Informe provisional - Informe núm. 360, Junio 2011

1. 1166. The Committee last examined this case at its meeting in November 2010, when it submitted an interim report to the Governing Body [see 358th Report, paras 954–983, approved by the Governing Body at its 309th Session held in November 2010].
2. 1167. The Government sent additional observations in a communication dated 21 February 2011.
3. 1168. 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. 1169. In its previous examination of the case in November 2010, the Committee made the following recommendations concerning the outstanding issues [see 358th Report, para. 983]:
   • (a) The Committee expresses its grave concern about the serious allegations of murders of workers and union officials, which it deeply regrets, 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 intensify the judicial proceedings and investigations of the Office of the AttorneyGeneral in order to identify and severely punish the perpetrators, instigators and accomplices. The Committee requests the Government to keep it informed on the developments of the proceedings and expects that they will yield results in the near future.
   • (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 thereof so that the Government can undertake the appropriate investigations without delay.
   • (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 or competent authorities 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 the attention of the Committee of Experts to the legal aspects of this case.
   • (e) With respect to the allegations concerning the criminalization of protests, 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 (according to the CTV, judicial proceedings were started 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 ten trade union delegates of 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), the Committee again 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 again requests the complainant organization to supply additional 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 again 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 calls the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 1170. In its communication dated 21 February 2011 the Government states, first and foremost, that it is concerned at the degree of incongruence and inconsistency between the conclusions and recommendations of the Committee on Freedom of Association and the designation of Case No. 2727 as “extremely serious and urgent”. In particular, the Committee notes that it has received information from the Venezuelan Government on Case No. 2727 which it intends to examine at its next meeting, yet in paragraph 983 of its 358th Report it agrees with the Government and requests the complainant organization to provide detailed information to the Government on its allegations and on the circumstances surrounding them without delay, so that the Government can conduct the relevant investigations. In point of fact, four of the Committee’s six recommendations (namely, (c), (e), (f) and (g)) call on the complainant organization specifically to provide information. As to the other two recommendations brought to its attention, the Government has since 2009, when the complaint was first presented, informed the Committee of developments in the relevant inquiries and on the steps taken regarding the incidents that took place in El Tigre, in the state of Anzoátegui, and in the Los Anaucos area. It has also informed the Committee of the legal proceedings brought by the Office of the Attorney-General against six former Petróleos de Venezuela SA (PDVSA) employees on suspicion of criminal activities. In the light of the foregoing, and as the Government stated at the 309th Session of the Governing Body when the report of the Committee on Freedom of Association was adopted, it categorically rejects the Committee’s designation of this case as “extremely serious and urgent”, given that the Committee has yet to examine the latest replies from the Government and that the complainant organization has still not supplied the information requested of it – always bearing in mind that four of the Committee’s six recommendations concern it directly.
2. 1171. The Government goes on to refer to recommendations (a) and (b) of the Committee, in which it recommends, in regard to the serious allegations of murders of workers and union officials, that the Government “act diligently and swiftly to resolve these cases fully” and that it “intensify the judicial proceedings and investigations of the Office of the AttorneyGeneral in order to identify and severely punish the perpetrators, instigators and accomplices”. On this point the Government observes that the complaint was presented in June 2009 and was subsequently transmitted to the Government, which sent its reply in October of the same year, i.e. only months after the complaint was presented. In this initial reply, the Government informed the Committee of the investigations being conducted by the Office of the Attorney-General, together with the names of the investigating bodies concerned, and of the steps taken by the Scientific, Penal and Criminal Investigating Body. In March and May 2010 the Government sent additional replies on the case, thus fulfilling its obligation to keep the Committee abreast of developments. In its replies it informed the Committee of the names of the persons allegedly responsible for the incidents, of the charges brought by the investigating bodies, of the crimes involved, of the state of the proceedings and of the hearings that had been held.
3. 1172. Specifically, with respect to the murder of Mr Wilfredo Rafael Hernández, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández on 24 June 2009, in the state of Anzoátegui, the Government states that on 25 November 2009 the Office of the AttorneyGeneral requested that the case be closed in accordance with section 318(3), and pursuant to section 48(1), of the Code of Criminal Procedure, since criminal proceedings against the accused, Mr Pedro Guillermo Rondón, had been dropped following his death while committing a common crime. Similarly, with respect to the death of David Alexander Zambrano and Freddy Antonio Miranda Avendaño in the Los Anaucos area of the state of Miranda, the Government informed the Committee that on 17 December 2009 the Office of the Attorney-General charged Mr Richard David Castillo and Mr Jorge Mizael López with aggravated homicide and illegally bearing a firearm; the latter were currently awaiting trial and a hearing had been set for 13 April 2011.
4. 1173. In the light of the foregoing, the Government states that it is at a loss to explain the Committee’s contention that it should “act diligently and swiftly to resolve these cases fully”, “intensify the judicial proceedings and investigations of the Office of the AttorneyGeneral” and “punish the perpetrators, instigators and accomplices” since together with the competent institutions it has proceeded with all the diligence and celerity that these cases warrant, with the sole purpose of clarifying the incidents. The Government emphasizes that the Office of the Attorney-General and the other institutions concerned have conducted their respective investigations and are instituting judicial proceedings against the suspects who, should they be found guilty, will be punished in accordance with the law and as determined by the relevant authority.
5. 1174. This being so, the Government is unable to comprehend the Committee’s injunctions, as it considers that in this and in all other cases it has acted with the utmost celerity, transparency and diligence in its efforts to clarify the matters at issue and that it has moreover always demonstrated its willingness to cooperate with this supervisory body of the ILO by providing it with the information it has requested.
6. 1175. With regard to the alleged indictment and arrest of six employees of PDVSA–GAS (Larry Antonio Pedroza, José Antonio Tovar, Iván Ramón Aparicio Martínez, Jaffet Enrique Castillo Suárez, Rey Régulo Chaparro Hernández and José Luis Hernández Álvaro), their arrest was due to the fact that these workers were charged with boycotting, a punishable offence under section 139 of the Act for the Defence of Persons in Accessing Goods and Services. After investigation and in conformity with the due process of law, the Office of the Attorney-General brought formal charges against the six employees. A preliminary hearing was postponed to 3 March 2011.
7. 1176. The Government states that the Act for the Defence of Persons in Accessing Goods and Services is designed 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. Specifically, section 139 of the Act stipulates that anyone who carries out an action or is responsible for an omission that 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 six to ten years. Neither this Act nor any other curtails the right to strike or imposes criminal sanctions for staging a peaceful strike that does not affect commodities classified as prime necessities for the population. On the contrary, the Act protects the people’s right of access to goods and products classified as prime necessities and punishes anyone who endangers their production and distribution. The Government cannot therefore accede to the Committee’s recommendation that it annul the criminal charges brought against persons who committed crimes that are punishable under the country’s laws and regulations, as this would be tantamount to the State condoning situations of impunity and would run counter to the values and principles embodied in the Venezuelan Constitution.
8. 1177. The Government states further that the Committee argues that gas is not an essential service for the population. However, the Government insists that any activity in relation to gas and its sale constitutes in the Bolivarian Republic of Venezuela an essential service of prime necessity for the population, inasmuch as its interruption could endanger people’s lives, safety or health. The Government wishes to inform the Committee that most homes in the country use gas to cook, which means that interrupting its supply and sale is a breach of the right to food and, therefore, of the Venezuelan population’s right to health and to life.

C. The Committee’s conclusions

1. 1178. Before it examines the substance of the issues still pending and noting that the Government challenges the inclusion of the case in the category of “extremely serious and urgent” cases, given the information provided, notably on the current legal proceedings, and that it is awaiting additional information from the complainant organization, the Committee wishes to emphasize that some of the alleged incidents – incidents that have been recognized by the Government itself – relate to the murder of trade union officials. The Committee also notes that the consideration of serious and urgent cases in its reports is decided upon after an objective discussion that takes into account all the known facts.
2. 1179. With regard to recommendations (c), (e), (f) and (g) requesting additional information from the complainant organization, the Committee regrets that for the third time the organization has failed to send the information and informs it that, if it fails to do so before the next consideration of the case, the Committee will not be in a position to pursue its examination of the allegations.
3. 1180. The Committee therefore reiterates its earlier recommendations to the complainant organization:
   • – 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 thereof so that the Government can undertake the appropriate investigations without delay;
   • – with respect to the allegations concerning the criminalization of protests, 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 (according to the Workers’ Confederation of Venezuela (CTV), judicial proceedings were started 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 ten trade union delegates of 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), the Committee again requests the complainant to send the text of the accusations allegedly made against the union members in question;
   • – with regard 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 the activities they are alleged to have undertaken, so that the Government can send its observations in this regard;
   • – the Committee again 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.
4. 1181. 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 wishes to recall that it had requested the Government to intensify the judicial proceedings and investigations of the Office of the Attorney-General in order to identify and severely punish the perpetrators, instigators and accomplices. The Committee had also requested the Government to keep it informed of developments in the proceedings and trusts that they will yield results in the near future.
5. 1182. The Committee notes the Government’s observation that the complaint was presented in June 2009 and was subsequently transmitted to the Government, which sent its reply in October of the same year, i.e. only months after the complaint was presented, and that in this initial reply the Government informed the Committee of the investigations being conducted by the Office of the Attorney-General, together with the names of the investigating bodies concerned, and of the steps taken by the Scientific, Penal and Criminal Investigating Body. The Committee further notes the Government’s indication that in March and May 2010, it sent additional replies on the case, thus fulfilling its obligation to keep the Committee abreast of developments, and that in these replies the Government informed the Committee of the names of the persons allegedly responsible for the incidents, of the charges brought by the investigating bodies, of the crimes involved, of the state of the proceedings and of the hearings that had been held.
6. 1183. The Committee notes that, in particular, the Government states that: (1) with respect to the murder of Mr Wilfredo Rafael Hernández, Mr Jesús Argenis Guevara and Mr Jesús Alberto Hernández on 24 June 2009, in the state of Anzoátegui, the Office of the AttorneyGeneral requested on 25 November 2009 that the case be closed in accordance with section 318(3) of the Code of Criminal Procedure and pursuant to section 48(1) of this Code, since the criminal proceedings against the accused, Mr Pedro Guillermo Rondón, had been discontinued following his death while committing a common crime; and (2) with respect to the death of Mr David Alexander Zambrano and Mr Freddy Antonio Miranda Avendaño in the Los Anaucos area of the state of Miranda, the Office of the Attorney-General on 17 December 2009 submitted an indictment against Mr Richard David Castillo and Mr Jorge Mizael López, for committing aggravated homicide and illegally bearing a firearm who were currently awaiting trial, a hearing having been set for 13 April 2011.
7. 1184. The Committee also notes the Government’s comment that it is at a loss to explain the Committee’s contention that it should “act diligently and swiftly to resolve these cases fully”, “intensify the judicial proceedings and investigations of the Office of the AttorneyGeneral” and “punish the perpetrators, instigators and accomplices”, inasmuch as Government and the competent institutions had proceeded with all the diligence and celerity that the cases warranted, with the sole purpose of clarifying the incidents and that the relevant investigations had been conducted and judicial proceedings instituted against the suspects who, should they be found guilty, would be punished in accordance with the law and as determined by the relevant authority. The Committee draws the Government’s attention to the fact that its recommendations are intended to ensure the conviction in a court of law of those responsible for the murder of trade unionists and that the Government informed it only recently of the hearing that had been scheduled for 13 April 2011 in the case of the murder of two such trade unionists.
8. 1185. The Committee firmly trusts that judicial sentences will be handed down on the perpetrators, instigators and accomplices in the near future. The Committee requests the Government to keep it informed in this regard.
9. 1186. With regard to 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 wishes to recall that it had requested the Government or competent authorities 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 requested 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 drew the attention of the Committee of Experts to the legislative aspect of this case.
10. 1187. The Committee notes the Government’s comments on these recommendations and, notably: (1) that the six employees of PDVSA–GAS (Larry Antonio Pedroza, José Antonio Tovar, Iván Ramón Aparicio Martínez, Jaffet Enrique Castillo Suárez, Rey Régulo Chaparro Hernández and José Luis Hernández Álvaro) were arrested on the charge of boycotting, which is a punishable offence under section 139 of the Act for the Defence of Persons in Accessing Goods and Services, and that, upon investigation and in conformity with the due process of law, the Office of the Attorney-General brought formal charges against the six workers, a preliminary hearing having been postponed to 3 March 2011; (2) that the Act for the Defence of Persons in Accessing Goods and Services is designed 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 and that section 139 of the Act stipulates that anyone who carries out an action or is responsible for an omission that 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; (3) that neither this Act nor any other curtails the right to strike or imposes criminal sanctions for staging a peaceful strike that does not affect commodities classified as prime necessities for the population and that, on the contrary, the Act protects the people’s right of access to goods and products classified as prime necessities and punishes anyone who endangers their production and distribution; (4) that the Government cannot therefore accede to the Committee’s recommendation that it annul the criminal charges brought against persons who committed crimes identified in the country’s laws and regulations and punishable accordingly, inasmuch as this would be tantamount to the State condoning situations of impunity and would run counter to the values and principles embodied in the Venezuelan Constitution; (5) while the Committee observes that gas is not an essential service for the population, the Government insists on this point, that any activity in relation to gas and its sale constitutes in the Bolivarian Republic of Venezuela an essential service of prime necessity for the population, inasmuch as its interruption could endanger people’s lives, safety or health; and that most homes in the country use gas to cook, which means that interrupting the supply and sale of this product is deemed to be a breach of the right to food and, therefore, of the Venezuelan population’s right to health and to life.
11. 1188. The Committee regrets that the Government has not complied with the recommendations formulated in its previous examination of the case and can only reiterate the arguments it advanced on that occasion. The Committee therefore refers once again to the following conclusions that it reached at the time [see 358th Report, paras 977–979]:
    • 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].
    • 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.
    • 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. 1189. Under these circumstances, the Committee reiterates its earlier conclusions and recommendations regarding these matters.