Interim Report - Report No 78, 1965

Case No 388 (Costa Rica) - Complaint date: 31-MAR-64 - Closed

1. 258. The complaints of the General Confederation of Workers of Costa Rica are contained in four communications dated 31 March, 18 May, 22 May and 16 June 1964 respectively. These complaints were transmitted to the Government, which forwarded its observations in communications dated 1 June and 24 July 1964.
2. 259. Costa Rica 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. A. The complainants' allegations

• Allegations relating to the Seizure of Trade Union Publications
  260. 260 The complainants allege in their communication of 31 March 1964 that the seizure of all kinds of trade union publications continues in the banana-growing area on the Pacific coast on the pretext that they consist of Communist propaganda, and that trade union leaders are convicted of the offence of having in their possession and distributing Communist propaganda material. As an illustration of this kind of repression the complainants have sent an order of the Court that heard the appeal against a sentence pronounced by the chief political officer of Puerto Cortés on Mr. Otto Rigg Góndrez for having in his possession and distributing Communist propaganda material. This order contains the words: "there is no law or order imposing a penalty for propaganda of a Communist tendency; in any case the propaganda material seized is not found to be of such a character; therefore, no offence has been committed and the sentence must be quashed."
  261. 261 The Government has not furnished its observations on this aspect of the complaint.
  262. 262 When the Committee examined Case No. 239 relating to Costa Rica it had before it the report submitted by a representative of the Director-General of the I.L.O who had carried out a mission on the spot to collect information relating to various complaints made against the Government of Costa Rica in connection with alleged violations of freedom of association in the banana-growing area on the Pacific coast of the country. The Committee observes that this report contains the following passage: " As regards the subversive propaganda material my attention was drawn to Decree No. 37 of 21 July 1954, which prohibits the publication, import, sale, exhibition or circulation of books, pamphlets, reviews or any other literature, printed or not, which is of Communist ideology or tendency. The authorities showed me large quantities of literature and documents stated to have been confiscated from trade union leaders. According to the law such literature must be studied by a panel which establishes whether it really is of Communist ideology or tendency No general instructions have been sent to the local authorities as regards the interpretation of Decree No. 37. In practice the local police officers, customs police officers and chief political officers apply this decree to the best of their knowledge and belief. Their action, as explained to me by a number of such officials, appeared to me inconsistent and arbitrary. Trade unionists are often arrested, the literature they carry is confiscated and then they are again released without any proceedings being brought against them. It is unusual for them to start judicial proceedings on the grounds that they have been illegally arrested."
  263. 263 In the present case reference is again made to the seizure of trade union publications by the local authorities, and the complainants transmit a court order pronounced in respect of a specific case in which it is stated both that there is no legislation imposing a penalty for Communist propaganda and that the publications seized have been shown not to be of such a character.
  264. 264 The Committee observes that there appears to be no uniformity in the interpretation of the law in force on the publication, distribution, etc., of literature of Communist tendency or in the practical application of this law by the local authorities. The Committee considers that this is a situation that might in certain cases result in arbitrary measures that would restrict the right of workers' organisations to " organise their activities ", and violate the provisions of Article 3 of Convention No. 87 to the effect that " the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof ".
  265. 265 In these circumstances the Committee recommends the Governing Body to suggest to the Government the desirability of issuing the necessary instructions to the local authorities to avoid the legal provisions in force relating to subversive propaganda being interpreted abusively so as to entail a danger of interference that might restrict or impede the right of trade unions to organise their activities freely within the law.
• Allegations relating to Detention of Trade Unionists, Raiding of Private Premises and Seizure of Trade Union Publications
  266. 266 The complainants allege in their communication of 31 March 1964 that the fiscal authorities and the chief political officer of Quepos (Aguirre canton, Punta Arenas province) broke up a meeting of farmers affiliated to a trade union which was being held on private premises. They seized books belonging to the union and arrested one man. Last February, because a local committee of the Limón Agricultural Workers' Union had been formed at Estrada, an agent of the military intelligence service, accompanied by the local police inspector, carried out a search of the residence of Mr. Juan Arias, organising secretary of the above trade union, and seized the membership list of the union. In consequence of the seizure of this list five foreign workers were arrested on the charge of promoting subversive activities and an application was made for their deportation. The accused - Enrique Leal, Santiago Mendoza, Enrique Duarte, Salvador Varela and Rafael Zúñiga - were not deported but they had to leave the union. They were in prison for a week.
  267. 267 In their communication of 18 May 1964 the complainants state that Mr. Diómedes Hernández Gutiérrez, organisation and propaganda secretary of the Limón Agricultural Workers' Union, was imprisoned for over 30 days. The pretext of the authorities was that a prohibited weapon (a small dagger) had been found on him. The complainants maintain that this measure was taken against Mr. Hernández Gutiérrez because he was a trade union officer, since until the moment of his election to the office mentioned above he had not been subjected to persecution of any kind.
  268. 268 The observations of the Government refer only to the detention of Mr. Hernández Gutiérrez. According to its communication of 24 July 1964 the above trade union officer was sentenced to 30 days' imprisonment for violation of section 154 of the Police Code, which states that " carrying weapons declared illegal by laws or regulations constitute an offence punishable by 30 days' imprisonment (non-commutable) ". After the pronouncement of the sentence a writ of habeas corpus was applied for before the Supreme Court and refused on the grounds that the imprisonment of the trade union officer referred to was due to the sentence pronounced for the carrying of a prohibited weapon.
  269. 269 The Committee has always attached importance to the right of all detained persons to early and fair trial before impartial and independent legal authorities. The Committee has also pointed out in the past that, where persons have been sentenced for reasons having no relation to the exercise of trade union rights, the matter falls outside its competence, but has emphasised that the question whether such a matter is one relating to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned.
  270. 270 With regard to the detention of Mr. Hernández Gutiérrez the Committee observes that the complainants and the Government appear to agree on the fact that was the immediate cause of the sentence, namely the possession of a dagger. According to the Government this is an offence under the legislation in force, the accused had been tried fairly by the ordinary court and there had even been an appeal (recurso de amparo) to the Supreme Court. In these circumstances the Committee considers that the complainants have not advanced sufficient argument to prove that the measure was taken against Mr. Hernández Gutiérrez solely on account of his trade union office.
  271. 271 In view of the foregoing the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  272. 272 With regard to the allegations relating to the raiding of the home of Mr. Juan Arias, the seizure of the membership list of the Limón Agricultural Workers' Union, the seizure of books belonging to the Quepos Farmers' Union and the detention of the workers Enrique Leal, Santiago Mendoza, Enrique Duarte, Salvador Varela and Rafael Zúñiga, the Committee recommends the Governing Body to request the Government to furnish its observations as soon as possible.
• Allegations relating to the Prohibition of May Day Celebrations
  273. 273 The complainants state in their communication of 18 May 1964 that the Government prohibited the May Day celebrations that had been organised by the Workers' Union of Golfito, the Workers' Union of Puerto González Viquez and the Banana Industry Workers' Union of Puerto Cortés, on the pretext that the banana workers in the Republic of Panama were on strike. The complainants maintain that the ceremonies were to be held in areas quite distant from the Panama frontier, including a place more than 150 kilometres away. The local authorities issued false reports to make it appear that there was a dangerous climate of agitation in the banana-growing areas that would be exploited to create disturbances on the occasion of the celebrations.
  274. 274 The Government in its communication of 1 June 1964 states that the General Confederation of Workers of Costa Rica organised and carried out processions in various parts of the country, duly protected by the national authorities. It is true, however, adds the Government, that processions were forbidden in the banana-growing areas, owing to the obligation of the State to maintain public order and internal security. Panama was suffering at that time the effects of a strike on its banana plantations, which are adjacent to the banana-growing district of Costa Rica. Owing to a combination of circumstances the Government feared that the celebrations arranged for May Day might degenerate into disturbances with unforeseeable consequences.
  275. 275 The Committee has expressed the view on other occasions that the right to organise public meetings, particularly on the occasion of May Day, constitutes an important aspect of trade union rights.
  276. 276 The Committee observes that it is clear from the statements of the Government and the newspapers sent by it that the complainants were able to hold May Day meetings and processions in other parts of the country. The procession was prohibited in the banana-growing area for reasons connected with the maintenance of public order, since owing to special circumstances the Government feared that serious disturbances would be produced.
  277. 277 The Committee considers that it rests with the Government, which is responsible for the maintenance of public order, to decide in the exercise of its corresponding powers whether meetings, including trade union meetings, may in certain special circumstances endanger public order and security and to take adequate preventive measures.
  278. 278 In these circumstances the Committee recommends the Governing Body to note the statement of the Government that the May Day celebrations organised by the trade unions in the banana-growing area on the Pacific coast were prohibited on account of special circumstances in which they might have caused disturbances and endangered public order.
• Allegations relating to the Refusal to Register an Occupational Association
  279. 279 The complainants state in their communication of 18 May 1964 that, after the definitive refusal of the Government to recognise the Sole Federation of Workers of the Southern Pacific (FUTRA), action was started in January 1964 to set up a wider organisation to include not the banana workers' unions alone but all unions of workers in agriculture and forestry and on plantations.
  280. 280 The complainants consider that in the steps they took to obtain registration of this new organisation they complied with the only legal provisions applicable, namely section 274 of the Labour Code. This section states:
• In order that a trade union may be considered legally constituted and in full possession of its legal personality it is essential that an application signed by its president or general secretary be drawn up and sent to the General Labour Office (now Trade Union Office), directly or through the local labour or administrative authorities, together with attested copies of its articles of association and its rules. The articles of association must state the number of members, the type of union and the names in full of the members of its executive.
• The head of the General Labour Office shall, on his own responsibility, within 15 days of receiving them, examine the documents referred to in order to determine whether they are in conformity with the law. If they are, he shall make a favourable report to the Ministry of Labour and Social Welfare so that this Ministry may issue instructions as soon as possible for the registration of the union in the public registers kept for the purpose. This registration shall not be refused if the foregoing conditions have been satisfied. If the documents are not in conformity with the law, the above official shall point out to the persons concerned any errors or omissions that in his opinion exist so that they may rectify them if possible or at any time submit an appeal to the above Ministry, which shall issue a decision within ten days.
• If the application is in conformity with the law, and the head of the General Labour Office registers the union, he shall issue a certificate of registration at the request of the persons concerned and order a summary thereof to be published free of charge in three consecutive numbers of the Diario Oficial.
  281. 281 Although all the legal conditions had been complied with the Trade Union Office of the Ministry of Labour informed the applicants on 24 April, referring to the articles of association and rules of the Federation of Agricultural, Forestry and Plantation Workers that the minutes of the founding organisations recording the decision to form the federation must be sent as well. The complainants state that the authorities were unable to quote any legal provision to justify this requirement, the reason undoubtedly being the desire to hinder the formation of this new trade union body.
  282. 282 The Government in its letter of 24 July 1964 denies that it is preventing registration of the new federation and states on the contrary that the applicants did not fulfil all the provisions laid down by law for the granting of registration. In fact section 276 (f) of the Labour Code provides that it is the exclusive right of the general assembly of a trade union to approve federation or amalgamation with other unions. This means that it is the general assembly that must decide whether a union is to join with others to form a federation. In the case under consideration the applicants did not enclose the decisions of the general assemblies attesting to the will of the member unions to unite with other unions to form a federation. In these circumstances the authorities requested as long ago as 23 April 1964 that the above provision should be complied with, but by 24 July 1964 they still had not received the necessary papers.
  283. 283 The Committee observes that there appears to be in the present case a difference of opinion regarding the interpretation of the legislation in force on the registration of a trade union federation. The Committee considers that, although the interpretation of the legislation of a country rests with its competent authorities, it is proper for the Committee to examine the extent to which this interpretation conforms with the principles of freedom of association.
  284. 284 The Committee observes that Article 2 of Convention No. 87, which has been ratified by Costa Rica, provides that workers and employers shall have the right to establish organisations " without previous authorisation ", which does not free the founders of an organisation from the duty of " observing formalities as to publicity or other similar formalities which may be prescribed in certain countries, either generally in respect of all associations, or specifically in respect of trade unions ", to repeat the words of the Committee of Experts on the Application of Conventions and Recommendations. These formalities, however, must not be such as to be equivalent, in practice, to previous authorisation or to constitute a serious obstacle to the establishment of an organisation.
  285. 285 Keeping these principles in mind in another case in which the legislation of a country prescribed certain majority votes for the adoption of resolutions by the assembly of a trade union relating to questions of the highest importance for the life of the organisation and the rights of its members, the Committee considered that such legislation did not imply intervention by the authorities contrary to the provisions of Article 3 of Convention No. 87 since it involved the regulation of matters relating to the existence and structure of a union and the fundamental rights of its members, with the purpose of guaranteeing the democratic participation of members in the life of the organisation.
  286. 286 In the present case the Committee observes that the Government, interpreting the provisions of the Labour Code concerning the formation and functioning of a trade union organisation, has demanded compliance with a requirement relating to the actual existence of an organisation and having the purpose of guaranteeing the right of the future members to participate democratically in the establishment of the organisation.
  287. 287 In these circumstances the Committee considers that the complainants have not furnished sufficient proof to show that trade union rights have been violated, and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Prohibition of Trade Union Meetings
  288. 288 In their communication of 16 June 1964 the complainants report that the President of the Republic has given instructions prohibiting trade union meetings on the property of the banana companies without the previous permission of these companies, and allege that the application of this measure is equivalent to proscribing the right to organise in the banana-growing areas of the country. The Government submitted its observations on these allegations in its letter of 24 July 1964.
  289. 289 At the present session the Committee is dealing with another case which involves various allegations relating to the prohibition of the right to strike in the banana-growing area on the Pacific coast of Costa Rica. It has decided to examine the allegations mentioned in the previous paragraph and the comments of the Government when considering this case, and refers to its observations thereon.
• Other Allegations
  290. 290 In their communication of 18 May 1964 the complainants allege that the Government is violating the Labour Inspection Convention, 1947 (No. 81), in not compelling the labour inspectors to be accompanied by a trade union representative or official in the exercise of their duties. The Committee considers that this case involves allegations not directly relating to a violation of principles of freedom of association and recommends the Governing Body to decide that this aspect does not call for further examination.

The Committee's recommendations

1. 291. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to the detention of Mr. Hernández Gutiérrez, the registration of the Federation of Agricultural, Forestry, and Plantation Workers and the violation of the Labour Inspection Convention, 1947 (No. 81), do not call for further examination;
   • (b) to note that the meetings organised by the trade unions in the banana-growing area on the Pacific coast to celebrate May Day were prohibited, according to the Government, in view of special circumstances in which they might have caused disturbances and endangered public order;
   • (c) to suggest to the Government the desirability of issuing the necessary instructions to the local authorities to avoid the legal provisions in force relating to subversive propaganda being interpreted abusively so as to entail a danger of interference that might restrict or impede the right of trade unions to organise their activities freely within the law;
   • (d) to request the Government to furnish its observations as soon as possible on the allegations relating to the raiding of the home of Mr. Juan Arias, the seizure of the membership list of the Limón Agricultural Workers' Union, the seizure of books belonging to the Quepos Farmers' Union and the detention of the workers Enrique Leal, Santiago Mendoza, Enrique Duarte, Salvador Varela and Rafael Zúñiga;
   • (e) to take note of the present interim report, on the understanding that the Committee will submit a further report when it has received the observations requested from the Government.