Definitive Report - Report No 151, November 1975

Case No 752 (El Salvador) - Complaint date: 24-APR-73 - Closed

1. 82. The complaint from the world Federation of Trade Unions (WFTU) is contained in a communication dated 24 April 1973. Despite repeated requests from the Committee, the Government had not offered any specific comments on the allegations made by the complainants and the Committee therefore forwarded an urgent appeal to the Government in February 1975 to provide the information requested. The Government then transmitted its observations by two communications received on 25 and 29 April 1975.
2. 83. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1947 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 84. The WFTU states that the Government unleashed a wave of repression against the trade unions of that country, and in particular against the United Trade Union Federation of El Salvador (FUSS), which is affiliated to it. It is claimed that on 10 February 1973, the police entered the premises of the headquarters of the FUSS in San Salvador without being in possession of a warrant issued by the judicial authority for such entry, arrested two of its leaders, José Antonio Román Mendoza and Rafael Aguinana Carranza, and refused to give any information as to where they were detained. Furthermore, hundreds of persons were arrested, most of them active trade unionists. The Congress of El Salvador adopted a new Penal Code forbidding meetings, demonstrations, strikes, protests against political arrests, the publication of opinions contrary to those of the Government, appeals to invalidate ballot papers, the dissemination of avant-garde ideas, etc.
2. 85. In its reply, the Government states that it is unable to make specific observations on the police action in the premises of the FUSS until the complainants provide more complete information on the matter. It states that José Antonio Román Mendoza and Rafael Aguinana Carranza have never been detained. The latter had been elected a member of the Legislative Assembly and in that capacity enjoyed all the prerogatives associated with that position. The new Penal Code, which had come into force on 15 June 1974, contained no provision conflicting with freedom of association.

B. B. The Committee's conclusions

1. 86. The Committee notes the information communicated by the Government and, in particular, that relating to José Antonio Román Mendoza and Rafael Aguinana Carranza. The Government has nevertheless not provided information on the police action concerning the premises of the FUSS, although the complainants indicated the date and place of the alleged action. In this connection, the Committee has emphasised on various occasions that although trade unions, like other associations or persons, cannot claim immunity from search of their premises, searches should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that there are reasonable grounds for supposing that evidence exists on the said premises for charges in respect of an offence against the law and provided that the search is restricted to the purposes for which the warrant was issued.
2. 87. Moreover, the new Penal Code contains provisions punishing, for example, rebellion, sedition and uprisings (sections 392 et seg.) and participation in subversive associations, particularly those having as an aim the teaching, dissemination or propagation of anarchist or undemocratic theories (sections 376 et seg.). The Penal Code also lays down penalties for mass stoppage of work by civil servants and employees in the public sector (section 433). It also provides penalties for the instigators and leaders of illegal strikes (section 226). In the present case, the complainants do not provide proof that these provisions are applied in such a manner as to violate freedom of association.

The Committee's recommendations

1. 88. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note that, according to the Government, José Antonio Román Mendoza and Rafael Aguinana Carranza have never been detained; and
   • (b) to draw the attention of the Government, in connection with police intervention in the premises of the FUSS, to the principle stated in paragraph 86 above.