Definitive Report - Report No 70, 1963

Case No 253 (Cuba) - Complaint date: 10-FEB-61 - Closed

1. 55. The Committee has already examined this case at its 29th Session (November 1961), when it submitted to the Governing Body a provisional report which appears in paragraphs 622 to 644 of its 58th Report, approved by the Governing Body at its 150th Session (November 1961).
2. 56. Cuba has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 57. The complainants' allegations, analysed in paragraph 625 of the Committee's 58th Report, relate in particular to the shooting of three Cuban workers, William Lesanté Naser, Julio Casielles Amigó and Orilio Luis Méndez Pérez, who had been accused of acts of sabotage.
2. 58. After examining the complainants' allegations, and the Government's reply, the Committee formulated, in paragraph 644 of this same report, certain recommendations and a request for additional information, in the following terms:
3. 644. In all the circumstances the Committee recommends the Governing Body:
   • (a) to reaffirm the duty of the Committee to examine all complaints which are receivable under the rules in force, irrespective of the government to which they relate, with equal impartiality;
   • (b) to decide that the complaint is receivable, having regard to the principle on which the Committee has acted consistently since its First Report that a government cannot deny the right of complainants to submit a complaint by reason of measures taken against them which are alleged in the complaint to have violated freedom of association;
   • (c) to reaffirm that political matters not involving the exercise of freedom of association are outside the competence of the Committee and to decide that, in these circumstances, the Committee has no jurisdiction of the complaint in so far as the facts out of which it arose may have been acts of sabotage and is likewise incompetent to deal with the political matters referred to in the Government's reply;
   • (d) to reaffirm that the fact that a complaint may have a political aspect does not relieve the Committee of its duty of examining whether or not an allegation of violation of freedom of association is well founded;
   • (e) to draw the attention of the Government to the fact that it is bound by the obligations imposed by 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), ratified by Cuba;
   • (f) to reaffirm that the question whether a matter relates to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned;
   • (g) to request the Government, in accordance with the practice always followed in cases in which allegations as to sentences passed on trade unionists have been met with statements that such sentences were passed because of subversive activities or common law crimes, to indicate, in order to enable the Committee to reach a conclusion as to how far any question of freedom of association was involved, whether the appropriate and responsible court by which the sentences of death in the case of Messrs. Lesanté Naser, Casielles Amigó and Méndez Pérez were pronounced was an ordinary court of law, and, if not, to give particulars as to its nature and procedure and to request the Government to furnish the text of the judgment given;
   • (h) to decide that an emotional popular demand for the execution of a capital sentence cannot be invoked before the Freedom of Association Committee as evidence upon the question whether or not there has been a violation of freedom of association;
   • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the fact that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights and to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (j) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Cuba, that workers' organisations should have the right to elect their representatives in full freedom;
   • (k) to draw the attention of the Government to the importance which the Governing Body attaches to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Cuba, that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.
4. 59. These recommendations, and the request for further information contained in subparagraph (g) of paragraph 644 of the 58th Report, were communicated to the Government by letter dated 28 November 1961 and were again brought to its attention by letter dated 16 January 1962.
5. 60. Having received no reply from the Government, at its 30th Session (February 1962) the Committee adjourned its examination of the case until its following session.,
6. 61. The Government was informed of this decision by letter dated 15 March 1962 in which it was asked to furnish the information in question as early as possible and in any case before 15 April 1962. A letter of reminder was sent to the Government on 18 April 1962.
7. 62. As the information requested from the Government had still not been received, the Committee, at its 31st Session (May 1962), recommended the Governing Body to request " the Government of Cuba to furnish as a matter of urgency the information requested in paragraph 644 (g) of the 58th Report of the Committee ".
8. 63. This request for information was communicated by letter of 8 June 1962 to the Government of Cuba and an acknowledgment of receipt dated 20 June 1962 was received indicating that the request had been transmitted to the " competent body of the revolutionary Government for appropriate action ". On 30 August 1962 the Government was sent another letter of reminder about the said request for information.
9. 64. Having received no reply from the Government, the Committee, at its 32nd Session (October 1962), adjourned its examination of the case until its following session.
10. 65. This decision was communicated to the Government by letter dated 14 November 1962 also containing a request that it be good enough to send the said information at the earliest possible moment, and in any case not later than 1 January 1963. A further letter of reminder was sent to the Government on 11 January 1963.
11. 66. Not having received the information requested, the Committee, at its 33rd Session (February 1963), once more adjourned consideration of the case and requested the Government to furnish the information requested as speedily as possible, in time for it to be taken into account by the Committee when it examined the merits of the case at its following session.,
12. 67. This decision was communicated to the Government by letter dated 13 March 1963 in which it was asked to furnish the said information at the earliest possible moment and before 15 April 1963 at the latest. A letter of reminder was sent to the Government dated 22 April 1963.

B. B. The Committee's conclusions

1. 68. The Committee notes that since its decision at its 29th Session (November 1961) to request certain further information in order to proceed with the examination of the case, and despite the despatch to the Government of 11 letters on the subject, it has been obliged to adjourn its examination of the case at its 30th, 31st, 32nd and 33rd Sessions, not having received the information requested.
2. 69. In regard to the merits of the case, and in the absence of a material reply from the Government of Cuba concerning the nature of the court which condemned Messrs. William Lesanté Naser, Julio Casielles Amigó and Orilio Luis Méndez Pérez to death, on the procedure followed by that court and the text of the judgment given, the Committee cannot do otherwise than place on record that, in several earlier cases, it has stressed the importance it has always attached to the principle that when trade unionists are accused of political or criminal offences which the government considers to be outside the scope of their trade union activities, they should be given prompt and fair trial by an impartial and independent judicial authority, which principle takes on unusual importance in this case as the three trade unionists accused were sentenced to death and shot. If in certain cases the Committee has concluded that allegations relating to arrests or detentions of trade union militants did not call for further examination, this has been after it has received further information from the government showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities, but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.
3. 70. Consequently, the Committee recommends the Governing Body to draw the attention of the Government to the importance it has always attached to the principle that when trade unionists are accused of political or criminal offences which the government concerned considers to be outside the scope of their trade union activities, they should be given prompt and fair trial by an impartial and independent judicial authority, which principle takes on unusual importance in this case as the three trade unionists accused were sentenced to death and shot.
4. 71. The Committee also considers that the refusal of the Government of Cuba to co-operate with the Committee on Freedom of Association and the Governing Body calls for the formulation of certain observations which it wishes to bring to the attention of the Governing Body. Indeed, the Committee cannot but deplore the Government's repeated failure to co-operate in not having replied adequately to the reiterated requests of the Committee on Freedom of Association and the Governing Body for information on questions closely related to the fundamental rights of man to fair trial and personal freedom.
5. 72. Consequently, the Committee recommends the Governing Body to point out to the Government that it deplores the Government's repeated failure to co-operate in not replying adequately to the reiterated requests of the Committee on Freedom of Association and the Governing Body for information on questions closely related to the fundamental rights of man to a fair trial and personal freedom.

The Committee's recommendations

1. 73. In these circumstances the Committee, having regard to the fact that the Government has stated that the three trade unionists in question were sentenced to death and shot, recommends the Governing Body:
   • (a) to draw the attention of the Government to the importance which the Governing Body has always attached-and which it attaches with particular emphasis in a case of such gravity as the present case-to the principle that when trade unionists are accused of political or criminal offences which the government concerned considers to be outside the scope of their trade union activities, they should be given prompt and fair trial by an independent judicial authority;
   • (b) to deplore the inexplicable attitude of the government which has failed to reply adequately to 11 successive requests on behalf of the Committee on Freedom of Association and the Governing Body for information on questions closely related to the fundamental rights of man to fair trial and personal freedom.