Definitive Report - REPORT_NO124, 1971

1. 70. The last report to the Governing Body in respect of this case, which was examined by the Committee at its session in November 1970, is contained in paragraphs 192 to 206 of its 120th Report. That report contains a further analysis of the situation of Mr. Rubén Carlos Esguerra as concerns the sentence imposed upon him by a court of first instance for the offence of attempted homicide. An appeal against this sentence had been lodged with the High Court of Justice of the Federal District and Territories, and for this reason the Committee adjourned its examination of the case. Mr. Esguerra bad made certain comments upon the court proceedings with respect to which the Government had not yet forwarded its observations.
2. 71. The Committee recalls that this case arose out of Mr. Esguerra's participation in an act of protest by workers and trade unionists in support of labour claims. The action he had taken had consisted, firstly, in inducing these workers to stage a hunger strike, in which they participated voluntarily. Later, Mr. Esguerra was said to have tried to prevent the participants in the strike from abandoning it or from being given food and assistance, thus endangering their lives. As a result, according to the judgment sentencing him for attempted homicide in respect of these persons, it had been necessary for the police to intervene in order that the strikers might be taken to hospital. Nevertheless, the Committee also observed that the Government had earlier supplied information (communication of 12 January 1968) that " seven persons took part in a hunger strike at the doors of the United Nations offices, but lack of food was endangering their health and this induced them to give up the strike and seek medical treatment ". Of these seven persons, " six were taken, at their own request, by staff of the Social Welfare Directorate to the general hospital in Mexico City. The remaining person preferred to go to a private clinic ".

A. A. The complainants' allegations

1. 72. On 29 January 1971 Mr. Esguerra sent a further communication in which he stated that the High Court had sentenced him upon appeal, and he made comments upon this sentence. This communication was transmitted to the Government which, in its turn, sent two communications, dated 23 February and 23 April 1971, the latter containing the text of the judgment rendered by the High Court.
2. 73. Mr. Esguerra claims that the Federal Security Directorate forced him, by violent means, to sign a statement, that his accusers failed to appear before the trial judge and submitted no evidence against him, that the verdict was based mainly on the charges made by three persons who had asserted that the accused had compelled them to continue the hunger strike but who in fact had not even taken part in the strike, and that the court completely ignored the fact that the accusers, in their evidence, had given a false address so that they could not be found.
3. 74. In its first communication the Government gives the assurance that Mr. Esguerra enjoyed the guarantees provided by the Federal Political Constitution to every accused person and that he was tried by an impartial, independent and previously constituted court, which applied provisions of a general nature. The sentence pronounced by the High Court could be challenged by invoking the Constitutional guarantees. The Government goes on to state that it " recognises the high office of the ILO as guardian of the workers' interests on a world-wide scale but it does not believe that its functions include the reviewing of judgments pronounced by the tribunals of its member countries since this would obviously impinge upon the sovereignty of those Members and would place the workers in a situation of unfair advantage over other nationals by being permitted to resort to a body not available to others ". In its second communication the Government gives a summary of the trial and of the evidence upon which the verdict was based, stating that, in its opinion, the Committee on Freedom of Association will have fully carried out its duty in ascertaining that Mr. Esguerra enjoyed all the legal guarantees and that the sentence is based on the legal provisions applicable to criminal offences.

B. B. The Committee's conclusions

1. 75. The Committee considers that while it is inconsistent with the principles of freedom of association for public authorities to deprive trade union officials of their freedom in order to put a stop to their trade union activities, this in no way implies that these authorities should refrain from using the powers legally vested in them for the purposes of maintaining public order in cases where trade union officials commit acts which are offences under national law. The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Mexico, confers no immunity upon such officials, and even stipulates that workers and their organisations, like other persons, shall respect the law of the land. Nevertheless, the Committee also considers that in cases where a trade union official is imprisoned or sentenced it is incumbent upon the Committee to ascertain the reason or justification for such a measure. In this connection, the Committee wishes to recall the statement already made in an earlier report on this same case to the effect that it is its practice not to pursue its examination of a complaint where it is clear from the information received that the persons concerned have been tried by the competent judicial authorities with all the safeguards of normal judicial procedure, and sentenced for offences unconnected with their trade union activities or outside the scope of normal trade union activities.
2. 76. Bearing these considerations in mind, the Committee has examined the text of the judgment of the High Court, from which the following facts emerge. According to the statements made at the public prosecutor's office by the workers who took part in the hunger strike staged in front of the United Nations building in Mexico City and by welfare officers who examined these persons during the strike, Mr. Esguerra objected to the persons concerned being taken to hospital despite the fact that they were in a severely weakened state-overriding their own wishes in this respect. Finally, it was necessary for the police to intervene to overrule Esguerra and ensure that the strikers were taken to hospital, where they were given the medical attention they needed. In the writ of appeal, counsel for Mr. Esguerra alleges that these statements cannot be accepted as evidence because they were not made before the examining magistrate, even though they were countersigned by the public prosecutor's office, and that Mr. Esguerra's accusers did not appear before the judge for a confrontation with him. He further declares that even if these statements were to be declared admissible, they would not constitute evidence of the offence with which Mr. Esguerra has been charged, since his objection to any interruption of the strike was in any case purely verbal. He points out in this respect that it does not appear from the evidence " that the accused prevented the injured parties from taking nourishment by any physical means, and they were free to abandon the strike at any moment, since there was nothing to stop them from leaving the part of the public thoroughfare where the hunger strike was being staged ".
3. 77. In the judgment the court overrules the objections of counsel for the defence with regard to the procedure followed, declaring that the statements made by the plaintiffs and by the officials of the Department of Health and Welfare at the public prosecutor's office are entirely admissible as evidence under the terms of section 286 of the Code of Criminal Procedure, and that the confrontations did take place in accordance with the terms of subsection 1 of section 229 of that Code. As regards this last point, the Committee observes that the provision in question is worded as follows: " Where one of the persons between whom confrontation is to take place cannot be found, or resides within the jurisdiction of another court, the confrontation shall be suppletory, the statement of the person absent being read out to the person present, note being taken of any disparities between the said statement and the evidence given by the person present ".
4. 78. With regard to the trial and the judgments pronounced, the Committee wishes to point out the following. On the one hand, it appears clear from the documentary information available that the persons who took part in the hunger strike and the officials of the Department of Health and Welfare did not appear before the trial judge and were not confronted with the accused. The former had given a false address to the public prosecutor's office and then disappeared. On the other hand, the sentence is based on the fact that the accused prevented the participants in the strike from interrupting it, thus endangering their lives. Nevertheless, all this occurred in a public place and it is not clear to what extent his opposition could really have prevented them from abandoning the strike of their own accord. In any event, any opposition by Mr. Esguerra to the wishes of the participants to interrupt the strike would constitute an obvious overstepping of his authority, the seriousness of which, from a penal standpoint, would be a matter for the judicial authorities to determine in the light of the circumstances of the case.
5. 79. The Committee observes that Mr. Esguerra has been tried by the normal judicial authorities, that they have applied the procedure generally applicable to such cases, that he was assisted by counsel and that he availed himself of his right of appeal-an avenue still open to him in respect of the ruling of the higher court if he considers that the Constitutional guarantees were not applied to him.