Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 387, Octobre 2018

1. 560. The Committee last examined this case at its October 2017 meeting, when it submitted an interim report to the Governing Body [see 383rd Report, paras 489–504, approved by the Governing Body at its 331st Session (October–November 2017)].
2. 561. The Government sent its observations in communications dated 26 June, 9 August, 5, 18 and 20 September 2018.
3. 562. Peru 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 563. At its previous meeting, the Committee made the following recommendations [see 383rd Report, para. 504]:
   • (a) The Committee requests the Government to keep it informed of the findings of the investigation being conducted into the murder of union leaders Mr Rubén Snell Soberón Estela and Mr Miguel Díaz Medina.
   • (b) The Committee requests the Government to ensure that further investigations are conducted that would allow the perpetrators and instigators of the murder of trade union leader Mr Guillermo Alonso Yacila Ubillus to be identified, and that the guilty parties are duly penalized; the Committee also requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government to provide information as soon as possible on the criminal proceedings relating to the murder of union members Mr Rodolfo Alfredo Mestanza Poma and Mr Luis Esteban Luyo Vicente.
   • (d) The Committee urges the Government to take all possible steps to ensure that the Public Prosecutor’s Office conducts, as soon as possible, a thorough investigation into the reasons and the persons responsible for the violence in the construction sector, and that all the necessary penal action is taken based on the findings of the investigations.
   • (e) Emphasizing that the problem of violence in the civil construction sector and action to eradicate it must be considered in the context of social dialogue, the Committee once again requests the Government to keep it informed of the actions taken to build trust between the parties and foster tripartite dialogue.
   • (f) The Committee once again draws the special attention of the Governing Body to the extremely serious and urgent nature of this case.

B. The Government’s reply

1. 564. In its communications of 26 June, 9 August, 5, 18 and 20 September 2018, the Government submits updated information from the Public Prosecutor’s Office on the status of the investigations conducted into the murders of various union leaders and members from the civil construction sector. The Government also reports on the work undertaken by the Crime Observatory of the Public Prosecutor’s Office and the actions taken to foster tripartite dialogue on the problem of violence in the civil construction sector.
2. 565. With regard to the Committee’s recommendations (a), (b) and (c) concerning the investigations conducted into the murders of union leaders and members, the Government reports that the investigations conducted by the Provincial Prosecutor’s Office Specializing in Organized Crime of Lambayeque into the murders of Rubén Snell Soberón Estela and Miguel Díaz Medina have been shelved on a preliminary basis. With regard to Guillermo Alfonso Yacila Ubillus, the Government encloses a copy of a decision of the Sixth Provincial Criminal Prosecutor’s Office of 12 May 2014, by which the case was permanently shelved as the investigation had been unsuccessful and the perpetrator or perpetrators of the murder had not been identified. Regarding Rodolfo Alfredo Mestanza Poma, the Government includes a series of documents indicating that: (i) on 21 December 2016, the Provincial Public Prosecutor’s Office for Corporate Affairs in Huaura requested that the case against those accused of the murder be closed, given that there was no evidence that could justify their potential prosecution; and (ii) on 30 May 2017, the request for closure was approved, and became final by Decision No. 5 of 14 June 2017, from which date the proceedings in question were permanently closed.
3. 566. The Government also reports that, pursuant to a decision issued on 8 May 2017, the Cañete High Court of Justice acquitted the only defendant for the homicide of Luis Esteban Luyo Vicente on the grounds of insufficient evidence. The Government encloses a copy of that decision, in which the Court emphasized that standardized ballistics analysis was not carried out on the seized weapons, demonstrating that the Public Prosecutor’s Office did not act diligently and with objectivity, not fulfilling its role, and therefore the defendant should be acquitted on the grounds of insufficient evidence. Furthermore, the Government reiterates that, as it has reported on previous occasions, while in 2014 the Second Criminal Appeals Chamber of Trujillo upheld the 20-year custodial sentence for the accomplice in the homicide of union member Mr Jorge Antonio Vargas Guillen, it had not been possible to identify the principal perpetrator and the convicted person only drove the motorcycle from which the shots were fired.
4. 567. The Government also includes two official letters from the Public Prosecutor’s Office, dated 16 March and 18 July 2018, in which the work carried out by the Crime Observatory in recent years is summarized. The letters indicate that, since 2015, as part of its programme for implementing criminological investigations and forecasting, the Observatory has systematized relevant data on crime and violence using an approach focused on several core areas, including homicides and extortion. The letters also indicate that, so far this year, the Observatory, along with the National Institute of Statistics and Information Technology, has carried out a comparison of data on homicides recorded by the national police in 2017 with information produced by the Statistical Committee of the Public Prosecutor’s Office and the decentralized committees of the district public prosecutors. The letters indicate that, in the face of budgetary restrictions, efforts are being made to finalize the publication of a gazette of common crime, violence and civil insecurity, 2013–18.
5. 568. With regard to the Committee’s recommendation (e) concerning the actions taken by the Government to foster tripartite dialogue in order to address the problems in the civil construction sector, the Government indicates that, by means of Supreme Decree No. 87 2015, it established a multi-sectoral committee that serves as a forum for dialogue, coordination and monitoring of the actions to prevent and penalize violence in the sector, with the participation of the main representatives of civil construction employers and the Federation of Civil Construction Workers of Peru as well as the Ministry of Labour and other government agencies. The Government indicates that the committee holds periodic meetings in which it analyses and develops measures to counter violence in the civil construction sector. The Government encloses a copy of the minutes of the last session of the Multi-Sectoral Committee, dated 20 December 2017, which indicate the date and location of the meeting and the names of the participants. The Government also indicates that the problem of violence in the construction sector is also discussed at the National Labour and Employment Promotion Council (CNTPE), a labour dialogue and consultation mechanism chaired by the Minister of Labour and comprising the most representative workers’ and employers’ organizations. According to the Government, an initiative was presented to the CNTPE in 2014 that provided for the establishment of registers of civil construction workers, with a view to, inter alia, contributing to the eradication of violence in that sector. The Government indicates that those registers were approved by means of Supreme Decree No. 009-2016 and are currently in force. The Government also indicates that the Multi-Sectoral Committee intends to outline a draft inter-sectoral protocol for interventions in civil construction works that will help prevent outbreaks of violence in the sector.

C. The Committee’s conclusions

1. 569. The Committee recalls that the present case concerns the murders of union leaders and members against the backdrop of a climate of violence, threats and extortion created by criminal mafia groups in the civil construction sector. The complainant organizations also allege that the authorities are uninterested and ineffective and that the groups which commit the crimes do so with impunity.
2. 570. The Committee notes the detailed information from the Public Prosecutor’s Office, transmitted by the Government, concerning the status of the investigations conducted into the murders of trade union leaders and members, which indicates that the investigations conducted by the Provincial Prosecutor’s Offices of Lambayeque, Callao and Huaura into the murders of Rubén Snell Soberón Estela, Miguel Díaz Medina, Guillermo Alfonso Yacila Ubillus and Rodolfo Alfredo Mestanza Poma have been temporarily and/or permanently shelved as the perpetrators could not be identified. The Committee also notes that, pursuant to a decision issued on 8 May 2017, the Cañete High Court of Justice acquitted the only defendant for the homicide of Luis Esteban Luyo Vicente on the grounds of insufficient evidence. The Committee observes with concern that in the aforementioned decision, the Court emphasized that standardized ballistics analysis was not carried out on the seized weapons, demonstrating that the Public Prosecutor’s Office did not act diligently and with objectivity, not fulfilling its role, and therefore the defendant had to be acquitted of homicide on the grounds of insufficient evidence. The Committee also notes that, according to the Government, while in 2014 the Second Criminal Appeals Chamber of Trujillo upheld the 20-year custodial sentence for the accomplice in the homicide of union member Jorge Antonio Vargas Guillen, it had not been possible to identify the principal perpetrator given that the convicted person only drove the motorcycle from which the shots were fired.
3. 571. The Committee expresses its deep concern at the absence of judgments against the perpetrators of the homicides and at the fact that the Public Prosecutor’s Office has shelved the investigations. The Committee recalls that in its previous examination of the case, it had already noted that the investigation into the murder of trade union leader Guillermo Alonso Yacila Ubillus had been shelved and the Committee had requested the Government to ensure that further investigations were conducted that would allow the perpetrators and instigators of the murder to be identified. The Committee emphasizes the importance of investigations into the murders of trade unionists yielding concrete results in order to determine reliably the facts, the motives and the persons responsible, in order to apply the appropriate punishments and to prevent such incidents recurring in the future [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 96]. The Committee also recalls that in cases of physical or verbal violence against workers’ and employers’ leaders and their organizations, it emphasized that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Compilation, op. cit., para. 108].
4. 572. Furthermore, the Committee notes that, while the Government encloses official letters from the Public Prosecutor’s Office, dated 16 March and 18 July 2018, summarizing the Crime Observatory’s ongoing work to collect statistical data on crime and violence, these letters do not make reference to data collection for the civil construction sector or the carrying out of a quantitative and qualitative investigation into the cases of extortion and homicide in the civil construction sector, which was included in the Observatory’s 2014 plan of work and had been rescheduled for institutional reasons. The Committee recalls that in the most recent examinations of the case it had urged the Government to take all possible steps to ensure that the Public Prosecutor’s Office conducts such an investigation as soon as possible.
5. 573. The Committee considers it to be vitally important that the Public Prosecutor’s Office conduct a thorough investigation into the reasons and the persons responsible for the violence in the construction sector, especially in the context of a lack of judgments against those responsible for the murders. The Committee once again urges the Government to take all possible steps to ensure that the Public Prosecutor’s Office conducts, as soon as possible, a thorough investigation into the reasons and the persons responsible for the violence in the construction sector, and that all the necessary penal action is taken based on the findings of the investigations. The Committee trusts that such an investigation will bring to light information that will allow the investigations into the murders of the aforementioned trade union leaders and members to be reopened, as those murders cannot remain unpunished. The Committee requests the Government to keep it informed in this regard.
6. 574. Lastly, the Committee recalls that, in addition to requesting the aforementioned investigation, it had invited the Government to continue to take measures in the framework of tripartite dialogue to address the issue of violence in the civil construction sector. In that regard, the Committee notes that the Government recalls that, in 2015, it established the tripartite Multi-Sectoral Committee that coordinates and monitors action to prevent and penalize violence in the civil construction sector and that the National Labour and Employment Promotion Council (CNTPE), chaired by the Minister of Labour and comprising the most representative workers’ and employers’ organizations, serves as a forum for labour dialogue and negotiation. The Committee notes that, according to the Government, one of the initiatives suggested and discussed at the Multi-Sectoral Committee and the CNTPE was the establishment of registers of civil construction workers, with a view to, inter alia, contributing to the eradication of violence in the sector. The Committee also observes that the Government includes a copy of the minutes of the last session of the Multi-Sectoral Committee, held on 20 December 2017, which indicate only the date and location of the meeting and the names of the participants. The Committee also notes the Government’s indication that the Multi-Sectoral Committee intends to outline a draft inter-sectoral protocol for interventions in civil construction works that will help prevent outbreaks of violence in the sector. The Committee strongly encourages the Government to continue to take measures in the existing framework of tripartite dialogue to address the issue of violence in the civil construction sector. In that regard, the Committee requests the Government, within the framework of the Multi-Sectoral Committee and the CNTPE and in collaboration with the social partners, to develop a detailed plan of action with concrete targets and deadlines to ensure that reports of violence in the construction sector are duly investigated and greater efforts are made to identify and punish those responsible for such acts of violence. The Committee requests the Government to keep it informed in this regard and with respect to developments in the elaboration of an inter-sectoral protocol.