Report in which the committee requests to be kept informed of development - Report No 308, November 1997

1. 672. The complaint is contained in a communication from the Single Grass-roots Union of Workers of the Department of Education (SUBATRA), dated 18 July 1996. The Government replied in a communication dated 30 September 1997.
2. 673. Venezuela has ratified 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. The complainant's allegations

1. 674. In its communication dated 18 July 1996, the Single Grass-roots Union of Workers of the Department of Education (SUBATRA) alleges the arbitrary detention of Mr. José Ramón Pacheco, President of SUBATRA, on 16 July 1996, and his being placed in the custody of the Technical Corps of the Judicial Police for having allegedly provided or issued irregular documentation (academic reports or certificates) with alteration of signatures to an individual who had applied to enter the police force of Sucre Municipality, the same individual who attributed these acts (falsification of documents) to the President of SUBATRA. The Technical Corps of the Judicial Police carried out an investigation in this connection, summoned the President of SUBATRA, detained him, and transmitted the corresponding legal case to the legal authorities on 17 July 1996.
2. 675. The complainant explains that the police force of Sucre Municipality is hierarchically subordinate to the Mayor of the said municipality, from whom it receives direct instructions, and that it is precisely this police corps that played a decisive role in the submission and investigation of the "evidence" which seeks to implicate the President of SUBATRA as responsible for the falsification of documents. The complainant adds that the Mayor of Sucre Municipality is also the employer of the teachers, and that there are serious grounds for conjecturing that his intervention was decisive in the detention of the President of SUBATRA. In this connection, the organization refers to the anti-union attitude and to conflicts between the Mayor's Office of Sucre Municipality and SUBATRA from 1995 until the date of the detention of the President of this organization, which included strikes, demonstrations and public meetings.

B. The Government's reply

1. 676. In its communication dated 30 September 1997, the Government states that in this case there does not appear to be a violation of the exercise of freedom of association - or of any of its essential tenets - through a supposedly arbitrary detention. Firstly, the acts noted by the complainant assume the complicity and arbitrary approach of three discrete and independent bodies which discharged certain duties in the prosecution of a person suspected of having committed criminal acts (local preventive police, investigative police attached to the criminal justice service, and the criminal justice courts).
2. 677. Specifically, the Government states that even according to the complainant union (SUBATRA), Mr. José Ramón Pacheco was detained by the local police of Sucre Municipality (police force with authority limited to the district of Sucre in the State of Miranda) and placed in the custody of the Technical Corps of the Judicial Police, this latter being the investigative police body with national authority, appointed to the Ministry of Justice. Likewise, his case was sent to the criminal justice courts, since there was evidence which implicated him in offences related to forging or falsification of documents (all of the above happened between 16 and 17 July 1996, according to SUBATRA).
3. 678. As can be seen, both the police investigative body and the entity with jurisdiction for criminal prosecution act under the auspices of the national public power, the first within the national executive and the second within the judiciary; while the Mayor's Office of Sucre Municipality, and its police force, act only at the municipal level. Thus, in the national political system, it is sought, through the "constitutional separation of powers" (legislative, judicial and executive) and their "territorial levels of organization" (national, state and municipal), to guarantee the independence and autonomy of the separate branches which make up the State. This situation affects all the bodies, including those which, as in the case at hand, act in a situation where there is the suspicion of a violation of national legislation through the commission of a punishable act.
4. 679. The Government points out that according to legislation in force in the country, the procedure to follow in such cases - as SUBATRA pointed out - consists in carrying out the preventive detention of the implicated suspect, according to section 75(H) of the Institution of Criminal Proceedings Code, in order that, in a previously determined time period - eight days - the court appointed to the case can pronounce on the detention order (judicial order for detention), or the release of the suspect if it is considered that there is not sufficient evidence to justify the continued detention of the individual. It is worth saying that Venezuelan legislation is very closely linked to the principles of the guarantee of due process and of the rights to defence, since the individual can only be held in preventive detention for eight days (a period which it is deemed reasonable to consider as not constituting any kind of infringement prejudicial to personal freedom), to be subsequently remanded to the custody of the body with the appropriate jurisdiction, which will determine the existence of the legal grounds for the institution of legal proceedings against the suspect implicated in a punishable act.
5. 680. On the other hand, the Government clarifies that any citizen has adequate guarantees established by domestic legislation to bring into play the machinery of the bodies for protection with jurisdiction in cases where arbitrary acts could be committed, guarantees on which Mr. José Ramón Pacheco, like any other inhabitant of the country, can count. To this effect, since constitutional rights are in question: personal freedom (article 61 of the Constitution of the Republic of Venezuela) and freedom of association (article 91), the appropriate thing to do would be the exercise of a common appeal, which is granted by the Institution of Criminal Proceedings Code, or the quicker and more efficient means of a suit for habeas corpus, provided for in the constitutional appeal law on constitutional rights and guarantees, with the aim of immediately re-establishing the legal situation which has been infringed.
6. 681. In the case in question, the above-mentioned police forces limited themselves solely to acting on the basis of the legal framework which confers their authority; for this reason it is difficult to sustain the view that the principle contained in Article 3 of Convention No. 87, or any other norm in force in the Republic, has been transgressed in any way. The exercise of trade union activities can never imply that a person cannot be prosecuted when found accused of an act which may be punishable. Mr. José Ramón Pacheco was detained because another citizen indicated him as the person who had provided him with a forged or falsified public document in exchange for money. The Technical Corps of the Judicial Police, having been acquainted with this indication, and once the tests had been carried out which determined the falsity of the document which originated from the administrative section in which Mr. Pacheco worked, proceeded with his detention in order to immediately put him in the custody of the criminal justice courts. The correctness of the procedure which was followed is thus evident; nevertheless, if Mr. Pacheco had not committed any offence, there would have been no grounds for continuing his criminal prosecution, and like any individual he would have been immediately released, a responsibility which devolves to the judiciary. To this effect, the information which is available on this case indicates that Mr. Pacheco was released - in this way the exercise of his union functions was not impaired - and that a judicial investigation stage is still under way, since there is evidence that an offence was committed.

C. The Committee's conclusions

1. 682. The Committee observes that the complainant teaching organization alleges the arbitrary detention of Mr. José Ramón Pacheco, President of SUBATRA, and points out that the police corps which played a decisive role in the submission and investigation of the "evidence" for presumed falsification of academic documents by Mr. Pacheco, is hierarchically subordinate to the Mayor of Sucre Municipality, employer of the teachers. According to the allegations, the said detention constituted a reprisal for the union activities of the President of SUBATRA. The Committee observes that the Government has emphasized the legality and correctness of the procedures and the methods adopted in connection with Mr. José Ramón Pacheco and pointed out that this union officer was released, that the exercise of his union functions was not impaired, and that the case is in the investigation stage since evidence does exist that an offence was committed (forging or falsification of documents). The Committee takes note that the Government denies the alleged complicity between separate bodies against Mr. José Ramón Pacheco and points out in this connection that such bodies act in separate spheres (national, state and municipal) precisely in order to guarantee their independence and autonomy.
2. 683. In these circumstances, in order to be able to make a definitive pronouncement on this issue, the Committee requests the Government to keep it informed of the result of the criminal proceedings against the union officer Mr. José Ramón Pacheco for suspected falsification of documents.