Report in which the committee requests to be kept informed of development - Report No 367, March 2013

1. 1258. The Committee examined this case at its November 2010 and June 2011 meetings and presented an interim report to the Governing Body in June 2011 [see 360th Report, paras 1191–1217, approved by the Governing Body at its 311th Session (June 2011)].
2. 1259. The Government sent new observations in communications dated 24 October 2011 and 12 March 2012.
3. 1260. The Bolivarian Republic of 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. Previous examination of the case

1. 1261. In its previous examination of the case at its June 2011 meeting, the Committee made the following recommendations on the issues that remained pending [see 360th Report, para. 1217]:
   • (a) In view of the lengthy delay in the bargaining process, the Committee expects that the collective agreement between the SUNEP–CVG and the Corporación Venezolana de Guayana (CVG) will be signed as soon as possible and requests the Government to keep it informed in this regard.
   • (b) With regard to the allegations concerning the (temporary) detention and criminal prosecution of the SUTRA–CVG union leaders Ronald González and Carlos Quijada and unionists Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López, the Committee again urges the Government to draw to the attention of the judicial authority the need to give due consideration to the fact that the trade unionists in question were staging a peaceful protest calling for the enforcement of the collective agreement and requests the Government to communicate the judgment handed down in relation to these trade unionists.
   • (c) With regard to the allegations concerning the criminal prosecution of the SUTISS–Bolívar trade union leaders Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, and the criminal prosecution in 2006 of the employees of the enterprise Camila CA Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López, the Committee requests the Government to communicate without delay the judgment handed down in regard to these trade union leaders and workers and, in view of the fact that the events in question date back to 2006, and that these trade unionists are required to report periodically to the court, expects that the judgment will be handed down in the near future. In this regard, the Committee recalls that justice delayed is justice denied.
   • (d) With regard to the allegation that, on 14 March 2008, the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers from Ternium–Sidor who were calling for improvements to the collective agreement that was being negotiated, resulting in several wounded, dozens of criminal prosecutions and the destruction by the authorities of 32 vehicles belonging to the workers, the Committee, noting once again that, according to the Government, a group of some 80 workers was blocking the traffic with cars and burning tyres and throwing heavy objects at the members of the national guard unit, injuring several officers, once again requests the Government to supply a copy of the judgment that is handed down, notes the delay in the judicial proceedings and requests the Government to carry out an investigation into the allegations concerning the excessive use of public force which resulted in serious injuries and property damage.
   • (e) The Committee regrets the delay in the criminal proceedings relating to the trade union leader Rubén González (currently on parole) and the lack of adequate grounds for the judgment handed down by the judge in the case, and requests the Government to inform it of the new criminal judgment to be handed down. The Committee reiterates its previous recommendation, considering that the charges against this leader do not justify his preliminary detention or house arrest since September 2009, and requests that he be appropriately compensated for the damages suffered.

B. The Government’s reply

1. 1262. In its communication of 24 October 2011 the Government refers in detail to the proceedings initiated against Rubén González, who on 26 September 2009 was accused by the Attorney-General’s Office of committing crimes against public order, including incitement to break the law, unlawful association, restriction of the freedom of work and non-compliance with special security zone regulations (Case No. 07-F3-2C-3194-09 initiated by the Third Office of the Attorney General of the Second Judicial District Circuit of the State of Bolívar). The court hearing began 3 November 2010 and on 28 February 2011, the Sixth Tribunal of the State of Bolívar sentenced the General Secretary of the Union of Workers of Ferrominera Orinoco, Rubén González, to seven years in prison.
2. 1263. On 3 March 2011, the Criminal Appeals Court of the Supreme Court of Justice (TSJ) revoked the sentence against Rubén Darío González Rojas handed down in the first instance by the Sixth Tribunal of the Criminal Judicial Circuit of the State of Bolívar, called for a public retrial by a different court of justice and for a new sentence, on the grounds that there were a number of procedural errors in the sentence handed down by the court of first instance, and ordered interim measures to be adopted instead of preventive detention, pursuant to article 256 (3) and (4) of the Code of Criminal Procedure, the interim measures consisted of a requirement that he report to the judicial authorities every two weeks and a ban on his leaving the country.
3. 1264. Regarding the complainants’ written allegations of 21 March 2011 (referred to in the Committee’s previous examination of the case) and in the light of the foregoing, the Government rejects any accusation that it exercises control over the judiciary or over any other state institution. As stated in the Constitution, the state authority is vested in the legislature, the judiciary, the executive, the citizenry and the electorate, and the principle of the separation of powers is fully applied. Consequently, the judiciary is independent and its various bodies are mandated to hear complainants and other matters falling within its competence, under proceedings laid down by law, and to enforce its rulings or have them enforced.
4. 1265. In their written allegations the complainants claim that the Criminal Court of the Supreme Court of Justice dealt with their complaint “at top speed” and draw attention to certain aspects that they qualify as “a manoeuvre by the Criminal Court”. The Government wishes to make the following observations.
5. 1266. Article 196 of the Organic Act of the Supreme Court of Justice stipulates that any of its chambers may, on matters within its purview and mandate and at their own discretion or at the request of a party, after having briefly considered the situation, request any file as it stands from any court in order to determine whether it will deal with the case, or assign it to another court.
6. 1267. In the exercise of this legal power, therefore, the Criminal Appeals Court of the Supreme Court of Justice handed down a ruling on 2 March 2011, by which it ordered the Sixth Tribunal of the Criminal Judicial Circuit of the State of Bolívar, to turn the case against Rubén Darío González Rojas over to it along with all the pertinent documents.
7. 1268. The transferral of a case from one court to another is a legal device embodied in the Organic Act establishing the Supreme Court of Justice that empowers the Court, at its own discretion or at the request of a party, to take over a case at the point at which it stands and issue its own ruling.
8. 1269. The Criminal Appeals Court accordingly examined the case that had been brought against Rubén González before the court of first instance and ruled that the sentence handed down by the Sixth Tribunal of the Criminal Judicial Circuit of the State of Bolívar lacked sufficient grounds, a procedural error that is in violation of the principles and guarantees, such as access to justice and due process, that are embodied in articles 26 and 49.1 of the Constitution. It therefore declared the sentence handed down by the Sixth Tribunal to be null and void.
9. 1270. Since the sentence handed down by the Sixth Tribunal was declared null and void, the case was transferred to another court of justice to hold a public trial and hand down a new sentence taking due account of the procedural error that had occurred.
10. 1271. The Chamber of the Supreme Court of Justice, in accordance with the principle of freedom and proportionality laid down in articles 9 and 244 of the Code of Criminal Procedure, exercised its discretion to revoke the preventive detention ordered against the defendant. In affirmation of the principle of freedom whereby, except as stipulated by law, any person charged with the commission of a punishable offence is entitled to be judged as a free man (such freedom being the rule and preventive detention exceptional), the Criminal Chamber considered, and so ruled, that the outcome of the trial could be duly guaranteed if the preventive detention was replaced by the imposition of less constraining measures such as the interim measures provided for in article 256 (3) and (4) of the Code of Criminal Procedure, requiring that Rubén Darío González Rojas report to the judicial authorities every two weeks and prohibiting him from leaving the country.
11. 1272. The Chamber of the Supreme Court of Justice declared further that the trial of Rubén Darío González Rojas had disturbed the tranquillity and daily life of the State of Bolívar and, in order to maintain the purpose of established criminal proceedings and to ensure that justice was applied responsibly and swiftly, the Chamber decided exceptionally to withdraw the case from the courts within whose jurisdiction it would normally fall and to transfer it to a different criminal circuit court (in the metropolitan area of Caracas), so that the trial could continue in full respect of constitutional rights and guarantees, pursuant to article 109 of the Organic Act establishing the Supreme Court of Justice.
12. 1273. In the light of the foregoing, the Government rejects the allegation of 21 March 2011 presented by the complainant trade union and the accusations it contains and informs the Committee on Freedom of Association that, as in the past, it will keep it informed of the outcome of this case. The Government repeats that the defendant in the case is currently free pending notification of the date of the court hearing.
13. 1274. The Government wishes to inform the Committee on Freedom of Association that it has examined carefully and taken due note of all the recommendations formulated by the Committee in its 360th Report. However, since the case refers to matters that are being investigated by different units of the Attorney-General’s Office, the information that the Committee sought from the Government in recommendations (b), (c) and (d) of paragraph 217 of the report has been requested from the Attorney-General’s Office and shall be passed on to the Committee as soon as possible.
14. 1275. In its communication dated 12 March 2012, the Government refers to the allegations concerning union members of SUTISS–Bolívar (Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández) and employees of Camila CA (Richard Díaz, Osmel Ramírez Malavé, Julio César Soler, Agdamatir Antonio Rivas, Luis Arturo Anzola, Argenis Godofredo Cómez and Bruno Epitafio López) and states that they were charged with second-degree misappropriation of funds, restricting the freedom of work and taking the law into their own hands. On 9 December 2011, the case was brought before the appropriate court, the defendants were given the opportunity to be heard on 18 April 2012 and they are currently free citizens.
15. 1276. Regarding the comportment of the national guard and the police of the State of Bolívar vis-à-vis a group of citizens who were holding up traffic in the Redoma de la Piña and the Simón Bolívar motorway on 14 March 2008, the Government states that on 15 March 2008, 49 citizens were charged with causing those incidents before the corresponding court in the State of Bolívar. Judging that the participants in the incidents had not been identified by name, the court ordered that the defendants be released unconditionally and they are currently free citizens.
16. 1277. Regarding the trade union officials of SUTRA–CVG, Ronald González and Carlos Quijada, and trade unionists Adonis Rangel Centeno, Elvis Loran Azocar and Darwin López, the Government states that the Third Attorney-General’s Office of the Second Judicial Circuit of the State of Bolívar brought charges against them for the crimes of unlawful association and restricting freedom of work. A preliminary hearing was held at which the charges were confirmed and a trial was ordered, and the defendants were cited to appear on 12 May 2012. In accordance with established procedure and by decision of the court, however, the defendants are free pending their hearing on 12 May 2012.

C. The Committee’s conclusions

Recommendation (a) from the previous examination of the case

1. 1278. In its previous examination of the case, the Committee noted the considerable delay that had occurred in negotiations between the SUNET–CVG and the Corporación Venezolana de Guayana and expected the collective agreement between the two parties to be signed as soon as possible. It requested the Government to keep it informed in this regard. The Committee regrets that the Government has not sent it any information on the collective bargaining process, and therefore reiterates its previous recommendation and requests the Government to follow up without delay.

Recommendation (b)

1. 1279. In its previous examination of the allegations concerning the (temporary) detention and criminal prosecution of SUTRA–CVG union leaders Ronald González and Carlos Quijada and trade unionists Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López, the Committee once again urged the Government to draw to the attention of the judicial authority the need to give due consideration to the fact that the trade unionists in question had been staging a peaceful protest calling for the enforcement of the collective agreement and requested the Government to communicate the judgment handed down on them.
2. 1280. The Committee takes note of the Government’s statement regarding these union leaders, to the effect that the Third Attorney-General’s Office of the Second Judicial Circuit of the State of Bolívar brought charges against them for the crimes of unlawful association and restricting freedom of work. A preliminary hearing was held at which the charges were confirmed and a trial was ordered, and the defendants were cited to appear on 12 May 2012. However, in accordance with established procedure and by decision of the court, the defendants are free pending their hearing on 12 May 2012.
3. 1281. The Committee regrets that the Government’s observations provide information only up to 12 May 2012 and do not indicate whether the judicial authority was informed of the need to take duly into account the fact that the trade unionists concerned had been engaged in a peaceful demonstration to demand compliance with the collective agreement. Under these circumstances, the Committee reiterates the conclusions it reached on these allegations in its previous examination of the case and requests the Government to follow up without delay.

Recommendation (c)

1. 1282. The Committee takes note that, in its reply, the Government refers to the criminal proceedings brought against union leaders and members of SUTISS–Bolívar (Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández) and to the criminal charges brought against workers at Camila CA in 2006 (Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López).
2. 1283. The Committee takes note of the Government’s statement that the defendants, who are currently free citizens, were charged with second-degree misappropriation of funds, restricting the freedom of work and taking the law into their own hands, that the case was brought before the appropriate court in the State of Bolívar on 9 December 2011 and that a hearing had been set for 18 April 2012. The Committee regrets that the Government has not sent any information since then on further developments in the case and, that being so, reiterates its previous recommendation, as follows:
   • ... with regard to the allegations concerning the criminal prosecution of the SUTISS–Bolívar trade union leaders Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, and the criminal prosecution in 2006 of the employees of the enterprise Camila CA Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López, the Committee requests the Government to communicate without delay the judgment handed down in regard to these trade union leaders and workers and, in view of the fact that the events in question date back to 2006, and that these trade unionists are required to report periodically to the court, expects that the judgment will be handed down in the near future. In this regard, the Committee recalls that justice delayed is justice denied.

Recommendation (d)

1. 1284. The Committee had requested the Government to supply a copy of the judgment that was handed down with respect to a group of some 80 steelworkers from Ternium–Sidor who, on 14 March 2008, were calling for improvements to the collective agreement that was being negotiated with their employer and who, according to the Government, were blocking the traffic with cars, burning tyres and throwing heavy objects at members of the national guard unit, injuring several officers. The Committee takes due note of the Government’s statement that on 15 March 2008 the 49 defendants were charged with provoking these incidents before the appropriate court in the State of Bolívar and were unconditionally discharged, on the grounds that the participants in the incidents had not been identified by name. The defendants are therefore currently free citizens.
2. 1285. The Committee recalls, however, that in its previous examination of the case it requested the Government to carry out an investigation into the allegations concerning the excessive use of public force, which resulted in serious injuries and property damage (according to the allegations, the authorities destroyed 32 vehicles). The Committee regrets that the Government has not sent it the requested information and reiterates its recommendation on the matter.

Recommendation (e)

1. 1286. In its previous examination of the alleged detention since September 2009 of union leader Rubén González, for demonstrating against the failure of CGV Ferrominera Orinoco CA of Puerto Ordaz to meet its commitments under the collective agreement, and the criminal proceedings brought against him, the Committee noted in June 2011 that, in its earlier examination of the case in November 2010, it had considered that the charges did not justify the union leader’s having been placed in preventive detention or under house arrest since September 2009 and had requested the Government to ensure that he was released without delay pending the court’s ruling and that he was appropriately compensated for the damages suffered. The Committee took note, in its examination of the case in June 2011, that the Government stated that on 26 September 2009 the Attorney-General’s Office had accused Rubén González of committing crimes against public order, including incitement to break the law, unlawful association, restriction of the freedom of work and non-compliance with special security zone regulations, and that the court had confirmed the charges and ordered that he be placed under house arrest. The Committee took note of the Government’s statement, regarding the interim measure of house arrest that was imposed on 19 January 2010, that the relevant court, noting that the measure had not been implemented, had revoked the measure and set a preliminary hearing for 15 March 2010, at which the defendant was not granted legal assistance. A subsequent hearing was held, which endorsed the charges brought by the Attorney-General’s office against Rubén González, and his trial is therefore currently under way. The Committee noted that the Government concluded, by stating that the trial began on 3 November 2010, that the relevant criminal court held hearing No. 27 on 22 February 2011, and that the proceedings were to be concluded on Monday, 28 February, when the judge would hand down a ruling on the matter. In other words, the trial was still in progress.
2. 1287. The Committee took note of the new allegations of 21 March 2011 presented by the complainant to the effect that on 28 February 2011 a judge condemned union leader Rubén González to seven years, six months and 22 days in prison, and that it was therefore something of a surprise when, three days later, the Criminal Chamber of the Supreme Court of Justice overturned the sentence on the grounds that it lacked substance and Rubén González was released. The outcome of this development is that the union leader is now awaiting a new sentence, which this time will be handed down by a criminal judge 700 km from his home (the complainant stresses that he had been previously under house arrest for 17 months).
3. 1288. The Committee regretted the delay in the criminal proceedings brought against Rubén González and the lack of substance motivating the sentence handed down by the judge originally handling the case and requested the Government to communicate to it the new sentence that is to be handed down. The Committee reiterated its earlier recommendation, considering that the charges against the union leader do not justify the fact that he has been in preventive detention or under house arrest ever since September 2009, and requested that he be appropriately compensated for the damages suffered.
4. 1289. The Committee takes note that in its latest reply the Government rejects the complainant’s allegations of 21 March 2011 and the accusations they contain and states that it will duly inform the Committee of the outcome of the case.
5. 1290. The Committee takes note of the Government’s statement that the Criminal Chamber of the Supreme Court of Justice examined the case against Rubén González that had been brought before the court of first instance and ruled that the sentence handed down by the Sixth Tribunal of the Criminal Judicial Circuit of the State of Bolívar lacked sufficient grounds, a procedural error that is in violation of principles and guarantees, such as access to justice and due process, that are embodied in the Constitution and that it had therefore declared the original sentence null and void. The case was transferred to another court of justice to hold a public trial and hand down a new sentence. The same Chamber of the Supreme Court of Justice likewise imposed on Rubén Darío González Rojas a less severe interim measure than the previous one, by requiring him to present himself before the judicial authority every two weeks and prohibiting him from leaving the country. The Committee takes note of the Government’s explanation that the Supreme Court of Justice has the power, at its own discretion or at the request of a party, to take over any file or case and deal with it itself or assign it to another court. Its authority to do so is laid down in article 106 of the Organic Act establishing the Supreme Court of Justice. In the case of González Rojas the courts within whose jurisdiction it would normally fall were relieved of the case on the grounds that it had disturbed the tranquillity and daily life of the State of Bolívar and, in order to maintain the purpose of established criminal proceedings and to ensure that justice was applied responsibly and swiftly, the case was transferred to a different criminal circuit court in the metropolitan area of Caracas.
6. 1291. However, the Committee notes with regret that the Government has failed to explain the steps required to be taken to sanction the Attorney-General for prosecuting, in the first place, a charge of “unlawful association” which, according to the information available before the Committee in its previous examination of the case, had no substance and has, after a period of unjustified imprisonment of the trade union leader, now been set aside.
7. 1292. Once again the Committee regrets the delay in the criminal proceedings brought against Rubén González (who is currently required under an interim measure to present himself before the judicial authority of Caracas every two weeks and prohibited from leaving the country) and would like to know why it was necessary to remove the case from the criminal court within whose jurisdiction it would normally fall. The Committee expresses its concern at the fact that the interim measure requiring Rubén González to travel periodically to Caracas means that he has to travel long distances that disrupt the exercise of his trade union functions and should therefore be avoided.
8. 1293. The Committee requests the Government to communicate to it the new sentence to be handed down following the revoking by the Supreme Court of Justice of an earlier sentence on the grounds that it was insufficiently motivated. Finally, the Committee reiterates the recommendation it made when it examined the case previously, considering that the charges against Rubén González do not justify the preventive detention and house arrest to which he was subjected for seven years prior to the current interim measures and once again requests the Government that he be compensated for the damages suffered.