Interim Report - Report No 337, June 2005

Case No 2254 (Venezuela (Bolivarian Republic of)) - Complaint date: 17-MAR-03 - Active

Allegations: The complainant organizations have presented the following allegations: the marginalization and exclusion of employers’ associations in the decision-making process, excluding them from social dialogue, tripartism and the holding of consultations in general (particularly in relation to the very important legislation that directly affects employers), thereby not complying with the very recommendations of the Committee on Freedom of Association; action and interference by the Government to encourage the development of and to promote a new employers’ organization in the agricultural and livestock sector to the detriment of FEDENAGA, the most representative organization in the sector; the arrest of Carlos Fernández on 19 February 2003 in retaliation for his activities as president of FEDECAMARAS, without a legal warrant and without the guarantees of due process; according to the complainant organizations he was badly treated and insulted by violent groups headed by a government deputy; the physical, economic and moral harassment, including threats and attacks, of the Venezuelan employers and their officials by the authorities or people close to the Government (various cases are listed); the operations of violent paramilitary groups with governmental support, with actions against the facilities of an employers’ organization and against protest actions by FEDECAMARAS; the creation of an atmosphere hostile to employers in order to allow the authorities (and on occasion to encourage them) to dispossess and occupy farms in full production, in violation of the Constitution and legislation and without following legal procedures; the complainant organizations refer to 180 cases of illegal invasions of productive land and indicate that most of these cases have not been resolved by the relevant authorities; the application of an exchange control system decided unilaterally by the authorities, discriminating against companies belonging to FEDECAMARAS in administrative authorization for the purchase of foreign currencies, in retaliation for participation by this employers’ confederation in national civic work stoppages

1500. The Committee examined this case at its June 2004 meeting and submitted an interim report to the Governing Body [see 334th Report, paras. 877-1089, approved by the Governing Body at its 290th Session (June 2004)].

1. 1501. Subsequently, the Government sent new observations in its communications of 22 and 25 February 2005.
2. 1502. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 1503. At its May-June 2004 meeting, the Committee on Freedom of Association made the following recommendations [see 334th Report, paras. 1053-1089, approved by the Governing Body at its 290th Session (June 2004)]:
2. (a) In a general way, the Committee wishes to underline the seriousness of the allegations and it regrets that, in spite of the fact that the complaints were presented in March 2003, the Government’s reply, dated 9 March 2004, does not give specific replies to a large number of the allegations.
3. (b) Taking into account the nature of the allegations presented and the Government’s reply, the Committee expresses generally its serious concern about the poor situation of the rights of employers’ organizations, their representatives and their members. The Committee draws the Government’s attention to the fact that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations; the Committee also underlines that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, due process and the protection of premises and property belonging to workers’ and employers’ organizations, are fully respected and guaranteed. The Committee urges the Government to fully guarantee these principles in the future.
4. (c) The Committee regrets that the Government has not convened the National Tripartite Commission for a number of years and that it usually does not carry out bipartite or tripartite consultations with FEDECAMARAS regarding policy-making or legislation that has a fundamental effect on its interests in labour, social or economic matters, thereby violating the basic rights of this employers’ confederation; the Committee urges the Government to stop marginalizing and excluding FEDECAMARAS from social dialogue and, in future, to fully apply the ILO Constitution and the principles therein on consultation and tripartism. The Committee also urges the Government, without delay, to convene periodically the National Tripartite Commission and to examine in this context, together with the social partners, laws and orders adopted without tripartite consultation.
5. (d) In the current critical situation facing the country and noting that there has for years existed a permanent conflict between the Government, on the one hand, and FEDECAMARAS and the CTV, on the other, the Committee offers the Government the services of the ILO to provide the State and society with its experience so that the authorities and the social partners may regain trust and, in a climate of mutual respect, establish a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as the full recognition, in all its consequences, of the most representative confederations and all organizations and significant trends in the labour world.
6. (e) The Committee urges the Government to reinstate FEDENAGA to the Agricultural and Livestock Council and to stop favouring CONFAGAN to the detriment of FEDENAGA.
7. (f) The Committee considers that the arrest of Carlos Fernández, President of FEDECAMARAS, as well as being discriminatory, aimed to neutralize or act as retaliation against this employers’ official for his activities in defence of employers’ interests and, therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he may return to Venezuela without delay and without risk of reprisal; the Committee requests the Government to keep it informed in this respect. The Committee deeply deplores the arrest of this employers’ official and emphasizes that the arrest of employers’ officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association, and requests the Government to respect this principle; the Committee also requests the Government to take steps to carry out an investigation into how the police carried out the arrest of Carlos Fernández, his being imprisoned and held incommunicado for a day and the type of cell in which he was imprisoned, and to keep it informed in this respect.
8. (g) With regard to the allegations relating to the application of the new system of exchange control in 2001 (suspension of free buying and selling of currencies) unilaterally established by the authorities, discriminating against companies belonging to FEDECAMARAS in the administrative authorization for the purchase of foreign currencies (in retaliation for its participation in the national civic work stoppages); having taken account of the alleged discrimination and serious difficulties expressed by the complainant organizations because of the negative impact in many industries of this system, the Committee requests the Government to examine with FEDECAMARAS, without delay, the possibility of modifying the current system and that it guarantee, meanwhile, in case of complaints, the application of this system without discrimination of any sort, through impartial bodies. The Committee requests the Government to keep it informed in this respect.
9. (h) The Committee urges the Government to take the necessary measures without delay:
10. (i) to ensure that the authorities do not try to intimidate, pressure or threaten employers and their organizations for their activities with regard to legitimate demands, in particular in the communications and in the agro-industrial sectors;
11. (ii) to carry out, without delay, an investigation with regard to: (1) the acts of vandalism at the premises of the Lasa Chamber of Commerce by Bolivarian groups supporting the regime (12 December 2002); (2) the looting of the office of Julio Brazón, president of CONSECOMERCIO (18 February 2003); (3) the threats of violence on 29 October 2002 by alleged members of the government political party against Adip Anka, president of the Bejuma Chamber of Commerce;
12. (iii) to carry out an investigation, without delay, into the allegations relating to 180 cases (up to April 2003) that have not been resolved by the authorities of illegal invasion of lands in the states of Anzoátegui, Apure, Barinas, Bolívar, Carabobo, Cojidas, Falcón, Guárico, Lora, Mérida, Miranda, Monagas, Portuguesa, Sucre, Taclira, Trujillo, Yanacuy and Zulia, and requests that, in the case of expropriations, it fully respect the legislation laid down and the relevant procedures; and
13. (iv) to urgently carry out an independent investigation (by people in whom the workers’ and employers’ confederations have confidence) into the violent paramilitary groups mentioned in the allegations (Coordinadora Simón Bolívar, Tupamaros movements and Círculos Bolivarianos Armados, Quinta República, Juventud Revolucionaria del MVR, Frente Institucional Militar and Fuerza Bolivariana) with a view to dismantling and disarming them, and that it ensure that there are no clashes or confrontations between these groups and protestors in demonstrations, and to keep it informed in this respect.
14. B. The Government’s new observations
15. 1504. In its communication of 22 February 2005, the Government states, in relation to the Committee’s recommendation on social dialogue, that the Government takes note of the recommendation of the honourable Committee in subparagraph (c) of paragraph 1089. On this point, and taking into consideration the background of destabilization and attacks on democratic institutions, the Government undertook a series of initiatives to consult about and validate measures and actions designed to protect the interests and rights of the majority sectors of the country who are victims of poverty and structural exclusion, due in large measure to the negative impact on these majority sections generated by unilateral neo-liberal and anti-nationalist policies about which there was no consultation. Noteworthy among these measures and actions were a set of legal instruments, whose drafting and approval by the National Executive had been previously authorized by the National Assembly (enabling act), which were submitted to processes of consultation and dialogue with the social actors. Although the positions adopted were not those of the business sector, there is no question of this consultation process not taking place. Perhaps the misunderstanding arose due to the traditional way in which the dialogue and consultation occurred, in which the Government surrendered its role of protector of the interests of the majorities, allowing a progressive trimming of the economic, social and cultural rights of the population.
16. 1505. The Government indicates that the most striking disagreements with these legal provisions were those relating to demands concerning the privatization of oil and hydrocarbons; land and rural development; fishing and coasts and the Public Administration Act, the latter giving rise to a complaint to the Committee, Case No. 2202, subsequently withdrawn by the complainant trade unions when the observations submitted were remedied. The remainder of the 47 authorized to be drafted and approved by the National Executive entered into force smoothly and did not give rise to major comments.
17. 1506. According to the Government, the criticisms that surfaced around this legislation gave rise to actions against democratic institutions, involving key representatives of the social actors, even to the point of a coup d’état and sabotage of the country’s main economic activities, with paralysis of essential public services and causing an acute national crisis in the country.
18. 1507. The Government adds, however, that the complaint which gave rise to this case fails to mention the process of dialogue conducted by the authorities prior to approval of the legislative measures and even after their approval consultations took place, without prejudice to recourse to other mechanisms and remedies set out in the national legal system.
19. 1508. In the latter regard, the Government points to the controversial Land and Rural Development Act which was challenged in the Constitutional Division of the Supreme Court of Justice, and which led to several decisions, annulling several of the most controversial articles or provisions. Particular mention should be made of the decisions of the Constitutional Division of 20 November and 11 December 2002, on the application of the National Federation of Stockbreeders (FEDENAGA), whose president is Mr. José Luis Betancourt, which declared null articles 89 and 90 of the Decree with rank of law, the Land and Agrarian Development Act, while at the same time providing an interpretation of articles 25, 40 and 43 of the Act.
20. 1509. Likewise, the Government states that, following an intensive process of consultation and debate in the National Assembly, the text originally approved by the National Executive on the Public Administration Act was revised. Indeed, the new version was approved by the National Assembly on 11 July 2002, extending rights of freedom of association and collective bargaining. Amendments resulting from the consultations were even introduced into the original text, which allowed the Latin-American Workers’ Confederation (CLAT) to withdraw the complaint it had submitted to the Committee, recognizing the fruits of the dialogue that had taken place. Thus there is little basis for disputing the form in which the texts were approved by the National Executive as omitting the power to amend them at a later stage in the National Assembly, and also in the Supreme Court of Justice.
21. 1510. The Government states that, despite the public actions of Mr. Carlos Fernández in the April 2002 coup d’état, the President of the Republic, in a gesture of humility and magnanimity, invited him a few days later to participate in the forums for dialogue which he was initiating with the country’s various social sectors. Despite the fact that Mr. Fernández withdrew from the forums for dialogue within a few days, in the specific case of the labour sector, these forums for dialogue continued with grassroots employers’ and workers’ organizations, leading to important sectoral agreements at grassroots level (in key sectors such as motor vehicles and spare parts, chemicals and pharmaceuticals, tourism, small and medium-sized enterprises, transport, textiles and clothing, among others). Therefore the Committee’s statement concerning the supposed deliberate “marginalization” and “exclusion” of FEDECAMARAS by the Government is perhaps inexact and insufficient, when paradoxically within a few days of a coup d’état led by the president of FEDECAMARAS, the vice-president of FEDECAMARAS was asked to form part of the national social forums for dialogue. In the light of this, it seems more appropriate to state that it was a case of self-exclusion and self-marginalization.
22. 1511. The Government indicates that in order to overcome the political crisis caused by the coup d’état led by the president of FEDECAMARAS, Mr. Carmona, the Government in November 2002 launched a process of national dialogue with the opposition. This process of dialogue was facilitated by the Organization of American States (OAS), the Carter Center and the United Nations Development Programme (UNDP). The opposition side included a representative of FEDECAMARAS. This dialogue process took place despite the fact that within a few days Mr. Fernández, acting as president of FEDECAMARAS, allied himself publicly with an act of military rebellion led by the generals in the Plaza Altamira de Caracas. In addition, within a few days, Mr. Fernández led the work stoppage for over two months to bring about the removal of the President of the Republic. These elements will put into perspective the soundness of the Committee’s recommendation on the supposed marginalization and exclusion of FEDECAMARAS from the dialogue. As both the Committee and other ILO monitoring bodies have been informed repeatedly, the process of dialogue facilitated by the OAS, the Carter Center and the UNDP culminated in the signing of an agreement on 29 May 2003, which ultimately led to the calling of the popular referendum on 15 August 2004.
23. 1512. According to the Government, the consultations on minimum wages since 2002 have been conducted through written requests sent to the various social actors at national, regional and local level. The measures adopted by the Government in this field, particularly in 2004, permitted a recovery in workers’ wages against a background of economic growth, and declining rates of unemployment, informality and inflation.
24. 1513. The Government indicates that the consultations on other work-related measures, such as labour immobility, agreements of the Andean Community of Nations, action plan on child labour, ratification of Conventions, Workers’ Food Act, etc. have in most cases been conducted through correspondence or letters. This government action aimed at all the social actors has intensified since August 2004.
25. 1514. According to the Government, the consultations on the reform of the Organic Labour Act were conducted directly with representatives of the various social actors, both in the National Assembly and the Ministry of Labour.
26. 1515. The Government adds that, following the regional and municipal elections, the Executive Vice-President of the Republic held meetings with representatives of FEDECAMARAS, at both national and regional level, and with representatives of the affiliated chambers (CONINDUSTRIA, CONSECOMERCIO, among others). This effort by the Government is intended to restore social dialogue with leading social actors, without prejudice to maintaining the impetus of regional and sectoral meetings such as those held since 2002.
27. 1516. The Government indicates that on 14 January 2005, in an event which had not occurred since 2001, the president of FEDECAMARAS attended the session where the President of the Republic reported to the nation on the management of the previous year.
28. 1517. For the Government, as well as an immediate commitment of the National Executive, this effort to meet also directly involved the presidency of the National Assembly, where the national committee of FEDECAMARAS was recently received. This aspect is of particular importance because the President of the National Assembly comes from the Caracas Metro Workers’ Union which committed itself to promoting a common agenda for labour legislation, in particular reform of the Organic Labour Act.
29. 1518. As regards social dialogue in a direct and participate democracy, the Government indicates that, in paragraph 1066, the Committee rightly “recalls that the 1944 Declaration of Philadelphia that forms part of the ILO Constitution reaffirms among the fundamental principles on which the ILO is based, the following: the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare”.
30. 1519. The Government indicates that the Committee’s observation in the previous paragraph is also shared by the Government, which highlights that in no other period of the country’s history has there been an inclusive policy of consultation and decision-making involving all elements of Venezuelan society, both organized and otherwise. In the specific case of employers’ organizations, the terms “inclusive” and “grassroots” as part of this dialogue should be highlighted, due to the fact that in the past broad swathes of employers’ and workers’ sectors were left out of the discussions and decisions which affected or regulated their relations with the Venezuelan State, and as established in the Declaration of Philadelphia “the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare”.
31. 1520. In this regard, what the Government has done is to enlarge the basis of the customary consultations or dialogue which took place during the so-called “representative” democracy which existed in the Republic until 1999, dominated by the exclusiveness and privilege of the employers’ representation, before giving way to plurality instead of exclusion, allowing, for example, the Federation of Artisans, Micro, Small and Medium-Sized Industrialists of Venezuela (FEDEINDUSTRIA), founded over 30 years ago, to participate in forums for dialogue or consultations, something which was not usual until the present Government came into power.
32. 1521. The Government adds that it is important to stress than, in terms of bipartite and tripartite dialogue and consultation since 1999, what was done was simply to comply with the ILO Constitution and the provisions of the Conventions duly ratified by the Republic, highlighting in this process the importance of including participatory, proactive and inclusive democracy, i.e. that the country’s important decisions are the subject of wide consultation with all members of the different productive sectors, in this case old and new employers’ organizations.
33. 1522. Consequently, what has been seen is that the conduct of FEDECAMARAS from 2001 up to November 2004 was directed – inexplicably – at marginalizing and excluding itself, by changing from a social actor to a political one, causing economic losses to a large number of its members, promoting disregard for legality, and evading its social obligations and responsibilities. Such acts are not only contrary to the spirit of social dialogue in a democratic framework, but contrary to the social state under the rule of law and justice with which Venezuelan men and women are blessed under the Constitution.
34. 1523. According to the Government, the process of establishing mechanisms of consultation and participation is what has made economic recovery possible, generating new fair and decent work, progressively surmounting social exclusion and enhancing the quality of life of the population, correcting in ample measure the various situations noted by the complainants and the Government before the Committee in March 2003 and March 2004.
35. 1524. As regards the statements concerning the responsibility of FEDECAMARAS, like the Committee, the Government also regrets the discrediting of FEDECAMARAS and its officials (paragraph 1057 of the Conclusions). However, it should be stressed that, at the time of the events at the end of 2001, throughout 2002 and early 2003, there were few protests by other employers affiliated to the employers’ organization expressing their disagreement or differences with the leadership indicated in advance (prior to the actions of Mr. Carmona and Mr. Fernández).
36. 1525. In this case, the Government is referring to employers affiliated to FEDECAMARAS who at that point in time and in the then political situation, did not express their disagreement with the well-known public actions of their leaders. In any case, as was already made clear, the Government points out that, since then, matters have been evolving in a positive way, particularly since the holding of the presidential referendum of 15 August and the regional and municipal elections of 31 October 2004. The new political events have enabled the re-establishment of forums for meeting and dialogue, turning the page on the rifts that occurred between 2001 and 2003. Thus, many of the unconstitutional and illegal actions perpetrated against Venezuela’s institutions and people are now in the hands of the respective law enforcement agencies and the courts (Office of the Attorney-General and the Judicial Power), where those under investigation enjoy due guarantees in the framework of due process.
37. 1526. In its communication of 25 February 2005, concerning the coup d’état of April 2002, the Government draws to the Committee’s attention that, in its conclusions (paragraph 1055), it should take into account, based on the observations submitted by the Government, that “the Committee observes that in response to the complaint as a whole and to an incidental claim by the complainants (that the national civic work stoppage on 9, 10 and 11 April 2002 led to the national crisis that resulted in the resignation of the President of the Republic which was publicly confirmed by the country’s highest military official, but that only lasted a few days as it was later cancelled by the President himself) …”.
38. 1527. The Government points out that, in highlighting the facts, the Committee contradicts itself, since it states in paragraph 1056 “… that this complaint does not relate to Pedro Carmona, that the allegations relate to situations both preceding and following the events of 12 and 13 April 2002 (above all the national civic work stoppages of December 2002 to January 2003), that its mandate is limited to examining the allegations of violations of the rights of workers’ and employers’ organizations, their representatives and affiliates, and that it is not the competent international forum to deal with questions of an exclusively political nature”.
39. 1528. The Government indicates that the Committee itself supports the Government’s argument through an “incidental claim by the complainants” [IOE – FEDECAMARAS], in other words, the complainants themselves assume the involvement of the employers’ organizations and their then leaders in the observations made by the Government in March 2004 which the Committee summarizes in paragraph 1056.
40. 1529. For the Government, the participation, inter-dependency and relationship that existed between both members of the FEDECAMARAS leadership (whose president was Mr. Carmona and vice-president Mr. Fernández) in the events of April 2002 is clear. The actions by both led to a coup d’état. These actions are evidenced in documents and newspaper articles provided by the Government to the Committee in its observations of March 2004.
41. 1530. The Government refers to the Committee’s summary in paragraph 924 (the Government’s reply), which it quotes: “Carlos Fernández succeeded Carmona Estanca in the presidency of FEDECAMARAS, as he was the first vice-president of the association when the unconstitutional presidency of Carmona Estanca as de facto President was announced. The first official act of Carlos Fernández as president of FEDECAMARAS was to acknowledge the regime of Carmona Estanca, and it was on 12 April 2002 that Mr. Fernández signed the ‘Act of Constitution of the Government of Democratic Transition and National Unity’ as representative of the employers. The Act referred to tried unconstitutionally to justify the coup d’état by the employers, the military, opposition political parties and a minority of ‘civil society’ with the so-called ‘Government of Democratic Transition and National Unity’”.
42. 1531. The Government adds that the cited observations were accompanied by the copy of the Act of the so-called transitional government over which Mr. Carmona presided for a few hours and which Mr. Fernández endorsed with his signature on behalf of the employers of Venezuela. These actions, the Government recalls, led to:
43. a. the removal and persecution of the President of the Republic, the Executive Vice-President of the Republic, ministers and other government officials;
44. b. the removal and persecution of governors and mayors belonging to the government party, previously elected (like the President of the Republic) by the will of the people;
45. c. removal and suppression of the National Assembly (National Legislative Power);
46. d. removal of the judges of the Supreme Court of Justice (Judicial Power);
47. e. removal of the Office of the Attorney-General, Office of the Ombudsman and Office of the Comptroller-General of the Republic (Civil Power); and
48. f. removal of the judges of the National Electoral Council (Electoral Power).
49. 1532. The Government adds that these acts transmitted throughout the country by radio and television clearly showed that these representatives of FEDECAMARAS (president and vice-president) were acting contrary to the Constitution, laws and international Conventions on human rights. These acts include the unconstitutional detention or deprivation of liberty, in the form of kidnapping of the President of the Republic, legitimately elected in 2000 by the vast majority of the Venezuelan people (over 60 per cent of the vote).
50. 1533. The Government states that any attempt to distinguish the action of Mr. Carmona from that subsequently taken by Mr. Fernández is a serious error, both in historical and legal terms, since it was a case of a series of facts or events related to each other, as shown by the actions that were taken.
51. 1534. For example, the Government adds, prior to the indefinite employers’ stoppages of December 2002 and January 2003, there had already been the employers’ stoppage of 10 December 2001, the employers’ stoppage of 9, 10 and 11 April 2002 and the employer’s stoppage of 21 October 2002. In all those cases, those who represented FEDECAMARAS as president (first Mr. Carmona and later Mr. Fernández) acted with the support of private television and radio companies on public channels, directing their actions against the democratic system.
52. 1535. As regards the judicial detention of Mr. Carlos Fernández, the Government is concerned at the statements by the Committee on Freedom of Association in its interim conclusions on the judicial detention of Mr. Carlos Fernández, the opinions expressed by the Committee on Freedom of Association and adopted by the Governing Board with the respective reservations by the Government of Venezuela at the 290th Session of the Governing Board (summary record of the meeting annexed). The Committee exceeds its powers on the substance of the matter, when it overlooks the principles of international law on the burden of proof and evaluation of evidence. Consequently, its conclusions are reckless and mistaken because they are based on false suppositions. The Government stresses that Mr. Carlos Fernández is a fugitive from justice, which places him in a special position because he has evaded justice.
53. 1536. In the Government’s opinion, the Committee exceeds its powers on the substance of the matter when it passes judgment on matters which are a matter for the criminal courts of Venezuela and which are not established in Conventions Nos. 87 and 98. According to the Government, in pronouncing on whether a person has been the victim of ill treatment during his detention, the Committee did not take sufficiently into account the observations submitted in this case, as set out in the reply and annexes in March 2004.
54. 1537. The Government indicates that the Committee overlooks the principles of international law concerning the burden of proof and evaluation of evidence. Indeed, according to the Government, the Committee reverses the burden of proof and its evaluation of the evidence submitted by the parties is inadequate. The Committee, by breaching the principles of international law, reverses the burden of proof and finds the complainants’ statements to be true even when the Government presented solid evidence and documents such as judicial decisions, and statements by the alleged victim and his wife to the mass media.
55. 1538. Concerning the putative ill-treatment alleged by the complainants, the Government states that, while the complainants stated in the Committee that Mr. Fernández had been ill-treated, the alleged victim never made any complaint in that respect to any national authority. This is a negative fact about which the Government cannot present any evidence, it being up to the complainants to provide evidence that Mr. Fernández entered a complaint of any kind for alleged human rights violations. In this respect, they should annex the complaints made to the competent judicial organs, i.e. the Office of the Attorney-General and the Office of the Ombudsman. Unlike the complainants, the Government submitted documentary evidence consisting of statements to the mass media by Mr. Fernández’ wife saying that he had been well treated.
56. 1539. The Government adds that faced with the above situation, the Committee rejects the evidence presented by the State because it considered that it is “of limited value as evidence”. By virtue of the application of the principles of burden of proof, even if a more limited role is given to the value of a statement to the press, the Committee should give it precedence over the statements by the complainants to the Committee on Freedom of Association. The Committee’s conclusions and recommendations “to carry out an investigation in this respect and to keep it informed” are futile and difficult to comply with, since the Government cannot initiate an investigation into facts which have never been reported to it by Mr. Carlos Fernández. The Government reiterates that the conditions under which Mr. Fernández was arrested were in accordance with the law and he did not suffer any ill-treatment during his judicial arrest and brief imprisonment.
57. 1540. The Government urges the Committee on Freedom of Association to send the evidence presented by FEDECAMARAS and the IOE in support of the alleged ill-treatment that caused injuries and bruises to Mr. Carlos Fernández at the time of his arrest and imprisonment, such as forensic examinations (physical and psychological), as this would lend greater credibility to the statements of the complainants and the Committee on Freedom of Association.
58. 1541. With regard to the alleged violation of due process to which the Committee refers (paragraph 1075 and following), it is the Government’s opinion that although the complainants stated to the Committee that Mr. Fernández’ right to due process had been violated, the Government maintains that in the present case the judicial organs respected due process, since the arrested person was immediately brought before a judge and the judge took measures concerning his detention in a reasonable time and in accordance with the current law. In this regard, the Government reiterates the following observations:
59. (1) The detention of Carlos Fernández occurred following a legally valid request executed by the Office of the Attorney-General of the Republic, in the person of the Sixth Prosecuting Attorney of the Office of the Attorney-General.
60. (2) The proceedings were originally initiated for the offences of instigation to commit an offence, devastation, incitement to conspire and treason, at the request of the Office of the Attorney-General of the Republic, in accordance with the organic Criminal Procedures Code (COPP). These accusations were brought against him given the extent of the evidence of damage to the country by the repeated public protests by Mr. Fernández which gave rise, among other things, to sabotage of the oil industry, closing of food-producing firms during the public and notorious leadership by Mr. Fernández of the so-called “civic work stoppage” or lockout that took place in December 2002 and January 2003.
61. (3) The trial judge was No. 34 of the criminal jurisdiction of the Metropolitan Area of Caracas, who in turn was challenged by the defence lawyers of Mr. Fernández, exercising his human right to defence, and the case was transferred to trial judge No. 49.
62. (4) The offences of treason, incitement to conspire (conspiracy) and devastation were not accepted by the new judge but the judge upheld the accusations of civil rebellion and instigation to commit offences and ordered Mr. Fernández to be placed under house arrest (at his residence and home), as he suffered from blood pressure problems, thus enjoying procedural privileges and special treatment during the trial proceedings as laid down in our criminal procedures legislation.
63. (5) It should be noted that on 30 January 2003, before his judicial detention, Mr. Fernández made a statement as a witness at the premises of the Office of the Attorney-General, following which he had been summoned to make another statement as a defendant, a summons that he did not attend.
64. (6) Consequently, on 18 February 2003, the representatives of the Attorney-General requested the trial judge for the arrest of Mr. Fernández and that he should be brought before the jurisdictional body, and the judge to rule as appropriate.
65. (7) On 19 February 2003, Court No. 34, in the exercise of its powers, agreed to the request and issued an order for the arrest and detention of Mr. Fernández.
66. (8) On 20 March 2003, the Appeals Court decided to free Mr. Fernández, withdrawing the charges against him. Mr. Fernández then immediately left the country.
67. (9) On 20 March 2003, in the Appeals Court of Caracas, the Sixth Prosecuting Attorney in the Office of the Attorney-General lodged an appeal for the protection of constitutional rights (amparo) with the Constitutional Division of the Supreme Court of Justice which accepted the allegations set out by the Office of the Attorney-General of the Republic and once again ordered the house arrest of Mr. Carlos Fernández. The Supreme Court of Justice upheld the detention order in a decision read out by the president of the Court on 2 August 2003. As Mr. Fernández was outside the country and did not report to the judicial authorities, he is thus a fugitive from Venezuelan justice.
68. 1542. The Government indicates that, in paragraph 1076 of the report, the Committee observes that the Government had conveyed the decision of the Supreme Court of Justice (8 August 2003) that revoked the decision of the Appeals Court on procedural grounds (missing signature of one of the three magistrates (21 March 2003) who, for reasons of health, had been absent from the court for some hours).
69. 1543. The Government stresses that in any trial, mishaps may occur. In the case of Mr. Fernández, the mishaps that arose were resolved satisfactorily. Specifically, the charges and any other recourse exercised by a plaintiff may not be interpreted, nor should the Committee be “surprised” that “a judge was challenged; three of the charges were suppressed by another judge and the Appeals Court ended up dropping all of them” (…) “The decision of this court was appealed in the Supreme Court of Justice, which revoked it on procedural grounds and once again, at the request of the Office of the Attorney-General (the same prosecuting attorney that had originally accused him of the five offences) ordered the arrest of Mr. Fernández.” All these observations by the Government show that in Venezuela the justice system is autonomous, independent and impartial.
70. 1544. Moreover, the Government is concerned that the Committee did not express an opinion on and did not take into account the Government’s explanations in its reply of March 2004 concerning the conduct of the trade union officials, which was in violation of Article 8 of Convention No. 87: “In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land”.
71. 1545. The Government indicates that it is clear that the detention of Mr. Carlos Fernández, president of FEDECAMARAS in this instance, having succeeded the dictator Pedro Carmona Estanca, is directly and immediately linked to the employers’ lockout and oil stoppage which took place from 2 December 2002 to the end of January 2003. These are offences laid down in law prior to the events themselves and before the current President of the Republic took office. The Government stresses, as laid down in Article 8 of Convention No. 87 cited above, that no political or trade union activity means, nor can mean, licence to commit offences.
72. 1546. As regards the supposed legitimacy given to the so-called “civic work stoppage” of December 2002 and January 2003, the Government states that, in paragraphs 1080, 1081 and 1082, the Committee refers in worrying terms to the economic sabotage imposed in an anti-democratic manner for two months by the political opposition including the employers’ organization FEDECAMARAS as “civic work stoppages”. The Government’s attention, as representative of the Venezuelan people from which it derives its existence and the legitimacy of its mandates, is drawn to the subtle justification and even validation of breaking the law applicable in the Bolivarian Republic of Venezuela, in relation to the said stoppage. In this regard, reference is made to paragraphs 1080, 1081 and 1082 (part) of the report in question.
73. 1547. The Government indicates that the conclusions expressed by the Committee in this regard are similar to the grounds wrongly asserted by opposition parties during the so-called “civic work stoppage” to justify human rights violations on a massive scale and interruption of essential public services, which seemed to be validated as the inevitable and necessary consequences or lesser evils of the promotion of the stoppage organized against the legitimate authorities and against the Constitution of the Republic.
74. 1548. The Government adds that the extremely broad definition of human rights enshrined in the Constitution is no reason to seek to justify actions in the name of neo-liberalism and neo-fascism to the detriment of the majority and the democratic system which this majority choose freely and in the exercise of its sovereignty.
75. 1549. Thus, the Government indicates, in relation to articles 53 and 97 of the Constitution, the Committee errs in both cases in omitting the provision that rights of public assembly and strike must be exercised in express compliance with the respective laws.
76. 1550. The Government adds that in this regard, article 53 of the Constitution states: “Any person shall have the right to meet, in public or in private, without prior authorization, for lawful purposes and without arms. Meetings in public places shall be regulated by law”. The expression “regulated by law” denotes the importance that this provision of the Constitution attaches to people’s right of assembly, without seeking to undermine the exercise of other rights by the remainder of the population, such as the right to life, food, freedom of movement, etc. However, what is of concern is the expression ignored by the Committee “… for lawful purposes and without arms. Meetings in public places shall be regulated by law”. This needs emphasizing, since precisely what Mr. Fernández was doing was to incite incessantly to violence and breach of the law.
77. 1551. Thus, the Government indicates, the Committee erred in its conclusions by including the phrase “very generously”, alluding in a partial manner to the provisions of the Constitution “and the right to strike, in the public and private sector” (article 97), inexplicably ignoring the rest of article 97 “shall have the right to strike, under such conditions as are established by law”. It is important to stress that the promoters and leaders of the so-called “civic work stoppage” did not comply with the special legislation, the Organic Labour Act, Title VII, Collective Labour Rights, specifically on the regulation of the right to strike.
78. 1552. The Government states that, in the case of the right to strike to which article 97 of the Constitution refers, the Organic Labour Act, which came into force in 1990 and was reformed in 1997, not only expressly does not recognize the concept of general strike but also expressly abolished the concept of lock-out, in contrast to its recognition in the repealed 1936 law. The abolition of the concept of lock-out in the 1990 Organic Labour Act (known as the Caldera Act) was considered as very appropriate by the social actors, which regarded it as a step forward in protection against anti-trade union practices. In any case, the Organic Labour Act and its subsidiary regulations expressly establish the requirements and conditions for the exercise of the right to strike, which may never affect the rights of others and even less so the rights of majorities of the population.
79. 1553. The Government indicates that these aspects were sufficiently supported in the observations sent by the Government in March 2004, because the law specifically guarantees peaceful coexistence of citizens and prevention of anarchy, abuse by a few to the detriment of the majority and contempt for the freedom of all. Thus, those who deliberately ignore it, as well as placing human rights in jeopardy, must be subject for their actions to the appropriate sanctions laid down through due process in the competent judicial organs.
80. 1554. The Government states that, as established in its previous replies on the same events of December 2002 and January 2003 (Case No. 2249), the Committee seems to have fallen unnecessarily into contradictions, including with its own doctrine on paralysis of essential public services, general strike, acute national crisis, among other issues. The Committee’s clear contradiction of a doctrine built up over the years, as well as implying a negative or regressive precedent with respect to human rights, is a worrying signal with regard to legal certainty for members of the Organization.
81. 1555. As to the inappropriate justification of the so-called civic work stoppage based on article 350 of the Constitution of the Republic, the Government indicates that it might be interpreted that the Committee is trying to minimize or divert attention from the Government’s allegations submitted in March 2004, as well as seeking to criticize the Constitution by using the expression “very generously”. The broad recognition in the Constitution of rights and guarantees and of a deeply democratic and participatory economic, social, political system cannot be taken and used to distort its content, since the Constitution itself establishes parameters to prevent this, together with the respective laws and court decisions which interpret it.
82. 1556. Thus, the Government states that the unconstitutional and illegal nature of the so-called “civic work stoppage” cannot be justified by the phrase “very generously”, by which the Committee refers to the Constitution, especially as it does not take sufficient account of the observations sent by the Government in March 2004. In the light of this situation, we request the Committee on Freedom of Association to provide detailed clarification of the thinking behind its interpretation of our Constitution. This clarification could also involve other organs of the Organization in relation to article 350 of the Constitution.
83. 1557. The Government states that the Committee’s interpretation in paragraph 1082 of article 350 of the Constitution coincides with the interpretation made and wrongly invoked by the political opposition. It should be indicated that in this regard the Supreme Court of Justice, in a judgement of the Constitutional Division of 22 January 2003 (annexed by the Government) interpreted the said article 350 and set aside the incorrect interpretations of that article of the Constitution.
84. 1558. The Government indicates that the judgement in question was subsequently ratified by the Constitutional Division of the Supreme Court of Justice itself on 13 February 2003. Both judgements already existed and were fully known, due to the importance of the subject, at the date of the submission of the complaint by FEDECAMARAS and the IOE on 17 March 2003. In other words, they were handed down almost two months before the submission of the abovementioned complaint to the Committee, which shows that they did not act with due reasonableness and fairness before this tripartite body, i.e. in seeking the truth on the interpretation of this constitutional provision.
85. 1559. In any case, the Government points out that, the Committee was informed by the Government of both judgements of the Supreme Court of Justice in a Case (No. 2249) dealing with the same events and the actors acting jointly with FEDECAMARAS in the so-called “civic work stoppage” in a letter sent on 15 June 2004, specifically pages 20-24 inclusive.
86. 1560. The Government indicates that the above is intended to alert the Committee to its mistaken conclusions concerning article 350 of the Constitution of the Bolivarian Republic of Venezuela, since according to the interpretations of the Committee on Freedom of Association, “because this is a recent Constitution, these rights have not been developed in legislation (for example, in cases of conflicts of constitutional rights; or of minimum services to be maintained during strikes)”.
87. 1561. On the decision on exchange control and control of issue of foreign currency, the Government views with concern that in paragraph 1085 of the 334th Report, there was minimal mention of the reasons justifying such an urgent and necessary measure as the establishment of exchange control, creating for the purpose the Foreign Exchange Control Commission (CADIVI). In this respect, the Government reiterates that its reply sent in March 2004 contained sufficient explanation, and now provides further details by annexing information on foreign currency authorized, as well as making available to the Committee the explanation by the Ministry of Labour in the abovementioned communication of 10 January this year, including annexes in accordance with the procedure established in article 26 of the ILO Constitution:
88. With respect to the alleged discrimination in the foreign exchange administration and control system, this was a measure adopted by the Government to control the massive and deliberate flight which depleted international reserves and led to rising inflation in the country which affected access by the population to food and basic services. Employers must satisfy the basic conditions (lack of indebtedness to the tax and social security administration) and in the event of mishaps in the process they may resort to the administrative and judicial authorities. In any case, given the imprecise and general nature of the allegation formulated by the complainants, we consider that they confused the teething problems in implementing a foreign exchange control and administration system with discriminatory action. It is certainly true that historically similar problems of implementation arose when similar measures were taken in 1961, 1983 and 1994. In order to refute the allegations of the complainants, the distribution of foreign exchange at the end of 2004 is shown in the annexes. This distribution covered all productive sectors, including nationally and internationally owned companies.
89. 1562. In turn, the Government indicates, the Minister of Labour observed in the same communication that:
90. The Committee, without identifying the companies affected by alleged discriminatory treatment, requests the Government to “modify the current system”, which invades areas of monetary and exchange policy, adopted after a massive capital flight intended to create political instability in 2002 and 2003. This capital flight, as it happened, was accompanied by basic food shortages and sabotage of essential public services (in particular petrol and domestic gas), thereby endangering the lives, health and safety of the country’s population.
91. 1563. The Government says that it still hopes at the present time that the complainants and the Committee on Freedom of Association itself will officially convey the list showing the precise identity of the firms affected by the discriminatory application of the foreign exchange control system operating in the country since 2003. The Government hopes that the complainants will present formal complaints to the competent national authorities with respect to the alleged discriminatory treatment to which the Committee’s report refers.
92. 1564. The Government places on record that it has held regular meetings with the employers’ sector, in particular, the industrial sector affiliated to FEDECAMARAS, and the social actors to resolve problems in the application of the system and to correct its failings. An example of this is the meetings held by CONINDUSTRIA with CADIVI last November.
93. 1565. The Government has systematically explained to the ILO monitoring organs that the existence of armed groups is completely false, let alone that these alleged groups have the support of the Government or other government authorities.
94. 1566. The Government also notes that, according to the 334th Report, paragraph 1087, the Committee regrets that the Government has not specifically replied to these allegations. In this respect, the Government reports that the complainants do not attach the relevant complaints concerning the events about which the Committee requests the Government to inform it in paragraph 1087.
95. 1567. The Government stresses that the specific political violence and intolerance by the sectors in dispute during 2002 and part of 2003, the product of political polarization, which has now been overcome, was a problem addressed from the outset in the so-called Table for Negotiation and Agreement (November 2002-May 2003) facilitated by the Carter Center, the United Nations Development Programme (UNDP) and the Organization of American States (OAS). This forum for dialogue managed to achieve a commitment by both sectors (Government and opposition) to condemn violence, followed by an important product of the agreement, namely the Decree on the disarming of the population (illegal arms) and suspension of the carrying of arms without exception for all citizens of the Republic, in order to establish and maintain a reliable register of those with permits to carry arms in accordance with the law. In addition, the Constitution of the Republic clearly establishes that the State has a monopoly of arms.
96. 1568. In any case, the Government states that the Committee was informed of this and the respective agreements of the Table for Negotiation and Agreement were submitted to it, stressing the participation of FEDECAMARAS on a permanent basis through the president of one of its branches, the Venezuelan Chamber of Food (CAVIDEA).
97. 1569. With respect to the above paragraph, the Government reiterates its comments on the matter in its communication (already indicated), No. 004 of 10 January 2005, which states:
98. The Committee recommended the Government to establish an “independent” commission, (by people responsible for the coups d’état and petroleum lock-out in 2002-2003, with a view to “dismantling”, proscribing or banning various social organizations which exercise the right of association. Among them the Quinta República Movement, a government party with a majority in the National Assembly as well as in 20 of the 22 State governments and 270 of the 340 municipalities in the country and Juventud Revolucionaria del MVR. This political party has won nine national, regional and local elections between 1998 and the present. It should be noted that the Committee on Freedom of Association requested the “dismantling” of the main political party in Venezuela and other legally constituted social organizations, which is legally impossible, and would not be feasible in practise. (Annexed is a press article which mentions the MVR as the main political party).
99. 1570. As regards the investigation into acts of vandalism and 180 cases of alleged invasion of farms, the Government states what was already explained in the abovementioned letter No. 004 of 10 January 2005, as follows:
100. As regards the alleged harassment of members of the employers’ organization, it should be stressed that despite the tension experienced at times during the period concerned here, no trade union or employers’ leader was arrested and no trade union office raided, except for those specific measures implemented in accordance with judicial decisions and those of the Office of the Attorney-General. These judicial decisions are directly linked to the investigation into those responsible for the coup d’état in April 2002 and the economic and oil sabotage in December 2002 and January 2003. The provisions of the Convention do not authorize or lend legitimacy to acts in violation of the law, but on the contrary require representatives of the social actors to respect the basic rules for living together in a democracy. The measures adopted by the police authorities were always the result of proceedings and previous decisions by the independent and autonomous organs of the public power, which did not involve persecution or limitation of the exercise of rights and freedoms of association.
101. 1571. Regarding the alleged invasions of farms (180) and other abuses, which, according to the employers’ organization, were suffered by the president of CONSECOMERCIO, Mr. Julio Brazón, during an alleged looting of his office, and the harassing of the president of the Bejuma Chamber of Commerce, Mr. Adip Anka, in the form of alleged threats of violence by alleged members of the government party, the Government considers that there is no basis whatsoever in either case, and there is no evidence to support or prove them.
102. 1572. The Government states that the institutions and population in general are fully aware that Venezuela functions under the rule of law and justice, such that whenever there is a breach or violation of the law, the facts must be reported to the appropriate authorities. For this purpose, a complaint must be made to the competent authorities providing evidence of the facts. As evidence that what the complainants in this case allege happened actually happened, the complainants could at least have annexed the respective complaints to the administrative and judicial authorities of the Venezuelan State to the written submission to the Committee on Freedom of Association. The Government therefore regrets that the allegations of the employers’ organization FEDECAMARAS were not supported by sound evidence and requests the Committee to consider this aspect, and to discount it for the reasons set out above.
103. 1573. As to the comments on enabling acts, the Government reiterates what it stated in its reply sent in its communication No. 094 of 9 March 2004, and also sets out what it indicated in its communication of 10 January, namely:
104. As regards the approval of laws passed in the context of an enabling act of 2000, consultations were held with all sectors, mainly in August 2001, following a systematic method of work and timetable, in particular with FEDECAMARAS and its affiliated organizations. However, it should be clearly understood that after consulting with the sectors concerned and listening to their particular interests, the State adopted measures in which the general interest of the population was given priority or preference, particularly excluded sectors in the urban and rural areas, demonstrating the exercise of political will in accordance with the majority of the electorate which elected it. In any case, any disputes of particular items of the content were examined and decided at the time by the Supreme Court of Justice of Venezuela, and the necessary corrective measures taken, including declaring null certain specific provisions of various bodies of legislation.
105. 1574. In any case, the Government informs the Committee of the results of the appeals by the employers affiliated to FEDECAMARAS in relation to the decree-laws under the Enabling Act and the consultations in the National Assembly concerning review and correction of some articles of those decree-laws. These can be summarized as follows:
106. On the Decree with rank and force of law, Land and Agrarian Development Act, published in the Official Gazette, No. 37,323 of 13 November 2001, it should be pointed out that the Supreme Court of Justice, Constitutional Division, ruled as follows:
107. ONE: the articles of the laws set out in articles 82 and 84 of the Decree with rank and force of law, Land and Agrarian Development Act published in the Official Gazette, No. 37,323 of 13 November 2001 are held to be constitutional.
108. TWO: interprets and, in consequence, recognizes, in the terms set out in this ruling, the full force and validity of the provisions contained in articles 25, 40 and 43 of the Decree with rank and force of law, Land and Agrarian Development Act published in the Official Gazette, No. 37,323 of 13 November 2001.
109. THREE: articles 89 and 90 of the Decree with rank and force of law, Land and Agrarian Development Act published in the Official Gazette, No. 37,323 of 13 November 2001 are found to be unconstitutional.
110. FOUR: in accordance with the provisions of articles 119 and 120 of the Organic Act of the Supreme Court of Justice, the immediate publication of this judgement in the Official Gazette of Venezuela is ordered, stating in the summary the following title:
111. Ruling of the Supreme Court of Justice, in the Constitutional Division, which holds that articles 82 and 84 are constitutional; which finds that articles 89 and 90 are unconstitutional; and interpretation of articles 25, 40 and 43 of the Decree with rank and force of law, Land and Agrarian Development Act published in the Official Gazette, No. 37,323 of 13 November 2001.
112. FIVE: The effects of this ruling shall be effective with immediate effect, that is from their publication in the Official Gazette.
113. To be published, recorded and notified. Let what is ordered be done.
114. Done, signed and sealed in the chamber of the Constitutional Division of the Supreme Court of Justice, in Caracas, on this 20th day of the month of November two thousand (2000). Year: 192 of Independence and 143 of the Federation.
115. The President …
116. 1575. The Government states that the Supreme Court of Justice, Constitutional Division, in Ruling No. 1157 of 15 May 2003, upheld the application in the present case against Decrees Nos. 1546 and 5120 with force of law, the Land and Agrarian Development Act and the Organic Hydrocarbons Act, published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 37,323 of 13 November 2001.
117. 1576. On the Public Registry and Notaries Act (enabling act) the Supreme Court of Justice, Constitutional Division, on 15 July 2003, admitted an action in respect of the unconstitutionality of articles 14, 15, 62, 63, 64, 65 and 66 of that Act.
118. 1577. On the Fisheries and Fish-farming Act (enabling act), the application for nullity on the grounds of unconstitutionality and the request for a temporary injunction to suspend the effects of the decree-law, the Constitutional Division of the Supreme Court of Justice declared inadmissible the application for a temporary injunction, in Judgement No. 408 of 8 March 2002. However, the National Assembly partly reformed that law, which is intended to regulate the fisheries and fish-farming sector by means of provisions which allow the State to encourage, promote, develop and regulate fisheries, fish-farming and related activities, based on guiding principles which ensure the production, conservation, control, administration, promotion, research and responsible and sustainable exploitation of fish-stocks, taking into account the relevant biological, technological, economic, food security, social, cultural, environmental and commercial aspects.
119. 1578. The Government states that on the decree with force of law, the Coastal Zones Act, which was republished in Official Gazette No. 37,349 of 19 December 2001, it is clear that “it reserves the rights legally acquired by private individuals …”. With respect to this law, it should be borne in mind that article 9 of Decree No. 1468 with force of law, the Coastal Zones Act, published in the Official Gazette No. 37,319 of 7 November 2001, was declared null on 24 September 2003 in Judgement No. 2573-240903-01-2847.
120. 1579. With respect to Decree with Force and Rank of Law, No. 126, which establishes the value added tax, partly amended by the National Assembly, Official Gazette, special edition, No. 5,600 of 26 August 2002, the Government states that the Supreme Court of Justice, in Judgement No. 1505 of 5 June 2003, declared admissible the action for protection of constitutional rights (amparo) brought by Fernando José Bianco Colmenares, acting as president of the College of Physicians of the Metropolitan District of Caracas and in defence of the broad interests of all Venezuelans against the provision in article 63, paragraph 5, of the Act to amend in part the Value Added Tax Act, published in the Official Gazette, special edition, No. 5,600 of 26 August 2002 and reprinted for material error in Official Gazette, special edition, No. 5,601 of 30 August 2002. In this case, the Court ruled that the Act did not apply to all value added taxpayers who provided or received private medical services, dental services, surgery and hospitalization, given the effective protection of the general rights and interests inherent in the present case; and in order to ensure effective tax justice, it declared medical and healthcare services, dental services, surgery and hospitalization provided by private bodies exempt from value added tax, for which reason article 3 also of the Act in question did not apply with respect to those services. This means that in this matter, the provisions of the original decree-law in respect of the abovementioned services are reinstated.
121. 1580. The Government indicates that the foregoing summary complements the observations provided in March 2004 on enabling acts, showing that, in the face of non-conformity by the complainants, the Supreme Court of Justice and the National Assembly acted in favour of social harmony and the interests of the Venezuelan population as a whole and the priority economic and political sectors with which it historically maintained relations.
122. 1581. As regards the alleged exclusion and marginalization of FEDENAGA, the Government states that FEDENAGA took part in the forums for social dialogue which were held following the failed coup d’état in 2002, which makes it surprising that they should now say that they were not invited. Another problem is the fact that they abandoned this legitimate path provided by the Government using their self-exclusion as justification for their subsequent involvement and participation in the work stoppage called by Mr. Carlos Fernández at the end of 2002.
123. 1582. The Government states that it recognizes the employers’ organization FEDECAMARAS and welcomes the positive change in the attitude of FEDECAMARAS as can be seen from its communication No. 004 of 10 January 2005, in which we state that:
124. Following the holding of the presidential referendum in August 2004 and the regional and municipal elections in October 2004, a positive development on the part of the FEDECAMARAS leadership can be seen, shifting from disregard for the will of the people, initially coming to a head in loud claims of “electronic fraud”, to an appreciation of the efforts made by the Government to restore a climate of social dialogue, with the active participation of the Executive Vice-President of the Republic, as well as several ministries, including the Ministry of Labour. In the latter case, we stress the initiatives taken in promoting consultation on reform of the Organic Labour Act and the various social security laws. Thus the FEDECAMARAS leadership has involved itself in the intensive process of democratic dialogue that has been taking place in the country since 1999, linked initially to the constitutional process and subsequently to the transformation of the political, economic and social model. The Government annexes documentation relating to this.
125. 1583. Concerning the need to maintain a balance and equality in proceedings before the Committee, and with a view to keeping this important tripartite committee on course, its actions must reflect balance and fairness in the treatment of information and its evaluation. Weaknesses perceived in this area will affect both the credibility and the working methods used to reach conclusions and formulate the respective recommendations.
126. 1584. In this respect, and without prejudice to what has been stated above, the Government wishes to stress its concern that the Committee indicated that the press articles presented by the Government as items of evidence or arguments to indicate and rebut the allegations of ill-treatment of Mr. Carlos Fernández were of limited value and practically ignored them in its conclusions, where it states that the press articles are of limited value as evidence.
127. 1585. The Government adds that a few paragraphs later, however, in the same report, specifically paragraph 1082, the Committee, in explaining the issues involved in determining the nature of the work stoppage, considered, with respect to the complainants, the press articles sent by the Government, and quotes: “includes statements vindicating Mr. Fernández that show that the national civic work stoppage was an act of protest by FEDECAMARAS for employer reasons …”.
128. 1586. The Government indicates that this differential treatment merits clarification by the Committee on Freedom of Association, since that would make it possible to interpret the inexplicable legitimacy assigned to the declaration by the complainant employers’ organization to justify a series of events including the call to the unconstitutional and illegal work stoppage.
129. 1587. In other words, for the Government, credibility means maintaining predictable, balanced and fair parameters, in order to preserve the necessary legal certainty that the different actors which make up the International Labour Organization deserve, to the exclusion of any differential treatment in the evaluation of arguments or evidence.

D. The Committee’s conclusions

1. 1588. As regards the various outstanding issues relating to the exclusion of FEDECAMARAS from the social dialogue, in its previous examination of the case the Committee pointed out the following: (1) the Government’s reply does not mention any bipartite or tripartite agreement or consultation with FEDECAMARAS as from September 2001 in matters (policies or legislation) of a labour or economic nature; (2) the Government has not denied that the National Tripartite Commission has not met for years as stated in the allegations; and (3) the Government has also not denied the alleged lack of consultations with FEDECAMARAS in respect of the process of drafting important legislation such as the Labour Procedure Act, the widespread increase in the minimum wage of 20 per cent by way of order or in respect of the process of ratification of ILO Convention No. 169, the new banking control scheme or, on a more general note, the establishment of economic policies and guidelines [see 334th Report, para. 1064]. Furthermore, with reference to the question of the consultations relating to the 47 Decrees which had been issued as a first stage only (up to August 2001) and then interrupted, the Committee had urged the Government to examine together with the social partners, all laws and Decrees adopted without tripartite consultation.
2. 1589. The Committee observes that the Government has not replied to its recommendation without delay to periodically convene the National Tripartite Commission as envisaged in the legislation. The Committee again urges the Government to comply with its legislation and without delay to periodically convene the Tripartite Commission.
3. 1590. As to the question of laws and Decrees adopted without tripartite consultation mentioned in the complaint, the Committee notes that the Government states that: (1) the complaint fails to mention the process of dialogue conducted by the authorities prior to approval of the legislative measures and even after their approval consultations took place, without prejudice to recourse to other mechanisms and remedies set out in the national legal system; (2) the Government applies an inclusive policy of consultation and decision-making involving all elements of Venezuelan society, both organized and otherwise, eliminating exclusiveness and privilege in the representation of employers, making way for plurality and, for example, allowing FEDEINDUSTRIA and the other productive sectors to participate regularly in dialogue; (3) from 2001 up to November 2004 the conduct of FEDECAMARAS was directed, unacceptably, at marginalizing and excluding itself by changing from a social actor to a political one with actions contrary to the spirit of social dialogue and abstaining from participation in the forums for social dialogue; (4) the consultations on minimum wages since 2002 were conducted through written requests sent to the various social actors at national, regional and local level and in 2003 an agreement was concluded between the Government and the political opposition, also signed by a representative of an organization affiliated to FEDECAMARAS. As to the Government’s assertion that FEDECAMARAS did not take part in the forums for dialogue in 2002, the Committee recalls that this absence was due to the fact that the authorities had not invited the president of the principal workers’ federation in that capacity.
4. 1591. In the light of the information in the Committee’s possession (information from the complainants and the Government’s successive replies), it considers that, in the period between August 2001 to the date of the IOE complaint (17 March 2003), the Government’s consultations with FEDECAMARAS on social, economic and labour issues (apart from the consultation on minimum wages in 2002 to which the Government now refers) were practically non-existent, and the Government has not shown that in the process of adopting the 47 Decrees, they were significant to the extent of taking duly into account the legal and constitutional defects invoked by FEDECAMARAS and which were detailed in the previous examination of the case [see 334th Report, para. 884]. The Committee observes in this respect that the Government in its reply refers to a series of decisions of the Supreme Court of Justice annulling certain provisions of the Land and Agrarian Development Act or interpreting others, admitting an action for unconstitutionality of various provisions of the Public Registry and Notaries Act, and partially reforming the Fisheries and Agriculture Acts and declaring null an article of the Coastal Zones Act and making the Value Added Tax Act inapplicable to certain services. According to the Government, the remaining Decrees did not give rise to significant observations. The Committee further observes that the Government has not provided specific information which might refute the allegation relating to the lack of consultation in the period covered by the present conclusions with respect to the Labour Procedures Act, ratification of ILO Convention No. 169, the new exchange control system or, more generally, the establishment of economic policies and directives.
5. 1592. The Committee reiterates the importance of draft bills which affect them directly being the subject of consultation with the most representative workers’ and employers’ organizations and again points out to the Government the following principle [see 334th Report, para. 1065]:
6. The most representative employers’ and workers’ organizations, and in particular the confederations, should be consulted at length, on matters of mutual interest, including everything relating to the preparation and application of legislation concerning matters relating to them and to the fixing of minimum wages; this would contribute to legislation, programmes and measures that the public authorities have to adopt or apply being more solidly founded and to greater compliance and better implementation. This being the case, the Government should, as far as possible, also base itself on the consensus of workers’ and employers’ organizations, which should share the responsibility for achieving well-being and prosperity for the community in general. This is particularly true in the light of the growing complexity of problems facing societies, and also, of course, facing the people of Venezuela. No public authority should claim to hold all knowledge nor presume that what it proposes will always and entirely satisfy the objectives in any given situation.
7. 1593. With respect to the subsequent evolution of social dialogue since the last examination of the case, the Committee observes that the Government reports certain improvements in terms of consultations since the previous examination of the case, specifically consultations with FEDECAMARAS since August 2004 on labour immobility, agreements of the Andean Community of Nations, action plan on child labour, ratification of Conventions, Workers’ Food Act (in most cases conducted through correspondence or letters); according to the Government, consultations on the reform of the Organic Labour Act and social security legislation were conducted directly with representatives of the various social actors both in the National Assembly and the Ministry of Labour; the Executive Vice-President of the Republic held meetings with national representatives of FEDECAMARAS and certain affiliated chambers; the president of the National Assembly received the national leadership of FEDECAMARAS and the president of FEDECAMARAS attended the session where the President of the Republic reported to the nation on the management of the previous year. The Committee notes that the Government also reports: (1) that the new political events (constitutional referendum of 15 August 2004 and the regional and municipal elections of 31 October 2004) have enabled the re-establishment of forums for meeting and dialogue, turning the page on the rifts that occurred between 2001 and 2003; (2) that FEDECAMARAS has pointed to government efforts (Vice-President of the Republic and various ministries, including labour) aimed at restoring social dialogue with the leading social actors; and (3) the Government highlights a positive development on the part of FEDECAMARAS and a favourable change of attitude to the extent of appreciating the Government’s efforts, and that the FEDECAMARAS leadership has joined in the intensive process of democratic dialogue.
8. 1594. The Committee underlines that over and beyond the consultations and meetings held between the authorities and FEDECAMARAS, which the Committee can but encourage, it is important to consolidate these first steps in the new direction and structure them on a permanent footing. The Committee again offers the Government the services of the ILO to provide the State and society with its experience so that the authorities and social partners may regain trust and, in a climate of mutual respect, establish a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as the full recognition, in all its consequences, of the most representative confederations and all organizations and important tendencies in the world of work [see 334th Report, para. 1089(d)]. The Committee requests the Government to keep it informed of all instances of social dialogue with FEDECAMARAS and bipartite and tripartite consultations, and any negotiations or agreements that ensue and the Government’s intentions with respect to the above offer of ILO technical assistance.
9. 1595. With respect to the previous recommendation urging the Government to reinstate FEDENAGA to the Agriculture and Livestock Council and to stop favouring CONFAGAN to the detriment of FEDENAGA, the Committee notes that the Government states: (1) that FEDENAGA took part in the forums for social dialogue which were held following the failed coup d’état in 2002; (2) that another problem was the fact that they abandoned this legitimate path provided by the Government using their self-exclusion as justification for their subsequent involvement and participation in the civic work stoppage called by Mr. Carlos Fernández at the end of 2002. The Committee points out that the forums for social dialogue to which the Government refers still do not exist, and are not the same as the Agriculture and Livestock Council. Consequently, the Committee reiterates its previous recommendation and requests the Government to reinstate FEDENAGA to the Agriculture and Livestock Council.
10. 1596. As regards the recommendations concerning the president of FEDECAMARAS, Mr. Carlos Fernández, the Committee noted that the Government states that it “reiterates” that the conditions under which Mr. Fernández was arrested were in accordance with the law and he did not suffer any ill-treatment during his judicial arrest and brief imprisonment, that he did not report these matters to the authorities and that it produced documentary evidence (press articles) consisting of statements to the mass media by Mr. Fernández and his wife that he had been well treated. The Committee wishes to refer to the Government’s comments critical of the fact that limited value as evidence had been attached to the press extracts and expressing the view that it had exceeded its powers. In this respect, the Committee points out: (1) that it is one thing for the Government to refer to press articles as it did in its first reply and quite another, as now, to state categorically that Mr. Fernández’ arrest was in accordance with the law and he did not suffer any ill-treatment; (2) that the Committee did not state that Mr Fernández had suffered ill-treatment but had requested an investigation into the alleged instances of ill-treatment listed; (3) that the Committee has expressed an opinion many times on allegations of physical ill-treatment in the course of criminal judicial proceedings. As to the absolute contradiction between the allegations and the Government’s new reply and taking into account its assertion that Mr. Fernández may lodge complaints if he so wishes, the Committee will not proceed with examination of this aspect of the case.
11. 1597. As regards the recommendations and allegations concerning a number of irregularities or breaches of due process, the Committee notes all the statements and comments made by the Government which essentially reiterate its previous statements. The Committee refers to the extensive allegations of the complainants [see 334th Report, paras. 1073 and 1074] on these questions, points out that the Government had not replied in detail to them and recalls its previous conclusions that in this case there had been a lack of impartiality [see 334th Report, para. 1076].
12. 1598. Concerning the substance of the matter (trial and detention of Mr. Carlos Fernández, president of FEDECAMARAS), the Committee notes the Government’s statements and once again observes that they essentially reiterate previous statements. The Committee recalls its final conclusions on that subject. In relation to this and to certain Government’s statements, the Committee stresses: (1) that the national civic work stoppage of December 2002-January 2003 was several months after the coup d’état and was massively supported by a large part of the population and that on some days a million-and-a-half people took part in the protests; (2) that the oil sector is not an essential service in the strict sense of the term, that is the interruption of which would affect the life, safety or health of the persons and that the principles of freedom of association recognize the right to general strike in protest against the Government’s economic and social policy; (3) that the Government has not provided a single piece of evidence to show that Mr. Carlos Fernández incited sabotage, acts of violence or similar offences; the Committee stresses that the causes of the civic work stoppage have their roots in the absence of social dialogue and the Government’s economic and social policy, as it appears from the allegations, and that in its previous reply, the Government sent press articles on FEDECAMARAS’ criticisms of that policy; (4) that for the reasons set out by the Committee, it does not share the view that the civic work stoppage had nothing to do with employers’ organizations or trade union matters as the Government asserted, even though the work stoppage did also have obvious political ends which were nevertheless not illegal at the time; (5) that criminal responsibility of members of trade unions or employers’ organizations for any individual offences must not be transferred to leaders of the organizations; (6) that apart from the president of FEDECAMARAS and the CTV, no other organizer of the civic work stoppage (NGO, political parties, etc.) was arrested; (7) that in its reply, the Government gave incomplete quotations from the Committee’s previous conclusions; (8) that it is surprised that the Government invokes the shortage of basic foods, gas or petrol or the Committee’s principles in cases of acute national crisis or paralysis of essential services to suggest that the Committee has breached such principles in the present case given that the Government did not provide any solution whatsoever by imposing minimum services essential to the community, either in this long civic work stoppage or in previous civic work stoppages; (9) that in its conclusions the Committee did not criticize the Constitution but indicated that the legislation (new legislation) had still not determined the scope of public rights and freedoms and that it could give rise to confusion (as happens every time a new Constitution is adopted in a country); (10) that in relation to this question, the Government itself refers in its reply to decisions which, for example, interpret article 350 of the Constitution and indicates that the judgement “set aside the incorrect interpretations of that article of the Constitution”; and (11) that the Committee had not interpreted the wording of the Constitution but had merely indicated that some of its provisions provided very generously for certain human rights, for which reason it does not understand why the Government can think that the Committee was criticizing the Constitution in this regard since the Committee had no intention to make criticisms. Finally, the Committee points out that the Government has not explained why it implicates the president of the private sector workers’ confederation in the paralysis of the state oil company PDVSA.
13. 1599. Taking all the foregoing into account, the Committee again considers that the arrest of Carlos Fernández, as well as being discriminatory, aimed to neutralize or act as retaliation against this employers’ official for his activities in defence of employers’ interests and, therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he may return to Venezuela without delay and without risk of reprisal. The Committee requests the Government to keep it informed in this respect. The Committee deeply deplores the arrest of this employers’ official and emphasizes that the arrest of employers’ officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association, and requests the Government to respect this principle. The Committee deplores the fact that this employers’ leader has already been in exile for several years and cannot return to the country for fear of reprisal by the authorities.
14. 1600. With regard to the previous recommendation concerning the application of the new system of exchange control, the Committee notes that the Government states: (1) that the complainant organizations have not indicated the specific firms allegedly suffering discrimination under this system; (2) that the Minister of Labour stated that “the Committee, without identifying the companies affected by alleged discriminatory treatment, requests the Government to ‘modify the current system’, which invades areas of monetary and exchange policy, adopted after a massive capital flight intended to create political instability in 2002 and 2003”. In this respect, the Committee stresses that it did not request the current system to be modified but after criticizing the fact that it was established unilaterally requested the Government “to examine with FEDECAMARAS, without delay, the possibility of modifying the current system”, following allegations of discrimination by the authorities against firms belonging to FEDECAMARAS in relation to administrative permits to purchase foreign exchange. The Committee notes in this respect that the Government has held regular meetings with the employers’ sector affiliated with FEDECAMARAS and the social actors to resolve problems in the application of the system and correct any failings found in it. The Committee trusts that this dialogue will ensure that the exchange control system will be applied without discrimination against firms affiliated to FEDECAMARAS.
15. 1601. As regards the Committee’s recommendation concerning the allegations regarding the operations of paramilitaries (the Government had not replied specifically to that allegation) the Committee notes that the Government states: (1) that the Committee had requested the “dismantling” of the main government political party (Movimiento Quinta República) and other legally constituted social organizations (the Committee underlines in this respect that the Government did not reply to the allegations about paramilitary groups, that the allegations did not mention that political party but rather groups such as “Círculo Boliviarianos Armados, Quinta República” or “Juventud Revolucionaria del MVR” and that it did not request the dismantling of the Movimiento Quinta República); (2) that the existence of armed groups is completely false, let alone that these alleged groups have the support of the Government or other government authorities; (3) that the specific political violence and intolerance by the sectors in dispute during 2002 and part of 2003, the product of political polarization, which has now been overcome, was a problem addressed from the outset in the Table for Negotiation and Agreement (November 2002- May 2003) facilitated by the Carter Center, the United Nations Development Programme (UNDP) and the Organization of American States (OAS); (4) that this forum for dialogue managed to achieve a commitment by both sectors (Government and opposition) to condemn violence, followed by an important product of the agreement, namely the Decree on the disarming of the population (illegal arms) and suspension of the carrying of arms without exception for all citizens of the Republic, in order to establish and maintain a reliable register of those with permits to carry arms in accordance with the law; (5) that the Constitution of the Republic clearly establishes that the State has a monopoly of arms. The Committee observes that the Government recognizes that there was political violence and intolerance in 2002 and part of 2003 by the conflicting parties. The Committee also observes that, since the submission of the complaint, the complainant organizations have not sent new allegations relating to acts of violence by violent or armed groups. The Committee will therefore not pursue the examination of this aspect of the case unless the complainant organizations produce new evidence.
16. 1602. As regards the previous recommendations urging the Government: (a) to carry out, without delay, an investigation with regard to the acts of vandalism at the premises of the Lasa Chamber of Commerce by Bolivarian groups supporting the Government (12 December 2002); the looting of the office of Julio Brazón, president of CONSECOMERCIO (18 February 2003); the threats of violence on 29 October 2002 by alleged members of the government political party against Adip Anka, president of the Bejuma Chamber of Commerce; (b) to carry out an investigation, without delay, into the allegations relating to 180 cases (up to April 2003) that have not been resolved by the authorities of illegal invasion of lands in the states of Anzoátegui, Apure, Barinas, Bolívar, Carabobo, Cojidas, Falcón, Guárico, Lara, Mérida, Miranda, Monagas, Portuguesa, Sucre, Táchira, Trujillo, Yaracuy and Zulia; and (c) requested that, in the case of expropriations, it fully respect the legislation laid down and the relevant procedures, the Committee notes that the Government states that these allegations are unfounded, that there is no evidence to support them and that those concerned have not lodged complaints with the national authorities. Nevertheless, the Committee considers that, whether or not the parties concerned lodged complaints with the national authorities, these are serious and relatively precise allegations, for which reason it reiterates its previous recommendations and suggests that the Government should make direct contact with the persons and institutions mentioned and with FEDECAMARAS with a view to carrying out an independent judicial investigation.

The Committee's recommendations

1. 1603. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again urges the Government to comply with its legislation and without delay to convene periodically the tripartite commission.
   • (b) The Committee reiterates the importance of draft bills which affect them directly being the subject of consultation with the most representative workers’ and employers’ organizations and again points out to the Government the principles set forth in the conclusions concerning consultations.
   • (c) The Committee underlines that over and beyond the consultations and meetings held between the authorities and FEDECAMARAS, which the Committee can but encourage, it is important to consolidate these first steps in the new direction and structure them on a permanent footing. The Committee again offers the Government the services of the ILO to provide the State and society with its experience so that the authorities and social partners may regain trust and, in a climate of mutual respect, establish a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as the full recognition, in all its consequences, of the most representative confederations and all organizations and important tendencies in the world of work. The Committee requests the Government to keep it informed of all instances of social dialogue with FEDECAMARAS and bipartite and tripartite consultations, and any negotiations or agreements that ensue and the Government’s intentions with respect to the above offer of ILO technical assistance.
   • (d) The Committee again urges the Government to reinstate FEDENAGA to the Agricultural and Livestock Council and to stop favouring CONFAGAN to the detriment of FEDENAGA.
   • (e) The Committee once again considers that the arrest of Carlos Fernández, president of FEDECAMARAS, as well as being discriminatory, aimed to neutralize or act as retaliation against this employers’ official for his activities in defence of employers’ interests and, therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he may return to Venezuela without delay and without risk of reprisal; the Committee requests the Government to keep it informed in this respect. The Committee deeply deplores the arrest of this employers’ official and emphasizes that the arrest of employers’ officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association, and requests the Government to respect this principle. The Committee deplores the fact that this employers’ leader has already been in exile for several years and cannot return to the country for fear of reprisal by the authorities.
   • (f) The Committee again urges the Government to carry out, without delay, an independent investigation with regard to: (1) the acts of vandalism at the premises of the Lasa Chamber of Commerce by Bolivarian groups supporting the Government (12 December 2002); (2) the looting of the office of Julio Brazón, president of CONSECOMERCIO (18 February 2003); (3) the threats of violence on 29 October 2002 by alleged members of the government political party against Adip Anka, president of the Bejuma Chamber of Commerce; and (4) the allegations relating to 180 cases (up to April 2003) that have not been resolved by the authorities of illegal invasion of lands in the States of Anzoátegui, Apure, Barinas, Bolívar, Carabobo, Cojidas, Falcón, Guárico, Lara, Mérida, Miranda, Monagas, Portuguesa, Sucre, Táchira, Trujillo, Yaracuy and Zulia, and urges that, in the case of expropriations, it fully respect the legislation laid down and the relevant procedures. The Committee suggests that the Government should make direct contact with the persons and institutions mentioned and with FEDECAMARAS with a view to carrying out an independent judicial investigation.