Interim Report - Report No 246, November 1986

Case No 1169 (Nicaragua) - Complaint date: 12-NOV-82 - Closed

197. The Committee last examined cases 1129, 1169 and 1298 at its November 1985 meeting (see 241st Report, paras. 440 to 494, approved by the Governing Body at its 231st Session (November 1985)).

1. 197. The Committee last examined cases 1129, 1169 and 1298 at its November 1985 meeting (see 241st Report, paras. 440 to 494, approved by the Governing Body at its 231st Session (November 1985)).
2. 198. The Committee had already examined Case No. 1129 (presented by the Latin American Central of Workers and the World Confederation of Labour) at its November 1982 and February 1984 meetings. (See 218th Report, paras. 467 to 481, and 233rd Report, paras. 236 to 242 and 317, approved by the Governing Body at its 221st and 225th Sessions in November 1982 and February-March 1984, respectively.) The World Confederation of Labour sent new allegations in a communication dated 6 November 1985.
3. 199. Case No. 1169 (presented by the International Confederation of Free Trade Unions and the World Confederation of Labour) has already been examined by the Committee on four occasions: March 1983, March and June 1984 and March 1985. (See 222nd, 233rd, 234th and 238th Reports of the Committee, approved by the Governing Body.)
4. 200. Case No. 1298 (presented by the International Confederation of Free Trade Unions) was examined in February-March 1985 and was the subject of an interim report approved by the Governing Body. (238th Report, paras. 232 to 247.) At a later date, the International Confederation of Free Trade Unions (ICFTU) submitted new allegations in communications dated 14 and 23 January and 4 and 10 March 1986.
5. 201. The complaints concerning Cases Nos. 1344 and 1351 appear in communications from the International Organisation of Employers (IOE) of 16 July (Case No. 1344) and 17 October 1985 (Case No. 1351). With regard to the first case, the 10E sent additional information in a communication dated 5 August 1985.
6. 202. The Government replied in communications dated 1 and 7 November 1985, 14 January, 12 February, 22 and 23 May and 21 October 1986.
7. 203. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. A. The complainants' allegations

• Case No. 1129
  204. 204 While examining the case at its November 1985 meeting, the Committee requested the Government to reply to the allegations concerning the detention of several members of the Central of Nicaraguan Workers (Eduardo Aburto Guituérrez, Eric González González and Milton Silva Gaitán - of whom the latter, CTN official, was detained in 1983 after having been forcefully removed from his home) and to the allegations that the Minister of Labour had refused to recognise the executive committees of a number of unions in the agricultural estates of Fátima and Las Mojarras at El Jicaral (Department of León), of the La Concepción agricultural estate in Matagalpa, and of the Chinandega and Managua service stations, all members of CTN. (See 241st Report, Case No. 1129, paras. 484 to 494.)
  205. 205 Subsequently, the World Confederation of Labour (WCL) submitted new allegations in a communication dated 6 November 1985. The WCL alleges, in particular, that on 24 October 1985 the headquarters of the Central of Nicaraguan Workers (CTN) in Managua was broken into by state security police forces; the records were stolen and the officials Sergio Rosa and Eugenio Membreño were arrested and taken, under threat of death and torture, to the Chipote prison; on arriving there, they were stripped of their clothes, dressed in prison uniform and photographed; their passports were then taken away from them and they were subjected to all sorts of insults. The WCL adds that, on the same day, the homes of these and other CTN officials were raided, their documents and personal belongings were stolen and their families were threatened and terrorised.
  206. 206 The WCL also alleges that CTN union members Arcadio Ortiz, Napoleón Molina Aguilera, Milton Silva, Ricardo Cervantes Rizo and Orlando Aguilera have been condemned to long prison sentences for their trade union activities and that many others have been deprived of their freedom on the same grounds.
  207. 207 Finally, the WCL alleges that on 26 October 1985, Carlos Herrera, manager of the San Antonio Chichigalpa sugar mill, Chinandega, was arrested at his place of work and that, up to the present date, the charge against him is unknown.
  208. 208 In its communication of 12 February 1986, the Government states that in 1982 a series of disagreements between CTN executives resulted in a split within this organisation. This occurrence had negative repercussions both inside the organisation and on its activities, so that the consequences of the split were felt within the trade unions affiliated to the CTN. The trade unions quoted in this case are a concrete example of this: the unions of the Chinandega and Managua service stations, of the Fátima agricultural estate located in the Las Mojarras District, El Jicaral (Department of León), and of the La Concepción agricultural estate (Department of Matagalpa).
  209. 209 More specifically, the Government points out that the trade union in the agricultural estate of Fátima was set up on 23 February 1980 with 45 members in the Las Mojarras District, in the municipality of El Jicaral (Department of León). It was registered on 26 March 1980 with the Department of Trade Union Organisations of the Ministry of Labour. In its early days, this trade union operated normally as regards the terms of office of its executive committees; however, this situation changed for internal reasons, to which reference was made at the beginning of this text. However, the Department of Trade Union Organisations issued the appropriate certificates, the latter of which was issued on 3 December 1984 for the executive committee elected for a term of office from 28 November 1982 to 27 November 1985.
  210. 210 The Government adds that the trade union of the La Concepción agricultural estate, which has its premises in the Wasaka District (Department of Matagalpa), was set up on 11 November 1979 with 100 members. It was registered on 8 January 1980 with the Department of Trade Union Organisations. On 9 July 1984, a certificate was issued to its executive committee elected for a term of office running from 2 March 1984 to 1 March 1985. It is known that there was a general assembly to reorganise its affairs but, up until the present time, the relevant documentation had not been submitted, the reasons for which are unknown.
  211. 211 As regards the Chinandega trade union, the Government states that it initially grouped all the service station workers and was under departmental jurisdiction. They later decided to dissolve it and set up a trade union with municipal jurisdiction; this trade union, called the Trade Union of Chinandega Service Stations, was set up on 7 October 1984 and registered on 15 November 1984 with the Department of Trade Union Organisations. Its executive committee was issued a certificate for a term of office from 7 October 1984 to 6 October 1985; it was managed and advised by the CTN. Furthermore, the Trade Union of Managua Service Stations (SITEGMA), which was also registered with the Department of Trade Union Organisations, was issued a certificate on 25 May 1982 recognising its executive committee, elected for one year at its general assembly on 22 May, for the term of office 1982-83. On 20 May 1984, another executive committee was elected at a general assembly held at the CTN premises, against which a complaint was lodged with the Ministry of Labour by 19 workers representing a sector belonging to the trade union. On the basis of this contestation, the Department of Trade Union Organisations rejected the registration by an order of 13 August 1984, in which it was stated that several articles of the SITEGMA statutes had been infringed by the said general assembly. In a spirit of co-operation and in an attempt to settle the dispute which had arisen within the trade union, the Department of Trade Union Organisations called upon the parties to the dispute to convene a new general assembly. This took place but since there were not enough or sufficiently representative members present, the Ministry of Labour, in accordance with principles of institutional law, kept out of the dispute as it believed that it was due to the intrinsic attitudes of both the trade union officials and the advisory central.
  212. 212 In concluding, the Government is of the opinion that the Department of Trade Union Organisations did not, at any time, refuse to register or recognise the trade unions in the cases submitted. In these cases, problems had arisen because of the repercussions of the dispute within the CTN itself, resulting in the setting up of two centrals, both of which claimed the representativity and allegiance of the executive committees.
  213. 213 In a later communication dated 23 May 1986, the Government states that Milton Silva Gaitán was at present in the Tipitapa prison, where he entered on 10 October 1983; he was tried for having infringed the Act concerning the Maintenance of Public Order and Security and sentenced to six years' imprisonment by the Anti-Somoza People's Court. Eugenio Membreño was tried for having infringed the Act concerning the Maintenance of Public Order and Security after a warrant had been issued on him by the Criminal Court Magistrate of Chinandega and he was later released on 9 March 1983. Ricardo Cervantes Rizo was arrested on 17 July 1983 and transferred to the free zone on 28 July of the same year. He was tried for having infringed the Act concerning the Maintenance of Public Order and Security and for belonging to the counter-revolutionary organisation, the Nicaraguan Democratic Front (FDN), and for spreading propaganda against the legally constituted Government. He was sentenced by the Anti-Somoza People's Court to seven years' imprisonment on 1 December 1983. This sentence was upheld in an appeal on 17 February 1984. Arcadio Ortiz Espinoza, trade unionist and worker at the National Bus Company, was arrested on 5 November 1983 and tried by the Anti-Somoza People's Court for having infringed the Act concerning the Maintenance of Public Order and Security and for belonging to the Nicaraguan Democratic Front (FDN). He made secret visits to Honduras and offered information to the FDN general staff concerning economic and military objectives in Nicaragua. On 9 July 1984, he was sentenced, in the first instance, to eight years' imprisonment. This sentence was changed by the Anti-Somoza People's Court, in the second instance, to six years' imprisonment. Orlando Napoleón Molina Aguilera, a member of SIMOTUR (Urban Motorcyclists Union), ex-national guard and collaborator of the Somozan Colonels Enrique Bermúdez, Agustín Bodán and Juan García Saldaña, continued to have links from Nicaragua with the Somozan Colonel Enrique Bermúdez who is at present a member of the Directorate of the Nicaraguan Democratic Front (FDN) and living in Costa Rica. He was arrested on 14 November 1983, tried by the Anti-Somoza People's Court for having infringed the Act concerning the Maintenance of Public Order and Security and sentenced to five years' imprisonment on 9 July 1984 by this court; in an appeal, this sentence was changed to four years' imprisonment on 26 June 1985.
• Case No. 1169
  214. 214 When it last examined this case, the Committee requested the Government to supply copies of the judgements handed down against the trade unionists José Angel Altamirano López, Mercedes Hernández Díaz and Eleazar Marenco. The Government had pointed out that José Angel Altamirano López was arrested in April 1983 for having directed a counter-revolutionary unit and for being found in illegal possession of weapons. He belonged to the mercenary group (ARDE) and was sentenced to 12 years' imprisonment by the courts; Mercedes Hernández Díaz was arrested in April 1983 for having recruited persons for the mercenary group ARDE and for having provided financial aid for the purchase of arms. She was sentenced to 12 years' imprisonment; and Eleazar Marenco was arrested in April 1983 for having participated in several conspiratorial meetings and for having provided financial aid for the purchase of arms. He was sentenced to six years' imprisonment.
  215. 215 The Committee had also requested the Government to indicate whether nine other trade unionists cited in the Annex to the 241st Report were still in prison and, if so, to state the reasons for their detention (see 241st Report, para. 494). The complainants had provided the following information on these nine trade unionists: Rito Rivas Amador was arrested at Juigalpa (Department of Chontales) in December 1982; Iván Blandón, Victor Ríos, Napoleón Aragón, Juan Ramón Duarte and his brother were arrested at El Cascal, Nueva Guinea (Department of Zelaya) in April 1983; Maximino Flores Obando was arrested in the Department of León in December 1982 and sentenced to three years' imprisonment by the Anti-Somoza People's Courts for organising the counter-revolution in the region; the complainants gave no special indications on Anastasio Jiménez Maldonado and Gabriel Jiménez Maldonado.
  216. 216 In its communication of 7 November 1985, the Government stated that Máximo Flores Obando had been sentenced to three years' imprisonment on 11 July 1983 by the Fourth District Criminal Court Magistrate for having committed armed assault. Iván Blandón, Victor Ríos, Napoleón Aragón and Juan Ramón Duarte were arrested at El Cascal, Nueva Guinea in April 1983 on account of their links with a counter-revolutionary unit of the mercenary group ARDE, headed by José Angel Altamirano López; these persons were released the same month.
  217. 217 As regards Rito Rivas and Antonio and Gabriel Maldonado, the Government, in its communication of 21 October 1986, points out that having conducted a detailed investigation of the various prisons throughout the country, it ascertained that there was no mention whatsoever of the detention of these persons in the prison records.
  218. 218 The Government also sent copies of the judgement handed down against José Angel Altamirano, José Mercedes Hernández Díaz and Eleazar Marenco on 7 November 1984.
• Case No. 1298 Previous examination of the case
  219. 219 The allegations pending in the present case referred to the occupation of the headquarters of the Confederation of Trade Unions Unity (CUS) on two occasions, once by a group of 20 persons on 18 August 1984 and the second time after groups of persons have broken in on 25 August 1984. The Government considered that these incidents were the result of divided opinions within the CUS as to whether it should remain within or withdraw from an opposition political group. In the complainants' view, on the other hand, the incidents were caused by the interference of public officials with a view to obtaining the CUS's withdrawal from this opposition movement. The complainants also sent in support of their complaint a statement by a legal adviser to the CUS, sworn before a notary, in which he states that he was subjected to threats and pressure in order to induce him to commit acts that would be instrumental in doing away with the CUS. The person concerned stated that an official of the Ministry of the Interior had ordered him to seek out persons belonging to the CUS to support a group of persons not belonging to this organisation which had occupied its headquarters. He had been forced to go to the CUS on 25 August to support the occupants, and had there met members and non-members of the CUS. A general assembly had then been held at the CUS headquarters and, when the parties failed to reach an agreement, several persons had injured or harangued the true members of the CUS and partially destroyed its office. The complainants also stated that the police had done nothing to stop the attack on the CUS headquarters by certain groups on 25 August. Furthermore, the complainants had alleged the arrest of José Agustín Téllez, Secretary-General of the Federation of Peasant Workers in Carazo (FETRACAMCA).
  220. 220 The Committee noted with regret that the Goverment had not replied to the allegations still pending and repeated its earlier request for an explanation of the occupation of the CUS headquarters on 18 August 1984, led by two persons alleged to have links with the state security forces, as evidenced by the notarised statement of the former legal adviser to the CUS. The Committee requested the Government to reply to the allegation that on the occasion of the second occupation of the CUS headquarters on 25 August 1984, the police had done nothing to stop the attack and intervened only when everything was over, although they had been in the vicinity of the organisation's headquarters. Finally, the Committee requested the Government to indicate whether José Agustín Téllez, Secretary-General of the Federation of Peasant Workers in Carazo, was still in prison and, if so, to indicate the grounds for his detention (see 241st Report, paras. 490 to 494).
• Later developments in the case
  221. 221 In its communications of 14 and 23 January 1986, the International Confederation of Free Trade Unions (ICFTU) alleges that the Government is preventing the publication of Solidaridad (Solidarity), the review of the Confederation of Trade Union Unity (CUS). The Government's initial pretext for suspending the CUS's review, Solidaridad, was that it was unable to grant the necessary authorisation to continue publishing the review because it had to make an annual assessment of its activities; then, on a second occasion, on 17 December 1985, the review was made illegal. It should be pointed out that the review has existed for more than 12 years and its 19 issues have been distributed, from the beginning, amongst the same state bodies and the Sandinista Front. The ICFTU includes, as an Annex, a communication from the Directorate of Communications of the Ministry of the Interior, in which it is stated that the CUS disregarded Decree No. 619 and, specifically, the powers invested in the Directorate of Communications as regards grants and permits.
  222. 222 The ICFTU adds that the State Security forces had repeatedly made calls to and issued summonses on various trade union colleagues belonging to the CUS, and that these calls had been accompanied by pressure and strong threats. About 300 persons throughout the country have been issued summonses, including Xavier Altamirano Pérez (Cultural Secretary of the CUS Executive Committee and Chairman of the Chinandega Workers' Federation). According to the ICFTU, during the months of November and December 1985, various trade union organisations belonging to the CUS in the northern, southern and western areas of the country were visited by three persons who claimed that they represented the Ministry of Labour, the State Security Police Force and the Sandinista National Liberation Front. This "delegation" travelled in a white vehicle bearing the number plates POK 03388. During the various visits it made, emphasis was laid on the "seriousness and consequences of the Full State of Emergency" proclaimed on 15 October 1985; it was also pointed out that "it will be no joke; if anyone attends meetings in the future, they will go to prison and this ban also extends to the registration of any trade union or federation". These "visits" were also made, with the same object in mind, to the technical sewing schools run by the CUS.
  223. 223 In its communications dated 4 and 10 March 1986, the ICFTU alleges the arrest of 15 CUS trade unionists in the village of Posoltega (Chinandega) which is 120 kilometres from Managua. The names of those arrested are as follows: Eduardo Gutiérrez, Porfirio Gutiérrez, Pablo Roberto Gaitán, Juan Gaitán, Antonio Flores, Enrique Flores, Leoncio Flores and Enrique de la Cruz (arrested on 20 February 1986), Estanislao Flores, Rodolfo Flores, Alberto Argüello, Gonzalo Avendano, Antonio Vargas and Tomas Silva (arrested on 22 February and released on 3 March) and Domingo Espinoza Gómez (arrested on 25 February).
  224. 224 The ICFTU points out that these arrests were carried out by members of the Sandinista National Police Force, dressed in civilian clothing, and that they burst into the homes of the above-mentioned trade unionists at daybreak. At present, the whereabouts of these detained persons is unknown. The ICFTU adds that during an interview between an ICFTU representative and a commanding officer in Managua, the latter pointed out that those in custody were accused of murder, assault and cattle stealing; however, on the same day, the detainees' relations and inhabitants of Posoltega stated that there had been no murders or thefts in this area and that the charges against the detainees were merely a government invention. At the same time, the detainees' children, wives and mothers were threatened with imprisonment if their wives or children did not renounce their CUS membership; furthermore, they are constantly visited by policemen who, apart from threatening them, help themselves to toiletries and food in their homes.
  225. 225 In its communication of 7 November 1985, the Government states that having conducted an extremely careful investigation in the various prisons throughout the country, it ascertained that there was no mention of José Agustín Téllez's detention in any of the prison records.
  226. 226 In a later communication dated 14 January 1986, the Government states that in connection with the allegations pending concerning the occupation of the CUS headquarters, it believes it has given enough explanations on this matter and it is not going to reply, as requested, with details concerning allegations of such a suspicious nature. The Government insists that the events which occurred at the CUS headquarters were solely the outcome of internal conflicts between its officials and that, in intervening, the police were merely fulfilling their duty, as they would have done in any other part of the world. The fact that the CUS is continuing to operate freely is a proof of all this. It was not an aim of the Government, neither was it in its interest, to destroy or undermine the existence of any trade union organisation. The Government is an advocate of political and trade union pluralism. This has been understood by many organisations and important international figures visiting the country and it will always continue to be the Government's policy. The Government points out that it would appreciate it if the Committee of Freedom of Association would bear in mind the explanation it has given in the past, which it considers to be valid, adequate and true.
  227. 227 In its communication of 22 May 1986, the Government states that, on 19 March 1986, the First Criminal Court Magistrate of the Chinandega District handed down an interlocutory judgement on Porfirio José Gaitán Gutiérrez, Marco Antonio Flores López, Pedro José Gaitán Gutiérrez and Leoncio Eulogio Flores Santeliz and sentenced them to prison; they were charged for having stolen cattle from Raúl Rodríguez Sarria (who lost about 60 head of cattle). Domingo Porfirio Espinoza Gómez was sentenced to prison for having been an accessory after the fact for the same offence. Proceedings against Pablo Gaitán Gutiérrez, Estanislao Francisco Flores López and Enrique de la Cruz Gaitán Gutiérrez have been dismissed. The case against all the above-mentioned accused persons, concerning the theft of cattle from Carlos Herdocia Icaza (who lost about 40 head of cattle), is still under way. The Government adds that Marco Antonio Flores López was sentenced to prison for having robbed and intimidated Ofilio Peralta Vasquez and that proceedings against all those accused of having stolen cattle from Julio Espinales have been dismissed. From the beginning of the trial, the defendants were attended by their respective counsel and had full guarantees for their defence.
• Case No. 1344
• The complainant's allegation
  228. 228 In its communications of 16 July and 5 August 1985, the 10E protests against the discriminatory measures taken by the Government against the private sector in general and the officials of the Council for Private Enterprise (COSEP) in particular, especially its President, Mr. Enrique Bolaños.
  229. 229 The allegations are the following:
       • - in 1982, confiscation of the assets and expulsion from the country of Mr. Frank Bendaña, Vice-President of COSEP and President of UPANIC;
       • - in 1983, confiscation of the lands belonging to Mr. Ramiro Gurdián, Vice-President of COSEP and President of UPANIC;
       • - in 1983, confiscation of the undertakings of Mr. Ismael Reyes, Vice-President of COSEP, President of the Chamber of Industry and Employers' delegate at the International Labour Conference;
       • - in 1983, imprisonment without trial and subsequent release of Mr. Douglas Reyes, son of Mr. Ismael Reyes, during the International Labour Conference, in June 1983;
       • - in 1983, confiscation of the agricultural undertaking of Mr. Benjamín Lanzas, Vice-President of COSEP and President of the Chamber of Building;
       • - in 1984, instigation of disorder in the Bolaños-Saimsa undertaking, where there was no labour dispute, by outside workers employed by the Ministry of Agrarian Reform, on 14 February 1984, and by workers of the INCA and CELCALZA State undertakings, on 16 February of the same year. It is alleged that the workers in question used vehicles belonging to the Sandinista armed forces for this purpose;
       • - in 1985, arbitrary confiscation, without respecting the legal regulations estabished by the Agrarian Reform Acts, of the lands of Mr. Bolaños on 14 June 1985 and defamatory and slanderous statements made against him by Commander J. Weelock, Ministry of Agrarian Reform, as well as by the official radio;
       • - de facto confiscation on 28 June 1985, without the issue of an expropriation order, of the industrial undertaking Bolaños-Seimsa and its equipment;
       • - prohibition by the Directorate of Communication Media (Minister of the Interior) of the publication in "La Prensa", the only independent newspaper in Nicaragua, of an open letter from COSEP dated 29 December 1984 to the co-ordinator of the Government Junta, entitled "And why not try freedom?";
       • - prohibition by the censorship authorities of the publication in "La Prensa" of the replies of Mr. Bolaños to Commander Weelock. Only the Sandinista newspapers, radio and television have been able to publish his account and comments on the expropriation of the lands belonging to Mr. Bolaños. The censored press articles referred to the abusive expropriation suffered by Mr. Bolaños and in which the latter maintained that the proceedings in the court which was competent to examine any appeal against the expropriation of his lands offered no guarantee of impartiality in his case since the President of the said court publicly recognised that the court based its decision (a decision which could not be appealed) on the opinion expressed by the Ministry of Agrarian Reform, that is, the body which had ordered the expropriation measures;
       • - detention and torture by Commander Lenin Cerda, a subordinate official of the Minister of the Interior, of Mr. Tomás Borge, of the president of the parents' association whose families attend private religious schools, and which is affiliated to the Confederation of Independent Occupations (CONAPRO) and a member of COSEP, for having publicly expressed his opinions on the educational reforms recommended by the Sandinista National Liberation Front.
  230. The Government's reply
  230. 230 In its communication of 1 November 1985, the Government emphatically rejects the allegation that the confiscation of the lands belonging to Mr, Enrique Bolaños was politically motivated and designed to curtail freedom of association and that it constituted a discriminatory measure taken because he was a member of a specific organisation.
  231. 231 The Government states that the decision to expropriate the lands of the person concerned was exclusively due to the objective need of giving a satisfactory and urgent solution to the pressing problems faced by the department with the highest population density in the country and in which historically there had always been a heavy demand for land.
  232. 232 The Government states that, given this objective situation, the Minister of Agricultural Development and Agrarian Reform, Mr. Jaime Weelock, pursuant to his legal powers, issued Agreement No. 18, which declared Masaya an area of agricultural development and agrarian reform, in accordance with the fundamental objective of the Nicaraguan revolution which is to guarantee peasants the opportunity to live with dignity from their work on the land and to ensure their full integration into the national agricultural development plans.
  233. 233 The Government adds that historically the indigenous communities in the Masaya region have been the victims of a process of violent eviction which has led to the emergence of a number of precarious, marginal small farmsteads which are unable to guarantee the subsistence of rural families in the region in contrast to the large landholdings concentrated in the hands of a few owners.
  234. 234 The Government adds that Agreement No. 18 also stipulates that the lands in the affected region will be assigned to 1,700 peasant families who will thus be given the opportunity to increase their standard of living. According to the Government, this agreement resulted in the adjudication of 2, 000 manzanas (1 manzana = 10,000 square yards) of farm land free of charge to the peasants under the administration of the State. This measure accords with the provisions of section 26 of the Agrarian Reform Act which establishes the following: "within an agricultural development and agrarian reform area the competent Minister may issue special regulations concerning the ownership of land and determine the exploitation and adequate use of the soil and other related natural resources and agricultural development in accordance with the specific plans and projects established for the region".
  235. 235 The Government also states that the International Covenant on Economic, Social and Cultural Rights, ratified by Nicaragua on 12 May 1980, recognises in its Preamble that "in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights". The Government adds that its national legislation, which is fully consonant with the international covenants on the promotion and protection of human rights, legally affected 15 private producers who agreed to negotiate mutually satisfactory agreements.
  236. 236 According the Government, Mr. Bolaños is the owner who has received the best set of options from the State, including the exchange of his land for holdings of equal or better quality, in the same Pacific region of Nicaragua. The size of the land offered to Mr. Bolaños is equivalent to twice that of his former holdings. However, Mr. Bolaños was the only person who rejected his right to compensation for the expropriation of his farm and he refused to lodge an appeal with the agrarian court.
  237. 237 Finally, the Government states that it reiterates its support for the principles of ideological pluralism and mixed economy which constitute the fundamental basis of the Government's actions, and that in accordance with these principles it has maintained a respect for employers' organisations (such as COSEP) within the framework of the law, despite the clear identification of the officials of this last-mentioned organisation with the plans being encouraged by a foreign government to destroy the Nicaraguan revolution.
  238. 238 The Government includes in its communication of 14 January 1986 the report of the Ministry of Agricultural Development and Agrarian Reform on this matter. This report confirms the contents of the information provided by the Government and points out that the population density in the Masaya department is 280 inhabitants per square kilometre, whereas the average for the country as a whole is only 25 inhabitants per square kilometre; that of a total of 13,296 families 8,730 need land, that more than 50 per cent of the land belongs to 2 per cent of the owners whereas 8,500 families are grouped in very small holdings, in addition to the 1,200 families who have no land; and that unemployment in this region affects 92 per cent of the economically active population.
  239. 239 The report adds that on the basis of the Agrarian Reform Act, 50 per cent of the territory of the Masaya department, i.e. 323 square kilometres, was declared an area of agricultural development and agrarian reform on 14 June 1985, thus making it possible to allocate plots of land to 2,000 families. The Government points out that the following measures were taken: the allocation without charge of 2,000 plots of land under the administration of the State and the negotiation on the assets with 15 private producers. According to the report, all the producers participated in these negotiations in a patriotic way, with the exception of Mr. Bolaños who rejected the exchange of land and compensation and has even renounced his right to lodge an appeal with the agrarian court.
  240. 240 In the same way, the Government includes in the annex to its communication the text of Agreement No. 18, as well as an estimate on the application of the Masaya Plan of 25 September 1985. The report shows that at the beginning 67 per cent of the Plan had been applied as regards land and 59. 5 per cent as regards the families who were beneficiaries. However, although some families had agreed to negotiate, the land of others had to be expropriated since the conditions which they set were too onerous. Reference is also made to problems of the "invasion" of some lands during the period when the former negotiations had not yet been concluded. Despite the short 7period of time which has elapsed since the initial application of the Plan, it must be stressed that an acceptable level of implementation and organisation has been achieved, although it must be recognised that difficulties in the negotiations have made it difficult to control the unexpected invasions. Perhaps a more forceful attitude might have prevented them. Nevertheless, the arrival of the sowing season played a major role in encouraging the peasants to act.
• Case No. 1351
• The complainant's allegations
  241. 241 The 10E alleges in its communication of 17 October 1985 that on Saturday 7 September 1985, 2,000 employers were due to meet in Managua at the invitation of the Private Enterprise Executive Council (COSEP). This meeting, which had been prepared by regional assemblies held in the weeks before in three major cities of the country, was convened so as to allow participants to define the policies of private enterprise in the industrial, commercial and agricultural sectors as a whole in the light of the serious economic problems affecting the country. COSEP declared 7 September a "Private Enterprise Day". On 6 September, the day before the meeting, the leaders of COSEP were obliged, manu militari, to appear before the Ministry of the Interior and were informed that the meeting had been prohibited. On the following day, all the access routes to Managua were blocked and the vehicles of delegates due to participate in the private enterprise day were prohibited from entering the city and the president of COSEP was placed under house arrest. In this way, the complainant adds, the Government of Nicaragua has once again violated the freedom of association of the employers of this country.
  242. 242 The complainant also alleges that on 15 October 1985 the Government, citing the hostile attitude of the "right", the "left" and the Catholic Church, "inspired by the United States of America", suspended or limited accordingly, by a decree to remain in force for one year, the right of assembly, expression, association, strike and habeas corpus, freedom of the press, the right of free movement, the right to appeal against the State (appeal for protection) and judicial guarantees.
  243. 243 This decree legalises in many respects the de facto situation which gave rise to the complaints made by the 10E and other complainants to the Committee on Freedom of Association and constitutes a further infringement of freedom of association in Nicaragua.
• The Government's reply
  244. 244 As regards the events of 6 and 7 September 1985, the Government states in its communications of 23 May and 21 October 1986 that COSEP has used the name of Jorge Salazar as a banner for the Nicaraguan Democratic Front (FDN), a counter-revolutionary organisation which is carrying out atrocious crimes and campaigns of terror against the Nicaraguan population. On the above-mentioned dates COSEP planned to render homage to the memory of the counter-revolutionary Jorge Salazar, who died whilst engaged in the traffic of arms for the counter-revolution. This homage was presented as a "Private Enterprise Day". On being informed of the COSEP plans, the Government decided to suspend this activity and instructed the Ministry of the Interior to inform COSEP of its decision, which was done during the course of a meeting which was attended by the principal directors of COSEP. During the course of this meeting, the Ministry of the Interior explained to COSEP that the Government could not allow public homage to be paid to the memory of a counter-revolutionary who participated in illegal and criminal activities designed to overthrow the legitimate Government of Nicaragua by the force of arms. In the same way COSEP was informed that the Government had no objection to the holding of a private employer's day on any other date subject to advanced notice being given and the observance of existing regulations. In any State an organisation must be endowed with legal personality before it can decide that a specific day should be commemorated at the national level in honour of a certain event or person. At no time did COSEP make such a request to the legislative bodies for the holding of a private employer's day. Finally, the Government points out that no one was arrested during these days for matters related directly to the above-mentioned situation.
  245. 245 As regards Decree No. 128 on the state of national emergency, the Government states that pursuant to the powers granted to it by national legislation and in accordance with the right which it enjoys as a sovereign State to defend its territorial integrity, independence and self-determination, it issued a decree establishing a state of national emergency. Decree No. 128 is a legal instrument for the adoption of certain measures designed to protect and defend the peace and security of the nation against the imminent danger of the interventionist plans of a foreign government which in addition to maintaining external aggression is also attempting to subvert the public order through terrorist action, such as attacks with explosives on production centres, transport services and all kind of sabotage with a view to establishing the necessary conditions for a direct intervention. Given this serious situation, the Government was obliged to order the selective restriction of a number of civil guarantees established in the charter of rights and guarantees of Nicaraguans to confront the war of external aggression which has been imposed on Nicaragua.
  246. 246 The Government points out that the period of application of the state of national emergency is strictly temporary and will remain in force as long as the conditions for which it was decreed persist. As regards the international commitments undertaken on the basis of various legal instruments, Nicaragua continues to respect and observe these commitments to the extent of its possibilities and with account being taken of the situation of war which it is facing. In the same way, it believes that the state of emergency is simply an exceptional situation which is used basically to protect the tranquility and stability of the Nicaraguan people. However, the people and the Government of Nicaragua regret that such circumstances instead of being resolved are being aggravated by the decision of a certain country to pursue the war at increasingly dangerous levels.
  247. 247 As regards the scope of the Decree, the Government provides the following details:
       • - Freedom of expression: the restrictions relating to the press will apply to all information which is contrary to the stability and security of the country, but in no way imply that the collective communication media must cease to operate (circulation of written communication media, operation of radio and television stations, etc. ).
       • - Right of assembly and demonstration: with regard to this limitation, open-air meetings and public demonstrations of a political, social and religious character are not prohibited, but require advance authorisation from the competent authority, as is the case in most countries.
       • - Right of association and organisation: under this provision any new political organisation or association of any kind may be registered provided it has complied with all the formalities required by the law.
       • - Habeas corpus: this restriction is limited to actions brought before the Supreme Court of Justice concerning matters resulting from the exceptions decreed in the state of emergency. The other procedures on appeals against governmental action in other spheres remain in full force.
       • - Right to strike: the principle of the exercise of the right to strike is related to the achievement by the workers of a series of labour claims which apparently could not be obtained by any other means. In this sense, the international legal instruments which protect the exercise of this right are basically intended to reserve the use of this alternative to the workers as a legitimate means of defending their interests. In the specific situation which Nicaragua is experiencing, account should be taken of the following factors in assessing the exercise of the right to strike. At the present time, Nicaragua is facing an economic crisis which is fundamentally the result of the war of aggression and the commercial embargo to which it is subject; this situation has had a direct repercussion on production costs and resulted in other difficulties regarding the replacement of machinery, spare parts and inputs in our factories and industries. In the circumstances, the paralysis of activities in any given undertaking or branch of activity has a drastic and negative boomerang effect on the entire population, including the workers. The Government points out that the Nicaraguan workers, with the triumph of their revolution, have succeeded in concluding more than 1,200 collective agreements in the six years of the revolution, against 126 in 40 years of dictatorship and the establishment of 1,300 trade unions (more than during the entire period of the dictatorship). None of this has required the application of pressure or force by the workers who have benefited, because the Government has at no time opposed the justified demands of the workers. In the same way, even when as from the month of October 1985, the exercise of a series of constitutional rights related to the exercise of the right to strike or trade union guarantees has been effectively suspended because of the aggression which is affecting the country, in practice the application of these measures has not led in any way to a suppression of the acquired rights of the workers. Proof of this is the fact that from the same date, more than seven new trade unions have been registered in the different branches and more than 45 new collective agreements have been concluded. However, it is forbidden to organise strikes which seek the political destabilisation of the country. It should be noted that the right to strike, in accordance with the laws in force, is not an automatic right but is the culmination of a legal process which includes the participation of the Ministry of Labour.

B. B. The Committee's conclusions

• The Committee's conclusions
  248. 248 As regards Case No. 1129, the Committee notes that, according to information provided by the Government, Arcadio Ortiz and Ricardo Cervantes Rivo were sentenced by the anti-Somoza people's courts for belonging to an armed counter-revolutionary organisation and for activities in support of the same organisation. The Committee regrets that the Government, in referring to the sentence handed down on the trade unionists Milton Silva Gaitán and Orlando Napoleón Molina Aguilera by the anti-Somoza people's courts did not mention the specific charges brought against them. The Committee also regrets to note that the Government failed to reply to the allegations concerning the raid on the CTN headquarters on 24 October 1985 involving destruction of its archives and concerning the arrest, sometimes accompanied by threats of death or torture, of the trade unionists Eduardo Aburto, Eric González González, Carlos Herrera, Sergio Rosa and Eugenio Membreño (in the case of the latter, the claimants had alleged his arrest on October 1985, whereas in the Government's reply reference is made to the release of this trade unionist in March 1983) and to the searching of houses accompanied by threats and intimidation to the families of the two last-mentioned trade unionists. In these circumstances, the Committee accordingly requests the Government to provide information on these aspects of the case as a matter of urgency, as well as the sentences which have been or will be handed down in respect of the trade unionists mentioned in this paragraph.
  249. 249 The Committee notes that the anti-Somoza people's courts were specifically created by the decree on the state of emergency in April 1983, and recalls that it has always attached great importance to the fact that all cases, including those in which trade unionists are charged with political or common law crimes, should be tried promptly by an impartial and independent authority. The Committee requests the Government to transmit the text of the legislation establishing the anti-Somoza tribunals.
  250. 250 As regards the allegations concerning the Ministry of Labour's refusal to issue registration certificates to the executive committees of four trade unions, the Committee notes that these allegations were submitted by the CNT in a communication dated 13 April 1984. The Committee notes that according to the Government, the Department of Trade Union Organisations issued certificates to the executive committees of three of the trade unions in question for the period 1984-85. The Committee also notes that, with respect to the fourth trade union (Trade Union of Managua Service Stations), the Government points out that as two opposing factions had arisen within this same trade union, the Department of Trade Union Organisations of the Ministry of Labour called upon both groups to convene a joint general assembly; this general assembly took place, but there were not enough or sufficiently representative members present on this occasion.
  251. 251 As regards Case No. 1169, the Committee notes the contents of the judgement handed down on the trade unionists José Angel Altamirano, José Mercedes Díaz and Eleazar Marenco, which was provided by the Government; it repeats previous statements made by the Government.
  252. 252 The Committee also takes note of the Government's statements concerning several trade unionists whose arrest had been alleged. The Committee notes in particular that Máximo Flores Obando was sentenced to three years' imprisonment for having committed armed assault. The Committee also notes that there is no record in any of the prisons throughout the country of the alleged arrest of Rito Rivas and Anastasio and Gabriel Maldonado.
  253. 253 However, the Government acknowledges the arrest of Iván Blandón, Víctor Ríos, Napoleon Aragón and Juan Ramón Duarte in April 1983, on the grounds that they had links with a counter-revolutionary unit of the mercenary group ARDE, and states that they were released the same month. In this respect, noting that there had been no grounds for charging these trade unionists, the Committee draws the Government's attention to the principle that measures designed to deprive trade union officials and trade unionists of their freedom entail a serious risk of interference in trade union activities and that, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association. (See, for example, 233rd Report, Case No. 1169, para. 292.)
  254. 254 Regarding Case No. 1298, the Committee notes the Government's statements concerning the occupation on two occasions of the CUS headquarters in August 1984, which resulted in hostilities and damage at the said headquarters. The Committee observes, in particular, that the Government maintained that these incidents were the outcome of divided opinions amongst the CUS officials themselves. However, the Committee regrets that, in spite of several requests, the Government has not specifically referred to the allegations of one of the complainants which, on the basis of evidence, accused public officials of having been involved in these incidents and the police of having done nothing to prevent the aggression against the members of the CUS and the destruction of its offices. In these circumstances, the Committee recalls that public authorities are bound, in accordance with Convention No. 87, to refrain from any interference in the activities and internal workings of trade unions.
  255. 255 Concerning the allegations of detainees, the Committee notes that, according to the Government, there is no record in any of the prisons throughout the country of José Agustín Téllez's arrest. The Committee also notes that, according to the Government, the CUS trade unionists in the village of Posaldega were arrested in May 1986 in connection with investigations following the stealing of cattle. The Government mentions that the legal authorities are dealing with the case, that proceedings on several of these persons were dismissed and that five are in prison for having allegedly committed the offence or for being an accessory after the fact. The Committee requests the Government to keep it informed on the developments of the trial at present being conducted and to send its observations on the trade unionists to whom it did not refer and who, according to the ICFTU, were arrested (Eduardo Gutiérrez, Juan Gaitán and Enrique Flores). The Committee also requests the Government to reply to the allegation that the children, wives and mothers of the detained trade unionists were threatened with imprisonment if their husbands or children did not give up their CUS membership, and that they are constantly visited by the police who, apart from threatening them, help themselves to toiletries and food in their homes.
  256. 256 Finally, the Committee deplores that the Government did not reply to the allegations contained in the communications from one of the complainant organisations dated 14 and 23 January 1986 (banning of the CUS trade union review; the fact that CUS trade unionists are summoned to appear by the State Security Police Force, and are subjected to pressure and threatened; visits of a delegation of officials to organisations belonging to the CUS in the northern, southern and western areas of the country which warned that if there were any meetings in the future, those involved would go to prison and that this ban also extended to the setting up of new trade union organisations). The Committee urges the Government to furnish information on these aspects of the case.
  257. 257 With regard to Case No. 1344, the Committee observes that the complainant has alleged a series of discriminatory measures taken by the Government against the leaders of COSEP in particular and within the context of measures taken against the private sector. The Committee observes that the Government has replied specifically to only one of the allegations (the arbitrary confiscation of the lands of Mr. Enrique Bolaños, leader of COSEP, without respect for the provisions of the agrarian reform acts) but without supplying observations on each of the points noted by the complainant organisation as regards this allegation. In the same way, since the object of all the allegations made in this case is to show a discriminatory attitude by the Government against COSEP, the Committee postpones the examination of the case and requests the Government to provide a reply urgently on those aspects of the case to which it has not referred.
  258. 258 With regard to Case No. 1351, the Committee notes that the allegations refer to the prohibition of a meeting of 2,000 employers in Managua organised by COSEP on 7 September 1985 (called the "Private Enterprise Day"), the house arrest of the president of COSEP on the same day and the suspension or restriction of certain basic rights by a decree to remain in force for one year.
  259. 259 As regards the prohibition of the meeting of 7 September 1985, the Committee notes that according to the Government the above-mentioned meeting was suspended: (l) because since COSEP had planned to pay homage that day to Jorge Salazar in the form of a "Private Enterprise Day", the Government could not permit a public honour to be paid to the memory of the counter-revolutionary who had endeavoured to overthrow the legitimate Government of Nicaragua by the force of arms; (2) at no time did COSEP make a request to the legislative bodies to hold a national employers' day. The Committee also notes that COSEP was informed that the Government had no objection to the holding of such a day on any other date, subject to advance notice being given and compliance with the existing regulations.
  260. 260 In this respect, the Committee would like to refer to the fundamental principles which it has established with regard to the right to assembly of workers' organisations and which it considers applicable also to employers' organisations. The Committee considers, in particular, that the right of occupational organisations to hold meetings in their premises to discuss occupational questions, without prior authorisation and interference by the authorities, is an essential element of freedom of association (see, for example, 233rd Report, Case No. 1217 (Chile), paras. 109 and 110), and that the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered. (See, for example, 21lth Report, Case No. 1014 (Dominican Republic), para. 512.)
  261. 261 After taking into account the above-mentioned principles, the Committee is of the view that the question of the fixing of the "Private Enterprise Day" by a central employers' organisation is a matter which should be decided freely by the occupational organisation concerned and that there should be no need for an administrative authorisation of this kind of commemoration or the fixing of its date. The Committee believes in the same way that in the specific case of the homage to be paid by COSEP to the memory of a deceased official of this organisation falls fully within the scope of its activities as an employers' organisation provided that a ceremony of this nature in exercise of its right to assembly does not disturb the public order or seriously or imminently endanger it. As regards the Goverment's statement according to which J. Salazar Argüello, acting President of COSEP at the time of his violent death in November 1980, was a "counter-revolutionary" killed during the course of violence designed to overthrow the revolution. The Committee refers to the conclusions it reached previously concerning this matter. The Committee deplores that the authorities prevented the holding of the "Private Enterprise Day" on 7 November 1985 and expresses the hope that in future COSEP will be able to establish without any interference whatsoever the date and activities of the Private Enterprise Day.
  262. 262 The Committee also takes note that, according to the Government, on 6 and 7 September 1985 no one was arrested for matters directly related to the allegations. The Committee requests the Government to indicate specifically if the president of COSEP was placed under house arrest on 7 September 1985 ("Private Enterprise Day"), as alleged by the complainant and if so, the reasons.
  263. 263 As regards the suspension or restriction of certain basic rights for one year in pursuance of the Decrees which establish the period of application of the state of national emergency (Decree No. 128 of 15 October 1985 amended by Decree No. 130 of 31 October 1985), the Committee notes the reasons given by the Government for the declaration of the state of national emergency and its explanations concerning the practical scope of the restrictions on public freedoms and the exercise of trade union rights. The Committee also observes that the Committee of Experts on the Application of Conventions and Recommendations at its meeting of March 1986 examined the above-mentioned decrees in connection with the observation which it made on the application of Convention No. 87 by Nicaragua. (See report of the Committee of Experts, Report III (Part 4A), pp. 169-170, International Labour Conference, 72nd Session 1986.) On this occasion, the Committee of Experts expressed the hope that the Government would lift, as rapidly as circumstances would allow, the restrictions on civil and trade union liberties resulting from the state of national emergency contained in the Decrees of 15 and 31 October 1985. The Committee also recalls that the Committee on the Application of Standards of the 72nd Session of the International Labour Conference regretted in paragraph 105 of its report that, despite repeated invitations, the Government of Nicaragua had refrained from participating in the discussions on the observations of the Committee of Experts.
  264. 264 Given the fact that these decrees and the state of national emergency were to have expired at the end of October 1986, and the serious nature of the restrictions on trade union and civil liberties, the Committee trusts that the situation will not be imposed again and requests the Government to furnish information on this subject.

The Committee's recommendations

1. 265. In these circumstances, the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions:
   • (a) In the first place, the Committee expresses its concern at the gravity of the allegations made by employers' and workers' organisations concerning, in particular, the detention and sentencing of trade unionists and the interference by the authorities in the activities of the occupational organisations.
   • (b) As regards Case No. 1129 the Committee urges the Government to transmit information on certain aspects of the case, as well as the judgements handed down or which will be handed down by the People's anti-Somoza tribunals, concerning the trade unionists mentioned in paragraph 248 above. Noting that the People's anti-Somoza tribunals have been created specially by an emergency decree in April 1983 the Committee recalls the importance it has always attached to the principle that in all cases, including those in which trade unionists are charged with political or . common law crimes which the Government considers are unrelated to trade union activities, the persons concerned should be tried promptly by independent and impartial judicial body. The Committee also requests the Government to transmit the text of the law instituting the People's anti-Somoza tribunals.
   • (c) With respect to Case No. 1169, the Committee draws the Government's attention to the principle that measures designed to deprive trade union officials and trade unionists of their freedom entail a serious risk of interference in trade union activities and that, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association.
   • (d) As regards Case No. 1298, the Committee regrets that, in spite of several requests, the Government has not specifically referred to the allegations of one of the complainants which, on the basis of evidence, accused public officials of having been involved in these incidents and the police of having done nothing to prevent the aggression against the members of the CUS and the destruction of its offices. In these circumstances, the Committee recalls that the public authorities are bound, in accordance with Convention No. 87, to refrain from any interference in the activities and internal workings of trade unions.
   • (e) The Committee requests the Government to keep it informed of the developments of the trial under way against five trade unionists for having stolen cattle, and asks it to send observations on the trade unions to which it failed to refer and which, according to the ICFTU, were arrested (Eduardo Gutiérrez, Juan Gaitán and Enrique Flores). The Committee also requests the Government to reply to the allegation that the children, wives and mothers of the detained trade unionists were threatened with imprisonment if their husbands or children did not give up their CUS membership and that they are constantly visited by police who threaten them and help themselves to toiletries and foodstuffs.
   • (f) Finally, the Committee deplores that the Government has not replied to the allegations contained in one of the complainants' communications dated 14 and 23 January 1986 (banning of the CUS trade union review; the fact that CUS trade unionists are summoned to appear by the State Security Police Force, and are subjected to pressure and threatened; visits of a delegation of officials to organisations belonging to the CUS in the northern, southern and western areas of the country and warnings to the members that if there were any meetings in the future, those involved would go to prison and that this ban also extended to the setting up of new trade union organisations). The Committee requests the Government to furnish information on these aspects of the case.
   • (g) As regards Case No. 1344, the Committee notes that the Government has sent certain information on only one of the numerous allegations. Since the object of all the allegations in this case is to show a discriminatory attitude by the Government against COSEP, the Committee postpones the examination of the case and requests the Government to provide a reply urgently on those aspects of the case to which it has not referred.
   • (h) As regards Case no. 1351, the Committee regrets that the authorities prohibited the holding of the "Private Enterprise Day" on 7 November 1985, organised by COSEP, and expresses the hope that in future this employers' organisation will be able to determine without any interference the date and activities of the Private Enterprise Day.
   • (i) The Committee draws the attention of the Government to the principle that the right of occupational organisations to hold meetings in their premises without advance authorisation and without interference by the authorities is a fundamental aspect of freedom of association.
   • (j) The Committee also notes that according to the Government, on 6 and 7 September 1985 no one was arrested for matters related directly with the allegations. The Committee requests the Government to indicate specifically whether the president of COSEP was placed under house arrest on 7 September 1985 ("Private Enterprise Day"), as alleged by the complainant and, if so, the reasons.
   • (k) The Committee observes that Decrees Nos. 128 and 130 proclaiming a state of national emergency with the subsequent restrictions on civil and trade union freedoms should have expired at the end of October 1986. The Committee expresses the firm hope that these restrictions will not be re- imposed and requests the Government to furnish information on the subject.