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Guarantee of due process of law (Trade union rights and civil liberties)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0210 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060210 Guarantee of due process of law (See also paras. 57, 75, 76, 78, 79, 81, 82, 83, 89 and 90)96. Because of the fact that detention may involve serious interference with trade union rights and because of the importance which it attaches to the principle of fair trial, the Committee has pressed governments to bring detainees to trial in all cases, irrespective of the reasons put forward by governments for prolonging the detention. (See the 1996 Digest, para. 92.) 97. It is one of the fundamental rights of the individual that a detained person should be brought without delay before the appropriate judge, this right being recognized in such instruments as the United Nations International Covenant on Civil and Political Rights and the American Declaration of the Rights and Duties of Man. In the case of persons engaged in trade union activities, this is one of the civil liberties which should be ensured by the authorities in order to guarantee the exercise of trade union rights.(See the 1996 Digest, para. 93; and 308th Report, Case No. 1888, para. 344.) 98. It is one of the fundamental rights of the individual that a detainee be brought without delay before the appropriate judge and, in the case of trade unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights.(See the 1996 Digest, para. 94; 323rd Report, Case No. 2028, para. 212; and 332nd Report, Case No. 2086, para. 123.) 99. Anyone who is arrested should be informed, at the time of the arrest, of the reasons for the arrest and should be promptly notified of any charges brought against her or him.(See the 1996 Digest, para. 95; and 308th Report, Case No. 1888, para. 344.) 100. It should be the policy of every government to ensure observance of human rights and especially of the right of all detained or accused persons to receive a fair trial at the earliest possible moment.(See the 1996 Digest, para. 96; and 310th Report, Case No. 1888, para. 384.) 101. The Committee has emphasized the importance that should be attached to the principle that all arrested persons should be subject to normal judicial procedure in accordance with the principles enshrined in the Universal Declaration of Human Rights, and in accordance with the principle that it is a fundamental right of the individual that a detained person should be brought without delay before the appropriate judge, this right being recognized in such instruments as the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man and the American Convention of Human Rights.(See the 1996 Digest, para. 97; and 316th Report, Case No. 1988, para. 389.) 102. Detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority.(See the 1996 Digest, para. 102; 318th Report, Case No. 2005, para. 181; 321st Report, Case No. 1888, para. 233; 323rd Report, Case No. 1888, para. 193; 330th Report, Case No. 2189, para. 457; 331st Report, Case No. 2169, para. 638; and 333rd Report, Case No. 2189, para. 382.) 103. Respect for due process of law should not preclude the possibility of a fair and rapid trial and, on the contrary, an excessive delay may intimidate the employers’ leaders concerned, thus having repercussions on the exercise of their activities.(See the 1996 Digest, para. 103.) 104. As concerns allegations that legal proceedings are overly lengthy, the Committee has recalled the importance it attaches to such proceedings being concluded expeditiously, as justice delayed is justice denied.(See the 1996 Digest, para. 104; and 327th Report, Case No. 1962, para. 404.) 105. Justice delayed is justice denied.(See the 1996 Digest, paras. 56 and 105; and, for example, 320th Report, Case No. 1890, para. 56; 325th Report, Case No. 1888, para. 392; 326th Report, Case No. 2017/2050, para. 284; 329th Report, Case No. 1787, para. 376, and Case No. 2201, para. 508; 332nd Report, Case No. 2046, para. 445; 333rd Report, Case No. 2186, para. 350; and 337th Report, Case No. 2249, para. 1472.) 106. The absence of guarantees of due process of law may lead to abuses and result in trade union offi cials being penalized by decisions that are groundless. It may also create a climate of insecurity and fear which may affect the exercise of trade union rights.(See the 1996 Digest, para. 106; 333rd Report, Case No. 2268, para. 755; and 337th Report, Case No. 2323, para. 1041.) 107. The safeguards of normal judicial procedure should not only be embodied in the law, but also applied in practice.(See the 1996 Digest, para. 107; and 309th Report, Case No. 1851/1922, para. 247.) 108. Due process of law should include the non-retroactive application of the criminal law.(See the 1996 Digest, para. 108; and 332nd Report, Case No. 2086, para. 123.) 109. The Committee has always attached great importance to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences.(See the 1996 Digest, para. 109; 308th Report, Case No. 1773, para. 443; and 337th Report, Case No. 2189, para. 476.) 110. If a government has sufficient grounds for believing that the persons arrested have been involved in subversive activity, these persons should be rapidly tried by the courts with all the safeguards of a normal judicial procedure.(See the 1996 Digest, para. 110.) 111. In cases where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the governments’ replies amounted to general denials of the allegation or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegations.(See the 1996 Digest, paras. 98 and 111; 310th Report, Case No. 1929, para. 428; and 337th Report, Case No. 2323, para. 1044.) 112. In many cases, the Committee has asked the governments concerned to communicate the texts of any judgements that have been delivered together with the grounds adduced therefor.(See the 1996 Digest, para. 112.) 113. The Committee has emphasized that when it requests a government to furnish judgements in judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary. The very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known.(See the 1996 Digest, paras. 23 and 113; 327th Report, Case No. 1888, para. 583; 337th Report, Case No. 2189, para. 471, and Case No. 2258, para. 838.) 114. The Committee has pointed out that, where persons have been sentenced on grounds that have no relation to trade union rights, the matter falls outside its competence. It has, however, emphasized that whether a matter is one that relates to the criminal law or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information and, in particular, the text of the judgement.(See the 1996 Digest, para. 114; 310th Report, Case No. 1888, para. 383, and Case No. 1929, para. 428.) 115. If in certain cases the Committee has reached the conclusion that allegations relating to measures taken against trade unionists did not warrant further examination, this was only after it had received information from the governments showing sufficiently precisely that the measures were in no way occasioned by trade union activities, but solely by activities outside the trade union sphere that were either prejudicial to public order or political in nature.(See the 1996 Digest, para. 115; and 305th Report, Case No. 1858, para. 306.) 116. When it appeared from the information available that the persons concerned had been judged by the competent judicial authorities, with the safeguards of normal procedure, and sentenced on account of actions which were not connected with normal trade union activities or which went beyond the scope of such activities, the Committee has considered that the case called for no further examination.(See the 1996 Digest, para. 116.) 117. Any trade unionist who is arrested should be presumed innocent until proven guilty after a public trial during which he or she has enjoyed all the guarantees necessary for his or her defence.(See the 1996 Digest, para. 117; and 305th Report, Case No. 1773, para. 368.) 118. The Committee has recalled that the International Covenant on Civil and Political Rights, in Article 14, states that everyone charged with a criminal offence shall have the right to adequate time and the necessary facilities for the preparation of his defence and to communicate with counsel of his own choosing.(See the 1996 Digest, para. 118; and 306th Report, Case No. 1884, para. 698.) 119. The Committee is not required to express an opinion on the question of the granting of permission for a foreign lawyer to plead.(See the 1996 Digest, para. 119.) 120. Legislation which permits the Minister at his discretion to impose restrictions on the movement of trade union leaders for a 90-day period, which can be renewed, without trial or without even being charged, is incompatible with the right to perform trade union activities or functions and the right to a fair trial at the earliest possible moment.(See the 1996 Digest, para. 129.) |
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