Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 358, Noviembre 2010

Caso núm. 2742 (Bolivia (Estado Plurinacional de)) - Fecha de presentación de la queja:: 09-OCT-09 - Cerrado

Allegations: the complainant organization alleges that following a strike declared illegal criminal proceedings were started against eight trade union officials

1. 242. This complaint is contained in a communication from the National Federation of Social Security Workers of Bolivia (FENSEGURAL) dated 9 October 2009.
2. 243. The Government sent its observations in a communication of 6 April 2010.
3. 244. The Plurinational State of Bolivia 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. The complainant’s allegations

1. 245. In its communication of 9 October 2009, the FENSEGURAL states that in March 2007, the Single Union of Social Security Workers of the National Health Fund of the Cochabamba Region (CASEGURAL–CBBA), affiliated to FENSEGURAL, made a number of representations to the employer about, inter alia, irregularities in temporary contracts related to cases of nepotism, violations and abuse of power by the then head of personnel of the Hospital Obrero Number 2 of the Cochabamba region, demanding that administrative procedures be respected.
2. 246. Until the beginning of April 2007, the administration of the National Health Fund of the Cochabamba Region (CNS–CBBA) dragged its feet concerning these complaints. This is why CASEGURAL–CBBA, in its capacity to represent the interests of its members, as well as those of other workers of this health institution, announced on 5 April that it would be holding a strike from 11 April 2007. On 11 April 2007 the strike was held, initially as a
3. go-slow strike, but as no solution was found to CASEGURAL–CBBA’s demands, it was extended to a work stoppage on 12 April. Members of this trade union, which include administrative workers, nurses’ aides, and service and paramedical staff, partook in these actions without, however, medical care being suspended in the various CNS–CBBA health centres for which the medical staff were responsible.
4. 247. The complainant organization indicates that a meeting between CASEGURAL–CBBA and representatives of the CNS–CBBA, with the participation of the Departmental Workers’ Confederation of Cochabamba (COD–CBBA), which started on 12 April and went on to the next day, made it possible for negotiations to take place so as to find solutions to the demands which led to the protest actions described above. The institutional agreement was sent to the Departmental Labour Office.
5. 248. As a result of the fact that prior to these negotiations CNS–CBBA’s administration had filed for a declaratory judgment regarding the illegality of the strike held on 11 and
6. 12 April before the Departmental Labour Office, this government department ruled shortly after, on 20 April, that: “even if the workers’ claims are legitimate, the legal precepts had, nevertheless, been obviated before the declaratory judgement of the measure, thus rendering the staged stoppage illegal”. The effects of this declaratory judgment from the labour authority were deductions from wages for the days of strike;
7. CASEGURAL–CBBA, in line with common labour practices in the Plurinational State of Bolivia, on 7 May 2007 signed another institutional agreement with the regional administration of the CNS–CBBA to compensate by working one extra hour per day so as to make up for the 16 hours of strike on 11 and 12 April.
8. 249. Despite the agreements reached with the administration of the CNS–CBBA not only to resolve the cases of nepotism and abuse of power by the then head of personnel at the Hospital Obrero Number 2 but also to compensate for the hours of strike, the CASEGURAL–CBBA trade union members felt deceived as first a resolution to dismiss the said head of personnel (on 7 May 2007) was issued and then the reinstatement order for the same head of personnel (16 May 2007) was issued. In this context, on 28 May, a group of leaders requested an official explanation from the head of personnel at the time when he resumed his duties. This formal request was tendentiously used to start a series of actions intended to intimidate the CASEGURAL–CBBA trade union board, especially by means of judicial persecution, which to date have not been ruled on and which in fact has led to the social protest described here being criminalized.
9. 250. The complaint brought by the then head of personnel of the Hospital Obrero Number 2 as an individual called for the intervention of the Public Prosecutor to prosecute for the following alleged offences: preventing and obstructing a public official from exercising his functions (section 161 of the Criminal Code of Bolivia); preventing, obstructing or limiting the freedom to work, profession or occupation, whether in trade or industry (section 303 of the Criminal Code of Bolivia); promoting any lockout, strike or stoppage declared illegal (section 234 of the Criminal Code of Bolivia); and undertaking any other act which in some way affects the health of the population (section 216(9) of the Criminal Code of Bolivia). In this context, CASEGURAL–CBBA demanded an explanation before the Departmental Labour Office regarding the behaviour of the employer with whom the institutional agreements were signed which resolved the dispute, restricting the event to its real scope to suitably try the case, i.e. exclusively as a labour issue.
10. 251. The complainant adds that despite CASEGURAL–CBBA’s efforts to restart proceedings of the event as a labour issue and in relation to the repudiation and public complaint made by the Departmental Workers’ Confederation of Cochabamba for this unfair and improper criminal prosecution of trade union officials (7 September 2007), as well as for the national meeting of the Bolivian Workers’ Confederation (17 September 2007), eight trade union officials of CASEGURAL–CBBA had restrictive measures imposed on their trade union activity through the intermediary of the prosecutor’s office and a court for preventive measures (the prosecutor’s office had requested the preventive detention of the trade union officials). As the weeks went by, the vicious attacks against the trade union continued relentlessly. On 23 February 2008, the prosecutor’s office brought the organization before the Supreme Court of Justice. In the accusation, which violates the legal principles establishing that the prosecutor’s office should be objective, the prosecutor’s office went so far as to change the chronology of the facts, stating that: “noting the resolution for dismissal (7 May 2007) and as it was not possible to change who held Juan Carlos Ayala’s position (head of personnel), [the trade union officials] immediately called for and initiated an illegal strike on 11 and 12 April 2007”. This way of distorting the sequence of events together with other incongruities, starting from the end of May 2007 until the formal accusation was made on 23 February 2008 (nine months), suggest the systematic intimidation of CASEGURAL’s trade union officials.
11. 252. The complainant organization indicates that currently – more than a year and a half after the formal accusation was made – the oral hearing has still not been held. The prosecutor in charge of the case and who started proceedings has changed as she went to work at the Prefecture of the Cochabamba Department following the intervention of the central Government in the government of the Department. After a final attempt to again set a date for the oral hearing of the case by Trial Court No. 4, the hearing was postponed until January 2010, which may yet change because, with advance notice, the technical judge of the court left his post to go and work as a deputy minister of the current Government and the President of this Trial Court has applied for a position as a deputy for the party in Government. The complainant organization thinks that – bearing in mind that the competent prosecutor who started criminal proceedings and the technical judge have gone on to hold posts in political bodies of the Government and that the President of the Trial Court has recently applied for a political position in next parliament – the case with regard to the peculiar way in which it has been handled has with reason become a rather sensitive issue, especially given the absence of guarantees to safeguard the principles of objectivity and impartiality, despite these being stipulated in the new Political Constitution of Bolivia.
12. 253. In the complainant organization’s opinion, the trade union officials concerned are being subjected to criminal prosecution simply for having exercised their rights to represent the interests of their members, to petition and to collective bargaining in this respect, and finally the right to strike as a legitimate form of social protest given the stalling of the then administration of the CNS–CBBA. The current criminal proceedings reported and the risk of a conviction could lead to an unfair criminalization of CASEGURAL–CBBA’s trade union actions and affect the effective enforcement of freedom of association in the Plurinational State of Bolivia.
13. B. The Government’s reply
14. 254. In its communication of 6 April 2010, the Government informed through communication No. MTEPS/DGTHSO/037/10 of 1 February 2010 that the Director-General of Labour and Occupational Health and Safety of the Ministry of Labour, Employment and Social Security submitted technical report No. MTEPS/DGTHSO/TL/JC 011/10, publishing the information provided by the Departmental Labour Office of the city of Cochabamba in relation to the complaint presented by the FENSEGURAL. The report on the substantial activity from 9 to 13 April 2007 of the Departmental Labour Office of Cochabamba points out that the workers in the administrative sector and nurses declared an indefinite go-slow strike organized by CASEGURAL from 10 April 2007, giving as the reasons for this measure the supposed contracting by the administrator of his relatives and the change of head of personnel of the Hospital Obrero Number 2. Following a long meeting on 12 April 2007, a consensus was reached on the first point and the other points were left for discussion on Friday, 13 April 2007, as the work stoppage was suspended and a recess declared until 16 April 2007.
15. 255. The regional administrator of the National Health Fund (CNS) requested the Departmental Director of Labour of Cochabamba in memorandum No. SN/2007 of 11 April 2007 to declare that the go-slow strike was illegal, indicating that the case was referred to a higher body to resolve the initial issues, which according to CASEGURAL were not resolved, and as usual by using the term “others”, CASEGURAL tried to make out that there were problems where there were none. In this context, the regional administrator of the CNS endorsed the solutions put forward in writing. The regional administrator also indicated that the indefinite go-slow strike was thought to breach labour and institutional regulations, which was why he requested, through the Departmental Directorate of Labour, that the case concerning the illegality of the stoppage, which adversely affected 454,000 members of the CNS–CBBA , be heard and tried.
16. 256. It is necessary to highlight that in the reference memorandum it was stated that on the day of the go-slow strike many people were prevented from doing their jobs because, among other entrances, the main entrance on calle Esteban Arce and later the administration’s entrance were blocked, thereby invalidating the so-called go-slow strike and constituting a violation of section 303 of the Criminal Code, “violation of rights to the detriment of the freedom to work”. In light of this violation, the regional administrator of the CNS reported the event to the police so that there would be a record.
17. 257. The report of 12 April 2009 of the labour inspectorate enabled the complaints of the regional administrator of the CNS to be verified as the report clearly identified the officials who partook in the strike and forced a number of offices to be closed by blocking free access to the administrative offices as well as other entrances.
18. 258. Because of the alleged lack of solutions supposedly proposed by the administrator of the CNS, CASEGURAL announced another 24-hour stoppage in memorandum No. SC19/2007 of 11 April 2007. The administrator again requested the Departmental Directorate of Labour to declare the strike of 12 April 2007 illegal by means of memorandum No. SN/2007 of 12 April 2007, stating that he had felt threatened because a group of workers of CASEGURAL had prevented him from entering, as well as the administrative staff throughout the day and night, by blockading the entrances; this event was stated in memorandum SN/2007 of 11 April 2007.
19. 259. Despite the administrator confirming his position regarding the dialogue without conditions, he did not receive either an oral or written reply from CASEGURAL. In fact, they changed their petition, which apparently could not be resolved, with another which was written on the administration’s notice board on 11 April 2007: (1) claim regarding nepotism and functional incompatibility; (2) the initiation of internal administrative proceedings against the head of personnel of the Hospital Obrero Number 2;
20. (3) Mr Fernández’s case for an alleged irregularity in the reinstatement to his previous position because of his and the legal counsel’s negligence; (4) the immediate termination of temporary contracts of his relatives for which there is no hard evidence; (5) immediate change of head of personnel; and (6) breach of the administrative procedures.
21. 260. Like in memorandum SN/2007 of 11 April 2007, the administrator informed the Departmental Director of Labour that the work stoppage continued to breach labour and institutional regulations which is why he requested that the case concerning the illegality of the second stoppage, which adversely affected 454,000 members of the CNS–CBBA for the second day running, be heard and tried. The Departmental Director of Labour was also told that early on 12 April 2007 the main entrance to the offices on calle Esteban Arce had been blockaded, preventing any official from entering, which shows the wrongful use and exercise of the go-slow strike, taking into consideration the violent measures employed by CASEGURAL. The administrator also stated in the same memorandum that “with the intention of resolving these ‘problems’, which are in fact whims and personal quarrels, I request that you appoint another inspector in order that he or she may be present at the meeting in the regional administration today, 12 April 2007, at 3 p.m. at which five trade union representatives of CASEGURAL, four executives of the CNS–CBBA and one representative of the Departmental Workers’ Confederation will be present to discuss the matters at hand; I suggest that this meeting is recorded in full by the Inspector of the Ministry of Labour so that there is a factual report, evidence and proof of the agreement reached”.
22. 261. The report of 13 April 2007 of the labour inspectorate, addressed to the Departmental Head of Labour, confirmed – after the second visit to the offices of the CNS–CBBA and consultation with various workers, who identified the officials who had organized the stoppage – that the latter had caused various offices to be closed by blockading free access to the administration’s offices.
23. 262. On 13 April 2007, the ad interim general manager of the CNS was informed of the legal implications of the work stoppage by the worker trade union members of CASEGURAL of Cochabamba in report No. CITE 266 of the legal department of the CNS–CBBA, stating that:
24. – based on the background of the Single Union of Social Security Workers of Cochabamba (CASEGURAL), it can be ascertained that article 159 of the Political Constitution of the Plurinational State of Bolivia, although it establishes the right to strike, also provides that the strike must be carried out after all the legal requirements have been fulfilled, which is not the case for the present situation;
25. – the regional officials of Cochabamba are in contravention of section 105 of the General Labour Act which reads: “in no enterprise may work be stopped unannounced by either the employer or the workers before having exhausted all means of conciliation and arbitration provided for in this Chapter, otherwise the movement shall be deemed illegal”;
26. – as CASEGURAL (Cochabamba) has not complied with the aforementioned legal provisions, this Office suggests requesting, based on the legal opinion of the regional state administration of Cochabamba, that the strike of 11 April 2007 be declared illegal.
27. 263. In accordance with the points made by the legal department of the CNS, the Ministry of Labour was requested, through the regular and appropriate channels and within the framework of its mandate, to hand down a decision as to whether the strikes and work stoppages were legal or not. Once the request was made officially, the Ministry of Labour replied through the intermediary of the Departmental Office of Cochabamba to the request in memorandum No. MT/JEF/DEPTAL/TRAB/CBBA/CITE 003/2007 of 20 April 2007, stating after assessing the issues that “the legal provisions of Chapter X and those of section 105 of the General Labour Act have not been complied with and the legal criteria set out in the General Labour Act have been circumvented. Even if the workers’ claims are legitimate, the legal precepts had, nevertheless, been obviated before the declaratory judgment of the measure, thus rendering the staged stoppage illegal, taking into account that this office was not informed of any complaint or demand.”
28. 264. In accordance with the above, there are two letters dated 11 and 12 April 2007 signed by the administrator of the CNS. The Labour Office did not receive any letter from CASEGURAL supposedly informing it about the complaints or demands; the Labour Office only has one letter from CASEGURAL addressed to the regional administrator of the CNS of 2007, bearing the Departmental Labour Office’s stamp. On 12 and 13 April 2007 meetings were held with representatives from the Departmental Workers’ Confederation (COD), CASEGURAL and the regional authorities of the CNS in order to sign an institutional agreement with the aim of maintaining good relations and continuous dialogue. It was also decided through the intermediary of the regional administration that a copy of the agreement should be sent to the Departmental Directorate of Labour which was informed by the Labour Office on 16 April 2007.
29. 265. Finally, on 10 May 2007, an institutional agreement was signed between CASEGURAL of Cochabamba and the regional administration of the CNS–CBBA at the Departmental Labour Office of the city of Cochabamba. An observer from COD and the Departmental Labour Head was present at the signing of this agreement, which sets forth the following:
30. Official decision by the Ministry of Labour regarding the illegal strike held by CASEGURAL which states “in view of the non-compliance with the legal provisions of Chapter X and those of section 105 of the General Labour Act and in view of the circumvention of the legal criteria set out in the General Labour Act, even if the workers’ claims are legitimate, the legal precepts have, nevertheless, been obviated before the measure was announced thus rendering the staged stoppage illegal, taking into account that this Office was not informed of any complaint or demand”.
31. The administrator and all parties reached the agreement which is favourable to the workers by not making deductions for the two days not worked under the arrangement of working one hour from the first working day of the second semester of the current financial year (2007) as compensation, in line with the details which various centres sent, for the days of strike of 11 and 12 April 2007 which for administrative workers who work eight hours a day corresponds to 16 working hours and for administrative workers who work six hours a day corresponds to 12 working hours for the days of strike, which shall be checked in the staff monitoring system which use either biometric devices or swipe cards.
32. 266. As can be seen, at no point did CASEGURAL act within the framework of the national legislation in force, which was acknowledged by the trade union itself. This is why they accepted the compensation arrangement for the days they did not work because of the illegal stoppage by the trade union members. The Government indicates that the new Political Constitution of 2009, article 51(III), stipulates “trade unionization is recognized and guaranteed as a means of defence, representation, assistance, education and culture of both rural and city workers”. Furthermore, article 51(VI) establishes that “trade union leaders shall enjoy trade union immunity, they shall not be dismissed in the year after their mandate has finished and their social rights shall not be reduced; they shall not be subjected to persecution or deprivation of liberty for acts carried out in the context of their trade union activity”. Furthermore, the new Political Constitution of 2009, article 256(I), provides that “the international treaties and instruments on human rights that have been signed, ratified or to which the State is party, which establish rights that are more favourable than those contained in the Constitution, shall take precedence”, article 256(II) establishes that “the rights recognized in the Constitution shall be interpreted in accordance with international human rights treaties where these establish more favourable standards”.
33. 267. It is important to note that the new Political Constitution of 2009 establishes a new hierarchy of legislation, ranked second after the Constitution are the international treaties, that is to say ILO Conventions ratified by the Plurinational State of Bolivia take precedence over national law, which was not the case under the previous Political Constitution of 1967. Among the Conventions ratified by the Plurinational State of Bolivia are Conventions Nos 87 and 98.
34. 268. The Government notes that, in relation to the alleged criminal and political prosecution of trade union officials of CASEGURAL by the Government as a result of the complaint brought as an individual by the head of personnel of the Hospital Obrero Number 2, the Prosecutor’s Office was called to intervene in labour disputes apparently in a court of first instance. This is in line with report number MT-DSI of 26 July 2007 signed by the Departmental Labour Inspector of Cochabamba of the Ministry of Labour in charge of the report of the conciliation hearing between CASEGURAL of Cochabamba and the CNS, which highlights in the last part: “in the statements that were reviewed it is clear that Juan Carlos Ayala brought the said request or complaint as an individual and not in his capacity as an official of the CNS”. As a result, it is possible to conclude that although there was a labour dispute, the Ministry of Labour through its Departmental Labour Office of the city of Cochabamba intervened on the fundamental premise of defending the rights of the workers of this institution. This was shown by the fact that they managed to draw up an agreement between the employer and the workers thus resolving the labour dispute.
35. 269. The Government highlights that the problem is a situation specific to Juan Carlos Ayala, who on 27 March 2008 under the legal arrangements entitling him by law to do so, filed as an individual accusation and complaint against Freddy Puente Camacho and others for the offences of preventing and obstructing the exercise of duties and for violations of the freedom to work, which can definitely not be limited or controlled by an administrative labour body. This, therefore, clearly shows that the complaint was filed by an individual and was in no way institutional. Hence the Government cannot prevent or restrict any person from requesting the application of the law, in this case the Criminal Code, when it is within the remit of the judicial body to resolve and decide whether or not it is right that an individual file a criminal complaint against certain individuals, regardless of whether they are guilty or not of the alleged offences.
36. 270. On 22 February 2008, the Prosecutor of Cochabamba in charge of the case, after analysing the documentary and witness evidence, decided to formally accuse Freddy Puente Camacho, Wilma Alcocer Mayorga, Raúl Limachi Choque, María Rosalía Orellana, Jiménez and José Maldonado Gremio of committing offences under sections 161, 216, 234 and 303 of the Criminal Code and formally accuse Jonny Calani, Marlene Ortiz Flores and Jeny Vilma Camacho Águila of committing offences punishable under sections 161 and 303 of the Criminal Code.
37. 271. The substantiation of the accusation indicates that the offences of preventing or obstructing or, where relevant, restricting the freedom to work, as stipulated in sections 161 and 303 of the Criminal Code, are considered de jure to be intentional wrongdoings and are enforceable when the mere act of preventing, obstructing or, where relevant, restricting labour activity occurs.
38. 272. In this case, by illegally imposing a general strike at the CNS with the aim of preventing the activity legally carried out by Juan Carlos Ayala as the head of personnel of the Hospital Obrero Number 2, the accused parties prevented and obstructed the normal performance of his duties as a public official, thus infringing on his fundamental right to work as enshrined in the Political Constitution of 1967, their actions thereby constituting the offences stipulated and punishable under sections 161 and 303 of the Criminal Code.
39. 273. The accusation also states: “it is clear that Freddy Puente Camacho, Raúl Limachi Choque, María Orellana Jiménez, José Maldonado Gremio, and Wilma Alcocer Mayorga, by way of carrying out a supposed mandate from their rank and file, planned and staged a strike declared illegal by the Departmental Directorate of Labour (Cochabamba) with the aim of keeping Juan Carlos Ayala away from his source of work, without taking into account the harm they were causing a considerable number of patients who receive medical care through the CNS–CBBA, and committed the offences which are set forth in section 216(9) of the Criminal Code; this has been proven by the reports and attestations issued by various directors of health centres which are dependent on the CNS, all of which stated that the illegal strike affected the normal provision of care contributing to the deterioration and to the detriment of the health of insured persons”.
40. 274. Given the above, the Prosecutor of the case requested the President and the sitting members of the Trial Court to set a date and time for the oral hearing of the case after the relevant formalities had been met. The report submitted by the President of the Supreme Court of Justice of Cochabamba states that the order initiating the trial of 13 June 2008 establishes that the oral hearing would be on 15 December 2008. However, after the date for the oral hearing had been set, the hearing had to be suspended because the defence lawyer resigned. A new date was set for a hearing on 15 June 2009, which was also suspended because none of the lay judges appeared despite having been legally informed. On 6 January 2010, the hearing had to be suspended because Trial Court No. 4 did not have a technical judge in office.
41. 275. In relation to this, it is important to highlight that none of the oral hearings were suspended as a result of “political meddling” as some members of CASEGURAL try to make out, quite to the contrary, it was first of all because its lawyer resigned and in such events it is the State’s duty to guarantee and safeguard due process at all times. Second, the failure to appear by the lay judges also led to the suspension of the hearing, for which the executive branch was not responsible, as this is not within the competences conferred on it by the Political Constitution.
42. 276. The Government concludes that: (1) the Departmental Labour Office of Cochabamba handed down a decision in a memorandum establishing that the stoppage was illegal because the provisions of section 105 of the General Labour Act were not taken into account, as well as because the Labour Office was not informed of the complaints and demands and because a go-slow strike was carried out on 11 and 12 April 2007 without complying with the procedure established by law; (2) with the intervention of the Ministry of Labour, Employment and Social Security it was possible for both parties in the labour dispute to reach an agreement, which facilitated the signing of the institutional agreement establishing that no deductions would be made for the days of strike of 11 and 12 April and that these days would be made up by working one extra hour until all the hours of strike were accounted for; (3) in the labour dispute, the Ministry of Labour, Employment and Social Security intervened in accordance with its competences and powers which are established by law, enforcing compliance with the law in order to resolve the conflict essentially to the benefit of the workers despite non-compliance with the established procedure for organizing and/or staging a strike; (4) the Political Constitution enacted on 7 February 2009 establishes that the rights recognized under the Political Constitution are inviolable, universal, interdependent, indivisible and progressive and it is the State’s duty to promote, protect and respect them.

C. The Committee’s conclusions

1. 277. The Committee notes that in this case the complainant organization alleges that despite the Single Union of Social Security Workers of the National Health Fund of the Cochabamba Region (CASEGURAL–CBBA) and the administration of the National Health Fund of the Cochabamba Region (CNS–CBBA) reaching an agreement after the strikes on 11 and 12 February 2007, the authorities of the Hospital Obrero Number 2 were requested verbally by trade union officials to give an explanation in relation to the head of personnel of the hospital (who had been dismissed and then exonerated, and was therefore allowed to be reinstated in his post), and notes that the authorities started criminal proceedings – which to date are not closed and, according to the complainant, suggest systematic intimidation – against eight members of CASEGURAL’s board.
2. 278. The Committee notes that the Government refers in its reply to the agreement reached by the parties after the strike and that it states with regard to the alleged criminal prosecution of CASEGURAL trade union officials that: (1) the head of personnel of the Hospital Obrero Number 2, Juan Carlos Ayala, filed, as an individual and not as an official of the CNS, a complaint and charge against Freddy Puente Camacho and others for the offences of preventing or obstructing the exercise of duties and for violations of the freedom to work; (2) the Government cannot prevent or restrict an individual from appealing, if he so wishes, to the judicial authority requesting the law be applied; (3) on 28 February 2008 the Prosecutor of Cochabamba, after reviewing the evidence, decided to formally accuse Freddy Puente Camacho, Wilma Alcocer Mayorga, Raúl Limachi Choque, María Rosalía Orellana Jiménez and José Maldonado Gremio of committing offences punishable under sections 161 (obstruction or prevention of the exercise of duties), 216 (crimes against public health), 234 (illegal lockout, strikes and stoppages) and 303 (violation of the freedom to work) under the Criminal Code and to formally accuse Jonny Calani, Marlene Ortiz Flores and Jeny Vilma Camacho Águila of committing offences punishable under sections 161 and 303 of the Criminal Code; (4) the substantiation of the accusation indicates that the offences of preventing, obstructing or, where relevant, restricting the freedom to work, as stipulated in sections 161 and 303 of the Criminal Code, are considered de jure to be intentional wrongdoings and are enforceable when the mere act of preventing, obstructing or where relevant restricting labour activity occurs; (5) in this case, by illegally imposing a general strike at the CNS with the aim of preventing the head of personnel from carrying out his work, the accused parties prevented and obstructed the normal performance of his duties as a public official, thus infringing on his fundamental right to work, and their actions thereby constituted the offences stipulated in sections 161 and 303 of the Criminal Code; (6) the proceedings were started on 13 June 2008; the oral hearing was fixed for 15 December 2008 but had to be suspended because the defence lawyer resigned; later the hearing fixed for 15 June 2009 was suspended because none of the judges appeared; on 6 January 2010 the hearing was again suspended because Trial Court No. 4 did not have a technical judge in office; (7) the executive branch was not responsible for the suspensions of the oral hearings; and (8) with the intervention of the Ministry of Labour, Employment and Social Security an agreement was reached between the parties of the labour dispute, establishing that the days of strike would not be deducted.
3. 279. In this respect, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, considers that criminal sanctions should not be imposed on any worker for participating in a peaceful strike and therefore, measures of imprisonment should not be imposed on any account; such sanctions may only be imposed if during a strike violence against persons or property or other infringements of common law are committed for which there are provisions set out in legal instruments and which are punishable thereunder. The Committee also recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest of decisions and principles of the Freedom of Association Committee, 2006, para. 667]. The Committee highlights that according to the Government criminal actions against the trade union officials were not brought by the Hospital Obrero Number 2 but by the head of personnel as an individual and that the trade union and employer reached an agreement which brought to an end the dispute. In these circumstances, the Committee expects the Government to forward the present report as well as the abovementioned principles to the relevant judicial authority. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 280. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government: (1) to keep it informed as to the ruling that is handed down in respect of the trade union officials Freddy Puente Camacho, Wilma Alcocer Mayorga, Raúl Limachi Choque, María Rosalía Orellana Jiménez, José Maldonado Gremio, Jonny Calani, Marlene Ortíz Flores and Jeny Vilma Camacho Águila; and (2) to forward the present report and the abovementioned principles to the relevant judicial authority.