Informe provisional - Informe núm. 259, Noviembre 1988

Caso núm. 1341 (Paraguay) - Fecha de presentación de la queja:: 24-JUN-85 - Cerrado

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INTRODUCTION
A. Previous examination of the case
D. The Committee's conclusions
The Committee's recommendations

476. The Committee has already examined this case on three occasions, the
- last being at its February 1988 meeting, when it presented an interim report.
- (See 254th Report, paras. 351-369, approved by the Governing Body at its 239th
- Session.) Since then the Government transmitted certain information and
- observations in a communication dated 30 April 1988, received in the ILO only
on 20 May 1988. Subsequently, in a letter dated 30 May 1988 the International
- Confederation of Free Trade Unions (ICFTU) presented new allegations.
477. Paraguay 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

478. The allegations which remain outstanding in this case relate to the
detention of trade union activists and leaders whose names are supplied by the
complainants, to violent repression of peaceful trade union demonstrations,
and to acts of interference and pressure exerted against trade union
organisations and their leaders.
479. In particular the complainants referred to the climate of violence and
repression affecting the trade union movement in 1986 and 1987 in the
hospital, banking, transport, press, teaching and agricultural sectors.
480. The complainants referred to the questioning of doctors during a strike
which took place on 25 April 1986 at the Clinicas Hospital (namely Dr. Carlos
Filizzola and Messrs. José Bellasaó, Ursino Barrios, Anibal Carrillo and Juan
Masi), the ban on 1986 May Day celebrations, the subsequent violent repression
and large number of persons injured by the forces of order and taken to
hospital, the attacks perpetrated on 3 May by some 150 militants of the
Colorado party who were authorised to enter a hospital and are said to have
struck doctors and nurses who were attending the injured, and, lastly, the
destruction of the anduti radio station by the same group on the ground that
this radio supported the workers and their organisations during the trade
union demonstrations. Subsequently the complainants stated that the doctors
who had been arrested during the strike had been released for lack of evidence
of their having committed an offence.
481. The complainants also referred to a police attack on the headquarters of
the Federation of Bank Employees (FETRABAN) in April 1986, and again in March
1987, and to the detention for a number of days in March 1987 of the General
Secretary of the Workers' Inter- Trade Union Movement (MIT), Mr. Victor Baez,
during a meeting of his organisation. Mr. Baez was subsequently released.
482. The complainants also alleged that in March 1987 Raquel Aquino, leader
of secondary-school students, was held at the Pastor prison for having
expressed her solidarity with the trade union movement, and that Margarita
Cappuro de Seiferheld, the leader of the MIT, was obliged to give up her post
as philosophy teacher at the national girls' college since she was forbidden
to teach.
483. In addition the complainants denounced the arrest, in October 1985 at
Tacumbu prison, of Mr. Sebastián Rodríguez, General Secretary of the Bus
Drivers' Union (Route No. 21), for having organised a music festival to
collect money on behalf of his unemployed colleagues, and the arrest of trade
union leader Marcelino Corazón Medina, on 20 September 1985, then from 1 May
to 3 June 1986 and again from 27 February to 30 May 1987, at Ononnondivepa,
where he was tortured.
484. Subsequently, in a communication of 23 October 1987, the International
Confederation of Free Trade Unions (ICFTU) stated that on 20 October 1987 the
police used violence to prevent the holding of a general meeting of the
National Union of Construction Workers, violently charging the members and
injuring a large number who had to be rushed to medical stations.
485. The Government did not reply to the repeated requests concerning the
serious allegations made against it by the complainant organisations.
Consequently, in the absence of a denial of these allegations on the part of
the Government, the Committee could only conclude that there had been serious
violations of the principles of freedom of association in respect of these
various complaints.
486. In these circumstances the Governing Body, on the recommendation of the
Committee, adopted the following interim conclusions at its February 1988
Session:
a) The Committee strongly regrets that the Government has not replied to the
repeated requests for information sent to it. It expresses its serious concern
at the allegations in respect of repression of the trade union movement in
1986 and 1987 and, in particular, the arrest of trade union militants and
leaders named by the complainants, the ban on peaceful trade union
demonstrations on May Day which were violently repressed, and the interference
in the affairs of trade union organisations and pressure brought to bear on
them and on union members.
b) The Committee recalls that a free and independent trade union movement
cannot develop in an atmosphere of insecurity and fear.
c) The Committee urges the Government to take measures to ensure that the
authorities concerned are given appropriate instructions to eliminate the
danger for trade union activities represented by such measures as the arrest
of trade unionists, the banning of trade union demonstrations on May Day and
the holding of trade union meetings.
d) The Committee requests the Government to take measures to guarantee
respect for freedom of association in law and in fact, in accordance with the
obligations arising from Conventions Nos. 87 and 98, ratified by Paraguay, and
to keep it informed of these measures, in particular stating whether judicial
inquiries have been undertaken following the repression which took place on
hospital premises on 3 May 1986, in order to determine who is responsible and
to punish the guilty parties.
B. Further allegations
487. In a telegram dated 30 May 1988, the ICFTU alleges that the following
agricultural workers' leaders were arrested: Marcelino Corazón Medina, Pedro
Gamana, Carmelino Torales, Acadio Flores and Teodoro González. Furthermore,
Fidencio Rojas, General Secretary of the Union of Workers of Fenix SA, is said
to have been threatened by the security guards of the enterprise for which he
works.
C. The Government's reply
488. In a letter dated 30 April 1988, which reached the ILO on 20 May 1988,
the Government supplied information on some of the outstanding allegations.
489. As regards the allegation concerning the arrest of Marcelino Corazón
Medina in 1985 and again in 1987, and the torture to which he is said to have
been subjected, the Government acknowledges that he was prosecuted in 1985 and
1987 for infringing Act No. 209 concerning defence of the public peace and
individual freedom but affirms that, contrary to what the complainants
maintain, he was not tortured and that at all times the authorities treated
him in accordance with the law. According to the Government, Mr. Medina
enjoys full freedom in the country although he is a notorious agitator who
passes himself off as a trade unionist of a fictitious union called the
Committee of "Agricultural Producers" or of "Landless Peasants".
490. As regards the allegation concerning the arrest in 1986 of Mr. Sebastián
Rodríguez, former General Secretary of the Bus Drivers' Union (Route No. 21),
the Government states that Mr. Rodríguez is no longer employed by the
undertaking, that he no longer belongs to the union and that he is not
detained. According to the Government, he was dismissed and has lodged an
appeal with the courts.
491. As regards the detention in 1986 of Dr. Carlos Filizzola and of José
Bellasaó, Ursino Barrios, Anibal Carrillo and Juan Masi in the Clinicas
Hospital affair, the Government states that these persons are public employees
and that Dr. Filizzola led public demonstrations with a view to forcing the
authorities to grant pay increases.
492. Going into further detail, the Government adds that the hospital in
question is a university hospital coming under the faculty of medicine of the
National University of Asunción and that, as such, it is financed from the
national budget. The Government states that it had moreover, when budgetary
resources permitted, granted considerable pay increases to the workers in this
hospital who are public employees and consequently fall outside the scope of
the Paraguayan Labour Code (section 2) but are covered by Act No. 200/70 in
respect of the public service.
493. Nevertheless, the Government goes on to say that under the leadership of
Dr. Filizzola these public employees persisted with pay claims that were not
in line with the percentage authorised by the Government under the general
budget for 1986 and that their claims were not submitted through the lawful
channels and relevant institutions, i.e. by means of the citizens' right of
petition. Instead they took the form of a street disturbance. Faced with this
situation the police were obliged to intervene to restore public order and
social peace.
494. The Government adds that Dr. Filizzola was involved in criminal
proceedings that were brought against him before the Criminal Court of First
Instance of the Ninth Chamber by a certain Eladio Ramón Penayo and that he was
charged with having infringed Act No. 294 concerning the defence of the
democracy and Act No. 209/70 concerning the defence of the public peace and
individual freedom, issued under section 99 of the Code of Penal Procedure. In
Ruling No. 677 of 17 December 1986, the judge, having considered the evidence
in the case, ordered that Dr. Filizzola be held in preventive detention and
then, in a further ruling (No. 715 of 23 December 1986) lifted this measure.
At present, the Government states, Dr. Filizzola is freely exercising his
profession as a doctor and enjoys his full rights as a citizen.
495. The court rulings concerning this case are enclosed with the
Government's communication. It can be seen from these rulings that Dr.
Filizzola was accused by one of the participants in the demonstration of 28
November 1986, Mr. Penayo, of instigating the overthrow of the Government, of
describing the President of the Republic, General Alfredo Stroessner, as a
dictator and of systematically imposing communist doctrine by creating
divisions between citizens, together with disturbances, agitation and other
destabilising activities. According to Mr. Penayo, Dr. Filizzola had written
that "we find ourselves in a situation of grave political and economic crisis
under this dictatorship that has been in force for 32 years", a statement
which Mr. Penayo considers absurd since, according to him, free and democratic
general elections are held in the country periodically. Dr. Filizzola is also
said to have stated that "dialogue is not for any dictatorship; dictatorships
are not open to dialogue with anyone. Consequently we must realise that what
is essential now is to mobilise to overthrow the dictatorship". According to
Court Decision No. 677 of 17 December 1986, Dr. Filizzola incurred a sentence
of five years' imprisonment for instigating an armed uprising against the
constitutional authorities in order to replace the republican democratic
system in force by the communist system (section 1 of Act No. 294 concerning
the defence of democracy) and for spreading communist doctrine (section 2).
Under this Act, where offences are committed by means of the press, radio,
etc., the publication, radio programme, etc., are suspended for between one
and six months and closed down if the offence is repeated (section 8).
496. Nevertheless, in Ruling No. 715 of 23 December 1986, communicated by the
Government, the judge decided, after studying the evidence in the case, that
there was insufficient proof to change the preventive detention to a prison
sentence and ordered Dr. Filizzola's release.
497. As regards allegations concerning the ban on the holding of May Day
celebrations in 1986, the Government strongly refutes the complainants'
allegation that the demonstration was repressed and that there had been
casualties.
498. As regards the allegations that members of the Colorado party struck
doctors and nurses who were treating injured persons on 3 May 1986 in the
Clinicas Hospital and that they destroyed the anduti radio station on the
ground that this radio supported workers and their organisations in their
trade union demonstrations, the Government makes no comment on the first
allegation but recognises that the anduti radio transmitter was closed down on
the decision of the national telecommunications administration. It denies,
however, that militants of the Colorado party destroyed the anduti radio
staton as maintained by the ICFTU. It affirms that the radio premises are in
perfect condition and are being used by the opposition for broadcasts in which
numerous persons take part, including representatives of outside political
parties.
499. As regards the complaint of the Workers' Inter-Trade Union Movement
(MIT) that Margarita Capurro de Seiferheld, leader of the MIT, was forced to
give up her teaching post at the girls' college, the Government explains that
this penalty was imposed solely because of irregularities that had been
committed by this person in the course of her duties, contravening teaching
standards and the national provisions in respect of education, as stated by
the Ministry of Education and Religion.
500. As regards Mr. Victor Baez, General Secretary of the MIT, who is said to
have been detained for a number of days in March 1987 during the meeting of
his organisation, the Government firmly denies that he was detained on 18
March 1987. It explains that he was merely summoned to appear before the chief
of police for public order in the capital for questioning concerning acts
which had disturbed public order and peace since he had claimed to "disregard
the legal authorities of the country" and had "shown disrespect for social
standards", which has nothing to do with his struggle to defend trade union
interests. According to the Government, creating disturbances in the streets
and upsetting the minds of peaceful citizens is not how one defends the
workers' trade union interests. Once the formalities for which he had been
summoned had been completed, he left the police premises on the decision of
the authorities and not because of pressure exerted from inside or outside by
the ICFTU. At no time was he kept in a police cell; nor was he detained for as
long as the complainants alleged.
501. As regards this trade union leader, the Government also states that he
is exercising his civil rights as is proven by the fact that in 1987 and 1988
he was able to go to Rio de Janeiro and to Europe as well as to the World
Congress of the ICFTU in Australia, that his militant activities take place in
public and that he is a member of an opposition political party of fascist
origin.

D. The Committee's conclusions

502. The Committee takes note of all the information and observations
- furnished by the Government on some of the allegations still outstanding in
- this case.
503. The Committee nevertheless observes that the Government has not
- commented in detail on several serious allegations made against it by the
- complainants, especially concerning the incidents said to have taken place at
- the Clinicas Hospital on 3 May 1986, that it has not denied that some members
- of the Colorado party, on hospital premises, struck doctors and nurses who
- were tending patients injured by the forces of order when a trade union
- demonstration was repressed; moreover, the Government has furnished no
- information on the allegation concerning the arrest in March 1987 of Raquel
- Aquino, a secondary-school students' leader, said to have been detained in the
- Pastor prison for having expressed her solidarity with the trade union
- movement.
504. Finally the Government has not commented in detail on the ICFTU's
- allegations dated 30 May 1988 that several agricultural workers' leaders
- (whose names are given), including Marcelino Corazón, were again arrested in
May 1988 and that the General Secretary of the Union of Workers of Fenix SA
- were threatened by the security guards of the undertaking.
505. As regards the points on which the Government has supplied detailed
- replies, the Committee observes, firstly, concerning the agricultural workers'
- leader Marcelino Corazón Medina, that the Government recognises that he was
- prosecuted in 1985 and 1987 for infringing Act No. 209 concerning the defence
- of public peace and individual freedom but has not supplied information on the
- actual offences he is said to have committed. The Government merely states
- that this person is a notorious agitator who tries to pass himself off as a
- trade unionist in a fictitious trade union organisation.
506. In a number of cases where the complainants alleged that workers or
- trade union leaders had been arrested for trade union activities, and the
- government replies amounted to general denials or were simply to the effect
- that the arrests were made on the grounds of subversive activites, for reasons
- of internal security or for common law crimes, the Committee has followed the
- rule that the governments concerned should be requested to submit further and
- as precise information as possible concerning the arrests, particularly in
- connection with the legal or judicial proceedings instituted as a result
- thereof and the result of such proceedings, in order to be able to make a
- proper examination of the allegations. (See Digest of decisions and principles
- of the Freedom of Association Committee of the Governing Body of the ILO,
- para. 115.)
507. In the present case, since Act No. 209 concerning the defence of public
- peace and individual freedom permits the imposition of prison sentences for
- offences based on one's opinion, and in view of the fact that, according to
- the ICFTU's allegations, the agricultural workers' leader Marcelino Corazón
- Medina and four of his companions were again arrested on 18 May 1988, the
- Committee requests the Government to supply detailed information on the actual
- charges brought against these leaders, to communicate the court judgements in
- the case with the grounds adduced therefore, if they have been sentenced, and
- to state if they have now been released.
508. The Committee observes, secondly, that the Government has not commented
- in detail on the allegation that Mr. Sebastián Rodríguez, former General
- Secretary of the Bus Drivers' Union (Route No. 21) was arrested in 1986, but
- has confined itself to stating that this person is not detained, that he is
- not employed in the undertaking and that he no longer belongs to the union.
- The Government does, however, acknowledge the fact that he was dismissed and
- has appealed against his dismissal to the courts.
509. The Committee recalls, in general, that no person should be
- discriminated against in his employment because of his trade union membership
- or lawful trade union activities and that appropriate measures should be
- adopted to guarantee the free exercise of trade union rights, accompanied by
- measures for the protection of workers against acts of anti-union
- discrimination in their employment.
510. Since the Government states that this person was dismissed and has
- appealed against his dismissal to the courts, the Committee requests the
- Government to keep it informed of the outcome of this appeal.
511. Concerning the strike which took place at the Clinicas Hospital, the
- Committee notes the Government's statement that the workers in this hospital
- are only public employees who do not enjoy the right to organise and its
- explanation that these persons had asked for pay increases in the course of
- public demonstrations, thus contravening Act No. 200 in respect of the public
- service instead of availing themselves of the citizens' right of petition.
512. The Committee considers that this aspect of the case raises two
- questions: firstly that of the right to organise of public employees. On this
- point, the Committee recalls that in accordance with Convention No. 87
- ratified by Paraguay, public employees, like any other workers, should have
- the right to organise for trade union purposes (Article 2 of the Convention).
- Moreover, according to Convention No. 98, only public servants engaged in the
- administration of the State can be excluded from the right to negotiate
- conditions of employment collectively (Article 6 of the Convention). The
- employees of a public hospital, namely the doctors and nurses working there,
- cannot be considered to be "public servants engaged in the administration of
- the State".
513. Consequently, the Committee - as has the Committee of Experts on the
- Application of Conventions and Recommendations - once again requests the
- Government to ensure the amendment of its legislation, especially Act No. 200
- respecting the public service (sections 31 and 36) which allows public
- employees the right to associate only for cultural and social purposes and
- forbids them to adopt collective resolutions against measures taken by the
- competent authorities. The Committee invites the Government to adopt specific
- provisions granting the right to organise to public employees and to set up
- machinery for settling collective disputes in the public service in general
- and in the hospital sector in particular in which the persons concerned will
- have confidence.
514. Secondly, there is the question of the right of the employees of a
- public hospital to go on strike. In this respect the Committee observes,
- according to the allegations, that the persons concerned were prosecuted for
- having resorted to a strike to secure pay increases while they were carrying
- out their duties in a public hospital. The Committee has already had the
- occasion to state that the right to strike may indeed be restricted or even
- prohibited in the public service (public employees being those who act as
- agents of the public authorities) or in essential services in the strict sense
- of the term (i.e. services whose interruption would endanger the life,
- personal safety or health of the whole or part of the population). In previous
- cases the Committee has considered the hospital sector to constitute an
- essential service. (See 217th Report, Case No. 1091 (India), para. 443, and
- Case No. 1099 (Norway), para. 467.)
515. Nevertheless, the Committee has stated on many occasions that where the
- right to strike has been restricted or refused in a service considered to be
- essential, workers in this service should enjoy adequate protection so as to
- compensate for the restrictions imposed on their freedom of action as regards
- disputes in the said service. In this particular case, the restriction of the
- right to strike of doctors and nurses in the Clinicas Hospital should be
- offset by appropriate, impartial and speedy conciliation and arbitration
- procedures in which the persons concerned can take part at every stage and in
- which the awards, once made, are fully and promptly implemented, as the
- Committee had the occasion to state in a previous case. (See 236th Report,
- Case No. 1263 (Japan), para. 270.)

The Committee's recommendations

516. In the light of its foregoing interim conclusions, the Committee invites
- the Governing Body to approve the following recommendations:
  - a) The Committee notes with interest that the Government has replied to
- certain allegations, but regrets that it has as yet supplied no observations
- on several of the serious allegations made against it by the complainants.
  - b) Consequently, on the factual issues, the Committee once again requests
- the Government to state whether it is correct that members of the
  - pro-Government party assaulted doctors and nurses on hospital premises who
- were treating persons injured by the forces of order when a trade union
- demonstration was repressed on 3 May 1986, as affirmed by the ICFTU in a
- communication of 5 May 1986, and if so to state whether a judicial inquiry has
- been instituted following this repression to determine who is responsible.
  - c) The Committee also requests the Government to reply to the ICFTU's
- allegations dated 3 April 1987 and 30 May 1988 respectively concerning the
- imprisonment in March 1987 of Raquel Aquino, a leader of secondary-school
- students, in the Pastor prison and the arrest, on 18 May 1988, of agricultural
- worker's leaders Marcelino Corazón Medina, Pedro Gamana, Carmelino Torales,
- Acadio Flores and Teodoro González. In particular, it requests the Government
- to state precisely on what grounds they were imprisoned, to furnish the text
- of the court judgements concerning them if they have been tried, and to
- specify whether these persons have since been released.
  - d) The Committee requests the Government to keep it informed on the outcome
- of the appeal against dismissal lodged by the trade union leader Sebastián
- Rodríguez, former General Secretary of the Bus Drivers' Union (route No. 21)
- who is said to have been dismissed in 1986 for trade union reasons.
  - e) On the legal issues, as regards the denial to public employees of the
- right to organise in trade unions and the restrictions on their freedom to
- negotiate their conditions of employment collectively, the Committee requests
- the Government to ensure the amendment of Act No. 200 in respect of the public
- service (sections 31 and 36) so as to include specific legislative provisions
- on the right to organise of public employees and to introduce machinery for
- the settlement of collective disputes in the public service in which the
- persons concerned will have confidence.
  - f) As regards the ban on strikes by doctors and nurses employed in a public
- hospital, the Committee requests the Government to ensure the adoption of
- specific provisions to compensate, by introducing appropriate conciliation and
- arbitration procedures, for the fact that there is no right to strike in this
- essential service.
  - g) The Committee draws the attention of the Committee of Experts on the
- Application of Conventions and Recommendations to the legislative aspects of
- this case regarding Conventions Nos. 87 and 98.