Informe provisional - Informe núm. 358, Noviembre 2010

1. 984. The complaint is contained in communications dated 8 November 2009 and 22 February 2010 presented by the Single National Union of Public Employees of the Corporación Venezolana de Guayana (SUNEP-CVG).
2. 985. The Government sent its observations in a communication dated 24 May 2010.
3. 986. The Bolivarian Republic of 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. The complainant’s allegations

1. 987. In its communication dated 8 November 2009, SUNEP-CVG states that it is presenting a formal complaint against the Government of the Bolivarian Republic of Venezuela for serious violations of freedom of association, as reflected in the disregard for the procedures for handling collective labour disputes and the criminal prosecution of workers and trade union leaders of Guayana’s core enterprises, which are overseen by the Corporación Venezolana de Guayana (CVG).
2. 988. SUNEP-CVG indicates that three years and five months ago it presented a list of demands to the Alfredo Maneiro labour inspectorate in Puerto Ordaz, calling for the enforcement of the collective labour agreement and for other rights for its members in compliance with all the requirements under Venezuelan law concerning the handling of collective labour disputes. To date, however, it has not been possible to lawfully exercise the right to strike because nothing has been done to address the list of demands, showing the open and flagrant bias of the officials in the labour administration. Neither the Office of the Attorney-General of the Republic nor the President of the Republic has responded to the union’s complaints in this regard.
3. 989. SUNEP-CVG adds that, most seriously, as the legal channels are closed, staging any type of protest carries the risk of arrest and criminal prosecution, as has been the case for unionized CVG workers. In view of the fact that the benefits under the collective agreement were being withheld, these workers staged a peaceful protest and several of them were taken into custody on 6 October 2009 and criminal proceedings were initiated against them (as is the case for Ronald González, general secretary of SUTRA-CVG, Carlos Quijada, treasurer of SUTRA-CVG and the workers Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López, who were charged with the offences of illegal assembly, violation of freedom of movement and incitement to commit an offence). On 7 October 2009, the Criminal Court decided to release them on probation, but prohibited them from organizing any industrial action that is not authorized by the Ministry of Labour. This in itself is contrary to freedom of association.
4. 990. According to SUNEP-CVG, the criminalization of protests has become the systematic response of the State to any public demonstration that is not to its liking. There is a long list of workers and trade union leaders who have fallen victim to this attitude of the Government, which is unprecedented in the country. For example, in the Guayana region, on 5 September 2006, criminal charges were laid against Juan Antonio Valor, a leader of the Single Union of Steel Industry and Allied Workers of the State of Bolívar
5. (Sutiss-Bolívar), Leonel Grisett, member of the Joint Committee on Industrial Health and Safety, and Jhoel José Ruíz Hernández, also a Sutiss leader, all of whom are employed by Siderúrgica del Orinoco (CA Sidor), an enterprise that is now once again under CVG control. Furthermore, Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epifanio López, employees of the contracting enterprise Camila CA, were charged with the offences of misappropriation, restricting freedom to work, taking the law into their own hands and breaching the special security zone arrangements, under sections 191, 192, 270 and 468 of the Criminal Code and under section 56 (in conjunction with sections 47 and 48) of the Organic National Security Act. Section 56 of the Organic National Security Act states:
6. Section 56: Anyone who organizes, supports or incites activities within the security zones that are intended to disrupt or adversely affect the organization and operation of military facilities, public services, industries and core enterprises, or the social and economic life of the country, shall be subject to a penalty of five to ten years’ imprisonment.
7. 991. However, all that the abovementioned workers did was to protest against the poor working conditions that the contracting enterprise Camila imposes on its workers. The defendants were not taking any industrial action and yet the Organic National Security Act was applied to them in order to give them harsher penalties and in order to proceed in that way with their prosecution. These workers are required to report once a month to the Criminal Judicial Circuit of the State of Bolívar, territory of Puerto Ordaz. At their last court appearance, their trial was postponed until 10 February 2010.
8. 992. SUNEP-CVG also alleges that, on 14 March 2008, the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers on Avenida Fuerzas Armadas in the Matanzas industrial zone of Puerto Ordaz. These workers were calling for improvements to the proposed collective agreement that at the time was under discussion with the multinational Ternium-Sidor. Several workers were injured, some of them seriously, and criminal charges were laid against several dozens of workers. Thirty-two vehicles belonging to the workers were destroyed by the authorities. It is important to note that the judge at the preliminary criminal hearing ordered the unconditional release of 52 Sidor workers on 15 March. However, the Office of the Public Prosecutor lodged an appeal against this decision to the Court of Appeals and that court overturned the ruling of the judge at the preliminary criminal hearing and consequently the group of workers is now awaiting the initiation of further court proceedings against them.
9. 993. Furthermore, SUNEP-CVG alleges that, on 24 September 2009, Rubén González, general secretary of Sintraferrominera (the union representing the workers of CVG Ferrominera Orinoco, CA) was arrested and brought before a court of preliminary criminal proceedings in Puerto Ordaz. This was simply for having led a protest demanding the fulfilment of the commitments under the collective agreement, which the enterprise has stopped honouring. The case caused public controversy and disputes between judges, because it concerned the general secretary of a union, a leader with a long career, who was simply fulfilling his union responsibilities. After Mr González had been held in custody for four days and after the court decisions had been challenged twice and passed over three times, the judge of the First Court of Preliminary Proceedings, Arsenio López, handed down a sentence of house arrest and at the same time declared himself incompetent, passing the case on to a criminal court in the city of Bolívar. That criminal court subsequently passed the case onto another court of the city of Puerto Ordaz. It should be noted that the trade union leader, Rubén González, was placed under house arrest at his home in Ciudad Piar in the autonomous municipality of Raúl Leoni in the state of Bolívar.
10. 994. SUNEP-CGV concludes by noting that the disregard for collective agreements, the disregard for legal procedures for handling disputes as a policy of the Ministry of Labour and the criminalization of labour protests have been ongoing in recent years throughout the Bolivarian Republic of Venezuela, in particular in the state of Bolívar.
11. 995. In its communication dated 22 February 2010, SUNEP-CVG states that the situation has deteriorated in the case of trade union leader, Rubén González, general secretary of Sintraferrominera (the union representing the workers of CVG Ferrominera Orinoco, CA), who has been in custody since 24 September 2009, despite having filed successive appeals to the courts. SUNEP-CVG adds that the illegal and arbitrary detention of Rubén González, who is now being held in a police cell, led his wife, Ms Yurid de González, and a group of his co-workers to go on a hunger strike in front of the Palace of Justice in Puerto Ordaz, a strike which they continued for as long as their health allowed.
12. B. The Government’s reply
13. 996. In its communication dated 24 May 2010, the Government categorically rejects the claims that the criminalization of protests is the Venezuelan Government’s response to public demonstrations. The Venezuelan legal system and the Government of the Bolivarian Republic of Venezuela guarantee and safeguard in practice and in accordance with the law the right to stage protests, to hold public demonstrations and to strike in accordance with the provisions of the national Constitution and the law, provided that such events do not cause irreparable damage to the population or to institutions.
14. 997. The Government then refers to the information provided by the Office of the Attorney-General of the Republic on the status of the cases in question.
15. 998. On 6 October 2009, national guard officers arrested Ronald González, Carlos Quijada, Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López for allegedly taking over the premises of the CVG’s nursery, padlocking and chaining the doors to prevent the nursery staff from entering freely and leaving out on the street the workers’ children who attend that institution on a daily basis. In accordance with the procedure stipulated by law, the Office of the Public Prosecutor thus proceeded to bring the individuals in question before the appropriate court, ordering the court to examine the case in accordance with the regular procedure without holding the individuals concerned in custody.
16. 999. In this regard, the Office of the Attorney-General of the Republic, exercising the powers conferred on it by the Constitution of the Bolivarian Republic of Venezuela and the Organic Code of Criminal Procedure, ordered that steps be taken to conduct interviews and technical investigations and to log telephone connections and calls, these, among other things, serving as grounds for the issuance of a final ruling. Consequently, on 2 December 2009, an indictment was filed against the individuals in question and the court arranged a preliminary hearing, which took place, and the claims were upheld with regard to the offences of illegal assembly, violation of freedom of movement and incitement to commit an offence, as provided for in the Venezuelan Criminal Code. An order was issued for the case to proceed to the oral and public hearing stage, in accordance with the principles governing criminal procedure in the Bolivarian Republic of Venezuela. On the basis of information provided by the Office of the Public Prosecutor, the abovementioned individuals are allegedly engaged in offences against the security and rights of the Venezuelan people (including workers and their children), which are considered to be punishable acts under Venezuelan law.
17. 1000. With regard to Juan Antonio Valor, Leonel Grisett, Jhoel José Ruiz Hernández, Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdamatir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epifanio López, the Government states that, on 29 September 2006, the Office of the Public Prosecutor received a complaint from the representatives of the enterprise Camila CA alleging that, on 26 August 2006, the individuals in question violently and without the authorization or consent of any representative of the enterprise Camila CA forcefully took possession of six payloader machines, moving them from one plant (Planta de Cal) to another (Planta de Peñas), refused to return them, and caused the cessation of the industrial activities being conducted in various areas of the enterprise. Under the circumstances and on the basis of investigations and inquiries conducted by the respective bodies, the Office of the Public Prosecutor asked the corresponding court of preliminary proceedings to issue an arrest warrant against the individuals in question, which was approved and executed. Subsequently, on 5 and 7 September 2006, the hearings took place before the court in question, which ordered the precautionary measure of regular court appearances in accordance with the provisions of the Organic Code of Criminal Procedure. On 21 July 2007, the Office of the Public Prosecutor filed formal charges against the individuals in question for committing the offences of qualified misappropriation, restricting freedom to work and taking the law into their own hands, as provided for in the Venezuelan Criminal Code, and the offence of breaching the special security zone arrangements, as provided for in the Organic National Security Act, setting the preliminary hearing for 25 September 2009, at which the charges were upheld, a precautionary measure of release on probation was applied, and an order was issued for the case to go to trial. The oral and public hearing has been set and delayed on several occasions because the accused parties have failed to appear, and the oral hearing has now been postponed until 16 September 2010.
18. 1001. With regard to the allegation that on 14 March 2008 “the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers”, the Government states that on the date indicated by the complainants, a unit of the national guard was heading towards the warehouses of the Matanzas industrial zone, located on the Simón Bolívar highway, when it came across a group of approximately 80 people preventing the free flow of traffic with cars and burning tyres. Furthermore, these individuals threw heavy objects at the members of the national guard, causing several injuries to several officers (Raúl Mora, Alexander Marín Bucarelo and Pastran Comentes). The demonstrators threw stones, bottles and iron pellets, which resulted in the arrest of 49 people who, the next day, within the legal time limit, were brought before the appropriate preliminary hearings court, which conducted the hearing of the charges laid by the national guard unit, which concerned the jointly perpetrated offences of obstruction and severance of communication channels. The court ruled that the regular procedure should be followed and the Office of the Public Prosecutor is currently carrying out all the necessary inquiries and investigations to resolve the matter. The Government asserts that, in safeguarding the rights of the workers of the steel enterprise against the major irregularities and the exploitation and outsourcing practices committed against them, it proceeded to nationalize the enterprise to guarantee the workers’ social and labour rights and entitlements, which were being violated by the private enterprise.
19. 1002. With regard to Rubén González, the Office of the Public Prosecutor reports that it received a complaint claiming that the individual in question entered the railway yard of the enterprise Ferrominera’s main workshop, taking over the premises and obstructing the exit of trains, thereby halting production at the enterprise for several days. This claim is supported by various pieces of evidence such as witness interviews and videos. Therefore, the Office of the Public Prosecutor called for an arrest warrant to be issued against the individual in question, which was granted by the court and executed by the relevant security forces. On 26 September 2009, in accordance with the procedures in place, the Office of the Public Prosecutor charged the said individual with public order offences such as incitement to commit an offence, illegal assembly, restriction of freedom to work, and breach of the special security zone arrangements. The court upheld these charges and ordered the house arrest of the accused. In accordance with the law, the charges were formally set out in writing and on 26 January 2010 an oral hearing was held before the Court of Appeal, on the basis of an application for amparo (protection of constitutional rights) by the defence of the accused, which was rejected by the court, as the defence had been informed of the submission of the final ruling within the appropriate legal timeframe.
20. 1003. With regard to the precautionary measure imposed on Rubén González on 19 January 2010, the Government states that the competent court, in exercising its powers, issued a finding of non-compliance, which is why it agreed to overturn the measure and scheduled a preliminary hearing for 15 March 2010, which the defence lawyers of the accused failed to attend. Subsequently, the hearing was held at the Court of Preliminary Proceedings, which admitted the allegation made by the Office of the Public Prosecutor against Rubén González, and consequently this case is currently under trial. The outcome of this trial will be communicated to the Committee on Freedom of Association.

C. The Committee’s conclusions

1. 1004. The Committee notes that in the present case the complainant organization’s allegations concern obstacles to exercising the right to strike and the arrest and/or prosecution of trade union leaders and members, who are often required to report to the authorities on a monthly basis, for exercising trade union activities.
2. 1005. Regarding the alleged obstacles to the exercise of the right to strike, the complainant organization alleges that, as the administrative authority (Puerto Ordaz labour inspectorate) has not followed the legal procedures with regard to the list of demands presented by SUNEP-CVG more than three years ago calling for the enforcement of the collective agreement and for other rights, it has not been possible to lawfully exercise the right to strike in the Corporación Venezolana de Guayana (CVG).
3. 1006. The Committee notes that the Government has not sent observations with regard to this allegation and therefore the Committee requests it to address without delay the list of demands by SUNEP-CVG so that the union can bargain collectively with the enterprise and perhaps lawfully exercise the right to strike.
4. 1007. With regard to the allegations concerning the arrest and criminal prosecution of the SUTRA-CVG union leaders Ronald González and Carlos Quijada and unionists Adonis Rangel Centeno, Elvis Lorán Azocar and Darwin López for staging a peaceful protest against the withholding of the benefits under the collective agreement, the Committee takes note of the statements by the Government, according to which: (1) these individuals were arrested in October 2009 for padlocking and chaining closed the doors of the premises of the CVG’s nursery, preventing the staff from entering freely and leaving the workers’ children out on the street; (2) they were released; (3) they were charged with the offences of illegal assembly, violation of freedom of movement and incitement to commit an offence and of engaging in crimes against the security and rights of the population.
5. 1008. The Committee expresses its surprise at the fact that trade unionists have been charged with various offences for closing – as stated by the Government – the premises of a preschool establishment. The Committee urges the Government to urge the judicial authority to give due consideration to the fact that the trade unionists in question were staging a peaceful protest calling for the enforcement of the collective agreement and requests the Government to inform it of the judgement handed down in relation to these trade unionists.
6. 1009. With regard to the allegation concerning the criminal prosecution of the Sutiss-Bolívar trade union leaders Juan Antonio Valor, Leonel Grisett and Jhoel José Ruiz Hernández, the Committee notes that the Government has not supplied observations in this respect and requests it to send them without delay.
7. 1010. With regard to the allegation concerning the criminal prosecution in 2006 of the employees of the enterprise Camila CA, Richard Alonso Díaz, Osmel José Ramírez Malavé, Julio César Soler, Agdatamir Antonio Rivas, Luis Arturo Alzota Bermúdez, Argenis Godofredo Gómez and Bruno Epitafio López, for protesting against the poor working conditions imposed on workers, the Committee takes note of the statements by the Government, according to which these workers: (1) forcefully took six payloader machines from one plant (Planta de Cal) to another (Planta de Peñas), refusing to return them, and causing the cessation of the industrial activities being conducted in various areas of the enterprise; (2) were charged with the offences of misappropriation, restricting freedom to work, taking the law into their own hands and breaching the special security zone arrangements under the Organic National Security Act; (3) the oral hearing is scheduled for 16 September 2010. The Committee notes the discrepancies between the version given by the complainant organization and that given by the Government and requests the Government to supply a copy of the judgement that is handed down. The Committee notes that the complaint dates back to 2006 and it can only regret the delay in the court proceedings. Lastly, the Committee considers that section 56 of the Organic National Security Act, which provides that activities to disrupt or adversely affect the organization and operation of public services, industries and core enterprises, or the social and economic life of the country, carry a penalty of five to ten years’ imprisonment, may apply to the lawful exercise of the right to strike in activities that are not essential in the strict sense of the term and therefore it should be amended. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
8. 1011. With regard to the allegation that, on 14 March 2008, the national guard and the Bolívar State Police brutally repressed a gathering of steelworkers from Ternium-Sidor who were calling for improvements to the collective agreement that was being negotiated, resulting in several wounded, dozens of criminal prosecutions and the destruction by the authorities of 32 vehicles belonging to the workers, the Committee notes that, according to the Government: (1) a group of some 80 workers was blocking the traffic with cars and burning tyres and throwing heavy objects at the members of the national guard unit, injuring several officers; (2) 49 workers were arrested and the next day these individuals were brought before the judicial authority charged with the obstruction and severance of channels of communication; and (3) the Office of the Public Prosecutor is conducting inquiries and investigations. The Committee notes the delay in the criminal proceedings, as the allegations date back to March 2008 and requests the Government to supply a copy of the judgement that is handed down. It also requests the Government to carry out an investigation into the allegations concerning the excessive use of public force which resulted in serious injuries and property damage.
9. 1012. With regard to the allegation concerning the detention and criminal prosecution of union leader Rubén González, who works for the enterprise CGV Ferrominera Orinoco CA (Puerto Ordaz), for protesting against the failure to honour the commitments set out in the collective agreement, the Committee takes note that, according to the Government:
10. (1) Rubén González took over the premises of the railway yard at the enterprise’s main workshop, obstructing the exit of trains and impeding production at the enterprise for several days; (2) the judicial authority issued a warrant for his arrest and later for his house arrest and the prosecutor charged him with the offences of incitement to commit an offence, illegal assembly, restricting freedom to work and breaching the special security zone arrangements. Taking into account the discrepancies between the version provided by the complainant and that provided by the Government, the Committee considers that the events as alleged by the Government do not justify his preliminary detention or house arrest since September 2009 and requests that he be released without delay pending judgement and appropriately compensated for his inappropriate detention. The Committee requests the Government to supply a copy of the judgement that is handed down. The Committee asks the Government whether Rubén González was the only employee who took over the premises in question.
11. 1013. More generally, with regard to the allegation concerning the criminalization of trade union protests and public demonstrations, the Committee notes that the Government rejects this allegation and asserts that the rights to demonstrate and to strike are guaranteed provided that no irreparable damage is caused to the population or to institutions. The Committee notes that this case concerns the arrest and criminal prosecution of a considerable number of trade unionists, who, for example, for stopping production or undermining freedom to work have had three or more criminal charges laid against them and sometimes precautionary measures requiring them to report to the authorities on a monthly basis; the aim of these measures is not understood and they may have a detrimental effect and be a deterring factor in the exercise of trade union rights.
12. 1014. The Committee expresses its concern regarding the multiple charges laid against these unionists for activities connected with the exercise of trade union rights. The Committee notes that although there may have been – if the statements by the Government are corroborated – some excesses, all penalties should be proportionate to the fault committed.
13. 1015. Lastly, the Committee notes that the Government has not denied the allegations concerning the breach of collective agreements in several enterprises (which, according to the Government, have been nationalized) and the difficulties faced with regard to bargaining collectively and exercising the right to strike in the steel sector and requests the Government to take measures to ensure that these rights are respected in practice and that effective dispute settlement mechanisms are put in place.