Informe provisional - Informe núm. 218, Noviembre 1982

1. 437. The Committee examined this case at its meeting in may 1981 and submitted an interim report to the Governing Body.
2. 438. Subsequently, the complainant sent additional information in communications dated 2 October and 25 November 1981. The Government replied in communications of October and 3 December 1981 and 12 October 1982. In accordance with the procedure in force, in view of the contradiction between the allegations and the Government's observations contained in its communication of October 1981, these observations were sent to the complainant organisation for its comments. The comments thus received were forwarded to the Government.
3. 439. Nicaragua 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. 440. When the Committee examined the case at its meeting in may 1981, the questions concerning the death of the Vice-President of the Managing Board of Private Enterprises (COSEP), Jorge Salazar Argüello, the arrests and prison sentences of enterprise managers, and various other allegations to which the Government has not replied, remained pending.
2. 441. The Committee recommended the Governing Body to adopt the following conclusions:
3. "The Committee deplores the death of the Vice-President of COSEP, Mr. Jorge Salazar Argüello, and expresses its concern over the gravity of the allegations.
4. The Committee asks the Government to undertake as soon as possible, if it has not done so already, an independent judicial inquiry on the death of Jorge Salazar Argüello, with a view to elucidating the facts in full and determining responsibility, and to communicate the results of this inquiry.
5. The Committee asks the Government to supply it with the texts of the judicial decisions of the appeal concerning the arrested and detained leaders in question.
6. The Committee requests the Government to communicate additional information regarding the allegations to which it has not yet replied (draft law on trade unions, pressures on the major independent trade unions to force them to join a single central trade union, attempts by the FSLN to divide up COSEP, the preliminary draft of the law on regulation of professional activity, and the Government's hostility towards COSEP and its members)."
7. B. Further development of the case
8. 1. New information from the complainant
9. 442. In its communication dated 2 October 1981, the International Organisation of Employers (IOE) points out that the Government has sent no observations on the violations of freedom of information committed by the authorities (Decree No. 511 of 17 September 1980 and communiqué of 17 November prohibiting the dissemination without previous authorisation of information concerning the death of the Vice-President of COSEP), and that on 1 October 1981 the authorities announced a two-day closure of the newspaper "La Prensa". According to the complainant, this is the fifth time that a penalty of this kind has been imposed on this independent newspaper, which gathers opinions from a wide variety of circles and frequently echoes the views expressed by the COSEP.
10. 443. In its communication of 25 November 1981, the IOE points out that it considers it impossible for Jorge Salazar Argüello's death to have resulted from a confrontation with the security forces in which the latter shot dead one of the attackers in legitimate self-defence. The view that it was a political crime, on the other hand, was supported by the following evidence: Jorge Salazar had been followed for some time, and on the day of his death a state security patrol had been waiting for him at the scene of the events; an attempt was made to justify Jorge Salazar's death and exculpate those responsible by saying that it was the result of an armed confrontation.; the victim was unarmed and his killers were waiting for him with automatic weapons. Moreover, Néstor Moncada Lau, whom Jorge Salazar was presumably supposed to meet at the place where he died, was captured alive and was not tried; thus this man could have played the role of Judas in the death of Jorge Salazar.
11. 444. According to the IOE, the accusation that Jorge Salazar had been conspiring, together with four or five other civilians, apparently led by a woman, to carry out a coup d'état against the military Government is absurd. What appears rather to be a conspiracy to kill Jorge Salazar is the statement contained in a document of the National Directorate of the National Sandinista Liberation Front (FSLN) entitled "Analysis of the Situation and Tasks of the Sandinista Popular Revolution", to the effect that the bourgeoisie should be struck at, not by attacking it as a class, but through its most representative elements as soon as they give the first opportunity. This appears to be confirmed by what the FSLN commandant, Oscar Cabezas, revealed last Easter Week, at a private party in San Juan del Sur, when he said in the presence of several persons that he had given the order to kill Jorge Salazar Argüello.
12. 445. The IOE adds that the Government does not allow pluralism to develop, but sets up its own organisations, dependent on it, under the guise of free organisations. Proof of this are the denunciations of enterprise managers through the interference of the FSLN (the Government party), by promoting parallel pseudo-official organisations, which it seeks to substitute for the organisations of the private sector. Thus, the FSLN recently set up the Confederation of Occupational Associations, Heroes and Martyrs, comprising professional workers and technicians in government service and gave it a seat in the Council of State, taking away the seat from the Confederation of Occupational Associations (independent), which groups together most of Nicaragua's professional workers. Likewise, in 1981, the FSLN hastily organised the National Association of Agriculturists and Stock-breeders Workers (ANAG), giving it two seats in the Council of State. However, it is in fact the Union of Agricultural and Fishery Producers which truly represents this sector, not the ANAL, which comprises employees of the Nicaraguan Institute of Agrarian Reform and the Association of Rural workers, both of which are FSLN bodies.
13. 446. The Government's intention, expressed in the Bill on trade union associations, to create a single trade union confederation, belonging to the state apparatus, is clearly shown by its considerable efforts to destroy the independent trade union confederations, which frequently denounce its blatant discrimination in the state and mixed sector, violent attacks on trade union leaders and assaults on trade union confederation premises and on meetings of independent trade union confederations.
14. 447. The complainant considers that the Government's statements that COSEP acts in total freedom are untrue. In this connection, the IOE cites the imprisonment of the top managers of COSEP (examined by the Committee in Case No. 1084), the prohibition on holding a meeting on 26 October 1981 and the administrative attacks on freedom of expression, with the closure on five occasions of the newspaper "La Prensa", the only independent newspaper in Nicaragua.
15. 2. The Government's reply
16. 448. In a communication of October 1981, the Government states that the allegations concerning pressure on workers' confederations to set up a single workers' confederation are unfounded, as pluralism is respected and constitutes one of the principles of the revolutionary process.
17. 449. The Government is surprised that the IOE should mention pressure on the COSEP, since the COSEP in fact acts in total freedom, publishes communiqués in the daily newspapers, holds meetings and engages in political activities without hindrance. The fact that COSEP is able to present its complaints to international organisations without being repressed gives a clear idea of the absolute freedom it enjoys. The Government is also surprised that COSEP should claim the right to set up a single employers' organisation, since this is contrary to the pluralism which, as it had already pointed out, is one of the principles of the Revolution, and that freedom of association would be violated in this way. The Government states further that it respects the freedom of both workers and employers to organise, providing they do this voluntarily, in the way they choose.
18. 450. Concerning the Bill respecting trade union associations, the Government states that this Bill was privately drawn up by an official of the Ministry of Labour, who gave copies to some persons for their opinion. According to the Government, the employers had stated as fact that this was an official Bill of the Ministry, when in fact the latter had no knowledge of the Bill.
19. 451. In its communications of 3 December 1981 and 12 October 1982, the Government states that the death of Mr. Salazar and the arrest of other persons bear no relation to their position as employers, but have to do with their participation in a conspiracy against the Government, led by Mr. Salazar himself, as had been established during the trial which followed and had been proved by the statements of the persons implicated. The passage from the document of the National Directorate of the FSLN cited by the complainants as evidence of a conspiracy to kill Jorge Salazar has been taken out of context since, when the document speaks of attacking the bourgeoisie, it refers to the ideological and political confrontation which in fact occurs every day, as Nicaragua is a democratic and pluralistic country. The Government adds that it is ridiculous to assert that the FSLN commandant, Oscar Cabezas, said in the presence of several persons that he had given the order to kill Jorge Salazar, since the FSLN has no commandant of this name. Mr. Salazar - who at the time of the events was carrying no weapon - died not as the result of an ambush set by the police but when he was about to be captured with his companion, Mr. Moncada Lau, who shot first with a firearm at the authorities who were proceeding to arrest him, whose vehicle was hit several times by bullets; thus an exchange of fire was started, resulting in his death. St would have been difficult, having been taken by surprise, to determine exactly who was firing. The Government states that the reason for the capture was that Mr. Salazar's vehicle was carrying six automatic weapons (M-16), reserved for the-army's exclusive use, which were to be used for political activities against the Government and which Mr. Salazar intended to hand over to Mr. Moncada Lau. The latter, contrary to the assertion of the complainant organisation, was tried by a military court and is now in prison.
20. 452. The Government has sent the text of the judgement of the Supreme Court of Justice of 5 October 1981. In this judgement, the Supreme Court points out with regard to Jorge Salazar Argüello that "court records show that a criminal court is investigating the persons responsible for his death; the case had originally been investigated by a criminal tribunal and was taken over by the military court because of the military status of the persons responsible, as is clear from the record, and it is under this jurisdiction that the trial will be begun and the final sentence pronounced; the trial is being carried out completely separately and under military jurisdiction".
21. 453. As regards the persons sentenced, the Supreme Court of Justice closed the case definitively in favour of the accused Dora Maria Lau de Lacayo, Leonardo Ramón Somarriba González, Alejandro José Salazar Elizondo and Mario Hannon Talavera, charged with the crimes stated in section 1(a) of the Act on preservation of order and public security, and closed the case definitively in favour of the accused Dora Maria Lau de Lacayo Benard and Luis Adolfo Valle Lau, charged with the crime stated in section 4(a) of the same Act and its amendment Act of 9 August 1980. However, the judgement states that "the criminal tribunal of first instance of Managua must institute criminal proceedings for the crimes against the internal security of the State, conspiracy and other resulting crimes against all those whose cases have been closed here", since there were "sufficient presumption, clues and investigations to lead to the conclusion that acts, activities and actions may exist, constituting a conspiracy to commit the crime of rebellion and other crimes against the internal security of the State". As regards Néstor Moncada Lau, the judgement states that he was handed over to the military tribunals by the Court of Appeal because of his military status. The judgement of the Supreme Court of Justice also states that the Court of Appeal quashed the verdict of guilty pronounced by the court of first instance on Francisco Castillo Molina and handed down a conditional sentence on Gabriel Lacayo Benard for a probation period of two years, requiring him to submit a mortgage guarantee to the Treasury and ordering him to be on good behaviour.
22. 454. The Government adds that it is a democratic practice of the Government to consult the various political associations and bodies on preliminary drafts of laws, so that these organisations may express their views and make suggestions, before the preliminary drafts are submitted to the Government Council and the Council of state for approval and promulgation. Therefore, what appears in these preliminary drafts - and specifically in the one regulating occupational activity - may not be used as an argument accusing the Government of alleged violation of freedom of association, since they are not laws of the Republic: they only show that bills are drawn up in a democratic and participative manner.
23. 455. The Government states that Decree No. 511 had been issued by the Government in the exercise of its sovereign right to preserve the internal peace and security of the country, especially since the consolidation of the new revolutionary Government is a long and arduous process, as distressing activities and behaviour inherited from the dark rule of Somoza still persist in this country.
24. 456. The Government points out that since the victory of the Nicaraguan people, workers' organisations have proliferated considerably: under the Somoza regime there were 174 active organisations; since the triumph of the Revolution they have increased to 491.
25. 457. The Government denies that it is attempting to divide COSEP by organising small and medium-sized managers and independent professional workers. However, priority is given to the task of organising into co-operatives, collectives, etc., the sectors which previously did not enjoy the benefits of economic activity. As regards independent professional workers, it is obvious that in the new society which is being built they have to organise themselves in associations which, as well as safeguarding occupational interests, fulfil their obligations to the community.

C. The Committee's conclusions

1. 458. As regards the allegation concerning the death of Jorge Salazar Argüello, vice-President of COSEP, the Committee takes note of the statements of the complainant and of the Government, and of the judgement of the Supreme Court of Justice of 5 October 1981. The Committee notes in particular that the above-mentioned judgement states that "court records show that a criminal court is investigating the persons responsible for his death; the case had originally been investigated by a criminal tribunal and was taken over by the military court because of the military status of the persons responsible". Therefore, in keeping with its previous conclusions, the Committee requests the Government to send the text of the judgement of the military court on the military personnel responsible for the death of Mr. Jorge Salazar Argüello. The Committee also requests the Government to indicate in virtue of what legal text a military court was dealing with this matter.
2. 459. As regards the allegation concerning the arrests and prison sentences of enterprise managers, the Committee observes that the Court of Appeal quashed the verdict of guilty pronounced by the court of first instance on Francisco Castillo Molina and handed down a conditional sentence on Gabriel Lacayo Benard for a probation period of two years, requiring him to submit a mortgage guarantee to the Treasury and ordering him to be on good behaviour. The Committee notes in addition that the Supreme Court of Justice on 5 October 1981 closed the case definitively in favour of the accused Dora Maria Lau de Lacayo, Leonardo Ramón Somarriba González, Alejandro José Salazar Elizondo, Mario Hannon Talavera and Luis Adolfo Valle Lau, charged with crimes against the Act on preservation of order and public security. The Committee notes also that the judgement orders the first criminal tribunal of Managua to institute criminal proceedings for the crimes against the internal security of the State, conspiracy and other resulting crimes against all those whose cases have been closed, since there are sufficient presumptions, clues and investigations to lead to the conclusion that acts constituting such crimes may exist. In these circumstances, the Committee can only ask the Government to send the text of the decision handed down on the case by the first criminal tribunal of Managua.
3. 460. As regards the allegation concerning the Bill on trade union associations, the Committee notes that, according to the Government, this Bill was drawn up privately by an official of the Ministry of Labour, who handed copies to some persons for their opinion, and therefore was not an official Bill. In this respect, taking account of the Government's statements and considering that since the complainant formulated this allegation (9 January 1981) the Bill in question does not appear to have reached the competent authorities for adoption, the Committee considers that this allegation does not require further examination.
4. 461. With respect to the violations of freedom of information, the Committee observes that the complainant referred to Decree No. 511, to a communiqué of the Ministry of the Interior ordering that before disseminating news about the armed confrontation in which Mr. Jorge Salazar Argüello was killed, the sources stipulated in Decree No. 511 must be consulted, and to the closure on five occasions of the newspaper "La Prensa", which frequently echoes the views expressed by COSEP.
5. 462. As regards Decree No. 511, although it takes note of the Government's statements thereon and observes that the Decree is applied generally and not exclusively to the trade union field, the Committee considers that its application to the dissemination of news concerning the armed confrontation in which Mr. Salazar Argüello, Vice-President of COSEP, was killed - as well as the retaliatory measures taken against the newspaper "La Prensa" for having reported this - have restricted the exercise of trade union rights. , The Committee so considers because it has pointed out on previous occasions that the publication and distribution of news and information of trade union interest constitutes a legitimate trade union activity and the application of measures for their control may involve a serious interference by the administrative authorities. The Committee also points out to the Government the importance which it attaches to the Resolution on trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th (1970) Session.
6. 463. Concerning the efforts of the National Sandinista Liberation Front (FSLN), supported by the Government, to divide COSEP, the Committee notes that, according to the complainant, the Government does not allow pluralism to develop within employers' organisations, but sets up its own organisations dependent on it, as is shown by FSLN interference by promoting parallel pseudo-official organisations which it attempts to substitute for the organisations of the private sector. According to the complainant, this was the case of the Confederation of Occupational Associations, Heroes and Martyrs (APHM) and of the National Association of Agriculturists and Stock-breeders (ANAL): the former had taken away a seat in the council of State from the (independent) Confederation of Occupational Associations, which groups together most of Nicaragua's professional workers; the latter had been given two seats in the Council of State, despite the fact that the organisation which truly represents the agricultural and fishery sector is the Union of Agricultural and Fishery Producers. The Committee also takes note of the Government's statements that trade union pluralism is one of the principles of the Revolution and its denial that the Government attempts to divide COSEP, although priority is given to the task of organising co-operatives, collectives, etc., in the sectors which previously did not enjoy the benefits of economic activity. The Committee observes, however, that the Government has not replied specifically to the allegation concerning interference of the FSLN by promoting parallel pseudo-official organisations (CAPHM and ANAL, for example) which had taken away seats in the Council of State from organisations of the private sector. The Committee therefore asks the Government to send its observations on this matter.
7. 464. Concerning the preliminary draft of the law on professional activities, having analysed its provisions the Committee considers that this preliminary draft regulates questions which lie outside the scope of Conventions on freedom of association, as it confines itself to regulating access to the various occupations listed, the exercise of these occupations and the organisations and bodies competent in these matters. The Committee notes further that, to judge from the Government's statements and from the preamble to the text of the preliminary draft sent by the complainant, this preliminary draft is undergoing a phase of consultations between the persons and organisations directly involved. In these circumstances, the Committee considers that this allegation does not call for further examination.
8. 465. Lastly, concerning pressure on independent trade unions to destroy them and force them to join a single trade union confederation, the Committee observes that, although the complainant referred to discrimination, violent attacks on trade union leaders, assaults on trade union confederation premises and against trade union meetings, it has not cited any specific cases of such violations of freedom. Therefore, taking account of the fact that the Government has denied such allegations, the Committee considers that they do not call for further examination.