Informe provisional - Informe núm. 360, Junio 2011

1. 1191. The Committee last examined this case at its November 2010 meeting and presented an interim report to the Governing Body [see 358th Report, paras 984–1016, approved by the Governing Body].
2. 1192. The Single National Union of Public Employees of the Corporación Venezolana de Guayana (SUNEP-CVG) sent new allegations in communications dated 1 and 21 March 2011.
3. 1193. The Government sent its observations in a communication dated 22 February 2011.
4. 1194. The Bolivarian Republic of Venezuela 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. 1195. At its November 2010 meeting, the Committee made the following recommendations on the issues that remained pending [see 358th Report, para. 1016]:
2. (a) Regarding the alleged obstacles to the exercise of the right to strike (the complainant organization alleges that as the Puerto Ordaz labour inspectorate has not followed the legal procedure with regard to the list of demands presented by SUNEP-CVG more than three years ago calling for the enforcement of the collective agreement and for other rights, it has not been possible to lawfully exercise the right to strike in the Corporación Venezolana de Guayana (CVG)), the Committee notes that the Government has not supplied observations with regard to this allegation and therefore the Committee requests it to address, without delay, the list of demands by SUNEP-CVG so that the union can bargain collectively with the enterprise and perhaps lawfully exercise the right to strike.
3. (b) With regard to the allegations concerning the (temporary) detention and criminal prosecution of the SUTRA-CVG union leaders, Ronald González and Carlos Quijada and the unionists Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López, the Committee urges the Government to urge the judicial authority to give due consideration to the fact that the trade unionists in question were staging a peaceful protest calling for the enforcement of the collective agreement and requests the Government to inform it of the judgement handed down in relation to these trade unionists.
4. (c) With regard to the allegation concerning the criminal prosecution of the SUTISS-Bolívar trade union leaders, Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, the Committee notes that the Government has not supplied observations in this respect and requests it to send them without delay.
5. (d) With regard to the allegation concerning the criminal prosecution in 2006 of the employees of the enterprise Camila CA, Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López, the Committee requests the Government to supply a copy of the judgement that is handed down and notes that as the complaint dates back to 2006 it can only regret the delay in the court proceedings.
6. ...
7. (f) With regard to the allegation that, on 14 March 2008, the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers from Ternium-Sidor who were calling for improvements to the collective agreement that was being negotiated, resulting in several wounded, dozens of criminal prosecutions and the destruction by the authorities of 32 vehicles belonging to the workers, the Committee, while noting that, according to the Government, a group of some 80 workers was blocking the traffic with cars and burning tyres and throwing heavy objects at the members of the national guard unit, injuring several officers, and requests the Government to supply a copy of the judgement that is handed down, notes the delay in the legal proceedings and requests the Government to carry out an investigation into the allegations concerning the excessive use of public force which resulted in serious injuries and property damage.
8. (g) With regard to the alleged detention since September 2009 and criminal prosecution of trade union leader Rubén González for protesting against the failure by CGV Ferrominera Orinoco CA (Puerto Ordaz) to honour the commitments set out in the collective agreement, the Committee considers that the events as alleged by the Government against the union leader do not justify his preliminary detention or house arrest since September 2009 and requests that he be released without delay pending judgement and appropriately compensated for his inappropriate detention. The Committee requests the Government to supply a copy of the judgement that is handed down.
9. B. New allegations from the complainant
10. 1196. In its communication dated 1 March 2011, the complainant organization reports that on 28 February 2011, the general secretary of the trade union of CGV Ferrominera Orinoco (SINTRAFERROMINERA), Mr Rubén González, was sentenced by a criminal court judge to a prison term of seven years, six months, 22 days and seven hours for having exercised the right to strike and freedom of association in general. The complainant organization adds that the judgment handed down will only be published after ten days and that it will be sent to the Committee. The complainant organization requests the Committee to reach a conclusion as a matter of urgency in order for the sentence to be reviewed and the Government to take effective measures to release Mr Rubén González as soon as possible, and to avoid any future action by the State criminalizing trade union activities.
11. 1197. In its communication of 21 March 2011, the complainant organization states that after it had informed the Committee on Freedom of Association of Mr Rubén González’s prison sentence, he was unexpectedly released three days after being sentenced, by decision of the criminal division of the Supreme Court of Justice, a copy of which is attached. However, the trade unionist has been released on parole and prohibited from leaving the country without court authorization, which shows the extent to which the judiciary is controlled by the Government. What happened was that, faced with the angry response of the public to the conviction, expressed in serious and potentially long-lasting protests, the criminal division of the Supreme Court of Justice promptly took over the case, through the procedure known as writ of certiorari (avocamiento), and overturned the judgment handed down by the court of first instance on the grounds that it was “unfounded”. The complainant organization points out that it is important to note the timing of the criminal division’s manoeuvre and the content of its decision: the division took over the examination of the case file before it could even have taken cognizance, technically speaking, of the judgment it overturned, since that judgment had not even been published (at the hearing only the substantive part had been read, and the judge had given a summary of the considerations of fact and law on which the decision was founded).
12. 1198. As regards the content of the decision handed down by the criminal division, it merely demonstrates why the judgment of the court of first instance was unfounded, but fails to stipulate that Mr Rubén González was falsely accused, or to address the criticism levelled by the supervisory bodies against these accusations, in particular with regard to security zones. Neither does it take account of the constitutional and legal provisions on freedom of association and the right to strike. The new judge will thus feel justified in basing his judgment on a purely criminal approach. In conclusion, Mr Rubén González’s legal status has not changed, since in effect the conviction was overturned, but he is still subject to proceedings and awaiting a new judgment, with the added circumstance that the judgment will be handed down by a criminal court judge of the Caracas metropolitan area, some 700 kilometres from Mr Rubén González’s place of residence. His defence will thus be more difficult in every sense and more expensive. The criminal division condescended to take into consideration the fact that Mr Rubén González deserved to be tried in freedom and therefore granted him release on parole, on its own initiative; but it should be recalled that he was deprived of freedom for 17 months in obscure circumstances.
13. C. The Government’s reply
14. 1199. As regards the SUNEP-CVG list of demands and collective bargaining, the Government states that according to information provided by the Alfredo Maneiro labour inspectorate in Puerto Ordaz, Bolivar State, a list of demands presented by the SUNEP-CVG is currently being negotiated with the Corporación Venezolana de Guayana (CVG) and only four of the 21 initial bargaining items remain to be discussed.
15. 1200. As regards the SUTRA-CFG union leaders Ronald González and Carlos Quijada and the unionists Adonis Rangel Centeno, Elvis Loran Azocar and Darwin López, the Government states that, as a result of the events that occurred on 6 October 2009 on the premises of the preschool establishment of the CVG, the Office of the Public Prosecutor filed charges against the persons concerned and, at the preliminary hearing, ordered a precautionary measure consisting in prohibiting the disruption or hindrance of work at the enterprise. The case has now gone to trial and the oral hearing is scheduled for 13 March 2011.
16. 1201. As regards the SUTISS-Bolivar trade unionists Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, and the employees of the Camila CA enterprise Richard Díaz, Osmel Ramírez Malavé, Julio César Soler, Agdamatir Antonio Rivas, Luis Arturo Anzola, Argenis Godofredo Gómez and Bruno Epitafio López, the Government states that on 29 September 2006, the Office of the Public Prosecutor received a complaint from the representatives of the enterprise, alleging that, on 26 August 2006, the individuals in question violently and without the authorization or consent of any representative of the enterprise forcefully took possession of six machines and refused to return them, paralysing the industrial activities being carried out in various parts of the enterprise. On 21 July 2007, the Office of the Public Prosecutor charged the abovementioned individuals with aggravated misappropriation, restriction of the freedom to work and taking the law into their own hands, as provided in the Venezuelan Penal Code. At the preliminary hearing, held on 25 September 2009, the charges were admitted and a precautionary measure consisting of the requirement to report periodically to the court was applied; the persons concerned are thus free, and the order was issued for the case to go to trial. The public oral hearing was scheduled and deferred on several occasions owing to failure of the accused parties to appear. The Office of the Public Prosecutor reported that on 11 January 2011 the accused individuals presented themselves at the trial court and a date is to be fixed by the judicial authority for the oral hearing.
17. 1202. As regards section 56 of the Organic National Security Act, the Government states that this Act of 2002 is intended to regulate the activity of the State and society with respect to security and full defence, in accordance with constitutional guidelines, principles and objectives. The security of the nation is fundamental to full development, and is the condition, status or situation which ensures that the population, institutions and each of the persons that make up the State and society enjoy and exercise the rights and guarantees in the economic, social, political, cultural, geographic, environmental and military spheres of the constitutional principles and values. The State and society are jointly responsible for the security and full defence of the nation, and the different activities carried out in the economic, social, political, cultural, geographic, environmental and military spheres shall be aimed at guaranteeing the fulfilment of the national interests and objectives laid down in the Constitution and laws. The scope of full defence and security is circumscribed by the provisions laid down in the Constitution and the laws of the Republic, and in the international treaties, covenants and conventions signed and ratified by the Republic. Specifically, section 56 of the Act regulates and penalizes the organization, instigation or execution of activities intended to disrupt or adversely affect the organization and operation of public services, military facilities, core industries and enterprises or the social and economic life of the country.
18. 1203. As regards the acts carried out by the national guard and the police on 14 March 2008, as a result of a gathering of workers of Ternium-Sidor, the Government states that these acts occurred when a group of individuals were obstructing vehicle traffic with private cars and burning tyres, throwing heavy objects at the members of the national guard, injuring several officers (Raúl Mora, Alexander Marin Bucarelo, Pastran Comentes). The demonstrators threw stones, bottles and iron briquettes, resulting in action by the national guard and the state police, and the detention of several persons for these acts of violence and the alleged obstruction and closure of thoroughfares; the court ordered the initiation of ordinary proceedings without imposing any custodial measures.
19. 1204. As regards the detention of Mr Rubén González, the Government states that on 26 September 2009, as the Committee on Freedom of Association already knows, the Office of the Public Prosecutor charged that individual with public order offences such as incitement to commit an offence, illegal assembly, restriction of freedom to work, and breach of the special security zone arrangements. The court received the charges and ordered the house arrest of the accused. As regards the precautionary measure imposed on 19 January 2010, the competent court issued a finding of non-compliance, and therefore revoked it, setting 15 March 2010 as the date of the preliminary hearing, which the defence counsel for the accused failed to attend. The hearing was subsequently held in the court of preliminary proceedings (Tribunal de Control), which admitted the charges brought by the Office of the Public Prosecutor against Mr Rubén González, and consequently, the case is currently under trial. The trial began on 3 November 2010. On 22 February 2011, hearing No. 27 was held in the competent criminal court; the closing session of the trial is scheduled for 28 February, when a ruling may be handed down by the judge. The trial is thus in full progress.
20. 1205. As regards the alleged criminalization of trade union protest action and public demonstrations, the Government categorically rejects, once again, the assertion that criminalization of protest action is a Venezuelan Government response to public demonstrations. The Venezuelan legal system and the State guarantee and protect, in practice and in law, the right to protest, to hold public demonstrations and to strike, in accordance with the national Constitution and the law, in so far as such demonstrations do not cause irreparable damage to the population or to institutions. The proceedings initiated by the Venezuelan state authorities against the persons referred to by the complainant organization in the present complaint, were in response to illegal acts and conduct, and not to activities related to the exercise of trade union rights. In this regard, ILO Convention No. 87 stipulates the trade union rights that should be guaranteed for workers for the exercise of full freedom of association, as follows:
21. – without distinction whatsoever, to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization;
22. – to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes;
23. – to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers.
24. 1206. Article 8 of the same Convention No. 87 provides that “In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.”
25. 1207. In this country, each of the rights laid down in Convention No. 87 on freedom of association is respected and guaranteed, and in no case does the discharge by the Venezuelan state authorities of their responsibilities to ensure compliance with national law have a detrimental and deterrent effect on the exercise of trade union rights, as pointed out by the Committee itself.
26. 1208. The Government states that neither the Committee on Freedom of Association nor any supervisory body of the ILO can call for the law and sentences to be applied to some and not to others, when there are acts that are classified as offences or illegal acts penalized under Venezuelan law and which warrant investigation in order to secure a conviction where applicable or acquittal where this is not the case.

D. The Committee’s conclusions

1. 1209. With regard to the alleged obstacles to the exercise of the right to strike (the complainant organization alleges that, as the Puerto Ordaz labour inspectorate has not followed the legal procedures with regard to the list of demands presented by the SUNEP-CVG more than three years ago calling for the enforcement of the collective agreement and for other rights, it has not been possible to lawfully exercise the right to strike in the CVG), the Committee notes the Government’s statement to the effect that the list of demands presented by the SUNEP-CVG is currently being negotiated with the CVG and only four of the 21 initial bargaining items remain to be discussed. In view of the lengthy delay in the bargaining process, the Committee expects that the collective agreement will be signed as soon as possible and requests the Government to keep it informed in this regard.
2. 1210. With regard to the allegations concerning the (temporary) detention and criminal prosecution of the SUTRA-CVG union leaders Ronald González and Carlos Quijada and unionists Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López, the Committee had urged the Government, in its previous examination of the case, to urge the judicial authority to give due consideration to the fact that the trade unionists in question were staging a peaceful protest calling for the enforcement of the collective agreement and requested the Government to inform it of the judgment handed down in relation to those trade unionists. The Committee notes that the Government states that the Office of the Public Prosecutor filed charges against those individuals as a result of the events that occurred on 6 October 2009, on the premises of the preschool establishment of the CVG and that, at the preliminary hearing, a precautionary measure was ordered consisting in prohibiting the disruption or hindrance of work at the enterprise; the trial is now under way, according to the Government, and the oral hearing is scheduled for 13 March 2011. The Committee reiterates its previous conclusions and requests the Government to inform it of the judgment handed down by the judicial authority.
3. 1211. With regard to the allegations concerning the criminal prosecution of the SUTISS-Bolívar trade union leaders Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, and the criminal prosecution in 2006 of the employees of the enterprise Camila CA, Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López, the Committee takes note of the statements by the Government, according to which: (1) on 29 September 2006, the Office of the Public Prosecutor received a complaint from the representatives of the enterprise alleging that, on 26 August 2006, the individuals in question violently and without the authorization or consent of any representative of the enterprise forcefully took possession of six machines and refused to return them, paralysing the industrial activities being carried out in various parts of the enterprise; (2) on 21 July 2007, the Office of the Public Prosecutor charged the abovementioned individuals with aggravated misappropriation, restriction of freedom to work and taking the law into their own hands, as provided in the Venezuelan Penal Code; at the preliminary hearing, held on 25 September 2009, the charges were admitted and a precautionary measure applied consisting of the requirement to report periodically to the court; the persons concerned are thus free, and the order was issued for the case to go to trial. The public oral hearing was scheduled and deferred on several occasions owing to failure of the accused parties to appear; and (3) the Office of the Public Prosecutor reported that on 11 January 2011, the accused individuals presented themselves at the trial court and a date is to be fixed by the judicial authority for the oral hearing.
4. 1212. The Committee urgently requests the Government to communicate the judgment handed down in regard to these trade union leaders and workers and, in view of the fact that the events in question date back to 2006 and that these trade unionists are required to report periodically to the court, expects that the judgment will be handed down in the near future. In this regard, the Committee recalls that justice delayed is justice denied.
5. 1213. With regard to the allegation that, on 14 March 2008, the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers from Ternium-Sidor who were calling for improvements to the collective agreement that was being negotiated, resulting in several wounded, dozens of criminal prosecutions and the destruction by the authorities of 32 vehicles belonging to the workers, the Committee, having noted in its previous examination of the case that, according to the Government, a group of some 80 workers was blocking traffic with cars and burning tyres and throwing heavy objects at the members of the national guard unit, injuring several officers, requested the Government to supply a copy of the judgment that is handed down, noted the delay in the judicial proceedings and requested the Government to carry out an investigation into the allegations concerning the excessive use of public force which resulted in serious injuries and property damage. The Committee notes the Government’s reply to the effect that: (1) it reiterates that the these acts occurred when a group of individuals were obstructing vehicle traffic with cars and burning tyres, throwing heavy objects at the members of the national guard, injuring several officers (Raúl Mora, Alexander Marin Bucarelo, Pastran Comentes); (2) according to the Government, the demonstrators threw stones, bottles and iron briquettes, resulting in action by the national guard and the state police, and the detention of several persons for these acts of violence and the alleged obstruction and closure of thoroughfares; the court ordered the initiation of ordinary proceedings without imposing any custodial measures. The Committee reiterates its conclusions in the previous examination of the case.
6. 1214. With regard to the allegation concerning the detention since September 2009 and criminal prosecution of union leader Rubén González, for protesting against the failure by the enterprise CGV Ferrominera Orinoco CA (Puerto Ordaz) to honour the commitments set out in the collective agreement, the Committee considered in its previous examination of the case, that the events, as alleged by the Government, do not justify his preliminary detention or house arrest since September 2009 and requested that he be released without delay pending judgment and appropriately compensated for the damages suffered. The Committee notes that the Government reiterates that on 26 September 2009, the Office of the Public Prosecutor charged that individual with public order offences such as incitement to commit an offence, illegal assembly, restriction of freedom to work, and breach of the special security zone arrangements, and that the court received the charges and ordered the house arrest of the accused. The Committee notes that the Government states that, as regards the precautionary measure (house arrest) imposed on 19 January 2010, the competent court issued a finding of non-compliance, and therefore revoked it, setting 15 March 2010 as the date of the preliminary hearing, which the defence counsel for the accused failed to attend. The hearing was subsequently held in the court of preliminary proceedings (Tribunal de Control), which admitted the charges brought by the Office of the Public Prosecutor against Mr Rubén González, and consequently the case is currently under trial. The Committee notes that the Government concludes by stating that the trial began on 3 November 2010; on 22 February 2011, hearing No. 27 was held in the competent criminal court; the closing session of the trial is scheduled for Monday 28 February, when a ruling may be handed down by the judge in this case, and that the trial is thus in full progress.
7. 1215. The Committee takes note of the new allegations of the complainant organization to the effect that on 28 February 2011, trade union leader Rubén González was sentenced by a criminal court judge to a prison term of seven years, six months and 22 days, although he was unexpectedly released on parole three days after being sentenced, the judgment having been overturned by decision of the criminal division of the Supreme Court of Justice on the grounds that it was unfounded; the trade union leader is thus awaiting a new judgment, which will be handed down by a criminal court judge 700 kilometres from his place of residence (the complainant organization points out that he was deprived of freedom for 17 months).
8. 1216. The Committee regrets the delay in the criminal proceedings relating to the trade union leader Rubén González and the lack of adequate grounds for the judgment handed down by the judge in the case, and requests the Government to inform it of the new criminal judgment to be handed down. The Committee reiterates its previous recommendation, considering that the events, as alleged by the Government, do not justify his preliminary detention or house arrest since September 2009, and requests that he be appropriately compensated for the damages suffered.