Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Colombia (Ratification: 1976)

A Government representative stated that he would address two topics which had been raised by the Committee of Experts concerning the application of the Convention by Colombia. First, he would refer to the existence of an "initial draft of a Bill" on essential public services and regulation of the right to strike in those service sectors. Second, he would explain how the Bill modified and derogated certain provisions of the Substantive Labour Code.

In regard to the first point, it should be reiterated that the Government of Colombia had the will to harmonize a text, with participation of the employers' and workers' parties. The Government was aware of the complexity of the topic, especially the legal aspects, which signified a reconsideration of criteria with a long tradition in the legal order of the country. The Government was ready to recommence a participatory process of analysis and debate.

In respect of the second topic, in November 1996, the Government presented to the Congress of the Republic for consideration the above-mentioned Bill, No. 190/96, ratified by the Senate, which modified and derogated approximately ten sections of the Substantive Labour Code. In this manner, the observations of the Committee of Experts had been acknowledged.

One might note that the Committee of Experts had noted with interest the Bill and had expressed its hope that the Government would present it to Congress, which had been done.

The Bill was not an isolated act of the Government, much less a simple announcement for a way to escape criticism in this forum. On the contrary, it was an indication of a government policy oriented toward the promotion and respect of human rights, with special emphasis on the international labour Conventions which Colombia would fulfil.

The speaker also referred to the punishment of social protest and indicated that a committee had been created for the revision of the penal laws and the lifting of summary discretion concerning certain penal processes related to workers. As well, he referred to a Bill on collective bargaining and collective contracts in the public sector, 18 articles of which had been agreed upon by the social partners.

Progress by Colombia on this issue had been notable. It had made advances in fulfilment of its obligations with respect to the ILO. It was worth recalling that Colombia's reports over the years had been subject to the scrutiny of the Organization and the Conventions had been sent for approval to the Congress of the Republic. The Committee of Experts had already cited Colombia in its General Survey on Freedom of Association as a "case of progress" for its advances regarding the Convention.

The Workers' members thanked the Government representative for the information provided orally, and recalled that the case of Colombia had been discussed on several occasions by the Committee, in 1989, 1990, 1991, 1992, 1993 and 1995, and that it had even been mentioned in a special paragraph in 1990. The enhancement of social dialogue announced by the Government at the 1995 session, which had been favourably received, had apparently produced positive results. Based on the report of the freedom of association mission undertaken in October 1996, following the Government's request to the Conference Committee in 1996, and on the report of the Government, the Committee of Experts was able to note with interest that a Bill, prepared with the assistance of the ILO, had been submitted to the Congress of the Republic for approval, which seemed to constitute a positive response to several of the questions raised by the Committee. Furthermore, a preliminary draft of a Bill, on which the Office had made comment, defined the concept of essential public services and regulated the exercise of the right to strike. The Workers' members emphasized that these legislative amendments should be in full conformity with the requirements of the Convention and with the principles of freedom of association, and referred to the observation by the Committee of Experts which specified in detail all the legislative provisions which were being repealed or amended. They expressed their firm hope, as had the Committee of Experts, that the proposed Bills would be submitted to the Congress of the Republic as soon as possible and that the corresponding Acts would be adopted in order to bring the whole legislation into conformity with the Convention and the principles of freedom of association.

In spite of these legislative developments, however, the Workers' members lamented the serious situation in Colombia, notably the prevailing conditions of extreme violence. The testimonies were overwhelming and the list of violations of the principle of freedom of association, in particular of the provisions of the Convention, was endless. According to information obtained from Workers' members, extreme violence was used against persons acting as trade union leaders. They were subjected to attacks on their personal freedom and physical integrity, including assassinations. The assassination of the trade unionist José Leitos, chairman of the CGTD, was a clear example. The report of the mission emphasized that "there is reason to be most concerned by the climate of violence prevailing in the country which affects all sectors but which has grave consequences for trade union leaders and members (...) the number of victims continues to be extraordinarily high and the legal proceedings to examine the facts result in extreme levels of impunity". The Workers' members requested that the Government instantly take the measures necessary for the effective implementation of the legislation under preparation, as the best of laws would remain a dead letter as long as such violent conditions persisted. They concluded by stressing the importance of viewing the instruments of the ILO and the principles contained in the Constitution not as isolated or limited instruments, but rather as components of a necessary and essential interaction. Restating the conclusion of the mission, they underscored that "it was clear that the problem of violence, together with new measures and new financial assistance, could only be efficiently tackled in a larger context of instituting social peace. Social peace must be based on social justice and the progressive elimination of the social conditions which cause injustice, misery and deprivation". They asked the Government to continue to indicate progress on the projected legislative amendments, and to state in detail the measures it envisaged to undertake in order to contain the escalating levels of violence and to create a political and social environment which favoured an effective application of the principles and Conventions of the ILO to which it had subscribed.

The Employers' members thanked the Government representative for the general statement and the important news that he had provided. The Committee had discussed this case on seven occasions since the mid-1980s and had had cause to note the complexity and problematic nature of the situation in Colombia. The observation of the Committee of Experts referred to 11 different points, which showed that up to now there had been a very large degree of state interference in freedom of association and the right to organize. The legal provisions in question had permitted interference in the affairs of trade unions and had placed major restrictions on strikes. Although the Employers' members did not consider that all of the restrictions in question violated the Convention, its principles would undoubtedly be violated if no strikes were possible in practice. The Government representative had referred to a draft Bill amending the Labour Code which appeared to respond to many criticisms that had been made up to now. Although it was for the Committee of Experts to give its view on the final version of the text, the indications were that many of the provisions that had been criticized would be either repealed or amended, with the result that the legislation would be brought either partially or entirely into conformity with the Convention. The Government representative had also stated that further amendments were planned and had provided information on other Bills which were under preparation or had been submitted to Parliament. It was important that any of the draft texts which had not been transmitted to the Office should be sent as soon as possible with a complete report so that the Committee of Experts could give its opinion rapidly.

The Employers' members recalled that, on the occasions that the Conference Committee had examined the case in the past, the response that had always been given focused on the violent situation in Colombia, which pervaded all spheres of life in the country. In this climate of violence, violent acts were perpetrated against individuals and trade unionists, as well as against other categories of the population and against the whole of society. The amendments that had now been submitted, as well as those which were under preparation, would provide a good basis for influencing the climate of violence in a positive manner so as to avoid the circumstances which had been a cause of concern for some time. The Government should report on the latest developments and complete the proposed reforms as soon as possible in order to give effect to the considerable changes that had been announced.

The Workers' member of Colombia stated that there was no doubt about the Government's intentions to harmonize the legislation with the ILO Conventions; but, in this case, a real commitment was needed to fulfil the pledges made. The more open attitude of the Minister of Labour towards solving conflicts in the country should be recognized, but these conflicts were generated by government policies. He emphasized that his main concern was the climate of violence and impunity in which the country struggled. In this context, he condemned the various forms of violence, which involved state terrorism, the repression and violation of human rights by the security forces, and the violent and criminal work of paramilitary organizations, which operated in some places with the tacit approval of the authorities as private militas. In the same manner and with equal emphasis, he condemned the kidnappings, ambushes, and attempts perpetrated by guerrilla groups.

The Government had undertaken, with assistance from the ILO, to harmonize all of the laws with the Convention. None the less, it was near the end of the current legislative session, and the rights to organize, to bargain collectively, and to strike remained limited by law.

He denounced the current imprisonment of the Union of Petrol Workers (USO) on charges of terrorism, based on accusations made by military intelligence bodies. The situation had reached the limits of irregularities, and the Attorney General had initiated investigations against the faceless officers with assumed names who provided the same testimony many times against the petrol union leaders.

The violence which continued affected freedom of association in Colombia in various ways. In 1996, there were 256 assassinations of trade unionists; in 1997, approximately 50 deaths, including the President of the CGTD in Tolima, Mr. José Isidoro Leyton, and trade unionist Victor Julio Garzón, who had participated in the ILO direct contacts mission in October 1996. In 1997, 16 trade unionists had disappeared and several hundred others had been forcibly displaced because of their trade union activities. Threats and intimidation were constant practices, about which the ILO should be concerned.

From 11 to 18 February 1997, a work stoppage was held by public sector workers and, as a result, an agreement was signed with the Government. None the less, due to non-compliance on the part of the Government, the workers were obliged to stop work for 24 hours on 11 June to obtain compliance with the agreement. The Government's response was to deny signing the agreement, which would complicate the situation in the immediate future.

He called on the Government to set out before the Committee the commitments the Government would assume to resolve these problems and suggested it receive an ILO mission, with the goal of closing the cases mentioned.

The Workers' member of Spain deplored the fact that, despite the promises made to the ILO, none of the Bills which had been elaborated had been enacted. He was concerned that the present law permitted the administrative authorities to declare a strike illegal (section 450 of the Substantive Labour Code), in grave violation of the Conventions, and that power to issue such declarations ought to be placed with the judiciary as the clearest expression of freedom of association. He was also concerned by the interference of authorities in the internal affairs of the unions. For example, out of a total of 143 requested modifications of statutes concerning essential issues of freedom of association, 99 were rejected by the administrative authorities. The most grave issue was, none the less, the number of assassinations of union activists: from 1 January to 22 May 1997, 30 union activists were killed, including Victor Julio Garzón and José Giraldo. He observed that in reality, between the guerrillas and the paramilitary forces, trade unionists were fighting for peace.

The Workers' member of the United Kingdom described the unhealthy working conditions endured by Colombian workers, as illustrated by an ICFTU video showing women, including pregnant women, working in greenhouses to produce flowers in the presence of noxious sprays which caused blindness, miscarriages and premature births. Also terrible was the daily loss of life in Colombia, and particularly of the men and women who were active in the trade union movement, who risked their lives to fight for better conditions of work in the country including improved health and safety conditions. The Committee on Freedom of Association had noted that many cases of acts of violence remained unsolved, largely due to the fact that few cases were heard, proceedings were slow and prosecutors could not or dared not carry out investigations because their lives were endangered. Freedom of association could only be exercised in conditions in which fundamental human rights, and particularly those related to human life and personal safety, were fully respected and guaranteed. The killing, disappearance or serious injury of trade union leaders and activists required the institution of independent judicial inquiries and the punishment of the guilty parties. Failure to bring the guilty parties to judgement created a situation of impunity which reinforced the climate of violence and was extremely damaging to the exercise of trade union rights.

She called upon the Government to take urgent action to strengthen the judicial system and hoped that the Commission for the Revision of Penal Standards would set a dynamic pace in addressing the massive problems that it faced. She urged the Government to take the necessary measures to dismantle the paramilitary groups which prevented the normal development of trade union activities in the country. In this respect, the Government could give an important lead by recognizing and protecting the legitimate right of workers to organize in trade unions, which would act as vehicles for the promotion of dialogue and understanding between employers and workers and for the development of a new culture of labour relations. Urgent action was needed to put an end to the killings, which had already cost the lives of too many people.

The Workers' member of Swaziland reminded the Committee that the Government was in serious violation of the Convention and did not appear to place value on the right to life of trade unionists or civilians in general. The case before the Committee showed a very high level of neglect of human and civil rights. Eliminations, assassinations and disappearances were the order of the day and constituted a serious degradation of human values and disrespect for justice, let alone social justice. Fundamental rights, ranging from discrimination on grounds of race and denial of the rights to strike and to free collective bargaining, were being denied. The legal system had become deeply criminalized with those engaging in illegal strikes risking imprisonment for between two and 20 years. In order to prevent strikes, the Government could classify services as essential, at will. Government interference in trade union activities and its arbitrary powers to dissolve trade unions were a gross violation of Article 3 of the Convention. The killing by police-backed death squads of so-called "disposable" persons, who included vagrants, street children and homosexuals, was a further serious contravention of civil and human rights. Social protest was classified as subversive and the response to such acts was usually the use of violence and sometimes the assassination of unarmed civilians. The right of rural workers to shelter had also been violated by the burning down of their houses. Justice and respect for human rights had been undermined with impunity for the arbitrary arrest of trade union leaders, who were brought before military courts. All the measures adopted to remedy the situation needed to guarantee the full protection of the trade union rights set out in the Convention and efforts should be made to improve respect for human and civil rights. He endorsed the call by the Workers' members for the speedy adoption of the proposed legislative changes.

The Government representative expressed his gratitude to all those who were sincerely concerned about the situation of human rights in Colombia. He accepted constructive criticisms and impartial proposals from international bodies, non-governmental organizations, trade unions and employers' associations, which wanted to cooperate with his country in the eradication of these problems. He commended the objective and impartial approach taken by these bodies to raise national and international awareness, as well as those of the human rights bodies of the UN and the ILO; he requested international cooperation, such as had happened last year when a high-level mission of the ILO visited his country in October and when an office of the UN High Commissioner for Human Rights was opened in Colombia.

Regarding violence, his Government condemned the assassination of trade unionists, and any other people, kidnappings, torture and terrorism. He acknowledged that some agents of the State and the military were accused of committing such violations of human rights, but these were exceptions, and not the expression of any Government policy in this respect.

This grave problem of the violation of human rights and international humanitarian law in Colombia was closely related to the internal armed conflict which ravaged the country. This conflict was going on outside the conventional norms and, apart from the guerillas, an important role was played by the criminal circles such as drug traffickers and paramilitary forces. These phenomena were very real, notwithstanding the commitment to the protection and promotion of human rights, which was basic to the state of law and the democratic tradition in his country. His Government had developed a policy aimed at: the humanization of the armed conflict; the strengthening of justice; the elimination of groups of private justice; the consolidation of mechanisms promoting the application of the law; the expansion of the communication network to receive accusations and complaints; the scheme of compensation to the victims whose human rights had been violated (Act No. 288 of 1996); the policy of assistance, with the help of the International Red Cross, to those displaced by violence; the strategy of teaching and sensitizing the community concerning human rights; the creation of a special authority on human rights in the Ministry of the Interior; the opening in Colombia of the Office of the UN High Commissioner for Human Rights which became operative in April 1997.

With respect to the human rights of workers, the Government had created an inter-institutional committee for the promotion and protection of the human rights of workers, composed of five representatives of the central workers' organizations, the chairman of the episcopal conference and the presidents of the two most important non-governmental organizations in Colombia (the Association of Barristers and the Colombian Commission of Jurists). This Committee might eventually invite representatives of the ILO and the Office of the UN High Commissioner for Human Rights to participate. It had vast competence and powers to confront the difficult tasks which it had been assigned. For example, it was charged with collecting information and studying the inquiries on the kidnappings, assassinations, tortures, threats and forced displacement of trade unionists and other workers, to recommend the necessary measures to punish such acts and prevent them from being repeated. It was responsible for presenting to the competent authorities recommendations on investigations to define penal, disciplinary and pecuniary responsibilities. It also had the function to develop an integral programme for protecting the human rights of workers and to carry out a policy to implement, monitor and supervise those rights. To avoid standards becoming a dead letter, the Decree obliged public and private bodies to supply information required for the compliance of the functions mentioned in the Decree. A copy of the Decree would be provided to the Committee.

With respect to some previous interventions which raised issues of impunity and state terrorism, he stated that in Colombia the three powers of the State were independent and that the executive authorities could not order preventive detention as it would violate the Constitution of Colombia. With respect to faceless witnesses, he stated that it was an exceptional measure due to the high level of violence imposed by narc-terrorism and that these faceless witnesses were also used to investigate serious violations against trade unions. As to the allegations concerning abuses committed by faceless witnesses in the judicial processes against the members of the Union Sindical Obrera, he stated that these processes were drawing to a close. In the case of assassination of trade union leaders Messrs. Leyton and Garzón, the ILO's intervention to put pressure on the authorities proved to be very useful in helping to speed up the investigations. With respect to section 450 of the Labour Code, its revision was studied with the ILO mission which visited his country and the text of the modifications would be transmitted in due course. With respect to the registration of trade unions, 83 organizations had been registered as of May 1997. Finally, concerning allegations of violation of freedom of association in the flower-growing sector, the speaker pointed out that there were no complaints in this respect before the supervisory bodies of the ILO.

The Committee noted the information communicated by the Government representative and the debate which followed. The Committee noted the direct contacts mission which had taken place in 1996 and observed that the Government had indicated to the Committee of Experts that it had elaborated a Bill to repeal or modify various dispositions of the Substantive Labour Code which had been criticized by various supervisory bodies. The Committee also observed that the authorities had presented the Bill to the Congress of the Republic during the legislative session. The Committee trusted that the necessary measures to eliminate the discrepancies between the national legislation and Articles 23 and 24 of the Convention would be urgently adopted. The Committee profoundly regretted the climate of violence which affected the life and physical safety of the trade unionists. The Committee expressed the firm hope that, in its next examination of the case, the Committee of Experts would be able to note substantial progress concerning the civil liberties essential for the exercise of union rights, and concerning the full application of the Convention in law and in practice.