Rapport intérimaire - Rapport No. 264, Mars 1989

1. 2. The Committee had before it a number of complaints of infringements of trade union rights and freedom of association in Nicaragua presented by the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU) as well as the International Organisation of Employers (IOE) and a complaint concerning the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) made by a number of Employers' delegates to the 73rd (1987) Session of the International Labour Conference under article 26 of the Constitution of the ILO.
2. 3. The Committee submits, for the Governing Body's approval, a report on the pending cases and the complaint presented in virtue of article 26 of the Constitution of the ILO.
3. 4. For several years now, the Committee on Freedom of Association has had before it various complaints of violation of freedom of association and of the right to organise in Nicaragua. In addition, in a communication of 17 June 1987 several Employers' delegates to the 73rd Session (1987) of the International Labour Conference lodged a complaint, under article 26 of the Constitution of the ILO against the Government of Nicaragua, of infringements of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
4. 5. The Committee has examined these questions on several occasions, most recently in November 1988 (see 261st Report, approved by the Governing Body at its 241st Session (November 1988)) on the basis of information compiled on the spot from 29 September to 4 October 1988 by a study mission conducted by Professor Fernando Uribe Restrepo, a member of the Committee of Experts on the Application of Conventions and Recommendations.
5. 6. Since then, the International Organisation of Employers (IOE) has submitted new allegations in communications of 22 December 1988 and 23 January 1989. The Government supplied its observations in communications dated 3 January and 3, 8, 13, 15 and 16 February 1989.

A. A. The complainants' allegations

• A. Previous examination of the cases
  7. 7 During its examination of the cases in November 1988, the Governing Body approved the following recommendations of the Committee:
     • a) The Committee notes the report of the study mission carried out in Nicaragua and the facilities granted by the authorities to the Director-General's representative for carrying out his mission. It deplores however the fact that the Director-General's representative was not authorised to meet one of the imprisoned persons with whom the mission had asked to speak.
     • b) The Committee requests the Government to furnish a copy of the text of the judgement that will be handed down in the case of CUS trade unionists now held at the "Zona franca" penitentiary compound in Managua mentioned in paragraph 14 above.
     • c) The Committee requests the Government to consider the adoption of amnesty or reduced sentence measures in respect of Mr. Milton Silva Gaitán and Mr. Arcadio Ortéz Espinoza, two trade unionists who were sentenced to five and six years' imprisonment.
     • d) The Committee requests the World Confederation of Labour to furnish further information on the circumstances surrounding the arrest of Mr. Anastasio Jimenez Maldonado, Mr. Justino Rivera, Mrs. Eva Gonzáles and Mr. Eleazar Marenco.
     • e) The Committee requests the Government to furnish detailed information on the arrest of trade unionists Luis Alfaro Centeno, Pastor García Matey, Mariano Romero Melgare, Dámoso Gonzáles Sánchez, Jesús Cardenas Ordónez, Rafael Ordónez Melgara and Miguel Valdivia (specific facts motivating the arrests, text of the judgements, place of detention).
     • f) As regards the arrests carried out during a hunger strike organised by the Permanent Congress of Workers, the Committee reminds the Government that the arrest by the authorities of trade unionists against whom no charge is made entails restrictions on freedom of association and that governments should take measures to ensure that the authorities receive appropriate instructions to eliminate the danger of arrests being based on trade union activities.
     • g) As regards the attacks carried out against trade union premises and the threats against trade unionists, the Committee recalls that activities of this kind create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties.
     • h) As regards the measures taken following the demonstration in Nandaime, the Committee considers, in view of the political nature of this demonstration, that the matter should be examined by other international bodies which have general competence in respect of human rights.
     • i) As regards the confiscation of property, the Committee considers that this measure appears to have been particularly biased against the COSEP leaders and members and it considers that all the provisions relating to compensation for expropriated land should be reviewed to ensure that there is real and fair compensation for the losses sustained by the landowners and that the Government should reopen the compensation files when so requested by persons who consider that they have been despoiled.
     • j) As regards the conviction of Mr. Alegría, the Committee expresses its concern at the procedure followed in this case and at the extreme harshness of the sentence handed down by the court of first instance. The Committee expresses the firm hope that the Court of Appeal in Managua will re-examine the case with all the requisite attentiveness and impartiality. It requests the Government to furnish a copy of the decision reached by the Court of Appeal as soon as it is available.
     • k) As regards civil liberties connected with the exercise of trade union rights, the Committee notes that unduly severe restrictions still remain and therefore requests the Government to take advantage of the peace process that has begun in Nicaragua to adopt legislation that will fully guarantee the exercise of public freedoms and broaden judicial safeguards.
     • l) As regards tripartite consultations on international labour standards, the Committee requests the Government to set up and convene as soon as possible an advisory committee on this subject - which should be representative of all employers' and workers' organisations - and to furnish information on the setting up and meetings of this advisory committee.
     • m) On the subject of trade union legislation, the Committee urges the Government to work with all the workers' and employers' organisations - and with the ILO as already accepted by the Government - on the drafting of the new Labour Code which it intends to prepare and it expresses the firm hope that the Government will be able to report very shortly substantial progress towards new legislation in line with Conventions Nos. 87 and 98.
     • n) In view of the conclusions it has thus reached, the Committee observes that the situation of employers' and workers' organisations in Nicaragua gives rise to major problems in relation to several basic principles concerning freedom of association and trade union rights. The Committee accordingly considers that the Government should take concrete measures in the shortest possible time to apply fully the Conventions on freedom of association which it has ratified. These measures should cover all the problems which arise in law in relation to both the preparation of a new Labour Code and the adoption of legislation guaranteeing the full exercise of civil liberties. These legal measures should be accompanied by measures relating to factual situations, such as, in the first place, the release of leaders of employers' and workers' organisations at present in detention. Should the Government not supply, before the next meeting of the Committee in February 1989, information demonstrating a change in attitude as regards these matters and a clear desire to make progress as regards the situation of employers' and workers' organisations, as well as their leaders and members, the Committee would consider it necessary to refer the matter to the Governing Body recommending to it the establishment of a Commission of Inquiry in conformity with article 26, paragraph 3, of the Constitution.

B. New allegations

1. 8. In its communication of 22 December 1988, the IOE alleges that on 13 October 1988 the Ministry of the Interior banned, for an unlimited period, the radio programme broadcast on Radio Mundial by the Supreme Council of Private Enterprise (COSEP), entitled "The Nicaraguan". According to the IOE, this programme reviews the main features of the economic and social situation of the country and suggests possible solutions in which the COSEP and its members would like to co-operate.
2. 9. Moreover, the IOE notes that on 2 November 1988, also by order of the Ministry of the Interior, the programme "Seis en Punto" broadcast by Radio Corporación was banned indefinitely. The IOE points out that the Director of Radio Corporación and of the banned programme is Mr. José Castillo Oseja, a prominent member of the COSEP who has already suffered at the hands of the regime on many occasions, particularly during a beating by the Minister of the Interior on 29 April 1988.
3. 10. The IOE emphasises that Radio Corporación, Radio Católica, Radio Noticias and Radio Mundial were closed down in May 1988, and that Radio Corporación, Radio Mundial and eight other radio stations were threatened with closure in July 1988. Furthermore, La Prensa, already closed down for two weeks in July 1988, regularly receives threats that it will be closed down again. According to the IOE, this proves that the Government's repressive attitude regarding information remains unchanged.
4. 11. Concerning the case of Mr. Mario Alegría, the director of COSEP's research institute sentenced to 16 years in prison, the IOE objects to the fact that, apart from the disregard shown for the defendant's rights during the investigation (confessions were extracted in illegal conditions), he is still in detention while the appeals court dealing with his case has still not given a verdict, though the time-limit provided for by the Criminal Code of Procedure has long since expired.
5. 12. In its communication of 23 January 1989, the IOE alleges that on 9 January 1989 the Government ordered the closing down, for an unlimited period, of the programme "Seis en punto", broadcast by Radio Corporación. The programme is accused of having carried news concerning the dismissal of public servants from the Ministry of the Interior. According to the IOE, the news in question had already been carried by pro-government radio stations, which were not ordered closed. The IOE goes on to state that the Government was obliged to revoke this measure in view of its manifest arbitrariness.

C. The Government's reply

1. 13. In its communication dated 3 January 1989, the Government expresses its desire to inform the Committee of the implementation of a set of measures which have been undertaken in the country as a concrete expression of the Government's flexibility and will to promote an improvement in relations among the various social, economic and political sectors and forces in Nicaraguan society.
2. 14. In this context, the Government and the higher labour authorities have borne in mind the recommendations and suggestions made by the Governing Body at its November 1988 Session, as well as the opinions expressed by the study mission which visited Nicaragua. The Government thus reports on various measures which were adopted in December 1988.
3. 15. Firstly, the Government indicates that it has decided to release Mr. Carlos Humbres in spite of his proven guilt in the matter and the purely political nature of his case. The Government has thus demonstrated its flexibility and its political willingness to achieve peace, since this gesture will be appreciated by those who have participated in the aggression against Nicaragua. This is a genuine expression of the Revolution's desire to create a national consensus in which all of the forces of the country will be able to contribute to the reconstruction of the nation.
4. 16. In the same vein, the Government also released the persons involved in the violation of laws concerning public order during the Nandaime events. These releases should also be considered a concrete expression of the Government's flexibility and its readiness to support and intensify a political dialogue with all sectors of the nation in the search for a consensus to tackle the tasks of reconstruction of the country, which is currently suffering from the economic effects of hurricane "Juana" and the war of aggression. Although there is no doubt that the defendants violated the law, the Government has deemed it necessary to take concrete steps to create a national climate of responsible and constructive dialogue.
5. 17. The Government goes on to say that the President of the Republic, in his New Year's message appealed to all the economic, social and political sectors of the country to establish an effective dialogue on the basis of mutual co-operation so they may patriotically assume the tasks and responsibilities entailed by the current process of national reconstruction.
6. 18. Moreover, the labour authorities are currently preparing some legislative reforms which will make it possible to eliminate permanently some problems of compatibility between national laws and regulations and international labour Conventions. These legislative reforms will be implemented separately from the efforts to change the entire labour legislation by means of a new Labour Code. These efforts will obviously represent a large scale task calling for various stages of work in parallel with consultations with employers' and workers' organisations and debate in the National Assembly. The Government intends to keep the ILO informed of the progress of the efforts undertaken to change certain provisions to which the Committee of Experts and the study mission had suggested amendments.
7. 19. The Government believes that with the national efforts it is undertaking to find opportunities for constructive dialogue and consensus among the various sectors, it is offering concrete responses to the opinions, suggestions and criteria which were presented to the authorities by the Governing Body and other ILO bodies. The Government reiterates its willingness to continue to intensify the search for points of agreement among the various sectors and thus to consolidate the various expressions of tripartism currently existing in Nicaragua. As in the past, the Government will keep the ILO informed of the results obtained.
8. 20. In its communications dated 3 and 8 February 1989, the Government points out that there are currently four Labour Code projects, one drafted by the Government and the others by various opposition movements (political parties and a central labour organisation). These projects will be presented at the next parliamentary session for debate and, possibly, adoption. The discussions concerning the Labour Code are prominent on the agenda of the next session of the National Assembly. The latter has engaged in consultations with the employers' and workers' organisations of the country. The approval of the new Labour Code has been declared a priority by the Assembly and is an item on the agenda of the 1989-90 session.
9. 21. The Government adds that the Ministry of Labour is establishing an institutional consultative body, between workers and employers without any distinction whatsoever, so that the social problems that affect them may be discussed more expeditiously.
10. 22. As regards the application of Convention No. 144, the Government points out that, since January 1989, the process of tripartite consultation has been intensified in the context of national consensus. The President of the Republic, the Minister of Industry, Economy and Commerce and the Minister of Agricultural Development and Agrarian Reform had discussions with all the employers' groups in the industrial, commercial and agricultural sectors. They have also met with the central labour organisations with a view to defining the framework of integration for the country's economic reconstruction. These meetings have led to the adoption of a series of political and legal guarantees of private enterprise activities, the creation of joint ventures funded by the State and the private sector, and the establishment of mechanisms allowing for ongoing consultation with the agents of national economic activity. The Government is of the opinion that these initiatives created a new atmosphere of confidence. Through its leader, Mr. Gurdian, the COSEP has recommended its affiliates to participate in all discussions and meetings with the governmental authority, with a view to looking for agreement and consultative formulae.
11. 23. As regards lands confiscated from private employers, the Government states that the application of legal confiscation measures has been reduced since 1986. In that year 460 properties were affected; this figure dropped to 150 in 1987 and to only six in 1988. In his address of 30 January 1989 to the National Assembly, the President of the Republic announced that no more land would be confiscated, since a first phase of the agrarian reform has now been completed and the productive exploitation of the land redistributed to 120,000 farmer families must now be consolidated. According to the Government, the present land ownership structure is as follows: private property (large landowners, co-operatives, small and medium producers), 82 per cent; State sector, 13 per cent; uncultivated land, 5 per cent.
12. 24. Within the national consultation process defined by the Government for 1989, and in a perspective of economic reconstruction of the country once the war will have subsided, the President of the Republic has announced to the producers and entrepreneurs that a "legal security" would be granted on property, with a view to establishing a better atmosphere of mutual confidence and credibility. This atmosphere is illustrated by the fact that the Government and the private consortium Nicaragua Sugar have decided to settle their differences with respect to the control of the San Antonio complex. The Government has granted a realistic indemnity to the owners, as well as a series of guarantees and support measures to other businesses providing goods and services belonging to the same economic group.
13. 25. The Government recalls in this regard that the Committee on Freedom of Association has decided several times that "cases where legal standards on possession and ownership of land are challenged do not concern the exercise of union rights".
14. 26. As regards the closing-down of the news programmes "The Nicaraguan" and "Seis en Punto", the Directorate of Media of the Ministry of the Interior, by resolution of 31 January 1989, has accepted a request for the resumption of these two programmes, after a re-examination of the cases under the legislation in force.
15. 27. In its communication of 13 February 1989, the Government states that in the framework of its systematic efforts to create a climate of coexistence and social harmony among all the economic sectors, which have intensified over the last few weeks, the authorities of the Ministry of Labour, led by the Minister, have requested the President of the Republic to give special attention to the circumstances and the present stage reached in the trial against Mr. Alegría with a view to examining a measure which, while respecting the national juridical order and the full independence of the powers of the State, would demonstrate in a concrete manner the Government's desire for conciliation. This was requested independently of any factors concerning Mr. Alegría's guilt. Identical steps have been taken in Mr. Guillermo Quant's case; he is also a member of COSEP and sentenced for spying. The Government will inform the Committee of any forthcoming decisions coming from the President's Office or from any other State powers. These will probably be able to be adopted in the next few days.
16. 28. In its communication of 15 February 1989, the Government states that Mr. Felipe Martinez, a CUS official, was released during the last week of January.
17. 29. As regards tripartism, the Government announces that it is taking the necessary measures for the creation, in the month of March, of a special tripartite consultative commission. The first item it will have to deal with is the Convention on safety and health in construction which was recently adopted by the International Labour Conference.
18. 30. As regards the elaboration of the Labour Code already referred to in its previous communications, the Government states that the labour authorities have, during the preparation of the new Code, given special importance to the legal guarantees and safeguards for the full exercise of freedom of association. The Government confirms that it will request the technical assistance of the Office.
19. 31. Moreover, the Government adds that the Accords signed by the Heads of State of Central America on 13 and 14 February have enlarged the political framework necessary for a thorough study of a package of measures to enable the efficient realisation of national consultation, involving all sectors, for the economic reconstruction of the country. As a direct consequence of the Government's wish for peace and of the Accords in question, in the coming days a broad amnesty will be adopted which will cover the repatriation or homecoming of persons linked to the activities carried out against the nation. 32. In its communication of 16 February 1989, the Government states that, on 14 February, the summit meeting of Central American Presidents adopted a series of Accords which will have profound repercussions on the solution of the various problems which have been the subject of allegations before the Committee. The measures affecting internal politics proposed by the Government to contribute to peace in the region cover the whole range of legal and economic relations between the different sectors of the country and the Government. Thus, the following measures - the amendment of the election laws, the revision of the laws concerning the communications media, the change in the composition of the Supreme Electoral Tribunal and the decision to hold at an earlier date the national presidential, legislative and municipal elections - constitute fundamental steps which have direct consequences on the natural contradictions and problems existing between the labour sectors and the Government, opening new avenues for consultation and comprehension between them. In these circumstances, the Government considers it important that the Committee suggest conciliation measures at this present jucture so that a reasonable delay be granted enabling an examination of the functioning of the Accords and their repercussion in the labour fields, at least until June 1989, before proposing initiatives such as a commission of inquiry which would not in any way serve the reconciliation process, but would, on the contrary, introduce tension.

D. The Committee's conclusions

1. 33. The Committee has noted the Government's replies to the various recommendations it made at its meeting in November 1988, but must observe that these replies do not cover some of the most important points raised by the Committee.
2. 34. Regarding the legal aspect of the cases before it, the Committee notes that the Government is currently preparing the modification of certain legislative provisions which had been the subject of comments by the Committee of Experts on the Application of Conventions and Recommendations. The Government will keep the ILO informed of these amendments. In addition, the work already undertaken on the adoption of a new Labour Code is continuing. The Committee notes in particular that four Labour Code drafts will be discussed during the next parliamentary session, and that, according to the Government, consultations have been initiated with employers' and workers' organisations. The Committee also notes that, according to the Government, the technical assistance of the International Labour Office will be asked for in the preparation of the Code. It notes the Government's statement that special importance has been given in the draft to the legal guarantees and safeguards for the full exercise of freedom of association. The Committee recalls in that respect the urgent need for the adoption of labour legislation compatible with Conventions Nos. 87 and 98, and reminds the Government that all the employers' and workers' organisations, as well as the ILO, should be involved in the drafting of this legislation.
3. 35. The Committee further notes that the Government provides no information on the measures it considers taking to adopt legislation to guarantee fully the exercise of civil liberties and broaden judicial safeguards, as the Committee recommended in November 1988.
4. 36. The Committee takes note of the efforts reported by the Government to strengthen tripartism and create an institutional consultative body. In particular it notes that the Government envisages the creation of a special tripartite consultative commission which will examine issues linked to international labour standards as of the month of March 1989. The Committee requests the Government to supply specific information on the composition of this commission and on developments in its work.
5. 37. Regarding the confiscated lands, the Committee notes the information provided by the Government on the decrease in the number of these measures since 1986, and the declaration of the President of the Republic to the effect that no more land would be confiscated. The Committee once again expresses hope that the Government will re-open the compensation files at the request of those who consider they have been unfairly dispossessed.
6. 38. With respect to the closing-down of radio news programmes, the Committee notes that, according to the Government, these programmes have now resumed. The Committee must express its concern at the frequency of suspension measures imposed on the media, and recalls the importance of the right of employers' and workers' organisations to express their opinions through the media.
7. 39. Regarding the allegations concerning imprisonments, the Committee notes the release of persons arrested after the demonstration organised in Nandaime in July 1988. The Committee had, however, considered that, because of its political character, the demonstration was not within its competence. However, the Government has not replied to the requests made by the Committee for information on the situation of certain detained unionists. The Committee notes that the Government states that it wants to adopt a broad measure of amnesty in the coming days. It expresses the firm hope that this amnesty will cover all detained leaders of employers' and workers' organisations and it requests the Government to supply detailed information on the scope of this measure and on the persons affected by it. The Committee also notes the Government's statement that the file concerning Mr. Alegría, the director of a COSEP research institute, has been submitted to the President of the Republic for special examination and it trusts that this will lead to his rapid release.
8. 40. Having thus examined the various questions pending in this matter, the Committee notes with interest that the Accords concluded during the very recent summit of the Heads of State of Central America should, if they are followed up, result in progress in the general situation in Nicaragua which might bring about a positive development in the issues before the Committee.
9. 41. The Committee is conscious of the fact that, in view of the extremely recent date of these Accords, the Government has not yet been able to supply information documenting the concrete measures taken following the summit of the Central American Heads of State. The Committee expresses the firm hope that these Accords will be able to be implemented in the shortest possible time and that their application will have favourable and immediate repercussions on the observance of the Conventions on freedom of association both in fact and in law. In this respect, the Committee recalls that the measures which the Government has to take to ensure this application should cover the elaboration and adoption of a new labour code as well as legislation guaranteeing fully the exercise of civil liberties. They should also cover the release of the leaders of employers' and workers' organisations to which the Committee attaches special importance. The Committee therefore requests the Government to supply, as rapidly as possible, precise, concrete and detailed information on the measures that will be taken in this respect. In the meantime, the Committee invites the Governing Body to instruct the Director-General to take the appropriate preparatory measures so that the Governing Body will have before it, at its next session, proposals concerning the composition of a commission of inquiry and concerning the financial arrangements necessary for the work of this commission in the event that the Committee and the Governing Body consider the information supplied by the Government to be unsatisfactory and the Governing Body consequently decides to establish such a commission.