Informe provisional - Informe núm. 239, Junio 1985

Caso núm. 1190 (Perú) - Fecha de presentación de la queja:: 23-MAR-83 - Cerrado

1. 226. The Committee already examined this case at its May 1984 meeting when it presented an interim report to the Governing Body. (See paras. 500 to 520 of the 234th Report of the Committee approved by the Governing Body at its 226th session (May-June 1984).) At its February 1985 meeting, the Committee, noting that the Government, despite a number of appeals, had still not sent the information which had been requested of it, addressed an urgent appeal to it to send its information as a matter of urgency. (See 238th Report of the Committee, para. 20.) . The Government sent certain information in a communication received on 25 February 1985.
2. 227. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) , and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. A. The complainants' allegations

• I. Allegations relating to violent deaths and arrests during a national strike held in March 1983
  228. 228 The present case referred first of all to a national strike called by the Democratic Trade Union Front on 10 March 1983 for wage increases, a halt to the rise in prices of basic essentials, a rescheduling of the foreign debt with regard to the International Monetary Fund and the review of petroleum contracts. This strike is alleged to have resulted in the violent death of four persons, whom the complainants mentioned by name, and by the arrest of about 200 persons, including three officials of the Peruvian General Confederation of Workers (CGTP), whose names were mentioned by the complainants.
  229. 229 The Government did not deny that a national strike took place but said that it began to take a violent turn when the strikers stoned two transport units of the forces of order, obliging members of the Republican Guard to use their firearms to repulse the attack. This resulted in a number of dead and wounded, and the Government indicated that, in order to cope with the situation, it had been obliged to suspend the constitutional guarantees and take the necessary security measures. According to the Government, following an inquiry, 84 persons were arrested on charges of offences against life and personal safety and attacks on public property.
  230. 230 At its May 1984 meeting the Committee on Freedom of Association, while deploring the seriousness of the events, requested the Government to inform it of the outcome of the judicial inquiries made by the ordinary courts into the deaths and injuries that had taken place. It also requested the Government to inform it of the outcome of the judicial inquiries relating to the 84 persons who were still under arrest and information on the situation of the three CGTP leaders who had been mentioned by name: Jorge Rabines Bartra, Hernán Espinoza Segovia and Juan Calle Mendoza.
  231. 231 In its communication of 25 February 1985, the Government confines itself to repeating its earlier statements regarding the events which took place in connection with the national strike of 10 March 1983, which had led it to suspend constitutional guarantees and had caused the Republican Guard to take security measures. The Government adds that it has asked the Ministry of the Interior and the Public Prosecutor for information on the events which occurred on the occasion of the national strike, and that it is awaiting a reply.
  232. 232 The Committee recalls that in the present case the Government acknowledges that 84 persons were arrested following the violent events of 10 March 1983 but that it has supplied no information on the situation of the three CGTP leaders whom the complainants mentioned by name and who are said to have been arrested following this strike. In general, the Committee, while deploring the circumstances in which the national strike of 10 March 1983 took place, recalls the importance of negotiation and agreement with the different groups of society in order to avoid clashes and to ensure the development of good industrial relations. As regards this aspect of the case the Committee again requests the Government to supply detailed information on the situation of the 84 persons arrested on the occasion of the national strike of 10 March 1983, and in particular to indicate whether they have been tried and sentenced or whether they have been released. As regards the three CGTP leaders whom the complainants mentioned by name, who are also alleged to have been imprisoned as a result of the strike of 10 March 1983, the Committee urges the Government to indicate whether these persons were arrested, whether they are at present in detention, or whether they have been released. On the latter point, in particular, the Committee finds it unacceptable that a specific allegation referring to the imprisonment of three trade union leaders who have been mentioned by name, which is said to have taken place over two years ago, should remain without comment from the Government.
• II. Allegations relating to restrictions on the right to strike
  233. 233 The complainants also alleged that Presidential Decree No. 0010-83-PCM of 25 February 1983 on the regulation of work stoppages in the civil service, section 1 of which provides that the lawfulness or otherwise of work stoppages (in the public services) shall be determined by the heads of public institutions, constitutes a violation of freedom of association of the persons concerned, since the text empowers the employer to play "judge and party to the dispute" inasmuch as he is empowered to declare a strike illegal. The complainants also mentioned that a Bill submitted to Parliament on 30 May 1983 aimed at punishing with imprisonment strikes causing damage to property or traffic stoppages, the taking of civil servants as hostages during strikes, and hunger strikes.
  234. 234 In its reply of 25 February 1985, the Government indicates that the Office of the President of the Council of Ministers, in a Note No. 379-84 PCM/AJ, considered that Presidential Decree No. 0010-83-PCM "does not restrict the right to strike, since its purpose is merely to determine the bodies within the administrative structure which are competent to declare a strike legal or illegal and an appeal may be lodged with the National Civil Service Council against any such declaration". The Government adds that the right to strike is a constitutional right of workers which may be lawfully exercised and, in view of the fact that the legislation in question was not promulgated, this constitutional right may not be deemed subject to restriction. The Government also states that the Committee's observations on the strike Bill have been conveyed to the Chamber of Deputies.
  235. 235 The Committee has examined Presidential Decree No. 0010-83-PCM of 25 February 1983, which specifies the administrative authorities competent to pronounce on the lawfulness of strikes in the civil service. In this connection the Committee notes with satisfaction, like the Committee of Experts on the Application of Conventions and Recommendations, that Peru has granted the right to strike to civil servants in application of Article 61 of the Constitution and section 24 (m) of the Legislative Decree on administrative careers. The Committee observes, however, that under section 1 of the Presidential Decree criticised by the complainants, the heads of public institutions are empowered to declare unlawful collective work stoppages that are not in conformity with the provisions of the Presidential Decrees on the right to organise of public servants. While noting the information supplied by the Government concerning the right of appeal to the National Civil Service Council, the Committee considers that the Presidential Decree criticised by the complainants, which grants the heads of public institutions the right to pronounce on the illegality of strikes of civil servants, is contrary to the principles of freedom of association. The unlawful nature of a strike should be determined by a judicial and not by an administrative authority, and must not be declared by the employer, who would thus be playing the role of judge and party to the dispute. The Committee therefore invites the Government to amend its legislation so as to guarantee that the unlawful nature of a strike is determined by a judicial and not an administrative authority, and wishes to draw the attention of the Committee of Experts to this aspect of the case.
  236. 236 As regards a Bill of May 1983 whose purpose, according to the complainants, was to punish strikers causing damage to property or the taking of civil servants as hostages during strikes, the Committee observes that the Act on general strikes has not yet been adopted.
• III. Allegations relating to the withdrawal of legal personality from several trade union organisations.
  237. 237 In its communication of 4 June 1983 the CGTP alleged that legal personality had been withdrawn from the National Federation of Film Workers, the Union of Workers at FINISTERRE SA and the TTX Workers' Union.
  238. 238 The Government has supplied no information on this aspect of the case. However, the complainants, who were given the opportunity of supplying additional information on this allegation, have sent no information on these withdrawals indicating when they took place or in what circumstances. In these circumstances the Committee considers that these allegations are too vague to warrant further examination.
• IV. Allegations relating to the arrest of two leaders of the CGT and the occupation of the premises of a trade union
  239. 239 The CGTP also alleged that Jesús Ramírez Alejo, General Secretary of the CGTP for the region of Callao, had been arrested on 7 June 1983, that the premises of the Federation of Peruvian Crew Members in Callao had been occupied and that Gregorio Bazán Tello, Vice-President of the CGTP, had been arrested.
  240. 240 The Government has sent no information on these aspects of the case, and the complainant has not given details of the alleged reasons for the arrest of the above-mentioned CGTP leaders or on the occupation of the trade union premises in question.
  241. 241 While regretting the vague nature of the allegations, the Committee can only recall in general that arrested trade unionists, like other persons, are entitled to the fair administration of justice and that persons who have been arrested for the lawful exercise of trade union activities must immediately be released. The Committee also recalls that trade union premises should be inviolable and that it should not be possible to enter them without a court warrant.

The Committee's recommendations

1. 242. In these circumstances, the Committee recommends the Governing Body to approve the present interim report, and in particular the following conclusions:
   • (a) The Committee deeply deplores the circumstances in which the national strike of 10 March 1983 took place and recalls the importance of negotiation and agreement with the different groups of society in order to avoid clashes and to ensure the development of harmonious industrial relations.
   • (b) As regards the arrest of 84 persons in connection with the national strike of 10 March 1983 which, according to the Government, took place in an atmosphere of violence, the Committee again requests the Government to supply information on their situation, and in particular, to indicate whether they are still under arrest, whether they have been tried and sentenced, or whether they have been released.
   • (c) Regarding the allegation concerning the arrest of three CGTP leaders, who are also said to have been imprisoned, following the general strike of 10 March 1983, namely Jorge Rabines Bartra, Hernán Espinoza Segovia and Juan Calle Mendoza, the Committee requests the Government to indicate whether these persons have in fact been arrested and whether they are at present in prison or free. The Committee finds it unacceptable that a specific allegation relating to the imprisonment of three trade union leaders who have been mentioned by name, which is said to have taken place over two years ago, should remain without comment from the Government.
   • (d) As regards Presidential Decree No. 0010-83-PCM of 25 February 1983 criticised by the complainants, the Committee considers that it is contrary to freedom of association that the right to declare a strike in the civil service illegal should lie with the heads of public institutions, which are thus judges and parties to a dispute. It therefore invites the Government to amend its legislation so as to guarantee that the illegality of a strike is determined by a judicial and not an administrative body. The Committee wishes to draw the attention of the Committee of Experts to this aspect of the case.
   • (e) Regarding the alleged arrest of two leaders of the CGTP, Jesús Ramírez Alejo (on 7 June 1983) and Gregorio Bazán Tello, and the allegation that the premises of the Federation of Peruvian Crew Members were occupied, the Committee recalls that arrested trade unionists, like other persons, are entitled to the fair administration of justice, and that persons who have been arrested for having lawfully exercised trade union activities must be released immediately. The Committee also stresses the inviolable nature of trade union premises and recalls that it should not be possible to enter them without a court warrant.