Rapport intérimaire - Rapport No. 28, 1958

1. 111. By two communications dated respectively 20 December 1956 and 7 March 1957, the former being addressed to the Secretary-General of the United Nations and transmitted by him to the I.L.O, the Confederation of Workers of Latin America and the World Federation of Trade Unions formulated a number of allegations relating to infringements of the exercise of trade union rights in Cuba. These allegations may be summarised as follows. The regulations concerning trade union elections embodied in Decrees No. 65 of 20 January 1951 and No. 1559 of 19 June 1956 constituted an intervention by the State in a field in which the right of organisations to draw up necessary regulatory provisions is generally recognised ; these decrees, it was alleged, were contrary to the rights guaranteed to trade union organisations by Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), namely the right to organise their activities and to elect their representatives in full freedom. Acts of violence were alleged to have been committed against trade unionists ; in particular, the complainants gave the names of several persons alleged to have been killed. It was alleged that the right of meeting was not respected and that a congress of the Cuban Workers' Confederation took place under police supervision. Finally, allegations were formulated with respect to a wage freeze, the dismissal of workers and infringements of human rights.
2. 112. The Government forwarded its observations in two communications dated 6 and 7 May 1957; also, following the request made by the Committee at its 17th Session (Geneva, May 1957), the Government furnished further information on several points in a letter dated 20 August 1957.

A. A. The complainants' allegations

1. 113. At its 18th Session (Geneva, October 1957) the Committee examined the case as a whole and formulated certain conclusions and recommendations which were embodied in its 27th Report. This report was adopted by the Governing Body at its 137th Session (Geneva, October-November 1957). The Committee recommended the Governing Body to decide that the allegations relating to the wage freeze, dismissals and violation of human rights did not call for further examination. With respect to the allegations relating to the right of meeting, the Committee recommended the Governing Body to draw the attention of the Government to its view that police intervention on the occasion of a trade union congress is contrary to freedom of association and incompatible with Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Cuba. With respect to the allegations relating to intervention by the State in trade union elections, the Committee recommended the Governing Body to draw the attention of the Government of Cuba to its view that the electoral system introduced by Decrees No. 65 of 1951 and No. 1559 of 1956 is incompatible with the safeguards afforded to trade unions by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Cuba, and, in particular, with the provisions that " workers' organisations shall have the right to elect their representatives in full freedom and to organise their administration and activities " and that " the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof ", and to request the Government to take the necessary action to bring its legislation into harmony with these provisions of the Convention. With respect to the allegations relating to wrongful acts committed against trade unionists, the Committee recommended the Governing Body to request the Government of Cuba, as a matter of urgency, to provide precise information on the circumstances surrounding the deaths of the persons mentioned by name by the complainants, and, particularly, on the conclusions reached in the judicial investigations into these events, it being understood that the Committee would submit a further report on these allegations as soon as the information requested had been received.
   • ANALYSIS OF THE GOVERNMENT'S OBSERVATIONS
2. 114. By five communications dated 12 November, 9 December (two communications), 10 and 13 December 1957, the Government of Cuba forwarded to the Office a number of observations on the conclusions adopted by the Committee and by the Governing Body, together with further information which the Committee had requested it to furnish on certain points.
3. 115. In the first place, the Government declares formally that, contrary to what would appear to be the case judging by the conclusions of the Committee and the Governing Body, it has never recognised that any police or military intervention took place on the occasion of a trade union congress. In the view of the Government nothing in the observations which it had presented on the allegations made by the complainants justified the conclusion that there had been any such admission on its part. Consequently, states the Government, this interpretation was erroneous and even malicious in the sense that it was calculated to distort the truth. The Government declares that in fact neither the police nor the security forces-even less so the army-entered the premises in which the trade union congress mentioned in the complaint of the Confederation of Workers of Latin America was being held, and surveillance was exercised only in the street for the exclusive purpose of preventing any possible disturbance.
4. 116. Further, the Government contests the validity of the reasoning which led the Committee to formulate the recommendation contained in paragraph 380 (a) of its 27th Report with respect to the regulations concerning trade union elections embodied in the decrees of 1951 and 1956. According to the Government, the decrees criticised in no way constitute instruments by which the trade unions are rendered subordinate. In support of this statement the Government declares that, moreover, the Committee of Experts on the Application of Conventions and Recommendations has never regarded these texts as constituting an infringement of freedom of association. Finally, the Government states that these two decrees, which were promulgated in order to deal with a transitory situation, have since been repealed.
5. 117. Finally, in response to the request for further information made by the Committee in paragraph 380 (f) of its 27th Report, the Government gives the following information. After inquiries had been opened by several examining magistrates on the ground of murder in the cases of Messrs. Alejo Tomás, Héctor Infante Pérez, Isaac Hernández Oliver, Loynaz Hecheverria and Luis Sera Moreno, the courts before which these cases had been brought declared themselves to be incompetent and surrendered their jurisdiction to the military judicial authorities. With regard to the case of Mr. Armando Guzmán Guidi, the murder inquiry instituted by the competent examining tribunal was provisionally suspended pursuant to the second paragraph of section 641 of the Penal Code on the ground that it had not been possible to establish who were the authors of the crime, their accomplices or the persons who sheltered them. For the same reasons, proceedings were suspended in the cases of Messrs. Antonio Valencio Consuegro and Antonio Concepción. Paradio. With regard to the case of Mr. Miguel Torres Suárez, whose death was verified through the files of the competent judicial authorities, an inquiry was opened by the said authorities and has not yet terminated. With regard, finally, to the cases of Messrs. Germánico Mendoza, Ramón Concepción Cue, Amaranto Fransua, Luis Frits, Miguel Mordago and Enrique Morgan, the Government declares that their names are not mentioned in the records of inquiries filed in December 1956.

B. B. The Committee's conclusions

1. 118. The Government categorically denies that it ever admitted any police or military intervention on the occasion of a trade union congress. This objection relates to paragraph 380 (b) of the 27th Report of the Committee, which stated:
   • [The Committee recommends the Governing Body] to draw the attention of the Government of Cuba to its view that police and military intervention (such as that recognised by the Government) on the occasion of a trade union congress is contrary to freedom of association and incompatible with Article 3 of Convention No. 87, which has been ratified by Cuba.
2. 119. The reasons which caused the Committee to formulate its conclusions in these terms were as follows. In reply to a specific allegation that such intervention had taken place the Government, without specifically admitting the intervention for which it was criticised in this particular instance, nevertheless did not deny this allegation but, on the contrary, admitted the principle of intervention by declaring that it regarded it as justifiable. The Government's observations in this connection were as follows : " trade union activities, particularly in times of political disturbance, insurrection and terrorism, require the exercise of supervision by the police and the security forces." In these circumstances the Committee took the view that the fact that the Government refrained from refuting the intervention for which it was criticised, added to the attitude which the Government adopted in favour of the principle of police supervision, was equivalent to an admission by the Government that such intervention had actually occurred.
3. 120. Since the conclusions of the Committee were approved by the Governing Body the Government has furnished further information containing new elements, from which it would appear that the intervention for which the Government was criticised did not actually take place.
4. 121. In these circumstances, while affirming that any police or military intervention in legitimate trade union activities would be contrary to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee has noted the more detailed observations furnished by the Government since the adoption of the 27th Report of the Committee by the Governing Body, according to which, in the specific instance mentioned by the complainants, the intervention for which the Government was criticised did not actually take place.
5. 122. The Government declares that the two decrees relating to the regulating of trade union elections, which the Committee and the Governing Body considered incompatible with the provisions of Convention No. 87 ratified by Cuba, cannot in any way be regarded as instruments resulting in the subordination of the trade unions. In support of this point of view, the Government declares that the Committee of Experts on the Application of Conventions and Recommendations has never regarded these texts as infringing freedom of association. It is true that the Committee of Experts on the Application of Conventions and Recommendations, which has addressed to the Government of Cuba observations on certain points (trade union rights of officials and State, provincial and municipal employees, general prohibition of all political activities on the part of trade unions, presence of an official at trade union meetings), has not commented on the decrees in question. It is necessary, however, to point out that, if the Committee of Experts has not been able to make observations on the two decrees in question, this is to be explained by the fact that the decrees have never been mentioned by the Government in the reports which it has furnished, in accordance with article 22 of the Constitution of the I.L.O, on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Moreover, when the Committee of Experts, in 1956, specifically asked in one of its observations addressed to the Government of Cuba, whether there were " provisions in the national legislation respecting the election of trade union leaders", the Government, in its reply, made no reference to either of the texts criticised in the present case. Finally, when the draft monograph with respect to Cuba prepared in the course of the inquiry of the Committee on Freedom of Employers' and Workers' Organisations-a draft which also contained no reference to the two decrees in question-was communicated to the Government of Cuba for its observations and a request was made to the Government to indicate any texts which might be missing from the list of legislative texts annexed to the draft, the Government refrained from making any reference to the decrees in question. It is not possible, therefore, to interpret the absence of any observations on these texts by the Committee of Experts on the Application of Conventions and Recommendations as having constituted even tacit approval of their contents.
6. 123. On the other hand, with respect to this aspect of the case, the latest observations received from the Government of Cuba contain new elements which entirely change the situation. In fact, the Government states that the two decrees which were criticised have, since the 27th Report of the Committee was adopted, been repealed. In the concluding part of paragraph 380 (a) of the Committee's 27th Report, approved by the Governing Body at its 137th Session (October-November 1957), the Government was requested to take the necessary action to bring its legislation into harmony with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In the repealing decree (Decree No. 3509), the text of which is annexed to the Government's communication dated 9 December 1957, and which, as the Government points out in its letter of 13 December 1957, was published in the Official Gazette of 10 December 1957, it is stated in one of the clauses of the preamble that one of the reasons justifying the repeal of the two decrees in question is to be found in the fact that they might be regarded as being at variance with the requirements of Convention No. 87. In these circumstances, the Committee notes with satisfaction the effect thus given by the Government of Cuba to one of its recommendations approved by the Governing Body.
7. 124. Finally, in its latest communications, the Government replies to the request for further information made by the Governing Body with respect to allegations of wrongful acts committed against trade unionists. From the information furnished by the Government it would appear that the cases relating to the persons mentioned by name by the complainants have been the subject of references to the military judicial authorities by the civil courts before which they came, or of a provisional suspension of proceedings because of the impossibility, so far, of establishing the facts, or of investigations which have not yet been terminated or, finally, have not yet been the subject of any inquiry. In other words, all the cases in question are still pending and the information received from the Government is in the nature of a report as to the stages which have been reached in the proceedings which have been instituted.
8. 125. In these circumstances, while thanking the Government for the information which it has been good enough to furnish with respect to the stages reached in the proceedings instituted in the cases of the persons mentioned by name in the complaints, the Committee recommends the Governing Body to request the Government of Cuba to furnish precise information as to the circumstances surrounding the deaths of the persons mentioned by name in the complaint of the World Federation of Trade Unions and, particularly, on the conclusions reached in the judicial investigations into these events, it being understood that the Committee will report further on these allegations when it has received the information requested.