Interim Report - Report No 255, March 1988

Case No 1351 (Nicaragua) - Complaint date: 17-OCT-85 - Closed

1. 4. For several years now, the Committee on Freedom of Association has been seized of various complaints of violation of the right of association and of freedom of association in Nicaragua. Five cases are currently before the Committee, of which two (Nos. 1129 and 1298) are presented by international organisations of workers (CLAT, WCL and ICFTU) and three (Nos. 1344, 1351 and 1372) by the International Organisation of Employers.
2. 5. Cases Nos. 1298 and 1344 were last examined by the Committee at its November 1986 meeting and Cases Nos. 1129 and 1351 in February 1987. (See respectively 246th Report, paras. 197 to 265, and 248th Report, paras. 421 to 436, approved by the Governing Body at its 234th and 235th Sessions (November 1986 and February-March 1987).) In the absence of a reply from the Government, the Committee has not yet examined Case No. 1372.
3. 6. Subsequently, the Government supplied observations in communications dated 5 May 1987 (for Case No. 1129), 14 August 1987 (for Cases Nos. 1129, 1298, 1344 and 1351), 13 January 1988 (for Cases Nos. 1129 and 1298) and 3 February 1988 (for Cases Nos. 1298, 1344 and 1372).
4. 7. In addition, in a communication of 17 June 1987, several employers' delegates to the 73rd Session (1987) of the International Labour Conference presented a complaint against the Government of Nicaragua, under article 26 of the Constitution of the ILO, for violations of 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), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), all three ratified by Nicaragua. The Government furnished its observations on this complaint in a communication of 5, 19 and 28 January 1988.

A. Complaints lodged by the workers' organisations

• a. Previous examinations of the cases by the Committee
  8. 8 In Case No. 1129, presented by the CLAT and the WCL, the allegations related to the sentencing of trade unionists by the anti-Somoza people's courts, the searching and ransacking of the archives of the Central of Nicaraguan Workers (CTN), the arrest of trade unionists, some of whose homes were searched, and death threats.
  9. 9 At its meeting in February 1987, the Committee had requested the Government to send its observations on these allegations and, in particular, to supply the text of the judgements handed down by the anti-Somoza people's courts in respect of the trade unionists mentioned by the complainants.
  10. 10 In Case No. 1298, presented by the ICFTU, the allegations related to the arrest of trade unionists, the suspension of the trade union magazine of the Confederation of Trade Union Unity (CUS), measures of intimidation and threats made by the State Security Police and by officials against members of the CUS.
  11. 11 At its November 1986 meeting the Committee had requested the Government to keep it informed of the development of the trial under way against a number of trade unionists for having stolen cattle and asked it to send observations on the trade unionists to whom it had failed to refer and who, according to the ICFTU, were under arrest (Eduardo Gutiérrez, Juan Gaitán and Enrique Flores). The Committee had also requested the Government to reply to the allegation that the daughters, wives and mothers of arrested trade unionists had been threatened with imprisonment if their fathers, husbands, and sons did not give up their CUS membership. Lastly, the Committee had deplored the fact that the Government had not replied to the allegations contained in the ICFTU communications dated 14 and 23 January 1986 (banning of the CUS trade union review and the summoning by the State Security Police of members of the CUS, together with acts of intimidation and threats. The Committee had requested the Government to furnish information on these aspects of the case.
      • b) The Government's replies
  12. 12 In its reply of 5 May 1987 the Government supplied the text of a sentence handed down by the anti-Somoza people's court of appeal on 26 June 1985 in respect of several persons mentioned in Case No. 1129. The sentence states that the persons concerned belong to a counter-revolutionary organisation, the Nicaraguan Democratic Front. Some of them had travelled secretly to Honduras, where they were in contact with leaders of the organisation and where they were entrusted with military and economic intelligence missions. They also helped to recruit people for the organisation and took part in meetings of a subversive nature. The appeal court, considering that the court of the first instance had gathered sufficient evidence to sentence the persons in question, upheld the prison sentences but reduced them from eight to six years for Mr. Narciso, Mr. Silva Gaitan, Mr. Arcadio Antonio Ortiz Espinoza and Mr. Milton Silva Gaitan, and from five to four years for Mr. Orlando Antonio Napoleon Molina Aguilera, Mr. Orlando Antonio Mendoza Laguna and Mr. Daniel Antonio Aguilar Zapata.
  13. 13 In its communications of 13 January and 3 February 1988, the Government also supplied the texts of two other rulings handed down by anti-Somoza people's appeal courts. One of the rulings discharged the persons whom the complainants referred to as trade unionists charged with stealing cattle. The other ruling confirms the sentence of five years' imprisonment and two years' detention with hard labour, for infringement of the law on the maintenance of public law and order, passed on Ricardo Efraén Cervantes Rizo on the grounds of his membership of a counter-revolutionary organisation - the Nicaraguan Democratic Movement - his participation in subversive meetings aimed at planning attacks and finding premises for military training, and the drafting of tracts calling for a boycott of the fourth anniversary of the Revolution, as well as sabotaging petrol pumps belonging the ENABUS enterprise.
  14. 14 In its communication of 14 August 1987, the Government explained that the anti-Somoza people's courts were set up in accordance with international law and national legislation to deal with offences against public order and national security. Consequently, the Government maintains, these courts are not called upon to judge a particular social class or people with a specific ideology. On the contrary, their jurisdiction is determined objectively and any citizen, of whatever social class, religion, colour, or race, who commits an offence against public order and security will be judged by these courts. The jurisdiction of the court is determined by the nature of the offence regardless of who has committed it.
  15. 15 As regards the searches carried out at the CTN headquarters, the Government reaffirms that these were motivated by an internal split in this central trade union organisation, which still persists, and in which the Government has not intervened. The Government states that the trade union movement in the country has become so extensive that divergences occur even within confederations. The Government confines itself to ensuring that these divergences, which are natural in a society that is opening up, are contained within a certain framework which does not undermine public order or harm third parties.
  16. 16 The Government also denies that detained persons or their families were subjected to torture or death threats. In this respect the Government considers that the Committee should ask the complainant organisation for the necessary evidence. The Government states that physical elimination and torture have never been a deliberate practice and that, since the triumph of the revolution, the Government has shown its deep concern with and interest in scrupulous respect for life and physical integrity. According to the Government, if a few cases of irregularity have occurred, they are exceptional and were investigated and the persons responsible punished with the utmost rigour of the law.
  17. 17 As regards the problems concerning the CUS, the Government reaffirms that these problems - and especially the attack on the organisation's headquarters - arose out of differences within the organisation concerning its membership or non-membership of a particular political group. An attitude of non-intervention in this type of dispute on the part of the police cannot be interpreted as "passiveness".
  18. 18 The Government categorically rejects the allegations concerning threats against the families of trade unionists to oblige the latter to give up their union membership. The Government states that it does not go in for this type of blackmail and has no interest in destroying or undermining a trade union organisation of any kind since it is in favour of political and trade union pluralism. It adds that proof of this statement is seen in the fact that the CUS and other trade union organisations continue to operate freely.
  19. 19 As regards the suspension of the CUS journal, the Government, in its letter of 3 February 1988, states that the journal was edited and circulated 19 times without having fulfilled the registration formalities required by the General Act on communications media. Since these formalities were lacking, the journal was sanctioned by the Directorate of Communications Media. The Government adds that now that the state of emergency has been lifted, it has authorised the operation of a series of communications media, including the CUS journal.

B. Complaints lodged by the International Organisation of Employers

• a. Previous examinations of the cases
  20. 20 In Case No. 1344, the IOE had alleged that the assets, land and enterprises of several leaders of the Council of Private Enterprise (COSEP) and of its President, Mr. Enrique Bolaños, had been confiscated. The Directorate of Communications Media had, moreover, banned publication in the newspaper La Prensa of an open letter from the COSEP and of the reactions of Mr. Bolaño to the confiscation of his land and to defamatory accusations made against him. The IOE also referred to the expulsion from the country of Mr. Frank Bendaña, Vice-President of the COSEP and the instigation of disorder by outside workers using army vehicles in the Bolaños-Saimsa enterprise.
  21. 21 At its meeting in November 1986, the Committee noted that the Government had furnished information on only one of the many allegations (i.e. the confiscation of Mr. Bolaños' lands). Since the purpose of all the allegations was to demonstrate a discriminatory attitude with regard to the COSEP, the Committee requested the Government to send an urgent reply on the matter.
  22. 22 In Case No. 1351, the IOE had alleged that on 7 September 1985 (Private Enterprise Day), the President of the COSEP was placed under house arrest. The IOE subsequently referred to the re-establishment of the state of emergency throughout the country on 9 January 1987 for a period of one year, and to the suspension of 13 provisions in the new Constitution, including the inviolability of the home, correspondence and the media (article 26); the right to express opinions in public and in private, individually or collectively, verbally, in writing or by any other means (article 30); the right to free movement within the country as well as to enter and leave it (article 31); the guarantee against arbitrary arrest (article 33); the right to habeas corpus (in respect of acts against public order) and amparo (trade union immunity) (article 45); the right of workers to establish organisations in defense of their interests (article 49); the right of assembly without prior authorisation (article 53); the right to demonstrate in public (article 54); the right to receive correct information, and to seek, receive and disseminate information and opinions verbally, in writing or by any other means (article 66); the guarantee against censorship (articles 67 and 68 (second part)); and the right to strike (article 83).
  23. 23 At its meeting in February 1987, the Committee had requested the Government to end the state of emergency in the near future. In the meantime it had requested the Government to limit the application of the state of emergency to certain geographical areas. In any case, it had added, it would be necessary to safeguard the exercise of specifically trade union rights such as the right to establish organisations, the right to hold meetings on trade union premises and the right to strike in non-essential services. With this in mind, the Committee had requested the Government to have recourse, in its relations with occupational organisations, to measures provided for under ordinary law rather than to emergency measures.
  24. 24 In Case No. 1372, the IOE had alleged that the Government had ordered the closure, for an undetermined period, of the daily newspaper La Prensa, which was used regularly by the COSEP to disseminate information concerning employers and problems encountered by them and their organisations.
  25. 25 At its meeting in May 1987, the Committee addressed an urgent appeal to the Government to supply its observations on this case.
      • b) The Government's reply 26. In its communication of 14 August 1987, the Government reaffirmed that the confiscation of lands had been undertaken to meet the great needs of the rural population, of whom there was a particularly dense concentration in certain areas. The allocation of the land had been undertaken in accordance with the law. This was not, according to the Government, a matter of discrimination against the COSEP since a large number of members of this body go about their production activities in the normal way and enjoy the full exercise of their rights, both in their relations with the Government and in the defence of their private interests. Many members of the COSEP receive direct state financing for their economic activities.
  27. 27 In its communication of 3 February 1988, the Government supplies additional information on the allegations relating to the confiscation of the property of COSEP leaders. In the cases of Messrs. Bendaña and Lanzas, in accordance with the law on agrarian reform, their agricultural companies had been expropriated after it was determined that the running of these enterprises was deficient. The Agrarian Tribunal heard appeals on the subject and confirmed the resolutions of the Ministry of Agricultural Development and Reform. Mr. Gurdián's property was in a difficult situation as regards the banks which was the subject of court proceedings during Somoza's regime. The enterprise had been taken over by its workers who had been exploited for many years. This was done without any government involvement; the Government had however, confiscated this enterprise. As regards Mr. Reyes' enterprise, the Government states that in 1983 this person had been declared an absent landlord by a resolution of the Ministry of Justice in conformity with Decree No. 760 of 1981. This Decree provided for the confiscation of property needed for national reconstruction and belonging to owners who had left the country. Absences could be explained to the Ministry of Justice and those concerned could make a declaration of "non-abandonment" of their property, but Mr. Reyes had never made use of his right to use these procedures. Lastly, according to the Government, the allegation that disruptions were encouraged in the Bolaños-Saimsa enterprise, is completely false.
  28. 28 As for the allegations that Mr. Bendaña was expelled from the country, the Government indicates that there is no trace of any such measure in the archives of the Ministry of Justice.
  29. 29 As regards the events connected with Private Enterprise Day, the Government, in its communication of 14 August 1987, reaffirms that no citizen had been deprived of his freedom on this occasion.
  30. 30 As regards the closure of the newspaper La Prensa, in its communication of 3 February 1988, the Government states that this newspaper has been permitted circulation again, without any censorship, as from mid-October 1987. Its recent editions have contained articles by and interviews with COSEP leaders including Messrs. Bolaños and Gurdián.

C. Complaint lodged under article 26 of the Constitution

• a. Allegations contained in the complaint
  31. 31 This complaint, dated 17 June 1987, is signed by Mr. Henri Georget, Employers' delegate, Niger, Mr. Johan von Holten, Employers' delegate, Sweden, Mr. Hiroshi Tsujino, Employers' delegate, Japan, Mr. Javier Ferrer Dufoll, Employers' delegate, Spain, Mr. Arthur Joao Donato, Employers' delegate, Brazil, Mr. Raoul Inocentes, Employers' delegate, Philippines, Mr. Wolf Dieter Lindner, Employers' delegate, Federal Republic of Germany, Mr. Tom D. Owuor, Employers' delegate, Kenya, and Mr. Ray Brillinger, Employers' delegate, Canada. In two separate communications, Mr. Roberto Favelevic, Employers' delegate, Argentina, and Mr. Vincente Bortoni, Employers' delegate, Mexico, associated themselves with the complaint.
  32. 32 In their communication, the complainants recall that since 1981 at least 21 complaints have been lodged with the ILO by organisations of workers and employers concerning infringements by the Government of Nicaragua of its obligations under Convention No. 87. The infringements consisted of murder (Case No. 1007), physical aggression (Cases Nos. 1031, 1129, 1169, 1185 and 1298), torture (Cases Nos. 1283 and 1344), arbitrary arrests (Cases Nos. 1007, 1031, 1047, 1084, 1129, 1148, 1169, 1185, 1208, 1283, 1298, 1344 and 1351), violation of domicile (Cases Nos. 1129 and 1148), pillaging of offices (Cases Nos. 1129 and 1298), confiscation of land (Case No. 1344), restrictions on freedom of movement (Cases Nos. 1103, 1114, 1129, 1317 and 1351), violations of freedom of expression (Cases Nos. 1084, 1129 and 1283) and a number of other questions involving non-recognition of organisations of self-employed workers until complaints could be presented to the ILO. Any occupational organisation of employers or workers which does not submit to the authority of the Sandinista National Liberation Front (FSLN) is, according to the complainants, the subject of government repression either through its officials or through organised gangs. Consequently Nicaragua has been in a state of emergency for several years. This state of emergency has been continually extended, most recently by Decree No. 245 of 9 January 1987. The complainants add that the state of emergency is used by the Government to suppress all rights and freedoms that are essential for the satisfactory implementation of Convention No. 87 and to suppress any opposition to the interests of the authorities. Moreover, a new Constitution was promulgated in January 1987 which implicitly denies employers the right of association, which they had enjoyed previously, while granting this right to many other categories which, for the complainants, is an obvious infringement of Article 2 and Article 8, paragraph 2, of Convention No. 87.
  33. 33 The complainants allege furthermore that Decree No. 530, issued by the Government on 24 September 1980 has, since its application, made collective agreements subject to approval by the Ministry of Labour for reasons of economic policy - which, in fact, makes freedom to bargain collectively quite meaningless. The complainants consider that although the competent bodies of the ILO have repeated that this is an infringement of Convention No. 98, the Government has done nothing to remedy the situation. In particular, wages cannot be the subject of collective bargaining since they are determined by the National System of Labour and Wage Organisation (SNOTS) which classifies every conceivable form of employment and fixes the corresponding remuneration. The complainants point out that this violation of Article 4 of the Convention was the subject of a recommendation by the Committee of Experts on the Application of Conventions and Recommendations.
  34. 34 The complainants state, moreover, that the most representative organisation of employers in Nicaragua is the Council for Private Enterprise (COSEP). This organisation is covered by Article 1 of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Nevertheless, according to the complainants, the Government has not consulted the COSEP on procedures which ensure effective consultations, in accordance with Article 2 of the instrument. Contrary to what it stated in its report on the application of the Convention, the Government has also neglected to consult the COSEP on matters covered by Article 5 of the Convention and, consequently, the complainants maintain, the Government has respected none of its obligations under the Convention in so far as they relate to consultations with the COSEP.
  35. 35 In conclusion, the complainants request that this complaint be examined and a report drawn up by a Commission of Inquiry, in accordance with article 26, paragraph 3, of the Constitution of the ILO since, in particular, the Government is ignoring the recommendations of the Governing Body Committee on Freedom of Association and of the Committee of Experts on the Application of Conventions and Recommendations, both of which have already expressed their views on the questions referred to above.
      • b) Decision of the Governing Body
  36. 36 At its November 1987 Session, the Governing Body, at the proposal of its Officers, took the following decisions concerning the complaint in question:
      • a) the Government of Nicaragua, as the Government against which the complaint was lodged, should be invited by the Director-General to communicate its observations on the complaint by 15 January 1988 at the latest;
      • b) at its 239th Session, the Governing Body would determine in the light of i) the recommendations of the Committee on Freedom of Association concerning those aspects of the complaint received that concerned freedom of association, (ii) information that might be furnished by the Government of Nicaragua, and (iii) the recommendations of the Committee on Freedom of Association on cases still outstanding, whether the complaint as a whole should be referred to a Commission of Inquiry.
  37. c. The Government's reply
  37. 37 In its reply of 5 January 1988, the Government states that although it is true that several complaints claiming infringement of freedom of association have been presented, it is also true that these matters were closed since the Government had shown that they had nothing to do with trade union affairs, but rather involved offences punishable under common law.
  38. 38 The Government states that on 9 January 1987, by Decree No. 245, it re-established the state of emergency as a legal means to defend itself against the war waged by the United States against Nicaragua; enforcement of the state of emergency is thus designed to forestall counter-revolutionary activities, thereby preserving the rights of Nicaraguan citizens. According to the Government, the statement that Decree No. 245 suspends several trade union rights is totally wrong since, among the rights suspended none is of a strictly trade union nature. The only suspended right involving labour matters is the right to strike, which is not a trade union right but a right of workers whether or not they belong to a union.
  39. 39 The Government adds that the establishment of the state of emergency is in line with the provisions of article 4 of the International Covenant on Civil and Political Rights and article 27 of the American Convention of Human Rights.
  40. 40 According to the Government, the state of emergency has in no way prevented the development of the trade union movement or the freedom of workers to join occupational organisations. Between 1980 and 1986, workers in both towns and the countryside set up a total of 1,203 unions.
  41. 41 The Government considers that it is important to recall that the ruling handed down by the International Court of Justice on 27 June 1986 gives fundamental legal support to the Government and to its right to defend its sovereignty, territorial integrity and economic and political independence through the international legal order. According to the Government, it is the policy of aggression against Nicaragua and not the state of emergency which is the cause of the difficult and exceptional circumstances being experienced by Nicaraguan society as a whole. The Government emphasises that it hopes to suspend the state of emergency when the causes which were behind its introduction no longer obtain.
  42. 42 The Government goes on to say that the fact that the right of employers to organise is not embodied in the Constitution should not be understood as a prohibition since article 49 of the political Constitution sets forth the general principle of the right to organise of all persons in order to defend their interests. Moreover, the employers' right to organise is established in the Labour Code and in the regulations governing occupational associations.
  43. 43 As regards Decree No. 530 of 1980, the Government considers that the provisions in question in no way constitute an infringement of the right of employers' and workers' organisations to negotiate collective agreements and, in accordance with the ILO's principle of tripartism, provision is made for the intervention of the Ministry of Labour. Conditions of employment are negotiated by means of a conciliation procedure. If the latter fails the Ministry of Labour cannot impose the terms of a collective agreement on the parties. The matter must be resolved, during a state of emergency, by an arbitration tribunal which comes under the judicial authorities and, in normal times, by the procedure relating to the right to strike.
  44. 44 The national system for organising labour and wages enables employers and workers to take part in discussing the bases of the content of work in order to determine wages according to criteria of quantity and complexity.
  45. 45 Lastly, the Government considers that Convention No. 144 has not been infringed since consultations have taken place with the organisations which the Government, in its sovereignty, has considered to be the most representative. However, it has no objection to consulting the COSEP as well in due course.
  46. 46 In its communication of 19 January 1988, the Government supplies the text of a communiqué stating that as from 19 January the state of emergency is suspended throughout the territory. The Government also states in this communiqué that it intends to apply the Amnesty Act, No. 33, when a ceasefire takes place and the groups which have taken up arms return to civilian life. If no such ceasefire takes place, the Government will release the persons concerned if the Government of the United States or a Central American Government decides to accept them. They will be authorised to return to Nicaragua at the end of the war.
  47. 47 In a subsequent communication dated 28 January 1988, the Government supplies the text of Decrees No. 296 which abolishes the anti-Somoza People's courts and No. 297 which lifts the state of emergency for the whole country and restores the rights and guarantees laid down in the Nicaraguan Constitution.

D. The Committee's conclusions

1. 48. The cases presented to the Committee by workers' organisations relate to the sentencing and arrest of trade unionists, some of whom were tortured, to threats made to trade unionists and their families, to searches of the headquarters of a trade union confederation and to the suspension of a trade union review.
2. 49. As regards the sentencing of trade unionists, the Government has furnished the text of a ruling handed down by an anti-Somoza people's court of appeal in respect of a number of persons who were listed as trade unionists in the complainants' communications. According to the text of the ruling, the persons concerned were allegedly sentenced for belonging to an organisation of a subversive nature, for clandestine travel abroad and for carrying out military and economic intelligence missions. The ruling makes no reference whatsoever to membership of a trade union organisation or to activities that might be considered to be of a trade union nature.
3. 50. The Committee notes that the Government has still not replied to a number of allegations concerning the arrest of trade unionists Eduardo Aburto, Eric González, Carlos Herrera, Sergio Rosa and Eugenio Membreño.
4. 51. As regards the torture or threats alleged to have been carried out against trade unionists or their families, the Committee notes that the Government completely rejects these allegations, stating that although there may have been some exceptional cases, they were the subject of investigations and penalties. Noting the discrepancies between the complainants' allegations and the Government's reply on this point, the Committee is obliged to recall that governments should give the necessary instructions to ensure that no detained person is subjected to ill-treatment and to provide for effective punishment in cases where there is evidence of ill-treatment.
5. 52. As regards the search of the premises of the Central of Nigaraguan Workers, the Committee notes that, according to the Government, this measure was motivated by internal dissension within the organisation. The Government does not, however, indicate whether this search was carried out with a warrant. The Committee therefore requests the Government to indicate whether this was the case. The Committee recalls that trade union premises should not be searched unless a warrant has been obtained from the ordinary judicial authority. (See, for example, 236th Report, Case No. 1269 (El Salvador), para. 536.) In addition, the Committee considers that even if a warrant had been obtained from the ordinary judicial authority for a search, this in no way justified the ransacking of the CTN premises which the complainants described.
6. 53. The Committee takes note of the reasons which formed the basis of the suspension of the review of the CUS, namely the non-fulfilment of certain legal formalities required by the General Act of Communications Media. It also notes that this review has been authorised to circulate again. The Committee must, however, recall that the right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations.
7. 54. The complaints lodged with the Committee by the IOE relate to a campaign against the leaders of the Council for Private Enterprise (COSEP) and in particular to the confiscation of assets, land and enterprises belonging to them and the expulsion of one of them from the country; the house arrest of the President of the COSEP during Private Enterprise Day in September 1985, the re-establishment of the state of emergency suspending for one year certain constitutional liberties, and the closure for an indefinite period of the newspaper La Prensa, which was used by the COSEP to disseminate information of concern to employers.
8. 55. As regards the expropriation of land and assets of the leaders of the COSEP, the Committee notes the Government's explanation that most of these measures corresponded to the needs of agrarian reform. While realising that the persons mentioned in the IOE's complaint cannot take advantage of their position as COSEP leaders to evade the consequences of an agrarian reform policy, the Committee must nevertheless point out with concern that these measures have allegedly affected a large number of leaders of the employers' organisation in a discriminatory fashion. It expresses the hope that the persons in question will be fairly compensated for their losses as provided for by law.
9. 56. The Committee notes the Government's statement that there is no trace of any expulsion order against Mr. Frank Bendaña, the Vice-President of COSEP. Given the contradiction between the complainants' version of the facts and that of the Government, the Committee can only recall generally, that the expulsion of leaders of employers' or workers' organisations from their country for having been involved in activities linked to their position, is not only contrary to human rights, but also interferes in the activities of the organisations to which they belong (see, for example, 236th Report, Case No. 963 (Grenada) para. 78).
10. 57. The Government has not made a specific reply to the requests for information concerning the house arrest of the President of the COSEP during Private Enterprise Day. It confines itself to stating that no citizen was deprived of his liberty on that occasion. The Committee notes this information but regrets that the authorities banned the celebrating of this Private Enterprise Day.
11. 58. The Committee notes that the newspaper La Prensa is once again circulating freely and expresses the hope that this measure will be final. It would, indeed, recall that the right of an employers' or workers' organisation to express its opinions uncensored through the independent press should in no way differ from the right to express opinions in exclusively occupational or trade union journals (see, for example, 217th Report, Case No. 963 (Grenada), para. 538).
12. 59. Lastly, as concerns the suspension of the state of emergency, the Committee refers to the considerations set out hereafter concerning the complaint lodged under article 26 of the Constitution of the ILO.
13. 60. The Governing Body must consider, in the present case, the advisability of setting up a Commission of Inquiry under article 26 of the Constitution. This complaint contains allegations concerning the non-observance of Convention No. 87 based mainly on the 21 complaints examined by the Committee, suspension of certain constitutional freedoms, non-recognition in the national Constitution of the employers' right to organise; and on the non-observance of Convention No. 98 based on the absence of free collective bargaining; and on the non-observance of Convention No. 144 based on the Government's failure to consult the COSEP.
14. 61. As regards the allegations relating to violations of Convention No. 87, the Committee recalls that on each of the cases cited by the complainants it has adopted conclusions which were approved by the Governing Body, and which contain precise recommendations addressed to the Government. The facts in the replies supplied by the Government during the examination of these cases are in a number of instances in contradiction with the allegations made by the authors of the complaints. The Committee is therefore not in a position at the moment to draw conclusions from the basis of all these cases on the general situation prevailing in Nicaragua in the freedom of association field.
15. 62. As regards the allegations concerning the non-observance of Convention No. 98, the Committee notes that the Committee of Experts has considered whether the wage fixing system is in conformity with Article 4 of the Convention.
16. 63. Finally, as regards the application of Convention No. 144, the Committee recalls that it has indicated that pre-established, precise and objective criteria for the determination of the representativity of workers' and employers' organisations should exist in the legislation and such a determination should not be left to the discretion of governments.
17. 64. The Committee notes that the Government has stated that the only labour right suspended by the state of emergency is the right to strike. As regards the employers' right to organise, the Government points out that this right is recognised by the Labour Code and the regulations governing occupational associations and states that it is willing to consult the COSEP, in due course, on matters concerning international labour standards.
18. 65. Furthermore, in a more recent communication, the Government announces the suspension of the state of emergency and its willingness, subject to certain conditions, to apply the Amnesty Act. The Committee requests the Government to furnish detailed information on the consequences of the suspension of the state of emergency for the activities of employers' and workers' organisations and on developments in the possible application of the Amnesty Act. The Committee, while noting this favourable development, observes, however, that there is a major contradiction between the allegations made in the complaint and the replies of the Government concerning the areas covered by Conventions Nos. 87, 98 and 144. These contradictions concern the conformity of certain texts with the instruments mentioned and concern factual questions.
19. 66. Moreover, the Committee of Experts on the Application of Conventions and Recommendations is to examine, at its next session in March 1988, the application by Nicaragua of Conventions Nos. 87 and 98 on the basis of the information supplied by the Government at the last session of the Conference to the Committee on the Application of Standards, and of the latest developments that have taken place in the country.
20. 67. The Committee considers that the Government's reply for its next session in May, together with the comments of the Committee of Experts, are elements that should be taken into consideration in determining the action to be taken on the complaint lodged under article 26 of the Constitution. The Committee therefore decides that it will examine at its next meeting in May 1988, on the basis of this information, the advisability of setting up a Commission of Inquiry.

The Committee's recommendations

1. 68. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee requests the Government to supply its observations on the allegations concerning the arrest of trade unionists, to which it has still not replied.
   • b) The Committee urges the Government to ensure that instructions are given so that no detainee is subjected to ill-treatment and that provision is made for effective punishment where there is evidence of such treatment.
   • c) The Committee requests the Government to ensure that searches of trade union premises are carried out only on orders from an ordinary court. It requests the Government to indicate whether a warrant was in fact issued for the search of the CTN premises.
   • d) The Committee, while noting that the expropriation of land and assets belonging to the leaders of the COSEP is, according to the Government, part of an agrarian reform, notes with concern that these measures have allegedly affected in a discriminatory way a large number of COSEP leaders. It expresses the hope that the persons concerned will be fairly compensated for their losses in accordance with the law.
   • e) The Committee once again deplores the fact that the authorities banned celebration of Private Enterprise Day, organised by the COSEP.
   • f) The Committee notes that the trade union review of the CUS and the newspaper La Prensa can again be published and circulated and expresses the hope that these measures will be final. It would indeed draw the Government's attention to the principle that the right to express opinions through the press without previous authorisation is one of the essential elements of the rights of workers' and employers' organisations.
   • g) The Committee notes that the Government has announced the lifting of the state of emergency. It requests the Government to supply detailed information on the consequences of the suspension of the state of emergency as regards the activities of employers' and workers' organisations and on developments in the situation concerning the possible application of the Amnesty Act. However, the Committee observes that there is a major contradiction between the allegations made in the complaint and the replies of the Government concerning the areas covered by Conventions Nos. 87, 98 and 144. These contradictions concern the conformity of certain texts with the instruments mentioned and concern factual questions.
   • h) The Committee decides that it will examine at its next meeting in May 1988 the advisability of setting up a Commission of Inquiry in response to the complaint lodged under article 26 of the Constitution, on the basis of the information which will be supplied by the Government and the comments which will be formulated by the Committee of Experts on the Application of Conventions and Recommendations of the application by Nicaragua of Conventions Nos. 87 and 98. Geneva, 19 February 1988. Roberto Ago, Chairman.