Rapport intérimaire - Rapport No. 24, 1956

Cas no 146 (Colombie) - Date de la plainte: 03-MAI -56 - Clos

A. A. The complainants' allegations

1. 259. The allegations made by the Confederation of Workers of Latin America (C.T.A.L) are contained in two communications dated 3 May and 21 June 1956 respectively ; these are analysed separately below.
   • Communication dated 3 May 1956
2. 260. The complainant alleges that the Colombian Government has adopted a repressive policy in violation of the principles laid down in the Universal Declaration of Human Rights and that in so doing it has trampled on the workers' fundamental rights. The Government is stated to be preparing a military campaign against the peasants in the department of Tolima.
3. 261. The Government is alleged to have issued two decrees making free expression of opinion an offence and abolishing the Constitutional right to strike. The first of these decrees prevents trade unions from being led by workers " who genuinely represent their fellow workers' interests " ; under penalty of from two to ten years' imprisonment the receipt or circulation of the publications of international democratic organisations or membership of these organisations is forbidden.
4. 262. It is stated that in the second decree the Government has tried to prevent workers from acting in support of their economic claims. In particular, the complaining organisation mentions the following provision which, in its opinion, completely abrogates the right to strike recognised by the Colombian Constitution, and is contrary to the resolutions adopted at various I.L.O meetings which have been endorsed by the Colombian Government:
   • The public service shall be deemed to include, inter alia, the following forms of employment:
     • (a) any branch of the government service ;
     • (b) land, water or air transport undertakings, water supply, electric power and telecommunications ;
     • (c) health establishments of all kinds, such as hospitals and clinics ;
     • (d) social assistance, charitable and welfare institutions ;
     • (e) dairies, markets, slaughter-houses and all public or private distributive outlets of such establishments ;
     • (f) all public hygiene and cleansing services ;
     • (g) the extraction, processing and distribution of salt ;
     • (h) the extraction, refining, transport and distribution of oil and its by-products when, in the opinion of the Government, these are intended to maintain normal supplies of fuel ;
     • (i) any others that in the opinion of the Government affect the safety, health, education and economic or social life of the population. The Government shall decide in consultation with the Council of State which forms of employment fall within the category defined in this subsection.
   • Communication dated 21 June 1956
5. 263. In this connection the complainant describes a series of events constituting " the most appalling crimes in the history of Latin America " ; these involve violations of trade union and democratic rights, large-scale massacres of workers and peasants, and genocide. United Nations intervention is urged to put an end to this situation. It is stated that on 24 April a wave of murders " without reason or justification " took place in a number of places-which the complainant mentions by name-in the department of Tolima. It is alleged that these murders formed part of a plan to " pacify " the country. The massacre was carried out by a military force totalling 1,000 men. The bulk of the victims (some of whom are mentioned by name in the complaint) were in Santo Domingo ; it is alleged that before being put to death a number of peasants were castrated and forced to dig their own graves. In Los Brazuelos, Calarma and Guaipa, 140 peasants were brutally murdered, while women were assaulted and beaten. Many workers were murdered while they were working in the coffee plantations. The prisons in these towns contain a number of prisoners who are minors. Many prisoners disappear mysteriously and are probably put to death. The Government is alleged to consider that " political prisoners are a problem because they may become a focus for agitation whereas once they are dead they can only be used in this way for a few days ". The church authorities have protested without result to the military authorities against these crimes ; thousands of people are stated to have fled for their lives to other areas.
   • ANALYSIS OF THE REPLY
6. 264. In its communication dated 12 September 1956 the Colombian Government makes its comments on the complaint dated 3 May 1956. It begins by saying that as a general principle it rejects any type of interference in the country's internal jurisdiction, since no international organisation has the power to encroach on this field which belongs exclusively to individual States, as is clearly specified in article 2 (7) of the United Nations Charter. However, out of deference towards the International Labour Organisation, to which Colombia has belonged since it was founded, the Government, while completely rejecting accusations made by a Communist-inspired organisation " which systematically sets out to discredit democratic governments ", is prepared to comment on the charges made.
7. 265. The first decree referred to by the C.T.A.L must be the Extraordinary Decree No. 0434 of 1 March 1956, which the Government reproduces in its reply and which was issued under Act No. 6 passed in 1954 to reform the National Constitution and " to prohibit international communism ". The sole purpose of this anti-Communist legislation is to safeguard democracy and Christian civilisation and it is a distortion of the facts to allege that it is an attempt to prevent "representative workers " from reaching positions of leadership in the unions. There are in Colombia two Confederations, a number of federations and some 700 unions which exercise their rights freely and democratically. This fact is acknowledged by the Inter-American Regional Organisation of Workers (O.R.I.T) in a letter which is quoted in the Government's reply. This letter states, inter alia, that " documentary evidence supplied by our affiliate ... proves that the free and independent trade unionism that you advocate for your country coincides with the O.R.I.T.'s conception of genuine trade unionism ". The Colombian Workers' delegate at the 39th Session of the International Labour Conference, who is now Vice-Chairman of the Colombian Workers' Union, stated in plenary sitting : " Freedom of association is absolute. In the last 12 months, 2,987 trade union meetings and workers' congresses have been held, and in the same period there have been founded and put into operation the new National Confederation and 80 workers' unions. At present there are three trade union centres, grouping almost all the trade unions. All operate quite freely as regards their policy and activities without interference from the State or from one another. "
   • The Government's policy - as enunciated in various public statements - supports " free and democratic trade unionism as against a government-dominated or totalitarian movement ... ; a non-political trade union movement, i.e. one that is concerned with the interests of its members and has no party preoccupations ... ; a national trade unionism having no contact with communism or any other pernicious foreign doctrines by whatever name they may be called ... ; and a trade unionism that shows respect for the catholic feelings of Colombians ". In accordance with this policy the National Trade Union Supervisory Department in 1955 and 1956 granted incorporated status in 96 cases, approved 105 amendments to by-laws, approved and registered 213 new executive boards, called nine trade union congresses, approved the accounts of 351 trade union organisations, answered 140 queries on these questions and dealt with 24,840 cases.
8. 266. With reference to the second decree mentioned by the C.T.A.L, the Government quotes section 18 of the Colombian Constitution which states : " The right to strike is guaranteed except in public services. The exercise of this right shall be regulated by law." The first regulation on this subject was section 430 of the Labour Code which has since been amended by Decree No. 0753 of 5 April 1956, which is the subject of the complaint made by the C.T.A.L. The Government reproduces this decree in its reply. It makes three amendments to section 430 of the Labour Code. In the first place it gives a technical definition of a " public service " which embodies the most recent interpretation of the experts on administrative law, and which has been supported by the Supreme Court of Justice since 1944. Precedents for this legal definition are to be found in a Bill drafted by the Faculty of Law of the National University of Colombia and in a Bill tabled in the House of Representatives in 1937 by a Communist member. In the second place it gives a list, which is not restrictive, of the public services in which strikes are prohibited. This list conforms to the wording of section 430 of the Labour Code except that it adds " the extraction, processing and distribution of salt ". Lastly, it follows the two Bills that have been referred to in defining as public services " any others that in the opinion of the Government affect the safety, health, education and economic or social life of the population. The Government shall decide in consultation with the Council of State which forms of employment fall within the category defined in this subsection. " This recourse to the Council of State, which is the highest court for disputes under administrative law, affords a safeguard to the community at large.
9. 267. The Government concludes by stating that the facts themselves prove that the accusations of the C.T.A.L are groundless since, during the three years in which the present Government has been in power, there have only been nine strikes (of which the Government's reply gives details) and these have been outside the public services.

Competence

1. 268. The Government states that in accordance with article 2, paragraph 7, of the United Nations Charter, it cannot accept any interference in its internal jurisdiction by international organisations. Nevertheless, out of deference to the I.L.O it is prepared to comment on the complaint of the C.T.A.L.
2. 269. In the circumstances, the Committee reaffirms its conclusions in certain earlier cases (Case No. 12 : Argentina ; Cases Nos. 63 and 102 : Union of South Africa and Case No. 148: Poland 3) that, having regard to the decision taken by the International Labour Conference at its 33rd Session in 1950, it is unnecessary to reopen the question of the I.L.O's competence in this respect.
3. Allegations relating to the Prohibition of Communism
4. 270. According to the complaining organisation, a decree issued by the present Government makes the free expression of opinion an offence and prevents certain workers from reaching positions of leadership in trade unions. Membership of international democratic organisations, together with the receipt or circulation of documents, is prohibited under penalty of from two to ten years' imprisonment.
5. 271. The Government states that this refers to Act No. 6 of 1944 and the Extraordinary Decree No. 0434 of 1 March 1956 issued under it. The Act states:
6. Section 1. Political activities by international communism shall be prohibited. Regulations shall be issued to implement this prohibition.
7. Decree No. 0434 issued in 1956 regulates the question in the following manner:
8. Section 1. Any person who takes part in political activities of a Communist character shall be liable to from one to five years' penal servitude or to detention for a similar period in a penal agricultural colony ; to forfeiture of the power to exercise public rights and functions for ten years ; to exclusion from office in a trade union for the same length of time and from membership at any time of the armed forces.
9. ......................................................................................................................................................
10. A person on whom one of the foregoing sentences has been imposed shall not be entitled to any of the remittances of sentence allowed in previous provisions and if he is an alien he shall be expelled from the country once his sentence has been served.
11. Section 2. Persons engaging in political activities of a Communist character shall be taken to be those who obey orders or instructions from foreign Communist parties or bodies or who in any way whatsoever advocate or try to introduce into the family, society or the State the doctrines and methods of international communism or knowingly attend meetings or assemblies of this character, whether openly or secretly.
12. Section 3. There shall be a presumption that a person is guilty of taking part in Communist political activities if he:
13. (a) with his knowledge and without protest is stated in any book, register, list, correspondence or other document to be a registered member of a Communist organisation ;
14. (b) contributes money by means of dues or gifts for Communist objectives ;
15. (c) occasionally, temporarily or permanently accepts the discipline of Communist organisation ;
16. (d) carries out the plans or executes instructions or orders of Communists or Communist organisations or divulges or communicates them in any way whatsoever ;
17. (e) acts as a leader, organiser, correspondent, messenger, agent, propagandist or in any similar capacity on behalf of a Communist organisation ;
18. (f) writes documents, pamphlets, leaflets, books or any other type of publication in support of Communist aims or purposes or distributes, transports or circulates the aforesaid publications as propaganda ;
19. (g) states that he has decided to carry out the plans, instructions or orders of Communists or Communist organisations working for the aims and purposes of communism.
20. Section 4. Violations of the present decree shall be dealt with by the military criminal courts by means of the court martial procedure. Accordingly any appeals against the verdicts of such courts shall be made through the channels for review and appeal provided by the Code of Criminal Justice.
21. ......................................................................................................................................................
22. 272. The Government goes on to say that this anti-Communist legislation, so far from conflicting with the aims of trade unionism, is designed to safeguard democracy. The Inter-American Regional Organisation of Workers (O.R.I.T) and the representative of the Colombian workers are stated to have acknowledged that trade unionism in Colombia is free. Government policy supports a free democratic non-political and national trade union movement which pays due respect to Catholicism.
23. 273. It should be noted in the first place that the complaining organisation, although alleging that this legislation makes the free expression of opinion an offence and prevents certain individuals from becoming trade union leaders, does not mention any actual case in which the operation of this legislation has involved a definite violation of trade union rights. However, Decree No. 0434 of 1956 debars from trade union office for a period of ten years " any person taking part in political activities of a Communist character ". The penalties are inflicted by military courts and section 3 of the decree lists a number of legal presumptions whereby any person can be held to be " responsible for taking part in political activities of a Communist character ". This position could involve a violation of the principle laid down in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) which states that employers' and workers' organisations have the right " to elect their representatives in full freedom, to organise their administration and activities " and that " the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof ".
24. 274. The Committee has already been called upon to examine cases in which it was alleged that anti-Communist legislation involved an infringement of trade union freedom. In Cases Nos. 63 and 102 (Union of South Africa), the Committee was called upon to examine allegations dealing with the operation of the South African Suppression of Communism Act of 1950 (amended in 1951) to the effect that a number of trade union leaders had been excluded from any form of union activity. In the former of these cases the Committee concluded that " in so far as the South African Act of 1950 was enacted as the Government contends, purely for a political reason, namely that of barring Communists in general, as citizens, from all public life, the Committee considers that the matter is one of internal national policy with which it is not competent to deal and on which it should therefore refrain from expressing any view. However, in view of the fact that measures of a political nature may have an indirect effect on the exercise of trade union rights, the Committee wishes to draw the attention of the South African Government to the views which it has expressed in the above cases with regard first, to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing and, secondly, to the importance of due process in cases in which measures of a political nature may indirectly affect the exercise of trade union rights."
25. 275. In the present case, the complaining organisation alleges no actual instance of violation of freedom of association but merely declares that anti-Communist legislation exists. In these circumstances the Committee reaffirms its conclusions in Cases Nos. 63 and 102 which have already been referred to and draws the attention of the Colombian Government to the importance which it attaches to ensuring that political measures which may indirectly affect the free exercise of trade union rights do not impair the freedom of the workers, without distinction whatsoever, to join organisations of their own choosing or the right of trade unions to elect their representatives in full freedom, as laid down in Articles 2 and 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ; the prohibition contained in Decree No. 0434 of 1956 may result in these rights being ignored. Accordingly, the Committee, as in the other cases referred to, recommends the Governing Body to communicate these conclusions to the Colombian Government.
26. Allegations relating to the Right to Strike in Public Services
27. 276. The complaining organisation alleges that the right to strike which is recognised by the Colombian Constitution has been set aside by a decree which amends the Labour Code by enlarging the definition of those public services in which strikes are forbidden to include any others that, in the opinion of the Government affect the safety, health, education and economic or social life of the population, and empowering the Government to decide in consultation with the Council of State which forms of employment fall within the categories defined. The Government, on the other hand, states that section 18 of the Constitution itself forbids strikes in public services and that the decree referred to by the complainant-Decree No. 0753 of 5 April 1956 amending section 430 of the Labour Code-only introduces detailed technical changes in the existing regulations, viz., it gives a technical legal definition of a " public service " ; it adds the extraction, processing and distribution of salt to the non-restrictive list given in the Code (enumerated in paragraph 262 above) ; and, lastly, it empowers the Government with the approval of the Council of State to designate other activities as public services. The Government adds that the complaint is proved to be groundless by the fact that during the present administration no strikes have broken out in these services, as is shown by a detailed list of strikes attached to the Government's reply.
28. 277. The Committee considers that the only feature of the complaint it is called upon to examine is whether or not the restrictions imposed on the right to strike in Colombian public services involve any curtailment of trade union rights.
29. 278. On a number of previous occasions the Committee has had an opportunity of passing judgment on restrictions imposed on the right to strike either for reasons of law and order or in services considered essential for the community. In Case No. 60 (Japan) the Committee summarising its conclusions in a number of earlier cases-stated " the Committee considers that it is not called upon to give an opinion on the question as to how far the right to strike in general-a right which is not specifically dealt with in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)-should be regarded as constituting a trade union right ". Nevertheless, in earlier cases, such as that of Turkey, the Committee found that the workers and their organisations are usually granted the right to strike as an integral part of their right to defend their collective interests. In the earlier case of Brazil (Case No. 11), the Committee examined the question of the prohibition of strike action by workers in key industries, such as water, gas and electricity supply, hospitals and, in this particular instance, transport and communications. The Committee noted that strikes were only forbidden completely in those occupations which were considered to be essential. In its conclusions the Committee recommended the Governing Body to urge the Government to bear in mind the importance of providing adequate safeguards whenever strikes are forbidden in key industries in order to protect the workers, who are thereby deprived of an essential means of defending their interests.
30. 279. In the present case the Committee notes that sections 452 et seq. of the Colombian Labour Code lay down an arbitration procedure for collective disputes arising in public services. It is compulsory for such disputes to be taken to a tripartite arbitration board appointed by the Ministry of Labour (section 453) ; the arbitration award, which is valid for a period not exceeding two years, terminates the dispute and is equivalent to a collective agreement (section 461).
31. 280. In these circumstances the Committee notes that, although there exists a procedure for the settlement of disputes by means of arbitration, the restrictions on the right to strike in public services are far-reaching, and that the Government has the right to include in the definition of those public services in which strikes are forbidden any others that, in the opinion of the Government, affect the safety, health, education and economic or social life of the population and the power to decide, in consultation with the Council of State, which forms of employment fall within the categories defined. In these circumstances, the Committee recommends the Governing Body to draw the attention of the Government to the possibility of abuse present in such a situation and to request the Government to furnish information as to the extent to which use has been made of the provisions in question and as to the existing jurisprudence of the Council of State relevant to this matter.
32. Allegations relating to Massacres of Peasants and Workers
33. 281. Most of the allegations regarding massacres of peasants and workers by military forces in the department of Tolima in April 1956 are contained in the communication from the complaining organisation dated 21 June 1956. The Government has not yet had an opportunity of making its comments thereon as the I.L.O only received the allegations from the United Nations Secretariat on 9 October 1956 and forwarded them to the Government on 23 October 1956.
34. 282. According to the C.T.A.L, these allegations concern " the most appalling crimes in the history of Latin America " ; " large-scale murders of peasants and workers " ; a " brutal massacre ... without equal in history " ; " barbarous crimes which bring shame on all humanity ". In more detail, these allegations are concerned with violations of human rights and with the crime of genocide, which has been condemned by the United Nations and by " humanity as a whole ".
35. 283. As the Colombian Government has not yet had an opportunity of commenting on these allegations, the Committee, while considering that it cannot pass judgment on these allegations or on the extent to which a question affecting trade union rights is involved until the Colombian Government has submitted its observations, emphasises the importance which it has always attached to the fundamental civil liberties proclaimed in the Universal Declaration of Human Rights and to due process in the examination of charges of violations of the law of the land which may have a bearing on the exercise of trade union rights. The Committee will report further to the Governing Body after the Government's observations have been received.

The Committee's recommendations

1. 284. In the circumstances, the Committee recommends the Governing Body:
   • (a) to communicate the observations set forth in paragraph 275 to the Colombian Government, but to decide that the allegations regarding anti-Communist legislation do not call for further examination ;
   • (b) to draw the attention of the Government to the possibility of abuse present in the application of the provisions empowering the Government to include in the definition of those public services in which strikes are forbidden any others that, in the opinion of the Government, affect the safety, health, education and economic or social life of the population, and to decide in consultation with the Council of State which forms of employment fall within the categories defined, and to request the Government to furnish information as to the extent to which use has been made of the provisions in question and as to the existing jurisprudence of the Council of State relevant to this matter ;
   • (c) to take note of the present interim report with regard to the allegations concerning massacres of workers and peasants, in which the Committee indicates that it cannot formulate its conclusions on these allegations or on the extent to which a question affecting trade union rights is involved until the Colombian Government has submitted its observations ; to emphasise the importance which it has always attached to the fundamental civil liberties proclaimed in the Universal Declaration of Human Rights and to due process in the examination of charges of violations of the law of the land which may have a bearing on the exercise of trade union rights ; and to note that the Committee will report on these allegations when it has received the Government's observations thereon.
     • Geneva, 15 November 1956. Roberto AGO, Chairman.