Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Government’s reply to these comments.

Article 1(d) of the Convention. In its previous comments, the Committee referred to section 288 of the Penal Code (violation of the freedom of work), which provides for imprisonment of one month to two years, including compulsory labour (pursuant to section 28 of the Code), for anyone who through violence, use of force, threats or deception causes or maintains, or endeavours to cause or maintain, a coordinated stoppage of work, with the aim of forcing an increase or decrease in wages or jeopardizing the free exercise of industry or work.

The Committee previously noted the request made by the Moroccan Labour Union (UMT) to the Government to repeal this provision which, according to the UMT, is frequently used by the courts to imprison UMT militants because of their peaceful participation in strikes. It noted the Government’s statement that the acts sanctioned under section 288 are violence, use of force, threats or deception, as well as violations of the freedom of work. The Committee previously observed that, in one of the judgements handed down under section 288, a copy of which was provided by the Government at the Committee’s request, the element constituting violation of the freedom of work was the fact of having placed stones on the access road to the workplace, without any mention of violence or of any consequences giving rise to injury. Furthermore, in four out of the nine judgements communicated by the Government, the court acquitted the accused of the charges brought against them.

The Committee also noted the complaint against the Government of Morocco presented by the UMT to the Committee on Freedom of Association on 4 September 1999 alleging the arrest of trade union leaders and members following strikes.

The Committee requested the Government to examine section 288 of the Penal Code in the light of the Convention and the restrictions that application of this penal provision causes to the free exercise of freedom of association and the right to strike, which are in fact guaranteed in the country’s Constitution (article 14).

The Committee notes that the Government reiterated in a previous report that section 288 of the Penal Code does not contradict the provisions of the Convention since it does not penalize the exercise of the right to strike but a collective stoppage of work accompanied by violence, use of force, threats or deception, and the only acts condemned by this section are acts which violate the freedom of work.

The Committee notes the Government’s statement that revision of section 288 of the Penal Code is envisaged in the context of an overall revision of the Penal Code and the new text of this section will be communicated to the Office once it is adopted.

The Committee trusts that the revision of section 288 of the Penal Code will make it possible to ensure that sanctions including the obligation to work cannot be used to repress the normal exercise of the right to strike. Noting that article 14 of the Constitution provides for the adoption of an Organic Act to lay down the circumstances and forms in which the right to strike may be exercised, the Committee requests the Government to indicate whether this Act has been adopted and, if so, to provide a copy.

Article 1(a). In its previous observation, the Committee referred to the concluding observations of the Human Rights Committee (CCPR/C/79/Add.113), further to consideration of the fourth periodic report submitted by Morocco, in which the Committee expressed its concern at the provisions of the Press Code which seriously restrict freedom of expression.

The Committee notes the adoption of Dahir No. 1-02-207 of 25 Rejeb 1423 (3 October 2002) promulgating Act No. 77-00 amending and supplementing Dahir No. 1-58-378 of 3 Joumada I 1378 (15 November 1958) establishing the Press and Publishing Code.

The Committee notes that, under the following provisions of the Press Code, prison sentences including compulsory labour may be imposed for certain offences relating to the press and in order to penalize the exercise of freedom of expression:

-  Article 20 states that any proprietor of a newspaper or editor of a publication or one of his collaborators who receives funds or any other consideration, directly or indirectly, with the exception of funds for the payment of advertising, from a foreign government or foreign third party shall be liable to imprisonment of one to five years;

-  Article 28 states that any person who produces, publishes or prints a newspaper, journal or periodical beyond the expiry date of the relevant authorization shall be liable to imprisonment of one month to one year;

-  Article 29 states that any person who knowingly puts on sale, distributes or reproduces newspapers, journals or periodicals which are detrimental to the Islamic religion, the monarchy, territorial integrity, respect for the King or public order, shall be liable to imprisonment of six months to three years;

-  Article 30 states that any person who engages in the distribution, sale, public exhibition or possession with a view to distribution, sale, or exhibition for propaganda purposes of bulletins, tracts or publications of foreign origin or receiving foreign support which are detrimental to the sacred values of the country laid down in section 29 above or to the best interests of the nation shall be liable to imprisonment of one to three years;

-  Article 40 states that any person responsible for provocation by speeches, cries or threats uttered in public places or meetings, by written tracts put on sale or exhibited in public places or meetings, by notices or posters placed on public view or by audiovisual or electronic information media which has the purpose of inciting the armed forces of land, sea or air or law enforcement officers to fail in their duties and in the obedience which they owe to their superiors shall be liable to imprisonment of two to five years;

-  Article 41 states that any person found guilty of any insult towards the King, royal princes or princesses or responsible for the publication of any newspaper, journal or periodical which is detrimental to the Islamic religion, the monarchy or territorial integrity shall be liable to imprisonment of three to five years;

-  Article 42 states that any person responsible for the publication, dissemination or reproduction in bad faith by whatever means of false reports, allegations, inaccurate facts, or fabricated or falsified items attributed to third parties, causing disruption of public order or anxiety among the general public, shall be liable to imprisonment of one month to one year. The penalty shall be imprisonment of one to five years where such publication, dissemination or reproduction may undermine the discipline or morale of the armed forces;

-  Article 52 states that any person found guilty of publicly insulting the person or rank of the Heads of State, Heads of Government or Foreign Ministers of foreign countries shall be liable to imprisonment of one month to one year;

-  Article 53 states that any person found guilty of publicly insulting the person or rank of foreign diplomatic or consular officials shall be liable to imprisonment of one to six months.

The Committee recalls that the Convention prohibits any recourse to forced or compulsory labour, including compulsory prison labour, as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system.

The Committee also recalls that the protection afforded by the Convention is not limited to activities expressing or manifesting divergent opinions in the context of established principles. Consequently, even though the aim of certain activities is to bring about fundamental changes to state institutions, this does not constitute a reason for considering that they are outside the scope of the Convention, provided that there is no recourse or call to violent methods for the purpose of achieving the desired result.

The Committee requests the Government to provide information on the practical application of the abovementioned provisions of the Press Code, indicating the number of convictions pronounced and attaching a copy of the judgements handed down in application of these provisions.