Effect given to the recommendations of the committee and the Governing Body - Report No 329, November 2002

Case No 2086 (Paraguay) - Complaint date: 31-MAY-00 - Closed

Allegations: Anti-union dismissals -- Criminal proceedings, sentencing in the first instance and detention of trade union officials

1. 552. The Committee last examined this case at its March 2001 meeting, on which occasion it presented an interim report to the Governing Body [see 324th Report, paras. 814-828].
2. 553. In a communication dated 12 June 2001, the Single Confederation of Workers (CUT), the Paraguayan Confederation of Workers (CPT) and the Trade Union Confederation of State Employees of Paraguay (CESITEP) presented a complaint containing allegations relating to this case. Subsequently, new allegations and further information were received in communications dated 15 August, 5 and 25 September, 10 October, 3 and 20 December 2001.
3. 554. The Government sent its observations in communications dated 5 and 28 November 2001 and 31 January 2002.
4. 555. At its March 2002 meeting, the Committee noted that the Government had accepted the proposal formulated by the complainant organizations to the effect that a direct contacts mission visit the country in order to gather information and prepare a report so that the Committee could examine the case with all the elements at its disposal [see 327th Report, para. 11]. In this respect, the direct contacts mission took place in Asunción from 18 to 22 March 2002. It was led by Dr. Jaime Malamud Goti, Professor of Ethics, University of San Andrés, Buenos Aires, Argentina, and University of Arkansas, United States, and former Professor of Criminal Law, Faculty of Law and Social Sciences, University of Buenos Aires, Argentina. The report of the direct contacts mission is attached as Annex I.
5. 556. Paraguay 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. Previous examination of the case

1. 557. At its March 2001 meeting, the Committee examined the allegations relating to the dismissal of a trade union member and made the following recommendations on the allegations that remained outstanding [see 324th Report, para. 828(b)]:
2. … concerning the dismissal of Ms. Florinda Insaurralde (who was dismissed, according to the complainant organization, solely on the basis of her involvement in the labour claims and her defence of the rights of other colleagues), the Committee requested the Government and the complainant organizations to forward additional information in order to clarify the matter.
3. B. New allegations from CUT, CPT and CESITEP
4. 558. In communications dated 12 June, 15 August, 5 and 25 September and 10 October 2001, the Trade Union Confederation of State Employees of Paraguay (CESITEP), the Single Confederation of Workers (CUT) and the Paraguayan Confederation of Workers (CPT) state that as a result of anti-union persecution the presidents of the three organizations (Reinaldo Barreto Medina, Alan Flores and Jerónimo López) were brought before the criminal courts and charged with fraud in the bankruptcy of the National Workers’ Bank (BNT). According to the complainant organizations, the Government used the law to persecute its opponents, and the legal process did not take into account the declarations of the accused, nor did it assess the evidence. The complainant organizations add that the fact that other trade union leaders representing other organizations and carrying out the same tasks as the accused were not included in the criminal procedures provides clear evidence that the three presidents were the object of anti-union discrimination. (The complainants deny the accusations put forth in the legal proceedings and state that they are not responsible for the bankruptcy and stripping of assets of the BNT.) Finally, the complainant organizations state that, on 8 October 2001, Penal Court No. 7 for Liquidation and Settlement sentenced Alan Flores and Jerónimo López to seven years’ imprisonment and Reinaldo Barreto Medina to four years’ imprisonment, having found them guilty of being accessories to a breach of trust.
5. 559. In communications dated 3 and 20 December 2001, CUT, CPT and CESITEP refer to the records of the bankruptcy of the BNT, and in particular emphasize the fact that they were tried in the framework of the bankruptcy following a complaint made by third parties not linked to the proceedings (trade union organizations). The complainant organizations categorically deny having committed fraud, embezzlement or illegal collaboration in the alleged asset-stripping of the BNT, for which they were tried, and they provide a detailed explanation of their activities in relation to the bank. They state that the press took advantage of this fact and circulated it widely, undermining the image of the trade union movement and unleashing conflict within the organizations, and that this was a political matter in that, while the principal trade union officials were thus occupied, a radical reform of the State was being promoted. Moreover, they state that the law was acting as a smokescreen to protect the well-known defrauders of the BNT and of the country. The complainant organizations point out that a number of irregularities occurred during the legal proceedings. The complainant organizations state that currently Alan Flores (president of CUT), Jerónimo López (president of CPT) and Reinaldo Barreto Medina (president of CESITEP) are in prison. Finally, the complainant organizations request that, taking into account the complexity of the case and the seriousness of the facts, a direct contacts mission be sent to the country so that the Committee can examine this case with all the elements at its disposal.
6. C. The Government’s reply
7. 560. In communications dated 5 and 28 November 2001, the Government confirmed that the trade union leaders in question had been prosecuted in the criminal courts for fraudulent asset-stripping of the National Workers’ Bank (BNT) and had been sentenced to seven and four years’ imprisonment. Furthermore, the Government emphasized that: (i) each and every one of the legal requirements for the proceedings were observed and that these proceedings took place without any involvement from the State; (ii) the defendants benefited from the procedural guarantees laid down in the National Constitution, the Penal Code and the Procedural Penal Code. The Government denies that anti-union persecution took place and states that the legal proceedings took place under constitutional and procedural guarantees laid down in law. Finally, in its communication dated 31 January 2002, the Government states that, given the complexity of the case, it has no objection to a direct contacts mission being sent to the country.
8. 561. With regard to the matter outstanding from the previous examination of the case of the dismissal of Florinda Insaurralde, the Government states that, according to information received from the Department of Human Resources of the Ministry of Public Health and Social Welfare, the Director of the Maternity and Paediatric Hospital of the Paraguayan Red Cross made a formal complaint and, following an administrative inquiry into the situation by the legal office of the Ministry, it was decided to dismiss Ms. Insaurralde from her employment under resolution No. 321/99 and Decree No. 7081/2000.

D. The Committee’s conclusions

1. 562. The Committee notes the report of Dr. Jaime Malamud Goti of the direct contacts mission. The Committee expresses its thanks for the technical information submitted, which will allow it to examine this case with additional elements of information.
2. 563. The Committee notes that the trade union organizations CUT, CPT and CESITEP state that anti-union persecution of the presidents of these organizations (Alan Flores, Jerónimo López and Reinaldo Barreto Medina) led to their being tried and sentenced to imprisonment by the Criminal Court of First Instance for being accessories to a breach of faith during the bankruptcy of the National Workers’ Bank (BNT). Moreover, the Committee notes that the complainant organizations state that there were irregularities in the proceedings.
3. 564. The Committee notes that the Government confirms that the trade union officials were tried in the criminal courts for fraudulent asset-stripping of the BNT and that they were sentenced to imprisonment for seven and four years and that it states that: (i) all legal requirements for the proceedings were observed and that the judicial process took place without any involvement from the State; and (ii) the defendants were tried under the procedural guarantees laid down in the National Constitution, the Penal Code and the Procedural Penal Code.
4. 565. Nonetheless, the Committee notes that the report of the direct contacts mission confirms that there were serious procedural flaws (also with regard to the fundamental legal questions) in the legal proceedings involving the presidents of the trade union organizations. The report summarizes these flaws as follows:
   • (a) With regard to the procedural matters, the following measures seem inappropriate:
5. (1) The decision of the court to authorize the trade organizations to act as private plaintiffs [the claim that these trade unions had a direct interest in the activities that caused damage to the BNT is inadequate and it is not proven that the complainant organizations had a direct interest in the criminal proceedings].
6. (2) The inappropriate -- and entirely unjustified -- decision, by a court with no jurisdiction, to hold Alan Flores, Jerónimo López and Reinaldo Barreto Medina [the Court of First Instance that sentenced the defendants stated that it did not know why the other court decided to continue to hold the trade union officials].
7. (3) The excessive delay (more than five months at the time of the direct contacts mission) in forming a Court of Second Instance with competency to hear the appeal that was granted in October 2001. This situation leaves two matters outstanding: (a) the appeal against the sentence of the first instance; and (b) the decision to continue to hold the defendants. Needless to say, the latter issue is of urgent importance.
   • (b) With regard to the fundamental legal questions:
8. (1) Rules of criminal law have been applied retroactively in violation of the principle of nullum crimen nulla poena sine lege.
9. 566. However, regarding the allegation of the trial and sentencing of the presidents of the trade union organizations in question by the Criminal Court of First Instance being a result of anti-union persecution, the Committee notes that the report of the direct contacts mission states, as follows:
   • With regard to the social and political context of anti-union discrimination alleged by the complainant organizations to the ILO, it should be pointed out that:
10. (1) Most of those people interviewed believe that a number of important sections of the media, especially the press, carried out a campaign to establish the opinion that the defendants were unquestionably guilty even before the legal proceedings confirmed this. According to this majority opinion, all of this was translated in the decision to impose long sentences on the trade union officials, and to continue to hold them in custody in spite of the sentences having been appealed.
11. (2) Although the direct contacts mission is not able to conclude that the judiciary or the Government were acting in a clearly anti-union manner, it is convinced that the flaws described above, and the media campaign, have been prejudicial to the defendants.
12. 567. In these circumstances, and taking into account the serious flaws that took place in the legal proceedings, both procedural and of substance, and in particular the lengthy duration of pre-trial detention, as well as the fact that there was a denial of justice since no tribunal issued a decision concerning the requests of provisional or final release of the trade union leaders, the Committee believes that all necessary measures should be taken to ensure the release of Alan Flores, Jerónimo López and Reinaldo Barreto Medina. Furthermore, the Committee hopes that the judicial bodies will speed up the legal proceedings, requests the Government to keep it informed of any judicial decision issued in this respect, and hopes that these decisions will be made in conformity with Conventions Nos. 87 and 98.
13. 568. Finally, the Committee notes that, when it examined this case at its March 2001 meeting, it had requested the Government and the complainant organization to forward additional information concerning the dismissal of Florinda Insaurralde. In this respect, the Committee notes the Government’s statement that, following an official complaint by the Director of the Maternity and Paediatric Hospital of the Paraguayan Red Cross, the legal office of the Ministry of Public Health and Social Welfare carried out an administrative inquiry, the results of which led to the decision to dismiss the employee under resolution No. 321/99 and Decree No. 7081/2000. In these circumstances, at the same time as it regrets that the complainant organization has not sent additional information (when the complaint was presented it indicated only that there had been a dismissal solely on the basis of the employee’s involvement in labour claims and her defence of the rights of other colleagues), the Committee requests the Government to keep it informed of any proceedings that Florinda Insaurralde may bring against the resolution and the Decree that led to her dismissal.

The Committee's recommendations

1. 569. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Taking into account the serious flaws in the legal proceedings, both procedural and of substance, and in particular the lengthy duration of pre-trial detention, as well as the fact that there was a denial of justice since no tribunal ruled on the requests for conditional or final release of trade union leaders, the Committee believes that all necessary measures should be taken to ensure the release of Alan Flores, Jerónimo López and Reinaldo Barreto Medina. Furthermore, the Committee hopes that the judicial bodies will speed up the proceedings, requests the Government to keep it informed of any judicial decision issued in this respect, and hopes that these decisions will be made in accordance with Conventions Nos. 87 and 98.
   • (b) The Committee requests the Government to keep it informed of any proceedings that Florinda Insaurralde may bring against resolution No. 321/99 and Decree No. 7081/2000, which led to her dismissal.

Annex I

1. Report on the direct contacts mission to Paraguay
2. from 18 to 22 March 2002
3. A. Introduction
4. At its March 2002 meeting, the Committee on Freedom of Association (CFA) noted that the Government accepted the proposal of the complainant organizations in a complaint presented against the Government of Paraguay (Case No. 2086) that a direct contacts mission visit the country [see 327th Report, para. 11]. The objective of the mission was to obtain information relating to the allegations referring to the trial and detention of the presidents of the Paraguayan Confederation of Workers (CPT), the Single Confederation of Workers (CUT) and the Trade Union Confederation of State Employees of Paraguay (CESITEP) and to prepare a report for the Committee so that it might examine the case with all the elements of information at its disposal.
5. The direct contacts mission took place in Asunción from 18 to 22 March 2002 and was led by Dr. Jaime Malamud Goti, Professor of Ethics, University of San Andrés, Buenos Aires, Argentina, and University of Arkansas, United States, and former Professor of Criminal Law, Faculty of Law and Social Sciences, University of Buenos Aires, Argentina. He was accompanied by Mr. Horacio Guido from the Freedom of Association Branch of the International Labour Standards Department.
6. The mission thanks the Minister of Justice and Labour, Mr. Diego Abente Brun, and the Deputy Minister of Labour, Mr. Jorge Luis Bernis, for their acceptance of the mission and for their cooperation. Moreover, the mission acknowledges the Chief of International Affairs of the Vice-Ministry of Labour, lawyer Gloria Bordón, for her efficiency in preparing for and supporting the mission.
7. The Minister of Justice and Labour emphasized the importance of the independence of public authorities. Moreover, he stated that the authorities of the Executive had not interfered in the legal proceedings. This was confirmed by the magistrates and employees of the judiciary. Finally, the Minister stated that he had visited the trade union officials in Tacumbú prison, and that he had also taken measures to ensure that the prisoners were able to take full advantage of the facilities and the conveniences available. When the mission visited the trade union officials, they confirmed what the Minister had said, with the exception of the few resources of the penitentiary system.
8. On Monday, 18 March 2002, the mission found that the file for the trade union leaders Reinaldo Barreto Medina (CESITEP), Alan Flores (CUT) and Jerónimo López (CPT) consisted of 36 volumes (150 tomes of 200 pages each). The judge in the case, Hugo López, stated that the trial took up 70 per cent of the court’s time over a period of two years. The mission consulted the main parts of the file, received copious documentation and interviewed the principal judges involved. The mission spoke with the Ombudsman and with various prestigious judges. It also interviewed a number of trade union organizations and the most representative employers’ organization. The mission thanks, in particular, Judges Ramiro Barboza and Fernando Barriocanal for their frankness and their impartiality in directing the mission in its inquiry into the relevant facts.
9. On 20 March, the direct contacts mission met with the President of the Supreme Court of Justice, Carlos Fernández Gadea, and with another of its members, Judge Paredes. Judge Paredes, referring to the trade union officials in the legal proceedings, stated that they were "responsible for having committed criminal acts" and added that they were "judged guilty of breach of trust". Judge Paredes stated that the trade union members were not persecuted but were judged "for common law crime", adding that the poor reputation of the trade union organizations arose from actions such as those that had resulted in the complaint to the ILO. He also referred to the existence of "fake trade unions", representing the "informal sector", that had obtained credit from the National Workers’ Bank (BNT). He confirmed that the trade union organizations CPT and CNT were the ones through which this credit had been extended (the former is one of the complainant organizations in the case before the Committee on Freedom of Association). Judge Paredes indicated that the trade union members were part of the "executive council" of the BNT, among other things, with the competency to oversee the development of the operation with the building company that represented the means by which the crimes had been committed. He added that the defendants were in prison because they did not hand themselves over to the authorities, who had to find the "fugitives" in order to arrest them.
10. With regard to the statements of Judge Paredes that the trade union officials in question were fugitives, the mission wishes to point out that the most accepted version of events indicates that, once the arrest of the trade union officials was decreed, the latter were easily located by Prosecutor Contreras. The Prosecutor was extremely clear on this issue. With regard to the reasons for arresting the defendants and the reasons for not releasing them, the mission must emphasize that it was not able to substantiate what Judge Paredes said with regard to the trade union officials being classified as fugitives. From the statements of Prosecutor Contreras and other similar statements (from Judge Hugo López, among others) the mission infers that, at the time of arrest, the accused were carrying out normal activities. This must have influenced the arrest or the decision not to release the trade union officials as there was no proof that the defendants were evading legal action.
11. There are three views arising out of the interviews with trade union organizations regarding the case that gave rise to the visit of the direct contacts mission. One group, to which the complainant organizations headed by the defendants belong, defend the trade union leaders and put the legal process down to political ends in persecuting trade union members. A second group, comprising basically those trade union organizations that are private plaintiffs in the proceedings, maintain that the defendants are criminally responsible. This group believes that the trade union officials accused were part of a plan to commit fraud, which consisted of obtaining funds from the BNT through illegal expenditure. The Pegasus construction enterprise, the final recipients of credits of millions, was created to divert funds illegally from the BNT. (The most clear and detailed explanation of how this might have taken place was presented by the lawyer, representing the plaintiff trade union organizations, Pedro Lobo.) The third group, whose most eloquent representative is the trade union official, Sonia Legizamón, of the CGT, was keen for due process to take place and for the revelation of the truth behind the facts to be revealed. In the interview, Ms. Legizamón confirmed her interest that the outcome of the proceedings would reveal the truth of the facts and would absolve or condemn the defendants according to this truth. At the same time she stated that she did not want a conviction if this resulted from infringement of due process. Procedural flaws in the proceedings should not be accepted.
12. B. Criminal proceedings and sentencing by the Court of First Instance of the presidents of
13. the trade union organizations CUT, CPT and CESITEP
14. 1. Rules applicable to the case
15. Criminal law in Paraguay is in a transition period with regard to regulations. Many legal decisions, this one among them, have been complicated by the recent reform of the Penal Code (1997) and the Procedural Penal Code (1998). This situation has made the proceedings considerably more complex than they might have been at another time. It should be pointed out that Judge Fernando Barriocanal, a member of the Civil Appeals Court who, for the moment, seems to be the judge who will take over with regard to the appeals lodged, believes that the process was "anarchic".
16. The trial court judge, Hugo López, ruled against the trade union leaders, citing their action as typical of those falling under article 192, subsection 2, of the new Penal Code (in agreement with article 31 of this Code, which governs the necessary complicity). The text of the regulation in question is as follows: article 192 of the 1997 Code states: "Any person who, with regard to a law, an administrative resolution or a contract, has assumed responsibility to protect an important proprietary interest for a third party and causes or does not prevent, within the sphere of protection granted to him/her, damage to this interest will be punished with imprisonment of up to five years or with a fine. (2) In particularly serious cases, imprisonment may be increased to up to ten years. The preceding paragraph is not applicable when damages amount to a value of less than ten days’ wages. (3) The preceding paragraphs are applicable even when the legal basis for responsibility for the property lacks force."
17. It is perhaps useful to clarify that the incriminating action consists of abuse of the position of agent or administrator of property of a third party while undertaking management or arrangement of affairs that are contrary to the interests of the principal or owner of the property. This is why this is described as a statutory crime. A statutory crime means that, in order to commit the crime, the person responsible must have some special condition. In this case, the condition is one of a legitimate agent, custodian, etc., of another party’s property. The person who commits the crime must have incurred a breach of trust with regard to the owner of the property. In this way, and taking as a basis the detrimental management of the assets of the BNT, the trade union officials of the complainant organizations can only be accused of being accessories to the plans of the executive management of this bank. It is the executive management that officially has the authority to manage and dispose of the assets of the institution.
18. It is also important to note the applicable article from the previous Code. This Code was in force at the time that the acts attributed to the trade union officials were committed and it is the Code under which they were tried. Its application was compulsory unless the legislation that was substituted was less harsh for the defendants. As can be seen, this is not the case: article 401 of the 1914 Penal Code in force between 1993 and 1996, during which the crimes under investigation were allegedly committed, states: "Any person who takes possession of property not belonging to him/her, which has been given in trust or handed over for bailment or administration or for any other reason to which is attached the obligation to return it or to make a specific use of it, and invests it to his/her own benefit with a third party, will be sentenced to imprisonment for a period of one to two months if the damage does not exceed $500.00. If the damage caused exceeds this amount, punishment shall be calculated on the basis of one day of imprisonment for every $10-30 worth of damage in excess of the sum mentioned." It should be stated that this crime can be committed by anyone acting as an agent or a bailiff, etc. It is important to point out that the maximum period of imprisonment for this crime is ten years according to Law No. 1060 of 1984, in force on the relevant date (in accordance with the Legal Bulletin, year 1, June/July 1984, page 59), which says in article 2: "Punishment for crimes against ownership will not exceed ten years unless these are linked to other more serious crimes." In accordance with documentary proof from the Supreme Court library, this text was in force on the date in question.
19. 2. Application of the rules of criminal law
20. The trade union officials Alan Flores, Jerónimo López and Reinaldo Barreto Medina were sentenced for complicity in the commission of the crime covered by article 192, subsection (2), of the 1997 Penal Code. Javier Contreras, the Prosecutor in the case, explained why article 192 of the new Penal Code, "breach of trust", was applied ex post facto to a criminal act that took place in 1996, i.e. to an act that was carried out prior to this Code being in force (it came into force in 1998). The prosecutor suggests that the new Code was applied outside the official date of its entry into force as it was less harsh than that which was laid down for fraud in the repealed Code. The relevant concept in the repealed Code is that of fraud through misappropriation in article 401 (Penal Code, 1914, and this is included in the current Code in article 160 "Appropriation"). This has become less harsh because, despite the fact that the criminal provision for fraud through misappropriation in the former Code indicates a maximum penalty of one to two months’ imprisonment, this increases in relation to the amount defrauded. Both Judge López and Prosecutor Contreras emphasize that what makes the penalty less harsh is the maximum duration of imprisonment that can be applied, which according to the previous Code would have been 25 years.
21. The position taken by the Prosecutor, seconded by the trial judge, gives rise to problems for two reasons.
22. The first reason is based on the fact that the maximum penalty for fraud (former Code) cannot exceed ten years’ imprisonment (in place of 25) as Law No. 1060 of 1984 limits the sentence for crimes against ownership to ten years’ imprisonment. Therefore, there is no reason to maintain that the application of the law in force at the time the crime was committed was harsher than the new law. It should be noted that the trial judge did not take into consideration Law No. 1060 when he issued the sentence. This omission represents a serious flaw in the reasoning of the ruling of the Court of First Instance.
23. The second reason that highlights the unsatisfactory position taken with regard to the Codes arises from the fact that fraud by appropriation requires that the way in which this fraud took place or the person who benefited from this act must be shown, describing the means by which the appropriation took place. Breach of trust in the new law requires only that the owner of the property has suffered damages. Therefore, less proof is required to convict the defendant under the new Code compared to the proof required for a conviction of fraud under the old Code. In other words, the old Code requires proof of objective issues (possession of the property) and subjective issues (the proposal to take possession of the property) causing damages to the third party in question. In the case of breach of trust, the proof required is considerably less as this relates solely to the way in which the management of property of third parties is damaging to those third parties.
24. These reasons indicate that the judge has retroactively applied a criminal law that is more harsh than that which was in force at the time the crime was allegedly committed. This implies a violation of the universally recognized principle of criminal law in which a judge is prohibited from applying laws that are implemented subsequent to the act committed. This problem was in no way solved by the explanations of the trial judge in the course of the interview with him.
25. 3. Private plaintiffs (complainants
26. in the criminal prosecution)
27. Among other things, it is timely to indicate the strangeness of a number of trade unions being admitted as plaintiffs. These trade unions are the Electrical Workers’ Trade Union (SITRANDE), the Journalists’ Trade Union of Paraguay (SPP) and the Construction Workers’ Trade Union (SINATRAC). With regard to this, there is a generalized opinion that coincides with that of the defence. The claim that these trade unions have a direct interest in the activities that damaged the BNT is not sufficient. It is obvious that a criminal scheme involving the assets of the bank would cause damage to all workers in the country. It should not be forgotten that the duty to contribute to the assets of the bank with a percentage of their salary includes all those workers involved with the bank. The explanation presented by the complainant trade unions that those affected by the operation are not only the workers belonging to the trade unions but also the trade unions themselves is not convincing. The judge accepts this complaint: "This court believes that the complainants have the right to complain as they have been the victims, taking into account that they are shareholders in the bank and that those responsible were the authorities and administrators ...". Such a reasoning would lead to absurd results. The parties authorized to lay a complaint against a civil servant would, according to this reasoning, be infinite, for example, if the criminal activities allegedly carried out by that civil servant resulted in a ruinous state policy. Class action is not admissible in this type of criminal prosecution.
28. 4. Duration of the sentence
29. The sentence for Jerónimo López and Alan Flores is seven years’ imprisonment and for Reinaldo Barreto Medina is four years’ imprisonment. These exceed the sentences requested by the prosecutor. When interviewed, Javier Contreras expressed his surprise. This confusion arises from the fact that he had requested only six years’ imprisonment. Although the judge is legally allowed to increase a punishment beyond that which is requested by the prosecutor, this is unusual. A number of authorities interviewed on this point expressed their surprise at the extremely harsh sentence of the Court of First Instance, especially as this exceeded the sentence requested by the prosecutor.
30. 5. The slowness of the trial and the restriction
31. of individual freedoms
32. The sentence was handed down by the Court of First Instance on 8 October 2001. This sentence was appealed by the defendants. As a result of some disqualifications and a number of challenges filed by the parties, there is still no trial judge for the appeal. This deprives the parties of an authority who will resolve possible issues arising out of the trial. There are two points of appeal. The first is the sentence itself, as the defendants maintain their innocence. With regard to this matter it should be pointed out that the Minister of the Supreme Court, Felipe Santiago Paredes, expressed surprise at the allegation of the direct contacts mission that the trial lacked a "natural judge". This statement is based on the fact that the court has still not been formally constituted, as has been pointed out by Civil Court Judge, Fernando Barriocanal, who holds the file. Furthermore, according to the latter, it is the Supreme Court Division, to which Judge Felipe Santiago Paredes belongs, that must resolve the challenges.
33. The second matter makes the delay a particularly serious flaw. The impossibility of resolving the recourse to appeal gave rise to the decision to detain the defendants. In the absence of the trial judge, this precautionary measure was handed down by an "itinerant" judge after the appeal lodged by the defendants’ lawyers had been accepted. While the mission does not believe it appropriate to discuss this issue here, it should be pointed out that it can be legally maintained, as the defendants do, that the trial judge no longer had jurisdiction once appeal had been granted. This means that the trial judge no longer had the competency to rule on any question linked to the trial. Both the defendants and the judge himself maintain this. In an interview on 20 March, Judge Hugo López confessed "not to know the reasons" for which his replacement could have issued a ruling to detain the defendants. The lack of jurisdiction held by the "itinerant" judge of first instance to issue a ruling for the arrest of the defendants has given rise to similar criticism. The trial judge, Hugo López, and the Civil Court Judge, Fernando Barriocanal, who, as already indicated, will probably be responsible for hearing the appeal agree that this measure was inappropriate. This situation demonstrates a serious flaw that highlights the "anarchy" of the procedure followed in this trial. As regards this description, the direct contacts mission refers to the sincere reaction shown by a prestigious magistrate interviewed by the mission. It should be noted that the prosecutor himself was also worried by the delay.
34. C. Alleged trade union persecution
35. All but a few of the members of the judiciary and of the Executive interviewed agree that, since the start of this trial, parts of the media have covered the events in a sensationalist way. The constant coverage had the appearance of trying to obtain a judgement against the trade union officials. Perhaps the clearest witness to this fact was the lawyer, Manuel Páez Monges, who is currently the Counsel for the Defence. Mr. Páez Monges referred to the existence of a campaign specifically directed against the trade union members accused. All those interviewed, apart from the plaintiffs in the criminal trial, agreed that some parts of the media had shown marked hostility towards the defendants. Among various newspapers and radio stations, the paper ABC Color stood out. According to the newspaper clippings that the direct contacts mission was able to see, it should be pointed out that the information in ABC Color indicated to the public that this crime was already proved even before the legal investigation took place: the trade union officials of the complainant organizations to the Committee on Freedom of Association were part of a criminal consortium involved in enriching their members at the expense of the compulsory contributions paid by workers to the BNT. This campaign implies that a large part of the community considered the trade union officials guilty from the start.
36. From this point of view, the fact that the trade union officials were tried on a particular day, in June 2000, a few hours before the start of a general strike, is significant. A number of the people interviewed by the direct contacts mission assumed that the day chosen was done so in order to intimidate the organizations who had called the strike.
37. High-level officials of the Executive and the complainant organizations to the ILO confirm that the proceedings to try the trade union officials took place in the context of a forthcoming programme of state reform and widespread privatization. They add that the proceedings and subsequent arrest of the trade union officials of the complainant organizations to the ILO were probably carried out with the intent to prevent anything from standing in the way of this programme.
38. Conclusion
39. There are circumstances surrounding the procedure and others that relate to the social and political context in which this procedure took place. The circumstances surrounding the legal proceedings reveal both procedural flaws and flaws in the application of the rules applicable to the case.
40. (a) With regard to the procedural matters, the following measures seem inappropriate:
41. (1) The decision of the court to authorize the trade union organizations to act as private plaintiffs [the claim that these trade unions had a direct interest in the activities that caused damage to the BNT is inadequate and it is not proven that the complainant organizations had a direct interest in the criminal proceedings].
42. (2) The inappropriate -- and entirely unjustified -- decision by a court with no jurisdiction to hold Alan Flores, Jerónimo López and Reinaldo Barreto Medina [the Court of First Instance that sentenced the defendants stated that it did not know why the other court decided to continue to hold the trade union officials.
43. (3) The excessive delay (more than five months at the time of the direct contacts mission) in forming a Court of Second Instance with competency to hear the appeal that was granted in October 2001. This situation leaves two matters outstanding: (a) the appeal against the sentence of the first instance; and (b) the decision to continue to hold the defendants. Needless to say, the latter issue is of urgent importance.
44. (b) With regard to the fundamental legal questions:
45. (1) Rules of criminal law were applied retroactively in violation of the principle of nullum crimen nulla poena sine lege.
46. With regard to the social and political context of anti-union discrimination alleged by the complainant organizations to the ILO, it should be pointed out that:
47. (1) Most of those people interviewed believe that a number of important sections of the media, especially the press, carried out a campaign to establish the opinion that the defendants were unquestionably guilty even before the legal proceedings confirmed this. According to this majority opinion, all of this was translated in the decision to impose long sentences on the trade union officials, and to continue to hold them in custody in spite of the sentences having being appealed.
48. (2) Although the direct contacts mission is not able to conclude that the judiciary or the Government were acting in a clearly anti-union manner, it is convinced that the flaws described above, and the media campaign, have been prejudicial to the defendants.
49. Buenos Aires, 23 March 2002. Jaime Malamud Goti.
50. List of persons met by the ILO mission (18 March 2002)
51. 1. Meetings at the Ministry of Justice and Labour
52. - Dr. Diego Abente Brun, Minister of Justice and Labour.
53. - Dr. Jorge Luis Bernis, Deputy Minister of Labour and Social Security.
54. - Dr. Gloria Bordón, Chief of International Affairs of the Vice-Ministry of Labour and Social Security.
55. 2. Meetings with the judiciary
56. - Dr. Carlos Fernández Gadea, President of the Supreme Court of Justice.
57. - Dr. Felipe Santiago Paredes, Member of the Supreme Court of Justice.
58. - Dr. Hugo López, Judge of the Court of First Instance for Liquidation and Settlement.
59. - Dr. Fernando Barriocanal, Member of the Civil Court of Appeal, Second Court.
60. - Dr. Ramiro Barboza, Member of the Labour Court of Appeal, First Court.
61. 3. Dr. Javier Contreras, Criminal Prosecutor.
62. 4. Dr. Manual Páez Monges, Public Defender.
63. 5. Trade union officials of CUT and CPT, detained in the Tacumbú Penitentiary.
64. 6. President of CESITEP, who is under house arrest at the headquarters of the trade union organization.
65. 7 Defence lawyers for the trade union officials.
66. 8. Complainant trade union organizations in the criminal trial (some of which are affiliated to the trade union confederation CUT-A) and their counsel.
67. 9. Trade union officials of CGT, CUT, CPT and CNT.
68. 10. Officials from the employers’ organization FEPRINCO.
69. 11. Mr. José Soler, Deputy Resident Representative for the United Nations Development Programme (UNDP).