Rapport intérimaire - Rapport No. 234, Juin 1984

1. 432. The Committee has examined this case on two occasions [see 222nd Report, paras. 317 to 329 and 233rd Report, paras. 214 to 317, approved by the Governing Body at its 222nd and 225th Sessions in March 1983 and February-March 1984, respectively]; on the last occasion, it submitted an interim report to the Governing Body. The Government sent certain information in a communication dated 27 February 1984, received by the office after the Committee's February-March 1984 meeting.
2. 433. Nicaragua 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. 434. When the Committee examined this case at its February-March 1984 meeting, it made the following recommendations on the allegations still pending [see 233rd Report, para. 317).
   • (a) The Committee requests the Government to send its observations on the allegation that the Ministry of Labour has been recommending trade union organisations to join the Sandinista Central of Workers (CST) and that copies of the by-laws of trade union organisations, on paper bearing the Ministry of Labour letterhead, have been deposited at the headquarters of the CST so that it can register the recently constituted organisations among its members.
   • (b) The Committee observes that the Government has not replied to the allegation that SEEOMC leader Alejandro Arnuero, who was to take part in a congress of the International Transport Workers' Federation in Brazil, had his passport withdrawn without any valid reason. The Committee requests the Government to send its observations on the matter.
   • (c) The Committee requests the Government to send the text of the final decision handed down in the matter of the alleged embezzlement of SEEOMC funds.
   • (d) The Committee requests the Government to send the text of the judgment handed down on the granting of legal personality to the trade union of workers in various undertakings in the sugar sector ("Faustino Martínez" and others) so that it can reach conclusions on the allegations with all relevant information at its disposal.
   • (e) The Committee requests the Government to send its observations on the allegations concerning the searching of the headquarters of FETRACHI and the use of aggression against its leaders.
   • (f) The Committee regrets that the Government has not indicated the precise grounds for the arrest of a number of trade unionists who have now been released but merely gives the name of the Act that they are said to have contravened; it again requests the Government to transmit information on this matter.
   • (g) The Committee requests the Government to send its observations on the information passed on by the CTN to the Director-General's representative concerning seven trade unionists (Mónico Fuentes, Nicolás González, Santos Ponce Santacruz, Victoriano Ramos, Agustín Canales, Saturnino López Centeno and Santos Larios Cornejo) who, contrary to the claims of the Government, are allegedly still in custody. The Committee also requests the Government to send its observations on the other allegations concerning arrests to which it has not replied, involving 33 trade union leaders or members. Crescencio Carranza, Guillermo Salmerón Jiménez, Fidel López Martínez, Rito Rivas Amador, José Angel Altamirano, Mercedes Hernández, Reynaldo Blandón, Iván Blandón, Víctor Ríos, Erik Luna, José Angel Peñalosa, Napoleón Aragón, Eleázar Marenco, Juan Ramón Duarte and his brother, Anacleto Rayo Torres, Ricardo Meza Salgado, Cándido Arbizu Ocón, Candelario Jarquín Miranda, Alejo Flores Castillo, Miguel Flores Castillo, Nicolás Orozco Martínez, Esteban Orozco Martínez, Máximino Flores Obando, Estanislao Cano Mayorga, José Miranda Pérez, Anastasio Jiménez Maldonado, Gabriel Jiménez Maldonado, Arcadio Ortiz Espinoza, Santos Sánchez Cortedano, Jacinto Sánchez Cortedano, Napoleón Molina Aguilera and Juan Rivas (according to a communication from the WCL, the latter has already been released).
   • (h) The Committee observes that the Government has not replied to the allegations that rural workers of WASACA affiliated to the CTN have been interrogated and threatened with imprisonment and that Eugenio Membreño and other members of the CTN Executive Committee have been threatened and intimidated in their homes. The Committee requests the Government to send its observations on the matter.

B. The Government's reply

1. 435. With respect to the list of detained persons submitted by the complainants, the Government supplies the following information:
   • - Santos and Jacinto Sánchez Cortedano. These persons are serving two year prison sentences, imposed by the Examining Magistrate, for stealing livestock (rustling).
   • - Cándido Arbizu Ocón, Alejo Flores Castillo, Candelario Jarquín Miranda, Esteban Orozco Martínez, Anacleto Rayo Torres, Eleuterio Cano Mayorga, Miguel Angel Flores Castillo, Ricardo Meza Salgado, Nicolás Orozco Martínez. These persons were arrested on 30 December 1982 in Las Mojarras (Department of León) for infringing the Act on the maintenance of public law and order. They belong to the Nicaraguan Democratic Front (FDN), a military organisation which continually makes attacks on Nicaragua from Honduras and which, in accordance with the above-mentioned Act, is an illegal organisation. They were returned to the Free Trade Zone on 4 February 1983.
   • - José Eliodoro Pérez Miranda was arrested on 18 July 1983 and returned to the Free Trade Zone on 20 October 1983. He was accused of boycotting transport units by throwing sharp objects on the roads, thereby committing the offence stipulated in section 2(1) of the Act on the maintenance of public law and - order.
   • - Manuel Antonio Cano Zeledón. This person was arrested on 5 November 1983 and released on 10 November.
   • - Orlando Mendoza Laguna, Arcadio Antonio Ortiz Espinoza and Orlando Napoleón Martínez Aguilera. These persons are members of the Nicaraguan Democratic Front (FDN), an illegal armed organisation. They were arrested on 12 November 1983, charged with providing information concerning Nicaragua's military and economic objectives to this organisation, thereby committing an offence as stipulated by section 1(b) of the Act on the maintenance of public law and order.
   • - Bismarck Antonio García Estrada. This person was arrested on 12 November 1982 for having connections with the above-mentioned persons, but he was released on 12 January 1983, having proven that he had not participated in the activities mentioned in the previous paragraph.
2. 436. The Government states that these persons were not arrested either for belonging to the CTN or on account of their trade union functions.
3. 437. With respect to the trade union leaders in the firm "Aceitera Corona S.A.", Juan Rivas and Miguel Angel Salgado, the Government sent many documents from which it appears that their dismissal was based on a serious professional misdemeanour, within the scope of just causes for dismissal as laid down in section 119(5) of the Labour Code (for non-fulfilment of contractual obligations); the trade union leaders in question were accused of being responsible for the loss of large quantities of oil. Furthermore, the Labour Inspectorate confirmed that there was a just cause for dismissal, in accordance with section 192 of the Labour Code, applicable to trade union leaders. The Government states that these persons were not arrested on trade union grounds, a version which has just been upheld in a letter signed by three officials of their trade union, which also mentions that Mr. Rivas and Mr. Salgado have been released.
4. 438. Lastly, the Government encloses the text of the judgment handed down by the Supreme Court of Justice, on 27 January 1984, in which this Court states that the request for legal personality from the trade union of workers in various undertakings in the sugar sector - "Faustino Martínez", "Refinería Nicaragüense del Azúcar" and "Nicaragua Sugar Estates Limited" - does not comply with the requirements laid down in clause (c) of section 200 of the Labour Code (that the trade unions should be in different undertakings, made up of workers with different occupations, functions or skills, which provide their services in one or several undertakings of the same category), since although the Nicaragua Sugar Estates Limited and the "Refinería Nicaragüense del Azúcar" formally describe themselves as several companies, they are one and the same undertaking; this is proven by the fact that they have the same general manager, are engaged in the same activity and pursue identical social objectives, that they have three machine repair workshops which provide common services and share the same data processing centre. According to the above-mentioned text sent by the Government, the Supreme Court interprets the term "undertaking" contained in section 200 of the Labour Code as referring to an involvement in a basically economic activity and points out that the legal concept of undertaking does not apply to its form, but to its real engagement in an economic activity.

C. The Committee's conclusions

1. 439. With respect to the allegations concerning arrests, the Committee notes that, according to the Government's statements, Santos and Jacinto Sánchez Cortedano, Cándido Arbizu Ocón, Alejandro Flores Castillo, Candelario Jarquín Miranda, Esteban Orozco Martínez, Anacleto Rayo Torres, Eleuterio Cano Mayorga, Miguel Angel Flores Castillo, Ricardo Meza Salgado, Nicolás Orozco Martínez, José Eliodoro Pérez Miranda, Orlando Mendoza Laguna, Arcadio Antonio Ortíz Espinoza and Orlando Martínez Aguilera were arrested on grounds independent from their trade union activities (stealing of livestock, belonging to or acting on behalf of military or armed organisations of an illegal and non-union character, or boycotting of transport units). The Committee also notes that three officials of the trade union to which Juan Rivas and Miguel Salgado belong have stated in writing that those in question were not arrested for trade union reasons.
2. 440. The Committee also notes that, according to the Government, Manuel Cano Zeledón was arrested on 5 November 1983 and released on 10 November, and that Bismarck Garcia Estrada, arrested on 12 November 1982, was released on 12 January 1983, having proven that he had not provided information on Nicaragua's military and economic objectives to an illegal military organisation. The Committee regrets that the Government did not mention the grounds upon which Manuel Cano Zeledón was arrested. Nevertheless, as this person has now been released and taking into account that it is not clear whether any charges were upheld against him, the Committee draws the Government's attention to the fact that preventive detention of trade union officials and trade unionists involves a serious risk of interference into trade union activities.
3. 441. Furthermore, the Committee notes that the Government has not provided the information it had been requested to give on the other allegations concerning the arrest of trade unionists. Consequently, the Committee again requests the Government to send it its observations on the information provided by the CTN to the Director-General's representative on seven trade unionists (Mónico Fuentes, Nicolás González, Santos Ponce Santacruz, Victoriano Ramos, Agustín Canales, Saturnino López Centeno and Santos Larios Cornejo) who, contrary to what the Government maintains, were arrested [see 233rd Report, para. 287]. The Committee also requests the Government to send its observations on the other allegations of arrests to which it has not replied, involving the following 18 union leaders or members: Crescencio Carranza, Guillermo Salmerón Jiménez, Fidel López Martínez, Rito Rivas Amador, José Angel Altamirano, Mercedes Hernández, Reynaldo Blandón, Iván Blandón, Victor Ríos, Erik Luna, José Angel Peñalosa, Napoleón Aragón, Eleázar Marenco, Juan Ramón Duarte and his brother, Maximino Flores Obando, Anastasio Jiménez, Maldonado and Gabriel Jiménez, Maldonado.
4. 442. With respect to the difficulties encountered by the trade union of workers in various undertakings in the sugar sector - "Faustino Martínez, "Refinería del Azúcar" and "Nicaragua Sugar Estates Limited" - in trying to obtain legal personality, the Committee notes the judgment handed down by the Supreme Court of Justice, on 27 January 1984, in which it states that the request for legal personality from this trade union does not fulfil the requirements stipulated in clause (c) of section 200 of the Labour Code (that the trade unions should be in different undertakings, made up of workers with different occupations, functions and skills, which provide services in two or more undertakings of the same category).
   • The Committee notes that, according to the judgment, the Supreme Court considers that the "Refinería del Azúcar S.A." and the "Nicaragua Sugar Estates Limited", in spite of being different companies, constitute a single undertaking, in so far as they are engaged in the same activities, pursue identical objectives and have a general manager in common, etc. The Supreme Court therefore views an undertaking from an economic standpoint; in otherwords, it considers it to be a single unit of production. In these circumstances, the Committee expresses the hope that the union of workers in the sugar sector "Faustino Martinez" might very soon obtain legal personality as a works union (section 200(b) of the Labour Code).
5. 443. Finally, the Committee reiterates its request for information from the Government concerning the remaining allegations, as it did in its previous Session [see above in the section concerning the previous examination of the case, the paragraphs preceded by the letters (a), (b), (c), (e) and (h)].