Rapport intérimaire - Rapport No. 333, Mars 2004

1. 182. The Committee has already examined the substance of this case at its March 2002 and November 2002 meetings, and on those occasions it presented interim reports to the Governing Body [327th Report, paras. 140-161; 329th Report, paras. 160-174; approved by the Governing Body at its 283rd and 285th Sessions (March and November 2002)].
2. 183. The complainant organization sent new allegations and additional information in communications dated 12 December 2002, 22 and 29 January, 25 February, 4 May 2003 and 5, 9, 20 and 25 January 2004.
3. 184. The Government has sent its replies in communications dated 10 December 2002, 14 February and 17 November 2003, and 4 February 2004, as well as complementary information on 9 February 2004.
4. 185. 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).

A. Previous examination of the case

1. 186. In its previous examination of the case in November 2002, the Committee made the following recommendations [see 329th Report, para. 174]:
   • (a) Regarding the difficulties that might arise from the interpretation of certain provisions of Act No. 90-14 of 2 June 1990, relating to the right of the social partners, notably the members of the SNAPAP, to establish federations and confederations of their own choosing, the Committee welcomes the request for technical assistance from the Government on this issue and reminds it that the Office is available to review the ways in which this might take place. Furthermore, the Committee requests the Government to keep it informed with regard to the recognition of the CASA as a trade union confederation.
   • (b) Noting the recent allegations of obstacles to the exercise of trade union rights in the Prefecture of Oran, particularly with regard to the closure of the SNAPAP office in Oran, the suspension of eight trade union members on the ground that they encouraged observation of a strike, the fact that they received a suspended sentence, and a campaign to intimidate and harass the secretary-general of the complainant organization, the Committee requests the Government to send its observations with regard to these new allegations without delay.

B. New allegations

1. 187. In a communication dated 22 January 2003, the complainant organization informs the Committee that the eight trade union members at the Prefecture of Oran appealed against the ruling whereby seven of them had been fined and given suspended prison sentences. The Court of Appeal reduced the fines to DZD5,000 but the union members were not reinstated to their positions and have therefore received no salary for over a year. The complainant organization also informs the Committee that the matter was taken to the Supreme Court. Moreover, in its communication of 25 February 2003, the complainant organization alleges that these eight union members were dismissed following a decision by the Prefect of Oran, a copy of which they enclose.
2. 188. In a communication of 29 January 2003 accompanied by numerous press cuttings, the complainant organization alleges that, on that date, members of the National Union of Commune Workers (UNTC), a union affiliated to the SNAPAP, were beaten by security service agents when they held a sit-in in front of the headquarters of the Ministry of the Interior and Local Communities.
3. 189. In its communication of 4 May 2003, the complainant organization alleges that the authorities took reprisals against it after it had presented its complaint to the Committee. In this regard, it cites a communication by the Ministry of Labour and Social Security requiring it to provide a list of the names of all 430,000 of its members, along with copies of their membership cards. The complainant organization alleges that it is the only organization to have been required to supply information of this sort, and that this is the first time since the organization was founded, in 1990, that the Ministry of Labour has made such a request.
4. 190. Furthermore, the complainant organization alleges that the Ministry of Labour and Social Security refuses to honour commitments which it made following talks to end the hunger strike of August 2001. It also alleges that it is being discriminated against as it has never been invited to take part in the seminars organized by the Ministry of Labour and Social Security on issues pertaining to the world of work.
5. 191. Finally, the complainant organization claims that the Ministry of Labour and Social Security does not recognize the National Union of Civil Protection Officers, which was created in accordance with the statutes of the complainant organization at its August 2001 conference. In a letter forwarded by the complainant organization, the Ministry of Labour and Social Security states that the “minutes of establishment” of the Union of Civil Protection Officers, which the SNAPAP submitted in March 2003, cannot be recognized, as the criteria stipulated particularly, in section 4 of Act No. 90-14 of 2 June 1990, have not been met. The letter also states that the civil protection officers wishing to form a trade union must submit a registration form to the Ministry in application of sections 6, 7, 8, 9, 10 and 21 of Act No. 90-14. Only after the completion of registration procedures can the union then affiliate to a confederation of its choice.
6. 192. In its communication of 5 January 2004, the complainant organization alleges that two union members, namely, Mr. Bourada and Mr. Himer, respectively secretary-general and an active member of the National Union of the Health of the Population (UNSP) at the Oran Teaching Hospital, a union affiliated to the SNAPAP, have been arrested and detained. It alleges that, on 29 December 2003, the director of the Oran Teaching Hospital brought a complaint against the two union members, for insults and death threats. The following day, the detective division of the police called them in for questioning, after which Mr. Bourada was released. On 31 December 2003, he was again arrested and taken into custody. The complainant organization alleges that there was no warrant for his arrest and that the arrest was unlawful. Mr. Himer went to the police station of his own accord on 3 January 2004 and was also arrested and put in custody. On 4 January 2004, the two union members appeared before the Public Prosecutor, who maintained their detention. The complainant organization also alleges that four workers at the Teaching Hospital were summoned by the police for questioning as witnesses and that they too were taken into custody.
7. 193. In its communication of 9 January 2004, the complainant organization alleges that, on 8 January 2004, the police questioned seven civil protection officers (firefighters) who were union members, namely Mr. El Hachemi Belkhir, Mr. Mohamed Benahmed, Mr. Rabeh Mebarki, Mr. Mokhtar Mesbah, Mr. Benchâa Benatia, Mr. Mohamed Bekhil and Mr. Djeloul Amar Behida.
8. 194. In its communication of 20 January 2004, the complainant organization states that on that date, three union members were questioned and detained at the police station in the second division of Oran for posting notices about a lawful general strike in the health sector. The three union members were Mr. Salim Mecheri, national secretary of the SNAPAP, and Mr. Fodhil Agha and Mr. Djilali Bensafi, both members of the committee of the Oran Teaching Hospital trade union section.
9. 195. Finally, in its communication of 25 January 2004, the complainant alleges that, by decision No. 851/2003 of 28 December 2003, the authorities cancelled the transfers of certain members of the National Vocational Training Union, which is affiliated to SNAPAP, including the transfer of its general secretary.

C. The Government’s new reply

1. 196. In communications dated 10 December 2002 and 14 February 2003, the Government sends additional information and numerous documents on the procedures to which the eight union members from the Prefecture of Oran were subjected. The Government explains that the union members were suspended for inciting and holding a demonstration, calling for strike action, inside the premises of the Prefecture of Oran with signs and placards, and for breach of the peace and damage to public property. The Prefect of Oran made use of procedures laid down in current legislation to end the union’s illegal occupation of the premises and to re-establish public order. Therefore, he first called on the bailiffs to draw up statements of offence noting the illegality of the SNAPAP’s actions. The Government encloses copies of these statements. As a preventive measure, the security forces called out by the Prefect of Oran evacuated the premises and brought the eight members of the SNAPAP to the Public Prosecutor’s Office. After their provisional discharge, they appeared before the Court of Oran, where seven of them were given suspended prison sentences of three months and fined DZD5,000. The Court acquitted the eighth union member and the Prefect of Oran had him reinstated to his position. The judgement of the Court of Oran is enclosed with the Government’s communication. The Court noted that the Prefecture of Oran had suspended the activities of the complainant union in 1999 and that the union office had been closed down. This had displeased the trade union, which had submitted several protests to the Prefecture of Oran, following which it had decided to institute a hunger strike in its own premises, thereby occupying administrative areas reserved for work. The Government considers that the Prefect of Oran was clearly acting in compliance with current law in taking the disciplinary measures required in the case, as has been confirmed by the rulings of the competent judicial authorities.
2. 197. Moreover, the Government considers that the rejection of the complaint submitted by the SNAPAP against the closure of the premises that it was occupying was well founded, since there were no grounds for such complaint. According to the Government, the Prefect’s response to the situation and the measures taken against the union members are in no way connected to their membership of the SNAPAP or to their union activities; rather, they are a response to illegal troublemaking which led to infringements of ordinary law.
3. 198. With regard to the allegations concerning discriminatory treatment of different trade unions and, in particular, the privileges allegedly granted to the General Union of Algerian Workers (UGTA), the Government emphasizes that all trade unions are treated equally in accordance with the provisions of the law. The Government notes that premises are allocated according to the criteria for representativeness laid down in Act No. 90-14 of 2 June 1990 on methods for the exercise of the right to organize. In this respect, the Government points out that the organization of bailiffs verified the membership rolls of the UGTA and the SNAPAP, following an order by the Chairperson of the Court of Oran on 13 July 1999, No. 2759/1999, in order to compare the two and delete cases of dual membership. It found that 398 individuals were named on the membership rolls of both the UGTA and the SNAPAP.
4. 199. The Government replies to the allegations concerning the request by the Minister of Labour and Social Security for the membership rolls of the SNAPAP in a communication dated 17 November 2003. According to the Government such a demand fits within the context of normal relations between the authorities and legally established trade union organizations. The Government denies any intention to interfere with or attack the free exercise of the right to organize. In this respect, the Government refers to the fact that all union organizations must communicate the facts concerning their representativeness in accordance with sections 35-37bis of Act No. 90-14 of 2 June 1990. All the organizations concerned, including the SNAPAP, are thus requested to provide information allowing their representativeness to be calculated before 31 May of each year. The Government sends a copy of a press release to this effect. The Government insists that all trade union organizations which had not sent detailed information to enable their representativeness to be calculated were approached in a similar way, and the majority responded favourably. Furthermore, the Government recalls that section 37bis, subsection 2, of Act No. 90-14 entitles the SNAPAP to make an appeal. However, the SNAPAP has chosen not to do this.
5. 200. In respect of the Union of Civil Protection Officers set up by the SNAPAP, the Government merely reiterates the reasons it set out to the SNAPAP regarding its interpretation of the provisions of Act No. 90-14 of 2 June 1990 on methods for the exercise of the right to organize.
6. 201. In its communication of 4 February 2004, the Government provides information concerning the arrest and judicial procedure which took place with regard to Mr. Bourada and Mr. Himer on the one hand, and the holding of an extraordinary conference by SNAPAP 24-26 December 2003, on the other hand. According to the Government, in the first place, Mr. Bourada and Mr. Himer requested a meeting with the director of the Oran Teaching Hospital on 29 December. The latter refused to see the two UNSP representatives immediately, since he was holding a closed workshop with advisers from the Ministry of Health and Population on hospital reform. Following this refusal, Mr. Bourada and Mr. Himer forced their way into the office of the director and addressed insults and death threats against him. The director of the Oran Teaching Hospital lodged a complaint against them and Mr. Bourada and Mr. Himer were brought before the tribunal which sentenced them to a six-month prison sentence and a fine of DZD10,000 on 7 January 2004. The Government insists on the fact that the charges maintained against them by the judge did not relate to freedom of association but to offences under the provisions of the Penal Code. The Government underlines that freedom of association does not confer immunity.
7. 202. Secondly, the Government indicates that the extraordinary conference of SNAPAP, elected Mr. Hamana Moumkhila as secretary-general of the national secretariat of SNAPAP thus replacing Mr. Rachid Malaoui. In its communication of 9 February 2004, the Government attaches, in support of this information, a copy of the minutes of the conference. According to these minutes, the participants decided to definitively expel from the union Mr. Rachid Malaoui as well as other members, to freeze the activities of national unions (affiliated to SNAPAP) until they held their national meetings and to call on the ministries not to deal with the old representatives of these unions, with the exception of the Union of Civil Protection Officers which remains under the new national secretariat which emerged from the conference.

D. The Committee’s conclusions

1. 203. The Committee recalls that this case concerns allegations of obstacles to the establishment of trade union confederations, (namely the National Union of Algerian Workers (SNATA), later known as the Algerian Confederation of Independent Trade Unions (CASA)), and of an affiliated trade union organization, (the Union of Civil Protection Officers); favouritism with regard to a trade union organization (the UGTA); repeated anti-union harassment against the SNAPAP; and the arbitrary arrest and detention of members of that union.
2. 204. The Committee notes that this is its third examination of the case since the complaint was submitted on 17 September 2001 and that, despite the time which has since elapsed, no progress seems to have been made.
3. 205. In respect of the eight trade union members at the Prefecture of Oran, the Committee notes that their hunger strike followed the decision to suspend the complainant organization and to close down its premises. The Committee notes that the complainant organization has contested the decision to close down their premises in court, without success. In this respect, the Committee notes the Government’s statement that the judgement which rejected the complaint against the closure of the premises was well founded, since the SNAPAP had no grounds for such complaint. The Committee has drawn attention to the importance of the principle that the property of trade unions should enjoy adequate protection [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 184], and recalls that judicial review is required for measures taken by the authorities, for instance, occupation or closure of trade union premises, in view of the significant risk that such measures may paralyse trade union activities [see General Survey on freedom of association and collective bargaining, 1994, para. 40]. The Committee requests the Government to specify the reasons for which the complaint by the SNAPAP was, in its view, groundless and to indicate whether the rulings to suspend the complainant organization and to close its Oran office are still in force. If these decisions are indeed still in force, the Committee requests the Government to revoke them.
4. 206. The Committee notes the detailed information provided by the complainant organization and the Government with regard to the accusations made against the eight trade union members at the Prefecture of Oran and the development of these proceedings. It notes that the union members were suspended from work and deprived of all remuneration for the whole duration of the proceedings, and that they were dismissed following a ruling by the Prefect of Oran. However, the Committee also notes the information provided by the Government to the effect that the worker who was acquitted has since been reinstated to his position. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee urges the Government to take the necessary steps to ensure that the other trade union members 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 measures taken in this respect.
5. 207. With regard to the issue of the representativeness of the complainant organization and the request by the Ministry of Labour and Social Security to be given a list of the names of all its members and copies of their membership cards, the Committee recalls that the representativeness of employers’ or workers’ organizations should be determined according to objective, precise, pre-established criteria laid down in legislation, and that such a determination should not be left to the discretion of governments. The Committee notes the authority’s reliance on membership rolls of organizations in determining their representativeness. The complainant organization fears that such a practice could lead to reprisals and anti-union discrimination against that organization’s members. The Committee therefore requests the Government to take legislative or other steps so as to allow the determination of the representativeness of organizations on the basis of objective and pre-established criteria without revealing the identity of their members – for instance, by organizing ballots. The Committee requests the Government to keep it informed of measures taken in this respect.
6. 208. With regard to the request of the SNAPAP to establish a confederation to be known as the CASA, the Committee notes that the Government does not provide any response on this matter, despite the Committee’s recommendation to this effect in its previous examination of the case [see 329th Report, para. 174(a)]. Moreover, the Committee takes note of the SNAPAP’s new allegations with regard to the refusal by the Ministry of Labour and Social Security to register the newly created Union of Civil Protection Officers, despite its having received a “minutes of establishment” to this effect.
7. 209. In this respect, the Committee recalls that, during the first examination of the case, it considered that the provisions of Act No. 90-14 of 2 June 1990 did not pose a problem from the standpoint of the principles of freedom of association, but that the Government’s interpretation of these provisions seemed to raise a problem [see 329th Report, para. 171]. Moreover, the Committee has taken note of the comments made by the Committee of Experts on the Application of Conventions and Recommendations at its 73rd Session in December 2002. The Committee of Experts noted “the Government’s reply to the effect that: (1) under Act No. 90-14 of 2 June 1990, no previous authorization is required to establish an occupational organization; a mere declaration of constitution duly acknowledged by the competent authority is necessary; and (2) in respect of the particular case [of the Algerian Confederation of Independent Trade Unions (CASA)], unions can conduct their activities within the framework of the envisaged confederation without waiting for the legal opinion of the Ministry of Labour and Social Security”. The Committee of Experts also recalled that “national regulations governing the constitution of occupational organizations are not in themselves incompatible with the provisions of the Convention provided that they do not impair the guarantees granted by the Convention and in particular that they do not amount in practice to a requirement for previous authorization in respect of the constitution of occupational organizations and which is prohibited under Article 2 [of Convention No. 87] (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 68-69)”.
8. 210. In its previous examination of the case, the Committee noted the Government’s statement that it had begun a series of meetings in order to help the SNAPAP establish the CASA and that in order to remove the difficulties that might arise from the interpretation of certain provisions of Act No. 90-14 of 2 June 1990, it was considering, in consultation with the social partners, beginning a review of the texts relating to freedom of association. With regard to this, the Committee notes that, according to the information provided by the complainant organization, the latter has never been invited to participate in the seminars organized by the Ministry of Labour and Social Security. The Committee reminds the Government again that the Office is at its disposal to provide assistance in this area. It once again requests the Government to keep it informed with regard to the effective recognition of the CASA and of the Union of Civil Protection Officers.
9. 211. 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 regrets that the Government has not provided any information. The authorities should resort to the use of force only in grave situations where law and order is seriously threatened [see Digest, op. cit., para. 580]. The Committee stresses that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 47]. The Committee requests the Government to communicate its observations on these allegations without delay.
10. 212. With regard to the allegations concerning the arbitrary 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, 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 recalls that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in trade union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of the freedom of association, and preventive detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry [see Digest, op. cit., paras. 74 and 87]. The Committee requests the Government to communicate its observations on these new allegations without delay.
11. 213. Concerning the allegations of arbitrary arrests and detentions of Mr. Bourada and Mr. Himer, members of the UNSP, which is affiliated to SNAPAP, the Committee notes the information transmitted by both the complainant organization and the Government. The Committee nevertheless notes that the complainant organization does not provide information on the circumstances which led to the arrest and indictment of the two UNSP members. It notes that, according to the Government, Mr. Bourada and Mr. Himer tried to force their way into the Office of the Director of CHU of Oran and addressed insults and death threats against him. The Committee recalls that persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law [see Digest, op. cit., para. 83]. It requests the Government to provide a copy of the judgement by which Mr. Bourada and Mr. Himer were condemned.
12. 214. Concerning the decision to cancel the transfer of the members of the National Vocational Training Union, the Committee requests the Government to provide its observations on these new allegations.