Informe provisional - Informe núm. 351, Noviembre 2008

1. 242. The Committee has already examined the substance of this case on three occasions, most recently at its May–June 2007 session where it issued an interim report, approved by the Governing Body at its 299th Session [see 346th Report, paras 356–395].
2. 243. As a consequence of the lack of a reply on the part of the Government, at its May–June 2008 meeting [see 350th Report, para. 10], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government have not been received in due time.
3. 244. Cambodia 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. 245. In its previous examination of the case, the Committee made the following recommendations [see 346th Report, para. 395]:
   • (a) The Committee emphasizes once again the seriousness of the allegations pending which refer, inter alia, to the murder of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy. The Committee deeply deplores these events and once again draws the Government’s attention to the fact that such a climate of violence leading to the death of trade union leaders is a serious obstacle to the exercise of trade union rights.
   • (b) The Committee once again strongly urges the Government to reopen the investigation into the murder of Chea Vichea and to ensure that Born Samnang and Sok Sam Oeun may exercise, as soon as possible, their right to a full appeal before an impartial and independent judicial authority.
   • (c) The Committee strongly urges the Government to immediately institute independent inquiries into the murders of Ros Sovannareth and Hy Vuthy and to keep it informed of the outcome.
   • (d) The Committee strongly urges the Government to institute, without delay, independent judicial inquiries into the assaults on trade unionists, Lay Sophead, Pul Sopheak, Lay Chhamroeun, Chi Samon, Yeng Vann Nuth, Out Nun, Top Savy, Lem Samrith, Chey Rithy, Choy Chin, Lach Sambo, Yeon Khum and Sal Koem San, and to keep it informed of developments in this respect.
   • (e) The Committee requests the Government to take the necessary steps to prevent the blacklisting of trade unionists and, in particular, of the 17 trade unionists mentioned by the complainant.
   • (f) The Committee requests the Government to transmit its observations respecting the dismissal of Lach Sambo, Yeom Khun and Sal Koem San following the strike action at the Genuine Garment Factory, as well as any relevant court judgements as a matter of urgency.
   • (g) The Committee once again urges the Government to take measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and lives.
   • (h) The Committee once again expresses its deep concern with the extreme seriousness of the case and, in the absence of any significant efforts on the part of the Government to thoroughly investigate all of the above matters in a transparent, independent and impartial manner, strongly suggests that the Government accept an ILO expert mission to carry out an investigation into the above allegations and thus assist the Government in redressing any violations of trade union rights and bringing to an end the emerging climate of impunity. The Committee calls the Governing Body’s special attention to the situation.

B. The Committee’s conclusions

1. 246. The Committee deplores that, despite the time that has elapsed since the submission of this complaint, it has not received the Government’s observations, although the Government has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee strongly urges the Government to be more cooperative in the future.
2. 247. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 248. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 249. The Committee welcomes the Government’s acceptance of the ILO direct contacts mission to Phnom Penh, which took place from 21 to 25 April 2008. The direct contacts mission, which had been previously requested by the Committee and by the ILO Conference Committee on the Application of Standards in June 2007, was led by Justice Rama Pal and concerned the serious matters raised within the present case and the issues raised in comments of the Committee of Experts on the Application of Conventions and Recommendations. The Committee does observe with concern, however, from the mission report that the mission had on one occasion experienced some verbal intimidation.
5. 250. The Committee takes due note of the conclusions of the direct contracts mission and observes that one of the mission’s principal findings concerns the lack of an effective and impartial judiciary. In this respect the mission report conclusions state, firstly, that the judicial system’s ability to discharge its mandate is compromised by a lack of capacity, as evidenced for instance by the fact that court decisions and proceedings are often unrecorded and unpublished. The report further concludes, on the basis of the indications received over the course of the mission, that the judiciary is subject to political interference and has been unable to exercise its functions in an impartial and independent manner. The Committee notes this information with deep concern. Noting moreover the mission report’s conclusion that the assassinations of trade union leaders and the emerging climate of impunity in the country cannot effectively be remedied without first addressing this underlying problem, the Committee consequently urges the Government to take the necessary steps to ensure the independence and effectiveness of the judicial system, including through capacity-building measures and the institution of safeguards against corruption. It suggests that the Government have recourse to the technical cooperation facilities of the Office in this regard, notably in the area of reinforcing institutional capacity, and requests the Government to keep it informed of all steps taken in this regard.
6. 251. The Committee recalls that it had previously urged the Government to reopen the investigation into the murder of Chea Vichea and to ensure that Born Samnang and Sok Sam Oeun may exercise, as soon as possible, their right to a full appeal before an impartial and independent judicial authority. The Committee had also urged the Government to institute independent judicial inquiries into the murders of trade union leaders Ros Sovannareth and Hy Vuthy. In this connection, while taking due note of the efforts made by the Government to ensure that the mission met with those concerned in these cases, including the two persons serving prison terms for the murder of Chea Vichea, the Committee observes with deep concern the mission report’s conclusion that the Government had nevertheless demonstrated an unwillingness to engage in fully frank discussions over these serious matters, and had provided no concrete indications that it would act upon these or any of the Committee’s previous recommendations. The mission report also indicates that a hearing date has yet to be fixed for Born Samnang and Sok Sam Oeun before the Supreme Court, and that one individual, Thach Saveth, was sentenced to 15 years in prison for the murder of Ros Sovannareth, in a trial lasting one hour that was characterized by breaches of procedural rules and the absence of full guarantees of due process of law. Thach Saveth is currently serving his sentence in prison.
7. 252. In light of the above-noted information, and recalling moreover that it had previously expressed deep concern over the absence of any significant efforts on the part of the Government to thoroughly investigate all of the above matters in a transparent, independent and impartial manner, the Committee can only deplore the Government’s failure to act upon its previous recommendations on the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy. It further deplores the fact that Thach Saveth has been sentenced to prison for the murder of Ros Sovannareth, in a trial closely mirroring that of Born Samnang and Sok Sam Oeun in that it had been characterized by the absence of full guarantees of due process. In these circumstances, the Committee must once again stress the importance of ensuring full respect for the right to freedom and security of person and freedom from arbitrary arrest and detention, as well as the right to a fair trial by an independent and impartial tribunal, in accordance with the provisions of the Universal Declaration of Human Rights. The Committee yet again emphasizes, in the strongest possible terms, that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the greatest extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events. The absence of judgements against guilty parties creates in practice an atmosphere of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 48 and 52]. The Committee once again strongly urges the Government to reopen the investigations into the murders of Chea Vichea and Ros Sovannareth and to ensure that Born Samnang, Sok Sam Oeun and Thach Saveth may exercise, as soon as possible, their right to a full appeal before an impartial and independent judicial authority. The Committee also urges the Government to immediately institute an independent inquiry into the murder of Hy Vuthy.
8. 253. Finally the Committee once again urges the Government to implement the rest of its previous recommendations, which are summarized as follows:
   • – The Committee strongly urges the Government to institute without delay independent judicial inquiries into the assaults on trade unionists Lay Sophead, Pul Sopheak, Lay Chhamroeun, Chi Samon, Yeng Vann Nuth, Out Nun, Top Savy, Lem Samrith, Chey Rithy, Choy Chin, Lach Sambo, Yeon Khum and Sal Koem San, and to keep it informed of developments in this respect.
   • – The Committee requests the Government to take the necessary steps to prevent the blacklisting of trade unionists.
   • – The Committee requests the Government to transmit its observations respecting the dismissal of Lach Sambo, Yeom Khun and Sal Koem San following strike action at the Genuine garment factory.
   • – The Committee once again urges the Government to take measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.
   • – The Committee once again expresses its deep concern with the extreme seriousness of the case and the absence of any significant efforts on the part of the Government to thoroughly investigate all of the above matters in a transparent, independent and impartial manner. It calls the Governing Body’s special attention to the situation.