Effect given to the recommendations of the committee and the Governing Body - Report No 368, June 2013

Effect given to the recommendations of the Committee and the Governing Body

1. 155. In its previous examination of the case, in June 2012, the Committee made the following recommendations on the matters still pending [see 364th Report, para. 1085]:
   • (a) With regard to the allegations concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, General Secretary, Mr Jesús Argenis Guevara, Organizational Secretary, and Mr Jesús Alberto Hernández, Culture and Sports Secretary) the Committee urges the Government to expedite investigations in order to identify and punish the instigators or accomplices of the murders of these officials whose perpetrator according to investigations died while committing a common crime.
   • (b) With regard to the murder of the two trade union delegates, Mr Felipe Alejandro Matas Iriarte and Mr Reinaldo José Hernández Berroteran, the Committee regrets that in its response the Government did not provide information on developments in the judicial proceedings and investigations concerning the aggravated homicide of the two abovementioned trade union delegates and whether the two accused have been arrested, and once again firmly expects that the judicial authorities will hand down sentences on the perpetrators, should they be found guilty, and where possible on the instigators and accomplices. The Committee requests the Government to keep it informed of developments.
   • (c) As regards the allegations concerning the Office of the Attorney-General’s preparation of criminal charges against and detention of six workers at PDVSA because, during a protest in defence of their labour rights, they paralysed the enterprise’s activities, the Committee urges the Government and the competent authorities to take the necessary measures to have the criminal proceedings brought against the six union officials at PDVSA dropped and to ensure their release without delay. The Committee urges the Government to take the necessary steps to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services so that it does not apply to services which are not essential in the strict sense of the term and so that in no event may criminal sanctions be imposed in cases of peaceful strikes. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee draws the attention of the Committee of Experts to the legal aspects of this case.
   • (e) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.
2. 156. With regard to the allegations relating to the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández), the Government states in its communication of 1 October 2012 that in order to respond once again to this allegation it asked the Office of the Attorney-General of the Republic for information, and was told that the Public Prosecutor had ordered a series of useful, necessary and pertinent measures, which had proved the criminal responsibility of Mr Pedro Guillermo Rondón; however, the fact is that on 26 September 2009, there was a confrontation between this individual and officials belonging to the Anti-extortion and Abduction Group of the National Guard (GAES) and the Investigative and Criminal Police Corps (CICPC), which resulted in the death of the abovementioned accused, Mr Pedro Guillermo Rondón, who was the only person charged in the death of Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández. Consequently, the Public Prosecutor requested that the case be closed, and this request was granted on 5 October 2010, in accordance with the provisions of section 318(3) of the Code of Criminal Procedure and pursuant to section 48(1) of this Code. For these reasons, and given that the Office of the Attorney-General of the Republic conducted the corresponding investigations, charged the person responsible for the crime in question and that he subsequently lost his life, the Government informs the Committee that it has no further information to provide regarding this matter, in view of the fact that the only person charged died. The Committee is explicitly requested not to comment further on the matter, as the competent institutions and authorities have conducted the corresponding investigations and work and have acted diligently to clarify the facts, the case has been closed by the Public Prosecutor and the Government has fully complied with the obligation to inform and provide all information to the Committee.
3. 157. With regard to the murder of Mr Felipe Alejandro Matas Iriarte and Mr Reinaldo José Hernández Berroteran, the Office of the Attorney-General of the Republic stated that interviews, technical inspections, expert investigations and other steps taken by the Public Prosecutor to date have been unable to identify anyone as the perpetrator or perpetrators of the acts. Nevertheless, the Public Prosecutor is proceeding with the investigations in order to fully clarify the facts.
4. 158. As regards the allegations concerning the filing of criminal charges against and detention of six workers at Petróleos de Venezuela (PDVSA) by the Office of the Attorney-General, the Government states that the Office of the Attorney-General said in respect of the case involving six workers from PDVSA GAS (Mr Larrys Antonio Pedrosa, Mr José Antonio Tovar, Mr Juan Ramón Aparicio Martínez, Mr Jaffet Enrique Castillo Suárez, Mr Roy Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado) charged with the offence of boycotting, provided for and punishable under section 139 of the decree with rank, value and force of law for the defence of persons in accessing goods and services, that the Second Court acting as the Criminal Judicial Circuit of the State of Miranda on 11 June 2012 deferred the initiation of proceedings. With regard to this case, the Government once again categorically rejects the Committee on Freedom of Association overstepping its powers, resulting in it issuing judgments without any justification and requiring unlawful subjective actions of the Government and its institutions. The Government states that the Committee on Freedom of Association does not have the authority to request it or to urge any government and its competent authorities, to bring to a standstill or to consider terminated any judicial proceedings or to drop criminal proceedings against individuals who commit offences set out in national laws and regulations. The Government emphatically calls on the Committee to refrain from issuing pronouncements of this kind against the decisions handed down by the competent authorities and institutions of the Bolivarian Republic of Venezuela, to stick strictly to its sphere of competence and to refrain from issuing subjective and irresponsible judgments which, moreover, call on the Government to act in violation of its own internal regulations.
5. 159. The Committee notes the Government’s statements. Underlining that it had classified this case as serious and urgent, the Committee wishes to recall that the murder of union leaders and trade unionists constitutes the most serious violation of freedom of association and that the Committee’s procedures were established specifically in order to ensure respect for trade union rights and in particular the right to life of union leaders and trade unionists. Taking this into account, the Committee is surprised, particularly in view of the fact that the allegations date back to 2009, that the Government is reproaching the diligence it is showing in seeking to establish – beyond the death of the perpetrator – if there were any instigators or accomplices involved in the murders of trade union officials Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández. The Committee stresses the importance, in cases involving the murder of trade unionists, of identifying the perpetrator, and also any instigators and accomplices.
6. 160. With regard to the murder of trade union delegates Mr Felipe Alejandro Matas Iriarte and Mr Reinaldo José Hernández Berroteran, the Committee notes that according to the Government’s statements the measures taken by the Public Prosecutor have so far been unable to identify anyone as the perpetrator or perpetrators of the acts. The Committee notes the Government’s statement that the Public Prosecutor is proceeding with the investigations in order to fully clarify the facts. The Committee regrets that, despite the time that has elapsed, the investigations undertaken have not led to the identification of the perpetrator or perpetrators and, if applicable, the instigators and accomplices, and firmly expects that, in the near future, the Government will be in a position to provide information on the identification and detection of those responsible for the murders.
7. 161. Finally, with regard to the filing of criminal charges against and detention of six workers at PDVSA by the Office of the Attorney-General because, during a protest in defence of their labour rights, they paralysed the enterprise’s activities, the Committee wishes to point out to the Government that the in-depth examination of the allegations of the filing of criminal charges against and detention of trade unionists for paralysing the work of an enterprise in a peaceful manner does not exceed its mandate and that in fact it regularly examines allegations of this sort in many countries. The Committee wishes to recall that simply citing a generic type of offence, such as the offence of boycotting, without indicating the specific actions the trade unionists are being charged with, does not in itself constitute sufficient grounds to dismiss an allegation of disciplinary action for the peaceful exercise of union protest action, particularly if, as in the present case, the judicial process lasts for several years and the parties concerned remain in custody. The Committee reiterates its previous recommendation and requests the Government to indicate the specific actions that the six workers are being charged with, and whether they are still in custody or have been released. As to the recommendation concerning the amendment of the Act for the Defence of Persons in Accessing Goods and Services, the Committee wishes to state that it was made in order to clarify and ensure that the Act does not apply to services that are not essential in the strict sense of the term and that in no event criminal sanctions are imposed in cases of peaceful strikes.