Interim Report - Report No 294, June 1994

Case No 1649 (Nicaragua) - Complaint date: 31-MAY-92 - Closed

1. 626. The complaint in this case is contained in a joint communication from the Sandinista Workers' Confederation (CST) and the Agricultural Workers' Association (ATC), dated 31 May 1992. Later, in a communication of 4 December 1992, the Agricultural Workers' Association presented new allegations. The Government sent its observations in communications of 21 October and 3 December 1992, 13 July 1993 and 15 February 1994.
2. 627. Nicaragua has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 628. In their communication of 31 May 1992, the Sandinista Workers' Confederation (CST) and the Agricultural Workers' Association (ATC) refer to protests against the consequences of the Government's stabilization plan (unemployment, high levels of poverty and infant mortality, etc.) and specifically make the following allegations:
   • - the National Bus Company (ENABUS): when workers carried out a protest to demand that the terms of their employment contract with the Ministry of Construction and Transport be observed, the police attacked them to put down the protest, arresting some and injuring eight (Gerónimo Blandon Leiva, Richard Wellcome, José Corrales, Luis Sánchez Duarte, José Hidalgo, Sergio Rocha, Silvio Jarquin and Guillermo Urbina);
   • - AERONICA National Airlines: 68 workers were detained as a result of a dispute between workers and the company's management; they were accused of reckless endangerment. All the workers were later released, but the trade union's General Secretary, Luis Torres Paguagua, and three other workers are still facing charges;
   • - the El Paraíso farm: nine workers were dismissed because they demanded that the collective agreement be observed;
   • - the Montpellier ranch: 11 members of the trade union were dismissed;
   • - rural trade unions: the Ministry of Labour's central delegation prohibited the registration of rural trade unions in the private sector unless the following requirement was met; the farm owners should provide a certificate indicating the number of workers in each production unit. The complainants mention 27 trade unions which suffered prejudice because of this measure;
   • - the La Rondalla ranch: ten trade union leaders and members were dismissed in retaliation for holding protests;
   • - the El Quetzal ranch: six workers were dismissed because they demanded that the collective agreement be observed;
   • - the La Luz ranch: 18 workers were dismissed because they demanded that the current collective agreement be observed;
   • - the Alsacia ranch: the following trade union leaders and trade unionists who campaigned for trade union claims were arrested and are still in prison: Vicente Mendoza Jiménez, Luis Manuel Martínez Mesa, Julio David Tercero Rojas, Raúl Corea, Emilio Ferrufino González Dávila, José Ramón Rayo Rivera, Ramón Suarez, Marcos Suarez, Daniel Espinoza, Miguel Martínez Aguila, Mario José Hernández Silva, Leonardo Silva, Mario Ríos, Emilio Córdoba Ayala, Pedro Silva Ulloa, Pedro Silva Suazo, Rodolfo Hernández, Oscar Danilo Altamirano, Juan Ramón García, Norberto Jirón, Nicolás Díaz and Juan José Ulloa Silva;
   • - Companic S.A.: as a result of a labour dispute which arose after the workers requested consultation and job security agreements, the Ministry of Labour declared illegal a non-existent strike (under the pretext that seven workers had initially blocked the company's entrance) and, as a consequence, 45 union members and the six members of the union executive were dismissed. An appeal for amparo (enforcement of constitutional rights) has been lodged with the Court of Appeals;
   • - the La Queserita ranch: three trade union leaders (Bayardo Martiney, Víctor Manuel Juarez and Noel Martínez) were dismissed because they demanded that the social benefits owed to four retired workers who are members of the union be paid;
   • - the El Olocotón ranch: three trade union leaders were dismissed (Danilo Machado, María Luisa Salinas and Bernarda Gonzales);
   • - the La Cruz ranch: two trade union leaders were dismissed (Augusto Canales and Bertha Areas);
   • - the Los Millonarios ranch: 204 workers were dismissed, including the union's General Secretary, because a strike was declared illegal;
   • - the San Carlos ranch: the following workers were beaten and detained: Lino de Jesús Martínez, David Santiago Reyes, Aurelio Ramírez, Héctor Moncada, Antonio Maradiaga, Nicolás Téllez, Santos Apolonio López, Eugenio Velázquez, Mariano Quintero and Bernardo López;
   • - the La Ofelia ranch: the trade union leaders Secundino Hernández, Cristino Pérez, Hermógenes Juarez, José Pérez, Inés Martínez and Domingo Rivera were beaten and arrested;
   • - the La Pistola ranch: the trade union leaders Miguel Jiménez, Víctor Gómez and René Gradiz Aguilar were arrested and beaten;
   • - the La Candelaria ranch: the ranch's owner and his bodyguards attacked the premises of the Mercedes Mayorga Trade Union and confiscated union documents. The Disputes Secretary, Julián Martínez, was later dismissed.
     • Finally, the complainants allege that Antonio Gutiérrez Rayo, a trade unionist in the tobacco sector, was murdered on 24 April 1992.
   • 629. In its communication of 4 December 1992, the Agricultural Workers' Association (ATC) presented the following allegations:
   • - eight trade union leaders of the ATC were arrested on 2 June 1992 at the request of an employer;
   • - the La Colonia farm: five trade union leaders of the ATC were arrested and accused of unlawful occupation of private property. They were later released and their cases were dismissed;
   • - the Santa Josefina ranch: on 29 June 1992 four ATC trade unionists were arrested, and were later released by a judicial order;
   • - the El Tuma-La Dalia de Matagalpa region: four ATC trade union leaders were arrested (Jorge González Hernández, Isidoro Aguilar Miranda, Nicolás Aguilar Miranda and Entimo López Salgado) on 4 June 1992, and were accused of unlawful occupation of private property. They are still in detention;
   • - the Santa Gertrudis ranch: the trade union leader, Omar Antonio Matute Talavera, was arrested and imprisoned;
   • - the Pantasma region: nine trade unionists were arrested and imprisoned (Iván Silva, Inés Zeledón, Hilario Silva, Paulino Silva, Willam Martínez, Dionisio Silva, Bayardo Barrera, Félix Silva and Julio César Pastora);
   • - the Santa María de Ostuma ranch: the trade union leader, Sergio Guido, and three union members were arrested;
   • - the Los Placeres ranch: four trade union leaders were arrested (Ricardo Salas García, Germán Pérez Suarez, Felipe Gómez González and Luis Loaisiga López);
   • - the Wapinol Cooperative: the trade unionists Félix Castillo Castro and José Dolóres Castillo Zeledón were arrested;
   • - the Las Rosas ranch: two trade union leaders were arrested on 26 November 1992 and were later released;
   • - the Santa Celia ranch: the Ministry of Labour stated that it was not competent to reinstate six members of the ATC who were dismissed because they demanded that the collective agreement be observed;
   • - the San Pablo ranch: the trade union leaders Juan Ureña, Tiburcio Vilchez, Albenis Mercado and Dadryl Ostil were arrested on 10 August 1992;
   • - the El Bálsamo, Imperio, Roma, Holanda and San Miguel farms: 75 workers, including 20 trade union leaders, were dismissed; and
   • - the residence of the ATC's trade union leader, Mrs. Ramona Castellón, was searched unlawfully.
2. 630. The complainant organizations also present allegations which have already been examined by the Committee in Cases Nos. 1586 and 1719.

B. The Government's reply

1. 631. In its first reply, the Government states that, as regards the allegations concerning AERONICA National Airlines, after several months of negotiations between the Transport Workers' Federation, the Aerónica Trade Union and the Government, the union broke off negotiations and declared a strike. According to the Government, the union claimed that the enterprise was being sold behind the workers' backs, in violation of consultation agreements which gave them a 25 per cent stake in the airline; the workers occupied the company's facilities and blocked runways with airplanes, causing significant financial losses and endangering the lives of others. The Government reports that the police cleared the aircraft from the runways and arrested several workers involved in the demonstration. They were released after their cases were brought before a court (four were released on bail: Luis Torres Paguagua, Ismael Rueda, Leonardo Sebero Torres and Jacinto Rener Vallejos). Finally, the Government indicates that the Ministry of Labour invited members of the Aerónica Trade Union to participate in negotiations on various occasions, but since they would not attend it was decided to close the enterprise.
2. 632. The Government adds that:
   • - as regards the alleged dismissal of the ATC's trade union leaders, no complaint has been presented to the Ministry of Labour;
   • - the General Inspectorate of Labour has no record of any declaration of an illegal strike at the Los Millonarios ranch;
   • - as regards the case of the Companic S.A. company, the complainants have revoked their complaint to the ILO, as the parties came to an agreement and resolved the dispute; and
   • - as regards the alleged refusal to register rural trade unions, there is full and complete freedom of association in Nicaragua and the Directorate for Trade Union Associations processes all registration requests that are submitted and provides prompt replies. In the case of the trade unions mentioned by the complainants, they were registered within the legally established time-limits. The Government explains that the Directorate for Trade Union Associations requested the collaboration of the enterprise-level associations to help determine the unionization rate in the country, and thus inquired as to the number of trade union members and the total number of workers when the association was an enterprise union.
3. 633. In its communication of 3 December 1992, the Government states that:
   • - as regards the allegations concerning the National Bus Company (ENABUS), a group of workers violently blocked the access roads to the Ministry of Construction and Transport, paralysing transport. The intervention of the police was necessary to restore order. The demonstrators responded by attacking the police;
   • - as regards the allegations concerning the Montpellier, La Rondalla, El Quetzal, San Carlos, Ofelia and La Pistola ranches, the problems encountered have nothing to do with labour and union questions, and are related to the occupation and ownership of land. These problems result from the return to their rightful owners of previously confiscated and illegally occupied properties. The Government established a reserve of land for the resettlement of the illegal occupants, but they refused to hand over the land they were occupying;
   • - as regards the El Paraíso ranch, nine workers were temporarily suspended from their jobs, but were reinstated ten days later when the company's economic health was restored;
   • - as regards the death of José Antonio Gutiérrez Rayo, a commission comprising inter alia representatives of the "Revueltos" leadership (workers) and the Ministry of the Interior reported that on 24 April 1992 the police broke up a barricade located on the Pan-American highway, and that an armed clash later took place in which one policeman and a member of the group of protesters were injured. Mr. Gutiérrez Rayo was fatally injured some 3,000 metres from where the barricade was, and it was later proved that some of the demonstrators were armed. The Government also reports that judicial investigations are under way to determine who is responsible for these acts.
4. 634. In its communication of 13 July 1993, the Government states that:
   • - the eight trade union leaders of the ATC who were arrested were accused of threatening lives and property, and that they were released following the appropriate investigations;
   • - the arrest of the workers at the La Colonia farm took place under a court order, as they were accused of unlawfully occupying private property and threatening to kill the property owner;
   • - the workers at the La Josefina ranch were arrested under a court order, based on the ranch owner's complaint to a criminal court judge of death threats made against her; they were released because of a lack of sufficient proof;
   • - as regards the arrest of Jorge González Hernández, the trade union leader of the ATC, and others (El Tuma region), neither the Matagalpa provincial delegation nor the police took part in these acts;
   • - as regards the arrest of the trade union leader Omar Antonio Matute Talavera at the Santa Gertrudis ranch, and the arrest of trade unionists Iván Silva, Inés Zeledón and others in the Pantasma region, neither the national police nor the courts are aware of such acts;
   • - in the case of the Santa María de Ostuma ranch, the ranch was returned to its owner, as it had been unjustly confiscated by the previous Government; there were no arrests;
   • - at the Los Placeres ranch there were no arrests;
   • - Aurelio Traña and Rosalio González of the Las Rosas ranch were arrested as part of an investigation into a killing which took place near the ranch; they were later released;
   • - there is no information regarding the alleged dismissals at the Santa Celia ranch, but a list of claims has been presented and is now the subject of negotiations;
   • - as regards the alleged arrest of Pedro Castillo Castro and other members of the Wapinol Cooperative, the reasons and dates of arrest are unknown and it is thus impossible to provide any information.
5. 635. Finally, the Government points out that the previous Government unjustly and arbitrarily confiscated property and that, as part of the national reconciliation process, a special commission of jurists was established for a specific period to hear the cases of people reclaiming their land. Based on the rulings of this commission, the Government returned certain properties to their owners, and this caused unrest among the people illegally occupying these lands. They threatened the owners and damaged their property. In these circumstances, the owners turned to the legal system to ensure that their rights were respected.

C. The Committee's conclusions

1. 636. The Committee notes that the allegations in this case refer to one case of murder, to physical attacks, arrests and break-ins at trade union premises and the residences of trade union leaders and trade unionists, and to anti-union dismissals and other violations of trade union rights at various enterprises.
2. 637. As regards the murder of trade unionist José Antonio Gutiérrez Rayo, the Committee notes that the Government reports that the police broke up a demonstration by workers on the Pan-American highway and that an armed confrontation later took place, injuring a policeman and a member of the group of demonstrators, that the trade unionist in question was fatally injured some 3,000 metres from where the police broke up the demonstration, and that it has been proved that some of the demonstrators were armed. Similarly, the Committee notes that judicial investigations are under way to determine who is responsible for these acts. In these circumstances, the Committee deplores this murder and trusts that the investigations will be concluded quickly and that the guilty parties will be punished. In the meantime, the Committee requests the Government to keep it informed of developments in these investigations.
3. 638. The Committee takes note of the observations presented by the Government concerning the arrest of trade union leaders and trade unionists. Specifically:
   • - as regards the trade union leaders and trade unionists of the ATC, the Santa Josefina ranch and the Las Rosas ranch who were arrested (eight trade union leaders, four trade unionists and two trade union leaders, respectively), the Government reports that they were arrested by judicial order, as they were accused of committing or participating in criminal offences, but that their release was ordered after the appropriate investigations took place;
   • - as regards the workers arrested at the La Colonia farm (five trade union leaders who were later released), the Government points out that they were arrested by judicial order, as they were accused of unlawfully occupying private property and threatening to kill the owner.
4. 639. Noting that the workers mentioned in these allegations were arrested by judicial order and were later released because the charges against them were dropped, the Committee should like to draw the attention of the Government to the fact that the arrest by the authorities of trade unionists concerning whom no grounds for conviction were subsequently found is liable to involve restrictions of trade union rights. Governments should take steps to ensure that the authorities concerned have instructions appropriate to eliminate the danger which arrest for trade union activities implies (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 97).
5. 640. As regards the allegations concerning AERONICA National Airlines (the arrest of 68 workers for taking part in a demonstration on charges of reckless endangerment, and the prosecution of the union's General Secretary, Luis Torres Paguagua, and three other workers), the Committee notes that the Government mentions that the workers occupied the company's facilities and blocked runways with aircraft, causing significant financial losses and endangering the lives of others, and that the police arrested several workers who were involved in the demonstration, and who were later released (four of whom were released on bail: Luis Torres Paguagua, Ismael Rueda, Leonardo Sebero Torres and Jacinto Rener Vallejos). In the light of these statements, and before taking a position, the Committee requests the Government to indicate which charges have been filed against the workers released on bail and to communicate any sentences handed down.
6. 641. As regards the allegations concerning violent acts at the National Bus Company (ENABUS) (physical assault against workers demanding the implementation of an agreement, resulting in the injury and arrest of eight people: Gerónimo Blandón Leiva, Richard Wellcome, José Corrales, Luis Sánchez Duarte, José Hidalgo, Sergio Rocha, Silvio Jarquín and Guillermo Urbina), the Committee notes that, according to the Government, a group of workers forcefully blocked the access roads to the Ministry of Construction and Transport, paralysing traffic, that the intervention of the police was necessary to restore order and that the demonstrators responded by attacking the police. The Committee observes that the Government does not refer to the allegations of physical assault and arrests. In these circumstances, the Committee requests the Government to take measures to establish a judicial investigation so as to establish the facts, determine who is responsible and punish the guilty parties. Similarly, it requests the Government to indicate whether the workers mentioned by the complainants have been released or are still in detention, and whether any charges were brought, and are still pending against them.
7. 642. The Committee also takes note of the Government's observations concerning various allegations of acts of violence:
   • - as regards the arrest of four trade union leaders of the ATC in the El Tuma-La Dalia de Matagalpa region, the Government states that neither the provincial delegation in Matagalpa nor the police took part in these acts;
   • - as regards the arrest of a trade union leader at the Santa Gertrudis ranch, and the arrest of nine trade unionists in the Pantasma region, the Government reports that neither the national police nor the courts have any record of such acts;
   • - as regards the allegations concerning the San Carlos, Ofelia and La Pistol ranches (physical assault and arrest of ten, five and three trade union leaders, respectively), according to the Government these events have nothing to do with labour and trade union questions, and are related to problems of the occupation and ownership of land;
   • - as regards allegations concerning the Santa María de Ostuma ranch (the arrest of four trade unionists) and the Los Placeres ranch (the arrest of four trade unionists), the Government denies that these arrests took place.
8. 643. Observing that, except in the case of the Santa María de Ostuma and Los Placeres ranches, in which the Government categorically denies the allegations, the Government simply replies that there was no government participation, that it has no knowledge of these acts or that the acts are related to a question of the occupation or ownership of land, the Committee deeply regrets that no details have been provided concerning these allegations and requests the Government to take measures to ensure that the appropriate judicial investigations take place in all cases involving allegations of physical assault or the arrest of trade union leaders and trade unionists, and to provide particulars on the situation of those allegedly detained.
9. 644. As regards the allegation of the arrest of two trade unionists at the Wapinol Cooperative (Pedro Castillo Castro and José Dolores Castillo Zeledón), the Committee takes note that the Government mentions that it is impossible to provide information, as neither the dates nor the reasons for the arrests are specified. The Committee invites the complainant organizations to communicate the information requested by the Government so as to permit the Government to reply to these allegations.
10. 645. The Committee also observes that the Government has not communicated its observations concerning the following allegations: the break-in by the owner of the La Candelaria ranch and his bodyguards into the ranch's trade union premises and the confiscation of documents; the arrest of trade union leaders Juan Ureña, Tiburcio Vilchez, Albenis Mercado and Dadryl Ostil on 10 August 1992 at the San Pablo ranch; the break-in at the residence of the ATC's trade union leader, Ramona Castellón; and the arrest and subsequent imprisonment of 22 workers of the Alsacia ranch. The Committee requests the Government to communicate its observations on these allegations as quickly as possible.
11. 646. In general, as regards all these allegations of murder, physical assaults and arrests of trade union leaders and trade unionists, the Committee deeply deplores the numerous serious acts of violence, and expresses its concern, observing that they have affected a significant number of trade union leaders and trade unionists. The Committee points out that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists and it is for governments to ensure that this principle is respected (see Digest, op. cit., para. 70).
12. 647. As regards the numerous allegations of anti-union dismissals, the Committee takes note of the Government's observations. Specifically:
13. (1) as regards the alleged dismissal of trade union leaders of the CST, no complaints have been presented to the Ministry of Labour;
14. (2) the General Inspectorate of Labour has no record that a strike at the Los Millonarios ranch was declared illegal (the complainants allege the dismissal of 204 workers);
15. (3) there is no information on the alleged dismissals at the Santa Celia ranch (six ATC members), but a list of demands has been presented and is now a subject of negotiations;
16. (4) as regards the allegations concerning the dismissals at the Montpellier ranch (11 union members), the La Rondalla ranch (16 union members) and the El Quetzal ranch (six union members), these have nothing to do with labour and trade union questions and are related to problems of the occupation and ownership of land.
17. 648. Observing that, as regards the dismissals at the Montpellier, La Rondalla and El Quetzal ranches, the Government simply states that there were problems related to the occupation or ownership of land, and that with regard to the other allegations it simply replies that it is unaware of the acts alleged to have occurred but in no way denies that all these dismissals took place, the Committee requests the Government to communicate to it detailed information concerning all these allegations. Similarly, the Committee reminds the Government in general terms that no one should be subject to anti-trade union discrimination for carrying out legitimate trade union activities and that "protection against acts of anti-union discrimination should cover not only hiring and dismissal but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker" (see Digest, op. cit., para. 544).
18. 649. The Committee further observes that the Government has not sent information on the dismissals at: (1) the La Luz ranch (18 trade unionists); (2) the La Queserita ranch (three trade union leaders); (3) the El Olocotón ranch (three trade union leaders); (4) the La Cruz ranch (two trade union leaders); (5) the El Bálsamo, Imperio, Roma, Holanda and San Miguel farms (75 workers, including 20 trade union leaders); and (6) the dismissal of the trade union leader Julián Martínez (La Candelaria ranch). In these circumstances, the Committee requests the Government to indicate the specific reasons for these dismissals, so as to permit it to reach conclusions concerning these cases.
19. 650. As regards the allegation concerning the anti-union dismissals at the Companic S.A. company, the Committee notes with interest that the Government states that the workers have retracted their complaint, as the parties reached an agreement and resolved the dispute (the Government encloses with its reply a communication from the company's workers). Similarly, as regards the allegation concerning the dismissal of nine workers from the El Paraíso ranch, the Committee notes with interest that the Government reports that these workers were temporarily suspended from their jobs but were reinstated ten days later, once the company's economic health was restored.
20. 651. As regards the allegation to the effect that the Ministry of Labour's central delegation prohibited the registration of 27 rural trade unions in the private sector unless a requirement was met specifying that the farm owners should provide a certificate indicating the number of workers in each production unit, the Committee notes that the Government denies this allegation, contends that the trade unions mentioned by the complainants were registered in the legally established time-limits, and that in actual fact the unions at the enterprise level were requested to communicate the number of union members and the total number of workers when the union was an enterprise union, so as to establish the unionization rate in the country. The Committee asks the Government to provide the certificate of registration of the 27 unions referred to by the complainant.

The Committee's recommendations

1. 652. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regretting that the Government has not replied to numerous allegations referring to serious acts of violence and various violations of trade union rights, the Committee urges the Government to reply promptly, and in general draws its attention to the fact that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind.
   • (b) Deploring the killing of trade unionist Gutiérrez Rayo, the Committee requests the Government to keep it informed of the development of the judicial investigations under way.
   • (c) The Committee requests the Government to inform it of the charges against the workers of AERONICA National Airlines who were released on bail, and to communicate to it any sentences handed down.
   • (d) The Committee requests the Government to take measures to ensure that a judicial investigation takes place with the aim of clarifying the events at the National Bus Company (ENABUS), establishing who is responsible and punishing the guilty parties. Similarly, it requests the Government to indicate whether the workers mentioned by the complainants have been released or are still in detention, and whether any charges have been brought and are pending against them.
   • (e) The Committee requests the Government to carry out judicial investigations into the alleged acts of violence in the El Tuma-La Dalia de Matagalpa region, the Pantasma region and the Santa Gertrudis, San Carlos, Ofelia and La Pistola ranches.
   • (f) The Committee requests the Government to communicate its observations as quickly as possible concerning the allegations of break-ins by the owner of the La Candelaria ranch and his bodyguards at the union's premises and the confiscation by them of documents; the arrest of trade union leaders Juan Ureña, Tiburcio Vilchez, Albenis Mercado and Dadryl Ostil on 10 August 1992 at the San Pablo ranch; the break-in at the residence of the ATC's trade union leader, Ramona Castellón; and the repression and subsequent imprisonment of 22 workers of the Alsacia ranch.
   • (g) The Committee requests the Government to communicate its observations concerning the allegations of dismissals at the Los Millonarios, Santa Celia, Montpellier, La Rondalla and El Quetzal ranches.
   • (h) The Committee requests the Government to report the reasons for the dismissals at the La Luz ranch (18 trade unionists); the La Queserita ranch (two trade union leaders); the El Olocotón ranch (three trade union leaders); the La Cruz ranch (two trade union leaders); the El Bálsamo, Imperio, Roma, Holanda and San Miguel farms (75 workers, including 20 trade union leaders); and the dismissal of the trade union leader Julián Martínez (La Candelaria ranch).
   • (i) The Committee requests the Government to provide information on the allegations concerning the arrests at the "Santa María de Ostuma" and "Los Placeres" farms.
   • (j) The Committee invites the complainant organizations to communicate the information requested by the Government concerning the allegations of the arrest of two trade unionists at the Wapinol Cooperative, so as to permit the Government to reply to these allegations.
   • (k) The Committee requests the Government to transmit the 27 registration certificates of the rural unions mentioned by the complainants organizations.