Rapport intérimaire - Rapport No. 267, Juin 1989

Cas no 1442 (Nicaragua) - Date de la plainte: 09-MARS -88 - Clos

1. 2. The Committee had before it a number of complaints of infringements of trade union rights and freedom of association in Nicaragua presented by the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU) as well as the International Organisation of Employers (IOE) and a complaint concerning the observance by Nicaragua 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) 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. 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. For several years now, the Committee on Freedom of Association has had before it various complaints of violation of freedom of association and of the right to organise in Nicaragua. In addition, in a communication of 17 June 1987 several Employers' delegates to the 73rd Session (1987) of the International Labour Conference lodged a complaint, under article 26 of the Constitution of the ILO against the Government of Nicaragua, of infringements of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
4. 5. The Committee has examined these questions on several occasions, including in November 1988 (see 261st Report, approved by the Governing Body at its 241st Session (November 1988)) on the basis of information compiled on the spot in September-October 1988, and in February 1989 (see 264th Report, approved by the Governing Body at its 242nd Session (February-March 1989)).
5. 6. Since then, the International Organisation of Employers (IOE) has submitted new allegations in communications of 12 April and 9 May 1989. The Government supplied its observations in communications dated 3, 22, 24 and 26 1989.

A. Previous examination of the cases

1. 7. During its examination of the cases in February-March 1989, the Governing Body approved the following recommendations of the Committee:
   • a) As regards the legislative aspect of the cases, the Committee notes that the Government is preparing the amendment of certain legislative provisions and that four draft Labour Codes will be discussed by the National Assembly during the next sitting of Parliament. The Committee recalls the urgent need for the adoption of new labour legislation in conformity with Conventions Nos. 87 and 98 and the importance of involving all the workers' and employers' organisations, as well as the ILO, in its elaboration.
   • b) As regards the exercise of civil liberties and judicial safeguards, the Committee impresses upon the Government that legislation fully guaranteeing these liberties and broadening the legal safeguards should be adopted as soon as possible, and it requests the Government to supply information on the measures it intends to take in this regard.
   • c) As regards tripartite consultations, the Committee notes that the Government envisages the creation of a special commission which will examine questions linked to international labour standards as of the month of March 1989. It requests the Government to supply specific information on the composition of this commission and on developments in its work.
   • d) As regards the confiscation of land, the Committee again expresses the hope that the Government will reopen the compensation files at the request of those who consider they have been unfairly dispossesed.
   • e) With respect to the closing-down of radio news programmes, the Committee notes that, according to the Government, these have now resumed but must express its concern at the frequency of suspension measures imposed on the media. It recalls the importance of the right of employers' and workers' organisations to express their opinions through the media.
   • f) Regarding the detention of leaders of employers' and workers' organisations, the Committee notes that the Government states that it wants to adopt a broad amnesty in the coming days. The Committee expresses the firm hope that the amnesty will cover all detained leaders of employers' and workers' organisations and requests the Government to supply detailed information on the scope of this measure and on the persons affected by it. It also notes the Government's statement that the file of Mr. Alegría, the director of a COSEP research institute, has been submitted to the President of the Republic and it trusts that this will lead to his rapid release.
   • g) Having thus examined the various questions pending in this matter, the Committee notes with interest that the Accords concluded during the very recent summit of the Heads of States of Central America should, if they are followed up, result in progress in the general situation in Nicaragua which might bring about a positive development in the issues before the Committee.
   • h) The Committee is conscious of the fact that, in view of the extremely recent date of these Accords, the Government has not yet been able to supply information documenting the concrete measures taken following the summit of the Central American Heads of State. The Committee expresses the firm hope that these Accords will be able to be implemented in the shortest possible time and that their application will have favourable and immediate repercussions on the observance of the Conventions on freedom of association both in fact and in law. In this respect, the Committee recalls that the measures which the Government has to take to ensure this application should cover the elaboration and adoption of a new labour code as well as legislation guaranteeing fully the exercise of civil liberties. They should also cover the release of the leaders of employers' and workers' organisations to which the Committee attaches special importance. The Committee therefore requests the Government to supply, as rapidly as possible, precise, concrete and detailed information on the measures that will be taken in this respect. In the meantime, the Committee invites the Governing Body to instruct the Director-General to take the appropriate preparatory measures so that the Governing Body will have before it, at its next session, proposals concerning the composition of a commission of inquiry and concerning the financial arrangements necessary for the work of this commission in the event that the Committee and the Governing Body consider the information supplied by the Government to be unsatisfactory and the Governing Body consequently decides to establish such a commission.

B. Complementary information submitted by the complainants

1. 8. In its communication of 12 April 1989, the IOE states that the Government, contrary to its declarations, has never consulted, let alone advised the Supreme Council of Private Enterprise (COSEP) about the legislative reform it is allegedly preparing. According to the IOE, these statements are made to deceive the ILO and international public opinion.
2. 9. The IOE adds that the National Assembly never consulted the COSEP on the Labour Code revision, or on any other legislation. Furthermore, the Minister of Labour did not consult the COSEP about the establishment of an institutional consultative body. The IOE explains that early in 1989, several ministries - but not the Ministry of Labour - contacted certain organisations that are members of the COSEP with a view to discussing the economic recovery of the country. These occasional contacts, which have not been followed up let alone formalised, cannot in any way be regarded as constituting the establishment of a joint consultative body mandated to discuss social problems.
3. 10. The IOE also mentions that the Government, contrary to the assurances given in March 1989 to the Committee on Freedom of Association, has not established a special tripartite consultative commission.
4. 11. The IOE adds that as of the date of its communication, neither Mr. Alegría, director of the Nicaraguan Institute of Economic and Social Studies (INIESEP) which reports to the COSEP, nor Mr. Quant, Vice-Chairman of the Chamber of Industry, charged with espionage and sentenced to a 30-year gaol term, have been released.
5. 12. Finally, the IOE considers that the amnesty which is part of the Accords concluded by the Central American Heads of State had no positive influence on the matters submitted to the Committee. According to the IOE, no detained employer or worker leader has so far benefited from this amnesty which has in fact been reduced to a pardon - a far less clement measure.
6. 13. The IOE concludes by stating that all these facts prove that it is necessary to constitute a commission of inquiry with a view to establishing on an impartial basis the real situation with respect to freedom of association and to the compliance of commitments accepted by Nicaragua through ratification of Conventions Nos. 87, 98 and 144. The IOE attaches to its communication a declaration signed by the presidents of international and national employers' organisations in support of its complaint against the Government of Nicaragua.
7. 14. In its communication of 9 May 1989, the IOE announces the release of Mr. Alegría, declared not guilty by the Managua Court of Appeal on 28 April 1989. The IOE points out that at the time of his arrest and during his 11 months' imprisonment, Mr. Alegría did not enjoy the civil rights guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Without these rights, union rights are devoid of any real meaning, as recalled by the ILO resolution on trade union rights and their relation to civil rights, adopted by the International Labour Conference in 1970.
8. 15. The IOE underlines that, in addition to Mr. Alegría's arrest and arbitrary detention which violated the COSEP and INIESEP freedom of speech, Mr. Alegría was denied the right to a fair trial until his final acquittal. The IOE recalls in this respect that unspecified documents belonging to the INIESEP were confiscated by the prosecution which intended to use them, that Mr. Alegría has been obliged to make televised statements potentially damaging to his case, and that the Court of Appeal substantially exceeded the delays permitted by the Code of Criminal Procedure, i.e. ten months instead of six. The IOE considers that, in accordance with the International Covenant on Civil and Political Rights (Article 9.5), which binds Nicaragua, the COSEP, the INIESEP and Mr. Alegría are entitled to be compensated for the moral and material prejudice they have incurred, which was made even worse by the publicity given to the initial judgement, both at the national and international level.
9. 16. The IOE further states that the Legislative Assembly of Nicaragua has adopted on 21 April 1989 a new Act on communications media, which embodies a series of principles proclaiming the freedom of the press. The IOE adds the Nicaraguan Constitution of 1987 already enshrined a complete freedom of information that the Sandinist regime did not respect in practice, which is illustrated by the number of radio programmes closed as recently as a few weeks ago, by the fact that the COSEP was not permitted to launch an independent television channel, and by the censorship, the closings and the threats imposed upon the daily newspaper La Prensa. As regards the new Act, the IOE deplores the fact that Chapters VIII to XI include provisions enabling the Ministry of the Interior to admonish and order the temporary closing of communications media in a series of circumstances so vaguely defined that all abuses of the recent past could be repeated. The IOE adds that this Act does not modify Decree No. 888 of 1982 which, combined with Decree No. 512 of 1980, grants the monopoly of economic data publication to a state body, namely the Nicaraguan Institute of Statistics and Enumeration. According to the IOE, these two decrees constitute a breach of freedom of information in Nicaragua, and especially a violation of the INIESEP's and COSEP's right to inform their members and the general public.

C. The Government's reply

1. 17. In its communication of 3 May 1989, the Government announces that Mr. Alegría was released on 28 April 1989. Furthermore, the competent committee of the National Assembly has approved a pardon in the case of Mr. Guillermo Quant. This case will be submitted to the plenary assembly on 5 May.
2. 18. In its communication of 22 May 1989, the Government confirms the release of Mr. Mario Alegría, pursuant to the judgement issued by the Criminal Chamber of the Appeals Court of Managua. It adds that on 5 May 1989, the National Assembly approved the pardon granted to Mr. Guillermo Quant, a COSEP member who had been convicted for a documented and proven breach of the country's laws. Accordingly, Mr. Quant has also been released.
3. 19. The Government further announces the liberation, on 30 March 1989, of 14 persons who are allegedly members of the Central Organisation of Unions (CUS), namely: Santos Francisco García Cruz, Juan Ramon Gutierrez Lopez, Saturnino Gutierriez Lopez, Juan Alberto Corteras Nuños, Presentacéon Muñoz Martínez, Ronal González Lopez, Arnulfo Gonzalez Olivas, Jacinto Oliva Vallecillo, Salsmón de Jesús Vallecillo Martínez, Ricardo Gutierrez Corteras Luis Enrique Garcia Alvarado, Euselio García Alvarado, Eduardo Garcéa Alvarado and Pedro Joaquín Talavera Perez.
4. 20. As regards Anastasio Gimenes Maldonado, Justino Rivera, Eva Gonzáles and Eliazar Marenco, who were allegedly arrested in 1982, the Government states it is still waiting the complementary information that the Committee had requested from the complainant organisation - i.e. the WCL - on the motives and circumstances surrounding these alleged arrests, in order to adequately follow up these complaints.
5. 21. With respect to tripartite consultations, the Government states that certain doubts arose about the viability of a system of a national tripartite consultative commission. According to the Government, all the indications are that tripartite consultations on international labour Conventions and on themes of interest to employers' and workers' organisations are more productive when they are held by sector of activity, or when they focus on specific issues previously identified. For that purpose, the President of the Republic organised during the first half of April a tripartite national consultation in the agricultural sector, with the participation of producers affiliated to COSEP and UNAG and of unions representing workers in this branch of activity. This meeting produced tangible results through the adoption of positive measures for private entrepreneurs: credit policies, tax incentives, government subsidies and marketing of farm products. On the other hand, the employers undertook to respect the workers' rights recognised in the legislation and the collective agreements. The major employer leaders welcomed these results, as established by the statements of Messrs. Gurdian and Dreyfus, leaders of the COSEP. The Government adds that a national tripartite consultation for the industrial sector is planned in May.
6. 22. Furthermore, in view of the coming discussion on the revision of Convention No. 107 on indigenous populations at the International Labour Conference, the Government has organised a national tripartite seminar on this theme, where it invited the COSEP, the UNAG and the most representative workers' organisations. Unfortunately, the COSEP did not participate in the seminar in spite of that invitation.
7. 23. As regards the reform and modifications of the labour legislation, and in particular the discussion and adoption of the new Labour Code, the Government states that the process of consultation with workers' and employers' organisations continued and improved, as evidenced by several tripartite seminars held on this theme in April. This consultative process is complex since the various central workers' organisations, which are the tangible expression of union pluralism in the country, are trying to find a consensus which would permit joint initiatives with a view to amending the legislation.
8. 24. The Government also indicates that, in view of the agreement concluded at the Summit of the Central American Heads of State on 15 February 1989, the National Assembly had to debate on a priority basis, during the first months of 1989, the Acts guaranteeing and demonstrating the Government's will to implement the compromises it had accepted as part of the peace initiative in Central America. The Elections Act and the Communications Media Act have thus been reformed. The Government adds that the discussion and adoption of the Labour Code remains a priority on the National Assembly agenda and that the ILO's technical assistance will be requested in due course.
9. 25. In conclusion, the Government hopes that this information will enable the Committee objectively to evaluate the efforts it is making to apply the international labour Conventions and to guarantee the rights and claims of employers and workers.
10. 26. In a communication dated 24 May 1989, the Government declares, in response to the most recent allegations made by the IOE, that the fact that the Court of Appeal overturned the judgement of the lower court is additional evidence of the separation of powers in Nicaragua and of the judiciary's independence. The delays incurred before the Court of Appeal issued its judgement probably result from a backlog of work, as happens in other countries. As regards Mr. Alegría's compensation, it is for the courts - not the Committee on Freedom of Association - to decide that point, at the request of the interested party.
11. 27. Concerning the general legislation on communications media, the Government reaffirms that this Act has been passed by the Legislative Assembly, where various political parties with differing ideologies are represented. Furthermore, several independent institutes have compared this Act with those of other Latin American countries and found it more liberal.
12. 28. In a communication dated 26 May 1989, the Government mentions that it is facing obstacles in the process of dialogue and consultations it wants to pursue. According to the Government, certain sectors clearly intend to annihilate the efforts it made to redress the country's economy, and want to prevent any possibility of real consultations in the political and economic fields. The Government refers more specifically to the COSEP's attitude which it terms as totally inflexible. The Government explains that the President of the Republic has invited the private sector to take joint steps with it so as to obtain financial resources from the international community. The COSEP then published a press release in which it did not authorise the private sector to participate in joint missions with the Government, which is contrary to the tripartism philosophy it claims to be supporting. Furthermore, the COSEP has excluded employer leaders who had participated in such missions. This inflexible attitude has also led the COSEP not to participate in the consultations on international labour standards (the Government attaches a copy of the letter sent to the COSEP on 2 May 1989, inviting it to the meeting of 9 and 10 May 1989 concerning the revision of Convention No. 107). The Government concludes by asking the Committee to note the difference between its attitude and that of the COSEP.

D. The Committee's conclusions

1. 29. The Committee notes the replies given by the Government to the various recommendations and information requests made at its February 1989 meeting.
2. 30. As regards the legislative aspect of the cases referred to it, the Committee notes the Government's statement to the effect that consultations continue with employers and workers organisations with a view to drafting a new Labour Code, and that the ILO will be consulted in due course. The Committee must recall in this respect that the Committee of Experts, in its 1989 observations on the application of Conventions Nos. 87 and 98, commented on certain labour legislation provisions which are not compatib with the Conventions, especially those dealing with the following questions: establishment of unions, control of union books and registers, right to strike and collective agreements. Given the significance of these issues for freedom of association and in view of the fact that these observations have been made for several years, the Committee must insist once again on the urgent need for legislation which is compatible with Conventions Nos. 87 and 98. The Committee expresses its concern that, according to the IOE, the COSEP was not consulted about the revision of the Labour Code. The Committee requests the Government to hear the representations made by the COSEP on this matter. It firmly hopes that consultations will be successfully held with all the employers' and workers' organisations and that the Government will take into account the opinions expressed by these organisations, without exception. Furthermore, although the Government declared it would consult the ILO in due course, the Committee deplores that no such official request for assistance has been forthcoming as yet. Therefore, it asks the Government quickly to present such a request to the Office, so that the debate and adoption procedures of the Code may be completed as soon as possible, and that the final text be compatible with Conventions Nos. 87 and 98 ratified by Nicaragua. The Committee requests the Government to provide information on the progress made in the drafting of the Code.
3. 31. As regards the legislation on civil liberties, the Committee notes that the National Assembly has passed a new Act on communications media. While observing that this legislation would now preclude a permanent suspension of press media, the Committee must note with regret that the Ministry of the Interior keeps its power to impose temporary suspensions (three editions in the case of the press, four days for radio and three days for television), notably for second and subsequent violations of the Act. In addition, the Committee requests the Government to provide details on the decrees repealed by this Act; it requests the Government to indicate in particular whether previous decrees violating freedom of speech in the economic field, such as Decrees Nos. 512 and 888, remain in force.
4. 32. With respect to tripartite consultations, the Committee notes that a national meeting was held in the agricultural sector, and that another such meeting will be held in the near future for the industrial sector. However, it is not clear from the Government's reply whether the employers that are members of the COSEP have been invited on an individual basis to that meeting, or if that invitation was extended to the organisation in its own right. The Committee asks the Government to clarify this point. As regards tripartite consultations held in the country with respect to international labour standards, the Committee notes that the Government organised a meeting concerning the revision of Convention No. 107. However, it must note that the invitation extended to the COSEP for that meeting was sent very late. The Committee insists that a global consultation policy on international labour standards should be established. In this respect, the Committee points out that it would be beneficial to establish, as the Government had promised in February 1989, a standing commission comprised of all employers' and workers' organisations, without exception, which could meet regularly. The Committee requests the Government to take such initiatives and to keep it informed of developments in this respect.
5. 33. Regarding the allegations of detentions, the Committee notes with interest the release of Messrs. Alegría and Quant, employer leaders, and of several CUS unionists charged with violations of the Act on security and on the maintenance of public order. The Committee can only regret that these persons were detained for long periods. It hopes they will be able to resume their activities in their respective employers' and workers' organisations without impediment. As regards Mr. Alegría, the Committee hopes that any compensation request filed by the person concerned will be examined in accordance with the requirements of Article 9.5 of the International Covenant on Civil and Political Rights. The Committee further notes that the Government did not provide information on the arrest, on 20 June 1988, of agricultural workers who are members of the CUS, namely: Luis Alfaro Centeno, Pastor García Matey, Mariano Romero Melgare, Dámaso González Sanchez, Jesús Cardenas Ordonez, Teodoro Matey Romero (held in detention at San Juan Rio Coco), José Matey Owonez and Rafael Ordonez Melgara (detained at La Dalla) and Miguel Valdina of the Union of Agricultural Workers of Posoltega. The Government also failed to provide information on the situation of Messrs. Milton Silva Gaitán and Arcadio Ortéz Espinoza, leaders of the National Bus Company Union, who had been convicted for sabotage and sentenced to five and six years' imprisonment respectively.
6. 34. As regards the alleged detention of Anastasio Jimenez Maldonado, Justino Rivera, Eva González and Eleazar Marenco, the Committee once more requests the World Confederation of Labour to provide information on the circumstances surrounding the arrest of these persons.
7. 35. Finally, the Committee notes that despite the release of certain employers' and workers' leaders, many important issues raised by the present case have not yet been resolved, notably with respect to the Labour Code and tripartite consultations. In addition, the Government still has not provided information about certain detained trade unionists. In the above circumstances, the Committee strongly urges the Government to provide precise and positive information on all the above issues. This information should be provided sufficiently in advance. The Committee postpones until its November meeting the question of whether it is appropriate to establish a commission of inquiry.

The Committee's recommendations

1. 36. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) As regards the drafting of a new Labour Code, the Committee notes the Government's statement to the effect that consultations are still being held with employers' and workers' organisations, and that the ILO will be consulted in due course. Noting with concern that, according to the IOE, the COSEP was not consulted by the Government, the Committee requests the Government to hear the views of this organisation and to send rapidly an assistance request to the Office. The Committee requests the Government to provide information on the progress made in the drafting of the Code, while expressing the firm hope that all the opinions expressed by the employers' and workers' organisations will be taken into account, without exception.
   • b) Concerning the legislation on civil liberties, the Committee notes that a new Act on communications media has been adopted. It notes with regret that the Ministry of the Interior retains the power to impose temporary suspensions on the media. The Committee requests the Government to indicate whether the decrees violating freedom of speech in economic matters, such as Decrees Nos. 512 and 888, remain in force.
   • c) With respect to tripartite consultations, the Committee notes that a meeting concerning the agricultural sector has taken place and that such a meeting will be organised in the near future for the industrial sector. The Committee asks the Government to indicate whether the COSEP was invited to these meetings as an employers' organisation. The Committee points out that it would be beneficial to establish, as the Government had promised in February 1989, a standing tripartite consultations commission on international labour standards, composed of all workers' and employers' organisations without exception. It requests the Government to take such initiatives and to keep it informed of developments in that respect.
   • d) As regards the detentions, the Committee notes with interest that Messrs. Alegría, Quant and several CUS trade unionists have been released. The Committee deplores that these persons have been detained for long periods and expresses the hope that they will be able to resume their activities in their respective employers' and workers' organisations without impediment. As regards Mr. Alegría, the Committee hopes that any compensation request filed by the person concerned will be examined in conformity with the requirements of Article 9.5 of the International Covenant on Civil and Political Rights.
   • e) The Committee requests the Government to provide information on the arrest on 20 June 1988 of agricultural workers who are members of the CUS, mentioned above in paragraph 33, and on the situation of Messrs. Milton Silva Gaitán and Arcadio Ortéz Espinoza.
   • f) The Committee requests once more the World Confederation of Labour to furnish further information on the circumstances surrounding the alleged detention of Mr. Anastasio Jimenez Maldonado, Mr. Justino Rivera, Mrs. Eva Gonzáles and Mr. Eleazar Marenco.
   • g) Finally, the Committee notes that despite the release of certain employers' and workers' leaders, many important issues raised by the present case have not yet been resolved, notably with respect to the Labour Code and tripartite consultations. In addition, the Government still has not provided information about certain detained trade unionists. In the above circumstances, the Committee strongly urges the Government to provide precise and positive information on all the above issues. This information should be provided sufficiently in advance. The Committee postpones until its November Session the question of whether it is appropriate to establish a commission of inquiry.