Rapport intérimaire - Rapport No. 251, Juin 1987

Cas no 1016 (El Salvador) - Date de la plainte: 03-JANV.-81 - Clos

1. 334. The Committee last examined these cases at its February 1986 meeting, in the light of information obtained during a direct contacts mission conducted in El Salvador from 12 to 16 January 1986. (See 243rd Report of the Committee, paras. 366 to 418, approved by the Governing Body at its 232nd Session (February-March 1986).)
2. 335. The Committee had already examined Case No. 953 at its meetings in November 1980, November 1981, November 1982, May 1983 and May 1984 (see 204th, 211th, 218th, 226th and 234th Reports of the Committee); Case No. 973 at its meetings in November 1981, November 1982, May 1983 and May 1984 (see 211th, 218th, 226th and 234th Reports of the Committee); Case No. 1016 at its meetings in November 1981, November 1982, May 1983 and May 1984 (see 211th, 218th, 226th and 234th Reports of the Committee); Case No. 1168 at its meetings in May 1983 and May 1984 (see 226th and 234th Reports of the Committee); and Case No. 1273 at its meeting in November 1984 (see 236th Report of the Committee).
3. 336. Since these cases were last examined by the Committee, new allegations have been submitted by the following organisations: the World Confederation of Organisations of the Teaching Profession (5 May 1986), the International Confederation of Free Trade Unions (9 May and 27 June 1986), the World Federation of Trade Unions (14 May 1986) and the United Trade Union Federation of El Salvador (21 June, 1 and 22 July, 8 September, 24 October and 7 December 1986). The Government submitted certain observations in communications dated 29 July, 19 August and 30 September 1986, 6 and 26 January, 6 and 23 February and 10 April 1987.
4. 337. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the cases

1. 338. When it last examined these cases in February 1986, the Committee made the following recommendations on the allegations still pending (see 243th Report, para. 418):
2. "The Committee requests the Government to take steps with a view to the opening of an investigation into the alleged homicide of Tomás Rosales (Case No. 953), José Santos Tiznado and Pedro González (Case No. 973), in respect of whom there is no record of proceedings having been opened.The Committee requests the Government to keep it informed of developments concerning the disappearance of the trade union leader Rafael Hernández Olivo (Case No. 973), as well as of the final outcome of the proceedings concerning the wilful homicide of the trade unionists Rodolfo Viera, Mark Pearlman and Michael Hammer (Case No. 1016), indicating whether the investigation has been able to establish who instigated the crime committed by the two defendants (at its meeting in November 1986, the Committee had noted certain information provided by the Government on developments in these proceedings and had requested the Government to continue to keep it informed of the matter). The Committee requests the Government to undertake an investigation to determine the whereabouts of the trade union leaders Elsy Márquez and José Sánchez Gallegos, and to keep it informed thereof (Case No. 1168). The Committee notes that some of the trade unionists mentioned by the complainants are free, and awaits the information promised by the Government concerning another 18 trade unionists whose arrest has been alleged and whose names are listed in paragraph 392 of the 243rd Report (concerning these 18 trade unionists, the Government reported that none of the persons listed is at present imprisoned in any of the detention centres in the country, but that further investigations will be carried out to determine whether they had been imprisoned at some stage in police centres) (Case No. 1168). The Committee observes that the Government has not sent observations on the alleged murder of the trade union leader Marco Antonio Orantes. Faced with this very serious situation and while deeply regretting the murder of this trade union leader, the Committee requests the Government to send its observations on this matter, indicating in particular whether any proceedings have been instituted and, if so, their current status (Case No. 1273)."
3. B. New allegations
4. 339. In its communication of 5 May 1986, the World Confederation of Organisations of the Teaching Profession (WCOTP) alleges that on 20 April 1986, a group of the armed forces searched the headquarters of the National Association of Educators of El Salvador (ANDES), seizing documents and some of the files of this organisation, including its membership list.
5. 340. In communications dated 9 and 14 May 1986, the International Confederation of Free Trade Unions (ICFTU) and the World Federation of Trade Unions (WFTU) alleged, respectively, the murder of José Aristides Méndez, a postal workers' trade union official, on 6 May 1986. The WFTU adds that in spite of the strike of telecommunications workers, started on 15 April 1986 to obtain wage increases after the Government announced a 16 per cent increase in transport costs, the Government continued rejecting the workers' demands, dismissed six trade union officials, suspended a further five for 30 days and harassed those taking part in the strike.
6. 341. In a communication dated 21 June 1986, the United Trade Union Federation of El Salvador (FUSS) alleges that on 20 June 1986, the national police seized at their homes the officials of the Union Association of Postmen and Post Office Employees of El Salvador (SUCEPES), Victor Manuel Martínez, Francisco Palacios, José Antonio García Hernández and Julio Rojas. The ICFTU points out in its communication of 27 June 1986 that the arrests and forced entries in question took place without a warrant and, according to the police, were connected with investigations into the murder of Aristides Méndez. The ICFTU points out that on 22 June, Victor Manuel Martínez and Francisco Palacios were released but not the two others who, according to the FUSS, were being tried.
7. 342. In its communications of 1 and 21 July 1986, the FUSS alleges the arrest of José Edgardo Gómez (member of STIAMCES), Cecilio Guzmán Pérez, José Leonel Arévalo Morales, Jaime Ernesto Martínez Menjévar (members of the Leather Workers' Trade Union) on 21 June; the arrest of Adalberto Martínez (member of the ANDA Workers' Union) on 23 June; and the arrest of Andrés Valiente (official of the Mechanics' Trade Union) and Andrés Miranda (member of the FUSS) on 27 June. The FUSS also refers to the arrest of Gregorio Aguillón Ventura (official of the Bread Industry Trade Union) on 1 February 1986 by several members of the police (the person concerned was allegedly placed at the disposal of a military court accused of political and related offences). The FUSS also alleges the arrest, on 7 July, of Febe Elizabeth Velásquez (FENASTRAS official) by members of the police; she was released four days later after pressure from the workers. Finally, the FUSS alleges that following the elections in the Textile Workers' Trade Union of Industréas Unidas SA (STTIUSA), the Ministry of Labour, with the intention of dividing the trade union movement, accepted the credentials of an executive committee elected by 40 workers and refused to recognise the executive committee elected by 570 workers.
8. 343. In its communications of 8 September and 26 October 1986, the FUSS alleges the arrest of José Antonio Rodríguez (member of the Building Workers' Trade Union), arrested by armed men in civilian clothing on 18 August 1986 whilst he was going to the building firm Bruno Tonze, where he works; it also alleges the arrest, on 4 October 1986, of Daniel Cuéllar (President of the Agua Zarca Co-operative), Santos Ventura (promoter of the Federation of Agricultural Co-operatives of El Salvador - FEDECOOPADES) and Rafael Vásquez (treasurer of FEDECOOPADES, released on 23 October after having been tortured) when on their way to San Salvador to take part in a march organised by the National Union of Salvadorean Workers. Furthermore, the FUSS alleges the murder of Francisco Méndez (member of the Workers' Association of CEL) on 11 October 1986 by members of the army, on the grounds that he was supposedly looting whereas, in fact, he was involved in rescue work. Later, in a communication dated 7 December 1986, the FUSS alleges that on 1 December, the following were arrested by the national police in the city of Nueva Salvador: Celso Antonio Rivas, Etelvina Vásquez, Adela Margarita Navarreta and David Rolando Arias, members of the Federation of Agricultural Co-operatives of El Salvador (FEDECOOPADES); furthermore, on 4 December 1986, Juan Gilberto Durán, an official of the National Trade Union of the Transport and Allied Industries of El Salvador, was arrested in Sonsonate by members of the army.
9. C. The Government's reply
10. 344. In its communication of 6 January 1987, the Government states, in connection with the death of Tomás Rosales (Case No. 953) and the injuries allegedly suffered by Rafael Hernández (Case No. 973), that the judicial investigations carried out at the places where the crimes supposedly took place refuted the fact that these crimes had been committed. As regards the death of José Santos Tiznado and Pedro González (Case No. 973), it was not possible to identify the persons responsible for the crime during the proceedings because of the lack of witnesses.
11. 345. The Government adds that the trial for the homicide of José Rodolfo Viera and two North Americans (Case No. 1016) is at present before the Supreme Court of Justice.
12. 346. The Government also states that no state security body is aware of the arrests of the trade union officials Elsy Márquez and José Sánchez Gallegos and that investigations are being carried out on the other arrests alleged in Case No. 1168. As regards the allegations concerning Marco Antonio Orantes (Case No. 1273), the Government points out that no security body knows anything about the disappearance or death of the said person, although investigations are continuing in an effort to clarify the situation.
13. 347. As regards the other arrests alleged in Case No. 1273, the Government submits the following information in its communications of 19 August 1986, 6 and 23 February 1987:
14. - José Antonio García Hernández, Victor Manuel Martínez Rodríguez, Francisco Javier Palacios, Virgilio Fuentes Araniva, Julio Hernández Rojas and Concepción Hernández Rojas were arrested on the charge of murdering Aristides Méndez; José Antonio García Hernández and Julio Hernández Rojas were later placed at the disposal of the Fourth Criminal Court (the others were released).
15. - José Edgar Gómez Guerrero, Cecilio Guzmán Pérez, José Leonel Arévalo Morales and Jaime Ernesto Martínez Menjévar were arrested on 21 July 1986 by soldiers belonging to the Second Infantry Brigade of Santa Ana; on 28 of the same month, they were transferred to the central barracks of the National Guard which, on 7 July, placed them at the disposal of the Fifth Military Examining Magistrate, on the grounds that they belonged to terrorists groups.
16. - Andrés Valiente: arrested on 27 June 1986 in the area of Colonia La Fortuna, in the main street of the village of Apopa, on the grounds that he belonged to terrorist groups. He was placed at the disposal of the Special Police Magistrate on 30 June 1986.
17. - Febe Elizabeth Velásquez: arrested by the police and questioned under Decree No. 50, the legislation applying to the suspension of constitutional guarantees in the case of persons accused of committing offences against the legal personality of the State and against international standards. On 12 July, the President of the Republic, as a gesture of the Government's good faith towards the trade union movement, ordered the release of Mrs. Velásquez.
18. - Celso Antonio Rivas Henréquez, Etelvina Vásquez Sánchez, Adela Margarita Navarrete and David Rolando Oliva: arrested on 1 December 1986, at the intersection between Cuscatlán Avenue and Venezuela Boulevard, by members of the national police, since it was known that they were active members of the FPL. Rivas Henréquez was placed at the disposal of the Military Examining Magistrate on 15 December 1986, whilst the others were released on 4 December 1986.
19. - Juan Gilberto Durán: arrested on 2 December 1986, by the national police of Sonsonate, at 14 Norte Avenue, Barrio El Angel, Sonsonate, since it was known that he was a terrorist; he was transferred to the headquarters of the service in question on 4 December 1986 and released on 5 December 1986.
20. - Daniel Rosaide Cuéllar: arrested by Military Detachment No. 6 of Sonsonate on 12 October 1986 and transferred to the headquarters of the national police on 23 October 1986; he was placed at the disposal of the Second Military Examining Magistrate on 29 October 1986. - Rafael Vásquez Fabián: arrested by Military Detachment No. 6 of Sonsonate on 12 October 1986, transferred to the headquarters of the national police on 23 October 1986 and placed at the disposal of the Third Military Examining Magistrate on 29 October 1986.
21. - Santos Ventura: there is no information on this person, because no record on him has been found during investigations carried out to this effect.
22. - Francisco Méndez: his name is not on any of the lists of forensic tests, neither is there any information about him. In spite of this, efforts to ascertain his whereabouts are continuing and findings will be communicated in due course.
23. 348. As regards the allegation that the registration of the most representative executive committee of the Textile Workers' Trade Union of the Industréas Unidas SA was refused, in its communication of 29 July 1986, the Government states that at first the Ministry of Labour announced a decision on 9 May 1986 in which it refused to register either of the executive committees on the grounds of the irregularities committed (simultaneous existence of both assemblies, attendance of persons who were not registered as members of the trade union at the assemblies, etc.). On 20 May, the representatives of one of the groups requested the registration of the executive committee elected at a second session of its extraordinary general assembly, attended by 110 members, and the registration took effect on 22 May. On 26 May, the other group requested the registration of an executive committee elected on 18 May, but this was dismissed because of the previous registration of the other executive committee and several irregularities such as the submission of unsigned documents. The Government stresses that the injured party has the right to request that the trade union assembly or assemblies be legally declared null and void.

D. The Committee's conclusions

1. 349. The Committee notes with concern that since the last examination of the case, the complainant organisations have submitted extremely serious allegations concerning the death and arrest of trade union officials and trade unionists, the searching of the headquarters of a trade union organisation and various actions of interference and anti-trade union discrimination.
2. 350. The Committee notes that the trial concerning the murder of the trade union official José Aristides Méndez has been opened and that the presumed authors of the crime have been identified and arrested. The Committee nevertheless notes that in referring to the other two cases, the Government has merely pointed out that the trade unionist Francisco Méndez is not on the lists of forensic tests carried out and that the security forces know nothing about the death or disappearance of the trade union leader Marco Antonio Orantes, although investigations are still under way. The Committee stresses the importance of carrying out a judicial investigation in all cases with a view to elucidating the facts, determining the responsibilities and punishing the guilty parties if it is proven that offences have been committed. Furthermore, the Committee notes that with respect to the alleged murder of Tomás Rosales and the injuries allegedly suffered by Rafael Hernández, judicial investigations carried out proved that crimes of this nature had not been committed. Finally, the Committee notes that it has not been possible to identify the murderers of José Santos Tiznado and Pedro González during the trial conducted to this effect and that the trial concerning the death of Rodolfo Viera and two North American trade unionists (Michael Hammer and Mark Pearlman) is still under way.
3. 351. As regards the alleged arrests of trade union officials and trade unionists, the Committee notes the release of Victor Manuel Martínez, Francisco Palacios, Febe Elizabeth Velásquez, Etelvina Sánchez Vásquez, Adela Margarita Navarrete, David Rolando Oliva and Juan Gilberto Durán. As charges against those concerned were dropped and bearing in mind the general grounds for arrest communicated by the Government in some cases against the persons concerned, the Committee draws the Government's attention to the fact that measures of detention which restrict the exercise of trade union rights can give rise to a climate of intimidation and fear prejudicial to the normal exercise of trade union activities (see, for example, 243rd Report, Cases Nos. 1269 and 1273 (El Salvador), paras. 405 and 413) and that when this is connected with activities in the defence of the interests of workers, it constitutes a serious interference with civil liberties in general and with trade union rights in particular (see, for example, 243rd Report, Case No. 1258 (El Salvador), para. 396).
4. 352. Furthermore, the Committee notes that the Government pointed out that José Edgar Gómez Guerrero, Cecilio Guzmán Pérez, Leonel Arévalo Morales, Jaime Ernesto Martínez Menjévar, Andrés Valiente and Celso Antonio Rivas Henréquez were arrested and put on trial on charges of belonging to terrorist groups. The Government also mentioned the trial of Daniel Rosaide Cuéllar and Rafael Vásquez Fabián without going into further detail. The Committee requests the Government to give information on this and, in particular, to indicate the specific facts with which all the trade unionists mentioned above are charged so that it might examine the allegations in full knowledge of the facts. The Committee also requests the complainant organisations to supply additional information on the circumstances surrounding these arrests. Finally, the Committee notes that the name of Santos Ventura is not on the lists of detained persons, that José Antonio García Hernández and Julio Hernández Rojas are being detained on the charge of murdering a trade union official and that the Government has not replied specifically to the allegations concerning the arrest of Gregorio Aguillón Ventura (1 February 1986), Adalberto Martínez (23 June 1986), Andrés Miranda (27 June 1986), José Antonio Rodríguez (18 August 1986), and the arrest of the 18 trade unionists mentioned in paragraph 392 of the 243rd Report.
5. 353. The Committee also notes that, according to the Government, no public security body knows anything about the arrest of the trade union officials Elsy Márquez and José Sánchez Gallegos. In view of the allegations that these persons are missing, the Committee repeats its request that a judicial inquiry should be carried out to ascertain their whereabouts.
6. 354. As regards the allegation that the registration of the most representative executive committee of the Textile Workers' Trade Union of Industréas Unidas SA was refused, the Committee notes the Government's comments, according to which various general assemblies were held one after the other and that, apart from one case, irregularities had occurred. The Committee considers that in the present case it does not have enough information at its disposal to be able to come to a decision on this matter. However, it notes that there is a possibility that there might be grounds to initiate legal proceedings and that this right does not seem to have been exercised.
7. 355. Finally, the Committee regrets that the Government has not replied to the allegations concerning the raid of the ANDES premises on 20 April 1986 by the armed forces, who took away documents such as the list of members; it also failed to mention the dismissal of six union officials in the telecommunications sector because of the strike of 15 April 1986.

The Committee's recommendations

1. 356. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee is conscious of the difficult situation that the country is going through; however, it considers it necessary to request from the Government the information referred to below so as to be able to reach conclusions in full knowledge of all the facts raised in the allegations and in the light of the situation prevailing in the country.
   • b) The Committee requests the Government to provide additional information on the alleged murders of the trade unionists Francisco Méndez and Marco Antonio Orantes (Case No. 1273), and to carry out a judicial inquiry into this matter. The Committee also requests the Government to provide information on developments in the trials concerning the murder of trade union official José Aristides Mejéa (Case No. 1273) and the murder of Rodolfo Viera and the two North American trade unionists, Michael Hammer and Mark Pearlman (Case No. 1016). As regards this last point, the Committee regrets that, despite the time which has elapsed since the murders, a final judgement has not been handed down.
   • c) The Committee requests the Government to carry out a judicial inquiry into the disappearance of Elsy Márquez and José Sánchez Gallegos (Case No. 1168) and expresses the hope that this will ascertain their whereabouts.
   • d) The Committee requests the Government to provide additional information on the trade unionists who are still detained and/or being tried, indicating, in particular, the specific facts with which they are charged (Cases Nos. 1168 and 1273). It also requests the complainant organisations to supply additional information on the circumstances surrounding the arrests of those concerned.
   • e) The Committee requests the Government to comment on the allegations to which it has not replied, which are referred to in the previous paragraph.