Interim Report - Report No 118, 1970

1. 98. The last report to the Governing Body in respect of this case, which was examined by the Committee at its meeting in February 1969, is contained in paragraphs 135 to 146 of its 110th Report.
2. 99. Since that report was submitted a series of communications have been received from Mr. Rubén Carlos Esguerra and his defending counsel and from the Mexican Government. The communications from Mr. Esguerra are dated 23 September and 24 October 1969, that from his defence counsel is dated 15 November 1969 and those from the Government were dispatched on 16 June and 29 September 1969 and 12 January and 24 March 1970.

A. A. The complainants' allegations

1. 100. The Committee recalls that at the time it examined this case at its meeting in February 1969 Mr. Esguerra, who had been acting as a trade union representative, and a number of other persons were undergoing trial, the former having been charged with attempted murder and fraud. According to a communication from the World Confederation of Labour dated 10 January 1968, Mr. Esguerra had been arrested on account of his trade union activities. Since the Government had stated that the trial was expected to end shortly and that it would supply the text of the judgment, the Committee recommended the Governing Body to take note of this statement and request the Government to communicate at the same time the text of the grounds adduced for the judgment in question, adjourning examination of the case pending receipt of this information.
2. 101. On 16 June 1969 the Government announced that sentence had been passed on Mr. Esguerra and promised to forward the text of the judgment. This it did on 29 September 1969.
3. 102. According to the text of the judgment Mr. Esguerra was sentenced to seven years' imprisonment for fraud and attempted homicide. The offence of fraud consisted in having received money from a group of workers in return for a promise-which was not kept that he would secure employment for them with the Petróleos Mexicanos undertaking. The offence of attempted homicide consisted in having induced a number of workers and trade union officials to stage a hunger strike in support of their claims at the entrance to the United Nations Mexico City office building, and having subsequently prevented them, against their will (according to their own later statements), from abandoning the strike. The judgment states that an analysis of the evidence leads to the conclusion that, while it is true that these persons participated voluntarily and deliberately in the hunger strike to which they were induced by Esguerra, the offence of attempted homicide arose when those participating in the strike, finding themselves in danger of death, tried to abandon it and were prevented from doing so by Mr. Esguerra. Not only did he fail to give them food and assistance when they so requested and which they were unable to obtain for themselves, but he deliberately prevented food and help being given them by others. In the end, thanks to the intervention of the police, the workers in question were taken to hospital for treatment.
4. 103. Mr. Esguerra appealed against this sentence to the High Court of Justice. According to a communication from the Government dated 12 January 1970 the hearing of the appeal was to take place on 14 January. The Government stated that it would keep the Committee informed of any further developments in the case. To date no such information has been received from the Government.
5. 104. On 23 September 1969 Mr. Esguerra wrote directly to the ILO to complain of the treatment he was receiving in prison, alleging in particular that his lawyers were being prevented from visiting him. In a further communication dated 24 October 1969 Mr. Esguerra again emphasised the difficulties he was having in briefing his defence counsel. He added that the witnesses who had testified against him (the persons who had participated in the hunger strike) had done so because pressure was brought to bear on them by the authorities while they were in hospital. In his view it was a political trial. On 15 November 1969 one of his defence counsel, Mr. Sánchez Ramirez, wrote to the ILO stating that he had requested copies of certain items of evidence in Mr. Esguerra's trial in order to prepare his defence, but that his request could not be met as the documents in question were no longer on the file.
6. 105. These various communications were transmitted to the Government, which sent a reply on 24 March 1970. The Government's communication is very detailed and the Committee takes note of the explanations given therein. As regards specifically the question of Mr. Esguerra's defence counsel, the Government states that Mr. Esguerra has always been able to communicate with those persons appointed for his defence and legally accredited; only on two occasions was one of his counsel refused entry to the prison on account of the fact that-no doubt due to an oversight-he was unable to produce his credentials. There was never any difficulty with the visits of the official counsel for the defence. When Mr. Esguerra designated further counsel for his defence, only one of them (Mr. Sánchez Ramirez) requested credentials, which were granted. The Government makes no reference in its communication to the allegations made by Mr. Sánchez Ramirez in his letter of 15 November 1969.
7. 106. With regard to Mr. Esguerra's comments on his trial, the Government declares them to be personal and biased. The Government adds that it does not consider it to be one of the ILO's duties to act as the highest instance to solve legal matters arising is the courts of member countries. It states: " If a defendant is charged with an offence provided for and classified in the Penal Code, and is given all the necessary guarantees to present his defence, and if, furthermore, the proceedings instituted do not relate to genuine trade union activities, the ILO should in all cases refrain from intervention in the court's activities since, under the rule of law practised in Mexico, even the other powers of the Federal Union may not intervene in the functioning of the courts".

B. B. The Committee's conclusions

1. 107. The Committee wishes to recall the importance it has always attached in all cases, including those where trade unionists are accused of political or common law offences that the Government considers to be unconnected with their trade union duties, to the principle that the persons concerned should receive a fair trial at the earliest possible moment by an impartial and independent judicial authority. Where the information received by the Committee has made it clear that the persons concerned were 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, the Committee has considered that the cases in question did not call for further examination. Nevertheless, the Committee has insisted that the question as to whether the matter in respect of which sentences have been imposed is to be regarded as a matter relating to a criminal offence or as a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, but that it is incumbent upon the Committee to decide this in the light of all the information, and in particular in the light of the text of the judgment.
2. 108. With regard to the trial and sentence of Mr. Esguerra, the Committee has examined carefully the comments and information furnished by the Government, especially the text of the judgment. The Committee is of the opinion that the acts said to have been committed by Mr. Esguerra which led to his being found guilty of the offence of fraud are clearly quite outside the scope of any trade union activity.
3. 109. The situation is not the same in the case of the acts on account of which he was found guilty of attempted homicide. These involved the intervention of Mr. Esguerra in an act of protest by workers and trade union officials in support of labour claims. The action he took consisted, first, in inducing these workers to stage a hunger strike, in which they were quite willing to participate. Later Mr. Esguerra is 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, it was necessary for the forces of public order to intervene in order that the strikers might be taken to hospital. Nevertheless, the Committee also observes that the Government earlier supplied information (communication of 12 January 1968) to the effect that " seven persons took part in a hunger strike at the doors of the United Nations office 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. "