Rapport intérimaire - Rapport No. 239, Juin 1985

1. 276. The National Association of Public Employees (ANEP) presented a complaint of violations of trade union rights in a communication dated 25 September 1984; it sent additional information in communications dated 15 October and 22 November 1984. The Government sent its observations in communications dated 8 November 1984 and 21 February 1985.
2. 277. Costa Rica has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. The complainant's allegations

1. 278. In its communication of 25 September 1984, the ANEP alleges that the Government violated Articles 3 and 4 of Convention No. 87 in that it suspended this organisation by administrative authority and at the same time it froze its assets and refused to hand over the check-off funds paid by ANEP's members.
2. 279. According to ANEP, in accordance with its duly registered by-laws, on 25 August 1984, it held its annual general meeting which elected a new national executive committee. As required by the labour legislation, the new committee communicated the results of the election to the Department of Social Organisations of the Ministry of Labour and Social Security for it to update its records and issue the corresponding certificate of legal personality. The group which lost the elections lodged with the Department an appeal against the results and the Department decided to investigate the validity of the elections.
3. 280. The ANEP states that the authorities consequently suspended the registration of the election results until a decision bad been taken on the objection. They froze the ANEP's bank accounts and instructed the autonomous and semi-autonomous institutions and central bodies to refuse to hand over the check-off funds they collected from ANEP's membership. This, claims the ANEP, amounts to administrative suspension of a trade union organisation. It stresses that the Ministry has no power to do this under the national legislation and observes that the provisions of Act No. 1860 on the functions of the Ministry of Labour do not empower the authorities to interfere in the internal affairs of a trade union, or in its elections, or after its elections in order to decide if they were valid or not.
4. 281. Lastly, the complainant cites several previous decisions of the Committee on Freedom of Association concerning government intervention in the internal administration of unions and in elections.
5. 282. In its communication of 15 October 1984, the ANEP states that on 11 September 1984 it formally challenged the Ministry's decision to investigate the validity of the elections. In a decision dated 29 September, the Minister rejected this appeal and authorised the investigation to continue.
6. 283. In its communication of 22 November 1984, the ANEP alleges that members of the Intelligence and Security Directorate of the Ministry of Public Security violently broke into the ANEP headquarters and took possession of some of its property. According to the ANEP, these persons also detained, without any reason being given, five leaders of the trade union, namely the Executive Director and Messrs. Johnny García Campos, Franklin Benavides, Hermán Guardiola and Víctor Arce. It claims that this action is part of the policy aimed at impairing the development of the trade union movement in the country.

B. The Government's reply

1. 284. In its communication of 8 November 1984, the Government states that it has not violated Convention No. 87 since the Convention itself (in Articles 3. 2 and 8) obliges workers' organisations to respect the law of the land. The Labour Code of Costa Rica, continues the Government, in s. 334, requires that trade unions "be governed by the democratic principles of majority rule, the secret ballot and one vote per person" and, in s. 337, it empowers the Ministry of Labour and Social Security "to exercise the strictest possible supervision over social organisations for the exclusive purpose of ensuring that the said organisations operate in conformity with the statutory provisions". The Government states that the authorities are therefore obliged to inspect, prosecute and intervene to ensure compliance with the legislation and the legal principles which govern the functioning of trade unions. This obligation is especially important when a request is made by a member of a trade union who considers that his rights have been violated.
2. 285. According to the Government, in the present case, on 30 August 1984, a member of the ANEP and unsuccessful candidate for the post of Secretary-General in the elections of 25 August 1984, Mr. José Gerardo Riba Bazo, presented an objection to the Department of Social Organisations requesting nullification of the general assembly and therefore of the election results. The Government supplies a copy of his objection from which it appears that he disputes the election proceedings on the following grounds: the electoral committee criticised the candidates presented by Mr. Bazo's fa ction within the ANEP; the ballot paper presented by the other faction in the ANEP contained the names of candidates who were not workers employed by the State, which is contrary to ANEP's constitution, some ANEP officers delayed processing membership applications of 450 prospective members which were lodged by representatives of Mr. Bazo's faction 15 days before the date fixed for the general assembly; some ANEP officers concealed the general list of voters from representatives of Mr. Bazo's faction until 23 August 1984 and the additional list was not presented until 25 August; these lists contained serious errors such as the repetition of the same name or identity number and the inclusion of persons who did not have the right to vote; the electoral committee met in the same place as the elections.
3. 286. The Government adds that the decision of 29 September 1984 to reject the appeal against Mr. Bazo's objection was correctly made by the Ministry of Labour since it followed the principle of legality which governs the public administration.
4. 287. In conclusion, the Government stresses that the Department of Social Organisations is acting on the request of a member of the ANEP and not ex officio and that its investigation is not at all arbitrary. Its states it respects freedom of association and that the authorities' action is not aimed at obstructing or interfering in the formation of or affiliation to trade unions.
5. 288. In its communication of 21 February 1985, the Government reiterates the background to the complaint and adds that the faction within the ANEP which won the elections sought injunctions (amparo) against three employees of the Ministry of Labour in an attempt to halt the inquiry into the election results and held public demonstrations criticising the Minister. According to the Government, bills were posted depicting the Minister as having committed a series of "offences". Without the Minister having so requested, the authorities decided to watch the ANEP headquarters with a view to seizing this offensive propaganda. Consequently, on 14 November 1984 the following persons were apprehended carrying about 500 posters ready for distribution throughout the country: Víctor Arce Quesada, Franklin Benavides Flores, Rafael A. Cordero Herrera and Fidel Hermán Guardiola Solís. On the same day, following a judicial order and in accordance with the legal formalities, the ANEP's premises were raided. Various posters were confiscated and Mr. Johnny García Campos was detained. The Government, accordingly, denies that any other property belonging to the union was taken away and points out that all those detained were released at 7 p.m. the same day.

C. The Committee' s conclusions

1. 289. The Committee notes that this case concerns a dispute over trade union elections in the ANEP which allegedly gave rise to the suspension of that organisation by administrative authority and, subsequently, a raid on its premises by the authorities and detention of five ANEP officers.
2. 290. The Committee notes the Government's statement that its decision to investigate the validity of the elections was legally based on the Ministry of Labour's obligation to ensure that the unions operate in conformity with the provisions of the Labour Code concerning democratic voting procedures. It also notes that the decision to carry out an investigation arose out of a complaint by a candidate in the elections that there were irregularities in the election procedures which justified their annulment.
3. 291. The Committee would first point out that the ILO supervisory bodies have frequently had occasion to formulate principles and considerations relating to intervention by the authorities in matters concerning contested elections in trade union organisations. Generally, it has been considered that the principles of freedom of association do not preclude outside control of the internal activities of an organisation if it is alleged that the law or rules have been infringed. Since measures taken by the administrative authorities are liable to be arbitrary, however, the supervisory bodies have considered that, while inquiries may be necessary in cases where irregularities have occurred or are alleged, such questions should be referred to the judicial authorities in order to guarantee an expeditious, impartial and objective procedure.
4. 292. The Committee requests the Government to supply full information on the results of the inquiries that have been undertaken and to indicate whether any procedure exists for application to the courts concerning any administrative decision that may be taken in the matter.
5. 293. Secondly, as regards the interim measures that have been taken against the union, the Committee notes that nothing in the Labour Code or Act No. 1860 on the functions of the Ministry of Labour would appear to authorise the administrative authorities to suspend the registration of the election results, to freeze the union' s bank accounts and to defer payment of check-off funds while the investigation is being carried out. In this connection, the Committee has stated in previous cases (See, for example, 230th Report, Case No. 1134 (Cyprus), para. 389.) that in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases in which the results of trade union elections are challenged should not - pending the final outcome of the proceedings - have the effect of paralysing the operations of trade unions.
6. 294. The Committee accordingly trusts that the measures taken by the Government will be lifted and that the elected workers' representatives will be authorised to fulfil their duties in full freedom until such time as a decision on the validity of the elections is reached and that an appeal to the courts may be made, if necessary, for a final decision in the matter.
7. 295. As regards the raid by the authorities on ANEP's premises on 14 November 1984, the Committee notes the Government's statement that this was carried out following a judicial order and in accordance with the legal formalities with a view to seizing propaganda documents that were considered offensive. Since confiscation was restricted to the various posters that were said to constitute the offence and no other union property was seized, the Committee considers that this aspect of the case does not call for further examination.
8. 296. As regards the detention of five named ANEP leaders on 14 November 1984, the Committee observes that they were held in connection with the legal confiscation of certain literature and were, according to the Government, released the same day without charges being brought. The Committee would generally draw the Government's attention to the principle that the detention of trade union leaders for reasons connected with the exercise of trade union activities, without specific charges being made against them involves a restriction on trade union rights. (217th Report, Case No. 1031 (Nicaragua), para. 120.)