Definitive Report - Report No 241, November 1985

Case No 1317 (Nicaragua) - Complaint date: 19-DEC-84 - Closed

1. 292. The complaint is set forth in a communication from the International Organisation of Employers (IOE) dated 19 December 1984. The IOE transmitted additional information in a communication dated 27 December 1984. The Government replied by a communication dated 27 May 1985.
2. 293. 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. The complainant's allegations

1. 294. The complainant states that the ILO convened in Mexico, from 3 to 7 December 1984, an important seminar to which representatives of employers' organisations in Latin America were invited in order to discuss in particular the role of employers' organisations in the creation of jobs. Mr. Enrique Bolaños Geyer, the Chairman of the Supreme Council of Private Enterprise in Nicaragua (COSEP), announced that he would participate.
2. 295. According to the complainant, Mr. Bolaños, taking his passport which, as a precaution, he had photocopied and which two Managua notaries had reported intact, presented himself at the passport checking window of Managua airport on 17 November 1984, i.e. 16 days before the opening of the seminar. He was forbidden to leave the country because a page was missing from his passport; a page had in fact been torn out of the document.
3. 296. The complainant states that, at the request of the other participants who had announced that they would participate in the seminar, the Director-General of the ILO addressed to the Minister for Foreign Affairs, on 20 November 1984, a telegram asking the Minister to intervene in order to facilitate the departure of Mr. Enrique Bolaños Geyer, the Chairman of the COSEP, from Nicaragua so as to enable him to participate in the seminar in question. According to the complainant, this message remained unanswered. Hence Mr. Bolaños Geyer was unable to obtain a new passport, in place of the one which had been mutilated, in time to attend the ILO meeting in Mexico.
4. 297. The complainant adds that on 3 December 1984 the International Organisation of Employers and approximately 40 participants in the seminar addressed a telegram to the Co-ordinator of the Sandinist Junta regretting with consternation that, despite the message from the Director-General of the ILO, Mr. Bolaños had been forbidden to leave the country in order to attend the seminar, protesting at the violation of freedom of association and of fundamental rights which this entails, and requesting as a matter of urgency that Mr. Bolaños be permitted to participate in the seminar. This telegram too remained unanswered.
5. 298. In support of its allegations the IOE transmits a letter it received from Mr. Bolaños in which he stated that, on 17 November 1984, migration officials removed pages 11 and 12 and pages 21 and 22 from his passport and then proceeded to cancel the passport. Attached to the letter is a photocopy of all the pages of Mr. Bolaños's passport, taken the day before he presented himself to the migration services and bearing, at the foot of the page, a note to the effect that on 16 November 1984 all pages of the passport were complete and properly bound.
6. 299. Furthermore the complainant adds a statement signed by 23 persons at variance with the Sandinist regime and calling themselves "captive dissidents", in which they report that the Sandinist Government has denied them the right to leave the country freely, and arbitrarily prevented them from doing so although there is no legal impediment to warrant such a course. According to the statement, the improper and illegal procedures used to the detriment of the persons referred to include refusal to issue exist visas on the pretext of non-production of documents not required by law, loss of the passport, the existence of higher orders and inclusion in a special list, and invalidation of the passport either by removing or tearing a page from it or by making laterations in it.
7. 300. The statement in question mentions, in addition to the case of Mr. Bolaños and of certain employers' leaders and members of various political parties, the cases of the following persons in particular:
   • NICOLAS BOLA OS GEYER: President of UNCAFENIC, Director of Upanica and delegate to the COSEP. He was refused a visa on the grounds that there was a backlog of work.
   • JUAN RAMON AVILES: Executive Secretary of the COSEP. He was refused a visa at the migration offices on the grounds that his date of birth was wrong. FRANCISCO CALDERA: Executive Secretary of Conapro. He was denied the issue of a passport at the migration offices on the grounds that it had been sent to Special Zone No. 1 by unintentional error.
   • ORESTES ROMERO ROJAS: Executive Secretary of the Chamber of Commerce of Nicaragua. His passport was delivered to him without an exit visa on the grounds that one could not be granted to him.
   • FRANK LEY: Director of the Chamber of Commerce. His passport was not delivered to him; he was made to go repeatedly to the migration office and was not given any reply.
   • CARLOS NOGUERA: Delegate of the Nicaraguan Development Institute (INDE) to the Nicaraguan Democratic Co-ordination Body. His passport was held at the migration office on the grounds that there were restrictions on the issue of visas to certain persons.
8. 301. Lastly the IOE reminds the ILO that in 1982 it filed a complaint with the Committee on Freedom of Association alleging that the Government was obstructing the participation of leaders of the COSEP in international meetings (Case No. 1114) and that the Committee felt bound to recall that "representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require".

B. The Government's reply

1. 302. The Government states in its communication of 27 May 1985 that, according to information from the Migration and Aliens Directorate, section 16 of the Migration Act, reading as follows, was in fact applied to Mr. Bolaños Geyer: "No passport or identity and travel document which exhibits alterations or corrections and from which pages or covers are missing shall be valid ..." In this connection the Government states that the only restrictions in existence in the country on travel abroad are those expressly laid down in the provisions of law. Furthermore the Government states that it has not imposed gratuitous restrictions on any employer. As evidence of the foregoing it may be reported that, according to the migration registers, the same Mr. Bolaños Geyer has made 14 trips abroad without any obstacle between January 1983 and February 1985 (the Government transmits official certification from the Migration and Aliens Directorate showing 18 departures from the country by Mr. Bolaños between 1981 and 1985).
2. 303. The Government adds that neither have any gratuitous restrictions been imposed on the self-styled "captive dissidents" referred to in the complaint from the complainant organisation. As proof of its assertion, the Government transmits official certification recording the various departures from the country effected in recent years by Mr. Juan Ramón Avilés, Mr. Orestes Romero Rojas and eight more "captive dissidents".

C. The Committee's conclusions

1. 304. The Committee observes that in the present case the complainant organisation has alleged the existence of arbitrary restrictions on the right to leave Nicaragua freely. In particular the complainant has referred, firstly, to the case of Mr. Bolaños Geyer, the Chairman of the COSEP, who was unable to attend a seminar organised by the ILO owing to the removal of some pages from his passport and secondly to the case of 23 persons calling themselves "captive dissidents", among whom it refers especially to six leaders of employers' organisations.
2. 305. The Committee further observes that the complainant has not indicated the dates on which these six leaders of employers' organisations were prevented from leaving the country, nor whether such restrictions have obstructed or prevented the pursuit of activities by those persons in their capacity as leaders of employers' organisations.
3. 306. The Committee takes note of the Government's statement that it has imposed no gratuitous restrictions on any employer for travel abroad and that the only restrictions in existence in Nicaragua in that connection are those expressly laid down in the provisions of law.
4. 307. More specifically, with reference to Mr. Bolaños Geyer, the Chairman of the COSEP, the Committee notes that, according to the Government, section 16 of the Migration Act was applied to this employers' leader - who has left the country 18 times between 1981 and 1985 - and that this section provides that "No passport or identity and travel document which exhibits alterations or corrections and from which pages or covers are missing shall be valid ..." In this connection, the Committee regrets that the Government has confined itself to mentioning section 16 of the Migration Act, omitting to comment on the complainant organisation's assertion that migration officials removed the sheet bearing pages 11 and 12 and that bearing pages 21 and 22 from the passport on 17 November 1984 and then cancelled it. The Committee also observes that the Government has not referred either to the complainant's assertion that on 16 November 1984, the day before that on which Mr. Bolaños proposed to leave the country, two notaries were able to report that his passport was intact.
5. 308. The Committee strongly deplores the fact that, after the incident affecting Mr. Bolaños had occurred on 17 November 1984, the authorities did not act on the request made by the Director-General of the ILO on 20 November 1984 that Mr. Bolaños's departure from the country should be facilitated in order to enable him to participate in the seminar organised by the ILO which was to be held in Mexico from 3 to 7 December, that is to say a sufficient number of days after the date on which the incident in question occurred.
6. 309. Having regard to the foregoing considerations, the Committee concludes that the Government has not justified the illegal measures, involving the removal of pages from Mr. Bolaños' passport, which prevented him once again from leaving Nicaragua to attend the seminar organised by the ILO in Mexico. In these circumstances, and having regard also to the fact that the Government has not referred specifically to other leaders of employers' organisations having been forbidden to leave the country or obstructed in doing so - although the complainant has not emphasised that these cases were connected with the pursuit of activities in their capacity as leaders of employers' organisations - the Committee is bound to draw the Government's attention as it has done in the past on several occasions, and particularly in 1983 regarding Mr. Bolaños, to the principle that representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require (see 222nd Report, Case No. 1114 (Nicaragua), para. 71), and that the free movement of these representatives should be ensured by the authorities.
7. 310. The Committee also requests the Government to take steps to ensure that the appropriate authorities do not hinder the participation by leaders of workers' or employers' organisations in activities designed to promote and defend the interests of their members.

The Committee's recommendations

1. 311. In these circumstances, the Committee recommends the Governing Body to approve the present report and in particular the following conclusions:
   • a) The Committee concludes that the Government has not justified the illegal measures, involving the removal of pages from Mr. Bolaños' passport, which once again prevented Mr. Bolaños, the Chairman of the COSEP, from leaving Nicaragua to attend a seminar organised by the ILO in Mexico from 3 to 7 December 1984.
   • b) In addition, the Committee strongly deplores the fact that the Nicaraguan authorities did not act on the request made by the Director-General of the ILO on 20 November 1984 that Mr. Bolaños's departure from the country should be facilitated in order to enable him to participate in the seminar in question.
   • c) The Committee draws the Government's attention as it has done in the past on several occasions, particularly in 1983 regarding Mr. Bolaños, to the principle that representatives of workers and employers should enjoy appropriate facilities for carrying out their functions, including the right to leave the country when their activities on behalf of the persons they represent so require, and that the free movement of these representatives should be ensured by the authorities.
   • d) The Committee requests the Government to take steps to ensure that the appropriate authorities do not hinder the participation by leaders of workers' or employers' organisations in activities designed to promote and defend the interests of their members.