Report in which the committee requests to be kept informed of development - Report No 287, June 1993

Case No 1628 (Cuba) - Complaint date: 28-FEB-92 - Closed

1. 268. The Committee examined this case at its November 1992 meeting and presented an interim report to the Governing Body (see 284th Report of the Committee, paras. 1011 to 1029, approved by the Governing Body at its 254th Session (November 1992)). The Government sent fresh observations in a communication dated 29 January 1993.
2. 269. Cuba has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 270. In November 1992, the allegations pending concerned the Ministry of Justice's failure to reply to the request for registration and recognition of legal personality submitted by the General Union of Cuban Workers (UGTC) in spite of the legal time-lapse of 60 days; and the violent attack on Mr. Rafael Gutiérrez, President of the UGTC, by a "rapid intervention brigade" which was part of a "protest campaign" instigated by the Government, and the leader's 48-hour detention without judicial supervision and without any charges being brought against him or any explanations being given on the grounds for arrest.
2. 271. The Committee made the following recommendations to the Governing Body on the allegations pending (see 284th Report of the Committee, para. 1029):
3. The Committee requests the Government to send it urgently specific observations on the allegation concerning the violent attack against Mr. Rafael Gutiérrez, founder and President of the UGTC. The Committee points out that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party.
4. The Committee urges the Government to send without delay its observations on the 48-hour detention of Mr. Rafael Gutiérrez (President of the UGTC) and reminds the Government that when the authorities arrest trade unionists without a warrant or it is subsequently found that no grounds for conviction exist, this constitutes a clear violation of trade union rights.
5. The Committee requests the Government to send specific observations on the Ministry of Justice's failure to reply to the request for registration and recognition of legal personality submitted by the General Union of Cuban Workers (UGTC) and to make a ruling without delay on this matter taking fully into account that, under Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, have the right to establish and join organizations of their own choosing without previous authorization.
6. B. The Government's reply
7. 272. In its communication dated 29 January 1993, the Government states that Mr. Rafael Gutiérrez Santos is not a trade unionist and that, based on a report from the General-Secretary of the Union of Workers of the Merchant Marine - Ports and Fisheries, it seems that at one stage Mr. Gutiérrez was on the Executive Committee of local No. 4 of the Terminales Mambisas enterprise in Havana, but that he was removed from office after a meeting of workers on the grounds that he no longer commanded respect due to his attitude which conflicted with the interests and main claims of the workers. The Government adds that Mr. Gutiérrez's position as trade unionist is a figment of his imagination and he is described as such solely in the distorted international propaganda put about by ICFTU, and that vague and contradictory bureaucratic proceedings entered into by Mr. Gutiérrez - and which have been manipulated by certain foreign media and now by the ICFTU - are, in themselves, not sufficient grounds for considering him to be a trade union leader as he calls himself. The prerequisite of any trade union activity is that such activity be carried out on a daily basis before a group of workers and be based on authority, prestige and representativity. Obviously, Mr. Gutiérrez does not meet any of these requirements.
8. 273. Furthermore, according to the Government, it should be recognized that what was presented by the ICFTU as a request made by Mr. Gutiérrez for "registration and recognition" of some trade union organization is nothing more than a request to the Ministry of Justice for information concerning the Act on Associations. Mr. Gutiérrez is mistaken in considering that the documentation he requested in his letter dated 30 September 1991 can be regarded as a request for registration. In addition it seems that Mr. Gutiérrez has neither the authority nor the will to be the representative of an organization in view of the fact that, in a further letter dated 1 April 1992, he expressly asked that the request to register the General Union of Cuban Workers (UGTC) be discounted (the Government has enclosed photocopies of both communications). The difficulties Mr. Gutiérrez has had in setting up a trade union organization are due neither to the law nor bureaucracy but to his own lack of credibility, prestige and authority, not in respect of official bodies but in the eyes of Cuban workers. The ICFTU is distorting the facts, as part of an anti-Cuba propaganda move, exaggerating an alleged official refusal to permit the establishment of trade union organizations.
9. 274. The Government explains that when workers have wanted and have chosen to defend their interests, and to set up trade union organizations other than those already in existence, they have encountered no legislative barriers nor have they had to wait for authorization from any state body, as provided for in article 13 of the Labour Code. For example, on 28 March 1992, the National Union of Scientific Workers was set up, with 44,130 members, 46 executive committees, 592 branches, 218 union committees, and 3,139 shop stewards elected by the workers themselves. The same cannot be said of Mr. Gutiérrez, whose supposed trade union organization is nothing more than a propaganda move encouraged from within the United States, to discredit the labour relations system in Cuba. It adds that, as regards the allegations concerning the request for registration and recognition of legal personality of a supposed trade union organization, investigations at the Ministry of Justice show that no such request has been submitted, the only request being one for information.
10. 275. With regard to Mr. Gutiérrez Santos's detention, the Government states that on 11 January 1992 he caused a breach of the peace, which made police intervention necessary. He was then arrested as he both instigated and had a leading role in the incident. Penal legislation in Cuba, as elsewhere in the civilized world, grants the police authority to take action in respect of any criminal activity including, as a rule, public order offences, and police officers may arrest immediately those responsible so that summary investigations can be carried out to decide whether the case should be brought before the courts or, in view of the facts, penal proceedings are not necessary and that administrative steps should be taken instead. Mr. Gutiérrez Santos's conduct on 11 January 1992 amounted to a breach of peace as defined and sanctioned under section 201 of the Penal Code. For these reasons, Mr. Gutiérrez could have been prosecuted. However, in order to close the case quietly, the protection ("amparo") provided under section 19 of Legislative Decree No. 99 of 25 December 1987 concerning minor offences committed by private persons was granted, and it was decided that penal proceedings would not be brought against Mr. Gutiérrez. His crime was treated as a minor offence and he was freed on payment of a fine of 20 pesos, as provided for in article 1(g) of Decree No. 141 of 24 March 1988 concerning minor public order offences. It should be pointed out that, despite the fact that it is possible to appeal against this kind of fine, Mr. Gutiérrez did not do so. The Government explains that Mr. Gutiérrez was freed before the legal period of detention had elapsed, in accordance with section 245 of the Act on Penal Procedure, denies that he was held incommunicado and states that he even received a visit from his son.
11. 276. The Government states that the argument put forward by the ICFTU relating to the existence of a trade union confederation, which is unknown to Cuban workers and is not representative of the interests and claims of the Cuban workers' movement, is totally inconsistent and unreliable. 96.7 per cent of the labour force in Cuba is unionized, with workers belonging to organizations of their own choosing, where they elect their leaders and, at regular conferences, adopt rules, resolutions and structures best suited to their interests; they play an active and systematic role in decision-making processes relating to issues concerning the majority of the labour force which is represented by autonomous and independent organizations.
12. 277. Finally, the Government explains that the present case does not involve a legitimate act of trade union solidarity with organizations born of the free will of workers, but rather an action whose motivation is akin to that behind the famous Torricelli Act, aimed at wearing down the will of the Cuban people by starving them and preventing the sale of medicine for Cuban workers, and also by financing the creation of organizations which, in the guise of trade unions, encourage labour sabotage and attempts to bribe trade union leaders.

C. The Committee's conclusions

1. 278. With regard to the allegations concerning the violent attack against Mr. Rafael Gutiérrez, the founder and President of the UGTC, and his subsequent 48-hour detention, the Committee notes that, according to the Government, Mr. Gutiérrez was not held incommunicado and that he was detained because of his instigation and leading role in a disturbance and breach of the peace, conduct which under section 201 of the Penal Code is considered to be a public order offence, and that Mr. Gutiérrez was freed before the legal period of detention had elapsed.
2. 279. In this regard, the Committee observes that the versions put forward by the Government (which considers that Mr. Gutiérrez both instigated and had a leading role in a breach of the peace) and by the complainant organization (which alleges that Mr. Gutiérrez was attacked because of his trade union activities) are contradictory. In the circumstances, while noting that according to the Government Mr. Gutiérrez has been released from detention, the Committee recalls that "the arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association" (see Digest of decisions and principles of the Committee on Freedom of Association, 3rd edition, 1985, para. 88). The Committee also recalls that "the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent of those which exist already" (see 197th Report, Case No. 905 (USSR), para. 635; 270th Report, Case No. 1500 (China), para. 324; and 284th Report, Case No. 1628 (Cuba), para. 1026).
3. 280. As regards the allegation concerning the Ministry of Justice's failure to reply to the request for registration and recognition of legal personality submitted by the General Union of Cuban Workers (UGTC) (its rules and a list of some of the members' names had been enclosed by the complainant organization), the Committee notes the observations made by the Government according to which a request for registration had not been submitted, merely a request to the Ministry of Justice for a certificate of recognition that there was no association of workers with the same name in that department and that, subsequently, Mr. Gutiérrez asked the Ministry to discount the aforementioned request for registration. In the Committee's opinion, it seems that the certificate of recognition was requested by Mr. Gutiérrez with the express aim of being able subsequently to request legal registration for the new trade union, and he thus seemingly embarked on a procedure obviously with the aim of registering a new trade union body. The Committee observes, moreover, that from the documentation included by the Government it seems that, although Mr. Gutiérrez in effect asked for the UGTC registration application to be discounted, this was merely due to the fact that he wished to change the name of the association to the Union of Cuban Workers (USTC).
4. 281. In the circumstances, the Committee concludes that the General Union of Cuban Workers was set up over a year and a half ago (according to the Government, it is now called the Union of Cuban Workers (USTC)), and has still not been registered. Furthermore, although it notes the Government's declarations concerning the UGTC's lack of representativity, the Committee must point out that the fact that an organization has only a small number of members is not a good enough reason for refusing registration. In the circumstances, the Committee once again urges the Government to make an immediate pronouncement on the registration of the General Union of Cuban Workers (UGTC) (which according to the Government is now called the Union of Cuban Workers (USTC)), bearing in mind that, under Article 2 of Convention No. 87, workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their choosing without previous authorization. The Committee requests the Government to keep it informed of any measures adopted in this regard.

The Committee's recommendations

1. 282. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) observing the contradictory nature of the Government's and complainant's versions of the facts relating to the allegation concerning the violent attack and subsequent detention of Mr. Gutiérrez, and noting that, according to the Government, Mr. Gutiérrez was released rapidly, the Committee recalls, in general, that "the arrest - even if only briefly - of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association" and "that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent of those which exist already"; and
   • (b) the Committee once again urges the Government to make an immediate pronouncement on registration of the General Union of Cuban Workers (UGTC) (which according to the Government is now called the Union of Cuban Workers (USTC)), taking full account of the fact that under Article 2 of Convention No. 87 workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their choosing without previous authorization. The Committee requests the Government to keep it informed of any measures adopted in this respect.