Rapport définitif - Rapport No. 404, Octobre 2023

Cas no 3208 (Colombie) - Date de la plainte: 18-MARS -16 - Clos

Allegations: The complainant organizations allege persecution against members of the National Union of Officials and Employees in the Judicial Branch, “El Vocero Judicial“ (The Judicial Representative) and violation of the right to peaceful demonstration

1. 225. The complaint is contained in a communication from the General Confederation of Labour (CGT) and the National Union of State and Public Service Workers of Colombia (UTRADEC-CGT), dated 18 March 2016. The CGT submitted additional information in a communication dated 1 June 2017.
2. 226. The Government sent its observations in communications dated 3 April 2017, 13 February 2018, and also 11 May and 20 September 2023.
3. 227. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 228. In its communications dated 18 March 2016 and 1 June of 2017, the complainant organizations indicate that, on 16 December 2015, the Administrative Chamber of the Higher Council of the Judiciary issued Decision No. PSAA-15-10445, which provides for the creation of “centres for judicial services” for civil and family courts in Bogotá. The complainant organizations allege that this Decision was issued without consultation and jeopardized the continued employment of many public servants in the judicial branch such as notifiers, secretaries and scribes, who make up over 60 per cent of the employees in each judicial office. The complainant organizations indicate that the trade unions, ASONAL-JUDICIAL, ASONAL JUDICIAL S.I. and ASOJUDICIALES did not address the request by the grass-roots organizations to revoke the Decision, and chose to respond to the proposal of the Higher Council of the Judiciary to postpone the entry into force of the Decision by one month. As a result, most judicial officials felt betrayed, and decided to create a new trade union organization, which was established with 250 founding members on 26 January 2016, and which is called the National Union of Civil Servants and Employees in the Judicial Branch, “El Vocero Judicial” (The Judicial Representative).
2. 229. The complainant organizations indicate that this trade union attempted to negotiate with the Higher Council of the Judiciary and that, in response, it was subject to threats and attacks by this body, which posted communications on its website comparing the actions of the activists to those of guerrillas and paramilitaries. The complainant organizations allege that the workers exercised the right to peaceful demonstration and that, on 1 February 2016, the Higher Council of the Judiciary granted authorization to enter judicial buildings in the capital to the police and the mobile anti-riot squad who, using tear gas, electric shocks and explosives, expelled officials, employees, trial lawyers and clients, assaulted women and caused incapacity, with the sole aim of sabotaging the right to peaceful demonstration.
3. 230. The complainant organizations further allege that, in February and March 2016, the wages of some workers were withheld with no legal justification, including the wages of the president of the trade union “El Vocero Judicial”, Mr Luis Orlando Chinchilla Vargas, and that, subsequently, indiscriminate payments were made to some workers in order to create confrontation, with the indication that the wages of members and supporters of the trade union would not be paid. The complainant organizations state that the withholding of wages was based on a circular issued by the Office of the Comptroller-General of the Republic, which was declared unenforceable (unconstitutional) in 2015. The complainant organizations add that the physical integrity of the president of the trade union was endangered when notices were placed in the payment office, which stated that, for payroll purposes, it was necessary to communicate with him, and which made public his mobile phone number.
4. 231. The complainant organizations also allege that, in March 2016, the president of the Administrative Chamber of the Higher Council of the Judiciary urged the civil judge from the office in which the trade union president was working, to initiate disciplinary investigations, and that the civil judge therefore proceeded to open a preliminary inquiry against the trade union president. The complainant organizations consider that the aforementioned conduct displayed by the Higher Council of the Judiciary constitutes anti-union persecution, and request that the Government be urged to respect the right to freedom of association and the right to collective bargaining, that an end be brought to the acts of anti-union persecution, and therefore, that the free exercise of the right to establish trade unions be allowed, thus ensuring the provision of constitutional guarantees, and the demilitarization of each of the buildings in which the courts of Bogotá operate. They also request that the constant threats and repression for exercising the constitutional right to establish trade unions cease, and that the communications on the web page of the Higher Council of the Judiciary be corrected.

B. The Government’s reply

1. 232. In its communications dated 3 April 2017 and 13 February 2018, the Government sent its observations, as well as the observations of the Ministry of Justice and Law, the Bogotá Territorial Directorate and the Higher Council of the Judiciary. The Government states that the events described in the complaint are not indicative of any violation of freedom of association, and indicates that they occurred as a result of the issuance by the Higher Council of the Judiciary, in December 2015, of Decision No. PSAA-15-10445 which provides for the creation of centres for judicial services in civil and family courts, establishes coordination, monitoring and control mechanisms and regulates the corresponding functions.
2. 233. The Government indicates that, while the Decision was issued by the competent authority and in exercise of the powers conferred by both the Constitution and the law, the complainant organizations opposed it on the grounds that: (i) it was going to affect the continued employment of many public servants in the judicial branch such as notifiers, secretaries and scribes; (ii) it would result in judges losing their autonomy, direction and control of proceedings; (iii) jurisdictional secretarial functions would be moved to administrative offices; (iv) some employees would be moved from courts to administrative settings with changes to their wages; (v) it would create greater bureaucracy; (vi) judicial functions would be assigned to administrators and staff with no legal knowledge for the conduct of constitutional actions; and (vii) the centres for judicial services provided for in the Decision would run counter to the principles of prompt process, procedural economy, immediacy and access to justice. The Government indicates that, in response to this situation, the trade union organizations belonging to the judicial branch initiated what they called permanent assemblies which, in practice, resulted in work stoppages and the blocking of access to civil and family office buildings for clients and the general public.
3. 234. The Government indicates that, in light of this situation, the Higher Council of the Judiciary established consultation committees as from 29 December 2015, and that eight sessions were held and were attended by the trade union organizations of all sectors in the justice system, and by representatives of the Government and the Ministry of Justice and Law, with the support of the Office of the Ombudsperson, who in their capacity as guarantors, assisted the process to restore judicial services, in view of the fact that the administration of justice is an essential public service (Act 270 of 1996, section 125). The Government indicates that it was during the negotiations between the parties that the trade union organization “El Vocero Judicial” was created, which sought to vindicate the petition by employees from the judicial branch to revoke the Decision on the grounds that it went against the administration of justice, the interests of citizens and the work of trial lawyers by creating delays in the processing of cases.
4. 235. The Government indicates that, during the above-mentioned consultation committees, the parties agreed to postpone the entry into force of the Decision on several occasions: (first, until 30 April 2017 and subsequently until 30 June 2018) and that, as a result of the agreement reached in the consultation committees, the services of judicial offices returned to normal. The Government emphasizes that the fact that agreements were reached between the parties demonstrates that there was dialogue and that guarantees were provided for the trade union organizations. The Government indicates that, in total, six trade union organizations participated in the consultation committees and that “El Vocero Judicial” was the only organization to walk out of the committees and to stop participating in them. The Government adds that this complaint was submitted at a time when the parties had agreed to suspend the entry into force of the Decision until 30 April 2017, which indicated that they were still at the dialogue stage.
5. 236. The Government indicates that, no sooner had the trade union organization “El Vocero Judicial” been established than it decided to carry out a peaceful demonstration, impeding access to judicial facilities and threatening to paralyse the administration of justice, which is an essential public service. The Government indicates that the Constitutional Court has stated that, in the case of essential public services, public interest must prevail and should not yield to individual interests, although it makes the caveat that alternatives should be sought to ensure, in some form, this right for those providing such services. Similarly, the Supreme Court of Justice issued a Decision on the strike called by officials in the judicial branch in 2009, in which it referred to the nature of the administration of justice as an essential public service, confirming at the time the illegal nature of the strike called by the National Association of Officials and Employees in the Judicial Branch. The Government clarifies that this should not be interpreted as condoning possible abuse by law enforcement agencies against society, but rather that law enforcement agencies should always be a wall of protection for ordinary citizens, and particularly when special guarantees are required for their lives and safety.
6. 237. The Government underscores that, in a State subject to the rule of law, the police must ensure access to public facilities when that access has been hindered or obstructed, to ensure that rights can be claimed, particularly in order to obtain judicial instruments to guarantee maintenance payments for minors, and the right to the prompt and full administration of justice when it is considered that their constitutional rights, such as the right to health, are being violated; to allow for the provision of medicine or priority care and thus avoid endangering their lives and physical integrity, through constitutional and legal actions: actions for protection, enforcement actions and other judicial proceedings. The Government indicates that, in this case in particular, the complainant organizations did not provide documents that prove the actual occurrence of the alleged anti-union acts. The Government indicates that, while the printouts provided by the complainant organizations show the presence of people on one side and the national police on the other, there are no images of clashes between parties, and that there are no medical documents providing evidence of medical incapacity caused by the alleged mistreatment of workers by the police. The Government indicates that it does not have videos or photos that show assaulted officials or, as stated by the complainant organizations, assaulted women and that, in any case, as the State is subject to the rule of law, there are judicial and administrative channels for the denunciation of the alleged acts of aggression by law enforcement agencies.
7. 238. Regarding the alleged threats, attacks and actions carried by the Higher Council of the Judiciary through communications, the Government indicates that it visited the web page of the judicial branch and that, while there were press releases from different secretariats (such as labour, civil and criminal secretariats) referring to situations that occurred internally, no written material against the trade union and/or its members was found.
8. 239. Regarding the alleged withholding of the wages of workers, the Government indicates that a situation in which an employer does not pay a worker for time that a worker has not worked, for reasons that are not attributable to the employer, does not imply that wages have been withheld. The Government states that there were legal and jurisprudential grounds justifying the decision not to pay wages, since there was a work stoppage that was not attributable to the employer, as evidenced by the conduct demonstrated by officials in the judicial branch in the service of the civil and family courts of the city of Bogotá, who were opposed to the entry into force of the Decision. The Government indicates that, while it is true that section 5(I), paragraph 7 of Legislative Decree 267 of 2000, cited in External Circular 029 of 2014, issued by the Comptroller-General of the Republic, was declared unenforceable in Ruling C 103 of 2015, this section covers a function performed solely by the Comptroller-General of the Republic, and the other legal bases related to the payment of wages continue to be in force and are applicable to the case in question.
9. 240. The Government transcribes several extracts from court rulings that state that a strike suspends employment contracts for the duration of the strike and, consequently, the employer is not required to pay wages and other employment benefits during this period. The Government indicates that, if in the case of a legally declared strike, it is lawful not to pay wages for non-worked days, except, of course, when the causes are imputable to the employer, there is even more reason for a deduction of wages authorized by law in the case of absence from work due to a work stoppage that is not legally permitted, but rather specifically prohibited by law. The Government adds that it was the Regional Director of the Judiciary who verified the work stoppage by means of the reports issued by labour inspectors in order to determine, based on the facts, whether the employees were in such a situation, and to proceed with their inclusion on the payroll, as appropriate. Regarding Mr Chinchilla Vargas, the Government indicates that it was found that, on many occasions, he carried out trade union protest activities without having been granted union leave and without a written agreement or accord by means of which he made a commitment to the head of office to compensate for or make up time.
10. 241. The Government indicates that mechanisms were agreed upon in order for those who had not received wages in February and March 2016 to compensate for non-worked hours and therefore obtain remuneration, which most of those who had not worked accepted and therefore agreed with their immediate supervisors to replace the non-worked hours, and thus effectively received the relevant pay. However, Mr Chinchilla Vargas did not agree. Once he has made up for the non-worked hours, he will be paid accordingly.
11. 242. Concerning the disciplinary proceedings initiated against Mr Chinchilla Vargas, the Government indicates that public officials are not exempt from the possibility of being questioned, where the circumstances so require, under the Single Disciplinary Code, without this being considered a violation of any rights. The Single Disciplinary Code establishes that officials who are active subjects of disciplinary action must be provided with the possibility and opportunity to prove their innocence, thus allowing for the exercise of the right to defence and for investigations to be carried out through due process. The Government considers that it is not possible to say that the initiation of disciplinary action against a specific public servant amounts to conduct constituting a violation of freedom of association. In a communication dated 20 September 2023, the Government indicates that between 2018 and 2023 several motions for reconsideration and appeals related to Mr Chinchilla Vargas’ administrative file were resolved, including those regarding compliance with the work schedule. The Government does not provide further details regarding the outcome of these appeals. The Government informs that Mr Chinchilla Vargas passed away on 30 April 2020.
12. 243. In a communication of 11 May 2023, the Government indicates that the administrative labour investigation initiated against the Higher Council of the Judiciary for acts undermining the freedom of association, by means of a complaint submitted by the trade union “El Vocero Judicial” on 29 April 2016, was archived through resolution No. 06472 of December 2018, and that, on 2 October 2019, an appeal was settled, which upheld the resolution that ordered the archiving of the complaint, and therefore the file has been closed and archived.

C. The Committee’s conclusions

1. 244. The Committee observes that in the present case, the complainant organizations allege persecution against members of the trade union “El Vocero Judicial” and the violation of the peaceful exercise of the right to demonstrate, which, according to the allegations, occurred between 2016 and 2017.
2. 245. The Committee observes that, according to the complaint and the Government's reply: (i) on 16 December 2015, the Higher Council of the Judiciary issued a Decision providing for the creation of “centres for judicial services” for civil and family courts in Bogotá; (ii) while the trade union organizations belonging to the judicial branch considered that this Decision had been issued without consultation and that it, inter alia, threatened the continuity of employment for over 60 per cent of judicial employees, the Government indicates that the Decision was issued by the competent authority in the exercise of the powers conferred upon it by the Constitution and the law; (iii) given that the trade union organizations opposed the Decision and held permanent assemblies, during which they engaged in a work stoppage and impeded access to civil and family office buildings, and considering that administration of justice is an essential public service, in December 2015, the Higher Council of the Judiciary established consultation committees with trade union organizations from the sector; (iv) in January 2016, as a result of the aforementioned consultation committees, the Higher Council of the Judiciary reached an agreement with six organizations, to postpone the entry into force of the Decision (until April 2017 and subsequently until June 2018); and (v) during the negotiations and due to a disagreement with the position of the trade union organizations, at the end of January 2016, the trade union “El Vocero Judicial” was established, which sought to revoke the Decision and which left the consultation committees.
3. 246. Concerning the allegation that, on 1 February 2016, the Higher Council of the Judiciary authorized the entry of the police and the mobile anti-riot squad into judicial buildings in the capital to put an end to a peaceful protest, using, inter alia, tear gas, and assaulting women and causing incapacity, the Committee notes the Government's indications that: (i) national legislation recognizes the administration of justice as an essential public service; (ii) the police must guarantee access to public facilities when that access is hindered or obstructed, in order to ensure, inter alia, the conduct of proceedings concerning the provision of maintenance payments and medicine for minors; and (iii) the complainant organizations have not provided documents that demonstrate the occurrence of mistreatment or clashes with the police, or medical evidence of incapacity caused by this mistreatment.
4. 247. The Committee recalls that, on several occasions, it has noted that officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 832]. The Committee observes, firstly, that in this case, the Higher Council of the Judiciary initiated dialogue with the different trade unions in the judicial branch, through which it was decided to postpone the entry into force of the Decision until at least 2018, and thus the service of the judicial offices returned to normal. The Committee notes the divergent accounts presented by the complainant organizations and the Government on the manner in which the police acted during the peaceful protest. However, it recalls that, in cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened [see Compilation, para. 932]. The Committee observes that: (i) the documentation provided indicates that the police were at the entrance of the judicial buildings with the aim of ensuring access to those buildings; (ii) the complainant organizations have not submitted elements confirming that violent acts were committed by the police: and (iii) there is no record of any complaints having been filed in this regard with the competent national authorities. In the light of the above, the Committee will not pursue its examination of these allegations.
5. 248. Regarding the allegation that the Higher Council of the Judiciary threatened and attacked the organization “El Vocero Judicial” through communications published on the web page, the Committee notes the Government's indications that it did not find evidence of such communications on the web page in question. Observing that the documentation submitted does not provide evidence of threats or attacks by the Higher Council of the Judiciary against the organization and its members, the Committee will not pursue its examination of these allegations.
6. 249. Concerning the allegation that the wages of workers were withheld for two months on the basis of a circular by the Higher Council of the Judiciary that had been declared unconstitutional, and that, subsequently some workers were paid but not members of the trade union, the Committee notes the Government's indications that: (i) the wages were not paid due to a work stoppage that was not attributable to the employer and, while a section of the article of the circular in question was declared unconstitutional on grounds unrelated to the allegations in the present case, the other aspects of the circular related to the payment of wages continue to be in force and are applicable to the case in question; (ii) there is a jurisprudential basis stating that a strike suspends employment contracts and that the employer is not required to pay wages during this period; (iii) in this case, the work stoppage was verified through reports issued by labour inspectors, and it was found that, on many occasions, the president of the trade union “El Vocero Judicial” carried out trade union protest activities without having been granted union leave and without an agreement committing to compensate for or make up time: and (iv) while most of the workers agreed to compensate for the hours not performed and were paid for the time not worked previously, the president of the trade union did not agree to compensate for the non-worked hours. Duly noting the above-mentioned indications and recalling that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation, para. 942), the Committee will not pursue the examination of this allegation.
7. 250. The Committee further notes that, the complainant organizations indicate that disciplinary investigations were initiated against the president of the trade union and that, in this respect, the Government indicates that initiating an investigation does not in itself constitute a violation of freedom of association, the Committee has no knowledge of the result of these investigations. The Committee notes that the Government informed that between 2018 and 2023, several appeals related to Mr Chinchilla Vargas’ administrative file were resolved, and that the union leader passed away on 30 April 2020. Also, the Government indicates that an administrative labour investigation initiated against the Higher Council of the Judiciary for acts undermining the freedom of association, by means of a complaint submitted by the trade union “El Vocero Judicial” in 2016, was archived in 2019. Duly noting all of these indications and observing with regret over the passing of the union leader, the Committee considers that this case is closed and does not call for further examination.

The Committee’s recommendation

1. 251. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.