Informe definitivo - Informe núm. 308, Noviembre 1997

1. 225. The Committee examined this case in its November 1995 and November 1996 meetings and on both occasions presented an interim report to the Governing Body (see 300th Report of the Committee, paras. 399-427, approved by the Governing Body at its 264th Session (November 1995) and 305th Report, paras. 206-228, approved by the Governing Body at its 267th Session (November 1996)).
2. 226. The International Confederation of Free Trade Unions (ICFTU) forwarded new allegations in a communication dated 4 April 1997. The Government sent new observations in a communication dated 15 September 1997.
3. 227. Cuba 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. 228. When it last examined this case (see 305th Report, paras. 206-228), the question regarding the allegation of the Government's refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC) was left pending and the Committee formulated the following conclusions and recommendations (see 305th Report, paras. 226 and 228(b)):
2. 226. As regards the allegation that the Confederation of Democratic Workers of Cuba (CTDC) was not granted legal personality despite having submitted the appropriate documents, the Committee notes that the Government states that the inquiries carried out have ascertained that there is no trade union called the Confederation of Democratic Workers of Cuba in any enterprise or labour body in the entire country. In this respect, the Committee requests the Government to state expressly whether it has received the documents applying for the granting of legal personality to the CTDC mentioned by the complainant organization and, if so, to state what action has been taken. In this respect, and in view of the fact that several allegations in this case are related to trade unionists of the CTDC, the Committee would refer to one of its conclusions formulated at its previous examination of the case (see 300th Report, para. 420), reproduced below:
3. The Committee must therefore take into account the fact that there exists only one officially recognized central trade union organization mentioned in the legislation and that on previous occasions, complaints have been made concerning the refusal to grant official recognition to trade union organizations outside the existing officially recognized trade union structure. In this same way, in its last report (1995), the Committee of Experts on the Application of Conventions and Recommendations requested the Government "to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent trade union organizations of their own choosing, outside any trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom" (see Report III (Part 4A), ILC, 82nd Session, 1995, p. 163).
4. ...
5. The Committee's recommendations ...
6. (b) As regards the allegation concerning the refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC), the Committee requests the Government to state whether it has received the documents applying for the granting of legal personality to the CTDC mentioned by the complainant organization and, if so, to state what action has been taken. In this respect, the Committee would refer to the comments of the Committee of Experts requesting the Government "to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent trade union organizations of their own choosing, outside any existing trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom (Article 3 of the Convention)".
7. B. New allegations of the ICFTU
8. 229. In its communication dated 4 April 1997, the International Confederation of Free Trade Unions alleges the following facts as reported to it by the Confederation of Democratic Workers of Cuba (CTDC):
9. - at the beginning of January 1997, members of the CTDC national executive went to the offices of the Department of Associations of the Cuban Ministry of Justice and hand delivered the official document applying (for the sixth consecutive year, according to the CTDC) for official recognition as an independent trade union organization;
10. - on 19 February 1997, the CTDC issued an appeal to "all organizations, trade unions, committees, institutes, associations and any other such bodies performing trade union functions to join an independent workers' parliament for the defence of all Cuban workers". This appeal was followed by a wave of repressive measures on the part of the Government culminating in the arrest or detention of a number of trade unionists. Specifically, on 21 February 1997, Mr. José Orlando González Budon, president of the CTDC national executive was arrested. He was detained without being charged from 8 a.m. until 6 p.m. On 22 February 1997, he was again arrested, and released on 25 February 1997. On 23 February 1997, Gustavo Toirac González and Rafael García Suárez, General-Secretary and Secretary respectively of the organization and both members of the CTDC executive, were also detained. They were released on 25 February 1997.
11. C. The Government's reply
12. 230. In its communication of 15 September 1997, the Government states that on 2 January 1997, an application for official recognition of the self-proclaimed Confederation of Democratic Workers of Cuba as an independent trade union was submitted to the Ministry of Justice. According to the application document, the organization in question claims to represent its members before the various administrations and the Central Organization of Cuban Workers. According to the report of the Ministry of Justice, the document does not include the particulars of the persons forming the steering committee; gives no indication of the number of members forming the organization; does not indicate the body, agency or government office with which the organization would maintain relations as required by the relevant legislation in force; does not attach the statutes governing the organization's internal affairs; and is not accompanied by the statutory stamp duty.
13. 231. The Government adds that, without determining the legitimacy of the aims of the application, the Ministry of Justice notes that, quite apart from the fact that the application does not comply with Law No. 54 of 27 December 1985 (Law on associations), the Law in question does not govern the establishment of trade unions.
14. 232. The Government notes that in the application of 2 January 1997, it is stated that it is being made for the sixth consecutive year. However, only two previous applications are recorded in the Department of Associations of the Ministry of Justice with identical or similar names: one, dated 31 May 1993, from the Confederation of Workers of Cuba, and the other dated 27 August 1995, from the Confederation of Democratic Workers of Cuba. The signatories of these applications were not the same as those who signed the application of January 1997 currently under examination. For these reasons, the Ministry of Justice refused the application and notified the interested parties of its decision. The application was then filed in the archives.
15. 233. With reference to the letter of the ICFTU dated 4 April 1997, the Government maintains that there is no truth whatsoever in the claim that it instigated a "wave of repressive measures". Inquiries carried out have shown that José Orlando González Budon, Gustavo Toirac and Rafael García Suárez are at liberty and enjoy full civil rights. They are not trade union officials and do not represent any group of workers.
16. 234. Similarly, the Government considers it necessary to remind the Committee on Freedom of Association that the right of workers to form independent trade union organizations is acknowledged both in legislation and in practice. Section 13 of the Labour Code stipulates that "all workers, whether manual or white-collar, have the right without prior authorization to associate freely and form trade unions". Workers have the right to assemble, discuss and express freely their opinions on questions and issues which affect them; trade union organizations are managed and operated in accordance with the principles, regulations and statutes discussed and approved democratically by their members. All these guarantees are established in the Labour Code and exercised by the country's 19 national sectoral trade unions. These unions are affiliated to the Central Organization of Cuban Workers of their own free will, as expressed in their respective congresses, not because the law requires them to do so. Freedom of association is exercised without restriction in everyday practice at every workplace when workers and the representatives they have elected participate systematically in the decision-making process on any matters of concern to them.
17. 235. The Government states that there is no trade union organization by the name of the Confederation of Democratic Workers of Cuba at any workplace in the country, and the persons mentioned by the ICFTU in its letter of 4 April 1997 are not trade union officials, have not been elected as such at any workplace and do not represent any group of workers. For these reasons, the Government requests the Committee on Freedom of Association to declare the case definitively closed.

D. The Committee's conclusions

1. 236. The Committee notes that the questions raised by the complainant relate to the failure to grant official recognition to the Confederation of Democratic Workers of Cuba (CTDC) and to the temporary detention of three officials of that organization.
2. 237. As regards the failure to grant official recognition to the Confederation of Democratic Workers of Cuba (CTDC), the Committee notes that, according to the Government, the application for recognition submitted by the CTDC to the Department of Associations of the Ministry of Justice does not comply with the Law on associations and, specifically, does not give any particulars of the persons forming the steering committee, gives no indication of the number of members, does not indicate the state body with which the organization would maintain relations, does not attach the organization's statutes and is not accompanied by the statutory stamp duty. However, the Committee also notes that the Government states that the law in question is not applicable to trade unions, that the right to form independent trade union organizations is recognized both in legislation and in practice and that under section 13 of the Labour Code all workers enjoy the right to associate freely and to establish trade union organizations without previous authorization.
3. 238. Under these circumstances, the Committee requests the Government to guarantee the freedom of the CTDC to operate and to ensure that the authorities refrain from any interference aimed at limiting the exercise by that organization of fundamental rights recognized in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the exercise of human rights related to the exercise of trade union rights, including the right of individuals not to be subjected to measures depriving them of their freedom on grounds related to their legitimate activities.
4. 239. In this case, the Committee refers to the second question left pending, namely, the detention on various days in February 1997 of three CTDC officials (José Orlando González Budon, Gustavo Toirac González and Rafael García Suárez) for calling on social organizations to form an independent workers' parliament. The Committee notes that the Government has not expressly denied either the fact that these detentions took place or the motives for the detentions, merely stating that the persons in question are at liberty and denying that they are trade union officials. Under these circumstances, given that the complainant has given details of the trade union responsibilities in the CTDC of the persons concerned, the Committee reminds the Government, as it has already done in its previous examination of the case (see 305th Report, para. 224), of the principle according to which "measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights". (See Digest of decisions and principles of the Committee on Freedom of Association, 4th (revised) edition, 1996, para. 77.) The Committee deplores the detentions in question and requests the Government to take measures to ensure that there will be no future recurrence of such measures depriving individuals of their freedom on grounds related to legitimate trade union activity.