Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 364, Junio 2012

1. 1060. The Committee last examined this case at its meeting in June 2011, when it submitted an interim report to the Governing Body [see 360th Report, paras 1166–1190, approved by the Governing Body at its 311th Session (June 2011)].
2. 1061. The Government sent new observations in a communication dated 18 October 2011.
3. 1062. 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. 1063. In its previous examination of the case in June 2011, the Committee made the following recommendations concerning the outstanding issues [see 360th Report, para. 1190]:
   • (a) The Committee expresses its grave concern about the serious allegations of murders of workers and union officials, which it deeply regrets.
   • (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 firmly trusts that judicial sentences will be handed down on the perpetrators, instigators and accomplices in the near future. The Committee once again requests the Government to keep it informed in this regard.
   • (c) 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. It once again draws the attention of the Committee of Experts to the legislative aspect of this case.
   • (d) The Committee regrets that for the third consecutive time the complainant organization has failed to send the additional information requested in its earlier conclusions and recommendations 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. The Committee reproduces its earlier recommendations below:
     • – 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 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 10 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 organization 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.
   • (e) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. The Government’s new reply

1. 1064. In its communication dated 18 October 2011, the Government states once again that it disagrees with the designation of Case No. 2727 as extremely serious and urgent given the continued lack of information from the complainant organization despite repeated requests to which the Committee has received no reply. In this respect, the Government requests that the information be provided by the complainant organization and that it complies with the provisions of Report No. 360, paragraph 1190(d) in which the Committee, having requested information from the complainants on three consecutive occasions without receiving any reply, informed them that if it did not receive the information before the next consideration of the case, i.e. the meeting of the Committee on Freedom of Association on 3–4 November 2011, the Committee would not pursue its examination of the allegations; in the light of the complainant organization’s failure to provide the required information, the Government therefore expressly requests the Committee on Freedom of Association to reach a decision on the matter, end its examination of the abovementioned allegations and close this case. The Government indicates that it is making this request to ensure that the Committee’s considerations are uniform, coherent and transparent in all the pending cases it is examining against the Government. The Government draws the Committee’s attention to cases and allegations that do not receive the due examination necessary for their objective and impartial assessment and are rejected and closed; the Committee should not receive vague and imprecise accusations that far from providing solutions to disputes between parties and being in line with the Committee’s purpose, cause delays in judicial proceedings and produce unfounded rulings against the Government.
2. 1065. As regards the point in which “The Committee expresses its grave concern about the serious allegations of murders of workers and union officials, which it deeply regrets”, the Government has expressed on several occasions its regret regarding the death of workers, trade union leaders and any other national. The Government and the competent institutions and bodies have acted diligently and swiftly to resolve these cases and have fully complied with the obligation to inform the Committee on developments in these cases and to provide details of investigations being carried out by the Office of the Attorney-General, demonstrating their unswerving commitment to providing the supervisory body of the ILO with all the information it has requested.
3. 1066. With regard to the events concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara, and Mr Jesús Alberto Hernández), the Government indicates that according to the Office of the Attorney-General, on 5 October 2010, the Third Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the state of Anzoátegui, in El Tigre, ruled that the case be closed in accordance with section 318(3), and pursuant to section 48(1), of the Code of Criminal Procedure. There is no ongoing investigation or open file on these events since, taking into account the information in the previous reply, the case was closed when judicial proceedings were dropped following the death of the accused.
4. 1067. As regards the allegations concerning the Office of the Attorney-General’s preparation of criminal charges against and detention of six workers at Petróleos de Venezuela (PDVSA) because, during a protest they paralysed the enterprise’s activities, the Government once again respectfully draws the Committee’s attention to the requests made and expressly requests that the information provided be assessed with total objectivity. The Government cannot address the Committee’s request to drop “without effect” measures and judicial proceedings which are in strict compliance with the relevant domestic legislation as well as due process and other principles. The Government adds that the Committee has no jurisdiction to request the dropping of legal measures and judicial proceedings against offences laid down and sanctioned in the law and for which the corresponding legal procedures are established. By these recommendations the Committee is asking the Government to disregard domestic legislation and procedures laid down to sanction typical offences, which would give rise to a situation of impunity. The Government and the corresponding state bodies of the Bolivarian Republic of Venezuela respect and comply with the principles embodied in the Constitution and national legislation, and, given their full force in the Bolivarian Republic of Venezuela, the principle of the separation and independence of the different state branches; therefore the Government cannot comply with recommendations that are unfounded and that the Committee has no competence to make, and that are at odds with the constitutional principles and laws of the Bolivarian Republic of Venezuela. On the other hand, the Committee also requests the Government to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services. The Committee is informed that this law was fully debated, discussed and adopted by the Venezuelan National Assembly, i.e. the legislative branch of the State. It was adopted to defend, protect, and safeguard the rights and interests of individuals in accessing goods and services in order to meet their needs. Section 139 concerns the penalties for any individual who impedes the production, manufacture, import, warehousing, transport, distribution or sales of commodities classified as being of prime necessity for the population.
5. 1068. In this respect, the Government indicates that it finds itself in the position once again of having to explain to the Committee that any activity in relation to the production, distribution, and sale of gas constitutes in the Bolivarian Republic of Venezuela an essential service of prime necessity for the population. In order that the Committee can understand and take note of the necessity and predominance of this commodity in the Bolivarian Republic of Venezuela, the following information is provided:
   • ■ According to the National Institute of Statistics (INE), in 2011 there were approximately 5,855,547 households in the Bolivarian Republic of Venezuela. Of these, 5,094,326 used liquefied petroleum gas (LPG) and 761,221 used other energy sources.
   • ■ At present 87 per cent of the population need LPG for cooking and other uses, thus its classification as an essential public service and of social and public interest.
   • ■ Over 150,000 gas cylinders are distributed daily. If distribution were to be interrupted for just one day, it would affect over 93,000 Venezuelan households.
   • ■ Besides for cooking, LPG is used in the Bolivarian Republic of Venezuela in both heating and cooling systems.
   • ■ LPG is used for cooking not only in Venezuelan homes but also in schools.
   • ■ LPG is also used in health centres, clinics, hospitals, etc., for cooking, in heating and cooling systems, and in steam boilers to sterilize surgical instruments.
   • ■ LPG is also distributed and used by commerce and industry, for example in bakeries, restaurants, refineries, petrochemical companies, etc.
   • ■ The capture, storage or use of natural gas as well as gas produced from petroleum or other fossil fuels, and the processing, industrialization, transport, distribution, and domestic or foreign trading of these gases is governed by the Petroleum Act, published in Official Gazette No. 36793 of 23 September 1999.
6. 1069. Section 4 of this Act stipulates “The activities referred to in this Act, as well as the works required for their management, are declared of public utility”, and section 5 states “Activities that are directly or indirectly related to the transport and distribution of hydrocarbon gases destined for public consumption constitute a public service”.
7. 1070. The Act conferring on the State the Sole Rights to the Exploitation of the Domestic Market in Hydrocarbon Derivatives declares of public utility and national interest the exploitation of the domestic market for hydrocarbon derivatives such as, inter alia, combustible fuels and liquefied petroleum gas and, furthermore states that the activities of public interest reserved to the State under this law include the import, transport, supply, storage, distribution and sale of the abovementioned products within the national territory. It also declares liquefied petroleum gas of prime necessity. It constitutes an essential public service of public necessity since disruption or stoppage of activities relating to its production, distribution or sale would affect the vast majority of Venezuelan households as well as schools, care centres, commerce and industry. For these reasons the Bolivarian Republic of Venezuela does not and shall not permit actions or omissions that affect the production or distribution of gas since they would jeopardize and infringe the Venezuelan population’s right to food, health and life.
8. 1071. The Government expects the Committee to take due note of this information and not make observations or requests that violate the principles of the State and are against domestic law.
9. 1072. Finally, the Government is under the obligation once again to remind the Committee of Article 8(1) of Convention No. 87, which we fully observe and comply with: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.”

C. The Committee’s conclusions

1. 1073. With regard to the Committee’s recommendation (a) contained in its previous examination of the case and the Government’s view contained in its previous reply that it disagrees with the Committee’s decision to designate this case as extremely serious and urgent given the continued lack of information from the complainant organization despite repeated requests, the Committee wishes to point out that in recommendations (b) and (c) of its previous examination of the case, the Committee refers to issues concerning the murders of three officials and two trade union delegates, the initiation of criminal proceedings and the arrest of six workers in the oil sector for paralysing state enterprise PDVSA’s activities. In this regard, the Committee wishes to point out that the designation of a case as extremely serious and urgent is determined by the Committee on the basis of the seriousness of the issues raised and the information provided by the Government. The Committee wishes to emphasize that the murder of officials is always regarded within the ILO as serious and that in its rules of procedure (see rule 54) it is expressly established that included in the category of urgent cases are “Matters involving human life or personal freedom ...”.
2. 1074. With regard to recommendation (b) of the previous examination of the case concerning the murder of three officials and two trade union delegates, the Committee notes the Government’s statements, according to which: (1) with regard to the point in which “the Committee expresses its grave concern about the serious allegations of murders of workers and union officials, which it deeply regrets”, the Government and the competent institutions have acted diligently and swiftly to resolve these cases fully and have fully complied with the obligation to inform the Committee on developments in these cases and to provide details of investigations being carried out by the Office of the Attorney-General, demonstrating their permanent commitment to providing all the required information; (2) with regard to the events concerning the murder of three officials of the Bolivarian Union of Workers in the Construction Industry in El Tigre (Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara, and Mr Jesús Alberto Hernández), according to the Office of the Attorney-General, on 5 October 2010, the Third Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the state of Anzoátegui, in El Tigre, ruled that the case be closed in accordance with section 318(3), and pursuant to section 48(1), of the Code of Criminal Procedure. There is no ongoing investigation or file open on these events since, as explained in the previous reply, the case was closed when judicial proceedings were dropped following the death of the accused.
3. 1075. The Committee wishes to recall its previous conclusions relating to these allegations [see 360th Report, paras 1181–1185]:
   • 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 on the developments of the proceedings and expects that they will yield results in the near future.
   • 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.
   • 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 Attorney General 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.
   • 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 Attorney General” 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.
   • 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.
4. 1076. In this regard, the Committee stresses that concerning the murders of officials Mr Wilfredo Rafael Hernández Avile, Mr Jesús Argenis Guevara, and Mr Jesús Alberto Hernández, in its earlier conclusions and recommendations (to the extent that the Government stated that the accused had died while committing a common crime) it requested the Government to intensify the judicial proceedings and investigations of the Office of the Attorney-General in order to punish the instigators and accomplices (which would obviously entail an investigation that the Committee would like the authorities to carry out). The Committee urges the Government to expedite investigations in order to identify and punish the instigators or accomplices of the murders of these officials whose perpetrator according to investigations died while committing a common crime.
5. 1077. With regard to the two trade union delegates, Mr Felipe Alejandro Matar Iriarte and Mr Reinaldo José Hernández Berroteran, the Committee had noted in its previous examination of the case that an indictment had been submitted against Mr Richard David Castillo and Mr Jorge Mizael López, for committing aggravated homicide and illegally bearing a firearm and who were currently awaiting trial, a hearing having been set for 13 April 2011. The Committee regrets that in its response the Government did not provide information on the development of the judicial proceedings and investigations concerning the aggravated homicide of the two abovementioned trade union delegates, whether the two accused have been arrested, and once again firmly expects that the judicial authorities will hand down sentences on the perpetrators, should they be found guilty, and where possible on the instigators and accomplices. The Committee requests the Government to keep it informed of developments.
6. 1078. With regard to recommendation (c) of the previous examination of the case, the Committee wishes to recall the content of this recommendation:
   • 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.
7. 1079. The Committee notes the Government’s statement that: (1) it cannot address the Committee’s request to drop “without effect” measures and judicial proceedings which are in strict compliance with the relevant domestic legislation as well as due process and other principles; (2) the Committee has no jurisdiction to request the dropping of legal measures and judicial proceedings against offences laid down and sanctioned in the law and for which the corresponding legal procedures are established; (3) by these recommendations the Committee is asking the Government to disregard domestic legislation and procedures laid down to sanction established offences, which would give rise to a situation of impunity; and (4) the Government and the corresponding state bodies of the Bolivarian Republic of Venezuela respect and comply with the principles embodied in the constitution and domestic legislation, and, given their full force in the Bolivarian Republic of Venezuela, the principle of the separation and independence of the different state branches; therefore, the Government will not address recommendations that are unfounded, that the Committee has no competence to make, and that are at odds with the constitutional principles and laws of the Bolivarian Republic of Venezuela. The Committee formulates its conclusions on these issues below but wishes to underline here that under its mandate it has the competence to consider whether domestic legislation and practice is in conformity with Conventions Nos 87 and 98 and freedom of association principles and that it is the practice on the basis of these principles to request governments to take measures to amend legislation or drop criminal proceedings.
8. 1080. With regard to the Committee’s recommendation to amend section 139 of the Act for the Defence of Persons in Accessing Goods and Services, the Government states that: (1) this law was fully debated, discussed and adopted by the Venezuelan National Assembly, i.e. the legislative branch of the State, and was adopted to defend, protect, and safeguard the rights and interests of individuals in accessing goods and services in order to meet their needs; (2) section 139 concerns the penalties for any individual who impedes the production, manufacture, import, warehousing, transport, distribution or sale of commodities classified as being of prime necessity for the population; (3) any activity in relation to the production, distribution, and sale of gas constitutes in the Bolivarian Republic of Venezuela an essential service of prime necessity for the population; millions of households use LPG and 761,221 households use other energy sources; at present 87 per cent of the population need LPG for cooking and other uses, whence its classification as an essential public service and of social and public interest; besides cooking, LPG is used in the Bolivarian Republic of Venezuela in both heating and cooling systems; LPG is also used in health centres, clinics, hospitals, etc. for cooking, in heating and cooling systems, and in steam boilers to sterilize surgical instruments; LPG is distributed and used by commerce and industry, for example in bakeries, restaurants, refineries, petrochemical companies, etc.; finally, by law LPG constitutes an essential public service of public necessity since disruption or stoppage of activities relating to its production, distribution or sale would affect the vast majority of Venezuelan households as well as schools, assistance centres, commerce and industry; for these reasons the Bolivarian Republic of Venezuela does not and shall not permit actions or omissions that affect the production or distribution of gas since they would jeopardize and infringe the population’s right to food, health and life; and (4) the Government recalls Article 8(1) of Convention No. 87, which states that: “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.”
9. 1081. Furthermore, on this last statement by the Government, the Committee wishes to draw the Government’s attention to Article 8(2) of Convention No. 87 which states: “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.”
10. 1082. The Committee wishes to highlight that PDVSA is the largest enterprise in the country and that its activities in the petroleum sector do not only include LPG but also the extremely important activities of prospecting, refining and exporting petroleum and its derivatives, that is production and commercial activities which, if temporarily halted, would not endanger the life, security or health of the population. Noting that the law to which the Government refers imposes a complete prohibition of strikes in the petroleum sector, the Committee recalls that it has considered on previous occasions that the petroleum sector as well as the production, transport and distribution of fuel do not constitute essential services in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 587]. However, the Committee has also noted that minimum service requirements could be introduced for “public services of fundamental importance” [see Digest, op. cit., para. 606] such as in the case of the petroleum sector in the Bolivarian Republic of Venezuela. The Committee notes in this regard that the petroleum sector can introduce minimum service requirements in order that the concerns raised by the Government regarding the supply of LPG to schools and hospitals may be overcome.
11. 1083. Therefore, the Committee maintains the recommendation formulated in its previous examination of the case concerning the need to amend the legislation and once again draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case. Furthermore, with regard to the arrest and initiation of criminal proceedings against six striking workers of the state enterprise PDVSA, the Committee recalls that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [Digest, op. cit., para. 671], and that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [Digest, op. cit., para. 672]. The Committee therefore maintains its previous recommendation and urges the Government and the competent authorities to take measures to have the criminal proceedings brought against the six workers at PDVSA by the Office of the Attorney-General dropped and to ensure their release.
12. 1084. With regard to recommendation (d) of the previous examination of the case, the Committee notes that the complainant organization has not communicated the additional information requested for a fourth consecutive time and, therefore, the Committee is not in a position at this time to examine these allegations, despite their seriousness. The Committee firmly expects that the alleged acts will be the subject of an independent investigation.