Informe provisional - Informe núm. 177, Junio 1978

1. 234. The Committee has already examined this case in November 1976, and at that session it submitted interim conclusions to the Governing Body in paragraphs 445 to 466 of its 160th Report. This report was approved by the Governing Body at its 201st Session (November 1976).
2. 235. Since then, the following organisations have sent communications on the dates indicated: Trade Unions International of Textile, Clothing, Leather and Fur workers (23 May 1977); Trade Unions International of Food, Tobacco, Hotel and Allied Industries' Workers (21 June and 11 August 1977); United Trade Union Federation of El Salvador and Federation of Unions of Workers in the Food, Clothing, Textile and Allied Industries of El Salvador (21 July 1977); Committee for Trade Union Unity of Workers of Central America and Panama (28 October, 22 November and 23 December 1977). The Government, for its part, provided information on 17 March and 13 December 1977.
3. 236. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• I. Previous examination of the case by the Committee
  237. 237 The original complaint, contained in a communication dated 21 February 1976, emanated from 22 national organisations of workers. It was alleged in this communication that systematic repression of trade union leaders and militants was taking place in this connection the complainants referred to the death of three of these: Rafael Aguiñada Carranza, a member of the National Legislative Assembly and General Secretary of the United Trade Union Federation of El Salvador (FUSS), killed on 26 September 1975; Jests Miguel Angel Hernandez Rogel, former General Secretary of the Union of the Furniture and Allied Industries (SIMAS), whose body was found following his arrest as he was leaving the premises of the FUSS; Feliciano Sánchez Pérez, a leader of the SIMAS, found murdered at a tourist centre, "La Puerta del Diablo".
  238. 238 The complainants also mentioned the names of trade unionists said to have been arrested: "Romeo Soto Crespo, Gilberto Ruiz Ponce, Miguel Rivera Valle, Rufino Gonzalo Avelar, Teresa Francisca and Remberto Sosa Hernández (who subsequently disappeared), leaders of the SIMAS, who were all alleged to have been imprisoned between 30 June and 19 July 1975 and tortured; José Ernesto Sorto Argueta, General Secretary of the Federation of Unions of Workers in the Food, Clothing, Textile and Allied Industries (FESTIAVTSCES) and workers' representative on the National Minimum Wage Council, arrested on 1 October 1975 and imprisoned, according to the complainants, in the barracks of the security corps, the National Guard of El Salvador; Ricardo Erazo, Second Disputes Secretary of the National Trade Union Federation of Salvadorian Workers (FENASTRAS), arrested on 5 January 1976 and released on 12 January 1976, after being tortured (his arrest had been denied by the police).
  239. 239 Other allegations referred to attacks on trade union premises. According to the complainants, the headquarters of the Federation of Unions of the Building, Transport and Allied Industries (FESINCONSTRANS) was totally destroyed on 3 October 1975 by a fire which had been started deliberately. On 3 November 1975 the premises of a number of federations suffered material damage as a result of bomb explosions.
  240. 240 In its reply the Government stated that the activities, statements and publications of the complainant unions showed them to be leftist organisations militating in favour of structural changes with a view to establishing a revolutionary socialist state. The Government added that it had no official knowledge of the persons named in the complaint as having been arrested or killed by members of the police (security corps). It observed that no evidence had been produced in support of these allegations and therefore categorically denied the facts related by the complainants.
  241. 241 The Government pointed out that Rafael Aguiñada Carranza was killed on 26 September 1975 in a street in San Salvador while he was driving the car of another opposition member of the Assembly. The criminal courts were at present conducting investigations but they had not yet discovered either the motives for the crime or its authors. The Government rejected all responsibility for the incidents. The disappearance of José Ernesto Sorto Argueta, stated the Government, was a well-known fact, since he had not attended the National Minimum Wage Council since October 1975. The Government added that the reasons for his absence were unknown and denied all involvement in the affair.
  242. 242 In its 160th Report the Committee expressed its concern at the gravity of certain allegations and recalled in general that a genuinely free and independent trade union movement could only develop when basic human rights were respected. It stressed the desirability, in cases involving loss of life, of instituting an impartial inquiry in order to elucidate the facts and determine responsibilities.
  243. 243 As regards the allegations concerning the arrest and disappearance of trade union leaders, the Committee observed that the statements of the complainants and those of the Government were in many respects contradictory, the latter denying the responsibility of the police for the alleged incidents. In this respect the Committee noted that, according to the complainants, Ricardo Erazo had been found in a public prison after his arrest had been denied by the authorities. In general, the Committee wished to stress that a climate of violence and uncertainty might represent a serious impediment to the exercise of union rights and that such situations called for strict measures on the part of the authorities in order to redress the situation. In the present case, the Committee considered that the Government should conduct an investigation into the situation of the persons mentioned in the complaint.
  244. 244 As regards the damage caused to trade union premises, the Committee likewise took the view that an independent inquiry would be useful with a view to determining responsibilities.
  245. 245 On the Committee's recommendation, the Governing Body requested the Government to transmit the results of the inquiry into the death of Rafael Aguiñada Carranza, to indicate whether similar inquiries had been undertaken in the other two cases of death mentioned in the complaint and, if so, to communicate the results. The Governing Body also drew the Government's attention to the desirability of conducting investigations into the situation of the persons mentioned in the complaint and of making an inquiry into the damage caused to the premises of a number of federations. Lastly, the Governing Body requested the complainants to communicate their observations on the Government's reply, and in particular to supply details concerning the allegations of arrests of trade union leaders.
• II. Reply of the Government
  246. 246 In its letter of 17 March 1977, the Government stated that the investigations into the death of Rafael Aguiñada Carranza were continuing. It further stated that the body of Jesús Miguel Angel Hernández Rogel had been found at Chinamequita (Ilopango, Department of San Salvador), and that of Feliciano Sánchez Pérez at "La Puerta del Diablo" (Panchimalco, same department); the criminal judicial authorities had initiated inquiries with a view to discovering the persons responsible, the motives and the circumstances of the death of these persons. However, as happens in such cases, these facts were not yet known and the inquiries were continuing.
  247. 247 On learning of the disappearance of the persons named, added the Government, their families applied to the Supreme Court of Justice for a writ of "habeas corpus", demanding that these persons be produced. This was the proper procedure for ascertaining the whereabouts of a person believed to have been detained, lawfully or unlawfully, by the authorities. The Court had admitted their claim and appointed judges to make inquiries about the missing persons in the barracks and prisons of the police corps, but these inquiries had yielded no results. The Government once again categorically rejected all responsibility for the death or disappearance of the persons mentioned by the complainants.
  248. 248 The Government went on to refer to the damage said to have been caused to the premises of certain federations by exploding bombs and to the fire at the premises of the FESINCONTRANS in San Salvador. The Government stated that the criminal judicial authorities had undertaken an inquiry but had been unable to identify the culprits or to ascertain the motives for these acts. Nevertheless, in the case of the FESINCONSTRANS, the assessors' report showed that the fire had started in an adjoining building with faulty electric wiring, from which it could be deduced that the fire was an accident.
  249. 249 The Government stated, in general terms, that in view of the violent campaigns being conducted at present by subversive groups in many Western countries with the aim of disrupting public order and seeking to seize power through violence, many crimes were committed the authors of and the motives for which it was impossible to identify through inquiries; there was no means of knowing whether they could be attributed to "purges" within a group, vengeance for supposed betrayal, the elimination by rival groups of a divergent trend, or some other reason. Kidnappings, robberies, attacks on banks and credit agencies and murders of citizens and representatives of the authorities had been perpetrated, continued the Government, by such subversive groups, some of which made themselves known and issued communiqués announcing what they had done. This was the case, for instance, with the groups known as the "People's Revolutionary Army" (ERP) and the "People's Liberation Forces" (FPL). The Government added that bomb explosions and fires had occurred on private commercial premises, in private buildings and offices, in public buildings and at police stations, and not only on trade union premises. According to the Government, all this was the result of a campaign waged by subversive elements with foreign backing.
  250. 250 The Government recognised the gravity of these incidents and claimed that it had taken the necessary steps to guarantee the rule of law and the safety of people and property, since it was its duty under the national Constitution to preserve peace and tranquillity within the country as well as ensuring personal safety. The Government concluded by stating that it was conscious of the fact that a free and independent trade union movement could only develop when basic human rights were respected both by governments and by the people they governed.
• III. Further observations and new allegations by the complainants
  251. 251 In their communication of 21 July 1977, the FUSS and the FESTIAVTSCES transmitted the observations that had been requested from the complainants in the Committee's 160th Report. They began by asserting that full trade union guarantees were non-existent in El Salvador and that workers who submitted claims were prosecuted for professing ideas contrary to the regime.
  252. 252 The complainants stated that illegal arrests by the security corps were numerous and that political and trade union prisoners were tortured and, in many cases, disappeared. In most of these cases the police denied that they had ever been arrested, and habeas corpus applications were not given serious attention.
  253. 253 Referring to the case of Rafael Aguiñada Carranza, the complainants stated that the Government had undertaken to carry out the necessary investigations with a view to finding his murderers, but that for the time being the matter had been shelved.
  254. 254 The complainants added that trade union freedoms were constantly being infringed with the consent of the labour authorities. Employers were allowed to effect mass dismissals, contravene collective agreements and destroy trade unions. The complainants cited examples of undertakings where such things had happened. Other undertakings reported trade union officials to the authorities accusing them of things they had not done. For instance, the firm of "Transnacional Lácteas Foremost" had helped to bring about the arrest of the following persons: José Napoleón Mina and Carlos Humberto González, officials of the employees' union of this company, arrested on 14 March; José Mauricio Gómez, an official of the same union, arrested on 1 April; José Ricardo Martinez Flores, Organisational Secretary of the National Trade Union Federation of Salvadorian Workers (FENASTRAS), arrested on 8 March; Carlos Ernesto Marin Ayala, arrested on 18 May. The bus companies El Salvador SA and Autobus SA had accused certain trade union officials of sabotage in an attempt to destroy their union. The officials concerned were Mauricio Ruano, Vicente Meléndez, Elias C. Aguilar and Victor M. Melara Solis, arrested in March 1977; Mario Aristides Mendoza, Gregorio Guardado Platero, Antonio Campos Mendoza, Maximiliano Castro, Salomón Sánchez and Enechón Tejada, arrested on 13 May 1977. All these trade unionists belonged to the National Union of Workers in Transport and Allied Industries. The ANDA (water Supply and Sewerage Authority) had dismissed more than 200 employees, including the leaders of the employees' union, with a view to destroying the union. In addition, Manuel de Jests Cheyne, General Secretary, and Maximino Jaimes, First Disputes Secretary, had been arrested on 8 March 1977 and released on 13 April.
  255. 255 According to the complainants, discrimination was being exercised against trade unionists. Firms did not offer them jobs, or preferred to pay them their wages while keeping them off the firm's premises so as to prevent them from coming into contact with the workers. In conclusion, the complainants urged that a commission or a representative of the Director-General be sent to El Salvador to investigate the facts mentioned in the complaint.
  256. 256 The complaint of the Trade Unions International of Textile, Clothing, Leather and Fur Workers referred to the disappearance of José Ernesto Sorto Argueta, already mentioned in the original complaint, and of Rafael Antonio Martinez, a member of the executive of the leather workers' union, of whom there had been no news since January 1976.
  257. 257 In its communication of 21 June 1977, the Trade Unions International of Food, Tobacco, Hotel and Allied Industries' Workers likewise referred to the disappearance of José Ernesto Sorto Argueta. The complainant organisation added that the leaders of the Federation of Unions of Workers in the Food, Clothing, Textile and Allied Industries were being persecuted solely because they defended the economic and social interests of the workers belonging to the Federation.
  258. 258 In its letter of 11 August 1977, the Trade Unions International of Food, Tobacco, Hotel and Allied Industries' Workers stated that the Government of El Salvador had still not provided a reply concerning the situation of José Ernesto Sorto Argueta, General Secretary of the FESTIAVTSCES. It also referred to the arrest of union officials employed by the firm of Foremost, already mentioned in an earlier complaint. Severe repressive measures were said to have been taken against trade unions in the undertakings "Galletas Florida" and "Panadería Iliana". According to the complainant organisation, dismissed union officials and militants were blacklisted and, as a result, no undertaking would offer them work.
  259. 259 The Committee for Trade Union Unity of Workers of Central America and Panama (CUSCA) appended to its communication of 28 October 1977 a copy of a letter it had sent to the Government of El Salvador. This letter referred to incidents which had occurred during a strike of employees at the El León Factory. Employees of this undertaking who had been preparing to organise a collection in support of the strike had been attacked by the police and two of them had lost their lives. The complainants added that on 27 October 1977 Héctor Antonio Acevedo, Cultural Secretary of the Union of Workers of the Cosmos Undertaking, had been arrested in Santa Ana.
  260. 260 In its communication of 22 November 1977, the CUSCA alleged that on 18 November 1977 the National Guard had raided the premises of the Puerto El Triunfo Fish Industries Employees' Union, Department of Usulután. Without any reason being given and without a warrant, the President of the Union, Alejandro Molina Lara, had been arrested, together with other officials and militants of the union, namely Julio C. Salazar, Oscar L. Chaves, Delia Cristina Hernández and Juan Francisco Alvarenga.
  261. 261 According to the communication from the CUSCA dated 23 December 1977, the Government had promulgated an "anti-terrorist Act" designed to legalise the repression of the workers of El Salvador. Thus on 16 December 1977, 12 employees of the undertaking "Quality Food de Centro América" had been arrested and been released next day after being tortured. On 17 December 1977y the arrest had taken place of Rodolfo Hernandez Rosales, General Secretary of the employees' union of the undertaking "Alianzat, Miguel Guzmán, Organisational Secretary of the same union, and Daniel García Guevara, General Secretary of the employees' union of the undertaking "Famosa".
• IV. Reply of the Government to the further observations and new allegations made by the complainants
  262. 262 In its communication of 13 December 1977, the Government began by denying that there were no guarantees for the exercise of freedom of association. It quoted in this connection various provisions of the Labour Code prohibiting employers from influencing workers in the exercise of their trade union rights and affording protection against acts of anti-union discrimination. Freedom of expression was fully respected in El Salvador, with no restrictions other than those established by law, namely that one must not cast aspersions on the morals or the private lives of individuals nor propagate anarchistic or undemocratic doctrines.
  263. 263 The Government referred to the National Minimum Wage council, which is composed of seven members, two of whom represented the workers (the Government pointed out that one of these representatives was the General Secretary of one of the complainant organisations, the FESTIAVTSCES). Through collective bargaining, the unions had succeeded in raising wages above the minimum. During collective disputes, the workers could avail themselves of the legal means of pressure with a view to the signing of collective agreements or for the defence of their occupational interests, such as strikes, if conducted in the manner prescribed in the Labour Code.
  264. 264 As concerns the inquiry into the death of Rafael Aguiñada Carranza, the Government stated that the Second Justice of the Peace for San Salvador had opened a judicial inquiry on 27 September 1975, a few moments after the death of this person. The judge had inspected the scene of the crime, interviewed witnesses and ordered an autopsy of the victim. Two days later the dossier had been handed over to the examining magistrate. The widow of the victim had been interviewed but could supply no information which would be helpful in elucidating the facts. The national police had also investigated the matter and transmitted the information compiled to the examining magistrate. The entire dossier was now at the Second Criminal Court of San Salvador and could be consulted by anyone interested.
  265. 265 The Government pointed out that the complainants did not specify any particular instances where the labour authorities had allowed employers to contravene collective agreements and destroy trade unions. As concerns the ANDA, the Government stated that workers had gradually left their employment as the work for which they had been recruited had been completed. The employees' union was fully operational and was headed by a Committee whose term of office was due to expire in February 1978.
  266. 266 The Government added that, prior to the presidential elections of February 1977, minorities had organised disturbances in the streets which had degenerated into acts of vandalism. For instance, at the firm of Autobus SA, on 23 February 1977, the workers and their union leaders, in a politically motivated manoeuvre, had prevented the service from being operated by blocking the entrances and by smashing windows and puncturing tyres of vehicles. The firm's legal representative had filed charges with the Justices of the Peace for San Salvador against some of the trade union officials mentioned in the communication from the FUSS and the FESTIAVTSCES. The examining magistrate had conducted an inquiry, visiting the undertaking and hearing witnesses. The Criminal Judge for San Salvador had ordered the provisional detention of the accused persons. Finally, their complicity in the offence not having been established, the judge had dismissed the charges against them.
  267. 267 Disturbances had also taken place in other undertakings employing sympathisers with the opposition parties. These persons had been striving to bring about a general strike not recognised by the Labour Code, and with this end in view they had prevented workers from entering these undertakings, sometimes resorting to violence, and had threatened the employers. At the bus company El Salvador SA, for instance, vehicles had been set on fire and otherwise damaged.
  268. 268 As regards the allegations relating to the undertaking Lácteas Foremost SA, the Government stated that the undertaking had requested the General Inspectorate of Labour for permission to suspend certain trade union officials from their employment for 30 days. The Inspectorate had summoned the management and the union officials in question to a meeting, as a result of which the undertaking withdrew its request and the union officials had undertaken to attempt to resolve their problems by lawful means.
  269. 269 As concerns the allegations of anti-union discrimination, the Government stated that it was not prepared to permit infringements of freedom of association as exercised within the bounds of the law. The Government added that if employers or authorities had committed discriminatory acts or taken retaliatory measures against workers because of their trade union membership, the workers concerned should bring these facts to the notice of the General Inspectorate of Labour so that it could make inquiries and punish the offenders.
  270. 270 The Government also supplied information about the two complainant national trade union federations, the FUSS and the FESTIAVTSCES. These two federations were at present preparing to form a Confederation - an operation for which the labour authorities had supplied them with information at their request. The Government further stated that a representative of each of these organisations sat on the National Minimum Wage Council.

B. B. The Committee's conclusions

• V. Conclusions of the Committee
  271. 271 The Committee observes that the complaints, which emanate from a number of national and international organisations of workers, refer to the death, arrest or disappearance of trade unionists, the damaging of trade union premises and the frequent practising of anti-union discrimination.
  272. 272 As concerns the death of trade unionists, the Committee notes that the inquiry into the death of Rafael Aguiñada Carranza has failed to identify the persons responsible. It further notes that the investigations being conducted into the other two deaths mentioned in the original complaint have so far failed to produce results. The Committee must regret the lack of success in the inquiries made in these cases by the judicial authorities. The Committee must also observe that the Government has not replied to the allegations made with respect to the death of two workers in incidents which occurred during a strike at the El León Factory.
  273. 273 With regard to the allegations relating to the disappearance of trade union officials, the Committee notes that the Government again rejects all responsibility for the disappearance of the persons mentioned in the original complaint. The Committee must once again note the contradiction between the statements of the complainants and those of the Government with regard to these disappearances, the former laying the blame on the security corps and the police while the Government denies that the facts alleged can be imputed to the authorities. The Committee finally notes in this respect that no information has been received from the Government concerning the disappearance of Rafael Antonio Martinez.
  274. 274 The Government has supplied information regarding arrests mentioned in later complaints and concerning trade unionists employed by Autobus SA. The Committee notes that the charges against these persons, accused of offences involving damage to the firm's property, have been dismissed by the criminal courts and that they have been released. However, the Government has supplied no information in reply to the specific allegations concerning the arrest of trade union officials employed by the undertakings Lácteas Foremost SA, Cosmos and Puerto El Triunfo Fish Industries. Nor has the Government replied as yet to the most recent allegations, concerning trade union officials employed by the undertakings Quality Food de Centro América, Alianza and Famosa who, according to the complainants, were arrested under a new Act for the defence and guaranteeing of public order.
  275. 275 With regard to the allegations relating to attacks on trade union premises, the Committee notes that in one case - that of the FESINCONSTRANS - the cause of the incident seems to have been accidental. In the case of the other federations mentioned by the complainants, the inquiries made have not permitted the identification of the persons responsible for these acts or their motives. The Committee further notes that the Government has not replied to the allegations relating to the raiding of the premises of the Puerto El Triunfo Fish Industries Employees' Union by the National Guard.
  276. 276 With regard to the allegations concerning the practising of anti-union discrimination, the Committee notes that the Labour Code contains provisions for the protection of workers and trade union officials from acts of this nature. It notes in particular that breaches of these provisions are punishable offences under the Penal Code and that the workers affected can notify the General Inspectorate of Labour so that inquiries can be made and the offenders punished if necessary. One of the complaints contained specific allegations concerning the dismissal of employees of the ANDA, which was said to be setting out to destroy their union. The Committee notes that, according to the Government, the dismissals in question were due to the completion of programmes of work by the undertaking, and the employees' union is fully operational. The Committee observes that the Government has not replied to the complainants' claims that the dismissed trade unionists have been blacklisted and are thus unable to find other employment. The Committee considers it appropriate to recall in this connection that the existence in the legislation of provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Complaints of anti-union practices should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner. Furthermore, the Committee is of the opinion that all practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights, and considers in general that governments should take stringent measures to combat such practices.
  277. 277 In examining this case, the Committee has been struck by the gravity of the allegations made by the complainants. It has noted that all the facts alleged have occurred against a background of violence which, according to the Government, is the result of a campaign waged by subversive groups. The Committee must nevertheless express its concern at the fact that many of the acts committed against trade unions (damaging or raiding of premises) or their leaders (murders, disappearances) remain unexplained. In the Committee's opinion this can only result in a climate of uncertainty and insecurity prejudicial to the functioning of trade union organisations and the development of industrial relations in the country concerned. As it has already stated, the Committee considers that such situations call for firm measures on the part of the authorities in order to redress the situation.