Rapport intérimaire - Rapport No. 244, Juin 1986

276. The Committee examined Cases Nos. 1190 and 1199 at its meetings in February and May 1985, and presented interim conclusions to the Governing Body. (See 238th Report, paras. 261 to 268, approved by the Governing Body at its 229th Session (February-March 1985) concerning Case No. 1199, and 239th Report, paras. 226 to 242, approved by the Governing Body at its 230th Session (May-June 1985) concerning Case No. 1190.) The Committee had previously examined Case No. 1190 at its May 1984 meeting (see 234th Report, paras. 500 to 520) and Case No. 1199 at its February 1984 meeting (see 233rd Report, paras. 565 to 579).

1. 276. The Committee examined Cases Nos. 1190 and 1199 at its meetings in February and May 1985, and presented interim conclusions to the Governing Body. (See 238th Report, paras. 261 to 268, approved by the Governing Body at its 229th Session (February-March 1985) concerning Case No. 1199, and 239th Report, paras. 226 to 242, approved by the Governing Body at its 230th Session (May-June 1985) concerning Case No. 1190.) The Committee had previously examined Case No. 1190 at its May 1984 meeting (see 234th Report, paras. 500 to 520) and Case No. 1199 at its February 1984 meeting (see 233rd Report, paras. 565 to 579).
2. 277. In the absence of a reply from the Government concerning the allegations that were still pending, the Committee, at its November 1985 meeting, addressed an urgent appeal to the Government for its observations. The Government subsequently sent a communication dated 24 February 1986 announcing that a reply concerning Case No. 1190 would be sent, and transmitting its comments on Case No. 1199.
3. 278. As regards Case No. 1321, the complaint is contained in communications dated 20 and 26 February 1985 from the Trade Unions International of Workers in the Metal Industry (UISMETAL). The Government replied in communications of 6 November 1985 and 24 February 1986. In a communication dated 13 November 1985, the Office requested the Government, in accordance with the procedure in force (see the Committee's 111th Report, para. 19) to send certain specific information on the allegations.
4. 279. Peru 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 Cases Nos. 1190 and 1199

1. 280. When the Committee examined Case No. 1190 at its May 1985 meeting, two allegations in connection with the national strike of 10 March 1983 remained pending. The first referred to the arrest of 84 persons as a consequence of that strike. The Committee asked the Government to supply information concerning the situation of these persons, in particular whether they were still under arrest, whether they had been tried and sentenced, or whether they had been released. The second pending allegation referred to the arrest of the three CGTP leaders (Messrs. Jorge Rabines Bartra, Hernán Espinoza Segovia and Juan Calle Mendoza) who were said to have been imprisoned following the aforementioned national strike. The Committee requested the Government to indicate whether these persons had in fact been arrested and whether they were free. (See 239th Report, para. 242.)
2. 281. As regards Case No. 1199, the Committee, at its February 1985 meeting, made the following recommendations on the questions that remained pending (see 238th Report, para. 268):
   • The Committee urges the Government to inform it of the results of the penal proceedings taken in respect of the death of the miner, Gelacio Bernardo Mendozo, and the assaults made on other workers of the Santa Luisa Mining Company. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.
   • The Committee urges the Government to send its observations on the dismissal of Exhaltación Raymundo Valverde and Ceferino Santos.
3. 282. Referring to the two last mentioned workers, one of the complainant organisations (the National Federation of Mining and Metallurgical Workers of Peru) had pointed out that the Santa Luisa Mining Company had dismissed them because of a public demonstration by the workers on 24 March 1983 protecting against the aggression to which various trade union leaders had been subjected the previous day by two civil guards. In the course of this demonstration, the miner Gelacio Bernardo Mendoza died and other workers were wounded. (See 233rd Report, paras. 568 and 569.)

B. Allegations presented in Case No. 1321

1. 283. The complainant alleges in its communications of February 1985 that the manager of the metallurgical enterprise Jenfar S.A. filed a criminal law suit against Mr. Oscar Macavilca, Secretary of the Federation of Peruvian Metalworkers, charging "defamation and slander" in connection with a disagreement with the owner of the enterprise in the course of an industrial dispute in the said enterprise. The complainant adds that the substitute judge of the First Examining Court of Callao sentenced Mr. Macavilca to two months' imprisonment and a fine of 500 Peruvian soles.

C. The Government's reply

1. 284. Regarding Case No. 1199, the Government annexed to its comments a copy of the reports of the National Public Prosecutor and the Public Prosecutor of the Province of Dos de Mayo on the incidents which had occurred on 23 and 24 March 1983 in the mining centre of Huanzalá (particularly a murder and injuries), and supplied a summary of the information given by the High Command of the Civil Guard on these incidents (some of these details had already been sent to the Committee and taken into account in its examination of the case at its February 1984 meeting (see 233rd Report, paragraphs 569 to 579)).
2. 285. It is clear from the documentation sent by the Government that: (1) accusations were made to the Public Prosecutor of the Province of Dos de Mayo and the National Public Prosecutor regarding the incidents in question; (2) the National Public Prosecutor considered his intervention of 23 January 1984 as terminated and observed in particular that the impinged incidents had been investigated by the Office of the Provincial Public Prosecutor; (3) that the Office of the Provincial Public Prosecutor, having taken various steps, did not charge 37 workers (against whom criminal proceedings had been initiated) with the criminal offences of murder and bodily injury because the alleged perpetrators had not been individually identified; (4) that the Office of the Provincial Public Prosecutor asked the leaders of the Workers' Union of the Santa Luisa Mining Company for information concerning the accusation made to the National Public Prosecutor's Office by the leaders of the National Federation of Mining and Metallurgical Workers of Peru against the Civil guards, Luis Arribasplata Mendoza and Augusto Gariboto Nolasco, since they were not known to that Office. In reply to that request by the Office of the Provincial Public Prosecutor, the trade union leaders of the Santa Luisa Mining Company supplied a copy of the accusation presented by the said Federation; however, they stated that the leaders of the National Federation had made that accusation without having been asked to do so by the Workers' Union of the Santa Luisa Company, that the factual grounds of the accusation were untrue since the two civil guards accused were not at the mining centre on 24 March, the day on which the criminal offences of murder and bodily injury were committed; and finally that they had not requested or authorised any steps to be taken by the leaders of the National Federation of Mining and Metallurgical Workers of Peru who had signed the accusation.
3. 286. As to the dismissal of the workers Exhaltación Raymundo Valverde and Ceferino Santos, the Government states that the Mining Workers' Union of the Santa Luisa Mining Company of Hunzalá lodged a complaint with the Huanaco Regional Labour District against that Company and requested reinstatement of the miners Exhaltación Raymundo Valverde and Ceferino Santos. On 1 December 1983, the Regional Labour District issued a District Resolution declaring the complaint to be unfounded, because there was evidence that serious offences had been committed (violence and serious lack of discipline by these workers on 24 March l983 in taking as hostage, the director of the mine, the engineer Juan Turén Soto, and other officials). The legal basis for declaring the complaint unfounded was section 4 (g) of Legislative Decree No. 22126. The case is now concluded and closed, since no appeal has been made by the workers.
4. 287. In Case No. 1190, the Government states that it has requested the competent authorities to compile the necessary details concerning the questions pending and encloses a copy of the letters in this connection.
5. 288. Regarding Case No. 1321 (arrest and sentencing of the trade union leader Oscar Macavilca), the Government states that the allegations themselves show that the case does not concern violations of freedom of association, but rather a criminal offence. Moreover, the administrative labour authorities (Executive Power) did not intervene, as is shown from the communications of the complainant organisation. The Government adds that Mr. Macavilca was arrested and required to pay a fine not for the exercise of a trade union function or right, but for a criminal offence ("defamation and slander") under Peru's Criminal Code. The sentence and fine were imposed on Mr. Macavilca by the substitute judge of the First Examining Court of Callao. Therefore, it is impossible to admit a complaint of this kind and build a case on it without casting doubt on the autonomy and, more importantly, the impartiality of a Peruvian authority, namely the Judiciary. The Government further states that Mr. Macavilca could have appealed against the sentence to a higher court of law. In this particular case such an appeal would have been filed before the relevant court of appeal which would then have issued an order revoking or confirming the sentence.

D. The Committee's conclusions

1. 289. With regard to Case No. 1199, the Committee notes the information provided by the Government on the investigation carried out by the Office of the Public Prosecutor of the Province of Dos de Mayo into the death of the miner Gelacio Bernardo Mendoza and the physical attacks on other workers of the Santa Luisa Mining Company on 24 March 1983. The Committee notes in particular that it has been established that, contrary to the allegations of the National Federation of Mining and Metallurgical Workers of Peru, the civil guards Messrs. Luis Arribasplata and Augusto Gariboto did not take part in the said criminal offences since they were not at the mining centre on the day they were committed.
2. 290. The Committee requests the Government to indicate whether the investigation carried out by the Office of the Public Prosecutor of the Province of Dos de Mayo has resulted in criminal proceedings and, if so, to indicate the stage reached in the proceedings and, where appropriate, the results. The Committee recalls that in its communication of 13 October 1983 the Government had acknowledged that various members of the Civil Guard had been forced to use their firearms on 24 March 1983 against workers of the above-mentioned mining company (see 233rd Report, para. 571).
3. 291. With respect to the dismissal of Messrs. Exhaltación Raymundo Valverde and Ceferino Santos, workers of the Santa Luisa Mining Company, the Committee notes that the Regional Labour Authority declared that there were no grounds for reinstating them because there was evidence that a serious offence had been committed, namely the taking as hostages of officials of the Company, including the Director, because of the incidents that had taken place on 24 March 1983. The Committee also observed that the persons concerned have not appealed against this decision.
4. 292. Regarding Case No. 1190, since specific information concerning the pending allegations has not yet been received, the Committee reiterates its previous conclusions and again requests the Government to send its comments on these allegations, which concern the arrest of trade union leaders and trade unionists in 1983.
5. 293. With regard to Case No. 1321, the Committee notes that, according to the Government, the trade union leader Oscar Macavilca was arrested and required to pay a fine not for the exercise of a trade union function or right, but for committing the criminal offence of defamation and slander under Peru's Criminal Code, which was the subject of the relevant sentence. The Committee observes that the complainant organisation, on the other hand, considers that Mr. Macavilca's sentence arose from an argument with the owner of the metallurgical undertaking, Jenfar S.A., in the course of the industrial dispute in the said undertaking.
6. 294. The Committee regrets that the Government has not given a specific reply to the Office's communication of 13 November 1985 in which, in accordance with the current procedure (see the Committee's 111th Report, paragraph 19), it requested the Government to send the text of the final sentence passed on Mr. Macavilca or to provide details on the statements made by that trade union leader which were the grounds for the proceedings against him for defamation and slander. However, since Mr. Macavilca has not appealed against the sentence handed down by the court of first instance (two months' imprisonment and a fine of 5OO Peruvian soles) and since neither the complainant organisation nor the Government has provided the content of the statements for which Mr. Macavilca was sentenced, the Committee considers that this aspect of the case does not call for further examination.