Rapport intérimaire - Rapport No. 265, Juin 1989

Cas no 1419 (Panama) - Date de la plainte: 07-AOÛT -87 - Clos

1. 443. The Committee examined this case at its November 1987, May 1988 and
   • February 1989 meetings and submitted an interim report to the Governing Body
   • on three occasions (see 253rd Report, paragraphs 392-424, 256th Report,
   • paragraphs 361-382, and 262nd Report, paragraphs 245-267, approved by the
   • Governing Body at its 238th Session (November 1987), its 240th Session
     • (May-June 1988) and 242nd Session (February-March 1989)). Subsequently, the
   • Government submitted several observations in communications dated 20 February
2. and 25 April 1989.
3. 444. Panama has ratified both 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. Previous examination of the case

1. 445. When the Committee examined this case at its February 1989 meeting, it
2. made the following recommendations on the pending allegations (see 262nd
3. Report, para. 267).
4. a) The Committee notes with concern that the situation of employers'
5. organisations and their leaders in Panama is continuing to worsen, as
6. evidenced by the prosecution of ten employers' leaders and the arrest of one
7. of these (Alberto Conte), the continuing occupation of the premises of the
8. Chamber of Commerce and the Trade Union of Industrialists of Panama and the
9. closure of major communications media used regularly by the employers'
10. organisations.
11. b) The Committee deplores the fact that the Government has failed to
12. provide detailed information on the specific acts which, in each case, led to
13. the trials pending against the ten employers' leaders (Eduardo Vallarino,
14. Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zúñiga, Roberto
15. Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán, Alberto Boyd and
16. Alberto Conte), and on the stage reached in the corresponding procedures. It
17. presses the Government to send this information as a matter of urgency, and
18. stresses that respect for due process of the law should not preclude a fair
19. and rapid trial.
20. c) The Committee urges the Government to take the necessary steps to ensure
21. that the continuing occupation of the premises of the Chamber of Commerce and
22. the Trade Union of Industrialists of Panama ends immediately.
23. d) The Committee notes that major communications media have been closed
24. down for months and stresses that the right of workers' and employers'
25. organisations to express their views in the press or through other media is
26. one of the essential elements of freedom of association; consequently, the
27. authorities should refrain from unduly impeding its lawful exercise. The
28. Committee expresses the hope that the communications media now closed may
29. recommence normal operations in the very near future and requests the
30. Government to keep it informed of any further developments in this respect.
31. e) The Committee requests the Government to send its observations on the
32. allegations to which it has not replied: the breaking into, searching,
33. confiscation of goods and closure of the enterprise of the employers' leader
34. Alberto Conte; deportation of the employers' leader Roberto Brenes; arrest and
35. fining of the journalist Alcides Rodréguez; violence against the leaders of
36. the Chamber of Commerce and their enterprises.
37. B. The Government's reply
38. 446. In its communication of 20 February 1989, the Government states that on
39. 22 September 1988, the Deputy Public Prosecutor's Office of the Republic
40. started proceedings upon learning that the premises housing the offices of "A.
41. B. Conte Latino-americana de Publicidad" were used as a centre for editing and
42. publishing material designed to subvert public order with the main objective
43. of undermining the stability of the State's legally established powers. On the
44. same date, a judicial decision was handed down which ordered the preventive
45. detention of Alberto Bolívar Conte and the confiscation of documents and
46. equipment used to perpetrate the crime provided for under section 301 of the
47. Penal Code. The standards regulating preventive arrest, searches and the
48. safeguarding of equipment used to commit offences are contained in sections
49. 2148, 2149, 2159 and 2185 of the Judicial Code. At a later date, Alberto
50. Bolívar Conte's lawyers applied to the High Court of Justice for a writ of
51. habeas corpus as they considered that there were irregularities in the
52. preventive detention order issued by the investigating official. Under a
53. ruling of 27 September 1988, the High Court of Justice upheld the legality of
54. the detention. On 28 September, Alberto Bolívar Conte's lawyers applied for
55. release on bail to the Third Circuit Court of Panama; this was turned down
56. because Mr. Conte was not entitled to bail under section 2181 of the Judicial
57. Code which does not grant this right in a case involving offences penalised by
58. five years' imprisonment. It should be pointed out that Alberto Conte was
59. released pending his trial on 23 September 1988, when the Public Prosecutor of
60. the Fourth Instance of the First Judicial District of Panama issued a judicial
61. decision to this effect on humanitarian grounds. The Government nevertheless
62. wishes to point out that Alberto Bolívar Conte left the country of his own
63. free will on 23 December and that not only may he come back to the country but
64. should do so, as judicial proceedings are pending; similarly, the Public
65. Prosecutor of the Fourth Instance of the First Judicial District of Panama has
66. issued a new detention order against Mr. Conte as part of the inquiry under
67. way.
68. 447. As regards Roberto Brenes, the Government states in its first
69. communication (20 February 1989) that he was held for questioning during the
70. night of 20 December as there was serious evidence of his participation in
71. activities against internal state security. He was held for less than 12
72. hours. There are no penal proceedings pending against Roberto Brenes at the
73. moment. In its second communication (25 April 1989), the Government states
74. that although Roberto Brenes was involved in activities against internal state
75. security, no warrant was issued for his arrest and he was free at the time he
76. decided voluntarily to leave the country (21 December 1988).
77. 448. The Government points out that none of the persons referred to in Case
78. No. 1419 are being held at the moment and that there have been no further
79. detentions. Furthermore, the Government reiterates that the complainant
80. organisation continues to equate crimes under the ordinary law as defined by
81. the Panamanian legal system with alleged violations of the right of freedom of
82. association. Finally, the Government puts on record its concern about keeping
83. open the dialogue with the Committee on Freedom of Association and with the
84. ILO, and its willingness to provide any information required to cast light
85. immediately on the present case.
86. 449. In its communication of 25 April 1989, the Government states that it
87. regrets that the decisions adopted by the Committee continue to consider
88. actions taken by the Public Prosecutor under criminal law as violations of
89. freedom of association, when they were taken because of repeated offences
90. committed by persons attempting to undermine internal state security and the
91. national economy and to paralyse the electoral process leading up to the
92. elections on 7 May of the current year. In this respect, it is particularly
93. amazed by the fact that the opinion put forward by the Committee on Freedom of
94. Association implies that the temporary confiscation of goods and the
95. safeguarding of some local premises of employers' organisations are actions of
96. an illegal and arbitrary nature; these actions were ordered by the authorities
97. who are carrying out preliminary proceedings because of offences committed by
98. officials of these organisations. This was the case of the premises in which
99. the Chamber of Commerce, Industries and Agriculture and the Trade Union of
100. Industrialists of Panama operated; when a search of these premises was ordered
101. by the Public Prosecutor, a large quantity of equipment, printed matter and
102. other goods used to undermine state security were found. This does not conform
103. with the objectives which a trade union association - or, in this case an
104. employers' association - should try to attain for the good of its members and
105. society. Furthermore, it must be pointed out that the legal situation as
106. regards the premises of the Chamber of Commerce and the Trade Union of
107. Industrialists of Panama should be considered within the context of criminal
108. proceedings which have not yet finished; consequently, any decision concerning
109. this situation should be taken at the appropriate stage in accordance with
110. normal proceedings.
111. 450. As regards the Committee's conclusions concerning the criminal and
112. administrative proceedings against communications media (press and radio), the
113. Government states that these media were used to broadcast and publish false
114. information against the national economy and the internal state security and
115. called for disruption of public law and order and civil disobedience. These
116. proceedings were carried out in strict application of criminal, procedural and
117. administrative regulations in force; their progress will depend to a great
118. extent on the way in which those concerned make use of the legal channels open
119. to them under the law. The Committee stresses that the temporary confiscation
120. of equipment used to commit crimes - i.e. publishing material in the case of
121. the press - in no way prevents the communication activities of any association
122. nor prevents the full exercise of freedom of association, as there are other
123. communications media (the press, radio and television) to which any person or
124. association wishing to use them always has unlimited access, provided they do
125. not commit any of the offences defined in penal law.

C. The Committee's conclusions

1. 451. The Committee notes that the Government regrets the recommendations
   • taken in its last report since, according to the Government, the Committee
   • continues to consider actions taken by the Public Prosecutor in accordance
   • with penal law (occupation of the premises of two employers' organisations,
   • confiscation of their goods and closure of means of communication used by the
   • employers' organisations) as violations of freedom of association; it states
   • that these actions were taken because of repeated offences committed by
   • persons attempting to undermine internal state security and the national
   • economy and to paralyse the electoral process leading up to the elections on 7
2. May 1989.
3. 452. In this respect, the Committee feels bound to point out that when
   • examining the allegations submitted in this case, it has always proceeded with
   • the maximum caution and objectivity, taking fully into account the
   • Government's statements - especially when it insisted that the measures
   • objected to in the allegations were taken within the process of criminal
   • proceedings. On this point, the Committee recalls that, concerning the trials
   • of ten employers' officials, it merely requested information on the specific
   • allegations brought against each of those concerned and expressed its concern
   • about the seriousness of the situation, precisely so that it might have enough
   • information to be able to reach a decision on this case. The Committee regrets
   • that in spite of its repeated demands, it has not received this information
   • and that the Government continues merely to make statements of a general
   • nature. Consequently, as it did at its previous meeting, the Committee
   • reiterates its request for information and stresses that respect for due
   • process of law should not preclude the possibility of a fair and rapid trial
   • and that, on the contrary, an excessive delay may intimidate the employers'
   • leaders concerned, thus having repercussions on the exercise of their
   • activities. As regards the continued occupation of the Chamber of Commerce and
   • the Trade Union of Industrialists of Panama and the confiscation of their
   • goods, the Committee points out that these organisations have been deprived of
   • their premises for more than one year now and considers that the fact that
   • some employers' leaders from these organisations are under investigation does
   • not justify that these organisations and their members are deprived of a basic
   • means whereby they may carry out their normal activities. Finally, as regards
   • the closure of major communications media used regularly by the employers'
   • organisations, the Committee cannot accept the Government's statement to the
   • effect that such organisations may use other communications media existing in
   • the country since it may be wondered if the employers' organisations are of
   • the same persuasion as the communications media existing at present and if
   • they would have the same facilities of access to these media as to those which
   • have been closed. The Committee therefore upholds its previous conclusions and
   • recommendations on all these points.
4. 453. As regards the alleged arbitrary detention of the employer's leader
   • Alberto Conte, the breaking into, searching and closure of his enterprise and
   • the confiscation of his goods, the Committee notes that according to the
   • Government such actions are provided for in procedural law and that they were
   • carried out as part of a criminal investigation, initiated by the Public
   • Prosecutor after it was discovered that the offices of Mr. Conte's enterprise
   • had been used as a centre for editing and publishing material which called for
   • the disruption of public law and order with a view to undermining the security
   • of the state's powers - punishable under section 301 of the Penal Code. The
   • Committee notes that Mr. Conte was released on bail on 23 December 1988 and
   • that he left the country on the same day; however, they note that a new
   • detention order was issued against him later. In order to be in a position to
   • reach a decision on these allegations, the Committee requests the Government
   • to send it a copy of the publications found in Mr. Conte's factory and to
   • inform it on the stage reached in the proceedings against him.
5. 454. As regards the allegation that the employers' leader Roberto Brenes was
   • deported to Miami on 20 December 1988 on the grounds of having carried out
   • subversive activities and that this was presented by the authorities as a
   • voluntary exile (see 262nd Report, Case No. 1419, paragraph 253), the
   • Committee notes that the Government states that on 20 December 1988, Roberto
   • Brenes was detained for less than 12 hours to make a statement and that there
   • was serious evidence of his participation in activities against internal state
   • security. According to the Government, there are no criminal proceedings
   • pending against Roberto Brenes. As no charges were brought against Roberto
   • Brenes, the Committee regrets that he remained in detention for nearly 12
   • hours and stresses that such measures may create an atmosphere of intimidation
   • and fear prejudicial to the normal development of occupational organisations'
   • activities, as provided for under Convention No. 87. Furthermore, the
   • Committee notes that the Government has denied the allegation that, after his
   • detention, the employer's leader Roberto Brenes was obliged by force to take
   • the plane to Miami.
6. 455. Finally, the Committee regrets that the Government has not replied to
   • the other allegations pending (arrest and fining of the journalist Alcides
   • Rodríguez, and violence against the leaders of the Chamber of Commerce and
   • their enterprises). Consequently, the Committee reiterates its previous
   • conclusions and recommendations in this respect.

The Committee's recommendations

1. 456. In the light of its foregoing interim conclusions, the Committee
   • invites the Governing Body to approve the following recommendations:
     • a) The Committee notes with concern that since its last meeting there have
   • been no basic improvements in the situation of employers' organisations and
   • their leaders in Panama, as evidenced by the prosecution of ten employers'
   • leaders, the continuing occupation of the premises of the Chamber of Commerce
   • and the Trade Union of Industrialists of Panama and the closure of major
   • communications media used regularly by the employers' organisations.
     • b) The Committee deplores the fact that the Government has failed to
   • provide detailed information of these specific acts which, in each case, led
   • to the trials pending against nine of the ten employers' leaders (Eduardo
   • Vallarino, Aurelio Barria, Gilberto Mallol, César Tribaldos, Rafael Zuñiga,
   • Roberto Brenes, Carlos Ernesto de la Lastra, Kaiser Dominador Bazán and
   • Alberto Boyd), and on the stage reached in the corresponding proceedings. It
   • presses the Government to send this information as a matter of urgency and to
   • send it copies of the publications (subversive, according to the Government)
   • produced and found at the enterprise of the employer's leader Alberto Conte
   • and provide information on the stage reached in the proceedings against this
   • leader. It stresses that respect for due process of law should not preclude a
   • fair and rapid trial.
     • c) The Committee urges the Government once again to take the necessary
   • steps to ensure that the continuing occupation of the premises of the Chamber
   • of Commerce and the Trade Union of Industrialists of Panama ends immediately.
     • d) The Committee notes that major communications media have been closed
   • down for months and stresses that the right of workers' and employers'
   • organisations to express their views in the press or through other media is
   • one of the essential elements of freedom of association; consequently, the
   • authorities should refrain from unduly impeding its lawful exercise. The
   • Committee once again expresses the hope that the communications media now
   • closed may recommence normal operations in the very near future and requests
   • the Government to keep it informed of any further developments in this
   • respect.
     • e) The Committee regrets that the employers' leader Roberto Brenes remained
   • detained for 12 hours. As no charges were brought against him, the Committee
   • stresses that measures of this type infringe the rights contained in
   • Convention No. 87 and may create an atmosphere of intimidation and fear
   • prejudicial to the normal development of occupational organisations'
   • activities.
     • f) The Committee requests the Government once again to send its
   • observations on the allegations concerning the arrest and fining of the
   • journalist Alcides Rodréguez and the violence against the leaders of the
   • Chamber of Commerce and their enterprises.