Informe provisional - Informe núm. 334, Junio 2004

1. 681. The complaint is presented by the General Confederation of Workers of Peru (CGTP) in communications dated 2 and 6 June 2003.
2. 682. The Government sent its observations in communications dated 4 August and 2 December 2003 and 12 January 2004.
3. 683. Peru 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. The complainant’s allegations

1. 684. In its communication of 2 June 2003, the General Confederation of Workers of Peru (CGTP) alleges that, on 28 May 2003, the Government issued Supreme Decree No. 055?2003-PCM, in which it declared a state of emergency throughout the country for a period of 30 days, during which time the constitutional rights laid down in paragraphs 9 (the right to the inviolability of premises), 11 (the right to choose one’s place of residence, travel in the national territory, enter and leave the country), 12 (the right to peaceful unarmed assembly) and 24(f) (the right to personal freedom and security) of article 2 of the Political Constitution of Peru. The Government justified this step because the tranquillity and peace, as well as the fundamental rights of citizens, were being disrupted by acts of violence.
2. 685. According to the complainant organization, as a result of the state of emergency being declared, the constitutional guarantee protecting the right of assembly of workers and trade union officials was suspended and there has been savage repression, with the use of force, firearms and tear gas, of demonstrations called by the United Trade Union of Educational Workers of Peru (SUTEP), the Peruvian Union of Higher Education Teachers (SIDESP), the Unified Trade Union of Education Centre Workers (SUTACE), the National Federation of Education Administrative Workers (FENTASE), the Federation of Workers of the Judiciary, the Single Central of Workers of ESSALUD, the National Board of Irrigation Users - all of whom are members of the CGTP. These demonstrations took place in accordance with the constitutional right of strike action and for valid claims for an improvement in the economic and labour conditions in each sector.
3. 686. The trade union organization also alleges that, by virtue of the state of emergency, trade union officials and workers have been prevented from entering trade union headquarters, with investigations and searches of headquarters being carried out without the authorization of trade union officials and without legal warrants. According to the complainant organization, the guarantee of the right to travel in the national territory has been suspended, savagely repressing the marches towards the city of Lima.
4. 687. The complainant organization alleges that more than 150 trade union officials and workers of SUTEP, SIDESP, SUTACE, FENTASE, the National Board of Irrigation Users and the Federation of Students of Peru (FEP) have been arrested, and one of the students was fatally wounded by a military unit of the armed forces.
5. 688. In its communication of 6 June 2003, the complainant organization alleges the mass dismissal of 1,117 workers at the Congress of the Republic since 5 April 1992. It states that 257 former workers lodged various complaints, with negative results. As a last resort, the complaint organization appealed to the Inter-American Commission on Human Rights of the Organization of American States, which made itself available to the parties in order to find an amicable resolution.
6. 689. The complainant organization alleges that the mass dismissal of workers of the Congress of the Republic led to the dissolution of the representative trade union, with the resulting end to collective bargaining and the guarantees of trade union immunity.

B. The Government’s reply

1. 690. With regard to the allegations relating to the issuing of Supreme Decree No. 055-2003-PCM, which provided for the suspension of constitutional rights and declared the state of emergency, the Government indicates that the need to oversee the normal progression of the State and to ensure the security of society gave rise to the recognition in the constitutional sphere of the authority of the Head of State to declare a state of emergency or siege throughout the national territory or in a part of it. According to the Government, these are exceptional situations defined by the temporary suspension of the exercise of certain constitutional rights. The President’s authority for this is laid down in article 137 of the Constitution of Peru, which provides that the decision must contain the length of time that the measure will be in place and the rights that will be affected. The Government emphasizes that, as a proportional measure during a state of emergency or siege, the guarantees of habeas corpus and protection of constitutional rights (amparo) may not be suspended.
2. 691. With regard to the allegations relating to the mass dismissal of 1,117 workers at the Congress of the Republic, the Government states that in Decrees Nos. 25438, 25640 and 25759, the Congress of the Republic proceeded with a plan of internal reorganization that culminated in the dismissal of the workers mentioned, 257 of whom lodged an action for protection of constitutional rights denying its plans. The workers concerned lodged a complaint for violation of their rights before the Inter-American Commission on Human Rights of the Organization of American States, which declared itself legally competent to hear the case in June 2000. In July 2000, the Commission invited the parties to come to an amicable resolution of the issue. This proceeding has still not been concluded.
3. 692. The Government states that, in order to resolve the conflict, the Multisectoral Commission was established and mandated to draw up a final proposal relating to the case of the 257 workers. This Commission delivered the proposed final settlement to the workers, which involved reinstatement plus financial compensation with prior evaluation by a specialized company and new contracts without recognition of length of service or accrued earnings. This proposal was rejected by the workers’ representatives who issued a counter-proposal that the Commission considered inadmissible. In these circumstances, the amicable resolution stage was considered over and the Commission on Human Rights was to send a final report.
4. 693. The Government indicates that Decrees Nos. 27452 and 27487 were issued to review the procedures carried out in order to proceed with the dismissals of the workers, which according to the workers had been unconstitutional. The Government indicates that many of the complaints lodged received unfavourable decisions or were barred. Furthermore, Decree No. 27803, issued subsequently, has provided for the establishment of an Executive Commission, made of up of representatives of the three most representative trade union confederations in order to find an alternative solution to the arbitrary or abusive collective dismissals carried out between 1990 and 2000.

C. The Committee’s conclusions

1. 694. The Committee notes that the present case refers to: (1) the mass dismissal of 1,117 workers at the Congress of the Republic because of reorganization and the complaint laid by 257 of those workers before the Inter-American Commission on Human Rights of the Organization of American States; and (2) the declaration of the state of emergency of 28 May 2003, which involved the suspension of the right to assembly, the severe repression of marches and demonstrations, the realization of investigations and searches of trade union headquarters without the authorization of trade union officials and without legal warrants and the arrest of more than 150 trade union officials and workers of the United Trade Union of Educational Workers of Peru (SUTEP), the Peruvian Union of Higher Education Teachers (SIDESP), the Unified Trade Union of Education Centre Workers (SUTACE), the National Federation of Education Administrative Workers (FENTASE), the National Board of Irrigation Users and the Federation of Students of Peru (FEP), one of the students being fatally wounded by a military unit of the armed forces.
2. 695. With regard to the mass dismissal of the 1,117 workers at the Congress of the Republic, 257 of whom lodged a complaint before the Inter-American Commission on Human Rights, the Committee notes the Government’s information that the dismissals were ordered in 1992 through Decrees Nos. 25438, 25640 and 25759. The 257 workers lodged various internal complaints that were rejected at the highest levels. Finally, the workers decided to lodge a complaint with the Inter-American Court of Human Rights, which made itself available to the parties in order to find an amicable resolution. The Committee notes that, in the framework of this amicable resolution, a Multisectoral Commission was established that did not have positive results and that, as a result, the Inter-American Commission was to issue a final report, which is still pending. The Committee also notes that, in accordance with Decree No. 27803, the establishment at the national level of an Executive Commission made up of representatives of the three most representative trade union confederations was proposed in order to find an alternative solution to the arbitrary or abusive collective dismissals that took place between 1990 and 2000. The Committee requests the Government to keep it informed of the outcome of the report of the Inter-American Commission on Human Rights and of the decisions taken by the Executive Commission established in accordance with Decree No. 27803.
3. 696. With regard to the declaration of a state of emergency on 28 May 2003, which involved, according to the allegations, the suspension of the right to assembly, the severe repression of marches and demonstrations, the realization of investigations and searches of trade union headquarters without the authorization of trade union officials and without legal warrants and the arrest of more than 150 trade union officials and workers of SUTEP, SIDESP, SUTACE, FENTASE, the National Board of Irrigation Users and the FEP, one of the students being fatally wounded by a military unit of the armed forces, the Committee notes the Government’s statement that the authority to declare a state of emergency, suspending the exercise of some constitutional guarantees, is laid down in article 137 of the Constitution of Peru, which establishes that the decision must contain the duration of the measure (in this specific case the Decree laid down a period of 30 days) and the rights that will be affected.
4. 697. While the Committee has considered that the enactment of emergency regulations which empower the Government to place restrictions on not only public assembly for trade union purposes but all public assembly, and which was occasioned by events that the Government considered to be sufficiently serious as to call for a declaration of a state of emergency, does not in itself constitute a violation of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 190], the Committee notes that from the allegations and the information in the press cuttings provided by the complainant organization it can be deduced that the latter was committed to generalized strike action that extended across the country, over a long period of time, and during which a number of roads were cut off.
5. 698. The Committee notes that, according to the allegations, the demonstrations organized by various trade unions belonging to the General Confederation of Workers of Peru (CGTP) led to severe repression by the armed forces, the arrest of 150 trade union officials and searches of the various trade union headquarters. The Committee notes that the Government does not deny these allegations. In these circumstances, the Committee requests the Government: (1) to take measures to ensure that an independent investigation is carried out into the repression exerted by the security forces during the demonstrations, and to send its observations in this respect; and (2) to inform it whether the trade union officials arrested have been released and, if they are still in custody, to ensure that they benefit from due procedural guarantees, and to inform it of the state of the proceedings under way.