Informe provisional - Informe núm. 358, Noviembre 2010

1. 954. The Committee examined this case at its meeting in March 2010 and presented an interim report to the Governing Body [see 356th Report, paras 1630 to 1654, approved by the Governing Body at its 307th Session (March 2010)].
2. 955. The Government sent its observations in a communication dated 24 May 2010.
3. 956. 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. Previous examination of the case

1. 957. In its previous examination of the case in March 2010, the Committee made the following recommendations regarding the matters still pending [see 356th Report, para. 1654]:
   • (a) The Committee expresses its grave concern at the serious allegations of murders of workers and union officials and urges the Government to act diligently and swiftly to resolve these cases fully.
   • (b) With regard to the allegations concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and of two trade union delegates in the Los Anaucos area in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran), the Committee requests the Government to explain the reasons for the termination of the criminal proceedings and expects that new investigations will be initiated and will yield results in the near future and will enable the perpetrators to be identified and punished. The Committee requests the Government to keep it informed in this regard.
   • (c) Concerning the allegations in relation to the contract killings of more than 200 workers and union officials in the construction sector, the Committee requests the trade union to provide the Government without delay with a list of these murders and the circumstances involved so that the Government can undertake the appropriate investigations without delay. The Committee requests the Government to keep it informed in this regard.
   • (d) As regards the allegations concerning the Office of the Attorney-General’s preparation of criminal charges against and detention of six workers at PDVSA because, during a protest in defence of their labour rights, they paralysed the enterprise’s activities, the Committee requests the Government to take the necessary measures to have the criminal proceedings brought against the six union officials at PDVSA dropped and to ensure their release without delay. The Committee also requests the Government to take the necessary steps to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services so that it does not apply to services which are not essential in the strict sense of the term and so that in no event may criminal sanctions be imposed in cases of peaceful strikes. The Committee requests the Government to keep it informed in this regard. The Committee draws this case to the attention of the Committee of Experts.
   • (e) Relating to the allegations concerning the criminalization of protests and the initiation of judicial proceedings at various enterprises in the oil, gas and steel sectors, and the dismissal of union officials as a result of these protests, the Committee requests the complainant to send the text of the accusations allegedly made against the union members in question.
   • (f) With regard to the criminal court proceedings against 110 workers for claiming their rights, the Committee requests the complainant organization to supply supplementary information concerning these allegations, specifically, the names of those involved and the activities they are alleged to have undertaken, so that the Government can send its observations in this regard.
   • (g) The Committee invites the complainant organization to indicate whether the collective bargaining rights of its affiliates have been respected in the bargaining processes mentioned by the Government.
   • (h) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 958. In its communication dated 24 May 2010, the Government refers to the events which occurred in El Tigre, in the state of Anzoátegui, and reiterates that concerning the murders of Mr Wilfredo Rafael Hernández, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández on 24 June 2009 on the road from El Tigre to Caico Seco in front of the La Maravilla finca, in the state of Anzoátegui, the Office of the Attorney-General requested on 25 November 2009 the closing of the case (a nolle prosequi) in accordance with the provisions in section 318(3) of the Code of Criminal Procedure and pursuant to section 48(1) of this Code, discontinuing the criminal proceedings against the accused, Mr Pedro Guillermo Rondón, because of his death while committing a common crime of which he was allegedly the perpetrator.
2. 959. The Government specifies that the discontinuance of criminal proceedings is based on a number of grounds established in section 48 of the Venezuelan Code of Criminal Procedure, namely:
   • Section 48. Grounds. Criminal proceedings are discontinued in the event of:
3. 1. The death of the accused.
4. 2. Amnesty.
5. 3. The withdrawal or abandonment of the private prosecution brought by the aggrieved party.
6. 4. Payment of the maximum fine, prior to the admission of the offence, for offences that are punishable by fine.
7. 5. The application of the principle of opportunity, subject to the provisions of this Code.
8. 6. Fulfilment of compensation agreements.
9. 7. Compliance with obligations and expiry of the deadline for the conditional suspension of the proceedings, following verification by the judge in the respective hearing.
10. 8. The lapse of the statute of limitation, except where this is waived by the accused.
11. 960. The Government goes on to say that one of the grounds for discontinuing criminal proceedings is the death of the person charged with the offence; from the discontinuance of the proceedings, the request for a nolle prosequi arises in accordance with section 318 of the aforementioned Code, which reads as follows:
    • Section 318. Nolle prosequi. A nolle prosequi shall be entered when:
12. 1. The act which is the subject of the proceedings is not carried out or cannot be attributed to the accused.
13. 2. The alleged act is atypical or constitutes a ground of justification, innocence or exemption from punishment.
14. 3. The criminal proceedings have been dropped or are res judicata.
15. 4. Despite the lack of certainty, there is no reasonable possibility of including new data in the investigation and there are no reasonable grounds to request the trial of the accused.
16. 5. It is so established by this Code.
17. 961. To this end, the Government highlights that entering a nolle prosequi “puts an end to the proceedings and has the force of res judicata. Thereby preventing any new trial from being brought against the accused or defendant ... thus removing all restraining orders which have been ruled” (section 19, Code of Criminal Procedure). Nevertheless, despite the nolle prosequi in the proceedings against Mr Pedro Guillermo Rondón due to the discontinuance of the criminal proceedings caused by his death, the Office of the Attorney-General reported that it would continue its investigations into these events.
18. 962. With regard to the events which took place in the Los Anaucos area, in the state of Miranda, the Government declares that on 17 December 2009 the Office of the Attorney-General submitted an indictment against Mr Richard David Castillo and Mr Jorge Mizael López for committing aggravated homicide and illegally bearing a firearm, leading to the death of David Alexánder Zambrano and Freddy Antonio Miranda Avendaño, trade union officials. The preliminary hearing was held on 2 February 2010 at the competent monitoring court, which established probable cause, moving proceedings onto the trial phase and setting a date for the oral and public hearing for 5 June 2010.
19. 963. With regard to the case brought for the detention of six workers of PDVSA–GAS, Mr Larry Antonio Pedroza, Mr José Antonio Tovar, Mr Juan Ramón Aparicio Martínez, Mr Jaffet Enrique Castillo Suárez, Mr Rey Régulo Chaparro Hernández and Mr José Luis Hernández Álvaro, the Government indicates that the said persons were brought before the appropriate court for the offence of boycotting, provided for and punishable under section 139 of the decree having the rank, value and force of the Act for the Defence of Persons in Accessing Goods and Services. The Office of the Attorney-General took this opportunity to request the application of the ordinary procedure and of a preventive detention measure, to which the judicial body agreed. Subsequently, following an exhaustive investigation and due process, the Office of the Attorney-General submitted, on the basis of the witness reports and the results of the technical inquiry, technical legal examination and photomontage, a formal indictment against the aforementioned persons, establishing the relevant courts and the date of the preliminary hearing for 23 March 2010 even though the date was then postponed to 2 June 2010 for failure to appear by one of the accused.
20. 964. The Government points out, with regard to section 139 of the Act for the Defence of Persons in Accessing Goods and Services, that this Act was published in the Official Gazette of the Bolivarian Republic of Venezuela on 24 April 2009, and that its purpose is to defend, protect and safeguard the rights and interests of individuals and groups in accessing goods and services in order to meet the population’s needs and protect social peace, justice, and the right to life and health of the population. More specifically, section 139 of this Act establishes the following:
    • Section 139. Anyone who, jointly or individually, plans or carries out an action or is responsible for an omission that directly or indirectly impedes the production, manufacture, importation, warehousing, transport, distribution or sales of commodities classified as being of prime necessity shall be liable to a prison term of between six and ten years.
21. 965. This section refers to the offence of boycotting. It is necessary to clarify that it does not set out criminal sanctions for staging a strike which does not affect commodities classified as prime necessities for the population given that, in the Bolivarian Republic of Venezuela, striking is a constitutional right. However, it does set out sanctions for any person who puts at risk the production and distribution of primary commodities which, far from limiting a right, protects the people’s right to access commodities classified as being of prime necessity.
22. 966. The Government points out that any activity in relation to gas and the process of selling gas constitutes, in the Bolivarian Republic of Venezuela, an essential service of prime necessity for the population, where an essential service is understood to be a service whose interruption could endanger people’s lives, safety or health. Similar to many countries in the world, most homes in the country use gas to cook, which means that interrupting the supply and sale of this product is a breach of the right to food and, therefore, the right to health and the right to life of the people.
23. 967. With regard to this point, the Committee once again requested the Government to drop the criminal proceedings and to release the persons who had committed offences punishable under Venezuelan law. This being the case, if the Government were to comply with the Committee’s recommendations, it would create a situation of impunity, which would go against the values and principles that are enshrined in the Constitution of the Bolivarian Republic of Venezuela and are part of a democratic and social State under the rule of law and justice.
24. 968. The Government expects that its reply will be given careful and due consideration.

C. The Committee’s conclusions

1. 969. The Committee recalls that the allegations made by the CTV refer to the following issues: (1) the murder of three union officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary) and two union delegates in the Los Anaucos area in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran); (2) the contract killings of more than 200 workers and union officials in the construction sector; (3) the Office of the Attorney-General has brought charges of boycotting against six workers (Mr Larry Antonio Pedroza, union delegate, Mr José Antonio Tovar, Mr Juan Ramón Aparicio, Mr Jafet Enrique Castillo Suárez, Mr Roy Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado) of the enterprise Petróleos de Venezuela SA (PDVSA) Gas Comunal for staging protests to demand their labour rights; (4) the criminalization of protests, the initiation of legal proceedings at various enterprises and the dismissal of union officials in connection with the protests; and (5) the persistent refusal of the public authorities to collectively bargain in the oil, electricity and national university sector, among others.
2. 970. With regard to the allegation concerning the murder of three union officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, general secretary, Mr Jesús Argenis Guevara, organizational secretary, and Mr Jesús Alberto Hernández, culture and sports secretary), and two trade union delegates in the Los Anaucos area in June 2009 (Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran), the Committee had noted at its meeting in March 2010 that the Office of the Attorney-General requested on 25 November 2009 the nolle prosequi due to the death of the accused persons, Pedro Guillermo Rondón and Wilfredo Rafael Hernández Avile, in accordance with the provisions of section 318(3) of the Code of Criminal Procedure in line with section 48(1), grounds for discontinuing the criminal proceedings. The Committee had requested the Government to explain why the criminal proceedings had been discontinued and expected that new investigations would be initiated, yield results in the very near future and enable the perpetrators to be identified and punished.
3. 971. The Committee notes that in its latest reply the Government declares that regarding the murder of the union officials, Mr Wilfredo Rafael Hernández, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández, on 24 June 2009, and in accordance with the law the criminal case remained closed because of the death of Mr Pedro Guillermo Rondón (accused of the aforementioned murders and who died in the act of committing the common crime of which he was the alleged perpetrator) which is why the Office of the Attorney-General requested the discontinuance of the proceedings. The Committee notes that the Government reports that the Office of the Attorney-General has nevertheless continued to carry out the relevant investigations.
4. 972. The Committee wishes to recall that in its previous reply the Government referred to the deaths of both persons accused of murder (Pedro Guillermo Rondón and Wilfredo Rafael Hernández Avila) and not only the death of the former, which is the case now. The Committee highlights the importance of stepping up the investigation in order to identify and punish the perpetrators (whether they are alive or dead), but also in order to severely punish the instigators and accomplices. The Committee requests the Government to keep it informed in this regard.
5. 973. The Committee furthermore highlights that in its allegations the CTV also refers to the murder of two trade union delegates in June 2007 in the Los Anaucos area (Mr Felipe Alejandro Matas Iriarte and Mr Reinaldo José Hernández Berroteran). The Committee requests the Government to intensify the Office of the Attorney-General’s legal procedures and investigation without delay with the aim of identifying and severely punishing the perpetrators, instigators and accomplices. The Committee notes that the Government refers to the murder of the trade union officials in the Los Anaucos area, Mr Alexánder Zambrano and Mr Freddy Antonio Miranda (events which are not however mentioned in the CTV’s complaint) stating that Mr Richard David Castillo and Mr Jorge Mizael López are accused of aggravated homicide and bearing firearms and are awaiting the oral and public hearing on 15 June 2010.
6. 974. The Committee expresses its serious concern about the murder of the union officials mentioned in this complaint, which it deeply regrets.
7. 975. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, sixth edition, 2006, para. 43]. The Committee requests the Government to keep it informed regarding the development of the proceedings and investigations and expects that they will yield results in the near future and enable the perpetrators to be identified and punished.
8. 976. Concerning the allegations in relation to the contract killings of more than 200 workers and union officials in the construction sector, the Committee requests the trade union once again to provide the Government without delay with a list of the murders and the circumstances thereof so that the Government can undertake the appropriate investigations without delay.
9. 977. As regards the allegations concerning the Office of the Attorney-General’s filing of criminal charges for the offence of boycotting and the subsequent detention of six workers of the PDVSA enterprise (Mr Larry Antonio Pedroza, trade union delegate, Mr José Antonio Tovar, Mr Juan Ramón Aparicio, Mr Jafet Enrique Castillo Suárez, Mr Roy Rogelio Chaparro Hernández and Mr José Luis Hernández Alvarado) because, during a protest to demand their labour rights, they paralysed the enterprise’s activities (according to the Unitary Federation of Workers in the Petrol, Gas and Similar Industries of Venezuela (FUTPV), the Office of the Attorney-General is being used by the Government), the Committee noted that the Government had stated that, on 12 June 2009, a group of workers, as part of a demonstration, paralysed the plant’s gas canister filling activities, affecting the sale of a commodity of prime necessity, for which they were arrested. On 13 June 2009, the Second Court of First Instance of the Criminal Judicial Circuit of the state of Miranda summoned them to appear at a hearing, during which the 16th Prosecutor qualified the events as a boycott under section 139 of the Act for the Defence of Persons in Accessing Goods and Services, which states: “Anyone who, jointly or individually, plans or carries out an action or is responsible for an omission that directly or indirectly impedes the production, manufacture, importation, warehousing, transport, distribution or sales of commodities classified as being of prime necessity shall be liable to a prison term of between six and ten years”. The Committee also noted that the Government indicated that section 139 of the aforementioned Act does not apply to the right to peaceful assembly [see 356th report, para. 1649].
10. 978. The Committee notes that in its latest reply the Government reiterates these statements and adds that the judicial authority has set the preliminary hearing for 2 June 2010. It states that because gas is used in most homes to cook, the interruption of the supply and sale of this product constitutes a breach of the right to food and therefore the right to health and to life of the population. The Committee notes that in the Government’s opinion this issue involves a service that is essential and of prime necessity, whose interruption could endanger people’s lives, safety or health. Finally, the Committee notes that the Act does not impose sanctions for holding a strike which does not affect commodities of prime necessity for the population, which the law must protect.
11. 979. In this regard, the Committee underlines that the activity of filling and selling gas canisters does not constitute an essential service in the strict sense of the term – i.e. where the interruption of a service could endanger the life, personal safety or health of all or part of the population, for which the exercise of the right to strike or the interruption of activities can be totally prohibited – and even less so when the argument put forward is that this is a product that most homes use to cook. The Committee also considers that the peaceful exercise of those trade union rights should not be the subject of criminal proceedings or result in the detention of trade union officials who have organized these strikes on boycotting charges, as is the present case, by virtue of section 139 of the Act for the Defence of Persons in Accessing Goods and Services. This being the case, the Committee recalls that the detention of trade union officials and members for carrying out legal trade union activities constitutes a violation of freedom of association. The Committee, noting that the Government declares that it cannot discontinue the criminal proceedings, recalls that the public authorities must respect the ratified ILO Conventions. The Committee requests the Government or the competent authority once again to take the necessary measures to discontinue the criminal proceedings brought against the six trade union officials of the PDVSA Gas Comunal and to release them without delay. The Committee requests the Government to keep it informed in this regard. The Committee also requests the Government to take the necessary steps to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services (which includes criminal sanctions for the paralysis of activities) so that it does not apply to services which are not essential in the strict sense of the term, and so that in no event criminal sanctions are imposed in cases of peaceful strike. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations once again to the legal aspect of this case. The Committee requests the Government to keep it informed in this respect.
12. 980. With respect to the allegations concerning the criminalization of protests, the initiation of legal proceedings at various enterprises in the oil, gas and steel sectors, and the dismissal of trade union officials as a result of these protests, the Committee had noted in its previous examination of the case that, according to the CTV, judicial proceedings had been brought against 27 workers at the state holding PDVSA, 25 workers at the “Alfredo Maneiro” Orinoco steelworks for staging a protest in defence of their labour rights and that ten trade union delegates at the “El Palito” refinery were dismissed after 600 workers decided to stop work as a result of failure to abide by commitments under the collective agreement. According to the CTV, workers at the enterprises Gas PetroPiar and Gas Comunal have also been affected [see 356th Report, para. 1651]. The Committee also noted in its previous examination of the case the CTV’s allegations that around 110 workers have been taken to court for claiming their labour rights. In this regard, the Committee noted that, according to the Government, the Office of the Ombudsman had received no complaints and had not carried out any investigations concerning these allegations; on the contrary, the Ombudsman had intervened in various labour disputes at PDVSA, assisting in resolving them through mediation, without learning of any detentions or criminal proceedings in any of the disputes. Given the contradiction between the allegations and the Government’s reply, the Committee requested the complainant to send the text of the accusations allegedly made against the union members in question. The Committee observes that it has not received such texts and reiterates its previous recommendation to the complainant.
13. 981. Relating to the criminal court proceedings against 110 workers for claiming their rights, the Committee again requests the complainant organization to supply additional information concerning these allegations, specifically, the names of those involved and a description of the activities they allegedly undertook so that the Government can send its observations in this regard.
14. 982. With regard to the allegations concerning the persistent refusal of public authorities to bargain collectively in the oil, electricity and national university sectors, among others, the Committee noted in its previous examination of the case that the Government reported the conclusion of collective agreements in these sectors and invited the complainant organization to indicate whether in these collective bargaining processes the collective bargaining rights of its affiliates had been respected. The Committee reiterates this recommendation.