Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 350, Juin 2008

1. 487. The complaint is set out in communications from the Trade Union Association of Teachers of Norte de Santander (ASINORT) and the Single Confederation of Workers of Colombia (CUT) dated 5 and 13 March 2007, respectively. The complainant organizations presented new allegations in a communication received on 11 May 2007.
2. 488. At its March 2008 meeting, the Committee noted that, despite the time that had elapsed since the first presentation of the complaint, the information requested from the Government had still not been received. The Committee drew the Government’s attention to the fact that, in accordance with the procedure established in paragraph 17 of its 127th Report, approved by the Governing Body, it would at its next meeting present a report on the substance of the case even if the information or observations requested had not been received in time, and urged the Government to communicate the information requested as a matter of urgency [see 349th Report, para. 10].
3. 489. Colombia has ratified 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 490. In its communications of 5 and 13 March 2007 the ASINORT and the CUT allege that the following individuals were transferred from their posts by the mayor of Pamplonita, Norte de Santander: Nydia Rene Gafaro Rojas, Carlos Orlando Vera Arias, Jairo Pabón Capacho, Jairo Manuel Leal Parada, Rodolfo Bello Merchán (who received threats against his life and physical integrity for refusing to accept a transfer on the grounds that it was illegal and a flagrant violation of his rights), Hermelina Jaimes de Guerrero, Ana Rosa Valencia Granados and Blanca Inés García. These transfers are alleged to have violated due process which, in the case of transfers of teaching staff, requires a statement of operational necessity by the individual responsible for the establishment requesting the transfer. That condition was not met in the case of the establishments to which the teachers in question were sent, as all the receiving establishments had sufficient staff for their needs. Each of the teachers transferred experienced a deterioration in their conditions of service in the sense that their new establishments were situated about one hour’s travel time from the main highway.
2. 491. The complainant organizations also allege that one of the teachers transferred, Carlos Orlando Vera Arias, was a union official, which meant that there was also an infringement of the trade union immunity he enjoyed as a member of the executive body of the Pamplonita sub-branch of the ASINORT. The other teachers are also members of the Pamplonita sub-branch of the ASINORT and recognized for their union activities and their roles as leaders in the communities in which they had worked previously. The complainant organizations also add that the administration has since carried on a smear campaign, not only against the individuals transferred for their work as unionists and community leaders but also against the union’s Pamplonita sub-branch as a whole.
3. 492. The complainant organizations refer in particular to the case of Carlos Julio Peñaloza García, president of the Pamplonita sub-branch, who in response to the irregular proceedings initiated by the local authorities began his own proceedings to defend the workers’ rights and bring a complaint at the provincial and departmental levels with a view to getting the transferred teachers reinstated in their original posts. For this reason, he received a telephone threat against his life and physical integrity, accusing him of collaborating with paramilitary groups, and forbidding him to return to his old post as Principal of the El Diamante District Secondary School. The persons responsible for these threats are presumed to be members of guerrilla groups. This was duly reported to the public prosecution service of Pamplona where the teacher lives, with a view to appropriate proceedings. The prosecution service referred the case to the investigation department of the Pamplonita police, believing that the case came within its jurisdiction, but to date no progress has been made in the inquiry and no light has been shed on the identity of the culprit(s) and their true intentions.
4. 493. The Departmental Education Ministry granted Carlos Julio Peñaloza García the status of “senior teacher under threat”. This means the continued payment of his salary, removal from the establishment in which he had been employed previously, the granting of one year to pursue the relevant investigation, and relocation to another establishment where his life is not in danger. Despite that protection measure, the administrative and labour department of the Acevedo education authority ordered his transfer to the San José de Calazanz Educational Centre as Rural Director; the establishment in question is located in the municipality of Zulia, an area regarded as a “red zone” owing to the serious problems of security there arising from the armed conflict.
5. 494. According to the complainant organizations, the investigations of these allegations made by the public prosecution service have shed no light on the threats made against the life and physical integrity of Carlos Julio Peñaloza García.
6. 495. Nor has there been any request from the authorities that the competent educational authorities at the municipal, departmental and national levels be informed of these irregularities in time. The latter have ordered investigations by the provincial and regional prosecution service of Norte de Santander. This has, however, been systematically disregarded by the departmental authorities on the alleged grounds that there is no justification for them; proceedings were closed before there was any time to gather and examine evidence, which favoured the case of the Pamplonita authorities.
7. 496. In its communication received on 11 May 2007, the complainant organizations allege that, on 7 February 2007, the national police brutally crushed a peaceful demonstration by people demanding the payment of salary arrears.
8. 497. The complainant organizations indicate that, on 7 February, following a general meeting of teachers, the teachers walked in an entirely peaceful and civilized procession towards the Town Hall with the intention of speaking to the Mayor. He not only refused to receive the union leaders but ordered that the doors be closed to prevent access to his office. The national police arrived with an anti-riot unit supported by two armoured cars. Some minutes later, the unit started indiscriminately firing tear-gas grenades at the demonstrators who began to flee in panic.
9. 498. The media declared the repressive measures adopted by the authority to be abusive.

B. The Committee’s conclusions

1. 499. The Committee regrets that, despite the time that has elapsed since the last examination of the case, the Government has not provided the information requested, although it has on a number of occasions, including through an urgent appeal, been invited to present its comments and observations on the case.
2. 500. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case without the benefit of the information it had hoped to receive from the Government.
3. 501. The Committee recalls that the purpose of the whole procedure set up in the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact. The Committee is convinced that, if the procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them.
4. 502. The Committee observes that the present case refers to the transfer from their posts, without regard to the process established in law, of a number of officials and members of the ASINORT: Carlos Orlando Vera Arias (a union official with trade union immunity that was disregarded), Nydia Rene Gafado Rojas, Jairo Pabón Capacho, Jairo Manuel Leal Parada, Rodolfo Bello Merchán (who received death threats because he refused to accept the transfer), Hermelina Jaimes de Guerrero, Ana Rosa Valencia Granados and Blanca Inés García (members); to threats made against one of those transferred and against Carlos Julio Peñaloza García, president of the Pamplonita sub-branch of the ASINORT, for exercising his trade union function in defence of unionized teaching staff, and to the violent suppression of a demonstration on 7 February 2007 to demand payment of salaries.
5. 503. As regards the transfers of teachers, both officials and rank and file members of the union, the Committee, while emphasizing that the public authorities are entitled to determine where teachers’ services are needed, considers that any transfers should be subject to consultations with the workers concerned and with the unions that represent them, in order as far as possible to avoid adversely affecting the private lives of the staff in question and their trade union activities, especially in the case of Carlos Orlando Vera Arias, who enjoyed trade union immunity by virtue of his position as a union officer. In this regard, the Committee considers that a transfer may have a considerable impact on an individual’s ability to carry on his or her trade union functions and it is therefore necessary, before taking such a step, to consult the trade union concerned and seek judicial authorization for the suspension of trade union immunity in order to carry out the transfer. In any event, if it is confirmed that such authorization was not sought, the Committee requests the Government to annul the transfer of Carlos Orlando Vera Arias until such time as the courts have ruled on the matter of trade union immunity, and invites it to hold consultations with a view to seeking a negotiated settlement. As regards the other transfers, the Committee requests the Government to carry out an investigation in order to ascertain whether the transfer procedure was observed, or whether the measure in question was of an anti-union nature. The Committee requests the Government to keep it informed in this regard.
6. 504. As regards the threats against Rodolfo Bello Merchán, a member of the ASINORT, and against Carlos Julio Peñaloza García, president of the ASINORT, the Committee notes that, according to the allegations, in the threats made against Carlos Julio Peñaloza García he had been accused of collaborating with paramilitary groups and forbidden to return to the El Diamante District Secondary School of which he had been the Principal. The Committee notes that, despite the fact that appropriate complaints were formulated, there has been no progress in the investigation. The Committee also notes in this regard that, in accordance with a decision by the local Ministry of Education, Mr Peñaloza García had been transferred to another establishment for his own protection but when the transfer was to be put into effect he was sent to take up a post as principal of a rural school in the municipality of Zulia, an area affected by the armed conflict. In that regard, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 44]. In these conditions, the Committee requests the Government to take the necessary steps to ensure that protection is provided without delay for the ASINORT members who have been threatened, in particular Mr Peñaloza García, the organization’s president, and that an independent investigation is carried out to determine those responsible for such threats. The Committee requests the Government to keep it informed in this respect.
7. 505. As regards the violent suppression of a demonstration by the ASINORT on 7 February 2007, the Committee notes that according to the information supplied, the demonstration was being held peacefully in support of a claim for payment of salaries when a police anti-riot unit intervened violently, using tear gas and causing injury to demonstrators and passers-by. The Committee recalls in this regard that workers should enjoy the right to peaceful demonstration to defend their occupational interests and that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [Digest, op. cit., paras 133 and 140]. The Committee requests the Government to take the necessary measures to ensure that an independent investigation is carried out to determine how these events occurred and determine responsibilities. The Committee requests the Government to keep it informed in this regard. Lastly, the Committee also requests the Government to issue the necessary instructions to prevent the violent suppression of peaceful demonstrations in the future.
8. 506. Given that the allegations in this case refer to threats, transfers to a conflict zone, and violent suppression of a demonstration, the Committee will carry out the follow-up to the questions arising from this case within the framework of Case No. 1787.