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Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2706 (Panama) - Complaint date: 30-MAY-09 - Follow-up

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Allegations: The complainants allege murders and acts of violence against trade union officials and members, the detention of trade union members and the dismissal of SUNTRACS members
  1. 901. The Committee last examined this case at its November 2010 meeting, when it presented an interim report to the Governing Body [see 358th Report of the Committee, paras 724–764 , approved by the Governing Body at its 309th Session (November 2010)].
  2. 902. The Government sent new observations in communications dated 11 and 21 November 2010, and 16 February and 5 October 2011.
  3. 903. Panama 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

A. Previous examination of the case
  1. 904. At its November 2010 meeting, the Committee made the following recommendations on the matters still pending [see 358th Report, para. 764]:
    • (a) The Committee firmly expects that the ongoing investigations into the murders of Mr Luiyi Argüelles and Mr Al Iromi Smith will be concluded without delay and that those responsible for the events in question will consequently be punished and requests the Government to inform it of any rulings issued.
    • (b) The Committee urges the Government without delay to send its observations regarding the following allegations: (1) the injuries suffered by trade union officials Mr David Niño, a member of the SUNTRACS executive committee, and the secretary for finances of CONUSI, Mr Eustaquio Méndez, on 14 August 2007; (2) the detention of SUNTRACS press and communications secretary, Mr Raimundo Garcés; (3) the incident in which police officers attacked workers Messrs Donaldo Pinilla and Félix de León using firearms on 12 February 2008 while they were taking part in a peaceful demonstration as part of a national strike and the arrest of and imposition of fines on over 500 workers who were protesting as a result of the death of the trade union official Mr Al Iromi Smith; (4) the violent repression and arrest by the police of 224 workers (including 47 members of SUNTRACS) participating in a demonstration on 16 March 2010 and the imposition of fines on the abovementioned workers; and (5) the submission by the Government of a bill establishing that job applicants must provide their “police records” (proving that they do not have a criminal record) prior to obtaining employment, which, in the view of the complainants, is an attempt to punish those having participated in the demonstrations.
    • (c) The Committee requests the Government to take promptly the necessary measures to carry out an investigation without delay regarding the allegations concerning the dismissal of over 100 workers belonging to SUNTRACS owing to their refusal to join another trade union allegedly established by the enterprise ODEBRECHT and to inform the Committee of the results of this investigation and, given that the allegations date back to 2007, to report on the current state of labour relations between the enterprises concerned and the trade unions in the construction sector.
    • (d) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The Government’s new observations

B. The Government’s new observations
  1. 905. In its communications dated 11 and 21 November 2010, and 16 February and 15 October 2011, the Government states that it recognizes and values the principle of freedom of association as a fundamental right of labour relations and the important role that it plays in democratic consolidation, governance and social peace. In this regard, the Government has acted in a manner befitting the rule of law, for which reason it considers the actions impugned by the complainants to be unfounded.
  2. 906. The Government states that there are police intelligence reports that reveal the existence of an internal worker-union dispute, the main aim of which appeared to be the attainment of hegemony over collective agreements of large-scale building projects and their economic importance in terms of the income that the total amount of each worker’s union dues represents. The participants in the inter-union dispute are the National Union of Workers of the Construction Industries (SUNTRACS) and the National Construction and Drilling Industry Workers’ Union of Panama (SINTICOPP).
  3. 907. SUNTRACS claims to be a consolidated and hegemonic association that strives to defend workers’ rights. It states that its rivalry with SINTICOPP can be attributed to the fact that the latter is being financed by employers, for which reason it is branded a “right-wing union”. On the other hand, SINTICOPP claims that SUNTRACS promotes violence and the imposition of the will of trade union officials, who always promote radical positions influenced by extremist left-wing ideological tendencies, while, in contrast, SINTICOPP promotes the well-being of workers through dialogue and bargaining.
  4. 908. Both trade unions are affiliated with confederations among which there is an amount of tension and rivalry. SUNTRACS is affiliated with the Independent National Confederation of Labour Union Unity (CONUSI) while SINTICOPP is affiliated with the National Confederation of Organized Workers (CONATO), confederations which, in the recent past, had serious disagreements involving acts of violence that resulted in public disorder. The Government adds that the information from police intelligence succeeds in linking the ideological sympathizers of SUNTRACS to the organization called the National Front for Economic and Social Rights (FRENADESO), which would appear to be the emerging platform for a future political party composed of workers with a political ideology based on the theory of social class conflict. The affiliation of the trade unions SUNTRACS and SINTICOPP with different rival worker confederations (CONUSI and CONATO respectively), added to other political and social issues championed by FRENADESO, meant that they could become a potential breeding ground for activities making use of force, which could endanger people’s physical integrity.
  5. 909. As a result of the police intelligence activities, which entailed obtaining, collating, streamlining and analysing specific information pertaining to the actions, threats, risks and disputes ongoing at the inter-union level, possible situations were identified that could adversely affect citizen security and the country’s social collective, and that could lead to the decision to issue an alert as a cautionary and preventive measure.
  6. 910. Below, the Government provides information from police sources, the Public Prosecution Service and the judicial authority relating to a significant number of acts of violence between SUNTRACS and SINTICOPP, which, according to the case, led to injuries or deaths caused by knives, blunt weapons and firearms wielded by either trade union or by the police who were set upon by the workers. According to some reports, the trade union members involved have tried to attribute their crimes to the police. The information provided by the Government contains, among other things, the details of the death of Mr Luiyi Argüelles and Mr Al Iromi Smith, the injuries suffered by Mr David Niño and the detention of Mr Raimundo Garcés (in the complaint, Reinaldo) and Mr Donaldo Pinilla.
  7. 911. As regards the investigation of the murder of Mr Luiyi Antonio Argüelles and Mr Al Iromi Smith, the Government states that, regarding the murder of Mr Argüelles (Case No. 28042), the Second High Court of Justice of the Province of Panama issued a ruling on 24 September 2010 acquitting two police officers accused of the murder of that SUNTRACS worker (information provided by the Supreme Court of Justice in a communication dated 1 November 2010). As regards the murder of Mr Al Iromi Smith (Case No. 28675), the Government states that the ruling on this case (which connects a police officer) is being appealed in the Second Chamber of the Supreme Court of Justice. Following this process, any developments in that regard will be communicated once the judicial body updates the relevant information. The Government states that appropriate action has been taken to move these cases forward.
  8. 912. As regards the injured parties, Mr David Niño, a member of the SUNTRACS executive committee, and the secretary for finances of CONUSI, Mr Eustaquio Méndez, the Government states that, on 13 August 2007, on the premises of the Panamá-Colón motorway construction project, which belongs to the construction company ODEBRECHT located in the community of Chilibre, which is a district and province of Panama, the metropolitan police based in the Metro Norte jurisdiction state that, on that date, a group of people, presumably workers affiliated with SUNTRACS, arrived unannounced on the premises of the project carrying banners and flags with flagpoles made of long, blunt cylindrical objects intent on disrupting the daily tasks of the workers. According to the Government, the SUNTRACS workers were repelled by the group of workers at the construction premises, who were presumably affiliated with SINTICOPP. The aggression with which they confronted each other reached the point of physical violence and the use of blunt weapons and knives, which resulted in Mr Ronald Adamson and Mr David Niño suffering injuries including trauma and cuts, both men, who were members of SUNTRACS, were transferred to health-care facilities to receive the necessary medical attention. The Government adds that the members of the Crowd Control Unit arrived at the scene to calm the members of both trade unions, SUNTRACS and SINTICOPP, who continued to call each other communists and supporters of Chávez in the case of SINTICOPP, and right-wing sell-outs in the case of SUNTRACS.
  9. 913. As regards the injured party, Mr Eustaquio Méndez, the Government states that, on 12 February 2008, in various premises where construction projects for buildings in the city of Colón were being carried out, trade union members affiliated with SUNTRACS were responsible for committing acts of public disorder, notably that which took place in the area known as Los Cuatro Altos, where, from the top of the buildings, the trade union members used firearms against the public order officers belonging to the Crowd Control Unit, which forced them to respond by using the arms appropriate for this type of situation (tear gas, rubber bullets and shots). This confrontation led to the injury of a number of workers, among them Mr Eustaquio Méndez, who were transferred to the emergency department of the Dr Hugo Spadafora General Hospital of the Social Insurance Fund in the area of Coco Solo, in the town of Cristóbal, in the district and province of Colón. Once the workers had been transferred to the hospital, the Lince police units were ordered via radio to go to the hospital to confirm what had happened and the admission of the injured thereto. Another incident took place on the hospital premises involving the two Lince police units, the SUNTRACS trade union officials and the members affiliated with the National Association of Administrative Civil Servants of the Social Insurance Fund (ANFACSS). An incident was reported in which a group of approximately 40 to 50 people, who were standing opposite the hospital premises and which included three SUNTRACS members in addition to natural persons, civil servants of the Social Insurance Fund (CSS) health institution, who were presumably militants and/or sympathizers of a trade union group known as ANFACSS and who impeded the police officers from entering the hospital by encircling them. The three SUNTRACS members, Mr Alfonso Cunningham, Mr Al Iromi Smith and Mr Eustaquio Méndez proceeded to use such extreme physical violence against the motorcycle of the two police officers and the police officers themselves that one of the officers was forced to fire his regulation weapon, shooting one of the people involved in the attack, Mr Al Iromi Smith.
  10. 914. As regards the detention of Mr Raymundo Garcés, SUNTRACS press and communications secretary, the Government states that, on 16 August 2007, a group of approximately 50 people, presumably members of SUNTRACS, arrived on the premises of a construction project for a hotel complex belonging to the company MAQTEC, by sea, from Isla San Miguel intent on arriving unannounced onto the project premises in Isla Viveros to halt the work being carried out by the workers, presumably affiliated with SINTICOPP.
  11. 915. As regards this incident, the Government states that, prior to its occurrence and on the occasion of the re-examination of the events that took place between the two rival trade union groups, added to the mutual threats and warnings that only served to exacerbate the inter-union dispute, both factions mutually denounced the recruitment of persons with no part in construction activities, including foreigners, to introduce hostile forces into movements aimed at defending the interests of trade unions, claiming that they would take any measures and use any weapons necessary to defend themselves.
  12. 916. The Government adds that this prompted the National Police, given the prior alert and the hostile activities that had resulted in the death of Mr Osvaldo Lorenzo (which was examined during the previous examination of the case), to implement a plan of operations in the construction project of the company MAQTEC, located on Isla Viveros in the Archipiélago de las Perlas in the Pacific Ocean, in the district of Balboa, in the Province of Panama, in view of the fact that the same type of conflict existed between the same trade unions (SUNTRACS and SINTICOPP) in that project, adducing the same arguments as in the Panama-Colón motorway project, and of the fact that they accused each other of using persons with no part in the labour movements for the purposes of intimidation and assassination.
  13. 917. The National Police mobilized a contingent composed of Crowd Control Units (public order) and Special Forces (threat of assassination), located on Isla Viveros on the premises of the construction project of the company MAQTEC.
  14. 918. Early on the morning of 16 August 2007, the group of police officers guarding the control dock of the National Police on Isla Viveros were informed that the SUNTRACS workers were on their way to the island, which prompted the units to respond. This prompted a group of police officers to be swiftly and urgently deployed to intercept them as they made their way to the project site.
  15. 919. When they were approximately 1,000 metres away from the demonstrators, they ordered them to halt their advance but the demonstrators paid them no heed. Instead, they hurled insults and threats at the project workers while making known their intention to stop their work with immediate effect, for which reason the police officers again ordered the demonstrators to stop their advance and to vacate the area. The demonstrators continued their advance until they were barely 200 metres away from the construction site. The police squadrons took up their positions while the workers continued their advance, hurling insults and threats, carrying banners, stones, sticks, machetes, axes, knives, shovels and spades, objects which were in plain sight and which could be seen through the binoculars of the special units of the National Police from 200 metres away, between the demonstrators and the police.
  16. 920. The National Police once again ordered them to halt their advance. However, they only became more aggressive and threatening, for which reason, when there was approximately 100 metres between the demonstrators and the police, gases were released by mechanical propulsion devices and by hand. Nevertheless, the demonstrators started to rush towards the project, for which reason the use of gas and shotguns to fire warning rounds intensified.
  17. 921. Subsequently, there was only a distance of 25–35 metres between the demonstrators and the National Police, for which reason the use of gas and shotguns to fire warning rounds intensified, which expedited the demonstrators’ withdrawal from the area and allowed the police to apprehend the trade union official, Mr Raymundo Ernesto Garcés Castillo, personal identification No. 8-529-1022, who had been participating in the demonstrations with a video camera, two mobile telephones and a balaclava on his head as a hat before the police units transferred him via boat to Isla San Miguel on the orders of magistrate Secundino Henríquez, the competent authority of the area.
  18. 922. As regards the attacks involving firearms against Mr Donaldo Pinilla and Mr Félix de León, the Government states that they took part in the aforementioned events that took place on 12 February 2008 involving public disorder in various locations where construction projects for buildings in the city of Colón were being carried out, for which members affiliated with SUNTRACS were responsible and during which they did not demonstrate peacefully as they state in their complaint. In a number of cases, these workers fought against the police units from the top of buildings with firearms, which forced the police to respond by using the arms appropriate for public disorder, such as tear gas, rubber bullets and shots. These confrontations led Mr Pinilla and Mr De León to suffer injuries and Mr Pinilla to be transferred to the emergency department at Dr Hugo Spadafora General Hospital.
  19. 923. As regards the events that took place on 16 March 2010, during which the complainants claim that over 200 construction workers were arrested, the Government states that the Director of the National Police, in his statement of 22 October 2010, provides a detailed report of the events that took place, which includes the following:
    • On 16 March 2010, television channels and National Police surveillance cameras warned that the vicinity of Bella Vista, Calle 50, Avenida Balboa y Cinta Costera, was the scene of protests by construction workers carrying flags and insignias alluding to the National Union of Workers of the Construction and Related Industries (SUNTRACS) and blocking the free movement of vehicles and commuters in that area by burning tyres and throwing stones, bags of cement, breeze blocks and other blunt weapons from the unfinished buildings, not only at private and State property but, more seriously, this constituted an attack on the physical integrity of the commuters in that area. These protests had been ongoing since before 16 March 2010 and had created an atmosphere of insecurity in the capital, which, on 16 March, finally erupted into violence, the closure of lanes on certain streets, the smashing of shop windows, damage to private and National Police vehicles and the injury of two police officers: Second Sergeant 19699, Aquilino Cruz, and Officer 111997, Reynaldo Rodríguez. These acts of violence, which exceeded the right of workers to speak out against any labour-related irregularity, became classed as criminal acts in accordance with our criminal legislation, prompting the intervention of the Crowd Control Unit and the Support Team of the National Police in order to re-establish public order, peace and security, and to protect the life, honour and property of all those involved.
  20. 924. Section 7 of the Police Act, Act No. 18 of 3 June 1997 specifically sets out the National Police’s functions as: to safeguard the life, honour, property and other rights and freedoms of those who come under the jurisdiction of the State; to preserve internal public order; to preserve the peace and security of inhabitants, as well as to carry out any missions assigned to it by the President of the Republic, in accordance with the Constitution and the law; which it shall complete, according to the provisions of paragraphs 2, 3 and 5 of the aforementioned law, by assisting and protecting persons and their property, maintaining and re-establishing public order, preventing and suppressing criminal acts and offences, as well as by pursuing and capturing law-breakers.
  21. 925. In the light of these events, it was necessary to take action against the law-breakers, in strict accordance with the Constitution and law, contrary to the claims of the complainants. The National Police, despite the number of protesters apprehended, brought them before the competent authority, namely the Magistrate of Curundú, in a timely fashion on 17 March 2010. Furthermore, criminal charges for those acts were filed with the Complaints Reception Centre on the same date. It should be noted that a number of the participants in the protests were in possession of a slip stating that they had been transported or captured.
  22. 926. The Government states that it is not opposed to peaceful protests because it is an established right but the SUNTRACS protests that day were in no way peaceful. In this context, the National Police intervened with control measures in order to re-establish order, which led it to apprehend 223 protesters. It should be noted that, of the persons apprehended in the riots orchestrated by members of SUNTRACS, four were found to have ongoing cases before the competent authority (criminal courts and official municipal representative).
  23. 927. In addition to the aforementioned acts, the Magistrate of the Bella Vista Police, Mr Eduardo Palacios, in a communication dated 22 October 2010, stated that, on 19 March 2010, a total of 44 construction workers were referred to his office and that, through a resolution issued on 19 March 2010, they were fined a sum of 15 balboas for disrupting public order. He also pointed out that the resolution in question was duly signed by the workers’ legal representative.
  24. 928. The Government adds that, as a consequence of the acts of violence and disruption of public order, the National Police filed criminal charges against the demonstrators (SUNTRACS workers) on 16 March 2010, who were apprehended. The charges were filed for crimes against the judicial administration and the National Police and were also filed with the Assistant Prosecutor of the Republic of Panama of the Public Prosecution Service in order for the pertinent investigations to be carried out and for those involved to be sanctioned for violating the criminal legislation in force.
  25. 929. In this case, the Deputy Attorney-General stated in Communication No. DPGN-175-10 of 26 October 2010, that the aforementioned charges were indeed filed with the Complaints Reception Centre of the Public Prosecution Service for the acts committed by SUNTRACS members during the demonstrations on Avenida Balboa, Calle 50, Cinta Costera and Calle 42 Bella Vista. The Communication states the following:
    • – the charges were filed on 16 March 2010 by the legal adviser of the National Police, explaining that during the five days preceding the filing of the charges, SUNTRACS workers had been participating in demonstrations;
    • – the charges state that, on the day of the incident, video surveillance cameras showed the demonstrations turning into riots and disruption of public order, during which the demonstrators burned tyres on the public highway and threw stones and blunt weapons. These acts prompted the intervention of the Crowd Control Unit and the Support Team of the National Police to re-establish public order, peace and security, and to protect the life and property of commuters and residents where the events took place;
    • – the charges explain that the demonstrators reacted in an inappropriate manner against the National Police, charging at uniformed officers, throwing various blunt weapons at them, obstructing the functions set out in the Police Act in order to re-establish public order, and thereby perpetrating the crime specified in section 356 of the Criminal Code. As a result of the aforementioned actions, which clearly disrupted public order, the National Police apprehended those involved and brought them before the administrative authorities in order for their legal situation to be assessed and resolved. The charges filed by the National Police initiated the relevant procedure, which included carrying out and incorporating into the summary all the steps that would clarify the events and attribute the crime to the perpetrators. Once the investigations mentioned in the summary had been completed and their outcome analysed, this case was referred to the First Anti-Corruption Prosecutor’s Office at the Bella Vista Magistrate’s Office in order for the appropriate judicial action to be taken;
    • – similarly, in addition to the aforementioned summary, the Public Prosecution Service also launched investigations based on charges filed by private citizens and by the municipality of Panama in view of the damage caused as a result of the demonstrations and aforementioned acts. However, in none of the cases could any one person be identified as the perpetrator of or a participant in the acts, given the tumultuous manner in which they took place;
    • – this confirms that the members of SUNTRACS were only sanctioned by the Magistrate by means of a fine for having disrupted public order. The investigations following that imposition are the result of charges filed by the National Police, the institution affected by the events that took place on the date mentioned. This disproves the facts established by SUNTRACS in its complaint to the ILO in which it states that they were being sanctioned twice on the same grounds.
  26. 930. As regards SUNTRACS’s allegations that this constituted a violation of human rights, constitutional guarantees and the right to freedom of association, the Government considers these rights and guarantees not to have been violated since the trade union acted contrary to the provisions governing the right to demonstrate and the right to organize, which resulted in acts of violence against the National Police, affected third parties and private property and disrupted free movement and public order in general. Consequently, this led to arrests in flagrante delicto.
  27. 931. As regards the allegations that those arrested were not brought before the competent authority, these are false, since they were taken to the Ancón police station. However, given the number of demonstrators apprehended, which exceeded 200, and that they were too numerous to house, they were transferred to La Joya and La Joyita penitentiary centres while the investigations were being carried out and they were being referred to the competent authorities. Similarly, at no time were they incarcerated with criminals serving sentences in those penitentiary centres, rather they were placed in adjacent areas (yards and open areas) inside the centres pending the sanctions of the Magistrate to whom they had been referred. They remained in custody while the sanction was being determined by the relevant authority and were assigned a legal representative, who was responsible for paying the fines imposed upon them.
  28. 932. From the above, it is clear that many of the complaints made by SUNTRACS are in fact unfounded, in view of the acts that were both violent and inconsistent with the exercise of the right to demonstrate freely and the right to freedom of association.
  29. 933. The Government states that is respects all provisions of Convention No. 87 and seeks to comply with its requirements in order to effectively promote freedom of association in Panama, provided that this right is exercised appropriately and without breaking the law.
  30. 934. As regards the allegation that the Government submitted a bill establishing that job applicants must provide their “police records” (proving that they do not have a criminal record), the Government states that the bill was approved and ratified by Act No. 14 of 13 April 2010, which prescribes measures concerning the Personal Record Certificate, amends the Electoral Code and adds a section to the Criminal Code (which the Government has attached as an appendix to its reply). Under this law, access to information held in the Archives and Personal Information Office shall be granted to the competent authorities, the holder of the information and to natural or legal persons duly authorized by the holder for labour purposes. Contrary to the opinion of the complainants, this law does not seek to prevent demonstrations or curtail the right to organize, rather it seeks to grant access to personal records through certification by the Legal Investigation Directorate, which will contain only information held in the Archives and Personal Information Office related to prison sentences handed down for crimes recorded over the decade preceding the issuing of the certificate.
  31. 935. As regards the complainants’ allegations concerning the dismissal of over 100 workers affiliated to SUNTRACS owing to their refusal to join another trade union allegedly established by the enterprise ODEBRECHT, the Government states that, according to the company’s reply contained in a communication dated 18 September 2009, which was allegedly sent to the ILO in 2009 in a timely fashion, it may be established that sometime on the morning of 14 August 2007, a considerable group of SUNTRACS members (according to the complaint, more than 100) arrived in hired buses, on the premises of the company ODEBRECHT in the camping resort of Chilibre in order to demonstrate against the company workers who were members of SINTICOPP, alleging that SINTICOPP belonged to the company and had been set up by it in order to sign a collective agreement. Owing to these problems and the confrontations between the SUNTRACS workers and the SINTICOPP workers, a member of SUNTRACS died, which led the Public Prosecution Service to carry out investigations condemning those involved and fining them by means of a judicial ruling. The dismissals had nothing to do with the company ODEBRECHT because the members of SUNTRACS did not work for the company and, when the confrontation on the premises of ODEBRECHT occurred, they should not have been demonstrating in that place.
  32. 936. In reply to a request for information made by the Committee, the Government states that, currently, the company ODEBRECHT enjoys good relations with both SINTICOPP and SUNTRACS, given that for the projects they have been contracted to work on, the company signed collective agreements with both trade unions, which took place without incident, as did the signing of the collective agreements for the irrigation project Remigio Rojas in Chiriquí and the Madden-Colón motorway with SINTICOPP, and the collective agreements for the Cinta Costera project and the Dos Mares hydroelectric project with SUNTRACS.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 937. The Committee takes note of the Government’s observations to the effect that it respects Convention No. 87 and points out that the context for the majority of the allegations were acts of violence between rival groups of trade union members in the construction sector between 2007 and 2008 (struggling to gain access to the trade union dues in the lucrative construction sector) and violent demonstrations in 2010, and that the conduct of the police fell within the current judicial framework aimed at safeguarding citizen security and preventing public disorder and damage to property (as can be deduced from the police reports that the Government has attached as an appendix). The Committee takes note of the Government’s description of the developments in the labour relations in the sector since that time, and that both trade unions have concluded collective agreements in the sector.
  2. 938. The Committee deeply deplores the murders, injuries and other acts of violence against trade union members and, in certain cases, against police officers, and underlines the extreme seriousness of these events. The Committee recalls that freedom of association can only be exercised if the right to life is fully respected and that it is incompatible with a climate of violence, threats, fear or pressure, whether these emanate from State agents or representatives of professional organizations.
  3. 939. The Committee recalls that it is the responsibility of the Government to guarantee the right to life and the physical integrity of all citizens and to prevent situations in which this right is threatened, and observes that the measures taken by the Government (resorting to intelligence services, the intervention of specialized security units “Crowd Control Unit”) failed to prevent loss of life or injury. The Committee underlines that trade union organizations should carry out their activities in a peaceful manner and that the intervention of the police in such activities should only occur in case of serious danger to public order and to fundamental human rights and should always be proportionate.
  4. 940. The Committee requests the Government to take the measures necessary to guarantee the peaceful exercise of trade union activities by identifying the perpetrators of the crimes and by calling for a tripartite dialogue with workers’ and employers’ organizations in the construction sector in order to examine the problems mentioned and to take all measures necessary to avoid a repeat of the acts of violence.
  5. 941. The Committee observes that the version of events presented by the complainants during the previous examination of the case and that presented by the Government concerning the acts of violence do not match (the complainants attribute the acts of violence to State agents and the murders to the company or a trade union controlled by the company, which the company denies) and requests the Government to send the rulings issued and any future rulings so that it can take a decision based on all of the evidence, identify those responsible for any abuse and ensure that the facts have been clarified and that the guilty parties have been severely punished. The Committee requests the Government to keep it updated on these requests for information.
    Recommendation (a)
  1. 942. The Committee notes that the judicial authority, through a ruling issued on 24 September 2010, acquitted the two police officers accused of murdering the worker Mr Luiyi Argüelles, who was a member of SUNTRACS, and that the ruling concerning the murder of Mr Al Iromi Smith (which convicts a police officer) is currently at the stage of appeal before the Second Chamber of the Supreme Court of Justice. The Committee requests the Government to communicate the rulings issued in both cases.
    Recommendation (b), (1)
  1. 943. The Committee takes note of the injuries suffered by the trade union officials Mr David Niño (SUNTRACS) and Mr Eustaquio Méndez (CONUSI) on 14 August 2007. The Committee notes the Government’s assertion that, in the first case, it is a question of a violent confrontation between groups belonging to SINTICOPP and SUNTRACS and, in the second, the injuries were the result of weapons being fired from the top of a number of buildings by members of SUNTRACS, which forced the public order officers to respond by using tear gas, rubber bullets and shots. The Committee requests the Government to communicate the rulings issued in relation to these injuries.
    Recommendation (b), (2)
  1. 944. As regards the detention of the SUNTRACS leader, Mr Raymundo Garcés, on 16 August 2007, the Committee takes note of the Government’s statement to the effect that he was arrested in the context of a violent demonstration by a group belonging to SUNTRACS, which was carrying knives and blunt weapons and which refused to obey the police’s order to halt their advance. Subsequently, he was brought before the competent authority of the area. The Committee requests the Government to indicate whether judicial proceedings have been initiated against this official and, if this is the case, to communicate the ruling issued.
    Recommendation (b), (3)
  1. 945. As regards the alleged attacks on workers Messrs Donaldo Pinilla and Félix de León by police officers using firearms on 12 February 2008 while they were taking part in a peaceful demonstration as part of a national strike, and the arrest of and imposition of fines on over 500 workers who were protesting as a result of the death of the trade union official Mr Al Iromi Smith, the Committee takes note of the Government’s statements to the effect that (1) Mr Donaldo Pinilla and Mr Félix de León took part in acts of public disorder at various construction projects for buildings in the city of Colón carried out by SUNTRACS members; (2) in a number of cases, the workers fought the police units with firearms from the tops of buildings, which caused the police to use tear gas, rubber bullets and shots, resulting in the injury of Mr Donaldo Pinilla and Mr Félix de León during the confrontations. The Committee requests the Government to inform it whether these workers filed a complaint because of their injuries. The Committee once again requests the Government to send its observations on the alleged arrest and imposition of fines on more than 500 workers in the context of the demonstration of 12 February 2008.
    Recommendation (b), (4) and (5)
  1. 946. As regards the alleged violent repression and arrest by the police of 224 workers (including 47 members of SUNTRACS) participating in a demonstration on 16 March 2010 and the imposition of fines on the abovementioned workers, the Committee takes note of the Government’s statements to the effect that (1) the protests were not peaceful, rather they descended into criminal activity and acts of violence (the burning of tyres and throwing of stones, bags of cement and other blunt weapons from unfinished buildings), which constituted an attack on the physical integrity of the commuters in that area and on private property, obstructed the free movement of vehicles and commuters, closed lanes, caused damage to police and private vehicles and injury to two police officers; (2) acting within the relevant judicial framework, the police proceeded to re-establish public order, peace and security; (3) the police arrested the 223 law-breakers on 17 March 2010 and brought them before the competent authority. Furthermore, charges were filed for crimes against the judicial administration and the National Police, which were referred to the Public Prosecution Service (since the police officers had been attacked with a range of blunt weapons), which, in turn, launched investigations based on charges filed by private citizens and by the Municipality of Panama in view of the damage caused to property; however, in none of the cases could any one person be identified as the perpetrator or a participant in the acts, given the tumultuous manner in which they took place; those arrested were assigned a legal representative, who was responsible for paying the individual fines imposed upon them for having disrupted public order; they were only held in custody for the time it took the competent authority to determine the appropriate imposition (fine); (4) on 19 March 2010, 44 workers from the construction project, who had each been fined 15 balboas for having disrupted public order in accordance with a resolution signed by their legal representative, were brought before the competent authority of Bella Vista. The Committee observes that the number of those arrested and fined differs according to the complainants and according to the Government, notes that the workers in question were released and requests the Government to indicate whether the workers arrested and fined have initiated judicial proceedings and, if this is the case, to communicate their outcome. In general, the Committee recalls that although the right of holding trade union meetings is an essential aspect of trade union rights, the organizations concerned must observe the general provisions relating to public meetings, which are applicable to all. This principle is contained in Article 8 of Convention No. 87, which provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land [see Digest of the decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 143].
    Recommendation (b), (6)
  1. 947. As regards the submission by the Government of a bill establishing that job applicants must provide their “police records” (proving that they do not have a criminal record) prior to obtaining employment, which, in the view of the complainants, is an attempt to punish those having participated in the demonstrations, the Committee takes note of the Government’s statement to the effect that the bill was approved by Act No. 14 of 13 April 2010, which prescribes measures concerning the Personal Record Certificate, amends the Electoral Code and adds a section to the Criminal Code; the law does not seek to prevent demonstrations or curtail the right to organize, rather it seeks to provide information related to prison sentences handed down for crimes recorded over the last decade. The Committee observes that recording criminal records for labour-related purposes is not covered by the principles of freedom of association. However, given the importance that the complainants attach to this issue and their reservations about this law, the Committee invites the Government to submit this matter to a tripartite dialogue to ensure that criminal records acquired because of peaceful trade union activities do not have a bearing on obtaining employment.
    Recommendation (c)
  1. 948. Lastly, as regards the investigation requested by the Committee regarding the allegations concerning the dismissal of over 100 workers belonging to SUNTRACS owing to their refusal to join another trade union allegedly established by the enterprise ODEBRECHT, the Committee notes that the Government sends information from the company indicating that, on 14 August 2007, a considerable group of SUNTRACS members (more than 100) arrived in hired buses on the premises of the company to demonstrate against the company workers who were members of SINTICOPP; owing to these problems, a member of SUNTRACS died, which led to a punishment being handed down to those involved by means of a judicial ruling; the company adds that the members of SUNTRACS did not work for the company. The Committee takes note of the company’s statement to the effect that, currently, it enjoys good relations with the trade unions and has concluded collective agreements with both of them. The Committee requests the Government to indicate whether judicial proceedings have been initiated by the workers concerned, and, if so, to indicate their outcome.

The Committee’s recommendations

The Committee’s recommendations
  1. 949. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee once again deplores the murders, injuries and other acts of violence between 2007 and 2010 against trade union members and, in certain cases, against police officers. The Committee requests the Government to send the rulings issued and any future rulings in order to ensure that the facts have been clarified and that the guilty parties have been severely punished. The Committee requests the Government to convoke a tripartite dialogue with workers’ and employers’ organizations in the construction sector in order to examine the problems mentioned and to take all measures necessary to avoid a repeat of the acts of violence. The Committee requests the Government to keep it informed in this regard.
    • (b) The Committee requests the Government to communicate: (1) the rulings issued in relation to the alleged murder of the trade union officials Mr Luiyi Argüelles and Mr Al Iromi Smith; (2) the rulings in relation to the injuries suffered by the trade union officials Mr David Niño and Mr Eustaquio Méndez on 14 August 2007.
    • (c) The Committee requests the Government to indicate whether any judicial proceedings have been initiated against the trade union leader Mr Raymundo Garcés and, if this is the case, to communicate the ruling.
    • (d) The Committee requests the Government to indicate whether the workers Mr Donaldo Pinilla and Mr Félix de León have filed criminal charges.
    • (e) The Committee once again requests the Government to send its observations on the alleged arrest and imposition of fines on more than 500 workers in the context of the demonstration of 12 February 2008.
    • (f) The Committee requests the Government to indicate whether the workers who were arrested and fined for the events that took place during the demonstration of 10 March 2010 (all of whom were released) initiated judicial proceedings and, if this is the case, to communicate the outcome.
    • (g) The Committee invites the Government to submit the law concerning the use of criminal records for labour-related purposes (sentences handed down for crimes) to a tripartite dialogue, particularly to ensure that criminal records acquired because of peaceful trade union activities do not have a bearing on obtaining employment.
    • (h) The committee requests the Government to indicate whether judicial proceedings have been initiated by the workers concerned, and, if so, to indicate their outcome.
    • (i) The Committee calls the Governing Body’s special attention to the extreme seriousness and urgency of the issues in this case.
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