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Effect given to the recommendations of the Committee and the Governing Body
Effect given to the recommendations of the Committee and the Governing Body
- 116. At its June 2010 meeting, the Committee asked that the requested information be sent as a matter of urgency and without delay on the pending matters. A summary of these conclusions and recommendations are set out below [see 357th Report, paras 89–117]:
- – As regards the request to vacate the detention orders against Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo, the Government reports that on 21 December 2004, the Office of the 73rd Prosecutor of the Office of the Public Prosecutor (the national body with competence to handle cases involving corruption, banks, insurance and capital markets), under the responsibility of lawyer Daniel Medina, submitted an indictment against Juan Antonio Fernández Gómez, Horacio Francisco Medina Herrera and Mireya Ripanti de Amaya for committing the offences of civil rebellion, incitement to commit an offence, incitement to break the law and advocating criminal conduct, unlawful interruption of the gas supply, criminal conspiracy and computer espionage, and requested preventive judicial detention. On 22 December of the same year, a warrant was requested for the arrest of Gonzalo Feijoo Martínez, Edgar Quijano Luengo, Juan Luis Santana López, Edgar Paredes Villegas and Juan Lino Carrillo Urdaneta; the application was granted on the same day, along with the request for preventive judicial detention. Accordingly, as is clear from the above, the competent Office of the Public Prosecutor issued these orders for enforcement by the police; however, the persons concerned are now fugitives from justice. Once again, the Committee recalls that the right to strike in the petroleum sector should be recognized, and considers that it is for the Government to prove in each individual case that an offence has been committed involving the overstepping of trade union rights by the union members concerned. The Committee considers that as this has not been done so far, the union officers and members concerned should be able to return to the country with government assurances that they will not be subject to reprisals. The Committee notes with concern the allegation by UNAPETROL relating to the fabrication of evidence against its officers and requests the Government to send its observations in this regard.
- – As regards the situation of members of the UNAPETROL trade union, the Government indicates that these former PDVSA employees, who set up UNAPETROL and were senior and middle managers of the oil company, were the same individuals who were involved in the coup d’état in 2002, rejecting the PDVSA board of directors, which had been legally appointed in accordance with the Petroleum Act (Official Gazette No. 37323 of 13 November 2001), and who instigated the illegal and unconstitutional paralysis of the oil industry. Thus, as already stated, the lawful procedures prescribed by law for such cases were instituted against these workers, who participated in illegal activities incompatible with their functions and duties under the employment relationship, and who therefore could hardly be reinstated in the PDVSA today in posts which they are not lawfully entitled to occupy. The Committee reiterates its recommendation above on the legitimacy of the strike in the oil industry and considers that, until the Government has proved in each individual case that offences were committed, the union members should be reinstated in their posts.
- – Concerning the alleged reassessment of the dismissal of Gustavo Silva, the Government states that the archives of the Directorate of the National Inspectorate for the Public Sector do not contain any record of proceedings for misconduct against Gustavo Silva; accordingly, no decision has been adopted in this regard. The Government thus requires further information in order to address this request by the Committee on Freedom of Association. The Committee requests the complainant to provide its observations on this matter.
- – As regards the case of Cecilia Palma, the Government states that the applicable disciplinary proceedings prescribed by law were instituted against this person, culminating in an administrative decision on 6 November 2002 issued by the competent authority, duly motivated with sufficient grounds. The official concerned was dismissed from her post as lawyer with the National Nutrition Institute on legal grounds of “lack of integrity, acts of violence, insult, insubordination, immoral conduct at work or act detrimental to the reputation or interests of the institution of the Republic concerned”. The judicial authority rejected the remedy of annulment filed by Ms Cecilia Palma against the decision by the administrative authority, considering that she had displayed an extremely serious lack of integrity unrelated to the exercise of trade union rights. There is no record of Ms Palma having filed any other appeals. The Committee requests the Government to send the text of the administrative and judicial decisions in this matter.
- 117. In a communication dated 21 February 2011, the Government states with respect to the requests to vacate the detention orders against Horacio Medina, Edgar Quijano, Iván Fernández, Mireya Repanti, Gonzalo Feijoo, Juan Luis Santana and Lino Castillo, that in 2004, the Office of the Public Prosecutor initiated the respective procedure against these individuals and submitted an indictment for committing the offences of civil rebellion, incitement to commit an offence, incitement to break the law and advocating criminal conduct, unlawful interruption of the gas supply, criminal conspiracy and computer espionage, and requested preventive judicial detention. However, these individuals are now fugitives from justice. The Government emphatically states that the right to strike in all sectors is not only recognized in the country, but also protected by the Constitution and the laws of the Republic. Article 97 of the Constitution of the Bolivarian Republic of Venezuela establishes the right of all public and private sector workers to strike, subject to the conditions laid down by law. The Labour Act provides broad protection for labour and social rights in the Bolivarian Republic of Venezuela; it specifically establishes the right that the State grants to workers, employers and their organizations, to collective bargaining and to strike (articles 8 and 396), enabling them to exercise the right to bargain collectively and to peacefully solve conflicts. The Constitution itself establishes that strikes must be conducted in accordance with the law and must not cause irreparable damage to the people or institutions (article 496 of the Labour Act). Moreover, workers involved in lawful activities associated with a labour dispute may not be dismissed, transferred or subjected to a worsening in their conditions of work or have any measure taken against them, as stipulated in article 516 of the Act in question. National laws regulate illicit and unlawful conduct targeting the population or institutions and causing irreparable damage or consequences, and consequently fulfil the State’s obligation to protect the rights of the country’s citizens. Therefore, the regulation and sanction of illicit conduct cannot in any way be perceived to be reprisals by the Government against citizens whose actions or conduct classify as offences in the legislation.
- 118. In the specific case of the abovementioned citizens – the Government goes on to say – the Public Prosecutor issued the respective indictments and initiated legal proceedings for the alleged offences. In other words a procedure was initiated to individually try the alleged criminal acts. However, the accused individuals’ obstruction of justice meant no official conclusions could be reached and they could not be found either innocent or guilty. On another matter, the Government has nothing to say with respect to the baseless charge by UNAPETROL concerning the alleged fabrication of evidence against the officers of that organization. The Government suggests that the Committee on Freedom of Association ask the complainants to provide proof of their claims. All that remains is to confirm the full exercise in the Bolivarian Republic of Venezuela of the rights to strike and to peaceful assembly, and the lack of any restrictions to those rights or to lawful industrial action, other than those established in national legislation.
- 119. Concerning the situation of members of the UNAPETROL trade union, with regard to which the Committee reiterates its recommendation regarding the legitimacy of the strike in the oil industry, the Government repeats the information provided in the previous point of this reply concerning the recognition and protection of the right to strike in the country.
- 120. With respect to the case of Cecilia Palma, the Government sends a copy of a ruling handed down by the Second Administrative Disputes Court dated 3 August 2010.
- 121. The Committee notes the Government’s comments concerning the alleged fabrication of evidence against the officers of UNAPETROL in which it suggests that the complainant organizations provide proof of their claims. The Committee invites the complainant organizations to justify their allegation with the proof available to them.
- 122. The Committee regrets that the complainant organizations have not provided information concerning the alleged reassessment of the dismissal of trade unionist Gustavo Silva and advises that in the absence of that information it will not pursue the analysis of these allegations in its next examination of the case.
- 123. With regard to the dismissal of the FEDEUNEP trade unionist Ms Cecilia Palma (removal owing to lack of integrity, insult and insubordination), the Committee notes the ruling handed down by the Second Administrative Disputes Court dated 3 August 2010, from which it can be gathered that the grounds for her removal, over and above the pursuit of trade union activities, related to actions and insults in a context of political confrontation.
