Informe provisional - Informe núm. 371, Marzo 2014

1. 670. The complaint is contained in a joint communication by the General Confederation of Workers of Peru (CGTP) and the Federation of Civil Construction Workers of Peru (FTCCP) dated 20 August 2012. In a communication of 29 November 2013, the Confederation of Workers of Peru (CTP) made allegations related to the initial complaint.
2. 671. The Government provided its observations in communications dated 23 October 2012, 17 September, 15 November and 20 December 2013, and 3 February 2014.
3. 672. 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 complainants’ allegations

1. 673. In their communication of 20 August 2012, the CGTP and the FTCCP allege the murder of union leaders and workers in the construction sector for the sole reason that they belonged to the FTCCP. The alleged murders were committed in the context of extortion by mafia and criminal groups posing as workers’ unions, which offer “protection” or “security” to businesses and charge workers for being able to work, and force them to give up their membership of the FTCCP, and instead to join their pseudo-unions. This situation of violence and threats, which has already been examined by the Committee on Freedom of Association, and which began in 2006, has also since the time of the previous Government involved police officers, whose complicity with these criminal groups has given rise to the linking of criminality and corruption. This has created a climate of intimidation and violence, which seriously hinders union activities. The struggle for the control of civil construction works also frequently results in confrontations between mafia groups organized under the previous Government.
2. 674. More specifically, the complainant organizations allege that in 2012 these criminal groups murdered the following union leaders:
   • – Carlos Armando Viera Rosales, organizing secretary of the Callao Civil Construction Union, on Friday, 10 February 2012 at 7.30 a.m. by three hired killers who fired four bullets at him as he left home to carry out his daily union duties. This leader had had the courage to denounce the mafia groups in Ventanilla which, with political protection and infamously using the honourable name of scaffolding workers, engage in extortion from engineers and construction companies.
   • Police officers in the Ventanilla Criminal Investigation Department, in coordination with officers of the tactical action (SUAT) and intelligence services of the Callao regional police force, succeeded in identifying and capturing the suspected murderer of Armando Viera Rosales, who was detained by judicial order in the Sarita Colonia Prison in Callao and was released three months later.
   • – Guillermo Alonso Yacila Ubillus, Deputy Secretary-General of the Callao Civil Construction Union and Secretary-General of the Callao branch of the CGTP, who was murdered by shots fired by hired killers as he left the union offices to go home at approximately 7.45 a.m. on 3 July 2012. The police in the province of Callao are currently investigating the case, but the results of the investigation are not yet known.
   • – Rubén Snell Soberón Estela, Deputy Secretary-General of the Chiclayo Union and general coordinator of the Lambayeque regional section of the FTCCP, who was murdered on 7 August 2012 at 7.30 a.m., on his way from his home to a meeting with unemployed civil construction workers at the Elías Aguirre stadium in Chiclayo. Two criminals shot him directly in the head and chest, causing his immediate death. This occurred at a time when the FTCCP was publicly denouncing death threats against its Secretary-General, Wilmar Zegarra Bonilla, in which certain elements of the national police and the illegal organization led by the criminal known as “Viejo Paco” were reported to be involved.
   • – The complainant organizations emphasize that up to now those responsible for the murders committed in 2012 have not been identified, despite the evidence that they are the result of illegal action by the criminal mafia, whose members are known even to the national police.
3. 675. The complainant organizations also allege the murder of the following members of the FTCCP: (1) Jorge Antonio Vargas Guillén, murdered on 19 August 2011, in the district of Pacasmayo – La Libertad, whose alleged murderers have been identified as Alberto Rojas Paucar and Ana Cecilia Guevara Biminchumo; (2) Luis Esteban Luyo Vicente, murdered on 31 January 2012, in the district of Imperial, Cañete province, for which Adrián Rojas Ore and Artemio López Flores have been identified as responsible, acting in complicity with others who have not been identified. In both cases, the Homicide Investigation Department of the DIRINCRI of the Peruvian national police handed the perpetrators over to the Public Prosecutor’s Office to be charged by the judiciary, which, however, appears not to have taken any action; and (3) Rodolfo Alfredo Mestanza Poma, murdered on 17 June 2011 in the district of Ancón (Lima), where he was engaged in building a road from Ancón to the city of Pativilca (Huacho), with solid evidence of the responsibility for the crime of pseudo-union leaders. The Homicide Investigation Department of the DIRINCRI of the Peruvian national police is investigating the case. The complainant organizations note that the outcomes of the investigations and proceedings in relation to these serious crimes against workers show the lack of interest and ineffectiveness of the authorities, as well as the ineffectiveness of the Public Prosecutor’s Office and the judiciary.
4. 676. The complainant organizations emphasize that the present Ministry of Labour and Social Protection is resisting carrying out a review of the innumerable registrations of pseudo unions by the previous Government, which include criminal groups that did not meet the minimum legal requirements, such as having construction workers in their membership.
5. 677. According to the complainant organizations, violence in construction work has increased recently. Although, at the request of the complainants, the current Government has demonstrated the political will to eradicate this problem by creating a Multi-Sectoral Commission to review the situation and propose solutions, the activities of the criminal groups have increased, as demonstrated by the alleged murders. The Multi-Sectoral Commission can, where necessary, require public and private entities and offices to provide statistical reports and other information necessary for it to discharge its functions, investigate informal labour in the construction sector and violence in construction work.
6. 678. The FTCCP has proposed measures for the elimination of violence in the construction sector, including: the review of the registration of unions, to ensure that they are only composed of construction workers, and not of criminals; the establishment of a single national register of construction workers; the decentralization and provision of infrastructure and financial support to the Department for the Protection of Civil Construction Works (DIVPROC) to ensure that it has national coverage; and effective coordination with the Public Prosecutor’s Office and the judiciary. However, action has not been taken on these proposals.
7. 679. The criminal mafias, organized under the previous Government, use their cover as “registered unions” to make inroads into institutions. They replaced the representative of the complainant organization on the board of the National Construction Industry Training Service (SENCICO), a public institution. The pseudo-unions are also planning to destabilize the complainant federation, and are trying to enter the CONAFOVICER, with the tacit acceptance of the Ministry of Labour and Social Protection, where their claims are being processed.

B. The Government’s reply

1. 680. In its communication of 23 October 2012, the Government reaffirms that the State of Peru, in accordance with international law, and as a legal entity governed by the relevant international and national standards, does not promote “pseudo-unions”, but encourages, defends and promotes freedom of association, and the right of all citizens to associate freely, as set out in the Magna Carta (Constitution):
   • Article 28. The State recognizes the right of workers to join trade unions, to engage in collective bargaining and to strike. It ensures their democratic exercise:
     • 1. It guarantees freedom for forming trade unions.
     • 2. It encourages collective bargaining and promotes peaceful settlement to labour disputes.
     • Collective agreements are binding in the matters concerning their terms.
     • 3. It regulates the right to strike so that it is exercised in harmony with social interest. It defines exceptions and limitations.
2. 681. In addition, the Collective Labour Relations Act (Supreme Decree No. 010-2003-TR) provides:
   • Section 2. The State recognizes the right of workers to organize, without previous authorization, for the study, development, protection and defence of their rights and interests and the social, economic and moral improvement of their members.
   • Section 3. Membership shall be free and voluntary. The employment of a worker may not be made conditional upon membership, non-membership or renunciation of membership, nor shall the worker be obliged to join a union, or prevented from so doing.
   • Section 4. The State, employers and their representatives shall refrain from any action which limits, restricts or diminishes, in any way, the right of workers to organize, and from interfering in any way with the establishment, administration or operation of unions established by workers.
3. 682. The Government refers to the specific measures that the State has taken to combat violence in civil construction. Aware of the problem, in 2010 the Peruvian State created, through the Ministry of the Interior, a special police unit to investigate and try to control these crimes, with the title of the Specialized Police Department for the Protection of Construction Works (DIVPROC) of the Peruvian national police. Its mission is to guarantee the execution of civil works and to prevent fraudulent civil construction workers from engaging in extortion against businesses in the sector.
4. 683. This Department initially operated in the city of Metropolitan Lima, but at the request of the unions new units have been established in cities in the regions of Lambayeque, Ica, and recently in Ancash.
5. 684. The Government points out that, in general, the violence in civil construction has its origins in the disputes between unions to control construction works through jobs for their members. This situation has led to complaints by union members against one another, including accusations of attempted murder and threats to their safety and health (as well as many others), which the appropriate authorities are currently investigating. The Government indicates that the State, through the Office of the President of the Council of Ministers and Supreme Decision No. 173-2012-PCM, has established a Multi-Sectoral Commission, chaired by the Ministry of Labour and Employment Promotion, and including representatives of the ministries of the interior, housing, transport and justice, and of regional and local governments. The purpose of the Multi-Sectoral Commission is to prepare a report on the civil construction sector with a view to promoting measures to formalize labour and eliminate violence in the sector. The technical secretariat of the Multi-Sectoral Commission is provided by the General Directorate of Labour of the Ministry of Labour. The Commission was established on 4 July 2012, when it was agreed that:
   • – a representative of the Public Prosecutor’s Office would have a standing invitation, in view of the importance of the penal aspects covered by the Commission;
   • – a representative of the Peruvian Chamber of Construction (CAPECO) and representatives of the most representative unions would be invited to the following sessions;
   • – both preventive and enforcement action would be taken. The preventive action would consist of: the establishment of a register of works, to specify the location of works and the number of jobs; and the establishment of a register of construction workers, based on a certification process with a view to the professionalization of the sector; and
   • – tripartite management would be adopted for the standardization of skills, vocational training, etc.
6. 685. The Multi-Sectoral Commission approved a workplan at its meeting on 18 July 2012. It also decided to set up a working group comprising the Directorate of Employment, the CAPECO and the most representative unions, to evaluate the process of the standardization and accreditation of skills; and a working group comprising the Public Prosecutor’s Office, the Ministry of the Interior, DIVPROC and SENCICO to prepare an enforcement strategy.
7. 686. Meetings have been continuing to propose and implement action in partnership with the unions, with greater priority being given to the registration of unions.
8. 687. As the Committee on Freedom of Association can see, the State promotes freedom of association, taking care not to interfere in the establishment, administration or functioning of unions. The claims of the complainant organizations are not therefore logical, as it is the State that ensures that there are no acts that impede the right to organize, and that union activities are carried out appropriately, in accordance with the law.
9. 688. The allegations in the present case pertain to criminal matters, for which reason the complainants should apply to the relevant authority, namely the Public Prosecutor’s Office, which is competent to initiate investigations and level charges against those responsible. These crimes do not fall within the mandate of the Committee.
10. 689. With regard to the allegations pertaining to the registration of unions, the Government explains the procedure, in which the initial entry in the register of unions (an administrative process) generates an administrative file number, which is unique. Subsequent entries (changes to the statutes and in the executive board) are separate administrative procedures, each governed by the specific requirements set out in the Single Text on Administrative Procedures (TUPA) of the Ministry of Labour and Employment Promotion. These subsequent procedures are initiated by the union, and are assigned a registration number and added to the file created for the original registration of the union, so that there is a record of all the union’s acts in relation to the same administrative authorities.
11. 690. The Government emphasizes that these procedures are considered in the TUPA of the Ministry of Labour and Employment Promotion to be automatically approved, in accordance with section 17 of Supreme Decree No. 010-2003-TR, the single complete text of the Collective Labour Relations Act, and section 22 of the regulations under the Act, approved by Supreme Decree No. 011-92-TR. Peruvian jurisprudence has indicated that this type of procedure is based on the presumption of truthfulness, which means that the administrative authorities have to assume from then on that the documents and declarations submitted by unions are genuine. Therefore, in accordance with section 31(1) of Act No. 27444, the General Administrative Procedures Act, such procedures are considered to be approved based on the mere submission of the required documents, provided that they meet the requirements established by the TUPA.
12. 691. The following documents therefore have to be submitted (as set out in points 18 and 19 of the TUPA): an application in the form of a sworn declaration, in the appropriate format, indicating the name and address of the enterprise in which they operate, where appropriate; and originals, or copies certified by a public notary, or if not by the justice of the peace of the district, of the following additional documents:

    • TUPA 18: Unions	TUPA 19: Federations and confederations
      ■ Minutes of the constituent general assembly of the union, which shall include the given names, family names, identity documents and signatures of those present, as well as the title of the union, the approval of the statutes and the list of those elected to the executive board, indicating the length of their mandate.	■ Minutes of the constituent general assembly of the federation or confederation, which shall include the given names, family names, identity documents and signatures of those present, as well as the title of the union organization, the approval of the statutes and the list of those elected to the executive board, and the length of their mandate.
      ■ Statutes (typed).	■ Statutes (typed).
      ■ Lists of the members with their given names and family names, profession, position or specialization, national identity document number and certificate of military service, where applicable, and date of membership.	■ The list of the affiliates (unions or federations), as appropriate, duly registered by the Administrative Labour Authority, indicating the registration number or the registration decision, and the office where they are registered.

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13. 692. The Government adds that it is therefore clear that the TUPA merely establishes formal requirements, under the terms of which the responsible authority makes an assessment based on a review of the documents submitted. If a union provides all the necessary documentation, the authority issues a certificate of registration of the union. This procedure is based on section 17 of the single complete text of the Collective Labour Relations Act, which provides that the union shall be entered into the corresponding register kept by the labour authority. Registration is a formal procedure, not a constituent act, and cannot be refused, except in the case of failure to comply with the respective requirements. It should also be noted that the registration of a union confers upon it trade union status, allowing it to conduct the activities described in the single complete text of the Collective Labour Relations Act. It should also be noted that this procedure is in accordance with Article 2 of ILO Convention No. 87 on freedom of association, which provides that:
    • Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
14. 693. For all the above reasons, the Government requests the Committee to set the case aside.
15. 694. In its communication of 17 September 2013, the Government provides information supplied by the Second Office for Expeditious Decisions of the Second Office of the Provincial Corporate Criminal Prosecutor of Cañete relating to the investigations into the death of Luis Esteban Luyo Vicente. According to this information, the following have been detained for their active participation in the confrontation involving the use of firearms led by the brothers Manuel and Edwin Sanchez Villa, and Francisco and Alfredo Vargas Cambillo: Adrián Rojas Oré, Juan Artemio López Flores, Leopoldo Dante Escobar, Jorge Luis Gutiérrez Villalobos, Jorge Espilco Vilcapuma, Jorge Villa Huamán and Steven Gabriel Flores Ormeño. These men attacked the civil construction workers of Imperial, fatally wounding Luis Esteban Luyo Vicente, who died on 31 January 2012. In addition, it reports the detention of Héctor Augusto Villaruvia Lázaro for crimes against the public administration, violence and resisting authority. At present, the case is at the second stage of common criminal proceedings, that is the intermediary stage, awaiting the determination of the date and time of the trial by the Second Court of Preparatory Investigation once criminal charges have been brought against the presumed perpetrators at the corresponding hearing.
16. 695. In its communications of 15 November and 20 December 2013 and 3 February 2014, the Government provides information on the investigations into the deaths of Carlos Armando Viera Rosales, Guillermo Alonso Yacila Ubillus, Rodolfo Alfredo Mestanza Poma, Rubén Snell Soberón Estela (this case involves a considerable number of accused) and Jorge Antonio Vargas Guillén, which have been entrusted to the appropriate Offices of the Public Prosecutor, namely: that of Carlos Armando Viera Rosales by the 13th Office of the Provincial Criminal Prosecutor of Callao; Guillermo Alonso Yacila Ubillus by the Sixth Office of the Provincial Criminal Prosecutor of Callao; Rodolfo Alfredo Mestanza Poma by the Office of the Criminal Prosecutor of Huara-Huacho; Rubén Snell Soberón Estela by the Second Office of the Corporate Provincial Prosecutor of Chiclayo – José Leonardo Ortiz; and Jorge Antonio Vargas Guillén by the Office of the Provincial Prosecutor of the Second Office of the Joint Corporate Prosecutor of Pacasmayo.
17. 696. The reports attached by the Government indicate that it has been possible to identify and detain the suspected murderers of Carlos Armando Viera Rosales, Luis Esteban Luyo Vicente and Rubén Snell Soberón Estela; that in the case of Jorge Antonio Vargas Guillén, one of the murderers was sentenced to 20 years in prison; that there is plausible evidence that the three persons identified had an interest in killing Guillermo Alonso Yacila Ubillus; and that the two murderers of Rodolfo Alfredo Mestanza Poma have not been identified. In its communication dated 3 February 2014, the Government provides very detailed information on the status of investigations and of the numerous judicial proceedings in relation to the murders of Guillermo Alonso Yacila Ubillus and Rubén Snell Soberón Estela.

C. The Committee’s conclusions

1. 697. The Committee notes with deep concern the allegations made by the CGTP and the FTCCP relating to the murder in 2012 of three union leaders in the civil construction sector (Carlos Armando Viera Rosales, Guillermo Alonso Yacila Ubillus and Rubén Snell Soberón Estela) and three union members (Jorge Antonio Vargas Guillén, Luis Esteban Luyo Vicente and Rodolfo Alfredo Mestanza Poma), as well as the climate of violence, threats and extortion by criminal mafia groups and pseudo-unions. According to the allegations, police officers have been involved in the situation since the previous Government, and the violence is sometimes caused by confrontations between organized mafia groups seeking control of construction projects. The complainant organizations also allege a lack of interest and effectiveness by the authorities and the impunity of the groups committing the crimes. The complainant organizations further allege the maintenance by the authorities of the registration accepted by the previous administration of a number of pseudo-unions, and the progressive entry of a number of the latter into official institutions, to the detriment of the FTCCP.
2. 698. With regard to the allegations of the murder of three union leaders and three union members, the Committee, while deeply deploring these acts, notes the Government’s explanations that generally the reason for the violence in civil construction lies in the disputes between unions for the control of construction works through jobs for their members. The Committee observes the Government’s indication that to combat the problem of violence in civil construction: (1) the Specialized Police Department for the Protection of Construction Works of the Peruvian national police was set up in 2010 to investigate and attempt to control these crimes, ensure the execution of civil construction works and prevent false civil construction workers from engaging in the extortion of companies; the Department operated initially in Lima and, at the request of the unions, new units have been established up to now in cities in three regions; and (2) a Multi Sectoral Commission was established in 2012 composed of representatives of five different ministries and of regional and local governments, which has issued a standing invitation to a representative of the Public Prosecutor’s Office and to representatives of the most representative unions and of the Peruvian Chamber of Construction; it was also agreed in 2012 to establish a tripartite working group to assess the process of the standardization and accreditation of skills, and a working group comprising different authorities to define an enforcement strategy. The Multi-Sectoral Commission is adopting a preventive approach by establishing a register of construction works, specifying the location of the works and the number of jobs, and a register of construction workers based on a certification process with a view to the professionalization of the sector, as well as adopting a tripartite management system for the standardization of skills, vocational training, etc. However, the Multi-Sectoral Commission is also adopting a repressive approach involving measures for the eradication of violence. The Committee notes the Government’s indication that the Public Prosecutor’s Office is competent to initiate the respective investigations, including when the complainants lodge complaints concerning crimes, for which reason the Government considers that the present case does not lie within the competence of the Committee. In this regard, the Committee wishes to point out that the violent criminal acts alleged by the unions in this case, while having occurred against the background of an inter-union struggle, affect union leaders and employers in the exercise of their activities, and that they therefore lie fully within its function of the defence of freedom of association and the right to organize; furthermore, the alleged murders are prolonging a situation of violence in the construction sector which has given rise, for example, to an earlier report by the Committee [see its 368th Report, Case No. 2883, paras 799–810]; and lastly, it is clear that the rights of workers, employers and their organizations cannot be exercised properly in a climate of violence, threats and fear.
3. 699. The Committee notes that the detailed information from the Public Prosecutor’s Office on the status of the investigations, provided by the Government, reveals that: (1) the perpetrators of the murders of Carlos Armando Viera Rosales, Rubén Snell Soberón Estela (according to the Government, this case involves a large number of accused), Luis Esteban Luyo Vicente and Jorge Antonio Vargas Guillén have been identified and detained (in the case of the latter trade unionist, one of the murderers was sentenced to 20 years in prison); (2) there is plausible evidence that the three persons identified had an interest in killing the trade unionist Guillermo Alonso Yacila Ubillus; and (3) the perpetrators of the murder of Rodolfo Alfredo Mestanza Poma have not yet been identified. The Committee firmly expects that in the near future the current criminal investigations will identify all of the perpetrators and instigators of the murders, that responsibilities will be clearly identified and that those found guilty will be severely punished. The Committee requests the Government to keep it informed in this regard, and also on the progress of the criminal proceedings.
4. 700. The Committee appreciates the measures taken to combat the violence in the construction sector (the Multi-Sectoral Commission and its various working groups; the division of the Specialized Police Department for the Protection of Construction Works of the Peruvian national police), which are aimed at engaging in coordinated preventive action and enforcement by all the central and local authorities, with the participation of the Public Prosecutor’s Office and the most representative unions and employers’ organizations. The Committee invites the Government to continue taking measures in the framework of the existing tripartite dialogue. The Committee, however, observes the intolerable nature of the situation of violence in the sector and the need for further measures for its eradication. In this regard, the Committee expresses its deep concern at the extent and breadth of the divergence between the reasons advanced by the complainants and by the Government concerning the causes of the violence. The complainants ascribe the violence to criminal mafia groups and pseudo-unions which engage in extortion, while the Government considers that the violence is motivated by disputes between unions to control civil construction works through jobs for their own members. The Committee requests the Government to provide additional information in support of its explanations and suggests that the Public Prosecutor’s Office be instructed to conduct a thorough investigation into the reasons for the violence in the construction sector and those responsible for it, and that all the necessary penal action is taken based on the findings of these investigations. The Committee wishes to emphasize in this respect the principle that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, 2006, para. 43]. The Committee also recalls the principle that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44].
5. 701. With regard to the complainants’ allegations that the labour authorities are maintaining the registration of pseudo-unions that engage in extortion, the Committee understands the Government’s explanations that, in accordance with Convention No. 87, the legislation provides for the automatic establishment of unions based on their fulfilment of formal requirements, which essentially consist of the presentation of documents (minutes of the assembly, the list of members of the executive board, etc). However, the Committee recalls that in the case of such serious crimes of extortion and murder as those in the present case, the judicial authorities would have the power to dissolve a union if the criminal liability were proven of the members of its official bodies.
6. 702. In relation to the allegation of the entry into official institutions of certain pseudo-unions engaged in extortion, the Committee considers that the complainant organizations have not supported their allegations with sufficient information and particulars, and invites them to do so.
7. 703. Lastly, the Committee requests the Government to send without delay its observations with regard to the recent allegations made by the CTP, contained in its communication dated 29 November 2013, concerning various matters, including the murder of union leader Miguel Díaz Medina, and in which it accuses the police of attempting to falsely implicate the union of civil construction workers in acts of extortion and blackmail in complicity with criminals.