Informe provisional - Informe núm. 277, Marzo 1991

1. 357. The complaint of the National Trade Union Federation of Salvadorian Workers (FENASTRAS) is contained in a communication of 17 March 1990.
2. 358. As it had not received the Government's observations, the Committee twice adjourned its examination of this case, most recently at its November 1990 meeting, when it noted that in spite of the time which had elapsed and the seriousness of the allegations, it had not received the information requested of the Government. The Committee again urged the Government to send its observations as soon as possible and informed it that, in accordance with the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1971), it would submit a report on the substance of the matter at its next meeting, even if the information or observations requested from the Government had still not been received. (See 275th Report, para. 9, approved by the Governing Body at its 248th Session (November 1990).)
3. 359. El Salvador has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 360. In a communication of 17 March 1990, the National Trade Union Federation of Salvadorian Workers (FENASTRAS) submits a complaint alleging the violation of trade union rights and freedoms in El Salvador. The complainant alleges that between 22 February 1989 and 31 January 1990, there have been 87 murders and disappearances of trade union leaders, 971 arrests and detentions of trade unionists and workers, 78 instances of harassment of trade unionists and 56 violations of trade union premises.
2. 361. The complainant states that government agents are responsible for murders, disappearances, torture, threats and the constant harassment of the Salvadorian trade union movement, and notes that, so far, the courts have failed to sanction any of the parties responsible for these violations. They point out that the ineffectiveness of the Salvadorian judicial system has been acknowledged by the United Nations Human Rights Commission in its final report on the situation of human rights in El Salvador. (See Economic and Social Council, Human Rights Commission, document E/CN.4/1989/23, p. 19.)
   • Threats against trade union organisations and leaders
3. 362. The complainant states that threats to the lives of trade unionists constitute a common practice in El Salvador; these threats have affected all trade unions, representing a broad range of political opinions. They cite as an example a television broadcast of 26 October 1989, which depicted the FENASTRAS acronym crossed out with an "X", together with a photograph of trade union leader Mrs. Febe Velásquez, also marked with a red "X" (she had been accused by the armed forces of misappropriating trade union funds); five days later this trade unionist died as a result of an attack on FENASTRAS headquarters, which left nine dead and nearly 30 injured. The complainant states that these threats, publicised by electronic means of mass communication with the Government's apparent approval, have paralysed the Salvadorian trade union movement. According to the complainant, the Government took no measure to protect either the life of Mrs. Velásquez or the FENASTRAS premises, and it is highly unlikely that those responsible for the attack will be indicted or punished, since the lack of internal means of legal redress is compounded by the Government's disregard for its international obligations to guarantee the personal safety of trade unionists.
   • Arrest and detention of trade unionists
4. 363. The complainant federation also states that the number of arrests and detentions of trade unionists is alarming, averaging one per day; it is the Government's preferred method for repressing the trade union movement. Most of these arrests lead to a 72-hour detention, during which the detainee is interrogated and, usually, physically and psychologically mistreated. After 72 hours some of those who have been arrested are turned over to the courts and imprisoned for several months without being duly tried, while others disappear after their capture by security forces. The 72-hour limit is generally overlooked by security forces and access to detainees during this period is virtually impossible. The complainant states that many trade unionists and activists are arrested on the pretext of belonging to the guerrilla movement, although such charges are usually unsupported by evidence. Apparently, the overriding policy in El Salvador is that participation in a workers' organisation is sufficient grounds for a person's arrest and detention. Thus, trade union membership has become tantamount to being a crime, punishable by arrest, detention and, in many cases, torture. The complainant states that none of the more than 600 trade unionists arrested between 22 February and 31 October 1989 were tried and found guilty following their arrest; in general, these arrests are timed to coincide with trade union meetings or international travel. Detained trade unionists are mistreated, their arrests are politically motivated, and in many cases they are illegal owing to the absence of adequate judicial guarantees.
   • The search of trade union premises
5. 364. In addition, the complainant alleges that the following trade union premises were searched in 1989: SITRALONB, SETIVU (11 May); UNTS (21 March); FENASTRAS, FUSS, UNTS (26 March); SIGEBAN (12 April); FUSS, FESTIAVSCES, CODYDES, UNTS, AGEPIN (20 April); ASID (15 May); FENASTRAS, FUSS, UNTS, COACES (25 May); UNTS (26 May); SOICSCES (6 June); EL SOTO Co-operative (5 July); ANTA (13 July); LA VIRTUD Co-operative (26 and 28 July); ANTMAG (9 and 24 September). The searches of these trade union premises were accompanied by arrests and the obstruction of trade union activities (for example, the reception of international visitors), damage to property and theft of trade union property. None of these actions resulted in any criminal proceedings and sentencing, since there were no criminal activities or motives to justify the authorisation of the searches, nor any legal basis to warrant such action. Even when the search of trade union premises was carried out in accordance with a court order, the authorities responsible for implementing the court order failed to respect trade union property.
   • The violent break up of trade union demonstrations
6. 365. The FENASTRAS communication states that security forces sought violently to break up trade union demonstrations on 18, 21 and 29 March, 18 April, 1 May and 18 September 1989, and injured and arrested several members of the trade unions which had organised these demonstrations (ANTA, UNTS, FENASTRAS, CCTO, CSTICODYDES). The Government overreacted to the destruction of two buses during a FENASTRAS demonstration on 18 September 1989, using this incident as a pretext to intimidate the whole trade union movement.
   • The violent breaking of strikes
7. 366. The complainant states that during the period from 22 February to 31 October 1989 a number of strikes were broken by the use of force. They cite two examples: on 3 July 1989 members of the army broke up a legal strike called by the General Trade Union of Workers in the Acajutia Fishing Industry (SGTIPAC). In El Salvador, given the nature of the Labour Code, it is virtually impossible for a strike to be declared legal. The other case took place in late September 1989, when members of the Textile Industry Workers' Trade Union (STIT) called a strike at the INSICA plant. The plant was militarised and the striking workers were totally isolated; deliveries of food were prohibited and communications were cut, and ultimately 260 striking workers were evicted by the military forces and subsequently dismissed by the enterprise.
   • Restrictions on the organisation of trade unions and anti-union discrimination
8. 367. The complainant alleges in its communication that the mayor of San Salvador has taken measures to dismantle trade unions operating in his municipality, which is the largest in El Salvador. On several occasions he has banned the meetings of municipal employees and interferred in their organisation.
9. 368. In addition, trade unions face the problems resulting from the constant dismissals for political reasons or on the grounds of trade union membership or organisation; trade union leaders are also barred from the workplace and employment is conditional on non-membership of trade unions; alternatively, workers who belong to trade unions are dismissed. The complainants furnish a long and detailed list of practices of this type.
10. 369. Lastly, in the light of the seriousness of the allegations and the Government's failure to guarantee the development of the trade union movement, FENASTRAS concludes its communication by requesting the Governing Body to request the Government to consent to submitting this complaint to a fact-finding and conciliation commission with a view to seeking solutions to the crisis which is affecting the Salvadorian trade union movement.

B. The Committee's conclusions

1. 370. The Committee recalls that at its last meeting in November 1990 it drew the Government's attention to the fact that, in accordance with its procedural rules, it would submit a report on the substance of this case at its next meeting, even if the Government's information or observations had not been received in due time. The Committee still has not received such observations.
2. 371. In these circumstances, and before examining the substance of the case, the Committee considers it necessary again to draw the Government's attention to the considerations expressed in the Committee's First Report (para. 31, approved by the Governing Body in March 1952) and which it has repeated on several occasions, namely, that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact and the Committee is confident that, as it protects governments against unreasonable accusations, governments on their side should recognise the importance of formulating, so as to allow for objective examination, detailed factual replies to such detailed allegations brought against them.
3. 372. The Committee deplores the fact that the Government has not sent any reply to this complaint, and that, owing to the time elapsed and the seriousness of the allegations, it finds itself obliged to examine the case without the benefit of the Government's observations.
4. 373. The Committee notes that the complainant has submitted its allegations with much detailed information contained in several appendices which document each case citing, names, organisations, places and dates of the alleged violations of trade union rights and human rights in general. Given the large amount of information received, it would be physically difficult to include all of it in this document. This documentation and the appendices have been transmitted in their entirety to the Government, and the Committee is still awaiting specific replies to the same.
5. 374. Although the Committee is aware of the difficulties facing the Government, it cannot but deeply deplore, once again, the Government's failure to co-operate with the Committee in the large number of serious allegations presented in this case.
6. 375. The Committee observes with great concern the seriousness of the allegations in this case concerning the murder and disappearance of a large number of trade union leaders, the numerous arrests, detentions, harassment and threats to trade unionists, the search of trade union premises, the efforts to break up demonstrations, and violently to break strike, the restrictions imposed on the organisation of trade unions and the acts of anti-union discrimination over the period 22 February 1989 to 31 January 1990.
7. 376. As regards the large number of violent deaths and disappearances, the failure to comply fully with legal prescriptions concerning arrests and detention, and the constant harassment and threats against trade unionists, the Committee deeply deplores these incidents. It considers that they constitute a direct obstacle to the development of a free and independent trade union movement which may fully and effectively defend the rights and interests of workers, and play a dynamic and productive role in the country's social, economic and political development. On several occasions the Committee has expressed the opinion that a free trade union movement can develop only under a regime which guarantees fundamental rights, including the right of trade unionists to hold meetings in trade union premises, freedom of opinion expressed through the printed and electronic media, and the right of detained trade unionists to enjoy the guarantees of normal judicial procedure at the earliest possible moment. (See the Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 73.)
8. 377. Since the arrest and detention of trade unionists may constitute a serious interference with the exercise of trade union rights, the Committee considers that the adoption of such measures, even for reasons of internal security, may constitute a serious interference with trade union rights unless attended by appropriate judicial safeguards. (See, for example, Digest, para. 94.) The Committee also recalls that the detention of trade unionists against whom no charges have been filed can present obstacles to the exercise of freedom of association. The Committee urges the Government to supply information on the situation of trade union leaders and activists who have been arrested, murdered or have disappeared, and whose names were listed by the complainant, including any sentences handed down in respect of them or investigations under way. Likewise, the Committee urges the Government to give the necessary instructions to the competent authorities to ensure that no detainee is subjected to ill-treatment, and to apply effective sanctions where cases of ill-treatment are found. (See Digest, para. 84.)
9. 378. As regards the violent search of trade union premises without a court order, the interruption of trade union meetings and the destruction and sacking of property belonging to trade unions whose premises had been searched, the Committee considers that the search or occupation of trade union premises without a court order constitutes a serious interference on the part of the authorities in trade union activities. It reiterates the importance of the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference at its 54th Session (1970), which provides that the right to adequate protection of trade union property constitutes one of the civil liberties essential for the normal exercise of trade union rights. Consequently, the Committee requests the Government to open judicial inquiries into the allegations concerning attacks against trade union premises for the purpose of punishing the guilty parties and preventing the recurrence of such acts, and to communicate immediately to the Committee any information available in this connection.
10. 379. As regards the violent break up of the trade union demonstrations and the arrest and detention of trade unionists who were participating in them, the Committee recalls that, in general, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity. The authorities should be given precise instructions in cases where the public order is not seriously threatened, so that people are not detained simply for having organised or participated in a demonstration. (See Digest, paras. 167 and 168.)
11. 380. As regards the use of force to break strikes and the subsequent dismissal of trade unionists and workers for their participation in such strikes, the Committee is of the opinion that the authorities should resort to the use of force only in serious situations where law and order is seriously threatened. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to reinstate them, implies a serious risk of abuse and constitutes a violation of freedom of association. (See Digest, paras. 431 and 444.)
12. 381. As regards restrictions on the organisation of trade unions and acts of anti-union discrimination, the Committee recalls the principle according to which public servants as well as workers in the private sector should enjoy the right to set up organisations of their own choosing for the promotion and defence of their interests, and that these organisations should have the right to organise their activities and, in particular, to hold meetings, without interference from the public authorities. Likewise, it wishes to emphasise that no worker should be subjected to discrimination in employment owing to his or her membership of a trade union or current or past trade union activities, nor should his or her employment be conditional upon membership or non-membership of a trade union. The Committee requests the Government to investigate these practices and to take the necessary measures to prevent their recurrence.