Rapport intérimaire - Rapport No. 256, Juin 1988

1. 347. The Committee on Freedom of Association considered this case at its meeting in November 1987 and submitted an interim report to the Governing Body (see 253rd Report, paragraphs 385 to 391) which approved the report at its 238th Session (November 1987).
2. 348. The Government has communicated additional comments dated 11 February 1988.
3. 349. Venezuela 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. 350. In a communication dated 2 May 1987 the World Confederation of Labour (WCL) alleged that the trade unionists Luis Aquilino Marcano Gamboa, Fredy Marcano, Joel Rodríguez, Juan Vicente Martínez López (officials of the Federation of Free Trade Unions of the State of Monagas), Francelia Barreto and Miguel Angel Salazar Trinitario had been arbitrarily arrested, that their homes had been searched, that the headquarters of the Federation of Free Trade Unions of the State of Monagas had been forcibly entered and that files and the mimeograph machine of the said Federation had been seized. The communication from the WCL added that 11 days after their arrest the first three of the persons mentioned above had been released, but that all had been brought to trial before a military court on charges of subversion.
2. 351. The Government communicated comments on 14 October 1987 in which it stated that the reason for the arrest of the persons referred to in the complaint was their connection with the clandestine "Bandera Roja" (Red Flag) organisation which publicly incites to violence; in addition it stated that the time during which these citizens had been deprived of freedom had not exceeded the statutory period and that during this period they had been placed at the disposal of the competent court, which ordered that some of them should be released and that others should be held in custody. As regards the cases of forcible entry the Government stated that all, without exception, had been preceded by the issue of the appropriate court order and that the objects seized were being held at the disposal of the court dealing with the case. In its communication the Government stressed that the arrests and forcible entries had taken place in conformity with the law, in connection with events that had disturbed the country, owing to the links or relationship of the persons concerned with subversive activities and not by reason of their status as trade unionists, because trade union activities, apart from enjoying the approval of the Government, are protected and supported by the legal situation in force in Venezuela.
3. 352. At its previous examination of the case (November 1987) the Committee invited the Governing Body to approve the following recommendation: while noting that three of the six trade unionists (Luis Aquilino Marcano Gamboa, Fredy Marcano and Joel Rodríguez), who had been arrested, have been released, the Committee requests the Government to indicate the actual events which prompted the arrest, house search and trial of each of the six trade unionists, to provide information on the developments in the corresponding trial, and to give the exact reasons for the raiding of the headquarters of the Federation of Free Trade Unions of the State of Monagas and the confiscation of its property.

B. Additional reply from the Government

1. 353. In its communication dated 11 February 1988 the Government provided further information according to which Juan Vicente Martínez López, Miguel Angel Salazar Trinitario and Francelia Barreto were arrested and placed on trial pursuant to an order made ex officio by the Standing Military Court of First Instance at Bolívar City on 7 May 1987. The offence charged was that of armed rebellion within the meaning of article 47(1) of the Code of Military Justice.
2. 354. The communication adds that the proceedings took place as follows: on 8 May 1987 the investigating court made an order for the institution of proceedings; on 22 May 1987 the persons concerned entered an appeal, leave to appeal being confirmed by an order made by the Permanent Court Martial in pursuance of article 47(3) of the Code of Military Justice. On 22 June 1987, by Decree No. 1640, the President of the Republic, in the exercise of his special statutory powers, ordered a stay of proceedings in the case of Francelia Barreto; on 16 September 1987 the file was referred to the Rapporteur for the purposes specified in article 223 of the Code of Military Justice, that is, for a thorough verification of the orders, the lawfulness of their terms and definition of the acts charged; on 5 October 1987 the examining judge, by express order, declared the indictment procedure completed, as prescribed in article 224 of the said Code.
3. 355. The Government's communication adds that in conformity with the legislative provisions applicable in this jurisdiction the file was referred to the President of the Republic for his ruling as to whether the proceedings should or should not be continued; in due course the President made a ruling directing that the trial should continue, and the trial is therefore now proceeding and has reached the stage of the swearing in of counsel for the defence. The case is at present being dealt with by the Permanent Court Martial in the city of Maturin in the State of Monagas.

C. The Committee's conclusions

1. 356. The Committee notes the Government's statement that the judicial proceedings against the trade unionists Juan Vicente Martínez López, Miguel Angel Salazar Trinitario and Francelia Barreto were instituted ex officio in the Standing Military Court of First Instance at Bolívar City on 7 May 1987, the offence charged being that of armed rebellion under the terms of article 47(1) of the Code of Military Justice.
2. 357. The Committee also notes that the President of the Republic ordered a stay of proceedings (discontinuance of the indictment procedure) in the case of Francelia Barreto, and also understands from the Government's comments that the other trade unionists referred to in the complaint, viz. Luis Aquilino Marcano Gamboa, Fredy Marcano and Joel Rodríguez, had been released by the competent court within the time-limits prescribed by law.
3. 358. The Committee notes, moreover, that on 5 October 1987 the examining judge declared the investigation procedure completed and, in conformity with the statutory provisions applicable to that jurisdiction, referred the file to the President of the Republic, who made a ruling directing that the trial should continue; it notes that the case is now being dealt with by the Permanent Court Martial in the city of Maturin (State of Monagas).
4. 359. From the particulars provided by the Government, the Committee understands that, after the preliminary investigation procedure had been declared completed, the only persons remaining on trial were the trade unionists Miguel Angel Salazar Trinitario and Juan Vicente Martínez López charged with the offence of armed rebellion under the terms of article 47(1) of the Code of Military Justice. In this connection, the Committee wishes to recall that, in cases where proceedings have been instituted against persons on grounds unconnected with the exercise of trade union rights, it has invariably stressed that the matter is outside its competence; however, it has emphasised that the question whether such a matter is within the scope of the penal law or concerns the exercise of trade union rights is not one that can be resolved unilaterally by the government concerned, but that it is within the Committee's authority to express an opinion on the matter in the light of its consideration of all the available information and, above all, of the court decision.