Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 365, Novembre 2012

1. 236. The complaint is contained in a communication from the Congress of Argentine Workers (CTA) dated 11 September 2011.
2. 237. The Government sent its observations in a communication dated May 2012.
3. 238. Argentina 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. 239. In its communication dated September 2011, the CTA states that it is presenting this complaint against the Government of Argentina for serious violations of freedom of association and the rights of workers’ organizations and representatives guaranteed under Conventions Nos 87 and 98 and Resolution No. 19 adopted by the International Labour Conference in 1970, in the form of arbitrary detentions, repression by the state security forces using firearms, anonymous attacks, persecution and police harassment.
2. 240. The CTA states that in recent years in the sugar industry a process of reorganization and trade union growth has been under way of the bodies that represent the workers in the various enterprises in the sector, predominantly located in the provinces of Jujuy, Salta and Tucumán. One of the most powerful enterprises in the sugar industry is the Ledesma Refinery.
3. 241. According to the CTA, job insecurity, little regard for rights, high accident rates and abysmal wages were the determining factors that prompted a process to strive for change and to a series of actions led by trade unions in the sugar sector aiming to put an end to decades of being undermined. The deployment of these actions of self-protection triggered an immediate reaction by the employers in the form of various actions and reprisals against both the actions and the activists and repression by the state authorities, carried out by their security forces.
4. 242. The CTA adds that in this context, in the Province of Jujuy, on 28 July 2011 four workers were murdered and a further two were seriously injured during the violent eviction carried out by state law enforcement officers, and possibly by private security guards hired by Ledesma Refinery, of over 500 workers and their families who were occupying a 15 hectare site owned by the enterprise in Libertador General San Martín in the Province of Jujuy. In the same operation another 27 people participating in the occupation were arrested.
5. 243. The CTA states that most of the workers are members of both the Class Combat Movement, a social and trade union organization made up of employed and unemployed workers, and also of the CTA. The occupation of the site had been organized by the Class Combat Movement as a way of increasing visibility in order to obtain a response from the Government regarding the achievement of a fundamental right: access to decent housing.
6. 244. The CTA alleges that during these incidents, Mr Carol Leónides Sosa, social action secretary of the Trade Union of Ledesma Refinery Sugar Workers and Employees, affiliated to the CTA (SOEA–CTA), and vice-president of the benevolent fund for staff at the Ledesma Refinery, elected on 10 June 2011, was unjustifiably arrested by police when, during the clashes, he left his house to ask that no more tear gas be used against the occupiers or his home. Following his arrest he was moved to the Calilegua police station and held with other detainees, all accused of committing common crimes. No charges were brought against the official. The judicial complaint into the case lodged by the CTA is being heard as Case No. 16.409/11 and is under the responsibility of Judge Jorge Samman. But at the time of his arrest and during all the repressive measures, it was Judge Carolina Pérez Rojas who was responsible for the criminal court to which application was made for the release of the official, which was systematically refused and then only agreed to following 24 hours under entirely unlawful arrest.
7. 245. The CTA adds that Fernando Daniel Arias, representative of the trade union group Grey List, which won in the elections of 10 June 2011 held at the Trade Union of Ledesma Refinery Sugar Workers and Employees, affiliated to the CTA (SOEA–CTA), was a targeted victim of police repression on 28 July 2011. According to the CTA, Mr Arias was singled out by police, approached by the officers and shot in the leg with a lead projectile. Mr Arias had to be operated on in a clinic in the city of San Pedro de Jujuy to remove a lead bullet, which has been seized by the criminal court to be used as evidence. The complaint is being heard under the same Case No. 16.409/11, and is also under the responsibility of Judge Jorge Samman, before Criminal Court No. 6, Registry No. 12 of the Judicial Centre of San Pedro de Jujuy, in the Province of Jujuy.
8. 246. The CTA also alleges that on 20 August 2011, at approximately 6 a.m., José María Castrillo, union secretary of the Trade Union of La Esperanza Refinery Sugar Workers and Employees, affiliated to the CTA (SOEA–CTA), had two hit men fire shots at him, using weapons of different calibres, in front of his home in the city of San Pedro de Jujuy. At least six shots were fired, two of which entered the house, where the official and his family were located. The CTA adds that Mr Castrillo is an important social representative of the Sugar Trade Union, a trade union activity that he has been involved in for many years with irreproachable conduct and major achievements in defence of workers’ rights. His conduct and actions in defence of workers’ rights constitute a threat to certain economic interests consolidated by reproducing archaic systems of worker exploitation and which are without a doubt linked to the cowardly action of carrying out a furtive attack on his home, endangering his life and the lives of his family, making them a target of trade union violence. The attack was reported to the police authorities (police file No. 586/11), and is being heard by Criminal Court No. 5, Registry No. 10 of the Judicial Centre of San Pedro de Jujuy, in the Province of Jujuy. According to the CTA, it is a matter of concern that the judge that is hearing the case is Judge Carolina Pérez Rojas (who is responsible for the court in question), as she was the one to order the eviction and repression that occurred on 28 July 2011 from land belonging to the Ledesma Refinery, during which four workers were murdered by police and security guards contracted by the enterprise that owns the land.
9. 247. The CTA also alleges that on Tuesday, 11 October, at approximately 4 a.m., unknown individuals, across a railing separating Mr Castrillo’s home from the public footpath, managed to set fire to a motorbike of low cylinder capacity which the official uses to go to work and to carry out his union activities; the vehicle was a write-off. The legal case for this offence is also before Court No. 5. The CTA indicates that up until the time the complaint was lodged there has been no news on the investigation into the two attacks against the trade union official Mr Castrillo and his family.
10. 248. The CTA notes that it is universally accepted that it is not possible to exercise freedom of association without the full and unrestricted enjoyment of human rights. The assurance of the practical effectiveness of freedom of association necessarily requires the full application of the guarantees of civil rights and public freedoms. It is for this reason that the CTA believes that the anonymous attacks, the arbitrary detentions and the armed suppression of trade union officials from the unions in the sugar sector, as reported, constitute actions deployed or tolerated by the state authorities, intended to obstruct the proper exercise of freedom of association and of the other rights associated with it. This being the case, the institutional response afforded by the social rule of law can be no other than to investigate, prosecute and punish those responsible for planning and perpetrating the serious incidents referred to in the complaint.
11. 249. The CTA states that the history of impunity that exists in the face of state and semi-official repression targeting social and trade union officials does not inspire it with optimism with regard to the true commitment of the Government of Argentina to effectively address the cases in question. Consequently it is necessary to lodge all relevant complaints at both the national and international levels in order to obtain the minimum guarantees essential for the exercise of the activities and other rights involved in freedom of association. According to the CTA, the repression used by the Government of Argentina has violated both the freedom of association of the persecuted officials, and the rights of freedom of expression, due process and physical integrity, seriously affecting the protections established in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
12. 250. Lastly, the CTA highlights that both the characteristics of the specific allegations being referred to in the complaint and the context of the suppression of social protest in which they occurred lead to the inescapable conclusion that the Government’s true aim is to silence the voices of dissent, thereby quite simply stifling workers’ freedom of expression and limiting the full enjoyment of the rights emanating from freedom of association.

B. The Government’s reply

1. 251. In its communication dated May 2012, the Government sent the reply communicated by the Director-General of the Labour Directorate of Jujuy Province on the complaint in question.
2. 252. The authorities of the Provincial Labour Directorate of Jujuy Province state the following:

   (a) Events that took place in Libertador General San Martín on 28 July 2011

   • According to the media, on 20 July 2011 approximately 600 families, with the support of a political organization called Class Combat Movement (CCC), under the command of the leader of the CCC of Jujuy, Enrique “Kike” Mosquera, illegally occupied land belonging to the enterprise Ledesma S.A.A.I., located on the “El Triángulo” site, of an area of approximately 15 hectares, in the vicinity of the sugar refinery owned by the company. Following the occupation, Ledesma S.A.A.I. initiated criminal proceedings before Criminal Court No. 6 at the Judicial Centre of San Pedro, Judicial Authority of the Province of Jujuy which, after authorizing the peaceful clearance of the land, finally ordered the eviction to be carried out on 28 July 2011; this was done by Ms Carolina Pérez Rojas, who replaced the judge when he went on leave. On 28 July 2011, in compliance with the court order, police officers appeared at the site at 6.00 a.m. For reasons that are under judicial investigation, Alejandro Farfán died after being shot in the neck, and three other people, Ariel Farfán, Félix Reyes and Víctor Heredia, were wounded. Dr Roberto Maizel at the hospital Oscar Orias in the nearby city of Libertador General San Martín, said that at least 30 people, including ten police officers, received treatment for a variety of injuries caused by lead bullets, rubber bullets and stones. The situation caused in Libertador General San Martín led to several arrests and a political and social crisis which led to the resignation of the government minister and of the provincial police chief, and to the suspension of internal elections in the Justicialist Party and the Radical Civic Union, scheduled for Sunday, 31 July 2011. As a result of these events judicial proceedings were initiated which are still in progress.

   (b) Events causing injury to José María Castrillo

   • On 20 August 2011, at approximately 6.00 a.m., shots were fired at the home of José María Castrillo, union secretary of the Trade Union of La Esperanza Refinery Sugar Workers and Employees, located in the city of San Pedro de Jujuy, Province of Jujuy, allegedly by two hit men according to newspaper sources. The corresponding criminal proceedings were initiated in view of these unlawful acts and the judicial inquiry is currently before National Criminal Investigation Court of First Instance No. 5, Registry No. 10 of the Judicial Centre of San Pedro de Jujuy, in the Province of Jujuy.

   Explanatory introduction

   • Turning to the ethical issues relating to the above events, I again consider that both should be dealt with differently as they relate to situations that are substantially different from the point of view of prevailing regulations.

   (a) Events that took place in Libertador General San Martín on 28 July 2011

   • It should first of all be noted that the Government of Argentina is currently investigating these events in order to clarify the facts, identify those responsible and, as appropriate, assess the degree of responsibility to be attributed to the protagonists; consequently it is too early to give any opinion on this matter at present, as it is only when the facts have been clarified that it will be possible to make an assessment.
   • With this proviso, as far as these events are concerned I consider that there is currently nothing to suggest anything akin to alleged trade union persecution or the hampering of freedom of association and the right to demonstrate and act in defence of workers’ rights, that could be considered as violating ILO Conventions Nos 87 and 98, at least according to the information currently available, without prejudice to the judicial inquiry under way.
   • The regrettable events that led to the deaths and injuries occurred in the context of an occupation of private land by a group of people, currently under investigation, in other words to date there is no evidence that they were acting collectively in defence of the rights of workers at the refinery or of any other trade union interests.
   • The regrettable consequences of the events under examination do not undermine the premise of application of the Conventions invoked by the complainant, that is to say the exercise of the rights of association and collective bargaining for the purpose of defending workers’ interests.
   • Acting in support of labour causes is the reason for and the substance of the organization and activities of trade unions. The instruments that the complainant is presenting to the Committee on Freedom of Association of the ILO for consideration protect the free exercise of this right from being tampered with or obstructed.
   • Article 1 of ILO Convention No. 98 provides that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment ...”.
   • It is clear that the material sphere of application of this international standard presupposes claims made by a workers’ organization seeking to protect trade union interests because the authentic defence of the collective rights of workers are being jeopardized; what is being legally protected is freedom of association as a means of ensuring the effective implementation of standards that protect labour law.
   • This dual dimension, both individual and collective, which is being jeopardized in the right to “associate for relevant purposes” as stipulated in Article 14 of the National Constitution, was expressly recognized by the Supreme Court of Justice in the recent decision handed down in the case “the Association of State Workers v. the Ministry of Labour regarding the Act on Trade Union Associations”. On that occasion the High Court indicated: “... the progressive development of the regulation of the right of association, already provided for in the National Constitution of 1853–1860 (Art. 14), highlighted the dual order of essential aspects contained in it, which, to the same extent, are essential to shed light on the case. On the one hand, it revealed the two interlinked dimensions associated with this right: individual and social. On the other, it warned of the specificity of the right of association in the trade union sphere, giving rise to the consolidation of so-called freedom of association ...” (point 3).
   • The Supreme Court, in the above decision, refers specifically to these safeguards necessary for the democratic and peaceful development of these freedoms, in accordance with the judicial decisions of the Inter-American Court of Human Rights in the case of Huilca Tecse v. Peru (Case of Huilca-Tecse v. Peru, merits, reparations and costs, judgment of 3 March 2005, Series C, No. 121, para. 74). In this respect it holds that: “... the whole human rights corpus iuris highlights the content of the right to freedom of association and its two inseparable dimensions: individual and social”. According to the judgment of the Inter-American Court of Human Rights, the terms of Article 16.1 of the American Convention establish “literally” that “those who are protected by the Convention not only have the right and freedom to associate freely with other persons, without the interference of the public authorities limiting or obstructing the exercise of the respective right, which thus represents a right of each individual”, but they “also enjoy the right and freedom to seek the common achievement of a licit goal, without pressure or interference that could alter or change their purpose.”
   • It then emphasizes “... Furthermore, in various ways the international instruments cited established, in the far-sighted manner provided in Article 14bis, specific spheres of freedom of association. Thus, Article 8 of the International Covenant on Economic, Social and Cultural Rights stipulated the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others”.
   • According to the information currently available, no trade union organization was citing labour rights of any kind when the security forces intervened.
   • The court order was limited to clearing some occupied pieces of land, and did not involve monitoring, let alone suppressing, a trade union demonstration. With regard to the arrests, these occurred in a context of resistance to the court order, and as such the State cannot be blamed for having arrested people who were actively involved in the conflict. Moreover, the arrests are a result of the regular exercise of the police’s powers when dealing with unlawful acts and there are no elements to suggest that their status as trade union representatives had anything to do with the arrests of the people in question.
   • The complainants acknowledge that the arrest of Mr Carol Leónides Sosa was unrelated to his position as social action secretary of the Trade Union of Ledesma Refinery Sugar Workers and Employees or to his role in defence of labour rights, but was rather due to the fortuitous circumstance that his house is situated next to the area where the clashes were taking place and the fact that he went outside to ask the police to stop using tear gas.
   • Consequently I consider that the complaint is not justified on this point as this is not a case of coercive restriction of the free exercise of associational activities or activities in the defence of workers.
   • In addition, it should be noted that no direct responsibility can be attributed, at least until the judicial investigation has been completed, to the Government of Argentina, for the unfortunate events that took place on 28 July 2011, especially in view of the fact that many of the province’s police officers were wounded and one died as a result of a gunshot wound, so caution is called for in this regard.

   (b) Events causing injury to José María Castrillo

   • With regard to the criminal acts carried out against the union secretary of the Trade Union of La Esperanza Refinery Sugar Workers and Employees (SOEA), it must first be determined whether these events are related to his union activities, but it is reasonable to suspect that there might be a link.
   • This possibility should be viewed in the context of internal struggles within the SOEA, which should be taken into account when assessing the situation.
   • It is common knowledge that since 2011 the trade union in question has been facing internal divisions, which were leaked to the public and resulted in the dismissal of union representatives, including Mr Castrillo, and accusations being made among the members of the executive committee, which in turn led to them presenting themselves to the Ministry of Labour, Employment and Social Security under file No. 172779/11 and all resigning from their posts on 9 May 2012, to call new elections in the following months, with an electoral standardizing delegate being appointed to oversee the trade union elections.
   • Whereas in the case of the events of 28 July 2011 the Government of Argentina was accused of being responsible for alleged trade union persecution on the basis of an unproven appraisal, given that there is no indication of the existence of trade union activities and neither is it clear that any repressive actions were taken by the security forces, in the case of the violence against Mr Castrillo, no direct intervention can be attributed to the Government of Argentina, as in any case it relates to a criminal act being committed against Mr Castrillo, who at the time was a trade union official, by unidentified individuals.
   • However, even if we advance the hypothesis of alleged indirect state responsibility in the guarantee of protection it owes its citizens, particularly in respect of trade union activities, it is also both premature and unfounded to accuse the Government of Argentina, as a judicial inquiry is under way in an attempt to clarify the facts, which have rightly been characterized as criminal and which are being dealt with as such.
   • The scourge of crime is a reality that is being tackled throughout the world and the Government cannot be implicated just because these offences occur, provided that the Government ensures that they are prosecuted and punished through legal and constitutional channels.
   • Beyond the real possibility that Mr Castrillo is indeed being persecuted because of his activities in defence of the collective interests of his colleagues, the fact is that the Government cannot be held responsible for these unlawful attacks while it is acting as it has been doing, putting its resources and energy into pursuing criminal prosecution for these actions.
   • Consequently I consider the injustice reported by the complainants on this matter to be unfounded, as the conduct of the public bodies has been irreproachable in respect of the offences suffered by Mr Castrillo.

C. The Committee’s conclusions

1. 253. The Committee observes that in the present case the CTA alleges that the following acts of violence occurred during a period of unrest and the implementation of a series of actions by trade unions in the sugar sector aiming to put an end to decades of being undermined: (i) the murder of four workers (a further two were seriously injured) during the violent eviction of over 500 workers who were demanding decent housing on a 15 hectare site on the Libertador General San Martín facility in the Province of Jujuy, carried out by state law enforcement officers on 28 July 2011; (ii) the arrest during these violent clashes of Mr Carol Leónides Sosa, social action secretary of the Trade Union of Ledesma Refinery Sugar Workers and Employees, for 24 hours (without any charges being brought against him); (iii) an attack by the police using firearms directed at Fernando Daniel Arias, a representative of the same union; and (iv) a firearms attack in the early hours of the morning on the home in the city of San Pedro, Province of Jujuy, of trade union official José María Castrillo, union secretary of the Trade Union of La Esperanza Refinery Sugar Workers and Employees on 20 August 2011 (the trade union official and his family were at home) and the burning of a vehicle belonging to the trade union official (at his home) on 11 October 2011 in the early hours of the morning.
2. 254. The Committee observes, in respect of the allegations, that the Government has sent the reply of the Provincial Labour Directorate of Jujuy Province.
3. 255. Concerning the allegations relating to the death of four workers and the injuries suffered by two workers during a violent clearance of a site occupied by workers who were demanding decent housing, the Committee notes that the provincial administrative authority has indicated that: (i) the events are being investigated to clarify the facts, identify those responsible and, as appropriate, assess the degree of responsibility to be attributed to the protagonists; consequently it is too early to give any opinion on this matter at present, as it is only when the facts have been clarified that it will be possible to make an assessment; (ii) there are currently no elements suggesting anything akin to alleged trade union persecution or the hampering of freedom of association, the right to demonstrate and act in defence of workers’ rights, that could be considered as violating ILO Conventions Nos 87 and 98, at least according to the information currently available, without prejudice to the judicial inquiry under way; (iii) the regrettable events that led to the deaths and injuries occurred in the context of an occupation of private land by a group of people, currently under investigation, in other words to date there is no evidence that they were acting collectively in defence of the rights of workers at the refinery or of any other trade union interests; and (iv) according to the information currently available, no trade union organization was citing labour rights of any kind when the security forces intervened, and the court order was limited to clearing some occupied pieces of land, and did not involve monitoring, let alone suppressing, a trade union demonstration.
4. 256. With regard to the alleged detention, during the violent incidents mentioned in the previous paragraph, of Carol Leónides Sosa, social action secretary of the Trade Union of Ledesma Refinery Sugar Workers and Employees, for 24 hours (without any charges being brought against him), the Committee notes that according to the provincial administrative authority, the complainants themselves acknowledge that his detention was unrelated to his status as social action secretary of the Trade Union of Ledesma Refinery Sugar Workers and Employees or to his role in defence of labour rights, but was instead due to the fortuitous circumstance that his house is situated next to the area where the clashes were taking place and the fact that he went outside to ask the police to stop using tear gas. The Committee requests the complainant to indicate whether they agree with this assertion. The Committee notes nevertheless that according to the complainant, this was the object of a complaint which is being heard (case No. 16.409/11).
5. 257. Concerning the alleged firearms attack by the police, during the violence on 28 April 2011, targeting Fernando Daniel Arias, a representative of the same union, the Committee observes that neither the Government nor the provincial administrative authority have sent their observations on the matter, but that the complainant organization says that these have been reported and that it lodged a complaint which is being heard as case No. 16.409/11 before Criminal Court No. 6, Registry No. 12 of the Judicial Centre of San Pedro de Jujuy, in the Province of Jujuy.
6. 258. With regard to the alleged firearms attack in the early hours of the morning on the home in the city of San Pedro, Province of Jujuy, of trade union official José María Castrillo, union secretary of the Trade Union of La Esperanza Refinery Sugar Workers and Employees on 20 August 2011 (the trade union official and his family were at home) the provincial administrative authority states that: (i) according to newspaper sources, the shots were fired at the home of the union secretary by two hit men; (ii) the corresponding criminal proceedings were initiated in view of these unlawful acts and the judicial inquiry is currently before National Criminal Investigation Court of First Instance No. 5, Registry No. 10 of the Judicial Centre of San Pedro de Jujuy, in the Province of Jujuy; (iii) it must be determined whether these events are related to his union activities, but it is reasonable to suspect that there might be a link; moreover, this possibility should be viewed in the context of internal struggles within the union, which should be taken into account when assessing the situation; (iv) it is common knowledge that since 2011 the trade union in question has been facing internal divisions, which were leaked to the public and resulted in the dismissal of union representatives, including Mr Castrillo, and accusations being made among the members of the executive committee, which in turn led to them presenting themselves to the Ministry of Labour, Employment and Social Security and all resigning from their posts on 9 May 2012, to call new elections in the following months, with an electoral standardizing delegate being appointed to oversee the trade union elections; (v) in the case of violence against Mr Castrillo, no direct intervention can be attributed to the Government of Argentina, as in any case this relates to a criminal act being committed against Mr Castrillo by unidentified individuals and it is both premature and unfounded to accuse the Government of Argentina as a judicial inquiry is under way in an attempt to clarify the facts, which have rightly been characterized as criminal and which are being dealt with as such; (vi) the scourge of crime is a reality that is being tackled throughout the world and the Government cannot be implicated just because these offences occur, provided that the Government ensures that they are prosecuted and punished through legal and constitutional channels; (vii) beyond the real possibility that Mr Castrillo is indeed being persecuted because of his activities in defence of the collective interests of his colleagues, the fact is that the Government cannot be held responsible for these unlawful attacks while it is acting as it has been doing, putting its resources and energy into pursuing criminal prosecution for these actions; and (viii) the conduct of the public bodies has been irreproachable in respect of the offences suffered by Mr Castrillo.
7. 259. The Committee deplores the gravity of the allegations, the alleged deaths, acts of violence and detentions. It recalls that on previous occasions when examining allegations relating to acts of violence it has stated that “in the event of assaults on the physical integrity of individuals, the Committee has always considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 50]. The Committee observes that judicial inquiries are under way in respect of the violent acts committed in the Province of Jujuy on 28 July 2011 in which four workers died and the trade unionist Fernando Daniel Arias was injured, and of the firearms attack on the home of trade union official José María Castrillo on 20 August 2011. The Committee notes that the administrative authority of the Province of Jujuy is questioning the anti-union nature of the violent acts committed on 28 July 2011 and has provided information concerning an intra-union dispute in respect of the acts of violence suffered by Mr Castrillo.
8. 260. In these circumstances, the Committee requests the Government: (1) to communicate the outcome of the judicial inquiries relating to the violent acts committed on 28 July 2011 in the Province of Jujuy in which four workers died and the trade unionist Fernando Daniel Arias was injured, and to the firearms attack on the home of trade union official José María Castrillo on 20 August 2011; and (2) to inform it whether a judicial inquiry has been opened into the alleged burning of a vehicle belonging to trade union official José María Castrillo (at his home) on 11 October 2011 in the early hours of the morning and, if so, to report on the outcome.