Report in which the committee requests to be kept informed of development - Report No 359, March 2011

Case No 2771 (Peru) - Complaint date: 05-FEB-10 - Closed

Allegations: The complainant organization alleges the detention of two trade union leaders; that their right to defence was not respected, and that they are detained in a prison institution far from their homes in overcrowded conditions endangering their physical safety

1. 1072. The complaint was presented in a communication dated 5 February 2010 by the General Confederation of Workers of Peru (CGTP).
2. 1073. The Government sent its observations in a communication dated 20 October 2010.
3. 1074. Peru 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. The complainant’s allegations

1. 1075. In its communication of 5 February 2010, the CGTP states that in recent years Peru has experienced an unprecedented increase in social conflict. According to the figures provided by the Office of the Ombudsman, in December 2009, the number of national disputes had more than tripled compared to January 2006. The CGTP states that the Government’s response to the growing number of disputes has been to combat social protest and those involved in it, in other words, civil society organizations and their leaders, instead of addressing the fundamental causes of conflict. This policy of criminalizing social protest is reflected in the increase in sentences handed down for behaviour associated with social protest, the prosecution and imprisonment of leaders for these or other offences, the use of the media to discredit the activities of social organizations, the toughening of police intervention, arbitrary detentions and torture, the use of administrative mechanisms to restrict the activities of trade unions and other social organizations, the intervention of the army to deal with disputes, and sanctions against the journalists and media reporting these situations.
2. 1076. The CGTP states that, in this context, the mining sector stands out as the main source of social and labour disputes in Peru. According to the Ministry of Labour, the mining sector employs less than 1 per cent of the national labour force but is involved in 68 per cent of labour disputes.
3. 1077. The CGTP indicates that the Casapalca Mine Workers’ Union is a trade union affiliated to the CGTP and that Mr Pedro Condori Laurente is the union’s General Secretary.
4. 1078. The CGTP states that on 9 September 2009 Mr Pedro Condori, along with other representatives of his organization, participated in a meeting at the Ministry of Labour with the objective of improving their poor conditions of work and employment and that he was arrested by the police on quitting this meeting. There had been no prior indication of the existence of an arrest warrant against him. The CGTP adds that, a few days later, Mr Claudio Boza, the trade union’s Health and Safety Secretary, visited Mr Condori at the prison where he is being held to take him some food and deal with trade union matters. On his journey home, Mr Boza was also arrested, despite not having been previously informed of the existence of an arrest warrant against him. Although there are various prison institutions much closer to their homes, Mr Boza and Mr Condori continue to be held at the Aucallama prison in Huaral, making any coordination with their lawyers, trade union and family extremely difficult.
5. 1079. The CGTP reports that the arrests of the two trade union leaders are linked to the investigation that is being carried out into the killing of police officer Giuliano Villareal Lobatón, who died when hit by a stone during a protest organized by Casapalca workers in November 2008. The judicial authorities are trying to hold the trade union leaders responsible for the police officer’s death, despite the lack of any evidence or legal arguments to warrant their prosecution. In particular: (1) there is no evidence whatsoever that they were present at the location in question when the alleged events took place. Furthermore, they claim that they were on their way to Lima, where they participated in a meeting at the Ministry of Labour on that day. In addition, neither of the trade unionists appear in the video footage taken at the time and place of the events referred to in the corresponding case file; (2) even if it were possible to prove that the trade union leaders were present at the scene of the crime, this would, given the large number of protest participants, constitute insufficient grounds to conclude that they threw the stone which caused the police officer’s death; (3) there is no legal provision for holding leaders accountable for unintentional offences committed by third parties participating in a demonstration; and (4) many non-unionized workers participated in the abovementioned demonstration, and the stone could therefore have been thrown by a person unconnected with the trade union.
6. 1080. The decisions of the Public Prosecutor’s Office and the judicial authority which ordered the arrests of the two trade unionists breach their right to defence, since they do not specify the conduct of which they are accused, giving only a generic description, with no basis in evidence, of the events that led to the police officer’s death. Both decisions also violate the trade unionists’ right to defence inasmuch as they do not specify the exact nature of the charges brought against them: both court orders are unclear as to whether they are accused (a) of having thrown the stone that caused the police officer’s death, despite the lack of evidence for this, which would mean they are regarded as materially responsible for an act of culpable homicide, which would violate their right to the presumption of innocence, or (b) of being responsible, as trade union leaders, for the actions of participants in the abovementioned demonstration (indirect responsibility for homicide, for which, as explained above, there is no provision in law), which would violate the principle of legality, since that includes the right not to be prosecuted for an offence that does not exist in law.
7. 1081. Furthermore, according to the CGTP, the legal criteria for the detention of accused persons are not met, as both Mr Condori and Mr Boza are public figures, with a known place of residence, who participate frequently in meetings with government representatives; there is therefore no risk of their absconding that could justify their detention. Furthermore, the measure of detention is totally disproportionate, considering that the penalty for culpable homicide is only two years’ imprisonment. If they had been given the maximum sentence, they would be released after only three more months in prison, taking into account time already served.
8. 1082. The CGTP adds that notice of confirmation of the detention order against Mr Condori was given on 22 January 2010, nearly five months after the corresponding appeal was filed. The decision issued by the Second Chamber for Criminal Proceedings of the High Court of Justice of Lima merely repeats, practically word for word, the contents of the appealed decision, without examining any of the arguments submitted by the defence. According to the Chamber, the risk that Mr Condori might abscond is based on the discrepancy between the address given in his national identity document and the address given in his statement to the police. This not only breaches the right to justification of judicial decisions, but also the right to be tried without undue delay. To date, the appeal against the warrant for Mr Boza’s arrest, which was lodged on 15 January 2009, is still pending. Mr Condori has now been deprived of his liberty for five months. His health, which was already weakened by his mining work, is deteriorating day by day owing to the poor sanitary conditions in the prison where he is detained. His wife and three under-age children have to resort to community aid in order to support themselves. The same applies to Mr Boza, who has two young children.
9. 1083. The CGTP states that, due to the general problem of overcrowding in Peruvian prisons, both the defendants are obliged to pay a monthly “rent” of 150 nuevos soles in order to have access to a dormitory bed, without which they would have to sleep on the floor in the corridors. Furthermore, owing to the lack of adequate food given to prisoners, family members and trade union colleagues have to bring them food in prison. All this just further exacerbates their families’ poverty. Lastly, Mr Condori has started receiving threats and verbal and physical abuse from two inmates in his block. Although there is no conclusive evidence, these inmates have revealed that their hostility is based on Mr Condori’s trade union role, and the possibility that this abuse is orchestrated from outside the prison cannot be ruled out.
10. 1084. Lastly, the CGTP considers that the violations of the abovementioned civil rights are in reprisal for the trade union activities of Mr Condori and Mr Boza, who are furthermore being used as a public example to dissuade others from taking up positions of leadership within trade unions and social organizations. The CGTP therefore requests that the Committee adopt appropriate measures to ensure the immediate release of Mr Boza and Mr Condori, and to ensure that their rights are respected.

B. The Government’s reply

1. 1085. In its communication of 20 November 2010, the Government indicates that the SecretaryGeneral of the National Prosecutor’s Office sent copies of the criminal proceedings brought against Mr Pedro Condori Laurente and Mr Claudio Boza, formally set out in File No. 40855-2009. This documentation states that, on 24 November 2008, the Huarochiri Provincial Prosecutor drew up the order for the removal of the corpse of Peruvian National Police (PNP) Captain Giuliano Villareal Lobatón, who was killed during the unrest associated with the strike organized by the Casapalca Mine Workers’ Union. In a resolution without reference number, dated 26 November 2008, the Huarochiri Prosecutor’s Office decided to initiate a police investigation before the Homicide Division of the Criminal Investigation Department (DIRINCRI), for a 20-day period, to identify those responsible for this crime.
2. 1086. On 1 September 2009, the Huarochiri Provincial Prosecutor submitted report
3. No. 426-2008FP-H-MP-FN, formalizing the criminal charge against Mr Pedro Condori Laurente, Mr Claudio Boza, and others, for the culpable homicide of PNP Captain Giuliano Carlo Villareal Lobatón. The indictment order was issued under Resolution No. 1, dated 8 September 2009, in which the judge of the Civil and Criminal Court of Matucana of the High Court of Lima ordered a summary investigation against the trade union leaders and other persons, and issued the arrest warrant.
4. 1087. In ruling No. 72-2010, dated 2 March 2010, the Deputy Provincial Prosecutor of the 46th Criminal Prosecutor’s Office decided not to issue an indictment against defendants Pedro Condori Laurente and Claudio Boza, requested dismissal of the proceedings, and requested that certified copies be sent to the registry office of the Criminal Prosecutor’s Office in session in Lima, to enable it to continue the investigation with a view to identifying the person responsible for throwing the stone which caused the victim’s death. In a resolution with no reference number, dated 10 March 2010, the 46th Criminal Court of the High Court of Justice of Lima received the abovementioned ruling and ordered that the court decisions be placed at the disposal of the parties for a period of ten days, in order to allow them to prepare their case in writing or orally.
5. 1088. In an order dated 25 March 2010, the Criminal Judge of the 46th Criminal Court of the High Court of Justice of Lima ordered the immediate release of the trade union leaders and, on 11 June 2010, ordered that the case be definitively dismissed and filed. The Government adds that the appeal brought by the civil party before the Second Chamber for Criminal Proceedings of the High Court of Justice against the dismissal order granted by the 46th Criminal Court of Lima remains pending.

C. The Committee’s conclusions

1. 1089. The Committee observes that, in the present case, the CGTP alleges the arrest in September 2009 of the trade union leaders Mr Pedro Condori Laurente, General Secretary, and Mr Claudio Boza, Health and Safety Secretary, of the Casapalca Mine Workers’ Union within the framework of an investigation into the death of a policeman, a fact which the Committee can only deplore. The CGTP also alleges that the right to defence of the trade union leaders was not respected, that they are held in a prison establishment far from their homes in overcrowded conditions, and that Mr Condori Laurente has started receiving threats and verbal and physical abuse.
2. 1090. The Committee notes that the Government reports that: (1) the Criminal Judge of the 46th Criminal Court of the High Court of Justice in Lima on 25 March 2010 ordered the immediate release of the trade union leaders and the definitive dismissal and filing of the case; and (2) the civil party in the case filed an appeal against the dismissal order.
3. 1091. The Committee recalls that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 70]. Under these circumstances, while profoundly regretting the detention and the conditions of detention suffered by these trade union leaders, the Committee requests: (1) to be kept informed of the result of the appeal brought by the civil party against the dismissal order issued by the 46th Criminal Court of Lima; and (2) asks the Government take the necessary measures to fully compensate the trade union leaders Pedro Condori Laurente, General Secretary, and Claudio Boza, Health and Safety Secretary, of the Casapalca Mine Workers’ Union, for their seven months of detention.

The Committee's recommendations

1. 1092. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests to be kept informed of the result of the appeal brought by the civil party against the dismissal order issued by the 46th Criminal Court of Lima in the investigation into the death of a policeman.
   • (b) The Committee asks the Government to take the necessary measures to fully compensate the trade union leaders Mr Pedro Condori Laurente, General Secretary, and Mr Claudio Boza, Health and Safety Secretary, of the Casapalca Mine Workers’ Union, for their seven months of detention.