Report in which the committee requests to be kept informed of development - REPORT_NO340, March 2006

792. The complaint is contained in a communication dated 30 April 2005. The Public Services International (PSI) supported this complaint in a communication dated 11 May 2005.

1. 793. The Government sent its observations in a communication dated 26 August 2005.
2. 794. El Salvador has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 795. In its communication dated 30 April 2005, the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS) alleged that on 28 April 2005, the national police, acting upon the orders of the President of the Republic given by the Ministry of the Interior, expelled from the country Mr. Banchón Rivera, the trade union adviser of SIMETRISSS responsible for communications, in a violent, arbitrary and illegal manner. Mr. Banchón Rivera is a doctor of Ecuadorian nationality, married to a Salvadoran, who has been carrying out his trade union functions since 1999 under a contract duly registered with the Ministry of Labour.
2. 796. SIMETRISSS points out that since October 2002, on grounds linked to the labour dispute that occurred in the Salvadoran Social Security Institute (ISSS), Mr. Banchón Rivera has been constantly and systematically persecuted by officials of the Directorate-General for Migration and Aliens on account of his activities as trade union adviser, which have been qualified in an arbitrary fashion as political activities; at no time did he in fact participate either directly or indirectly in this type of activity. In the proceedings initiated by the migration authorities, there is no evidence that categorically points to his participation in activities of a political nature; on the contrary, the newspaper cuttings that have been advanced as proof against him, refer to the strictly trade union nature of his role as trade union adviser, such as his participation in the trade union committee in the negotiations that put an end to the dispute in ISSS in 2002. Similarly, and always in the exercise of his duties as trade union adviser, he belonged to the Supervisory Committee of Agreements which ended the said labour dispute. Moreover, at no time did the Directorate-General for Migration and Aliens specify the reasons for which it qualified Mr. Banchón Rivera’s conduct as engaging in political activities, itself a demonstration of the falseness of the statements. SIMETRISSS adds that on 28 April 2005, Mr. Banchón Rivera was notified of the resolution (of 15 April 2005) expelling him from the country. The resolution stated that he had infringed articles 96 and 97, paragraph 2, of the Constitution, as well as sections 4 and 8 of the Aliens’ Act, by taking part in the country’s domestic policy and that, consequently his permanent residency permit would be annulled and he would be expelled from the national territory, with a restriction on re-entry for five years. The resolution was enforced on the very day it had been announced by the border control authorities of the national civil police who transported him to the airport and proceeded to expel him from the national territory in a violent way, thereby causing physical and moral injury (they delivered blows and tore his shirt).
3. 797. SIMETRISSS stresses that the actions with which Mr. Banchón Rivera is reproached date from 2002 and that the charges were only communicated to him in April 2005; furthermore, in the subsequent proceedings, there was no respect for due process and the rights to a fair hearing and defence, which require that sufficient time is allocated for the defence. The statutory offences attributed to Mr. Banchón Rivera were also not specified (there is no link to the facts in the case and the resolution of 15 April 2005 is flawed with respect to the reasons put forward in law and in fact).
4. 798. SIMETRISSS concludes by stating that, in the proceedings initiated by the migration authorities upon which the accusations are based, it may be deduced that Mr. Banchón Rivera’s alleged actions are linked to measures taken by the ISSS trade unions during the dispute in the health sector in 2002. Similarly, the Constitutional Court of the Supreme Court of Justice stated, in its resolution of 4 May, that the investigation did not produce any evidence of Mr. Banchón Rivera’s participation in the country’s politics. In this respect, SIMETRISSS wonders how it is possible that he was expelled from the country for events that had already been examined by the judicial authorities and when his residency permit had just been approved in January 2004.
5. B. The Government’s reply
6. 799. In its communication of 26 August 2005, the Government states that the decision to expel Mr. Banchón Rivera from the national territory was not linked to matters connected with any trade union activity, given that he had never belonged to any trade union and that the labour laws do not forbid this right to anyone on grounds of nationality. The decision to expel him from the country was on account of his direct and indirect intervention in national politics which is banned to foreigners under the Constitution of the Republic and the Aliens’ Act.
7. 800. This intervention took the form of: (1) participating actively in the Committee set up by the Trade Union of Workers of the Salvadoran Social Security Institute to negotiate the reinstatement of doctors; and (2) taking part in protest movements, in disrespect of the law and authorities, that resorted to violent measures such as: stone-throwing, brandishing posters and throwing high-grade mortar bombs in the country’s main streets, thereby creating instability and insecurity between the workers and Salvadoran society.
8. 801. The Government adds that, during the course of the proceedings that opened on 28 October 2002, the inquest services of the Directorate-General for Migration informed Mr. Banchón Rivera of the facts and the legal provisions he had infringed, notably articles 96 and 97 of the Constitution and sections 4 and 8 of the Aliens’ Act. As stated before, article 96 of the Constitution of the Republic, with regard to section 4 of the Aliens’ Act, establishes that from the moment foreigners enter the territory of the Republic, they are strictly bound to respect the authorities and obey the laws, while obtaining the right to be protected by these same laws; in other words, foreigners differ from nationals in that they have a special obligation both towards the authorities and the laws of the land. Furthermore, article 97, paragraph 2, of the Constitution of the Republic and section 8 of the Aliens’ Act specify that foreigners who directly or indirectly intervene in the country’s national politics lose the right to reside in the country. It is important to point out that the possibility of foreigners losing the right of residency in the country is one of the few penalties expressly mentioned in the Constitution, which is intended to prevent any interference of foreigners in the country’s politics; the Constitution therefore not only penalizes direct participation in national policy but also all forms of indirect participation.
9. 802. Consequently, it was on the basis of section 27 of the Aliens’ Act and sections 1, 2 and 74 of the Migration Act that the Directorate-General for Migration advised Mr. Banchón Rivera, on 9 December 2003, to update his file.
10. 803. On 29 January 2004, Mr. Banchón Rivera submitted the following documents: (1) contract of professional services with SIMETRISSS as adviser responsible for communications; (2) sworn statement undersigned by his wife, together with payslips, employer’s certificates, marriage certificate and birth certificate of his son; (3) copy of his police record; (4) proof of solvency from the national civil police; (5) certification of registration with the medical practitioners’ board; and (6) attestation of the title deed of his home in favour of his wife.
11. 804. On 5 April 2005, the Directorate-General for Migration and Aliens summoned Mr. Banchón Rivera with a view to informing him of: (a) the statutory offences attributed to him (articles 96 and 97, paragraph 2, of the Constitution and sections 4 and 8 of the Aliens’ Act); (b) the specific deeds carried out; (c) the evidence obtained; and (d) his right to have three days in which to produce statements in defence of his position. On 8 April 2005, within the time-limit granted him, Mr. Banchón Rivera submitted documentation in which he put forward his arguments and evidence for his defence; on 15 April 2005, the Ministry of the Interior, on the basis of the inquiry, the statements submitted, and the abovementioned provisions, decided that Mr. Banchón Rivera, of Ecuadorian nationality, had infringed articles 96 and 97, paragraph 2, of the Constitution and sections 4 and 8 of the Aliens’ Act by participating in the country’s national politics and therefore revoked the permanent residency that had been granted to him on 15 January 2004, ordering that he be expelled from the national territory and restricting his re-entry for a period of five years after the date of his expulsion.
12. 805. In concluding, the Government points out that, by making use of the statutory mechanisms provided for under a state governed by the rule of law, Mr. Banchón Rivera has brought an application for amparo (enforcement of constitutional rights) against the aforementioned resolution before the Constitutional Court of the Supreme Court of Justice; to date, however, the Court has not handed down a ruling on the proceedings in question.

C. The Committee’s conclusions

1. 806. The Committee notes that in this complaint, the complainant organization alleges that the trade union adviser of SIMETRISSS, Mr. Banchón Rivera, was unlawfully and violently expelled from the country on 28 April 2005, by virtue of a resolution from the Ministry of the Interior referring to political actions he had supposedly committed (which the complainant organization denies); according to the complainant organization, this trade union adviser’s expulsion is linked to a labour dispute that occurred in October 2002 at the Salvadoran Social Security Institute, and the expulsion proceedings failed to respect due process (flaws in the due process, insufficient grounds, lack of proof, etc.). In addition, the complainant organizations points out that Mr. Banchón Rivera was expelled violently and received blows.
2. 807. The Committee notes the Government’s statements according to which: (1) the decision to expel Mr. Banchón Rivera from the country was not linked to matters connected with any trade union activity but to the direct and indirect intervention in national political life, banned by the Constitution of the Republic and the Aliens’ Act, which oblige foreigners to respect the authorities and obey the law; (2) under article 97, paragraph 2, of the Constitution of the Republic, foreigners who directly or indirectly intervene in the country’s national politics lose the right to reside in that country; (3) in April 2005, the Directorate-General for Migration and Aliens granted Mr. Banchón Rivera the right of three days in which to produce statements in defence of his position; (4) on 15 April 2005, the Ministry of the Interior ordered his expulsion from the national territory for a five-year period for having infringed articles 96 and 97, paragraph 2, of the Constitution and sections 4 and 8 of the Aliens’ Act; and (5) Mr. Banchón Rivera appealed to the Constitutional Court of the Supreme Court of Justice which has not yet handed down a judgement.
3. 808. With regard to the allegations concerning the failure to respect the rules of due process, the Committee observes that the Government merely stated that three days were given for the accused to exercise the right of defence. Concerning the alleged acts of violence (mainly blows) that the trade union adviser allegedly suffered and given the lack of observations on the part of the Government, the Committee can only regret any violence that might have occurred. More specifically, it is up to the Committee to determine, in the light of the allegations, the Government’s reply and the resolution of the Ministry of the Interior, whether Mr. Banchón Rivera’s expulsion, dated 15 April 2005, was or was not contrary to the principles of freedom of association. In this respect, the resolution of
4. 15 April 2005 reproaches Mr. Banchón Rivera for not handing over certain documents (“certification of rights and contributions of the ISSS”, a copy of his social security card, a statement issued by the pension fund and a certificate of compliance with national and municipal taxes), but above all it emphasizes the carrying out of political actions (“trade union activities to protest against the Government and its policies”).
5. 809. In particular, the resolution reproaches the trade union adviser Mr. Banchón Rivera with the following:
6. Account of the facts
7. Mr. Banchón Rivera’s participation in national politics has been determined by evidence listed in the proceedings as follows:
8. I. As part of the protest activities carried out by the trade unions and associations in the health sector, Mr. Banchón Rivera participated actively in the so-called “II White March” of 23 October 2002. The protesters marched along the General Escalon Promenade, the Masferrer Sur Boulevard and La Mascota Street to state their disapproval of what they termed as the Government’s privatization of the health sector, as reported in articles published by La Prensa Grafica, of 26 October 2002.
9. II. On 4 November 2002, Mr. Banchón Rivera was seen with other trade unionists creating a disturbance at the premises of the Physical Medicine and Rehabilitation Unit of the Social Security1 to protest against the dismissal of Ms. Reyna Elizabeth Santos Beltran. According to the records of the inquest services of the Directorate-General for Migration and Aliens, dated the same day, month and year, the protesters were brandishing posters and exploding high-grade mortar bombs, as well as carrying out other actions described as aggressive against the premises and medical staff.
10. III. On 29 January 2003, Mr. Banchón Rivera joined with other doctors in inconveniencing doctors who were arriving for work at the Physical Medicine Unit. This is in accordance with the report of the inquest services of the Directorate-General for Migration and Aliens, dated 22 September 2003.
11. IV. On 27 March 2003, Mr Banchón Rivera, accompanied by strikers, attempted to prevent doctors from entering the abovementioned unit, blocking the Avenue Juan Pablo II de Oriente a Poniente with stones and placards. This is in accordance with the report of the inquest services of the Directorate-General for Migration and Aliens, dated 27 March of the same year.
12. V. According to page 16 of El Diario de Hoy, dated 30 May 2003, and page 4 of Diario El Mundo, dated 30 May 2003, Mr. Banchón Rivera played an active part in the Committee of the Trade Union of Workers of the Salvadoran Institute of Social Security (STISSS), negotiating the reinstatement of doctors dismissed during the dispute. Similarly, he was seen in the follow-up to the negotiations on 27 June and 4 July 2003.
13. VI. On 18 June 2003, the Supervisory Committee agreed upon the representation of the Union of Doctors and Workers of the Salvadoran Social Security Institute (SIMETRISSS) and requested that Mr. Pedro Enrique Banchón Rivera might replace Mr. Ricardo Monje as a substitute member of that Committee. From that date onwards, he was involved in matters related to the situation of the striking doctors from the Social Security and to the application of the agreements reached between the doctors and the Government. This is in accordance with the report of the inquest services of the Directorate-General for Migration and Aliens, dated 18 June of the same year.
14. VII. On 9 July 2003, the authorities of the Physical Medicine and Rehabilitation Unit of the Salvadoran Social Security Institute stated that Mr. Banchón Rivera was constantly entering the premises, creating unease among the workers in this unit. This is in accordance with the report of the inquest services of the Directorate-General of Migration and Aliens, dated 9 July of the same year.
15. VIII. On 18 September 2003, Mr. Banchón Rivera gave an informative briefing to the staff supporting the trade union movement in the parking area of the Social Security Institute with a view to informing them on the manner in which they should work to comply with the contract signed by each and every one of them and other related directives. This is in accordance with the report of the inquest services of the Directorate-General of Migration and Aliens, dated 18 September of the same year.
16. IX. On 10 December 2003, according to the Director of the 15 September Medical Centre of the Salvadoran Institute of Social Security, Mr. Banchón Rivera arrived with members of the STISSS and met with a group of nurses in front of Clinic No. 16 in the Centre; they subsequently went to the main entrance where they distributed pamphlets about the election of the new board of directors of the Medical College and told the nurses that they should not continue working compensatory hours as “they would not be paid”.
17. X. On 18 January 2005, page 4 of the Diario de Hoy reported that Mr. Banchón Rivera, together with members of the Trade Union of Doctors and Workers of the Salvadoran Social Security Institute, had violently accused, in a totally disrespectful way, the authorities of this institution for trying to privatize external specialist care services.
18. 810. In view of all the preceding points, the Committee can only conclude that the expulsion of the trade union adviser Mr. Banchón Rivera is essentially linked to the exercise of his duties as trade union adviser and to the exercise of trade union rights, rather than to the exercise of political activities, it being understood that the exercise of trade union rights might at times entail criticisms of the authorities of public employer institutions and/or of socio-economic conditions of concern to trade unions and their members. The Committee notes with regret that a number of violent actions mentioned (although they refer in a very general way to Mr. Banchón Rivera “with other trade unionists” or strikers), such as the exploding of mortar bombs or blocking the entrance to doctors, do constitute an abuse of trade union rights. The Committee points out that: the resolution of the Ministry of the Interior ordering Mr. Banchón Rivera’s expulsion states that only three days were given to him to exercise his right of defence, although the facts dated back to 2002 and 2003; that Mr. Banchón Rivera has been married for years to a Salvadoran national and his expulsion would contravene the principle of family regrouping; that the resolution of the Ministry of the Interior does not provide evidence but refers to reports from the migration authorities and articles in the press; and, as may be ascertained from the resolution itself, that Mr. Banchón Rivera is primarily reproached for a number of activities that are clearly of a trade union rather than a political nature. In these circumstances, the Committee expresses the hope that the Constitutional Court of the Supreme Court of Justice will take all these factors into account when it examines the appeal concerning the expulsion order against the trade union adviser Mr. Banchón Rivera and that it keeps it informed in this respect. The Committee also requests the Government to communicate to it the text of the judgement handed down by the Constitutional Court of the Supreme Court of Justice on this matter.
19. 811. Finally, the Committee draws the Government’s attention to the principle that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696].