Rapport définitif - Rapport No. 238, Mars 1985

1. 94. The Committee has examined this case on various occasions (see 208th Report of the Committee, paras. 371 to 391; 218th Report, paras. 437 to 466; and 233rd Report, paras. 214 to 317, approved by the Governing Body at its 216th, 221st and 225th Sessions in May-June 1981, November 1982 and February-March 1984 respectively), most recently at its May 1984 meeting (see 234th Report of the Committee, paras. 418 to 431, approved by the Governing Body at its 226th Session in May-June 1984), when it presented an interim report. The Government sent certain information by a communication of January 1985.
2. 95. Nicaragua has ratified both 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. 96. When the Committee examined the case at its May 1984 meeting it made the following recommendations in respect of the allegation that remained pending (relating to the death of Mr. Jorge Salazar Argúello, Vice-President of the Managing Board of Private Enterprises (COSEP)):
   • (a) The Committee expresses its surprise at the contradiction between the judgment of 1 March 1982 (according to which the Vice-President of COSEP, Mr. Jorge Salazar, fired first against the state security patrol and died in the ensuing exchange of fire) and the Government's two communications, dated respectively before and after this judgement (in which it is explicitly and implicitly recognised that Mr. Salazar was unarmed at the time of the events); this all the more so since the judgement was only transmitted by the Government nearly two years after being handed down. It urges the Government to explain this contradiction and this delay.
   • (b) The Committee requests the Government to indicate whether the judgement of 1 March 1982 is considered final and whether there was a possibility to appeal this decision or whether it was subject to automatic review.

B. The Government's reply

1. 97. As regards the contradiction referred to by the Committee in paragraph (a) of the recommendations which it made at its May 1984 meeting, the Government states that the remarks of a government official, even of a minister, cannot be regarded as incontrovertible evidence; still less can they be compared with the legal force of a judgement handed down by a court containing a statement made by one of the principal protagonists in the events concerned. Only those who were present at the place at which the facts occurred can attest to what took place there. According to the Government, Mr. Moncada Lau, Mr. Salazar's chief accomplice, clearly establishes in his statement that the latter was armed and that, out of an instinct of self-preservation (according to the words used by Mr. Moncada Lau himself) he opened fire on the patrol under the impression that it belonged to the State Security Services, undoubtedly motivated by the full knowledge of the offence which he was committing at that moment, namely the illicit transport of arms.
2. 98. The Government nevertheless observes that the fact of Mr. Salazar's being armed or unarmed is a detail which it is not for the Committee to examine; this is a penal matter whose constituent elements have to be analysed by the courts of law of the land for the purpose of passing judgement.
3. 99. The Government also states that the judgement passed in the case of Mr. Salazar clearly proves that the case involves problems of the country's internal policy, and that a group of individuals led by Jorge Salazar were organising a conspiracy against the Government and its authorities. In no country could Mr. Salazar's activities at that time have been described as activities in defence of occupational interests. To admit that the illicit transport of arms and conspiring against the Government are aims of either workers' or employers' organisations would lead one onto very dangerous ground, would totally vitiate the spirit of Convention No. 87 and would consequently enable organisations to depart from their basic aims. The Government considers that the facts referred to in no way constitute a violation of its undertakings regarding freedom of association.
4. 100. Lastly, in response to the Committee's request for information, the Government states that the possibility of an appeal existed, as was established in the judgement of 1 March 1984. Nevertheless, since the defendant did not have recourse to this means of redress within the legal time-limit, the judicial authority ruled that the judgement was final; it thus had the authority of a decided case. In any case, the Nicaraguan system does not provide for automatic review before a higher instance.

C. The Committee's conclusions

1. 101. The Committee notes that the Government, in its reply of January 1985, fully endorses the version of the circumstances surrounding the death of Mr. Jorge Salazar Argüello, Vice-President of COSEP, accepted by the judicial authority in its judgement of 1 March 1982, namely that Mr. Salazar was the first to fire against the state security patrol following which he lost his life. The Committee also observes that the Government gives a contradictory version of the facts originally given by it, according to which Mr. Salazar was unarmed at the time the events took place, stating that the comments of a government official, even a minister, cannot be regarded as incontrovertible evidence, still less be compared with the legal force of a judgement handed down by a court.
2. 102. As regards the Government's statement that it is not for the Committee to examine whether Mr. Salazar was armed or unarmed, the Committee must stress that an examination of the circumstances surrounding this death is, on the contrary, essential in determining the facts with precision and in reaching a fully informed decision on the allegations made.
3. 103. The Committee notes and expresses its surprise that the Government has retracted its statements which had been previously made by the Minister of the Interior, regarding the circumstances surrounding the death of Mr. Salazar Argüello. At the same time it deplores that the Government has not given any reasons for the long delay in sending the judgement of 1 March 1982 concerning the death of Mr. Salazar, which the Government only transmitted almost two years after it was handed down. In these circumstances the Committee considers that the continuing climate of uncertainty and doubt regarding the circumstances surrounding the death of Mr. Salazar cannot but have a detrimental influence on labour relations and on the trust which must prevail in occupational organisations if freedom of association is to be exercised.
4. 104. Lastly, the Committee notes that the possibility of appealing against the judgement of 1 March 1982 existed, but that since the defendant made no use of this possibility the judgement remained final.