Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 348, Novembre 2007

561. The complaint is presented in a communication from the Latin American Central of Workers (CLAT) dated 14 February 2007.

1. 562. The Government sent its observations in communications dated 21 May, 11 June and 15 August 2007.
2. 563. El Salvador 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. The complainant’s allegations

1. 564. In its communication of 14 February 2007, the CLAT alleges that Mr José Vicente Ramírez, president of the National Association of Vendors, Small Traders and Similar Workers (ANTRAVEPECOS), is the first workers’ leader in El Salvador’s informal sector to have participated in various demonstrations in defence of workers from the municipality of Apopa and that, on 10 February 2007, the municipal authorities of Apopa launched an offensive and, by order of the courts, proceeded to evict the informal economy workers of this municipality from their work premises. Such events have been taking place since 1998.
2. 565. CLAT adds that, in the light of the action taken by the municipal authorities, Mr José Vicente Ramírez immediately began to organize a protest against the eviction measure which at the time was being imposed on the premises where he carried out his economic activity. Several days later, on 16 February 2007, the court issued a warrant for the provisional arrest of trade union leader Mr José Vicente Ramírez on the grounds of alleged acts of terrorism; he was detained on the same day. Once in custody, Mr José Vicente Ramírez and two other officials – Ms Suyapa Martínez and Mr Luís Alonso Cantarero – were charged under the Special Anti-Terrorism Act on the grounds that the mobilization of the informal economy workers constituted a terrorist act.
3. 566. CLAT states that this arbitrary accusation could lead to a prison sentence of 40–60 years. The charges brought by the magistrate against the officials do not correspond to the truth, since it is not a terrorist act to express openly and publicly one’s objection to being evicted with no counterproposal to safeguard the livelihoods of all the workers and their families; this situation constitutes a clear violation of fundamental rights and once again illustrates the absence of freedom of association in El Salvador. The defence of the right to work, as promoted by the ILO in the World Employment Programme, is a natural exercise of human rights, and mobilization/protest forms part of this exercise, which is why CLAT categorically rejects the terms of the unfounded accusation. CLAT is keen to emphasize that the administrative and judicial procedures used, such as the use of an anti-terrorism act to penalize the participants of a trade union demonstration, are unacceptable in any circumstances and highlight the anti-trade union policy, inconsistent with ILO Convention No. 87, which is practised by the municipal and national authorities of El Salvador.
4. 567. CLAT demands the immediate release of the three trade unionists, the dismissal of the charges against them, and full compliance with both Convention No. 87, which states that “the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”, and Convention No. 98, under which “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Such protection shall apply more particularly in respect of acts calculated to: (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours”.
5. B. The Government’s reply
6. 568. In its communication dated 21 May 2007, the Government stated that the complainant’s allegations are true in the sense that Mr José Vicente Ramírez, president of the ANTRAVEPECOS, was indeed arrested; what is not true is that he was arrested as he accompanied a demonstration against the eviction of the trade union’s members from their work premises, since he was arrested six days after the street protest had taken place – a protest which resulted in damage to the town hall of Apopa and personal injury to its employees. Mr José Vicente Ramírez was in fact arrested within the context of the reorganization of the various vendors and small traders of the municipal market and areas close to the town of Apopa.
7. 569. For the purposes of this reorganization, the town hall of Apopa, together with trade union representatives from the ANTRAVEPECOS, held a number of meetings with a view to regulating the use of parks, streets, pavements and other municipal areas in order to ensure free movement in such areas. Both parties had agreed to set up a forum for negotiation and dialogue so as to facilitate mutually satisfactory agreements and had undertaken not to provoke or resort to violence or to have recourse to other authorities outside the town of Apopa.
8. 570. Despite the foregoing, according to the Government, the vendors on 10 February 2007 expressed their disapproval of the reorganization by carrying out a protest march in which they proceeded to shout profanities, throw stones and bricks at municipal buildings, set fire to a vehicle belonging to Apopa town hall and damage other vehicles in the area of the protest. Moreover, a number of town hall employees were injured during these acts of vandalism. In view of this disturbance, the Office of the Attorney-General of the Republic, at the request of the town hall of Apopa, launched an investigation in order to determine and assign responsibility for the injuries and damage caused. The Attorney-General subsequently established, on the basis of eyewitness accounts and photographs, that Mr José Vicente Ramírez was present at the scene of the offence, carrying out and directing the protest, and throwing blunt objects and inciting others to follow suit with the intention of causing damage to property in the town of Apopa.
9. 571. The Government adds that, according to the Attorney-General’s investigations, eyewitnesses to the protest maintain that Mr José Vicente Ramírez gave Mr Luís Alonso Cantarero Castro a container of flammable liquid (petrol) which they used to set fire to a vehicle belonging to the town hall.
10. 572. In the light of such evidence, the Attorney-General presented the magistrate of Apopa with a request for the provisional arrest of Mr José Vicente Ramírez, on the grounds that he had committed offences classed as terrorist acts using weapons, explosive devices or substances, chemical, biological or radiological agents, weapons of mass destruction, or similar objects, as defined and punishable under section 15 of the Special Anti-Terrorism Act, and that there had been special aggravating circumstances, as set forth in section 34, paragraphs (a), (c), (g), (h) and (j) of the same Act, which are to the detriment of public order. This offence is based on the fact that protected legal rights such as integrity of the person, freedom, property and public order, and so on, which are enshrined in articles 1 and 2 of the Constitution, have been endangered in such a way as to fulfil the procedural requirements of section 292 of the Code of Penal Procedure which establishes the prerequisite of fumus bonis iuris (the existence of a plausible right to these measures).
11. 573. Although provisional detention is not the general rule, in this case the magistrate decided that an exception should be made, given the serious nature of the offence in question, which carries a penalty of up to three years’ imprisonment, the fact that the offence also caused social unrest, and because no fixed address could be established for the accused, who has several places of residence; it was assumed that if he were released he would move around from one place to another and hide in the country’s interior, which could hinder a specific part of the investigation and disrupt the judicial proceedings.
12. 574. According to the Government, on 2 March 2007, the defence counsel of Mr José Vicente Ramírez made use of a legal measure that would make his release possible and asked the Court of First Instance of Apopa for a special hearing to review the measure of provisional detention that had been imposed for the offence in question. At this hearing, Mr José Vicente Ramírez requested to be released on bail, alleging that he had a fixed address, although in the court’s view this could not be proved. At this hearing, the measure of preventive detention for Mr José Vicente Ramírez was therefore confirmed.
13. 575. A preliminary hearing had been scheduled for 18 April 2007, but was postponed when the Attorney-General’s representative requested an extension of the deadline to allow further investigations. The hearing was rescheduled for 6 June 2007 at 10 a.m., pursuant to section 275 of the Penal Procedural Code.
14. 576. As can be observed, Mr José Vicente Ramírez was arrested as a result of the damage caused in the town of Apopa and the street disturbances in which he participated directly, which are covered by national criminal legislation. The Government can therefore categorically state that the arrest of Mr José Vicente Ramírez is not related to labour issues, let alone to the violation of trade union rights. In the present case, Mr José Vicente Ramírez does not, strictly speaking, belong to or represent any trade union.
15. 577. El Salvador is a democratic country which respects freedoms, but is also governed by a legal framework in which each person or official is subject to laws which must be respected. As a democratic country, El Salvador respects freedom of expression in accordance with article 29(2) of the Universal Declaration of Human Rights; article 19.3(a) and (b) of the International Covenant on Civil and Political Rights; and articles 13.1 and 13.2(a) and (b) of the American Convention on Human Rights.
16. 578. On the basis of the foregoing, the Government believes that, since the alleged acts did not constitute a violation of trade union rights, the present complaint should be dismissed.
17. 579. In its communication of 11 June 2007, the Government states that the preliminary hearing of Mr José Vicente Ramírez, Mr Luís Alonso Cantarero and Ms Suyapa Martínez, who were being held for acts of terrorism, took place on 6 June 2007. At the end of the preliminary hearing, the Court of First Instance ruled that the acts leading to the arrest of Mr José Vicente Ramírez, Mr Luís Alonso Cantarero and Ms Suyapa Martínez could not be classed as acts of terrorism and that the Special Anti-Terrorism Act was therefore not applicable in this case, but that the defendants would continue to be tried for the ordinary offences of injury and serious damage under sections 143, 221 and 222 of the Penal Code. The judge then ruled that Mr José Vicente Ramírez, Mr Luís Alonso Cantarero and Ms Suyapa Martínez should remain in custody for the duration of the sentencing (public) hearing. The Government states once again that the arrests are not related to labour issues, let alone to the violation of trade union rights.
18. 580. In its communication of 15 August 2007, the Government states that pursuant to the hearing held before the fifth judge of San Salvador on 5 July 2007, Mr José Vicente Ramírez and Mr Luís Alonso Cantarero, who had been charged with the offences of causing aggravated personal injuries and serious damages under articles 143, 221 and 222 of the Penal Code, were released after having reached a settlement with the victims of the offences mentioned above. According to this settlement, those involved agreed to pay US$6,943.65, of which $3,000 was handed over to the legal representative of the authorities of the Municipality of Apopa during the hearing in the presence of the judge. On the basis of this information, it becomes clear that the detention of Mr José Vicente Ramírez, Mr Luís Alonso Cantarero and Ms Suyapa Martínez was not motivated by any labour issue, and did not aim at restricting their activities as trade union leaders.

C. The Committee’s conclusions

1. 581. The Committee notes that, in the present complaint, the complainant alleges that Mr José Vicente Ramírez, Mr Luís Alonso Cantarero and Ms Suyapa Martínez, leaders of ANTRAVEPECOS, were arrested and tried for acts of terrorism, when, in reality, they were arrested and tried following their participation in a protest against the eviction of informal economy vendors and traders carried out by the authorities of the municipality of Apopa under the terms of a court order.
2. 582. The Committee notes the Government’s statements, according to which: (1) Mr José Vicente Ramírez was arrested not as he accompanied a demonstration against the eviction of the trade union’s members from their work premises, but six days after the street protest which caused material damage to the town hall and personal injury to its employees; (2) Mr José Vicente Ramírez was arrested within the context of the reorganization of the various vendors and small traders of the municipal market and areas close to the town of Apopa, after it had been agreed that a forum for negotiation and dialogue would be established with ANTRAVEPECOS, with both parties undertaking not to resort to violence; (3) despite the foregoing, on 10 February 2007, the vendors, who disapproved of the reorganization, carried out a protest march during which they threw stones and bricks, and set fire to and damaged vehicles, which resulted in a number of town hall employees being injured; (4) the Attorney-General established that Mr José Vicente Ramírez had led the protests, throwing blunt objects and inciting others to follow suit; witnesses to the events say that he gave Mr Luís Alonso Cantarero a container of petrol which they then used to set fire to a vehicle; (5) at the request of the Attorney-General, the magistrate of Apopa ordered the provisional arrest of Mr José Vicente Ramírez, without provisional release, among other reasons because the fixed address of the accused could not be proved; (6) at the preliminary hearing (6 June 2007), the court ruled that Mr José Vicente Ramírez, Ms Suyapa Martínez and Mr Luís Alonso Cantarero had not committed acts of terrorism but would continue to be tried for ordinary offences of aggravated personal injury and serious damage, punishable under the Penal Code; it also ruled that they would remain in custody for the duration of the public hearing; (7) on 5 July 2007, pursuant to the hearing held before the judicial authority, both trade union leaders were released after having reached a settlement with the victims of the offences mentioned above and having agreed to pay them $6,943.65; (8) these arrests were not related to the exercise of labour or trade union rights, but to acts categorized as criminal offences. The Committee recalls that Article 8 of Convention No. 87 provides that in exercising the rights provided for in this Convention workers’ and employers’ and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.
3. 583. While observing that the statements made by the complainant and the Government over the alleged facts are contradictory, the Committee takes note of the settlement reached (in the framework of the court proceedings) between trade union leaders Mr José Vicente Ramírez and Mr Luís Alonso Cantarero, on the one hand, and the victims, on the other. Given that the latest communication of the Government does not contain any information on the situation of trade unionist Ms Suyapa Martínez (detained in the framework of the criminal proceedings), the Committee requests the Government to transmit the decision handed down on this trade union leader and expects that the judicial authority will issue a ruling in the very near future.