Rapport intérimaire - Rapport No. 258, Juin 1988

Cas no 1298 (Nicaragua) - Date de la plainte: 28-AOÛT -84 - Clos

1. 2. The Committee had before it a number of complaints of infringements of freedom of association in Nicaragua presented by the Latin American Central of Workers (CLAT), the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU) and a complaint concerning the observance by Nicaragua of 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), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) made by a number of Employers' delegates to the 73rd (1987) Session of the International Labour Conference under article 26 of the Constitution of the ILO.
2. 3. In conformity with the decision adopted by the Governing Body at its 239th Session (February-March 1988), the Committee submits, for the Governing Body's approval, a report on the pending cases and the complaint presented in virtue of article 26 of the Constitution of the ILO.
3. 4. The Government sent its observations in a communication dated 29 April 1988.
4. 5. For several years now, the Committee on Freedom of Association has been examining various complaints of violation of the right of association and of freedom of association in Nicaragua. Two cases examined previously and presented by international organisations of workers (CLAT, WCL and ICFTU) are still before the Committee.
5. 6. In addition, in a communication of 17 June 1987, several Employers' delegates to the 73rd Session (1987) of the International Labour Conference presented a complaint against the Government of Nicaragua, under article 26 of the Constitution of the ILO, for violations of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), all three ratified by Nicaragua.
6. 7. The cases still pending and the complaint under article 26 of the Constitution of the ILO were last examined by the Committee at its meeting in February 1988. (See 255th Report, paras. 4 to 68, approved by the Governing Body at its 239th (February-March 1988) Session.) ).
7. 8. Subsequently, the Government supplied its observations in a communication dated 29 April 1988.

A. Complaints lodged by the workers' organisations

• a. Previous examinations of the cases by the Committee
  9. 9 In Case No. 1129, presented by the CLAT and the WCL, the allegations related to the searching and ransacking of the archives of the Central of Nicaraguan Workers (CTN).
  10. 10 At its meeting in February 1988 the Committee noted that, according to the Government, this measure was motivated by internal dissension within the organisation. The Government did not, however, indicate whether the search had been carried out with a warrant. The Committee recalled that trade union premises should not be searched unless a warrant had been obtained from the ordinary judicial authority. (See, for example, 236th Report, Case No. 1269 (El Salvador), para. 536.) In addition, the Committee considered that even if a warrant had been obtained from the ordinary judicial authority for a search, this in no way justified the ransacking of the CTN premises which the complainants described. The Committee therefore requested the Government to ensure that searches of trade union premises are carried out only with a warrant issued by the ordinary judicial authority and requested it to indicate whether a warrant had in fact been issued in this case.
  11. 11 In Case No. 1298, presented by the ICFTU, the allegations related to the arrest of trade unionists.
  12. 12 At its meeting in February 1988 the Committee noted that the Government had still not replied to the allegations concerning the arrest of trade unionists Eduardo Aburto, Eric González, Carlos Herrera, Sergio Rosa and Eugenio Membreño and requested it to send its observations on the matter.
• b. The Government's reply
  13. 13 With regard to the attack on the premises of the CTN, the Government reaffirms that the police intervention was motivated by internal dissension within the organisation and that one of the parties involved had called on the police to restore order. The Government adds that, since people's lives and property were in danger, no search warrant was needed.
  14. 14 As to the arrest of trade unionists, the Government states that Eduardo Aburto was released on 11 November 1984 after having completed a year in prison for causing another person bodily harm. Concerning Carlos Herrera and Sergio Rosa, the Government states that there is no trace in the files of the Ministry of the Interior of their ever having been arrested.

B. Complaint lodged under article 26 of the Constitution a. Allegations contained in the complaint

1. 15. This complaint, dated 17 June 1987, was signed by Mr. Henri Georget, Employers' delegate, Niger, Mr. Johan von Holten, Employers' delegate, Sweden, Mr. Hiroshi Tsujino, Employers' delegate, Japan, Mr. Javier Ferrer Dufoll, Employers' delegate, Spain, Mr. Arthur Joao Donato, Employers' delegate, Brazil, Mr. Raoul Inocentes, Employers' delegate, Philippines, Mr. Wolf Dieter Lindner, Employers' delegate, Federal Republic of Germany, Mr. Tom D. Owuor, Employers' delegate, Kenya, and Mr. Ray Brillinger, Employers' delegate, Canada. In separate communications, Mr. Roberto Favelevic, Employers' delegate, Argentina, and Mr. Vincente Bortoni, Employers' delegate, Mexico, associated themselves with the complaint.
2. 16. In their communication, the complainants recalled that since 1981 at least 21 complaints had been lodged with the ILO by organisations of workers and employers concerning infringements by the Government of Nicaragua of its obligations under Convention No. 87. The infringements consisted of murder (Case No. 1007), physical aggression (Cases Nos. 1031, 1129, 1169, 1185 and 1298), torture (Cases Nos. 1283 and 1344), arbitrary arrests (Cases Nos. 1007, 1031, 1047, 1084, 1129, 1148, 1169, 1185, 1208, 1283, 1298, 1344 and 1351), violation of domicile (Cases Nos. 1129 and 1148), ransacking of offices (Cases Nos. 1129 and 1298), confiscation of land (Case No. 1344), restrictions on freedom of movement (Cases Nos. 1103, 1114, 1129, 1317 and 1351), violations of freedom of expression (Cases Nos. 1084, 1129 and 1283) and a number of other questions involving non-recognition of organisations of self-employed workers until complaints could be presented to the ILO. Any occupational organisation of employers or workers which did not submit to the authority of the Sandinista National Liberation Front (FSLN) was, according to the complainants, the subject of government repression either through its officials or through organised gangs. Consequently Nicaragua had been in a state of emergency for several years. This state of emergency had been continually extended, most recently by Decree No. 245 of 9 January 1987. The complainants added that the state of emergency was used by the Government to suppress all rights and freedoms that were essential for the satisfactory implementation of Convention No. 87 and to suppress any opposition to the interests of the authorities. Moreover, a new Constitution had been promulgated in January 1987 which implicitly denied employers the right of association, which they had enjoyed previously, while granting this right to many other categories; for the complainants, this was an obvious infringement of Article 2 and Article 8, paragraph 2, of Convention No. 87.
3. 17. The complainants further alleged that Decree No. 530, issued by the Government on 24 September 1980 had, since its application, made collective agreements subject to approval by the Ministry of Labour for reasons of economic policy - which, in fact, made freedom to bargain collectively quite meaningless. The complainants considered that, although the competent bodies of the ILO had repeated that this was an infringement of Convention No. 98, the Government had done nothing to remedy the situation. In particular, wages could not be the subject of collective bargaining since they were determined by the National System of Labour and Wage Organisation (SNOTS) which classified every conceivable form of employment and fixed the corresponding remuneration. The complainants pointed out that this violation of Article 4 of the Convention was the subject of a recommendation by the Committee of Experts on the Application of Conventions and Recommendations.
4. 18. The complainants stated, moreover, that the most representative organisation of employers in Nicaragua was the Council for Private Enterprise (COSEP). This organisation was covered by Article 1 of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Nevertheless, according to the complainants, the Government had not consulted the COSEP on procedures which ensure effective consultations, in accordance with Article 2 of the instrument. Contrary to what it stated in its report on the application of the Convention, the Government had also neglected to consult the COSEP on matters covered by Article 5 of the Convention and consequently, the complainants maintained, the Government had respected none of its obligations under the Convention in so far as they related to consultations with the COSEP.
5. 19. In conclusion, the complainants requested that this complaint be examined and a report drawn up by a Commission of Inquiry, in accordance with article 26, paragraph 3, of the Constitution of the ILO, since, in particular, the Government was ignoring the recommendations of the Governing Body Committee on Freedom of Association and of the Committee of Experts on the Application of Conventions and Recommendations, both of which had already expressed their views on the questions referred to above.
   • b. Decision of the Governing Body
6. 20. At its November 1987 Session, the Governing Body, at the proposal of its Officers, took the following decisions concerning the complaint in question:
   • a) the Government of Nicaragua, as the Government against which the complaint was lodged, should be invited by the Director-General to communicate its observations on the complaint by 15 January 1988 at the latest;
   • b) at its 239th Session, the Governing Body would determine in the light of (i) the recommendations of the Committee on Freedom of Association concerning those aspects of the complaint received that concerned freedom of association, (ii) information that might be furnished by the Government of Nicaragua, and (iii) the recommendations of the Committee on Freedom of Association on cases still outstanding, whether the complaint as a whole should be referred to a Commission of Inquiry.
     • c. The Government's reply
   • 21. In its reply of 5 January 1988, the Government stated that, although it was true that several complaints claiming infringement of freedom of association had been presented, it was also true that these matters were closed since the Government had shown that they had nothing to do with trade union affairs but rather involved offences punishable under common law.
7. 22. The Government stated that on 9 January 1987, by Decree No. 245, it had re-established the state of emergency as a legal means to defend itself against the war waged by the United States against Nicaragua; enforcement of the state of emergency was thus designed to forestall counter-revolutionary activities, thereby preserving the rights of Nicaraguan citizens. According to the Government, the statement that Decree No. 245 suspended several trade union rights was totally wrong since none of the rights suspended was of a strictly trade union nature. The only suspended right involving labour matters was the right to strike, which was not a trade union right but a right of workers whether or not they belonged to a union.
8. 23. The Government added that the establishment of the state of emergency was in line with the provisions of article 4 of the International Covenant on Civil and Political Rights and article 27 of the American Convention of Human Rights.
9. 24. According to the Government, the state of emergency had in no way prevented the development of the trade union movement or the freedom of workers to join occupational organisations. Between 1980 and 1986, workers in both towns and the countryside had set up a total of 1,203 unions.
10. 25. The Government considered it important to recall that the ruling handed down by the International Court of Justice on 27 June 1986 gave fundamental legal support to the Government and to its right to defend its sovereignty, territorial integrity and economic and political independence through the international legal order. According to the Government, it was the policy of aggression against Nicaragua and not the state of emergency which was the cause of the difficult and exceptional circumstances being experienced by Nicaraguan society as a whole. The Government emphasised that it hoped to suspend the state of emergency when the causes which were behind its introduction no longer obtained.
11. 26. The Government went on to state that the fact that the right of employers to organise was not embodied in the Constitution should not be understood as a prohibition, since article 49 of the political Constitution set forth the general principle of the right to organise of all persons in order to defend their interests. Moreover, the employers' right to organise was established in the Labour Code and in the regulations governing occupational associations.
12. 27. With respect to Decree No. 530 of 1980, the Government considered that the provisions in question in no way constituted an infringement of the right of employers' and workers' organisations to negotiate collective agreements and, in accordance with the ILO's principle of tripartism, provision was made for the intervention of the Ministry of Labour. Conditions of employment were negotiated by means of a conciliation procedure. If the latter failed the Ministry of Labour could not impose the terms of a collective agreement on the parties. The matter had to be resolved, during a state of emergency, by an arbitration tribunal which came under the judicial authorities and, in normal times, by the procedure relating to the right to strike.
13. 28. According to the Government, the national system for organising labour and wages enabled employers and workers to take part in discussing the bases of the content of work in order to determine wages according to criteria of quantity and complexity.
14. 29. Lastly, the Government considered that Convention No. 144 had not been infringed since consultations had taken place with the organisations which the Government, in its sovereignty, had considered to be the most representative. However, it had no objection to consulting the COSEP as well in due course.
15. 30. In its communication of 19 January 1988 the Government supplied the text of a communiqué stating that as from 19 January the state of emergency was suspended throughout the territory. The Government also stated in this communiqué that it intended to apply the Amnesty Act No. 33 when a ceasefire took place and the groups which had taken up arms returned to civilian life. If no such ceasefire took place, the Government would release the persons concerned if the Government of the United States or a central American Government decided to accept them. They would be authorised to return to Nicaragua at the end of the war.
16. 31. In a subsequent communication dated 28 January 1988 the Government supplied the text of Decrees No. 296 which abolished the anti-Somoza People's courts and No. 297 which lifted the state of emergency for the whole country and restored the rights and guarantees laid down in the Nicaraguan Constitution.
    • d) Examination of the complaint by the Committee at its meeting in February 1988
17. 32. As regards the allegations relating to violations of Convention No. 87, the Committee recalled that on each of the cases cited by the complainants it had adopted conclusions which were approved by the Governing Body and which contained precise recommendations addressed to the Government. The facts in the replies supplied by the Government during the examination of these cases were in a number of instances in contradiction with the allegations made by the authors of the complaints. The Committee was therefore not in a position to draw conclusions from all these cases on the general situation prevailing in Nicaragua with respect to freedom of association.
18. 33. As regards the allegations concerning the non-observance of Convention No. 98, the Committee noted that the Committee of Experts had considered whether the wage-fixing system was in conformity with Article 4 of the Convention.
19. 34. Finally, as regards the application of Convention No. 144, the Committee recalled that it had indicated that pre-established, precise and objective criteria for the determination of the representativity of workers' and employers' organisations should exist in the legislation and that such a determination should not be left to the discretion of governments.
20. 35. The Committee noted that the Government had stated that the only labour right suspended by the state of emergency was the right to strike. As regards the employers' right to organise, the Government had pointed out that this right was recognised by the Labour Code and the regulations governing occupational associations and stated that it was willing to consult the COSEP, in due course, on matters concerning international labour standards.
21. 36. Furthermore, in a more recent communication the Government announced the suspension of the state of emergency and its willingness, subject to certain conditions, to apply the Amnesty Act. The Committee, while noting this favourable development, observed that there was a major contradiction between the allegations made in the complaint and the replies of the Government concerning the areas covered by Conventions Nos. 87, 98 and 144. These contradictions concerned the conformity of certain texts with the instruments mentioned and also a number of factual questions.
22. 37. Moreover, the Committee of Experts on the Application of Conventions and Recommendations was to examine, at its session in March 1988, the application by Nicaragua of Conventions Nos. 87 and 98 on the basis of the information supplied by the Government at the last session of the Conference to the Committee on the Application of Standards, and of the latest developments that had taken place in the country.
23. 38. The Committee considered that the Government's reply for its next session in May, together with the comments of the Committee of Experts, were elements that should be taken into consideration in determining the action to be taken on the complaint lodged under article 26 of the Constitution.
24. 39. In the light of these conclusions the Committee requested the Government to supply detailed information on the consequences of the suspension of the state of emergency as regards the activities of employers' and workers' organisations and on developments in the situation concerning the possible application of the Amnesty Act. The Committee also decided that it would examine at its meeting in May 1988 the advisability of setting up a Commission of Inquiry in response to the complaint lodged under article 26 of the Constitution, on the basis of the information which would be supplied by the Government and the comments which would be formulated by the Committee of Experts on the Application of Conventions and Recommendations on the application by Nicaragua of Conventions Nos. 87 and 98.
    • e. The Government's subsequent reply
25. 40. In its communication dated 29 April 1988, the Government states once again that, by Decree No. 247 of 18 January 1988, it lifted the national state of emergency which had been proclaimed in accordance with article 4 of the International Covenant on Civil and Political Rights and article 27 of the American Convention of Human Rights. The Government affirms that lifting the state of emergency was an act of good will on its side, aimed at facilitating the effective implementation of the agreements concluded by the Presidents of Central America on 7 August 1987 with a view to establishing peace and restoring normal conditions in the region, and in Nicaragua in particular.
26. 41. The Government reaffirms that the Decree proclaiming the state of emergency had only temporarily suspended the exercise of one labour-related right: the right to strike recognised in article 83 of the Constitution. As an Act of the Republic, the suspension Decree applied to the entire population, including employers, workers and their organisations. Thus, suspension of the exercise of certain civil and political liberties could have affected the normal development of activities of these organisations and their members who, as residents in Nicaragua, are obliged to respect the legislation in force.
27. 42. The Government states that with the lifting of the national state of emergency the full exercise of the rights and guarantees contained in the political Constitution of Nicaragua has been restored.
28. 43. After recalling those provisions of the Constitution which had been suspended and which are now in force again, the Government affirms that restoring these rights has incontestably had a positive effect on all population groups, including workers and employers and their organisations.
29. 44. The Government adds that a partial amnesty was declared by the National Assembly on 26 March 1988, and affected 100 persons convicted of crimes against public order and security, who are members of the Nicaraguan resistance movement. The Government and the leadership of the Nicaraguan resistance movement are currently discussing a general amnesty, in addition to social issues.

C. The Committee's conclusions

1. 45. The workers' organisations' allegations still pending concern the ransacking of trade union premises and the arrest of trade unionists.
2. 46. As regards the first point, the Committee observes that, according to the Government, it was because of internal dissension within the Central of Nicaraguan Workers (CTN) and at the request of one of the parties that the police intervened in order to protect persons and property. While noting these explanations, the Committee must recall the importance which it attaches to the protection of trade union property, which was also emphasised by the International Labour Conference in the resolution concerning trade union rights and their relation to civil liberties, adopted in 1970, where it had pointed out that the right to adequate protection of trade union property is one of the civil liberties which is essential for the normal exercise of trade union rights. The Committee would also draw the Government's attention to the fact that, even if police intervention in trade union premises may be justified in particularly serious circumstances, such intervention should in no case entail the ransacking of premises and archives of an organisation.
3. 47. As regards the arrest of trade unionists, the Committee notes the information supplied by the Government, according to which there is no trace of two of these persons ever having been arrested, and that a third was released after having completed the prison term to which he had been sentenced for causing bodily harm. The Committee requests the Government to supply information on the situation of two persons concerning whom it has not yet replied, Mr. Eric González and Eugenio Membreño.
4. 48. As regards the complaint lodged by several Employers' delegates under article 26 of the Constitution, the Committee recalls that this complaint contains allegations concerning non-observance of Convention No. 87, based in particular on the 21 complaints examined by the Committee, suspension of certain constitutional liberties, non-recognition in the national Constitution of the employers' right to organise, non-observance of Convention No. 98, based on the absence of free collective bargaining, and non-observance of Convention No. 144, based on the absence of consultations with COSEP by the Government.
5. 49. In its reply, the Government refers to the lifting of the national state of emergency. The Committee notes with interest that all of the constitutional rights which had been suspended have thus been restored, in particular in areas relating to the activities of employers' and workers' organisations. The Committee also notes that a partial amnesty has been declared for persons convicted of crimes against public order and security, and that negotiations are under way with a view to declaring a general amnesty.
6. 50. The Committee observes, however, that the Government has confined itself to supplying general information on the restoration of the rights which had been suspended, without supplying specific information on the resumption of the activities of employers' and workers' organisations in practice. The Committee therefore requests the Government to supply specific and detailed information on this point, in particular as regards the dissemination of trade union and occupational information, the exercise of employers' and workers' organisations' right to assemble, the registration of such organisations and the exercise of the right to strike.
7. 51. As regards the allegations relating to the application of Convention No. 98, the Committee notes that the Committee of Experts emphasised in its report, adopted at its March 1988 Session, that Decree No. 530 referred to in the complaint lodged under article 26 of the Constitution, has been in force for more than seven years and that it makes collective agreements subject to the approval of the Ministry of Labour for reasons of economic policy, so that employers' and workers' organisations are not able to fix wages freely. Like the Committee of Experts, the Committee considers that this situation is not in conformity with Article 4 of Convention No. 98 respecting the promotion and development of machinery for voluntary collective negotiation. It therefore requests the Government to take the necessary measures to correct this infringement of the Convention and to supply information on the measures which it intends to adopt for this purpose.
8. 52. As regards the application of Convention No. 144, the Government does not supply any new information on consultation of COSEP on matters relating to international labour standards, although it stated in its reply submitted to the Committee's February 1988 meeting that it was willing to consult it in due course. The Committee therefore requests the Government to supply information on any consultations which it has undertaken or which it intends to undertake with COSEP.
9. 53. In the light of the foregoing considerations, the Committee must note that the Government has not supplied all the necessary information to enable it to reach a decision in full knowledge of all the facts concerning the situation of employers' and workers' organisations in Nicaragua.
10. 54. In the light of the information before it, the Committee examined what effect should be given to the complaint lodged under article 26 of the Constitution of the ILO. First, the Committee considered the possibility of adjourning the adoption of its recommendation to the Governing Body until its meeting in November 1988. Secondly, the Committee examined the possibility of recommending to the Governing Body at its present session the establishment of a Commission of Inquiry. Thirdly, the Committee considered the possibility of recommending the Governing Body to ask the Government to invite a study mission entrusted to examine on the spot the factual and legal questions pending before the Committee since 1981. Having received after its discussions a letter from the Government dated 23 May 1988 which proposes the setting up of a study mission, along the lines which the Committee itself had envisaged, the Committee recommends the Governing Body to agree to this proposal. The Committee will thus be in a position at its November 1988 meeting to give a final reply to the question put at the beginning of this paragraph.

The Committee's recommendations

1. 55. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee reminds the Government that the right to adequate protection of trade union property is one of the civil liberties which is essential to the exercise of trade union rights, and requests it to take the necessary measures to ensure that such protection is effectively provided.
   • b) The Committee requests the Government to supply information on the arrest and current situation of the trade unionists Eric González and Eugenio Membreño.
   • c) The Committee, while noting with interest that the rights suspended by the state of emergency have been restored, requests the Government to supply specific and detailed information on the resumption of activities by employers' and workers' organisations in practice, particularly as regards the dissemination of trade union and occupational information, exercise of the right of assembly, registration of these organisations and exercise of the right to strike.
   • d) Noting that Decree No. 530 is not in conformity with Article 4 of Convention No. 98 respecting the promotion and development of voluntary collective negotiation, the Committee requests the Government to take the necessary measures to correct this situation and to supply information on the measures which it intends to adopt in this connection.
   • e) The Committee requests the Government to supply information on any consultations which it has undertaken or intends to undertake with COSEP on matters relating to international labour standards.
   • f) Having received after its discussions a letter from the Government dated 23 May 1988 which proposes the setting up of a study mission, along the lines which the Committee itself had envisaged, the Committee recommends the Governing Body to agree to this proposal. The Committee will thus be in a position at its November 1988 meeting to give a final reply to the question of what effect should be given to the complaint lodged under article 26 of the ILO Constitution.