Rapport définitif - Rapport No. 168, Novembre 1977

Cas no 849 (Nicaragua) - Date de la plainte: 24-MAI -76 - Clos

108. The Committee has already examined Case No. 849 at its November 1976 session, when it submitted an interim report. Since then the Government has sent a further communication dated 23 February 1977. The complaints relating to Case No. 825 have come from the Trade Union of Carpenters, Bricklayers, Timber and Allied workers of Managua, the World Federation of Trade Unions and the General Labour Confederation of Managua (Independent). They are contained, respectively, in communications dated 23 September 1975, 11 February 1976 and 10 January 1977. The WFTU supplied further information on 19 January 1977. The Government forwarded its observations by communications dated 20 December 1975 and 9 March 1977.

1. 108. The Committee has already examined Case No. 849 at its November 1976 session, when it submitted an interim report. Since then the Government has sent a further communication dated 23 February 1977. The complaints relating to Case No. 825 have come from the Trade Union of Carpenters, Bricklayers, Timber and Allied workers of Managua, the World Federation of Trade Unions and the General Labour Confederation of Managua (Independent). They are contained, respectively, in communications dated 23 September 1975, 11 February 1976 and 10 January 1977. The WFTU supplied further information on 19 January 1977. The Government forwarded its observations by communications dated 20 December 1975 and 9 March 1977.
2. 109. Nicaragua has ratified both 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. A. The complainants' allegations

• Case No. 825
  110. 110 The Trade Union of Carpenters, Bricklayers, Timber and Allied workers of Managua alleged that the Government of Nicaragua had launched a wave of repression, arresting and persecuting trade union leaders of the General Labour Confederation (Independent) and leaders of its member unions. It added that it feared for the lives of prominent trade union leaders who had been imprisoned without having any charges brought against them or appearing before any judicial authority. It claimed that governmental actions constituted the main handicap faced by the workers' Confederations in their efforts to organise new unions. The workers organised within various industries throughout the country had been threatened and warned that they must not join any union. Members of unions were constantly being dismissed. The situation was the same in the countryside; it was forbidden to form farmworkers' unions, and when this was nevertheless done the leaders were arrested and charged with subversion.
  111. 111 The complainants named nine leaders who were in prison: Domingo Sánchez Salgado, General Secretary of the Peasants' and Agricultural Workers' Confederation of Nicaragua (CCTAN); Alejandro Solorzano Obregon, Disputes Secretary of the Trade Union of Carpenters, Bricklayers, Timber and Allied Workers of Managua (SCAAS); Gonzalo Navarro, Organising Secretary of the SCAAS in Diriamba; Juan Sequeira, activist in the Masaya Workers' Confederation; José Antonio Davila, activist in the SCAAS in Managua; Salvador Suárez, General Secretary of the Masaya Workers' Confederation; Pablo Herrera, Organising Secretary of the SCAAS in Ginotega; Juan Triana, President of the Typesetters' Union of Managua; and Julio Rayo, official of the SCAAS in Ginotega. The complainants emphasised that these persons were being detained without trial.
  112. 112 In its communication of 20 December 1975, the Government stated that it had never sought nor wished to obstruct freedom of association among workers and that it had in no way restricted the personal freedom of the persons mentioned. It added that Nicaragua respected and guaranteed the rights of workers, as attested to by the large numbers of lawfully constituted trade unions and the various collective agreements concluded between employers and trade unions, with the participation of the Ministry of Labour.
  113. 113 At its session in February 1976, the Committee adjourned the case and decided to transmit the substance of the Government's observations to the complainants and to invite them to submit any comments they might wish to make thereon, on the understanding that the Government would be given an opportunity to reply to these comments.
  114. 114 In the meantime, the World Federation of Trade Unions, in its communication of 11 February 1976, had made allegations similar to those made by the Trade Union of Carpenters, Bricklayers, Timber and Allied workers of Managua.
  115. 115 In its communication of 10 January 1977, the General Labour Confederation (Independent) (CGTI) stated that the trade unionists named in the original complaint were subsequently released as there were no grounds on which they could be charged. However, continued the CGTI, in the course of 1976 other trade unionists were imprisoned. It mentioned the names of Pablo Emilio Centeno Pérez, President of the Drivers' Union of Managua; Ramon Duarte Mora, of the Shoemakers' Union of Granada; Pedro Baltodano Gonzalez, of the Sawmill Workers' Union of Managua; Bernardo Arauz, a peasants' leader of the CCTAN; and Jesus Arauz, also a peasants' leader. No formal charges were brought against them and they were not prosecuted. They were now at liberty.
  116. 116 The complainant organisation added that other persons had now been arrested: Gonzalo Navarro Marín, of the Building Workers' Union (SCAAS) for the department of Carazo, and Carlos Salgado Membreno, Organising Secretary of the General Labour Confederation (Independent). The former had been arrested on 28 December 1976 and the latter on 30 December on his return from abroad. According to the complainants neither of them had committed any offence and in consequence no charges had been brought against them. They were being kept in solitary confinement and could not be visited by their families or their lawyers.
  117. 117 The CGTI referred to certain matters which, in its view, involved breaches of Convention No. 87. In the first place, it stated that the Ministry of Labour, through its Trade Union Organisations Department, supplied persons wishing to found trade unions with forms which it was compulsory to fill in. These forms consisted of rough outlines of Constitutions and rules which had to be completed in a manner appropriate to the type of union in question. In the opinion of the complainant organisation, this meant that trade unions were unable to draw up their rules and formulate their programmes in full freedom.
  118. 118 The CGTI stated that even though the documents relating to the Constitution of trade unions were drafted by the ministry of Labour, they were submitted for examination to the Ministry's Legal Department. The organisation cited the example of the Automobile Workers' Union, which was registered and legalised a year after depositing the required documents, by which time the workers had already lost interest in the union as a result of the Ministry's delaying tactics. Another example cited was that of the Commercial Workers' Union of Managua, which had been refused legal personality on the ground that it was an industrial union and not an occupational union. According to the CGTI, other independent trade unions had not been granted legal personality. The complainants claimed that this constituted systematic discrimination against the independent trade union movement. In conclusion, the CGTI requested that a commission be sent to Nicaragua to observe the unlawful practices of which the trade union movement in general, and the CGTI in particular, were the victims.
  119. 119 In its letter of 19 January 1977, the WFTU alleged that the Government of Nicaragua had taken strongly repressive action against workers' and peasants' leaders who were demanding wage increases and better working conditions. It referred to the arrest of Carlos Salgado Membreno, General Secretary of the CGTI, who, it was claimed, had been arrested by special agents of the National Guard.
  120. 120 In its reply of 9 March 1977, the Government referred to the persons named in the letters from the CGTI and the WFTU. With regard to Ramon Duarte Mora, Pedro Pablo Gonzalez, Bernardo Arauz and Jesus Arauz, the Government stated that the competent authorities had no knowledge of the detention of these persons or of their arrest for having participated in trade union movements. Ramon Duarte Mora was, according to the Government, the only one of these persons who was known to have concerned himself with trade union affairs. The Government further stated that no organisation with the initials CCTAN was known to exist in Nicaragua.
  121. 121 As concerns Pablo Emilio Centeno Pérez, the Government stated that he had been arrested at the end of 1976 on his return from a trip to Eastern Europe for reasons which involved subversive activity against the Government of Nicaragua. Once the inquiries had been completed he had been released. The Government added that he had never been arrested for trade union activities.
  122. 122 With regard to Gonzalo Navarro Marín, of the Building workers' Union (SCARS) for the department of Carazo, the Government stated that he had been provisionally detained for police offences and had now been released. The Government further pointed out that there was no building workers' union in the department of Carazo, where there was very little of this type of activity.
  123. 123 The Government also mentioned the case of Carlos Salgado Membreño, who had been briefly taken into-custody, for the purpose of inquiries, at "Las Mercedes" international airport, on his return from Eastern Europe, because it had been learned that he was involved in subversive activities prejudicial to the security of the Republic. He had, therefore, not been arrested, continued the Government, as part of a campaign of repression directed against workers' and peasants' leaders who had demanded wage increases and better working conditions. The Government further stated that, like the signatory of the CGTI's complaint, Carlos Salgado Membreño was a signatory to the programme of the Democratic Union for Liberation (UDEL), a strictly political and subversive movement.
  124. 124 The allegations concerning the forms for Constitutions and rules to be filled in when a trade union is formed were, according to the Government, completely false and absurd. Never had the Ministry of Labour compelled anyone to sign or fill in forms. There existed in the Ministry a Legal Department and a Trade Union Organisations Department which offered their assistance to workers. The procedures for the establishment of a trade union were clearly specified in the Labour Code, which was distributed free of charge to all workers who requested it.
  125. 125 Sometimes, continued the Government, workers asked the Legal Department how to draw up a Constitution and rules, and the Department gave them the necessary explanations in general terms on the basis of the laws in force. Requests like this were made because it was commonplace for documents of this type to be drawn up by lawyers or notaries and workers might not be able to afford their fees.
  126. 126 With regard to the allegations concerning the discrimination to which the independent trade union movement was said to have been subjected, the Government stated that the labour authorities showed no preference towards anybody, nor did they discriminate against groups which engaged in genuine trade union activities. As evidence, the Government supplied copies of agreements signed between undertakings and the Trade Union of Carpenters, Bricklayers, Timber and Allied Workers (SCARS). It also enclosed press cuttings referring to meetings at the Ministry of Labour in which members of the CGTI and the SCARS had taken part.
• Case No. 849
  127. 127 The complaint presented by the Latin American Central of porkers (CLAT) and the world Confederation of Labour concerned the Union of Agricultural workers of Nueva Segovia (UTC), which, according to the complainant organisations, was affiliated to the Central of workers of Nicaragua (CTN) and comprised over 40 communities and organisations of rural workers in the region.
  128. 128 In their communication, the complainants alleged that the national army had prevented the holding of a meeting of the Council of first-degree organisations of the UTC convened for 13 and 14 December 1975 near Jalapa, in the department of Nueva Segovia. In fact, according to the complainants, the General Secretary of the Central of Workers of Nicaragua, Adolfo Bonilla, had been arrested on 13 December along with two other persons, when he was due to take part in the meeting scheduled for that day.
  129. 129 Other members of the armed forces had arrested UTC leaders, among whom were Cástulo López, chairman; Venancio Blandón, comptroller; Francisco Cáceres, secretary for training; Maximo Zeledón, secretary for co-operatives; and Vicente García, member; and two members of the CTN Executive, Carlos Huembes and Ofilio García. All of these persons had been locked up in two detention centres (Jalapa and Ocotal) and subjected to physical and psychological torture for two days, during which the leaders of the UTC and CTN had been ordered to cease their trade union activities in the region on pain of death.
  130. 130 Following action taken by the Legal Department of the CTN, the detained leaders had been released on 15 December, after their heads had been shaved, and the national leaders had been threatened with the consequences if they ever returned to the region. Despite their rapid release, Máximo Zeledón, Vicente García and Matías Talavera had to undergo medical and hospital treatment as a result of their maltreatment by the police. As a consequence of all these events, the meeting of the Council of the UTC could not be held, and this, according to the complainants, was in line with the Government's objectives.
  131. 131 In its reply, the Government stated that the allegations made by the complainant organisations were false, premeditated and more of a political than a trade union nature. The Government added that no organisation by the name of Central of Workers of Nicaragua or Union of Agricultural Workers of Nueva Segovia was registered either at the Department of Trade Union Organisations or at the Department of Co-operatives of the Ministry of Labour. The situation was the same as regards the communities and organisations of rural workers said to be affiliated to the UTC.
  132. 132 The Government appended a cutting from the newspaper La Prensa of 14 December 1974 containing the minimum programme of the Democratic Union for Liberation (UDEL), a political opposition movement in which the Central of Workers of Nicaragua participates. Among the signatories of this programme, in their capacity as representatives of the CTN, were Adolfo Bonilla and Carlos Huembes, both mentioned in the complaint.
  133. 133 At its November 1976 Session, the Committee recommended the Governing Body, inter alia:
       • - to draw attention to certain principles and considerations, concerning in particular the detention of trade unionists;
       • - to request the Government to supply information on the reasons justifying the arrest of the persons concerned;
       • - to request the Government to forward its observations on the allegations concerning the maltreatment alleged to have been inflicted on the detainees;
       • - to transmit the substance of the Government's reply to the complainant organisations to enable them to forward their observations and, in particular, to furnish details regarding the situation of the Central of Workers of Nicaragua and the Union of Agricultural Workers, which, according to the Government, were not registered at the Ministry of Labour.
  134. 134 Since then, no comments have been supplied by the complainant organisations.
  135. 135 In its communication of 23 February 1977, the Government confirmed the momentary detention of Adolfo Bonilla, Carlos Huembes and Ofilio García. They had been arrested in a mountainous region in the north of the country placed under special military control on account of the guerrilla operations being carried on in this area by armed subversive elements against the legal government. In these circumstances, according to the Government, the arrests were precautionary measures inasmuch as Adolfo Bonilla and Carlos Huembes were rebellious and subversive activists in political groups which were seeking to overthrow the established institutions and take over the Government.
  136. 136 The Government stated once again that Adolfo Bonilla and Carlos Huembes were signatories to the programme of subversive combat adopted by the Democratic Union for Liberation (UDEL), which was a political movement in total opposition to the present Government. It was therefore logical that they should be provisionally taken into custody so that their presence in the area could be investigated.
  137. 137 The Government stated that it was unable to give any information about the other persons mentioned in the complaint as their detention was brief and provisional. They were released as soon as it had been established that they had no links with the subversive elements operating in the area.
  138. 138 The Government strongly refuted the allegations of ill-treatment said to have been inflicted upon the persons arrested.
  139. 139 Lastly, the Government repeated that the unions mentioned in the complaint did not exist.

B. B. The Committee's conclusions

• Conclusions of the Committee with regard to these two cases
  140. 140 The Committee notes that both the cases before it are mainly concerned with the alleged arrest of trade union leaders. In addition, one of these cases involves allegations relating to interference by the authorities in the drawing up of the Constitutions and rules of trade unions and discrimination against certain organisations in respect of the granting of legal personality.
  141. 141 As concerns the arrests, the Government states that it has no knowledge of the detention of some of the persons named by the complainants. As regards the persons whose arrest it does confirm, the Government states that this action was taken because they were subversive elements, or were involved in subversive activities, or that they were arrested for the purpose of inquiries, but in no case because of their trade union activities. They were kept in custody only for a short time, and all the persons mentioned were subsequently released without charges being brought. Various reasons are given by the Government to justify these measures: a trip to Eastern Europe, presence in an area where guerrilla operations were being carried on, association with the programme of the Democratic Union for Liberation (UDEL).
  142. 142 The Committee considers that if the Government had good grounds to believe that some of the persons arrested were implicated in subversive activities, they should have been rapidly brought before the courts to be tried with full safeguards for normal judicial procedure. In this connection the Committee wishes to emphasise the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are accused of political or criminal offences which the Government considers to have no relation to their trade union functions. In any event, the detention by authorities of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights. Governments should take steps to ensure that the authorities concerned have instructions appropriate to eliminate the danger of detention for trade union activities.
  143. 143 As concerns the Democratic Union for Liberation (UDEL), the Government states that this is a movement with a strictly political programme calling for subversive action against the Constitutional Government of Nicaragua. The Committee has examined the text appended to the Government's reply and notes that it is a programme of opposition, signed by the representatives of various political or trade union organisations, and dealing mainly with such matters as the democratisation of the country, national economic development, the adoption of new social legislation and national sovereignty. Various proposals are made concerning each one of these points. In the first place, the programme calls for freedom of information and expression, the promulgation of laws dealing with tax evasion, the civil service and elections, and the institution of a legitimate regime based on respect for the Constitution. In the economic field, proposals are made in particular for the progressive nationalisation of mining, forestry and maritime resources, the carrying out of agrarian reform, the promotion of a policy of national industrialisation and the regulation of foreign investment. In the social field, the new legislation proposed falls under four headings: the Labour Code, which should guarantee freedom of association and the right to strike, regulations to govern peasants' organisations, regulations on the status of teachers and measures to achieve full employment. The programme also refers to the need for a reorganisation of the judiciary and the launching of a national health plan. There are also several clauses referring to foreign policy, which should be "independent, based on the principle that all States are equal in the eyes of the law and on economic equity".
  144. 144 On this paint the Committee considers it useful to refer to the principles proclaimed in the resolution concerning the independence of the trade union movement adopted by the International Labour Conference in 1952. This resolution provides that "when trade unions in accordance with national law and practice in their respective countries and at the decision of their members, decide to establish relations with a political party or to undertake Constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions irrespective of political changes in the country."
  145. 145 The Committee notes that according to the Government some of those arrested were officials of organisations not registered with the Ministry of Labour. The Committee regrets that the complainant organisations, although invited to comment on this point, have not done so. As a result the Committee is not in a position to express its views on this question.
  146. 146 The Committee notes that the Government denies that any of the persons arrested was ill-treated as has been alleged. The Committee can only note that the versions given by the complainants and by the Government on this point are totally contradictory. It wishes to point out in general terms that when in detention trade unionists, like all other persons, are entitled to benefit from the guarantees laid down in the Universal Declaration of Human Rights. Furthermore, complaints of ill-treatment of persons under arrest should be investigated by governments so that necessary action can be taken.
  147. 147 With regard to the allegations relating to interference by the authorities in the drawing up of the Constitutions and rules of trade unions, and discrimination against certain trade union organisations in respect of the granting of legal personality, the Committee has examined the relevant provisions of the Labour Code and of the regulations governing trade union associations. The Committee has noted that section 198 of the Labour Code lists various particulars which must be contained in the Constitutions and rules of trade unions. The Committee considers that a requirement that union rules shall comply with national statutory requirements does not constitute a violation of the principle that workers' organisations should have the right to draw up their Constitutions and rules in full freedom, provided that such statutory requirements are in conformity with the principles of freedom of association and that approval of the rules is not within the discretionary powers of the public authorities. The Committee is also of the opinion that the preparation of specimen Constitutions and rules for the guidance of trade unions which there is no obligation to accept does not, provided that the circumstances are such that there is no compulsion or pressure in fact to accept them in practice, necessarily involve any interference with the right of organisations to draw up their Constitutions and rules in full freedom.
  148. 148 In the present case, the Committee considers that the listing in the Labour Code of the particulars that must be contained in a union's rules does not in itself constitute an infringement of the right of workers' organisations to draw up their internal rules in full freedom. However, the Committee has noted that under the terms of sections 199 of the Labour Code and 13 of the regulations governing trade union associations the General Labour Inspectorate may refuse to register an organisation in the event of irregularities or breaches of the law. Under section 200 of the Code, an appeal may be made against such a decision to the Ministry of Labour. The Committee wishes to emphasise in this connection; that in matters such as these an appeal should lie to the courts against any administrative decision. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded, decisions by the authorities responsible for registering trade unions:
  149. 149 The Committee must also express its regret that the Government has not replied to the specific allegations concerning the lengthiness of the registration procedure in the case of the Automobile Workers' Union and the refusal of legal personality to the Commercial Workers' Union of Managua. The Committee emphasises in this respect that whilst it is true that the founders of a trade union must comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to hamper freedom to form organisations.

The Committee's recommendations

1. 150. In these circumstances, the Committee recommends the Governing Body:
   • (a) with regard to the allegations concerning the arrest of trade union leaders
   • (i) to note the release of the persons named by the complainants;
   • (ii) to draw attention to the principles and considerations set forth in paragraphs 142 to 146 above concerning, firstly, the detention of trade union officials, and, secondly, the independence of the trade union movement, and, in particular,
   • (iii) to point out to the Government that the detention by the authorities of trade unionists against whom no grounds for conviction are subsequently found involves restrictions of trade union rights;
   • (b) with regard to the allegations relating to interference by the authorities in the drawing up of trade union rules and the granting of legal personality to draw attention to the principles and considerations set forth in paragraphs 147 to 149 above, and in particular
   • (i) to the fact that an appeal should lie to the courts against any administrative decision for refusal to register the rules of a trade union or to grant a trade union legal personality, and that,
   • (ii) whilst it is true that the founders of a trade union must comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to hamper freedom to form organisations.