 90-14. Like all state employees, Mr. Mokhtari is covered by rules and regulations defining his rights and obligations, and the administrative measures taken against him comply with disciplinary rules for public institutions and administrations. His employer, the Court of El Amria (Prefecture of Aï Temouchent), charged him with forming a mob and hindering people’s freedom to work inside the court building. Such behaviour is prohibited by section 100 of the Penal Code and by section 34 of Act No. 90-02 concerning the prevention and settlement of collective labour disputes and the exercise of the right to strike. Mr. Mokhtari was suspended in application of section 131 of Decree No. 85-59, which stipulates that “given the specific nature of the work entrusted to public institutions and administrations and the consequences of this in terms of the professional obligations of the workers in question, a public employee who is undergoing criminal proceedings that prevent her/him from continuing to work shall be suspended immediately. Her/his final position shall not be settled until the decision of the court to prosecute has been confirmed”. Thus, the suspension of Mr. Mokhtari is a result of his breach of professional duty and has no connection with the carrying out of trade union activities or his membership of a trade union, as he claims; it is, in fact, a protective measure taken until the Court pronounces its decision. His much vaunted trade union membership does not exempt him from complying with regulations governing labour relations in public administration – in particular, those governing the position of clerk of the court, which impose on him specific obligations. The Government adds that the SNAPAP continues knowingly to support both trade union activities carried out with respect for the law and behaviour by individual state employees that violates professional obligations. The SNAPAP is once again demonstrating a certain thoughtlessness in appealing to the Committee on Freedom of Association without ensuring beforehand that the information it has is, in fact, correct. Like all trade union organizations, the SNAPAP has every opportunity to appeal to competent judicial bodies if it believes undue measures have been taken against it by the administration, but it has never done this. The Government recalls that Act No. 90-14 guarantees the protection of trade union delegates and provides them with the means for this protection. Lastly, the Government points out that, in acting as it has done, the SNAPAP has unjustifiably set itself up as a “confederation”, in violation of relevant Algerian legislation. Moreover, in defending a “trade unionist” who is part of a trade union which is itself unregistered and with which the SNAPAP has no structural relationship, the SNAPAP has claimed a prerogative to which it has no right. This is simply one more example of its casual attitude towards relevant national legislation.

D. The Committee’s conclusions

1. 164. The Committee recalls that this case, which it is examining for the fourth time since the submission of the complaint in September 2001, concerns allegations of obstacles to the establishment of trade union organizations and confederations as well as to the exercise of trade union rights, anti-union suspensions and dismissals, acts of harassment by the authorities and arbitrary arrest and detention of trade union members.
   • Internal disputes within the SNAPAP
2. 165. With regard to the internal disputes of the SNAPAP, the Committee notes that three congresses have been held in the recent past by various opposing factions (December 2003, resulting in the election of Mr. Boumkhila; 25-26 May 2004, resulting in the election of Mr. Felfoul; 19 June 2004, confirming the election of Mr. Malaoui) and that, according to the information communicated by Mr. Malaoui on behalf of the SNAPAP in his communication of 27 June 2004, a congress is to be held during the first four months of 2005 with a view to holding an election. The Committee recalls that it is not competent to make recommendations on internal dissensions within a trade union organization, so long as the Government has not intervened in a manner which might affect the exercise of trade union rights and the normal functioning of an organization, and that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned [see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 965]. The Committee notes the Government’s assurances of neutrality on this matter, but also takes note of the complainant organization’s allegations, which claim that the Government has shown bias in favour of Mr. Felfoul by granting written recognition to his election at the Sidi Fedj congress. Noting that an appeal has been brought before the Court of El Harrach in this regard, the Committee urges the Government to maintain an attitude of total neutrality on this matter and asks it to provide a copy of the relevant judgement as soon as possible.
   • Representativeness
3. 166. The Committee notes that several of the allegations and the Government’s replies are closely connected to the issue of representativeness – for example, the closure of the SNAPAP’s Oran premises, the cancellation of the release of certain members of the National Vocational Training Union (UNFP) for trade union work and the failure to recognize the National Union of Legal Personnel (UNFJ) (see the Committee’s conclusions below with regard to each of these issues). The Committee also notes the Government’s statement, according to which any organization in the sense given in sections 34-37bis of Act No. 90-14 of 2 June 1990 may establish a structure in any enterprise, institution or administration in order to ensure the representation of the workers covered if it represents 20 per cent of the total number of workers at the establishment in question. The Committee recalls the applicable principles in this respect: on the one hand, the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 50 founder members [see Digest, op. cit., para. 255]; on the other hand, the fact of establishing in the legislation a percentage in order to determine the threshold for the representativeness of organizations and grant certain privileges to the most representative organizations (in particular for collective bargaining purposes) does not raise any difficulty to the extent that the criteria are objective, precise and pre established, in order to avoid any possibility of bias or abuse [see Digest, op. cit., paras. 309-315]. The Committee nevertheless notes that the additional requirement that the authorities make in practice – that of obtaining a list of the names of all the members of an organization and a copy of their membership card – does pose a problem with regard to these same principles. The Committee refers to its previous comments on the risk of reprisals and anti-union discrimination inherent in this type of requirement [see particularly 333rd Report, para. 207] and once again requests the Government to take the necessary steps to ensure that decisions enabling the determination of the representativeness of organizations are taken without the identities of their members being revealed; both the Committee and the Committee of Experts on the Application of Conventions and Recommendations have found that a secret ballot is an especially appropriate method for this purpose. The Committee requests the Government to keep it informed of measures taken in this regard.
4. 167. With regard to the closure of the SNAPAP’s premises at Oran, the Committee notes the latest information provided by the Government, wherein it states that the decision to close these premises, which were situated at the workplace, was taken following a bailiff’s statement declaring that the SNAPAP was not deemed representative at the Prefecture in question. The Committee requests the Government to instruct the local authorities once again to provide the SNAPAP with premises in the workplace if, in the context of a procedure that complies with the aforementioned principles, it is determined that the SNAPAP is indeed representative.
5. 168. As regards the cancellation of the release of certain members of the National Vocational Training Union for the purposes of trade union work, the regulations of the National Union of Legal Personnel as well as the regulations of the Union of Civil Protection Offices (UFPC), the Committee notes that, once again, a determining factor in this issue is the non-recognition by the authorities of the representativeness of the organizations in question. The Committee recalls that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and especially to speak on behalf of their members and to represent them in individual claims [see Digest, op. cit., para. 313]. Given these circumstances, the Committee requests the Government to take the necessary steps, if requested by the UNFP, the UNFJ and the UFPC, to determine the representativeness of these organizations through a procedure that complies with the principles outlined above and, if they are deemed representative, to grant them all the rights that accompany trade union status.
   • Formation of federations and confederations
6. 169. With regard to the possibility of forming federations and confederations and the recognition of the Algerian Confederation of Independent Trade Unions (CASA), the Committee notes the Government’s comments and, in particular, Annex 2, enclosed with the Government’s communication, which is the response of the authorities, dated 30 April 2001, to the request for recognition of the CASA. The Committee notes that, besides certain requests for further details regarding the founder members and numerous remarks and questions concerning the internal regulations of the proposed organization, the competent authority states that sections 2 and 4 of Act No. 14-90, when applied together, mean that “… the coming together of two different sectors, as is true in the case of the membership of the National Air Navigation Trade Union in this confederation of public administration sector unions, does not comply with the aforementioned section 2”. The letter concludes by rejecting the application.
7. 170. The Committee recalls that the right of workers to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations and confederations of their own choosing [see Digest, op. cit., para. 606] and that it seems difficult to reconcile with Article 5 of Convention No. 87 any provision of national law prohibiting organizations or public officials from adhering to federations or confederations of industrial organizations [see Digest, op. cit., para. 615]. The Committee therefore requests the Government to amend the legislative provisions in question without delay, in order to allow workers’ organizations to form federations and confederations of their own choosing, irrespective of the sector to which they belong. The Committee requests to be kept informed of the measures taken in this respect.
8. 171. With regard to other aspects of the issue of representativeness, the Committee recalls its previous conclusions on this matter and particularly emphasizes that the Government claims that it initiated a series of meetings, beginning in April 2002, aimed to assist the SNAPAP in forming the CASA, and that it was to carry out a review of legislation concerning freedom of association, in consultation with the social partners, in order to remove the difficulties that might arise from the interpretation of certain provisions of Act No. 90-14 of 2 June 1990 [see 329th Report, para. 166; 333rd Report, para. 210]. It must be admitted that no practical progress has been made. The Committee recalls that the acquisition of legal personality by federations and confederations shall not be made subject to conditions of such a nature as to restrict the exercise of the right to form such organizations [see Digest, op. cit., paras. 606-607]. Taking into account the time that has elapsed since the complaint was submitted, and noting that the Government claims to be awaiting the reply of the SNAPAP in order to complete its examination of the case, the Committee urges the Government to initiate consultation with the social partners without delay, in order to remove all the difficulties that might arise in practice from the interpretation of provisions relating to the establishment of federations and confederations and which could, in this case, hinder the recognition of the CASA. The Committee requests that the Government keep it informed of the measures taken in this regard and of the outcome of the discussions undertaken.
   • Individual incidents
9. 172. With regard to the arrest and detention of Mr. Salim Mecheri, Mr. Fodhil Agha and Mr. Djilali Bensafi, the Committee notes the Government’s statement that these workers were accused of threatening and insulting behaviour towards the Director of the OTH, but that the latter, in a gesture of peace, did not press charges, and that the workers were released and the case closed. The Committee takes note of this information.
10. 173. As regards the questioning by the police of Mr. El Hachemi Belkhir, Mr. Mohamed Benahmed, Mr. Rabeh Mebarki, Mr. Mokhtar Mesbah, Mr. Benchâa Benatia, Mr. Mohamed Bekhil and Mr. Djeloul Amar Behida, the Committee notes the Government’s claim that these workers launched a hunger strike on 4 January 2004, incited other workers to strike, and hindered the freedom to work. The Government also maintains that the SNAPAP does not have the legally required level of representativeness to conduct strike action. The Committee first recalls that the right to strike is a legitimate means of defending the economic and social interests of workers. Furthermore, while it does not appear that the fact of making a right to call a strike the sole preserve of trade union organizations is incompatible with the principles of freedom of association, workers, and especially their leaders in undertakings, should however be protected against any discrimination which might be exercised because of a strike and they should be able to form trade unions without being exposed to anti-union discrimination [see Digest, op. cit., para. 477]. The Committee also refers to its conclusions above concerning the principles of representativeness. Noting that a complaint on the matter has been submitted to the competent court, the Committee requests the Government to provide it with a copy of the judgement concerning the seven workers as soon as it has been pronounced.
11. 174. As regards the seven workers dismissed from the Prefecture of Oran, the Committee notes that, according to the Government, the sanctions were taken against these workers because they had demonstrated inside the premises of the Prefecture, hindered the freedom to work, disrupted public order and damaged public property; the courts gave them three-month suspended prison sentences and required them to pay fines of DZD5,000, following which a joint committee, sitting as a disciplinary council, decided to dismiss them. In the Government’s view, the work relationship could no longer continue between these workers and their management. While the Committee agrees that persons carrying out trade union activities cannot claim immunity from criminal legislation, it recalls that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed [see Digest, op. cit., para. 599]. Referring to its previous recommendation on this matter, the Committee requests the Government and the complainant organization to indicate whether any judicial appeal has been lodged against the decision of the joint committee and, if this is the case, to keep it informed of the outcome of this procedure.
12. 175. With regard to the acts of violence alleged to have been committed on 29 January 2003 against trade union members holding a sit-in, the Committee notes the Government’s statement that the police intervened to maintain order and protect persons and property, and not to hinder freedom of association, as the SNAPAP alleges. In this regard, the Committee recalls that the intervention of the police should be in proportion to the threat to public order [see Digest, op. cit., para. 582].
13. 176. As regards the case of Mr. Mokhtari, the Government replies: that the National Union of Legal Personnel (UNFJ) does not legally exist, as it has never applied for recognition; that Mr. Mokhtari is not a member of any such trade union organization; and that his temporary suspension, pending the outcome of criminal proceedings against him, is a result of serious breaches of his professional duties. The Committee refers to the conclusions stated above with regard to the UNFJ and requests the government to provide it with the judgement on Mr. Mokhtari’s case as soon as it has been pronounced.
14. 177. Concerning Mr. Bourada and Mr. Himer, the court gave these men suspended sentences of six months’ imprisonment and fines of DZD10,000 for contempt of an official on duty (that is, the Director of the OTH) and for entering his office while he was at an official meeting with Ministry of Health officials. However, they were acquitted of the charge of insult and injury, a lesser offence which is included within the offence of contempt of an official. The Committee recalls once again in this respect that all penalties should be proportionate to the offence committed.