Definitive Report - Report No 363, March 2012

1. 878. The complaint is contained in a communication dated 10 September 2010 from the Independent Union of Workers of the San Luis Potosí State Government (SITTGE), supported by the World Federation of Trade Unions (WFTU) through a communication dated 20 December 2010.
2. 879. The Government sent its observations in communications dated November 2011.
3. 880. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 881. In its communication dated 20 December 2010, SITTGE alleges that since February 2010 it has been calling on the Governor of San Luis Potosí State to reinstate 12 of its members who were dismissed from their employment and to honour agreements signed by the previous governor. However, the Governor and other authority figures have so far refused to receive representatives of the union or engage in dialogue, despite their obligations towards the general public. SITTGE adds that on 24 May 2010, Ms Francisca Reséndiz Lara, the General Secretary of the union, was arrested. The latter was also detained by public security officials for six hours on 1 June 2010 when, having attempted to enter Palacio de Gobierno (Government House), together with other union members, to be received by a representative of the Governor, she was accused of committing various offences, namely threatening behaviour, assault, affronts to authority and rebellion. On 2 June 2010 she was detained and brought to the Centre for Prevention and Social Rehabilitation, remaining at the disposal of the authority on accusations of rebellion and affronts to authority. On 7 June 2010 the judicial authority issued a release order since there were insufficient grounds for prosecution. This shows the criminalization of the Union protest at San Luis Potosí.
2. 882. Finally, the complainant union adds that on 28 July 2010, in an operation involving more than 50 officers of the state police, the protest camp opposite Government House which had been occupied by SITTGE for more than five months was cleared for the fourth time. The demonstrators were jostled and kicked, and two were dragged across the Plaza de Armas by police officers who tried to put them into the patrol cars. An operation involving more than 50 male and female officers of the state police caught various SITTGE members unawares and the latter were taken into custody. The members concerned were Mónica Ayala Esquivel, María Guadalupe Cervantes Saavedra, Alicia Loredo Macías and Marcelo Alejandro Reséndiz Reséndiz, who were responsible for the union camp opposite the state government building where they were calling for the reinstatement of the 12 workers who had been wrongfully dismissed. These five union members remained in the building of the Municipal Directorate for Public Security for several hours and were released around 9 p.m. They immediately sought medical treatment, since three of them bore the marks of violence inflicted on them during the clearance of the camp. Ms Guadalupe Cervantes Ávalos, who had bruises on her face and an eye that was bleeding, stated that in addition to being dragged away she had been punched by one of the (female) police officers.

B. The Government’s reply

1. 883. In its communications of November 2011, the Government sends its observations regarding the complaint submitted by SITTGE.
2. 884. As regards the alleged administrative detention of Ms Francisca Reséndiz Lara, the Government states that the municipal police of San Luis Potosí State detained Ms Francisca Reséndiz Lara on 24 May 2010 for causing a breach of the peace at the office of the State Secretary-General. At no time was she detained for engaging in trade union activities, as incorrectly stated by the complainant. In letter No. CR/3889/10 of 24 May 2010, police officer Mr Anselmo Márquez Sánchez of the central region command of the State Directorate-General for Public Security stated that on the afternoon of that day Ms Francisca Reséndiz Lara entered the office of the Secretary-General of the State Government, whom she demanded to see, shouting as she did so. When her demand was rejected, she refused to leave the office, thus causing a breach of the peace.
3. 885. In view of the fact that this conduct infringed section 17(VII) of the Police and Government Code of San Luis Potosí Municipality, “The following shall be considered infringements of the moral integrity of the individual and the family irrespective of whether they are considered criminal offences: VII. Lack of due respect or consideration towards any person”, Ms Reséndiz Lara was brought before the municipal magistrate.
4. 886. The municipal magistrate has the authority to investigate and assess administrative infringements of the Police and Government Code committed by citizens. He is responsible for the municipal detention cells and imposes penalties ranging from verbal cautions to fines, which can be commuted into detention of up to 36 hours. In this case, the magistrate decided just to caution Ms Reséndiz Lara, granting her unconditional release a few hours after she had been detained.
5. 887. As regards the alleged detention of Ms Reséndiz Lara on 1 June 2010, the Government declares that this resulted from the aggression to which the police officers guarding the entrance to Government House were exposed. This aggression consisted of physical assault and verbal abuse, which occurred when a number of SITTGE members and Ms Reséndiz Lara tried to enter Government House with folding chairs and plastic benches and, when asked by the police to leave these objects outside the building, they responded aggressively to the restrictions placed on them, throwing the aforementioned objects at the police officers and shouting slogans against the State Governor and other authority figures. Having committed actions that appeared to constitute, among others, assault and affronts to authority, Ms Reséndiz Lara and the other violent demonstrators were brought before the judicial authority so that the Public Prosecutor’s Office could determine whether or not there was sufficient evidence to substantiate the offences and the probable liability of the accused. Accordingly, by letter No. H-009/2010 of 1 June 2010, the police officials attached to the State Directorate-General for Public Security referred Ms Reséndiz Lara to the public prosecutor on charges that included assault and affronts to authority. Letter No. P.I.H4120/10 is attached, as are the certificates of physical integrity of the police officers who were injured.
6. 888. The preliminary inquiry was then opened (at the detention centre attached to the Directorate-General for Preliminary Inquiries) on the basis of the complaint citing the offences of assault, rebellion and affronts to authority, state institutions and the emblems of public authority, as provided for in sections 115(I), 249 and 256 of the Penal Code of San Luis Potosí State:
   • Section 115. Any person who, by external means, disturbs or damages the health of another person commits the offence of assault. The offence shall incur penalties as follows: I. Any person who inflicts an injury that does not endanger the life of the victim and from which recovery takes less than 15 days shall be liable to imprisonment of one to three months or a fine equivalent to five to 15 days’ minimum wage ... .
   • Section 256. Any person who directly or indirectly expresses himself/herself, or performs actions, with the purpose of denigrating, slandering or offending public servants in the actual or attempted performance of their duties, the emblems of the State or municipality or any related institutions, commits an affront to authority, the institutions of the State and the emblems of public authority.
7. 889. The Government indicates that considering that there were good grounds for supposing that the accused were responsible for the offences committed, the Public Prosecutor’s Office referred them to the first criminal court judge, who, on analysing preliminary inquiry No. AP/D/XII/1149/2010, criminal case No. 133/2010, considered that the requirements for holding a criminal trial were not met and therefore issued a release order on 7 June for lack of the necessary elements for bringing a prosecution, thereby granting Ms Reséndiz Lara her freedom.
8. 890. The Government states that the above shows that the periods spent in custody by Ms Reséndiz Lara were in no way connected with her union activities. Accordingly, it is recalled that the Committee on Freedom of Association has stated that: “Although the exercise of trade union activity or the holding of trade union office does not provide immunity as regards the application of ordinary criminal law, the continued detention of trade unionists without bringing them to trial may constitute a serious impediment to the exercise of trade union rights.”
9. 891. As regards the clearance of the SITTGE camp opposite Government House in San Luis Potosí on 28 July 2010, the Government indicates, in order to provide the context in which the events occurred, that a group of SITTGE demonstrators had spent five months prior to this date encamped on the public thoroughfare, obstructing pedestrian access and creating a loud noise. It should be noted that this is acknowledged by the complainant organization itself. Such acts affected the general public by hampering their freedom of movement and obstructing access to Government House, which, being a public building, is a much frequented location. This situation is considered a breach of public safety, which is liable to be penalized under section 12(VI) of the Police and Government Code of San Luis Potosí Municipality, which states:
   • The following actions shall be considered breaches of public safety irrespective of whether or not they are deemed to be criminal offences:
   • ...
   • VI. Disturbing people in public places or in the vicinity of their homes. Impeding or endangering the free movement of vehicles or persons through occupation of the public thoroughfare with games and diversions without official permission.
10. 892. Since public order had been disturbed, and in order to allow the free movement of persons, the municipal authority removed the demonstrators. It was necessary to detain them and bring them immediately before the magistrate, who found that the facts did not constitute a criminal offence and released the detainees a few hours later.
11. 893. As regards the allegations relating to wrongful dismissals, the Government states that on 14 September 2010 the San Luis Potosí State Government and SITTGE, through its General Secretary, Ms Francisca Reséndiz Lara, signed an agreement with a view to ending the labour dispute brought before the Court of Conciliation and Arbitration in file No. 99/2010/E-4. The agreement provides for the incorporation into the State Government of the persons listed in the agreement and for the payment of wages that were unpaid when the employment of the persons concerned was terminated. The Government attaches a copy of the agreement concerned, which includes the names of the officials who were reinstated. The agreement states that “both parties agree that as a result of this negotiation the labour dispute is ended”.
12. 894. The Government concludes by indicating that the alleged facts do not constitute any failure by the Government of Mexico to observe the principle of freedom of association as established by ILO Convention No. 87, since the law was only applied as a consequence of the conduct of the persons referred to in the present document. It therefore requests that this case be closed.

C. The Committee’s conclusions

1. 895. The Committee observes that in the present case the complainant trade union SITTGE alleges the arrest and/or prosecution of trade unionists, including the union’s General Secretary, in response to union actions seeking the reinstatement of 12 workers who were wrongfully dismissed, and also the violent clearance by law enforcement officers (resulting in injuries) of a protest camp established by the union for demanding the reinstatement of the workers. The arrests occurred on various dates and concerned various people: 24 May 2010 (the General Secretary), 1 June 2010 (the General Secretary and other demonstrators) and 28 July 2010 (various trade unionists, as part of the clearance of the union camp). The complainant union places these allegations in a context of lack of dialogue on the part of the authorities and their repeated refusal to receive union representatives with a view to dialogue concerning the reinstatement of the 12 dismissed workers and compliance with various agreements signed with the previous governor of San Luis Potosí.
2. 896. The Committee notes the Government’s denial that the measures referred to in the allegations were taken in response to union activities and places the alleged facts in the context of breaches of public order (refusal to leave a government office, shouting, aggression involving the throwing of objects and abuse of police) and, in the case of the clearance of the union camp, in the context of hampering pedestrian movement, obstructing access to Government House and creating a loud noise. The Committee observes that the Government emphasizes that the general secretary of the union was cautioned on one occasion by the judicial authority. However, both the complainant organization and the Government concur that, further to the police complaints, the judicial authority released the trade unionists who had been detained (the general secretary a second time – together with other demonstrators – and four trade unionists on another occasion, as part of the clearance of the union camp) in view of the lack of evidence to justify prosecution, with the result that there are no court proceedings pending. According to the Government, a number of police officers were injured.
3. 897. While the Committee notes that the versions received from the complainant and the Government were at variance as regards the circumstances that led to the detentions, the Committee nevertheless recalls the principle that if the authorities arrest and detain trade union leaders without bringing specific criminal charges against them, this constitutes a restriction of trade union rights [see, for example, 217th Report, Case No. 1031, para. 120]. Measures of this kind can create an atmosphere prejudicial to the normal conduct of trade union activities. However, the Committee notes with interest that the San Luis Potosí State Government and the complainant union subsequently signed an agreement (attached by the Government) on 14 September 2010, whereby the dismissed workers were reinstated with the payment of outstanding wages and which stated that “both parties agree that as a result of this negotiation the labour dispute is ended”. The Committee observes that one of the main problems that gave rise to the present case, namely the refusal of the San Luis Potosí authorities to engage in dialogue with the complainant union, has been resolved.
4. 898. Consequently, taking account of the fact that the collective dispute has been resolved further to the agreement mentioned above, the Committee considers that this case does not call for further examination.