Report in which the committee requests to be kept informed of development - Report No 332, November 2003

Case No 2234 (Mexico) - Complaint date: 10-OCT-02 - Closed

Allegations: The complainant organization alleges that following industrial action in support of a claim in the underground railway (Metro), criminal proceedings were instigated against the participants in the action, charging them with “coalition of public servants” and “attacks on means of communication”

1. 752. The complaint is contained in a letter from the Metropolitan Rail Transport Workers’ Union (SMTSTC) dated 10 October 2002. The National Workers’ Union (UNT) and the Workers’ Revolutionary Confederation (CAT) supported the complaint in letters dated 6 and 21 November 2002. The complainant organization sent additional information in a letter of 14 January 2003. The Government sent its observations in a letter dated 28 May 2003.
2. 753. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 754. In its letters dated 10 October 2002 and 14 January 2003, the Metropolitan Rail Transport Workers’ Union (SMTSTC) states that in March 2002 it submitted to the employer (Public Transport Authority) a request for revision of the regulations on general conditions of work, in accordance with the provisions of provisional article 3 of those regulations. In the absence of a reply, the workers’ assembly and the general council of delegates, the trade union’s governing body, agreed on 5 August 2002 to a partial stoppage in some facilities (Metro lines 9 and B).
2. 755. The complainant organization adds that the stoppage took place on 8 August 2002 on lines 9 and B of the underground railway (Metro). The action was conducted peacefully, without violence and without threats or injuries of any kind, for the sole purpose of protesting against the failure to pay wages and the negligence of the Public Transport Authority and the Federal District Government to address the defects and structural weaknesses in the installations and trains used to provide the public urban passenger service in the metropolitan area as set out in the requests. The complainant organization reports that, as a result of this form of action, the Federal District authorities and the employer agreed with the trade union to address the various points set out in the claims, which confirms the legitimacy of that action.
3. 756. The complainant organization alleges that after the 8 August stoppage, the Public Transport Authority and the Federal District Government instigated criminal proceedings in the Federal District and the State of Mexico against its General-Secretary, the other members of the executive committee and the other workers who participated by commission or omission. They were accused of promoting and carrying out a suspension of work, whereby they were deemed to have committed the offences of “coalition of public servants” and “attacks on means of communication” (articles 216 and 167 of the Criminal Code).
4. 757. The complainant organization adds that the partial stoppage was a decision adopted by the executive committee and, in particular by the General-Secretary of the general executive committee, who simply acted as the representative of his members. The partial stoppage consisted solely of abstaining from work on 8 August 2002. The presence of the workers in stations on Metro lines 9 and B was solely to explain the decision not to work that day, and did not cause any damage to facilities.
5. 758. They say that the Metro trains were not paralysed, because when the workers arrived at the facilities, the trains were stopped and not running, and they simply did not operate them. Something which is not operating cannot be paralysed, and no train had started on that day. At the request of the Public Transport Authority, the Attorney-General of the State of Mexico initiated a preliminary inquiry against the workers and the members of the executive committee in order to establish the facts, and decided that there were no grounds to pronounce criminal charges against them. Nevertheless, the Federal District Prosecutor’s Office proceeded with the criminal proceedings, forgetting that the Attorney?General’s Office was considered in the doctrine as an institution acting in good faith.
6. 759. On the facts, the only responsibility that can be attributed to the General-Secretary of the general executive committee of the SMTSTC is to have implemented the decision of the grass-roots workers and the general council of the trade union delegates to stop work on the abovementioned two Metro lines on that day. In the course of that action, the workers went to the stations concerned and entered in a peaceful manner (access was not hindered and no doors were damaged), and inside the facilities, they explained their decision not to work on that day. Neither did they prevent access by passengers, since that was the responsibility of the employer’s supervisory staff who were at their posts. Thus, transport system officials, various authorities, members of the public and representatives of the media had access to the facilities throughout the day.
7. 760. They pointed out that not working on a working day is indeed a failure to fulfil employment obligations which could involve civil responsibility but on no account is it a ground for the application of criminal sanctions. The intention of the prosecuting authority is clear, since by its actions it seeks to weaken, frighten and intimidate workers in the trade union by attacking their representatives (General-Secretary and other members of the executive committee) by instigating criminal proceedings when they could have recourse to industrial proceedings.
8. 761. The complainant organization indicates that on 27 November 2002, the Attorney-General of the State of Mexico issued a decision confirming that criminal proceedings would not be taken against the participants in the strike on 8 August, among other reasons, because:
   • From all the above, we must conclude that the facts presented by the plaintiff must be considered in the context of labour standards set out in the legislation which the employers and trade unions consider applicable in resolving industrial disputes, since here we have a case of suspension of work by the workers, in their own workplace for no purpose other than to pursue claims of a strictly industrial order and without that suspension of work straying into the criminal sphere. On the facts, property was certainly occupied, but the occupation was peaceful, public and not clandestine, and was even announced several days in advance. Moreover, it was considered to be temporary and for a purpose other than to exercise control over the property, since in fact the occupation was intended to force the employers to address the workers’ demands with respect to safety, refurbishments, training, improved conditions of work, etc., from which it is clear that their requests were to seek better conditions of work, but there is no sense of deception or intent of a criminal nature.
9. 762. The decision by the Attorney-General of the State of Mexico leaves no room for doubt. The suspension of work did not give rise to criminal offences, and the nature of the case is clearly of an industrial character. However, the Federal District Government, through its public transport authority, sought to designate them as criminal offences, something which is not borne out by the facts. The work stoppage, even when carried out collectively, is not subject to criminal sanctions, the more so when it is asserted that the employer, among other things, is addressing the structural weaknesses and defects in the installations and trains. No one can be forced to work in conditions which endanger his life and the lives of others, and work stoppage was the only way to draw the authority’s attention to the conditions in which the service is provided.
10. 763. As a result of the strike, for which it is sought to charge the General-Secretary with criminal responsibility, on 15 August 2002, a week after the strike, the employer and the representative of the Federal District Government signed an agreement with the trade union recognizing that the union’s demands were justified and then announced the closing of certain Metro lines “for maintenance”. If the strike action drew attention to the union’s demands, the eminently industrial character of the event is clear. Moreover, there is case law which establishes that if the employer admits the obligation to meet the workers’ demands through an express agreement following a supposedly illegal industrial action, that fact alone justifies the industrial action and the conduct of those involved in the action becomes exceptional.

B. The Government’s reply

1. 764. In its letter of 28 May 2003, the Government states that none of the facts indicated in the letter sent by the Metropolitan Rail Transport Workers’ Union of the Federal District Transport Authority constitute failure by the Government of Mexico to observe the principle of freedom of association and the right to organize enshrined in Convention No. 87. At no time does the Metropolitan Rail Transport Workers’ Union (SMTSTC) indicate that it had been prevented from freely exercising its right to be established, possess legal personality and own property, to defend the interests of its members in the way and on terms considered appropriate. Neither has it been prevented from exercising its right to draw up its statutes and regulations, freely elect its representatives, organize its administration and activities and draw up a programme of action. Neither is it alleged that the union has encountered obstacles in forming federations and confederations and becoming affiliated to them. For these reasons, the Government of Mexico has at no time failed to comply with the provisions of the ILO’s Convention No. 87. However, in order to contribute in good faith to the work of the Committee on Freedom of Association, the Government sent its comments on the complaints submitted by the SMTSTC.
2. 765. In March 2002, the SMTSTC submitted to the Public Transport Authority a request for review of the regulations setting out the general conditions of work. The review of the regulations was concluded on 7 June of the same year. The SMTSTC agreed a wage increase of 8 per cent with the employer. The complainant organization was aware of the review of the regulations setting the general conditions of work. The Public Transport Authority addressed its request.
3. 766. It should be noted that if the industrial dispute raised by the SMTSTC had not been satisfactorily resolved, national legislation provides the necessary mechanisms for having recourse to dispute settlement bodies in order to ensure respect for and compliance with rights and obligations granted by law or contract and it should be emphasized that the State guarantees that disputes arising in that connection are settled in accordance with the law. Trade unions that have serious objections to the general conditions of work can resort to the Federal Conciliation and Arbitration Tribunal. Where public sector workers consider that their rights at work are generally and systematically violated, they may exercise the right to strike (article 94 of the Federal Public Employees Act).
4. 767. The Government indicates that as far as it knows, the SMTSTC did not make use of these legal mechanisms. On the contrary, the assembly of workers of the transport area of Metro line B, members of the SMTSTC, without having recourse to the remedies under the law, decided to stop work on that line from the start of operation to the end of the service, on the grounds that the letters addressed to the Federal District Transport Authority had not received a reply.
5. 768. The Government explains that the concept of “collective suspension of work” does not exist in the Federal Public Employees Act, in its secondary legislation or in the regulations setting the general conditions of work governing the employment relationship between the Metropolitan Rail Transport Workers’ Union and the Public Transport Authority. The Federal Public Employees Act sets out the obligation of workers to conscientiously perform their duties. Where a public sector employee is absent for a day without due cause, the proportion of his wages for the day not worked is deducted from his wages. Under the regulations setting the general conditions of work, where a worker in the public transport system is absent from work for more than three consecutive days, or more than five separate days within a 30-day period without due cause, he may be dismissed subject to a decision by the Federal Arbitration and Conciliation Tribunal.
6. 769. The Government indicates that in the investigation by the Federal District Public Prosecutor’s Office, a leaflet was found at Lagunilla station on line B which stated that “on 2 August 2000, the assembly of transport sector workers for line B decided to suspend the service of that line on 8 August”. In the early hours of 8 August 2002, some 300 people took over the installations at the stations of Ciudad Azteca, Tacubaya and Pantillán on Metro line 9 of the public transport system, preventing the staff exercising duties involving the employer’s confidence, who came to work, from carrying out their duties, and running the various trains to operate the public service for which the Public Transport Authority is responsible.
7. 770. The Government states that it is not evident from the documents sent by the complainant organization on the agreement with the Public Transport Authority that it was the result of the “collective withdrawal” or suspension of the service, much less that it confirms the legality of the acts undertaken on 8 August 2002.
8. 771. As to the alleged criminal proceedings against persons who participated in the action on 8 August, the legal representative of the Public Transport Authority made an application on 7 August 2002, one day before the events, to Central Investigation Agency No. 50 of the prosecution service of the Federal District Public Prosecutor’s Office. The purpose of the application was to complain of acts which might constitute offences, committed against the party he represented and the travelling public, by any person or persons responsible, on the basis of information obtained from the leaflets placed in the Public Transport System which called for a suspension of service on 8 August 2002, although the general conditions of work did not allow that kind of action, and there had been no notice of a strike or stoppage of work. On 8 August 2002, the legal representative extended his complaint to include the events that had occurred.
9. 772. The Federal District Public Prosecutor’s Office did not instigate ex officio the preliminary proceedings, Case No. FACI/50T1/1008/02-08 against Mr. Fernando Espino Arévalo, General-Secretary of the SMTSTC, as the complainant organization incorrectly indicates. Rather, following the complaint by the legal representative of the Public Transport Authority of matters which might constitute offences, it opened preliminary proceedings against the person or persons responsible. The Federal District Public Prosecutor’s Office, on receiving a complaint, accusation or dispute of a matter which constitutes an offence under the law, is required to pursue and investigate possible offences, undertaking such inquiries as are necessary to ascertain the existence of the offence and the probable responsibility in the light of the facts, and this function is assigned to it under the Constitution of the United States of Mexico. On completion of the necessary inquiries, the Federal District Public Prosecutor’s Office established the existence of the offence and the probable criminal responsibility of Mr. Fernando Espino Arévalo in committing the offences of: (a) attacks on means of communication, under article 167, section VII of the Federal District Criminal Code which provides prison terms of one to five years or fines of 500 to 50,000 pesos. The investigations concluded that Mr. Fernando Espino Arévalo, acting together with other persons, took over the installations of the underground railway system (Metro) on 8 August 2002, paralysing trains which provide a service to the public; and (b) coalition of public servants, under article 216, paragraph 1, in conjunction with articles 7, section I; 8, single paragraph; 9, paragraph 1; and 13, section III of the Federal District Criminal Code, in conjunction with articles 122, last paragraph and 124 of the Federal District Criminal Procedures Code. (Article 216 states that “any public servant who combines with others to take measures in violation of the law or regulations, prevents their implementation or leaves his post for the purpose of hindering or suspending any branch of public administration commits the offence of “coalition of public servants”. Workers who associate in the exercise of their constitutional rights or resort to the right to strike do not commit such an offence.”) The investigations uncovered the existence of a call to stop work on 8 August from the start of operation to the end of the service, and the placement of a series of posters in the stations of Metro line B informing the workers of the underground railway system and the travelling public, of a suspension of service on that day. The posters also invited the workers not to carry out work of any kind in Metro line B.
10. 773. According to the Government, it is noteworthy that the complainant organization states in its letter that it carried out a “collective suspension of work” on 8 August 2002, meaning that they did not attend work, and then indicates that it was exercising its right to assemble and strike, enshrined in part B, section X of the Constitution of the United States of Mexico, which necessarily means that they went to the installations of the underground railway system. It should be recalled that the judicial authority will be the one which determines whether the Federal District Public Prosecutor’s Office had sufficient grounds for charging Mr. Fernando Espino Arévalo with the offences of “attacks on means of communication” and “coalition of public servants”.
11. 774. The Government adds, however, that certain clarifications are appropriate as to the scope of articles 9 and 123, part A, section XVI; and part B, section X of the Constitution of the United States of Mexico. The first paragraph of the constitutional provision enshrines freedom of association and peaceful assembly. However, like any human right or constitutional guarantee, these rights are not absolute or unlimited. When the right of free association is exercised in violation of provisions which prohibit a certain conduct, the parties exceed their constitutional rights and thus, transgress the law, committing what secondary legislation, such as the Federal District Criminal Code, define as offences, i.e. conduct which affects the rights of others, undermines public order and endangers social peace. Neither is the right of assembly laid down in the Mexican Constitution an absolute right since it must be exercised in a peaceful manner, which means that its purpose must not be in contravention of the laws on public order.
12. 775. The second paragraph of article 9 of the Constitution addresses freedom of association or assembly to present a petition or a proposal concerning an official act. This guarantee must be understood as the collective exercise of the right of petition, enshrined in article 8 of the Constitution, but the exercise of this right is subject to not making slanderous allegations against the authority nor using violence or threats to intimidate it or in any way pressure it or force it to decide the petition in a particular way. The right of petition does not necessarily require the authority to grant the petition, but only to consider the petition and decide on it in accordance with the law, always provided that it is formulated in accordance with the Constitution. The prohibition in article 17 of the Constitution, the first paragraph of which states that no one may take the law into his own hands or use violence to obtain their ends, should be understood in this light.
13. 776. Section XVI of part A, and section X of part B, of article 123, of the Mexican Constitution enshrine the right to organize of workers generally and the right of public employees to organize and strike. According to the inquiries conducted during the preliminary investigation in Case No. FACI/50T1/1008/02-08, Mr. Fernando Espino Arévalo (General-Secretary of the complainant organization) was found to be probably responsible for the offence of attacks on means of communication, from which it can be inferred that the meeting was not peaceful and its purpose was not lawful, in terms of article 9 of the Constitution. In addition, the trade union was not exercising the right to strike, as laid down in article 123, part B, section X, of the Constitution. Thus, the fact that the rights were not exercised in the form and according to the terms laid down in the Constitution and the Federal Public Servants Act indicates that Mr. Fernando Espino Arévalo and his companions are not covered by the exception in article 216 of the Federal District Criminal Code, since their purpose was to interrupt a public service and not the exercise of a labour right.
14. 777. Section X of part B of the Mexican political Constitution sets out the right to strike of public servants, subject to compliance with the requirements set out by law, for one or various government departments, when the rights set out in that article are generally and systematically violated. This principle is reproduced in article 94 of the Federal Public Employees Act. Articles 92-109 of this law set out the relevant strike procedures. To exercise the right to strike, national legislation sets out certain prior requirements as to form, substance and majority (articles 93, 94, 99 and 100 of the Federal Public Employees Act). Trade unions must issue a strike notice (emplazamiento a huelga), i.e. submission of a petition to the president of the Federal Conciliation and Arbitration Tribunal, which did not happen in this case, since there is no evidence from the inquiries to show that any petition was submitted or notified in accordance with the law, or the record of the meeting in which it was decided to call a strike or collective suspension of work by the SMTSTC. If this trade union considered that the supposed violation of its rights warranted the extreme acts of stopping work and occupying the installations of Metro lines 9 and B, it should have resorted to the right to strike enshrined in the law and applied to the Federal Arbitration and Conciliation Tribunal.
15. 778. Finally, the Government reports that the investigation showed that the acts of Mr. Fernando Espino Arévalo and the persons involved in the events of 8 August 2002 involved preventing the provision of the public service, since by exercising pressure, they paralysed the Metro trains. This situation is addressed in article 167, section VIII of the Federal District Criminal Code. Article 21 of the Constitution allows the Attorney-General to prosecute offences, and the latter performs its function strictly in accordance with the law and independent of the federal or local authorities to which its officials belong, as in the present case. As regards the decision of the Attorney-General’s Office of the State of Mexico not to authorize penal action pursuant to preliminary investigation SAG/I/7139/02, it should be noted that this body is independent in its function concerning penal law. Moreover, it should be noted that the Attorney-General’s Office of the State of Mexico reached this conclusion solely and exclusively with respect to the acts which occurred at the time when the installations of the Ciudad Azteca station on Metro line B were occupied.

C. The Committee’s conclusions

1. 779. The Committee observes that the complainant organization alleges that after a peaceful “partial stoppage” of activities on lines 9 and B of the Metropolitan passenger train on 8 August 2002, following the failure of the Public Transport Authority to reply to a petition requesting the revision of the regulations on general conditions of work, the authority instigated criminal proceedings against its General-Secretary and the other members of the executive committee, and the other workers who took part in the industrial action (charging them with the offences of “coalition of public servants” and “attacks on means of communication”). According to the complainant organization, the Federal District Public Prosecutor’s Office opened a preliminary investigation into the complaint.
2. 780. The Committee notes that the Government provided the following information: (1) where public employees consider that their rights are generally and systematically violated, they can invoke the right to strike guaranteed by the Federal Public Employees Act, but the complainant organization did not use the legal mechanisms and suspended the service of Metro line B on 8 August 2002; (2) on 8 August, some 300 persons occupied the installations of several stations on Metro line 9, preventing the staff who carried out duties involving the employer’s confidence and came to work, from carrying out their duties and running the trains in order to operate the public service; (3) on 7 August, the legal representative of the Public Transport Authority made an application to the Federal District Public Prosecutor’s Office to complain of acts which might constitute an offence on the basis of information that a stoppage of the service was being called without a strike notice or the existence of a strike; on 8 August, he extended the complaint as a result of the acts that had taken place; (4) the Federal District Public Prosecutor’s Office established the existence of the offence and the probable criminal responsibility of the General-Secretary of the complainant organization, Mr. Fernando Espino Arévalo and his companions, for the offence of attacks on means of communication (according to the Prosecutor’s Office, the investigations concluded that Mr. Espino Arévalo, acting in concert with other persons, occupied the installations of the metro public transport system paralysing the public train services; (5) the investigations conducted by the Prosecutor’s Office concluded that the acts committed by Mr. Espino Arévalo and the persons involved in the matter prevented the provision of the public service and the meeting was neither peaceful nor lawful in intent, and the trade union was not exercising the right to strike; and (6) the judicial authority will be the one to determine whether the Federal District Public Prosecutor’s Office had sufficiently justified the probable criminal responsibility of Mr. Fernando Espino Arévalo and his companions.
3. 781. In this regard, the Committee notes firstly that the versions of the Government and the complainant organization differ as to the violent and/or criminal character of the industrial action carried out on 8 August 2002 in the metropolitan passenger train. The Committee observes that on the one hand, the Federal District Public Prosecutor’s Office considered that the offences of attacks on means of communication and coalition of public servants had been committed, while the Attorney-General’s Office of the State of Mexico indicated that “the facts presented by the plaintiff must be considered in the context of labour standards set out in the legislation which the employers and trade unions consider applicable in resolving industrial disputes, since here we have a case of suspension of work by the workers, in their own workplace for no purpose other than to pursue claims of a strictly industrial order and without that suspension of work straying into the criminal sphere”. It added that “property was certainly occupied, but the occupation was peaceful, public and not clandestine, and was even announced several days in advance”.
4. 782. The Committee observes that although the provisions laid down in the legislation for holding a strike were not followed and that, it was therefore an illegal strike, it was conducted peacefully according to the Attorney-General’s Office of the State of Mexico. This latter point is nevertheless seen differently by the Federal District Public Prosecutor’s Office. In this regard, the Committee considers that whether a strike is peaceful or not must be determined by the judicial authority. In any case, the Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 602]. In these circumstances, observing that the judicial authority has yet to decide on the charges against Mr. Fernando Espino Arévalo and the other participants in the industrial action carried out on 8 August 2002 in the metropolitan passenger train, the Committee expresses the hope that in handing down its decision, the judicial authority will take the above principle fully into account. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 783. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Observing that the judicial authority has yet to decide on the charges against Mr. Fernando Espino Arévalo, General-Secretary of the Metropolitan Rail Transport Workers’ Union (SMTSTC) and the other participants in the industrial action carried out on 8 August 2002 in the metropolitan passenger train, the Committee expresses the hope that in handing down its decision, the judicial authority will take fully into account the principle according to which no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to keep it informed in this respect.