Rapport définitif - Rapport No. 236, Novembre 1984

1. 221. The complaint of the Pan-Hellenic Federation of Rural Police Officers (POYA) is contained in a communication dated 15 September 1983. The Public Services International supported this complaint in a letter of 27 October 1983. The POYA submitted further information in support of its complaint on 26 January 1984. The Government of Greece sent its observations in a communication of 18 June 1984 and the text of Decision No. 420/1983 of the Supreme Court concerning this affair on 24 August 1984.
2. 222. Greece 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. Allegations of the complainant

1. 223. According to the complainant, the Government of Greece has interfered in an arbitrary way in the administration and operation of the principal trade union organisation for Greek civil servants (ADEDY), of which it is a member. The Government is said to have taken a series of measures to remove the elected officers of the ADEDY from office and to appoint an administration whose members are closely linked to the governing Socialist Party, namely the PASOK, in order to bring Greek trade unionism under its political control.
2. 224. The complainant considers that it is directly affected by the removal from office of the legally elected members of the executive bodies of the ADEDY and it adds that its complaint is supported by 11 other federations or associations of employees in the public sector, namely. the Pan-Hellenic Federation of staff in statutory public entities and that of staff in the social services, the Federation of Graduate Officials (AT), the Association of Officials of the Ministry of Social Services, that of officials of the general accountancy service of the State, that of the civilian staff of the gendarmerie, the Pan-Hellenic Federation of Women officials, that of public health supervisors, that of official messengers, that of the civilian staff of the Ministry of National Defence and of the general staff of the army, and that of forestry officials.
3. 225. The ADEDY, the complainant explains, covers all the trade union organisations of officials who meet the conditions laid down in its constitution and consists of a general council of 85 members elected every four years by the Pan-Hellenic Congress of officials and an executive committee of 17 members elected by the general council. The general council controls the general activities of the ADEDY and elects a president, two vice-presidents and two secretaries. The executive committee carries out the decisions of the congress and the general council and appoints from among its members a chairman, three vice-chairmen, a general secretary, a deputy general secretary, a trade union secretary and a treasurer.
4. 226. The complainant states that the 24th Pan-Hellenic Congress of officials, which was held from 10 to 13 September 1979, elected the 85 members of the general council and the executive committee. since the coming into power-of the PASOK on 18 October 1981, however, the Greek Government is said to have ignored the ADEDY whenever it was called on to settle questions concerning officials and to have exerted pressure on officials to refrain from contributing financial obligations to the ADEDY. It is also said to have interfered with the publishing and distribution of a trade union journal, entitled Officials in action, with a view to closing it down and so preventing officials from being informed by their own press organ of current measures affecting them and the consequences thereof. It is even said to have prohibited the radio and television from reporting the activities of the ADEDY and to have replaced the trade unionists representing the ADEDY on the Economic and Social Council of the European Economic Community with persons of its own choice. The Government is said to have instituted proceedings against trade unionists, in particular the president of the complainant federation, on whom it imposed a fine equivalent to three months' wages because of his trade union activities. The Government is also stated to have incited the executives of certain trade union organisations of officials favourable to the PASOK to remove the elected members of the executive bodies of the ADEDY in order to obtain a majority, though the complainant recognises many of the trade unionists elected to the executive bodies at the 24th Congress of the ADEDY in 1979 did in fact favour the PASOK. Lastly, the Government is said to have intended to reduce the term of office of trade union executive bodies to three years without consulting the ADEDY.
5. 227. Faced with these anti-union measures, the general council of the ADEDY, availing itself of the provisions contained for this purpose in its constitution, decided to advance the convening of the 25th Congress to 31 August 1982, in order: to examine the problems of officials, to take decisions and, if necessary, to elect a new administration. In the meantime, however, continues the complainant, the Government's Trade Union Bill was passed on 1 July 1982 (Act No. 1264/82).
6. 228. It was at that moment, the complainant adds, that a trade union organisation which was a member of the ADEDY and sympathetic to the PASOK, applied to the Magistrate's Court of Athens, under the new Act, for the cancellation of the general council's decision concerning the convening of the 25th Congress of the ADEDY; the Court upheld the application and so prevented the convening of the Congress. At the same time, five of the 70 organisations belonging to the ADEDY made an application to the Court of First Instance of Athens to obtain the appointment of a provisional administration for the ADEDY, since, according to them, under the new trade union legislation in force, the term of office of the ADEDY administration had expired. The five persons proposed as members of the provisional administration came exclusively from the five organisations in question. The elected administration of the ADEDY, however, proved to the Court that its term of office had not yet expired and that the appointment of a provisional administration was therefore unjustified. The Court of First Instance of Athens accepted the arguments in defence of the elected members of the ADEDY executive (Decision No. 7906 of 26 July 1982).
7. 229. The complainant further alleges that the five trade union organisations that were its rivals then took the matter to the Court of Appeal of Athens, which also rejected their application, confirming the judgment of the Court of First Instance (Judgment No. 1037/82), recognising that the term of office of the elected members had not expired and that the appointment of the provisional administration was unjustified. Furthermore, the Court of Appeal considered that a reduction of the term of office of the executive bodies elected before the Act came into force was not compatible with the Freedom of Association and Protection of the Right to Organise Convention (No. 87), which had been ratified by Greece.
8. 230. The same five trade union organisations then lodged an appeal with the Supreme Court. Contrary to all expectations, according to the complainant, their appeal was upheld and the Supreme Court removed the elected administration of the ADEDY from office.
9. 231. The complainant encloses with its complaint the comments on the judgment of the Supreme Court published in the press by Mr. Christos Katharios, a former judge of the court. This legal expert considers that section 9, subsection 1, of Act No. 1264 of 1 July 1982 concerning the democratisation of the trade union movement, which provides that "the term of office of executive bodies shall not be longer than three years" and is applicable to civil servants under its section 30, cannot be retroactive since section 2 of the Greek Civil Code lays down that "the law provides for the future and has no retroactive effect". According to him, the new Act is not applicable to trade union executives that have been elected for a period of more than three years. The provisions of section 26, subsections 1 and 2, of this Act, which he does not find clear, do not appear to give retroactive effect to section 9, subsection 1. And even if the legislative authority had expressly prescribed that the provisions of section 9, subsection 1, should apply to associations whose constitutions provide that the term of office shall be more than three years, such a provision would conflict with the provisions of the Constitution and of Convention No. 87 and should be declared void. Moreover, according to this legal expert, the reduction in the terms of office laid down in the constitutions removes the right of organisations to formulate their programmes. He considers that in the present case, the persons duly charged with the administration of the association were defending themselves against interference by persons who were attempting to intrude into their association. Accordingly, even if one accepted the erroneous interpretation of the Supreme Court to the effect that section 9, subsection 2, of the Act has annulled the terms of office of trade union bodies, the members of the council elected by the congress ought to have been given preference over a provisional administration. In addition, given the general importance of this matter, the chamber of the Supreme Court which dealt with it ought, in accordance with section 563, subsection 2, clause 6, of the Code of Civil Procedure, to have referred it to the full Supreme Court, so that it could be dealt with by all the chambers of the Supreme Court together. The commentator is also highly critical of the fact that, in accordance with the judgment of the Supreme Court of 6 April 1983, the administration of the ADEDY has been entrusted to a provisional management for eight months, that is to say until elections take place for the entire new administration.
10. 232. In a later communication dated 26 January 1984, the complainant states that the Government, after the lodging of the complaint, supported the convening of a congress of officials between 1 and 4 December 1983. The complainant maintains that this congress was illegal since it had been convened by an illegally appointed administration; psychological and occupational pressures had been exerted on thousands of officials to discourage them from being candidates; 40 federations had been deleted from the register of the ADEDY; and a new electoral quotient had been introduced for the election of the representatives at the congress. Two hundred and fifty-six representatives out of 600 had taken part in this congress of a minority of officials, which was nothing but a congress of teachers, since 172 of the 256 representatives represented teachers.
11. The officials from most of the ministries, from the judicial authorities, from the tax service, from the customs service, from the social policy bodies, from the rural police and from the forestry service, the public health supervisors, the staff of the national statistical service and of the post office savings banks, the school inspectors and the inspectors of the Ministry of the Economy were not represented; that is to say, 58 per cent of officials.
12. Consequently, according to the complainant the administration of the ADEDY elected by this Congress is illegal, and the trade union organisations not represented have set up a "co-ordinating committee of trade union organisations in the public service" to defend the trade union rights of officials.
13. B. Reply of the Government
14. 233. The Government rejects several of the allegations of the complainant, which it considers vague. Thus, according to the Government, the complainant did not indicate the measures it is said to have taken, even indirect measures, that would have constituted any kind of pressure exerted on officials to keep them from fulfilling their financial obligations towards the ADEDY. Similarly, the complainant did not indicate the nature of the alleged obstacles placed in the way of publishing and distributing the journal of the ADEDY. On the contrary, the Government states, this journal remained in circulation until the previous administration of the ADEDY was replaced by the provisional administration. Again, the complainant did not mention clear facts from which it might be inferred that the Government had forbidden the radio and the television to report the activities of the ADEDY. With regard to the representation of Greece on the Economic and Social Committee of the European Economic Community, the Government states that the allegation of the complainant to the effect that the trade unionists whose names appeared on the list had been arbitrarily replaced by others was entirely without foundation.
15. 234. With regard to the allegation that proceedings had been instituted against a civil servant and a fine imposed on him, the Government states that Mr. Constantin Zanias is an official of the Directorate of Rural Police of the Ministry of Public Order and that an administrative inquiry had established that while not on duty, he had conducted himself in a manner unworthy of an official. In terms of sections 206(1)(b), (f) and (m) and 207 of Presidential Decree No. 611 of 1977 on conditions of service of the civil service, a disciplinary sanction, consisting of a fine of three months' salary was then imposed on him unanimously by a higher disciplinary authority, on disciplinary and not trade union grounds.
16. 235. With regard to the drafting of the Trade Union Bill, the Government states that it acted in terms of the promises incorporated in its programme and that it invited all the trade union organisations to express their views so the ADEDY had obviously not been excluded, as alleged by the complainant.
17. 236. As to the internal dispute that arose in the ADEDY, the Government maintains that it took no part in this, because such a dispute came within the competence of the Greek Courts, which had reached decisions at various stages. The Supreme Court handed down its judgment in this matter in Decision No. 420 of 6 April 1983. It decreed the disqualification of the ADEDY administration under the provisions of Act No. 1264 of 1982, and appointed a provisional administration through legal channels. The Government is astonished that the complainant should thus attack a decision of the Supreme Court, the expression during the present period of an independent, objective and impartial justice.
18. 237. The Government answers the criticisms made by the retired Supreme Court Judge, Mr. Katharios, by sending the response of the reporting judge who delivered the judgment of the Court, Mr. Theodoropoulos, which was published on 20 May 1983 at Athens. The gist of his statement is that the judgment in question was handed down unanimously by the President, the Judge, the Advocate General and the Supreme Court, and that all had concurred in the argument that he had advanced in his report. The decision of the Supreme Court was based, he states, on the following reasons:
19. Whereas the provisions of sections 9(1)(b) and 26(1)(a) and (2) of Act No. 1264 of 1982, which came into force after 1 July 1982, and section 32(1) of which repealed Act No. 330 of 1976, provide that:
20. "the term of office of executive bodies shall not be longer than three years" (section 9(1)(b)), "the assembly of the members of any trade union organisation may decide on the immediate introduction of the election procedure provided for in this Act (section 26(1)(a)); and
21. "if the assembly pronounces against such introduction, the term of office of the bodies shall continue normally, subject to the provision of section 9(1)(b)" (section 26(2)).
22. Moreover the above-mentioned Bill, and in particular, section 26(2) was the subject of an important emendation. The Government's Bill provided that "if the assembly pronounces against such introduction, the term of office of the bodies shall continue normally, in accordance with the organisation's constitution", and was intended to maintain the functions of the executive bodies; but the words "in accordance with the organisation's constitution" had been deleted during the discussion on section 26 of the Bill (as can be seen from minutes of the debates of the Greek Parliament, session PID of 14 June 1982) in view of the fact that section 9(1)(b) lays down a limit in this connection.
23. 238. This resulted, continues the judge, in the automatic dissolution of these bodies and a situation in which the persons required for the administration of the corporate body (the trade union) were absent within the meaning of section 69 of the Civil Code. In these circumstances and by virtue of section 69, it was necessary to appoint a provisional administration.
24. 239. The judge also explains that this point of view is confirmed by the minutes of the discussion of section 20 of the repealed Act No. 330 of 1976, which already provided that.
25. The term of office of the members of the executive committee of occupational associations shall be fixed by the constitutions, provided that it shall not exceed four years.
26. A member of the executive committee of an occupational association shall be prohibited from exercising his functions after the expiry of his term of office and any act that he may perform after the date in question shall be deemed null and void.
27. The judge states that during the debate on section 20, the Minister stated that he considered at all events that the period of four years was the maximum term and that, with regard to subsection 2, there would be no break in administration since section 69 of the Civil Code would apply.
28. 240. The judge further states that the provisions on the limit to terms of office are not contrary to sections 12(4) and 23(1) of the Constitution, since these are the very provisions of the Constitution which confer on the legislative authority the right to determine the framework and the conditions in which freedom of association shall be enjoyed without hindrance. Neither are they contrary to Convention No. 87, which was ratified by Legislative Decree No. 4204 of 1961.
29. The Supreme Court therefore judged rightly that the Court of Appeal, by refusing the application for an annulment, had failed to observe the provisions of the law. The judge also replies, with regard to the retroactive effect of the Act, that it has had effect only since the day when it came into force, namely 1 July 1982.
30. 241. With regard to section 69 of the Civil Code concerning the absence of persons to carry on the administration, the judge states that it provides that.
31. If the persons required for the administration of the corporate body are lacking, or if their interests conflict with those of the corporate body, the President of the Civil Court shall appoint a provisional administration at the request of any person who has a legitimate interest.
32. He adds that doctrine and case law have always held that an administration must be considered to be lacking whenever it is really absent, for any reason whatever, including removal from office, and he quotes several judgments to this effect. He also states that the ADEDY had not proposed anybody for the provisional administration, as the complainant maintains, but had on the contrary withdrawn from the case on the very morning of the hearing, something unheard of in the history of the Supreme Court.
33. 242. With regard to the referring of the matter to the combined chambers, the judge states that section 563, subsection 2, of the Code of Civil Procedure provides, that.
34. The Chamber hearing the case shall refer it for judgment to the combined chambers (of the Supreme Court) where it questions the application of the law as being unconstitutional.
35. In the present matter, however, the judge's report states, the Chamber hearing the case considered that the law was in conformity with the Constitution and did not conflict with Convention No. 87. There was therefore no legal ground for referring the case to the combined chambers. As to the idea of general interest that might have been involved, in accordance with which a case "could" have been referred optionally, the judge maintains that to refer it in this way would have been a denial of justice for the plaintiffs since the combined chambers could not have delivered judgment before 12 September 1983 (the date of expiry of the four-year term of office of the administration of the ADEDY under its constitution) and that their appeal would then have lost its purpose.
36. 243. It was therefore also with good reason, maintains the judge, that the Supreme Court pronounced on the appointment of an administration for the corporate body.
37. 244. With regard to the second communication from the complainant the Government states that the references to its alleged interference in the convening of the congress of the ADEDY in December 1983 are entirely without foundation and unacceptable. The purpose of the provisional administration of the ADEDY was to settle the questions of its operation in accordance with the law and the Government had no reason to interfere.
38. 245. The allegation that the administration of the ADEDY had been elected by a minority congress is also baseless, since the ADEDY covers 33 federations with 150,000 members and three other federations have applied for affiliation to this organisation. The congress, maintains the Government, brought together 28 federations, namely those which had applied the procedures of proportional representation provided for by Act No. 1261 of 1982, and out of the 150,000 registered members, 115,000 had voted and elected 256 representatives, whereas at the previous Congress of the ADEDY, referred to by the complainant, only 50,000 officials had voted. The Government therefore concludes that the Congress of December 1983 was obviously twice as representative as that of 1979, since there were twice as many electors and all tendencies were present.

C. Conclusions of the Committee

1. 246. There are two aspects to this affair: first, an internal dispute that arose within the highest administrative association of public officials, a confederation, bringing together at the national level various associations of public officials and hereafter referred to as the ADEDY; and secondly, the repression said to have been exercised against the president of the complainant in the present case, viz. the Pan-Hellenic Federation of Rural Police officers, which are affiliated to the ADEDY.
2. 247. With regard to the internal dispute which arose in the ADEDY and which led to the removal from office of the administration of this organisation and the appointment of a provisional administration by the Supreme Court in April 1983 and the congress of officials of associations held in December 1983 to appoint the new administration, the Committee takes note of the detailed explanations furnished both by the complainant and by the Government.
3. 248. The Committee has already had to consider an internal dispute within the highest trade union organisation of Greek workers, the General Confederation of Labour of Greece at its November 1983 Session [230th Report, Case No. 1193, paragraphs 294-323]. It then pointed out, as it had done on many earlier occasions, that where trade union elections are challenged, the public authorities should refrain from any interference that might restrict the right of the organisations to elect their representatives in full freedom and to organise their administration and that it was important, with a view to guaranteeing the impartiality and objectivity of the procedure, that the supervision of trade union elections should be entrusted to the competent judicial authorities. [See, for example, 73rd Report, Case No. 348 (Honduras), para. 114 and 230th Report, Case No. 1193 (Greece), para. 317.]
4. 249. In the present case, the Committee observes that the removal from office of the officers of the ADEDY was pronounced on the application of certain of them by the Supreme Court of Greece, under legislation that had been newly adopted on the democratisation of the trade union movement and the protection of the workers' trade union freedoms (Act No. 1264 of 1 July 1982). This legislation reduces to three years the term of office of trade union executive bodies (section 9) and confers on the trade unions the right to decide on the, immediate introduction of the electoral procedure provided for by the Act (section 26).
5. 250. With regard to the appointment of a provisional administration, the Committee observes that it too was pronounced by court decision, this time under section 69 of the Greek Civil Code (Act. No. 2250 of 15 March 1940, as amended). The Committee also takes note of the decision of the Supreme Court on the whole of this case.
6. 251. The question that arises is whether the reduction of the term of office of the executive bodies to three years by the legislation affects the right of organisations to elect their representatives in full freedom, a right guaranteed by Article 3 of the Convention. On this point, the Committee notes that Act No. 330 of 1976 concerning occupational associations and federations and the protection of freedom of association, which is repealed by the new Act, already contained a similar provision, although its scope was more limited, on the duration of terms of office, since it restricted them to four years (section 20). This provision of Act No. 330, however, had never been the subject of a challenge by Greek trade union organisations or of observations by the supervisory bodies of the ILO. Furthermore, the fact that the legislation of a number of countries, which fixes a maximum period for the terms of office of executive bodies for the apparent purpose of ensuring that elections for the officers are held regularly and that the wishes of the members are respected, has not been criticised by the supervisory bodies.
7. 252. The Committee observes that Act No. 1264 of July 1982 reduces the maximum duration of terms of office by one year and makes it possible to apply the new provision immediately to terms of office that have already started. This displeases one part of the trade union executive of the ADEDY elected under Act No. 330 of May 1976 but is favoured by another. The Committee considers that, generally speaking, laws governing the frequency of elections and fixing a maximum duration for the terms of office of executive bodies do not affect the principles of freedom of association. Nevertheless, in the present case, the legislating authority could have guaranteed, as provided in the draft section 26(2) quoted by the reporting judge of the Supreme Court, that the executive bodies should be kept in office "in accordance with the constitutions" of the organisations. The Court, however, merely applied the Act as adopted, and the Committee, while regretting the intervention of the legislating authority, considers that this aspect of the case does not call for further examination.
8. 253. With regard to the allegation that the new administration of the ADEDY was elected by a minority trade union congress, the Committee observes that the complainant claims that the Congress of December 1983 was merely a congress of teachers since, of the 256 representatives present, 172 came from teaching circles and officials from many administrations were not represented in it. The Government, on the other hand, maintains that the December 1983 Congress was twice as representative as that of September 1979, since it had twice as many electors and all tendencies were represented in it. The Government explains that, out of the 150,000 officials, 115,000 from 28 federations voted, whereas at the previous congress, mentioned by the complainant, the Federation of Rural Police Officers, only 50,000 officials had voted. The Government states in conclusion that, since the congress, the ADEDY comprises 33 federations in all and that three others have started the procedure for affiliation.
9. 254. The Committee has taken note of the legislation introducing the system of proportional representation for elections to the administrative bodies of a trade union organisation (sections 9 and 12 of Act No. 1264) and the provisions concerning the representation of officials (section 30, subsection 3). It notes that the administrative bodies of a trade union organisation are elected under the system of simple proportional representation, the remaining seats being distributed in accordance with the numbers of residual ballot papers (section 12), and that the number of representatives to each federation or confederation is fixed in accordance with the same criteria for all the organisations affiliated to the federations or confederations in question. It also notes that the Act specifies, in respect of civil servants, that each first-level organisation may become affiliated to only one federation and that a first-level organisation that is affiliated to more than one federation shall decide at its general assembly to which federation it will remain affiliated (section 30, subsection 3).
10. 255. The Committee considers that the proportional representation electoral system and the obligation placed on first-level organisations to choose the federation to which they wish to remain affiliated do not affect the principles of freedom of association.
    • Nevertheless, since, according to the complainant, the Federation of Rural Police Officers, certain federations of officials are not represented on the ADEDY, the Committee trusts that the federations that are not yet represented on the ADEDY may be able to start the process of affiliation by applying the procedures of proportional representation and of individual affiliation provided for by the Act and that they will thus be able to participate in proportion to their electoral results in the highest administration of public officials' associations.
11. 256. With regard to the repression said to have been exercised against the president of the Pan-Hellenic Federation Rural Police Officers, the Committee notes that, according to the Government, the person concerned, who is an official in the Directorate of Rural Police, was convicted of having conducted himself while not on duty in a manner unworthy of an official and that he was sentenced in the first instance and then unanimously by a higher disciplinary authority to a fine.
12. 257. The Committee, though it notes that the complainant has not indicated the nature of the trade union activities said to have resulted in the imposition of a disciplinary sanction on its president, regrets that the Government has gone no further than to state that the person concerned conducted himself while not on duty in a manner unworthy of an official, without specifying the facts with which he had been charged. In these circumstances, the Committee can only recall the importance it attaches to the protection of trade union leaders in the performance of their legitimate trade union activities.