Report in which the committee requests to be kept informed of development - Report No 265, June 1989

Case No 1168 (El Salvador) - Complaint date: 26-OCT-82 - Closed

1. 242. The Committee has examined this case on five previous occasions, often jointly with other cases concerning similar incidents, and most recently in its 256th Report, paragraphs 238 to 254 (approved by the Governing Body at its 240th Session, May-June 1988).
2. 243. At its February 1989 meeting, the Committee addressed an urgent appeal to the Government for its further comments and observations on this case, failing which it would, in accordance with its established procedure, present a report on the allegations even if the Government's reply was not received in due time.
3. 244. To date there has been no reply received from the Government.
4. 245. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case 246. This case originated in a cable from the World Federation of Trade Unions (WFTU) dated 26 October 1982 concerning the violent arrests and disappearances of several named trade union leaders. At its meeting in March 1983 the Committee was obliged to note that, despite the time which had elapsed since the allegations were transmitted to the Government, no reply had been received and it addressed an urgent appeal for its observations. The Government sent some information on 14 March 1983 and the WFTU sent on 10 May 1983, a further list of union leaders and unionists allegedly imprisoned or kidnapped in an effort to repress the union movement. At the Committee's first examination of the case (226th Report, paras. 124 to 131, approved in May 1983), it expressed its concern at these detentions and urged the Government to take measures for the release or trial of the union leaders; it asked for specific information on the charges brought against them, the events leading to the charges and arrests, the texts of any judgements delivered and any available information on those persons reported missing.

1. 247. The Government subsequently sent a series of short communications referring to the release of various union leaders by virtue of the Amnesty Act of 16 May 1983 and stating generally that the detainees were held on criminal charges carrying penalties of more than four years' imprisonment. At the Committee's second examination (234th Report, paras. 385 to 417 and Annex containing 34 names, approved in May 1984), it noted these releases but reiterated its concern that many trade unionists had been in custody since 1982 awaiting trial on charges carrying sentences of more than four years' imprisonment or had disappeared. It again urged the Government to supply precise information on the accusations made against these persons, on progress in their trials and on the whereabouts of those who had disappeared.
2. 248. In February 1985 the Committee noted with interest as regards the cases before it at that time concerning El Salvador that the Government was ready to accept a direct contacts mission to examine the various aspects of all the cases (238th Report, para. 21). In its 239th Report of May 1985, the Committee noted as regards the cases then relating to El Salvador (Cases Nos. 953, 973, 1150, 1168, 1233, 1258, 1269, 1273 and 1281)that, following an official visit by the Director-General to the country, the Government was willing to accept a direct contacts mission with a view to examining the various aspects of these cases.
3. 249. The mission took place in January 1986 and, in February 1986, the Committee took note of the mission report during its third examination of Case No. 1168 (243rd Report, paras. 366 to 408). Among other things, it stated that while the Committee was aware of the serious difficulties El Salvador was facing, it called on the Government to adopt appropriate measures to guarantee that trade union rights may be exercised in a normal fashion; this would only be possible in conditions in which fundamental human rights are respected and in a climate free of violence, pressures and threats of any kind. As for Case No. 1168 in particular, the Committee requested the Government to undertake an investigation to determine the whereabouts of the trade union leaders Elsy Márquez and José Sánchez Gallegos, and to keep it informed thereof; and it noted that some of the trade unionists mentioned by the complainants were free, and awaited the information promised by the Government concerning another 18 named trade unionists whose arrest had been alleged (concerning these 18 trade unionists, the Government reported that none of the persons listed was then imprisoned in any of the detention centres in the country, but that further investigations would be carried out to determine whether they had been imprisoned at some stage in police centres) .
4. 250. No further information was received and the Committee addressed an urgent appeal to the Government for a reply at its February 1987 meeting (235th Report, para. 12). This resulted in a new communication from the Government and the fourth examination of the case by the Committee at its May 1987 meeting (251st Report, paras. 334 to 356). The Committee stated that it was conscious of the difficult situation that the country was going through but considered it necessary to request from the Government yet further information so as to be able to reach conclusions in full knowledge of all the facts raised in the allegations and in the light of the situation prevailing in the country. It requested the Government to carry out a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos and asked for more infomation on the 18 named unionists facing trial and apparently still in detention.
5. 251. Since no further information was forthcoming, the Committee addressed an urgent appeal - its third - for a reply to the Government at its February 1988 meeting (254th Report, para. 13). This resulted in a new communication from the Government and the Committee's fifth examination of the case (256th Report, paras. 238 to 254). In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations at its May-June 1988 Session: a) The Committee must once again deeply regret that the Government has not sent all the information requested on the pending allegations. b) The Committee once again requests the Government to set up a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos, and expresses the hope that it will be possible to throw light on the fate of these trade union leaders in the near future. c) With regard to the detention and/or proceedings against the trade unionists Raúl Baires, Francisco Gómez Calles, José Vidal Cortez, Luis Adalberto Déaz, Héctor Fernández, Héctor Hernández, Jorge Hernández, Carlos Bonilla Ortiz, Silvestre Ortiz, Maximiliano Montoya Pineda, Raúl Alfaro Pleitez, Roberto Portillo, Antonio Quintanilla, Santos Serrano, Auricio Alejandro Valenzuela, René Pompillo Vasquez, Manuel de la Paz Villalta and José Alfredo Cruz Vivas, the Committee requests the Government to provide additional information on their arrest, explaining the specific charges against them, the status of the proceedings and whether they are being held in custody at present or not.
6. 252. At the same time, the Government was requested to supply information on ongoing allegations contained in Case No. 1273 against El Salvador, which was the last remaining case to be examined jointly with the present case since the 1986 direct contacts mission (in which ten cases were considered).
7. 253. No information was received and the Committee addressed its fourth urgent appeal in the history of this case to the Government at its February 1989 meeting (262nd Report, para. 12).

B. The Committee's conclusions 254. Before examining the substance of the case, the Committee considers it necessary to recall, as it has on several previous occasions when considering cases against the Government of El Salvador, the views that it expressed in its First Report (para. 31): the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. As the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, detailed replies to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.

1. 255. The Committee deeply regrets that, since the very opening of this case in October 1982, the Government has not sent all the details requested from it and then, only after many adjournments, Office reminders and urgent appeals. This attitude has now culminated in the fact that, in view of the time that has elapsed, the Committee has had to consider the case without having access to any recent information or details which it has specifically stated were necessary for a thorough examination.
2. 256. The Committee recalls that a certain amount of information was obtained on this case during the 1986 direct contacts mission which had received every facility and active co-operation in its search for the information requested by the Committee. The mission noted that El Salvador faced serious difficulties owing to the armed conflict between Government and guerilla forces but that since the 1984 elections there was a certain positive evolution. The Committee has shown considerable patience and comprehension in relation to the situation facing El Salvador, as witnessed by its report on the case after the direct contacts mission and its 251st report. However, the fact remains that no substantive information has been forthcoming on 20 named persons. Two of them were reported missing in suspicious circumstances in the WFTU's letter of May 1983 and 18 were the subject of a search in 1986 but their names did not appear in the records of the Directorate-General of Penal Centres and Rehabilitation although they might have been held by the security forces (no reply has come on this from the Ministry of Public Safety despite inquiries by the direct contacts mission: see 243rd Report of the Committee, para. 392). The Committee considers it unacceptable that a member State would not provide detailed and complete answers when the lives and freedom of trade union leaders and trade unionists are at stake.
3. 257. The Committee can only draw the Government's attention to the great importance it attaches to the principle that a climate of violence such as that surrounding the disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and such an event requires severe measures to be taken by the authorities (see, for example, Digest of decisions and principles of the Freedom of Association Committee, 1985, para. 76). The Committee is also committed to the principle that because detention of unionists may involve serious interference with trade union rights and because of the importance of a fair trial, governments should bring detainees to trial in all cases without delay, irrespective of the reasons put forward for prolonging the detention (see Digest, para. 95).
4. 258. The Committee considers that it is now imperative that the Government open independent judicial inquiries into the whereabouts of the 20 trade unionists whose names are listed in the Annex, as has been done by other governments when faced with a total inability to obtain data on missing individuals, and requests the Government to keep it informed on the results of said inquiries.

The Committee's recommendations

• a) The Committee deeply regrets that, since the very opening of this case in October 1982, the Government has not sent all the details requested from it and then, only after many adjournments, Office reminders and urgent appeals. This has necessitated the present examination of this case without any recent communication from the Government.
• b) While recalling that a certain amount of information was obtained on this case during the 1986 direct contacts mission, the Committee considers it unacceptable that a member State would not provide detailed and complete answers when the lives and freedom of trade union leaders and unionists are at stake.
• c) It draws the Government's attention to the great importance it attaches to the principles on the measures to be taken in cases of disappearance of trade union leaders and on rapid trial or release of detained unionists, set out in the above paragraphs.
• d) It urges the Government to open an independent judicial inquiry into the whereabouts of the 20 unionists listed in the Annex to this case. The Committee requests the Government to keep it informed on the results of said inquiries.

ANNEX

1. List of 20 trade unionists apparently in prison or missing
2. according to the WFTU's communications of May 1983
3. 1. Raúl Baires Propaganda Secretary of BPR
4. 2. Francisco Gómez Calles Worker at the Izalco textile mill
5. 3. José Vidal Cortez Propaganda Secretary of the Intesa trade union
6. 4. Luis Adalberto Díaz General Secretary of the People's Liberation
7. Movement (MIP)
8. 5. Héctor Fernández Member
9. 6. José Sánchez Gallegos General Secretary of FSR, captured in
10. Guatemala
11. 7. Héctor Hernández Second Secretary of the Trade Union of
12. the Sugar Refineries of El Salvador
13. (SETRAS)
14. 8. Jorge Hernández Member of the Trade Union of Workers of
15. the Salvadorian Social Security
16. Institute (STISS)
17. 9. Elsy Márquez Leader of the National Federation of
18. Trade Unions of Salvadorian Workers
19. (FENASTRAS)
20. 10. Carlos Bonilla Ortéz Member of STISS
21. 11. Silvestre Ortéz Industrial Disputes Secretary of SETRAS
22. 12. Maximiliano Montoya Pineda Setras
23. 13. Raúl Alfaro Pleitez Former General Secretary of the Trade
24. Union of Workers of "Constancia" SA
25. (brewery)
26. 14. Roberto Portillo Leader of the Trade Union of Workers in
27. the Electronics Industry of El Salvador (SIES)
28. 15. Antonio Quintanilla Former General Secretart for
29. administration of the Constancia Trade
30. Union, captured when accompanied by his
31. wife
32. 16. Santos Serrano General Secretary of the Trade Union of
33. the firm of "Rayones SA"
34. 17. Auricio Alejandro Finance Secretary of SIES Valenzuela
35. 18. René Pompillo Vásquez Member of STISS
36. 19. Manuel de la Paz Villalta General Secretary of STISS
37. 20. José Alfredo Cruz Vivas Member of STISS