Rapport intérimaire - Rapport No. 334, Juin 2004

1. 877. The complaint is contained in a communication from the International Organisation of Employers (IOE) on behalf of the Venezuelan Federation of Chambers of Commerce and Manufacturers’ Associations (FEDECAMARAS) dated 17 March 2003, and further information in a communication dated 16 April 2003. The Government sent its observations in a communication dated 9 March 2004.
2. 878. 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. The complainants’ allegations

1. 879. In their communications of 17 March and 16 April 2003, the International Organisation of Employers (IOE) and the Venezuelan Federation of Chambers of Commerce and Manufacturers’ Associations (FEDECAMARAS) allege that the Government of Venezuela, in the past three years, has systematically carried out repressive and hostile action against Venezuelan employers and their officials in order to intervene, restrict and obstruct the exercise of civic, trade union and employers’ organizations’ freedoms that are necessary to defend their interests, as well as the exercise of their right to demonstrate peacefully, which is recognized in Venezuelan legislation. This information was reported to the International Labour Conference in 2001 and 2002, and to the American Regional Meeting of the ILO in December 2002.
2. 880. This repressive action includes physical, economic and moral harassment of Venezuelan employers and their officials, as well as the exclusion and marginalization of employers’ organizations in the decision-making process, which affects the functioning of tripartism and social dialogue in the country.
3. 881. The complainant organizations highlight the systematic behaviour of the Government in avoiding, in violation of the national Constitution, any type of participation by the most representative employers’ and trade union organizations in national social dialogue. The Government has, on rare occasions, restricted itself to holding minimum superficial consultation with the most representative social partners in order to present the appearance that they are carrying out "consultations". Moreover, the Government has made it a habit to hold detailed consultations with groups that are not representative of the population but that are notorious sympathizers with the political regime. This behaviour has reduced the possibility of reconciling interests and achieving consensus on subjects of interest to the whole community.
4. Lack of dialogue by the Government with the most representative employers’ organizations
5. 882. The IOE and FEDECAMARAS point out that it has been years since the Tripartite Commission of Venezuela has met and the Government does not carry out consultations with the main social partners or, rather, it has not done so in a significant way neither has it tried to reach shared solutions, particularly in the areas affecting the social partners. This was the case of the adoption of the Labour Procedure Act, the adoption of an order that granted a general increase in the minimum wage of 20 per cent (in violation of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), ratified by Venezuela in 1944) and the recent ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) (in violation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)).
6. 883. The Government of Venezuela has systematically ignored the recommendations of the Committee on Freedom of Association of the Governing Body of the International Labour Office, which has called to the attention of the Government the principle that the most representative employers’ and workers’ organizations, and in particular the confederations, should be fully and frankly consulted by the authorities on matters of mutual interest, including during the preparation and application of legislation which affects their interest and the determination of minimum wages. The Committee requested the Government to apply this principle in the future.
7. 884. The IOE and FEDECAMARAS state that the Government has systematically sidelined the possibility of dialogue with the employers and with their most representative organizations and, in fact, it has been a long time since there has been active dialogue. This behaviour has been evident, specifically, in the preparation and drawing up of legislation that directly affects the interests of the Venezuelan employer sector. The most serious example was the way in which the Government proceeded to legislate, based on the Enabling Act of 13 November 2000, through the National Assembly, which expressly refused to hand the relevant drafts to the social partners for their analysis, and finally promulgated, in one day, 49 executive orders, 47 of which should have been submitted for consultation. In behaving this way, the Government not only directly attacked the social partners but also undermined legal security and violated the national Constitution, which, in article 206, establishes that: "legislation shall establish the means of consultation with civil society and other state institutions by the Council in such matters". The orders mentioned affect vital aspects of private property, free enterprise, the right to work, foreign and national investments and are annulled absolutely because, as well as their content, the way and the time in which they were issued undermines the Constitution of Venezuela, the organic Public Administration Act of the country and the Enabling Act itself. In particular, President Hugo Chávez has abused the powers that were granted to him by the Enabling Act as the orders were promulgated outside the time limits of the Enabling Act and exceeded the areas for which it authorized legislation. In this respect, the complainant organizations highlight the following points:
8. - Non-compliance with the requirement to provide preliminary information to the national legislative authority. The Enabling Act, which was valid for one year, laid down in article 4 that no less than ten days before its publication in the Gaceta Oficial [Official Gazette], the acts or orders issued by the President under these enabling powers should be sent to a special commission of the National Assembly in order that it be evaluated. This article states: "Article 4: The National Assembly shall designate, from among its own members, a Special Commission that reflects, as much as possible, the political constitution of the body that shall be informed by the National Executive, at least ten (10) days before its publication in the Gaceta Oficial, of the content of the orders drawn up based on the powers delegated by the present Act." This provision was to allow the National Assembly (the Venezuelan legislative authority) to identify sufficiently in advance whether the orders issued by the President were tailored to the subject matter of the powers granted by the Enabling Act. This was a formal prerequisite to carrying out enabling legislation, the omission of which undermined the terms and conditions of the Enabling Act and, consequently, all the laws issued by the President and without such a basic formality would suppose the non-authorized exercise of delegated legislative powers, which violates article 187 of the Constitution of Venezuela, which establishes the competency of the National Assembly, and articles 202-215 of the Constitution, which establishes the mechanism for the development of legislation in Venezuela.
9. - The untimely exercise of powers granted by the Enabling Act. The promulgation of the executive orders after 13 November 2001, the date on which the validity of one year of the Enabling Act expired, undermines constitutional law-making. Article 215 establishes that: "The Act shall be promulgated by publication with the corresponding ‘Cúmplase’ [law to be obeyed] in the Gaceta Oficial of the Bolivarian Republic of Venezuela". The publication of any act in the Gaceta Oficial after 14 November 2001, i.e. after the expiry of the validity of the enabling legislation, implies the untimely exercise of powers granted by the Enabling Act. In other words, the executive orders promulgated outside this time are null and void as they have been issued by a body not competent to legislate on matters that are constitutionally reserved for the National Legislative Authority. This untimeliness undermines also article 236(8) of the Constitution of Venezuela, which empowers the President to legislate solely when he is authorized to do so.
10. - Exceeding authority in subject matter and misuse of powers. The Enabling Act grants the President broad-based powers to legislate on a wide range of issues. However, the six subheadings of article 1 of this Act expressly delineate subject matter, which supposes restrictions with regard to the exercise of the enabling legislation. A number of executive orders issued in accordance with the Enabling Act exceed those subject restrictions as they deal with matters exclusively reserved to the National Assembly. The fact that authority has been exceeded with regard to subject matter would imply misuse of powers that constitutionally belong to the Legislative Authority, which should lead to these acts being annulled.
11. - Non-compliance with the duty to proceed with prior consultation in the organic Public Administration Act. The organic Public Administration Act establishes expressly the procedure that the President of the Republic should follow in order to exercise legislative powers in accordance with the Constitution. Article 86 of this law provides the following: "article 86: ... the incumbent of the ministry proposing the legislation shall submit the draft to the Council of Ministers so that it may decide on the subsequent procedures and, in particular, on consultations, reports and information that are advisable, as well as how it will be carried out ...". The discretion of the minister who proposes the draft bill extends until the preparation of the consultations, and in no situation does this regulation authorize the omission of the consultative stage that, moreover, is provided for in the national Constitution. The enabling legislation is received by the President to be implemented in the Council of Ministers for which this regulation is obligatory, except in cases of confirmed emergency, which did not take place with the executive orders issued in accordance with the Enabling Act. The validity period for the Enabling Act (one year) is the best proof that there was no claim to legislate in an emergency situation. The Public Administration Act is organic in nature, which means that it is hierarchically superior to the Enabling Act. The Public Administration Act entered into force on 17 October 2001, which is why the Executive Authority must comply with its provisions from that date with regard to the executive orders that it promulgates.
12. - Non-compliance with the constitutional right of citizens’ participation. The Constitution of Venezuela establishes, as a general principle, the participation of the citizens of the country (i.e. legislative initiatives, consultation of the people to abrogate, derogate or revoke the mandate of civil servants). In this context, article 211 establishes, as part of the preparation process for executive orders, the consultation of citizens and organized society. This regulation establishes that in the development stages of acts: "... shall consult other state bodies, citizens and organized society in order to have their opinion ...". The most representative Venezuelan employers’ and workers’ organizations, FEDECAMARAS and the Confederation of Workers of Venezuela (CTV), the highest representatives of organized society, were excluded from the consultations. This consultative order applies to all acts that are sanctioned and promulgated by the National Assembly. There is no reason why the acts issued by the President in accordance with the Enabling Act should be an exception, as the Constitution makes no exceptions in this respect. The legislative delegation should be made in the same terms as the Constitution lays down for the Legislative Authority. It is not possible for the principal body (the Legislative Assembly) to transmit to the agent (the President) powers that it does not constitutionally hold.
13. - Unconstitutionality specific to the promulgated executive orders. An examination of the executive orders issued by the President exercising the powers granted to him by the Enabling Act shows that they undermine constitutional rights and guarantees. This situation implies their invalidity, as is the case of the right to private property and economic freedom, which are affected particularly by the Land and Hydrocarbon Acts.
14. 885. FEDECAMARAS has always been ready to hold talks; however, the Government has maintained its hostile behaviour in the face of the legitimate right of the employers’ organizations to participate constructively in the design and implementation of government policies that directly affect the operation of the country’s productive sectors. Moreover, the Government has also not complied with its constitutional obligation (article 299) to "collaborate with private enterprise in promoting the balanced development of the national economy in order to create employment, ensure high national value added, improve the standard of living of the population and strengthen the economic sovereignty of the country, guaranteeing legal security, strength, dynamism, sustainability, permanence and equity in economic growth in order to ensure a fair distribution of wealth through strategic democratic, participatory and consultative planning". Moreover, the Government of Venezuela, in most cases through President Chávez himself, instead of creating conditions to combine the forces of the national public and private sectors to promote development, such as envisaged in the Constitution, has in practice maintained notoriously anti-employer language and guidelines in economic policy. The economic policies established by the Government, without consultation with the employer sector, have led to a severe national economic crisis resulting in an increase in the poverty and unemployment indexes, mass closure of companies, an accumulated fall in GDP and per capita production and devaluation of the national currency. This aggressive behaviour has also, little by little, forced the closure of companies of all types and sizes, which, as well as creating poverty, weakens employers and workers and their respective organizations.
15. National civic work stoppages and the arrest of the president of FEDECAMARAS in February 2003 and other reprisals
16. 886. In the context described, and taking into account that the economic and social crisis is becoming daily more critical, and given the negative tendencies of the main economic indicators, reflected in the increase in poverty and unemployment, insecurity at all levels of the population and regions of the country, both rural and urban, of the violations of private property through invasions of agricultural lands and property provoked by the Head of State in his lengthy speeches to the country on television and radio, the organized employer sector exercised its right to demonstrate peacefully to defend its professional interests. On 2 December 2001, FEDECAMARAS convened the first national civic work stoppage of 24 hours. This initiative was supported by CTV and it paralysed the country for the whole day.
17. 887. In the following months, in collaboration with the most representative trade union organizations, the main NGOs and democratic political parties united under an ad hoc structure known as the Coordinadora Democrática, FEDECAMARAS continued to request respect for employers’ rights (i.e. inclusion in national consultations and the right to private property) without any success. This led to the second national civic work stoppage on 9, 10 and 11 April 2002, which led to the national crisis that brought about the resignation of the President of the Republic, which was publicly and personally confirmed in the media by the highest ranking military authority in the country, General Lucas Rincón, but which lasted only a couple of days as it was subsequently annulled by President Chávez himself.
18. 888. The situation continued to deteriorate. In the following months, in repeated public messages and speeches by the President, transmitted on the national television and radio channels, the verbal attacks on employers and their officials continued and intensified, instead of the Government looking for dialogue and rapprochement.
19. 889. This behaviour led to the various groups of the population adopting radical positions. And, this was when the employers’ and workers’ community, as a group, asked FEDECAMARAS and the CTV to act. Towards the middle of November 2002, these organizations announced that, having taken into account the absence of dialogue and the continuing violation of employers’ and workers’ interests, if it was not possible to establish the minimum base for facilitating an initial consensus to resolve the serious problems of the country, they would be obliged to stop all work on 25 November 2002.
20. 890. The Negotiating and Agreements Table that had been set up in early November, with an equal membership of government and the Coordinadora Democrática, with the participation of Dr. César Gaviria, secretary-general of the OAS as facilitator, and the presence of representatives from UNDP, the United Nations and the Carter Center, was unable to arrive at an agreement and the civic work stoppage began on 2 December 2002.
21. 891. The complainant organizations allege that the president of FEDECAMARAS, Carlos Fernández, was arrested in retaliation for his activities as representative of the Venezuelan employer sector. His arrest indicates the state of insecurity and flagrant violation of the principles of Convention No. 87 and human and constitutional rights in Venezuela, as well as the absence of an effective defence of citizens’ rights, which is the responsibility of the Office of the Public Defender, whose mandate is clearly defined in article 280 of the Constitution.
22. 892. Carlos Fernández has not been a fugitive from justice; on the contrary, whenever he has been required to do so, he has fulfilled all the requests or petitions formulated by the bodies of the judicial authority, indicating his willingness to clarify the facts. His arrest was not only a violation of due process but it also occurred only one day after the Negotiating and Agreements Table presided over by the secretary-general of the OAS, after three months of negotiation, produced the first agreement against violence and for mutual respect, which was signed by the parties involved in the process.
23. 893. The complainant organizations explain that at almost midnight on 19 February 2003, Carlos Fernández, on leaving a restaurant, was attacked by approximately ten individuals bearing no identification. According to eye witnesses, these people were not wearing uniforms neither did they appear to be civil servants or police. These people arrived in unidentified vehicles, without registration plates and without a legal warrant. Mr. Fernández believed that this was a kidnapping and tried to defend himself. After a violent struggle in which Mr. Fernández was beaten, with the resulting superficial injury and haematoma to the thorax, he was immobilized and thrust into his car. Shots also occurred, which were assuredly to prevent those present from intervening. Only after he had been immobilized did people identifying themselves as police appear.
24. 894. The president of FEDECAMARAS was transferred, in his own vehicle, to the facilities of the Directorate for Intelligence and Prevention Services (DISIP), a body of the state political police, where he arrived at approximately 1 a.m. on 20 February. With only the formality of registration and without any other legal procedure, he was immediately imprisoned in a cell measuring 2 metres by 2 metres, without ventilation, without light and with only one mat on the floor. During his detention, Mr. Fernández was held incommunicado. It was not until the morning of the following day that his relatives were able to have contact with him. His lawyers were also not able to enter the facilities where he was being held. The harsh treatment meted out to Mr. Fernández contributed to a deterioration in his state of health to the extent where he had to receive emergency first aid treatment.
25. 895. According to the Venezuelan press, Hugo Chávez, President of Venezuela, on the night of 19 February stated: "They called me at approximately midnight, I asked them do you have the warrant, proceed ... and I went to sleep with a smile; at 1 o’clock in the morning I ordered them to bring me the papaya sweet that my mother had sent me, which is very good, and he concluded, finally a judge that was capable of acting".
26. 896. On 21 February, a day after his arrest, Carlos Fernández was transferred to the courts in a security operation that is reserved for high-risk criminals. He remained at the courts from approximately 9 a.m. until 11 p.m., when the hearing was suspended. On 22 February, the hearing was resumed at 8.30 a.m. and lasted until 10.30 p.m., when he was once again transferred to where he was being detained.
27. 897. During those two days, outside the courts, violent groups gathered, led by a government deputy, which blocked the visitors’ entrance, shouting insults and pressuring the judges.
28. 898. The initial communications of the authorities publicly stated that the Venezuelan Government accused Mr. Fernández of the following crimes: (i) betrayal of his country; (ii) civil rebellion; (iii) incitement to commit criminal offences; (iv) conspiracy (criminal association); (v) destruction (incitement to pillage the nation).
29. 899. In accordance with the decision of the judge responsible for the file, as the measure was stated it was challenged by the defence and it was withdrawn; of the five accusations, three were eliminated and two remained: civil rebellion and incitement to commit criminal offences.
30. 900. Having taken into account the delicate state of health of Mr. Fernández, the judicial authorities allowed him to be placed under house arrest. However, the Office of the Attorney-General of the Nation contested this. Even when the charges against him were reduced and he was placed under house arrest, the facts formed an alarming picture that Carlos Fernández was being persecuted by the Government for his activities as an employers’ official. His arrest and indictment are a threat to other employers’ officials and other employers’ organizations in Venezuela.
31. 901. The National Federation of Stockbreeders (FEDENGA), a member of FEDECAMARAS, was excluded from the Agriculture and Livestock Council, which is responsible, among other things, for granting permits for the movement of animal and products and by-products of animal origin. This exclusion took place as a result of the support provided by FEDENGA for the popular condemnation by FEDECAMARAS of the Government of Venezuela. The Minister of Agriculture himself, Efrén Andrades, declared that FEDENGA was no longer part of the national permit system. The permit system controls the movement of animals with a view to preventing contagion or disease. The measure taken by the Government has prevented the stockbreeders affiliated to FEDENGA from carrying out their activities and has endangered the National Campaign for Foot and Mouth Disease Vaccination.
32. 902. The Government has also encouraged the development and implementation of actions favouring a new organization called the National Confederation of Farmers and Stockbreeders of Venezuela (CONFAGAN), to the detriment of FEDENGA, which is the true representative organization of the agriculture and livestock sector of Venezuela. The Government’s interference in the internal matters of employers’ organizations is one more violation of freedom of association.
33. 903. The representatives of the Government of Venezuela, starting with President Hugo Chávez himself, have repeatedly insulted, attacked and threatened the employer sectors of Venezuela. These attacks have taken place in written, radio and televised press communications. Some examples of these are listed below.
34. 904. On 23 September 2002, the Attorney-General of the Republic, Marisol Plaza, issued threats that the Executive Power of Venezuela would come down heavily against the employers of FEDECAMARAS for their participation in the protest day in defence of the rights of national employers.
35. 905. Legislator Omar Mezza, belonging to the party in power, stated that, should the employers of Venezuela decide to continue with their national protest, the Government would promote reforms to the labour law that would force owner-employers to continue production even against their will. The Director of the MVR alliances, Omar Mezza, indicated that this legal reform would authorize workers to take over the facilities of productive units with a view to ensuring continuity of business activity.
36. 906. On 9 January 2003, Nicolás Maduro, spokesperson for the Executive Authority, threatened the national employers of the communications sector, stating that:
37. ... the time for dialogue and opportunities on screen is over and the penalties laid down in the law currently in force should be applied ... it is time for steps to be taken, the four years of the Chávez government have been a media war ... penalties should be immediately applied because the communication media have not paid heed to the call for reflection that the majority of Venezuelans have made for them to simply get back on track and return to their educational duties.
38. On the same day, Mr. Maduro threatened the banking sector, which joined the national protest.
39. 907. Moreover, on 15 January 2003, President Chávez, in public statements, insulted owner-employers of the private television channels in Venezuela.
40. 908. On 17 February 2003, the President of the Republic threatened to intervene in the agro-industrial companies that had decided to close down as a result of the deterioration in sales caused by price regulation. During his Alo programme, the President said, "we cannot give ourselves the luxury of leaving a single saboteur in place, we must expel all the corrupt people in the industry".
41. 909. On 12 December 2002, the facilities of the Lara Chamber of Commerce were vandalized by Bolivarian groups (supporters of the regime) for having denounced the government policy against the employers. Also in Lara, many businesspersons supporting the work stoppage were obliged to open their businesses as a result of violent pressure by people encouraged by the Government to contravene the legitimate activities of employers to defend their interests.
42. 910. As well as the verbal attacks of the Government on the private sector, there have been various specific cases of harassment of employers’ leaders. Some of the most relevant cases follow:
43. (1) The harassment of the president of CONSECOMERCIO: on 18 February 2003, as a result of his participation in the nationwide complaint of the Government’s abuses, Julio Brazón, president of CONSECOMERCIO, had his office looted, causing serious material damage.
44. (2) The harassment of the president of the Bejuma Chamber of Commerce: on 29 October 2002, the president of the Bejuma Chamber of Commerce, Adip Anka, was threatened with violence by presumed members of the national government party. These threats were motivated by his support for the national demonstration called by FEDECAMARAS and they were appropriately part of a complaint to the national authorities, without any action being taken. Some days before, anonymous pamphlets were distributed throughout the streets of Bejuma, which terrorized the shopkeepers supporting the protest days called by FEDECAMARAS.
45. 911. Another means of harassment, discrimination and punishment for defence of employers’ rights through FEDECAMARAS support is taking place in the system of exchange control. The system of exchange control imposed by the Government has affected the commercial operation of thousands of the country’s companies. Press statements made by civil servants indicate that the Government will decide, unilaterally, which companies will be able to buy foreign currencies. Official declarations by the highest ranking civil servants indicate that the employers and the companies that supported the civic work stoppage called by FEDECAMARAS will not be able to participate. The Government’s attitude shows clear discrimination against the companies and the employers involved in FEDECAMARAS.
46. 912. Specifically, on 25 January 2003, the Minister of Production and Trade, Ramón Rosales, stated in the El Nacional daily newspaper that only the importers and exporters supporting the Government have priority with regard to the allocation of dollars, referring to the national work stoppage in which FEDECAMARAS took part. On 5 February 2001, during the celebrations of the fourth year of the current Government, President Hugo Chávez announced the implementation of a new system of exchange control throughout the country. When he made this announcement, he emphatically threatened that he would not authorize dollars to those who had not supported his rule. On 1 March, Edgar Hernández Behrens, president of the Currency Administration Commission, stated that it would be President Hugo Chávez himself who would decide the priority categories of those who would receive dollars and those who would not receive them.
47. 913. After 55 days of suspended operations of buying and selling of currency, the employers belonging to FEDECAMARAS were in a situation of extreme crisis as they were not able to buy goods and materials to renew production of foodstuffs, containers, machinery, spare parts, textiles, equipment and numerous other goods and services that rely directly or indirectly on imports. The inventory of products in most sectors reached its lowest capacity when the demonstration period ended at the beginning of February 2003. The companies that relied on stocks of raw materials gradually resumed their activities, as in the case of corn processing, rice mills and producers of car parts, in spite of the problems of supply of gas and fuel. However, shortly afterwards, the Government of Venezuela imposed an exchange control, practically shutting down international trade by paralysing the buying and selling of foreign currencies. In the case of food processing industries, which have a colossal need for currencies to import wheat, milk powder, legumes, raw oils, this was particularly serious, as they were not able to pay their debts owing to a lack of currency. Therefore, the food processing companies that were part of the organized employer sector were penalized and their productive processes damaged. The sectors most affected by the lack of raw materials were those of foodstuffs, pharmaceutical laboratories, surgical and medical material, supplies for construction, petrochemical companies, plastics processors, vehicle assembly companies, metals, mining, agrochemicals, textiles and the clothing industry, among others.
48. 914. The printed media play a key part in traditionally democratic countries, particularly at times when the dissatisfaction of an enormous part of the population is obvious. Originally, the category relating to the import of paper to print newspapers was on the list of products that would receive currencies. However, the order printed in the Gaceta Oficial No. 37647 excluded the category relating to paper for printing newspapers and replaced it with paper for printing educational textbooks. This implied discrimination as, while school education should receive special treatment, so also should the preservation of freedom of expression of thoughts and ideas. In this way, the Government implemented a policy of harassment of the private communications sector that formed part of FEDECAMARAS.
49. 915. By the beginning of March 2003, there had been already more than 60 days of suspension of the exchange market. The agricultural sector was devastated owing to the problems arising from supplies of agrochemicals, fertilizers and machinery. At the date of the present complaint, this sector had not been authorized to buy foreign currencies. Venezuela consumes 500,000 tons of fertilizer, a large amount of which is imported. The delay in authorizing the buying and selling of currency in this sector has endangered the winter planting cycle, which produces 75 per cent of the year’s production, mainly white corn, sorghum and rice, among other priority products for feeding the nation. The private agricultural and livestock sector that publicly denounced the anti-employer policy of the Government of Venezuela is being permanently punished for having exercised its constitutional rights to defend its own interests.
50. Illegal occupation of productive land
51. 916. The Government also has allowed, and on occasions has encouraged in the speeches of President Chávez himself, the dispossession and occupation of farms that are fully productive and that are fulfilling a social function. This situation has created a hostile atmosphere for employers, which is reflected in the enormous increase in the number of kidnappings and illegal invasions of productive lands. These dispossessions have occurred through processes violating the legal code in force, ignoring the legitimate rights of possession of the producers affected, as laid down in article 115 of the Constitution in force which indicates that:
52. The right to property is guaranteed. Every person has the right to use, enjoy, benefit and dispose of his property. Property will be subject to contributions, restrictions and obligations as laid down in the law for public use or general interest. All types of property may only be expropriated for reasons of public use or general interest, following final decision and timely payment of fair compensation.
53. Among other cases, there were the agriculture and livestock producers of the south of Lago de Maracaibo. The complainant organizations indicate that the national Government decided to concede provisional title to lands in the Lago de Maracaibo zone and threatened to continue this process in other states. This created understandable reaction on a national scale as it undermined rights and had negative effects on various productive units and their costly investments. The private sector did not oppose the State dividing up land but it asked that the procedures be carried out strictly according to the law. The respect for the state of law is the fundamental basis for confidence and it is therefore unacceptable that distribution of land is carried out through invasions or the confiscation of areas upon which there are rights of property or possession.
54. 917. Article 115 of the Constitution establishes respect for private property but also provides for the expropriation of private property when this is in the public or social interest, after final decision and fair compensation. This is applicable to private land and also to agricultural and livestock development in national land where, over the years, there have been private investments. In order to recover or reclaim this land the State must appear before the agrarian courts and, in the case of uncultivated land, must follow the expropriation proceedings laid down in the legislation on agrarian proceedings and agrarian reform in force. The use of the National Guard to back the occupation of property or possessions without complying with the legal proceedings undermines the right of defence, due process, property and prohibition of confiscation laid down in the Constitution and legislation.
55. 918. Since 1988 and with the current Government, up until April 2003, 180 cases of illegal invasion of productive land had been lodged in the following states: Anzoátegui, Apure, Barinas, Bolivar, Carabobo, Cojedes, Falcón, Guárico, Lara, Mérida, Miranda, Monágas, Portuguesa, Sucre, Táchira, Trujillo, Yaracuy and Zulia. The majority of these cases of illegal invasion have not been resolved by the relevant authorities.
56. Paramilitary and armed Bolivarian groups with government support
57. 919. As was also stated in the complaint made by the officials of the Confederation of Workers of Venezuela (CTV) during the direct contacts mission carried out by the ILO in May 2002, "... the security and the lives of trade union officials are in danger from the paramilitary groups (Coordinadora Simón Bolívar, Tupamaro groups and armed Bolivarian groups) ...". They attacked the participants of the civil demonstrations called by the social partners and they organized counter-marches in order to provoke clashes and confrontations. The ILO direct contacts mission that visited Venezuela in May 2002 noted with concern the information provided on the allegations with regard to the establishment of paramilitary or violent groups with government support and the acts of violence and anti-union discrimination against the social partners in Venezuela. The mission considered that these issues, because of their seriousness, should be the subject of an appropriate and reliable investigation. In this regard, the mission suggested that, to the extent that this was compatible with Venezuelan institutions, a commission comprising public figures in whom the most representative social partners had confidence should be set up to this effect. To date, the Government has ignored this recommendation and the situation has worsened since that time, with the continued activity of these violent groups with the tolerance, not to say the consent, of the Government of Venezuela. For example, on 18 October 2002, President Chávez incited the confrontation and violence of the Venezuelan population, in statements ordering his followers to go out in defence of the "revolution". As a result, the paramilitary groups (Quinta República, Juventud Revolucionaria del MVR, the Frente Institucional Militar and the Fuerza Bolivariana) carried out numerous violent actions to weaken the call for a national demonstration by FEDECAMARAS.
58. 920. The complainant organizations state that the Government has violated Convention No. 87 and they refer to the principles established by the Committee on Freedom of Association with regard to the various issues in the complaint. They request that:
59. - all charges against the president of FEDECAMARAS, Carlos Fernández, be dropped and that he is immediately freed, and that, in future, the authorities refrain from taking intimidatory actions against employers, their officials and their organizations;
60. - all harassment and intimidation against employers’ organizations and their representatives cease;
61. - policies that do not discriminate against enterprises and employers associated with FEDECAMARAS are developed;
62. - an analysis of the legislation adopted in the 49 executive orders is begun so that, in consultation with the most representatives employers’ and workers’ organizations, the areas where the rights of social partners are undermined may be identified and the relevant measures adopted; and
63. - meaningful consultations are held in the future with the employers’ organizations before adopting any legislation that affects the professional interests of the country’s employers.
64. 921. The IOE and FEDECAMARAS conclude by stating that the events related in this communication are only a part of those actions undertaken by the Government of Venezuela against FEDECAMARAS and its organizations for its protest activities against the abuses of the Government. These abuses constituted unjustified interference and discrimination against the Venezuelan employer sector and threatened the principles of freedom of association as laid down in Convention No. 87 of the ILO, ratified by the Government of Venezuela.
65. B. The Government’s reply
66. 922. In its communication of 9 March 2004, the Government points out, firstly, that the accusations of FEDECAMARAS and the IOE against the Government of Venezuela have, as their principle and only reason, the justification of their position, which has nothing to do with matters relating to employers’ organizations and much less with the statements incorporated in the charge such as "national protest, civil demonstration and/or day of protest". The Government states that in the present observations it will put forward and demonstrate that the position of FEDECAMARAS is strictly political, anti-democratic, discriminatory, authoritarian and that FEDECAMARAS believes that, as the employer leadership, it is above good and evil. FEDECAMARAS tries to justify its call to bring about systematically and publicly the overthrow of the Constitutional President of the Bolivarian Republic of Venezuela, who was democratically elected as Constitutional President by the large majority of the Venezuelan people on two occasions in less than two years and participated in victory in another five strategic elections, which absolutely does not indicate "national protest, civil demonstration and/or day of protest".
67. 923. The members of the Executive Board of FEDECAMARAS have distorted the fundamental objective of any trade union organization of employers, dedicating themselves exclusively to political proselytization. FEDECAMARAS, with no proof whatsoever, has systematically accused the President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías, of being a dictator, proving in the behaviour of the officials of FEDECAMARAS subversive actions with the clear intent of destabilizing state institutions and imposing a dictatorship and taking power by force, which they achieved for a short time on 12 and 13 April 2002, the de facto President being at that time Pedro Carmona Estanca, who, prior to swearing himself in as de facto President, was president of the employers’ trade union FEDECAMARAS.
68. 924. Carlos Fernández succeeded Carmona Estanca in the presidency of FEDECAMARAS, as he was the first vice-president of the association when the unconstitutional presidency of Carmona Estanca as de facto President was announced. The first official act of Carlos Fernández as president of FEDECAMARAS was to acknowledge the regime of Carmona Estanca, and it was on 12 April 2002 that Mr. Fernández signed the "Act of Constitution of the Government of Democratic Transition and National Unity" as representative of the employers. The act referred to tried unconstitutionally to justify the coup d’état by the employers, the military, opposition political parties and a minority of "civil society" with the so-called "Government of Democratic Transition and National Unity": is this "national protest, civil demonstration and/or day of protest"?
69. 925. The above information provides some essential background to understanding and demonstrating that the position taken by Carlos Fernández as president of FEDECAMARAS was not that of a trade union but was strictly political, subversive and anti-democratic. One of the basic architects of the political, economic and social destabilization during April 2002 to March 2003 was Carlos Fernández, who misused his position as president of FEDECAMARAS in the name of "civic work stoppage" or strike, of "national protest, civil demonstration and/or day of protest", as can be seen in his allegations. In this regard, there has been no work stoppage or strike in Venezuela, and what has occurred on a number of occasions (10 December 2001, early in April 2002, 21 October, December 2002 to January 2003) was clearly a small employers’ closure or lockout, and sabotage of our oil industry by the executive and management staff of the PDVSA. The great majority of workers did not join what was known as the "civic work stoppages"; if the majority of workers and employers had joined, then what government would have been able to resist four general work stoppages, paralysis of its main industry (sabotage) and all public and private production for two months as they tried to do in December 2002 and January 2003. The complainants implemented illegal, subversive and anti-democratic calls on the Venezuelan people, acts that were rejected by the great majority of the Venezuelan people, leaving Mr. Fernández and FEDECAMARAS the alternative of subverting constitutional order, ignoring democracy and encouraging illegal work stoppages and lockouts or closure of companies, premises and establishments on a strategic basis such as the food processing companies, fuel distributors and production of agricultural and livestock foodstuffs, which is "national protest, civil demonstration and/or day of protest".
70. 926. FEDECAMARAS and its officials have been systematically acting in an anti-democratic way for four years, the first precedent was the Quinta Esmeralda agreement, which tried to recall or substitute through a coup d’état the "Punto Fijo Agreement", agreed by the political parties in 1961.
71. 927. During the time of the Punto Fijo Agreement, which lasted 40 years, from 1958 to 1998, many employers enjoyed all kinds of privileges: loans, financing from the Venezuelan Government, impunity for failure to comply with tax obligations, occurring through the failure to pay all kinds of taxes, principally taxes on income. The common denominator was not honouring payments on loans granted by the Venezuelan Government leading to the task of liquidation of companies and businesses, while the State immediately resuscitated these through more loans, which were often not paid off. During the time of the Punto Fijo Agreement, many employers became exporters and not producers, taking advantage of the immense potential of oil income that flowed to privileged minorities, wallowing in corruption and impunity, with a State that acted as the accomplice of a certain type and a considerable number of employers, who were the main beneficiaries, along with a corrupt political class and indulgent political parties.
72. 928. Many of these employers affiliated to FEDECAMARAS, since 1989 when it began systematically to apply neo-liberal economic measures and exclusive globalization in Venezuela, began an aggressive policy to impose a single solution, that of privatizing health, education, social security, relaxing and deregulating labour relations and the rights of workers, with the promise of greater well-being, in a country where they have led the population into poverty - poverty that affects 80 per cent of the inhabitants of the Republic.
73. 929. In the face of this situation, it is important to understand that it is not lack of dialogue, disregard of Convention No. 87 or the lack of foreign currency for economic and employer activities, or an alleged disregard for private property, police harassment, political persecution or physical attacks on employers and FEDECAMARAS, much less favouritism towards duly registered trade union organizations; the true state of affairs is that FEDECAMARAS as the employer leadership is not above the Constitution of the Bolivarian Republic of Venezuela and social justice.
74. 930. The facts are that FEDECAMARAS and its associated organizations, involved in the coup d’état of April 2002 and the attempted uprising in December 2002 to January 2003, no longer have the power to establish monopolies and high and usurious rates of interest, to control the economic apparatus of the State for their own benefit, and to control the military sectors of the National Armed Forces in order to boost smuggling and obtain windfalls by avoiding taxes. All of which, and much more, serves to show that the Bolivarian Republic of Venezuela is undergoing a comprehensive process of change and transformation in its institutions and in Venezuelan society.
75. 931. FEDECAMARAS and its leaders planned four "civic work stoppages", all involving lockouts, of a strictly political nature, and sabotage of the economy and the human rights of the population from 10 December 2001; FEDECAMARAS taking as an excuse for this the approval of 48 executive orders. Subsequently, FEDECAMARAS, together with other destabilizing elements to Venezuelan democracy, marginalized all democratic principles when it encouraged the coup d’état in April 2002, which was justified, according to this employers’ association, by the dismissal of employees from executive and managerial posts at the oil company PDVSA, and the "eviction of the tyrant", referring to the President of the Bolivarian Republic of Venezuela. This work stoppage or lockout produced the coup d’état during which the de facto President of the Bolivarian Republic of Venezuela was, for a brief time, Pedro Carmona Estanca, who at the time was president of FEDECAMARAS. Is this "national protest, civil demonstration and/or day of protest"? The union of historically different sectors occurred in a specific way, the alleged workers’ representatives in the name of the CTV and the employers in the name of FEDECAMARAS, led by Carlos Fernández, clearly combined as they did to conspire and to systematically ignore the state of law from the end of 2001.
76. 932. Ladies and gentlemen of the Committee on Freedom of Association, it is not "protest days" that FEDECAMARAS encouraged. This employer sector made an effort to systematically be on the margin of the state of law. In October 2002 it called another work stoppage or lockout, using as an excuse "eviction of the tyrant", referring to the President of the Bolivarian Republic of Venezuela. Finally, FEDECAMARAS and its president, Carlos Fernández, promoted, along with the alleged executive committee of the CTV, unconstitutional military elements and opposition political parties, the "civic work stoppage" or lockout of December 2002 to January 2003, directed through the media by the successor to Pedro Carmona Estanca, and ex-president of FEDECAMARAS, Carlos Fernández. Is this "national protect, civil demonstration and/or day of protest"?
77. 933. The enormous capacity for tolerance, patience and irreducible democratic vocation of the Government is unquestionable in the face of these subversive activities of this employers’ association and its co-conspirators. Since February 2002, the National Executive Authority has condemned and brought to the attention of the national and international communities that the agenda of the conflicts instigated by the employers’ association FEDECAMARAS, the illegitimate leadership of the CTV and the owner-employers of the media was aimed at creating a climate of political instability in the country to justify a coup d’état, and that this state of subversiveness relied on the participation of the unpatriotic military sectors and sectors of the political extreme right, which had been democratically defeated in numerous elections by the Venezuelan people.
78. 934. During December 2001 and even after the coup d’état in April 2002, FEDECAMARAS and other conspiring sectors recreated authoritarian and psychological models with low intensity actions used or carried out in past decades in Latin America as a product of the imposed cold war that enveloped the world for 45 years, these subversive actions taking as a fundamental point international help through countries (powers) and institutions that resurrected the manuals on coup d’état in the past century, including trying to apply the democratic charter of the OAS to the wronged government. The authoritarian sectors have not only tried to deceive and to act in an authoritarian manner at the national level, they are also doing so at the international level. Can what is described in this paragraph be called "the legitimate right of protest of FEDECAMARAS and its representatives"?
79. 935. To encourage the coup d’état, the owner-employers of the media became the fundamental weapon of manipulation, lies and confusion of the population, specifically the middle classes of our society whom they frightened permanently by telling them that the Government would take away their property and implement an authoritarian system.
80. 936. The coup d’état, led by FEDECAMARAS, took place in various stages. The illegitimate leadership of CTV began, in March 2002, a series of partial work stoppages that were not very successful: these took place basically among sectors that involved human rights such as the health sector, with doctors, teachers, and "surprisingly", support for the illegal paralysis of the upper-level management staff and trustworthy staff at the oil company PDVSA, a sector that represents employers and has no link whatsoever with trade union activity and even less with CTV or FEDECAMARAS.
81. 937. The employers’ association FEDECAMARAS joined the call to strike by the illegitimate leadership of CTV (thereby returning the "favour" that the illegitimate leadership of CTV had done by supporting FEDECAMARAS in the "civic work stoppage" of 10 December 2001), for at that time the president of FEDECAMARAS was Pedro Carmona Estanca, who, together with the illegitimate leadership of CTV, called a 24-hour work stoppage on 9 April. This was defeated, as was that of 10 December 2001, as the strike action did not mobilize 30 per cent of the country. That same night, the strike was converted to a 48-hour work stoppage and this was also defeated. The workers and the population in general intensified the defeat of those sectors by not acting on the call to strike, which was subversive, unjustified and at social levels, as laid down in the Constitution. Despite these destabilizing elements, the work stoppage became, on 11 April, a general strike calling on all those in favour of a coup to demonstrate on 11 April 2002, giving the appearance of a great mass of people at the "protest" in order to justify the coup d’état that had been carefully planned for months.
82. 938. Does what has just been described sound similar to what took place in the Republic of Chile before, during and after the bloody coup d’état on 11 September 1973 against a president who had been democratically elected by his people? Can this be catalogued as "national protest, civil demonstration and/or a day of protest"?
83. 939. There is no doubt whatsoever by the Government that the call for a general strike by FEDECAMARAS and the illegitimate leadership of CTV was coordinated with the plan of the coup d’état, which included calling for a march by the opposition in one place and taking it afterwards to the seat of Government, situated approximately 10 kilometres from where the march should end, and up to which point the authorities had given permission. The aim of FEDECAMARAS, CTV and other destabilizing elements was to cause provocation and confrontation between the groups opposing the Government and the tens of thousands of men and women surrounding the seat of Government as a sign of support for the legitimate Government, their President, the Constitution and human rights.
84. 940. During the opposition’s march and the concentration of people at the seat of Government, the police played an important part as did the snipers placed by the Governor of Miranda State, Enrique Mendoza, from the ranks of Christian socialism, the mayors of the municipalities of Baruta and Chacao of Miranda State, Enrique Capriles Radonsky and Leopoldo López, both from the Partido Primero justice division of the Christian Socialist Party COPEI and the impressive participation of the magistrate, Alfredo Peña, head of the Metropolitan Police, the police corps of 12,000 men and women with special training to carry out operations such as those that took place during, before and after the coup d’état of 11 April.
85. 941. Months before, the President of the Republic, Hugo Chávez Frías, had put out the alert that those sectors were looking for a death in order to blame it on the Government. In total, on 11 April, there were at least 19 deaths, most of which were from among the concentration of the thousands of people supporting President Chávez in the area surrounding the seat of Government, and as a common denominator most of the murders were the result of shots to the head or in that region.
86. 942. When the provocation and confrontation in the street took place, with a lot of shooting, it was "justified" and the excuse was perfect - with the relevant images being shown by the media, controlled by them - for the announcement of an important group of generals and admirals and the justification for imprisonment - kidnapping - of the President of the Republic, whom they blamed for the deaths and murders during the day in which the coup d’état took place. This was how the idea that the President of the Republic had resigned occurred, said in a moment of confusion and with 20 high-ranking soldiers surrounding him and disregarding the Constitution. This alleged resignation could never be proven because it did not exist; the people involved in the coup d’état brandishing another idea: a power vacuum, which must be filled, which is what Carmona Estanca did when he swore himself in as de facto President of Venezuela.
87. 943. Previously the conspirators had used the argument that President Chávez had removed Diosdado Cabello Rondón, his Executive Vice-President and successor on a temporary or complete basis, from his position; those taking part in the coup told national and international public opinion that the President had removed or dismissed all his ministers and, at the same time, that the President had resigned the presidency. "A suicide attempt that it was impossible to believe, however, hypnotized Venezuela for some hours. From here also began the idea of considering the President responsible for the death of some of the protestors from Chuao, who tried to march towards Miraflores" (Diario Panorama, 22 April 2002).
88. 944. Early in the morning of 12 April 2002, with the constitutional President kidnapped and imprisoned, Pedro Carmona Estanca, president of FEDECAMARAS, surrounded by the military involved in the coup, Vásquez Velasco, Medina Gómez and other high-ranking officials from the four branches of the armed forces, informally declared from Fort Tiuna itself, the main headquarters of the Venezuelan army, where the President was imprisoned, that he, Carmona Estanca, had been proposed as head of the government junta, and he immediately announced to the media his acceptance of the post and confirmed that he was going to make a government of national unity. In the afternoon he swore himself in and informed those in the future government to make up the cabinet of the temporary authoritarian regime.
89. 945. Some hours later, Carmona Estanca held a press conference where he formally took responsibility to head the new de facto government; Pedro Carmona Estanca took responsibility to head the first "non-democratically elected" government of the past 45 years of history of the Bolivarian Republic of Venezuela. This was the end of just one further chapter in the subversive, authoritarian and anti-democratic actions of FEDECAMARAS and those who were acting as its officials at the time.
90. 946. Months later, on 22 October 2002, a group of soldiers already linked to and recognized as participating in the coup d’état carried out on 11 April 2002, rebelled, rejecting President Chávez and calling for disobedience with the clear objective of provoking a civil and military rebellion, i.e. copying the format of 11 April 2002 that produced the short dictatorship of Pedro Carmona Estanca, then president of FEDECAMARAS. President Chávez, always holding on to the vision of reconciliation and preservation of dialogue, invited those soldiers to abandon their stance and to commit themselves to the Constitution and accept the legislation.
91. 947. The insurgents’ reply was robust: no amnesties (El Universal, 1 November 2002). The President of the Republic insisted, stating that coups and fascism and betrayal of democracy were not the way to go and that they should search for democratic agreement (El Universal, 8 November 2002). And what did Carlos Fernández, president of FEDECAMARAS do? He approached the soldiers to "unify criteria" (El Universal, 7 November 2002). A few days later, on 11 November, Carlos Fernández, president of FEDECAMARAS, allied himself with the rebel soldiers against the Constitution in order to sign a "Democratic Agreement" against the Government of President Chávez, appearing in photos with his fist raised, alongside General Medina Gómez, one of those involved in the coup d’état, and accompanied by the alleged president of CTV, Carlos Ortega. The expression "indefinite national work stoppage" was used in all the statements. The implied ultimatum was that if an agreement was not reached at the negotiating table on the electoral outcome, this mechanism would be activated.
92. 948. The objectives of the sabotage/work stoppage were announced in various ways: to get a recall referendum, to get President Chávez to resign, to get the President to leave, to see the fall of the President, for the President to smooth the way for an election process. The current president of FEDECAMARAS, Albis Muñoz, acknowledged the political motive for the action in the annual assembly of the organization "the national civic work stoppage that we carried out together with all the opposition forces, between December and January last, was the greatest pressure we could bring to bear to demand a democratic and electoral outcome to the crisis the country was suffering (www.fedecamaras.org.ve).
93. 949. There were two different attitudes with regard to the behaviour of the Government and the political opposition of Carlos Fernández when the so-called "work stoppage" began: on 2 December, the date on which the sabotage began, the Government organized megamarkets so that the population might buy low-cost food and provisions, among which were the ingredients for the popular and Venezuelan dish of cornmeal, meat and vegetables wrapped in banana leaves - a typical dish for the Christmas period in Venezuela. Carlos Fernández’s comments were that the Government forced the public administration employees to twist and trail around the area where goods at the megamarket were being sold, arguing that the work stoppage started very convincingly (www.globovisión.com, 20 December 2002).
94. 950. Already on 5 December, the Coordinadora Democrática (Democratic Organizing Committee), to which the CTV and FEDECAMARAS belonged, urged the population not to leave the streets until the goal of elections had been reached, remaining there permanently and monitoring the development of the work stoppage. At the same time, Vice-President José Vicente Rangel emphasized that the Government was still leaving the possibility of dialogue open, fine-tuning with Dr. Gaviria the details of the agenda to resume the Negotiating and Agreements Table (El Mundo, 5 December 2003), but Carlos Fernández, president of FEDECAMARAS had already stated that the work stoppage was a means of bringing equivalent pressure to bear on the Negotiating and Agreements Table (the latter is notorious; FEDECAMARAS was not interested in dialogue). Once again, the employers took a political, irrational and subversive position. Once again, it was proven that FEDECAMARAS does not believe in dialogue. Once again, they were defeated by the people of Venezuela, democracy and life.
95. 951. Another crucial factor showing the illegal, conspiratorial and subversive behaviour, as well as the terrorist collusion, of Carlos Fernández, president of FEDECAMARAS at the time, arises out of the investigations carried out by the political bodies of Venezuela in view of the actions of the dissident soldiers (implicated in the coup d’état of 2002) in the Plaza Francia in Altamira, implicated in the murders by dissident soldiers under his orders while they held the Plaza, some of those soldiers were involved in the murders of three young people and in terrorist acts carried out on the premises of the Consulate of Colombia in Caracas, the Embassy of Spain in Venezuela and terrorist attacks on other premises. Is this the behaviour of an official of an employers’ organization who fights for equality, progress, well-being and social justice, under Conventions Nos. 87 and 98?
96. 952. Concerning the judicial detention of Carlos Fernández, president at that time of the employers’ association FEDECAMARAS, it occurred following a legally valid request and was executed by the Office of the Attorney-General of the Republic, in the person of the Sixth Prosecuting Attorney of the Office of the Attorney-General, Luisa Ortega Díaz. The proceedings against Mr. Fernández were originally initiated for the offences of instigation to commit an offence, devastation, incitement to conspire and treason against one’s country, at the request of the Office of the Attorney-General of the Republic, in accordance with the organic Criminal Procedure Code (COPP). These accusations were brought against him given the extent of the evidence that resulted from damage to the country owing to the sabotage of the oil industry during the public and notorious leadership by Mr. Fernández of the so-called "civic work stoppage" or lockout that took place in December 2002 and January 2003. The trial judge was No. 34 of the criminal jurisdiction of the Metropolitan Area of Caracas, Mikael Moreno, who in turn was challenged by the defence lawyers of Mr. Fernández and the file was transferred to trial judge No. 49, Gisela Hernández.
97. 953. The offences of treason against one’s country, incitement to conspire (conspiracy) and devastation were not accepted by the new judge to whom the judicial process was transferred following the abovementioned challenge. This judge upheld the accusations of civil rebellion and instigation to commit offences and decided, in a preliminary hearing, to confine the president of FEDECAMARAS, Carlos Fernández, to imprisonment at his residence in Valencia, state of Carabobo, and not in a prison as should have been the case, while the judgement for the offences of instigation to commit offences and civil rebellion was being executed.
98. 954. The penalty of house arrest instead of prison was requested of the court by Carlos Fernández, through his lawyers, as he had blood pressure problems from the time he was detained in a restaurant on the housing estate of Las Mercedes in the east of the city of Caracas by state security forces who were looking for him, on the basis of the judicial order to apprehend him handed down by trial judge No. 34 in Caracas.
99. 955. From the time of the questioning to which he was subjected by the Office of the Attorney-General of the Republic, in the presence of his lawyers, to when he arrived at his house which the judge had nominated as the place he would be imprisoned, Mr. Fernández stated that he was well treated by the police force which carried out the judicial arrest, which is the DISIP (El Norte, 24 February 2003, www.elnorte.com.ve), and the wife of Mr. Fernández, Sonia de Fernández, also stated that "she was able to speak on the telephone with her husband, Carlos Fernández, who told her that he was at the DISIP headquarters together with his lawyers and that he had not been physically ill-treated (...). He told me that they had treated him very well, that I had no need to worry and that he had not been treated aggressively" (El Universal, 20 February 2003, www.eud.com).
100. 956. On the proceedings carried out by the Office of the Attorney-General of the Republic, the Attorney-General, Dr. Isaías Rodríguez, issued a communication explaining that: "It should be recorded that the citizen Carlos Fernández made a statement on Thursday, 30 January, as a witness, before the representatives of the Attorney-General, at the premises of the Office of the Attorney-General, following which he informed the media that he had been summoned to make another statement as a defendant, a summons that he did not attend". For his part, the citizen Carlos Ortega did not attend any of the summons to make a statement issued by the Office of the Attorney-General.
101. 957. On Tuesday, 18 February 2003, the representatives of the Attorney-General requested, carrying out the formality before the Distribution Office, in accordance with article 250 of the COPP, preventive judicial imprisonment before the court of jurisdiction which shall determine the distribution, in order for citizens Carlos Fernández and Carlos Ortega to be brought before the jurisdictional body and the judge to rule as appropriate.
102. 958. On Wednesday, 19 February 2003, court No. 34, acting for the jurisdiction of the Metropolitan Area of Caracas, agreed to the request and issued an order of arrest and detention of the citizens mentioned. Within a period of 48 hours, the arrested citizen shall be brought before the judge.
103. 959. Continuing with the account, proven in all its details on 20 March 2003, the Appeals Court decided to free Mr. Fernández, withdrawing the charges made against him, and at that time no more was heard of the blood pressure problems troubling Carlos Fernández. Mr. Fernández immediately travelled to the United States where today he is residing as a fugitive from justice.
104. 960. Following the ruling handed down on 20 March by the Appeals Court of Caracas, the Sixth Prosecuting Attorney of the Office of the Attorney-General, Luisa Ortega Díaz, lodged an appeal for the protection of constitutional rights (amparo) with the Constitutional Division of the Supreme Court of Justice (TSJ), with an opinion by Judge José Delgado, who accepted the allegations set out by the Office of the Attorney-General of the Republic and once again ordered the house arrest of Carlos Fernández, and the Supreme Court of Justice ruled to maintain the order of detention by means of a decision read out by the president of the Court on 2 August 2003, in which Penal Judicial Circuit Court No. 49 was ordered to convene a hearing to determine whether to maintain the custodial house arrest or to substitute it.
105. 961. Ladies and gentlemen of the Committee on Freedom of Association, where, then, is the abuse of power and the violation of the human rights of Carlos Fernández? How could the complainants FEDECAMARAS/IOE prove the contrary? This inventory rejects the arguments of FEDECAMARAS/IOE on supposed irregularities in the judicial detention of Carlos Fernández.
106. 962. But it is necessary to make an inventory of the actions carried out by Mr. Fernández during and following the sabotage (from 2 December 2003 until 4 February 2004), called for by him and Carlos Ortega, the supposed leader of the CTV, who each day by way of a "war report" in the media incited citizens to acts of sabotage to the economy, disregard for constitutionality and incitement of violence and social intolerance.
107. 963. The facts to be recounted below demonstrate that the fundamental objective of Carlos Fernández and the employers’ association FEDECAMARAS are of a strictly political and insurrectionary nature, and it is for this reason that the Office of the Attorney-General of the Republic accuses the now fugitive from justice, Carlos Fernández, of a series of offences.
108. 964. Carlos Fernández, through daily instructions given by way of the mass media, during his actions in the so-called "civic work stoppage" of December 2002/January 2003, was behind various actions against the population, such as the illegal and fraudulent compilation of signatures to convene a consultative referendum, which they tried to turn into an annulment of the constitutional mandate of the President of the Bolivarian Republic of Venezuela, as well as a series of public calls that violated the fundamental rights of the population of Venezuela, such as: confiscation of the human right to work owing to the lockout by enterprises, essentially businesses located in the vicinity of the middle class residential areas; the closing of enterprises of very powerful economic groups from fundamental sectors such as the production sector and that of the distribution of foodstuffs and medicines which initially paid their workers wages without them completing their full day’s work, despite their workers forming groups in the enterprises and establishments and demanding the employers to allow them to fulfil their obligations in their jobs. During the "work stoppage" the response to the workers by the alleged executive committee of the CTV and by the employers’ association FEDECAMARAS was "make your sacrifice, this is what we have to do to escape the tyrant"; demonstrating the political, unconstitutional and unjustified slant denoted by a work stoppage or strike driven by workers or factors involved in labour relations.
109. 965. During the period referred to specific sectors of the population were subjected to violent closures of motorways, avenues and roads (essentially in the middle-class sectors), having a de facto influence on the free exercise of the right to free passage, with serious repercussions on vulnerable sectors of the population (old people, ill people, young people, children and adolescents).
110. 966. On an ongoing basis, this led fascist sectors, as an unequivocal demonstration of social intolerance, to carry out violent closures of shops, bakeries, supermarkets, restaurants and other service providers. The people involved were very aggressive and used a variety of objects to make a lot of noise and acted accompanied by gangs of motorcyclists on powerful motorbikes, as well as officials from the municipal police forces of the mayor’s offices and governor’s offices controlled by the opposition; resulting in innumerable cases, in disrespect between citizens, of the human right to physical integrity, to not being subject to psychological torture and to freely exercise economic and social rights, fundamentally, such as the right to free work and to earn one’s living through one’s own efforts.
111. 967. Before and during the so-called "civic work stoppage" or lockout, as a result of the argument of Mr. Fernández, there were attacks on public transport vehicles and workers, resulting in some cases in serious injury (due to the simple fact of being at work).
112. 968. During the two months indicated the right to education was blocked and violated, disregarding the higher interests of children and adolescents established in the Constitution, the Organic Protection of Children and Adolescents Act, the international Convention on the rights of the child, events that essentially took place at private schools and at schools assigned to or under the protection of the governor’s offices and mayor’s offices of the opposition.
113. 969. In the face of poverty that is the heritage of centuries of exclusion and that affects a large part of the population of Venezuela, employers from the countryside poured millions of litres of milk into rivers and down drains, using as a criminal excuse "this is a work stoppage and we must escape the tyrant", subjecting the majority of the population, notably children and adolescents, to a shortage of products necessary for daily subsistence, just as they acted during the April 2002 coup d’état, violating the human right to food in the name of democracy.
114. 970. There was misuse, with the main culprits being Mr. Ortega and Mr. Fernández, of the right to information, to freedom of expression and to the use of licences for radio and television stations, with the intention of providing disinformation and inciting people to commit offences, promoting hatred and transmitting messages using subliminal advertising techniques and war propaganda, harming the mental health of the population (with regional and national printed media participating in this action). The spokespersons systematically executing the actions described above were the alleged president of the CTV, Carlos Ortega, representatives of former high-level officials of the PDVSA, and the president at that time of the employers’ association FEDECAMARAS, Carlos Fernández, the latter the signatory of the governability agreement that "legitimated" the dictator Pedro Carmona Estanca, president at the time of the coup d’état of the employers’ association FEDECAMARAS, turning the right to information and to freedom of expression into licentiousness, abuse, dirty propaganda, lies and manipulation.
115. 971. There was incitement to violate free transit across the national territory, with a criminal opposition on many occasions seeking to and being successful in sabotaging the public transportation of fuel, medicines and the distribution of foodstuffs.
116. 972. During the so-called "civic work stoppage", on a systematic basis, campaigns were mounted against the National Armed Forces, with threats to cause the dissolution of the institution if they took power, verbal abuse against the officials of the National Armed Forces and their families in the areas they reside, defacing their walls with insults and directing physical and verbal threats at the officers, non-commissioned officers and their families, directly inciting intolerance and the violation of the right to freedom and democracy.
117. 973. The human right to identity and other civil rights was denied, by paralysing civil offices, prefectures and registry offices under the control of the fascist opposition, refusing citizens the right to register the births of children, to be issued certificates, to be able to contract marriage, to request evidence of residency, among other administrative formalities.
118. 974. The facilities of Petróleos de Venezuela were broken into and sabotaged in a terrorist fashion, causing serious damage to expensive equipment and to the country’s finances (initially quantified at over US$10,000 million), which damaged the development of the national PDVSA which contributes 83 per cent of the Republic’s GDP, affecting the national treasury’s ability to go on investing in the social arena, that is to say in human rights. This sabotage was carried out by former members of the administrative and managerial staff of the oil industry, with the support of the media and of the so-called "Democratic Organizing Committee", which includes the employers’ association FEDECAMARAS and the alleged executive committee of the CTV, directly sidestepping economic rights, which resulted in the loss of 500,000 jobs and over US$10 million.
119. 975. However, the recovery of production levels from March 2003 speaks for itself, after the State took the respective measures to combat this sabotage of the economy.
120. 976. The so-called "civic work stoppage" almost devastated the economy of Venezuela with the fall in GDP, a matter in which Carlos Fernández participated directly as president of FEDECAMARAS and on behalf of this employers’ institution.
121. 977. Following the devastating drop in GDP during the first three quarters of the year, it began to grow again during the last quarter, as at that time FEDECAMARAS as an association, lost the credibility of its members, who in a responsible manner, as the objectives of overthrowing the constitutional President of the Bolivarian Republic of Venezuela had not been achieved, began to invest; in other words they opened new enterprises, they revived enterprises that had been affected by the work stoppage, and the same went for the virtually impossible and fortunate recovery of the oil industry and other factors that generated confidence in investors. If there were a dictatorship, if there were not clear policies targeting the private sector of the economy, would it have recovered as has been seen in respect of GDP following the so-called "civic work stoppage"?
122. 978. This shows that the arguments of FEDECAMARAS concerning the persecution of employers, exclusion of employers, lack of dialogue, etc., are false, as evidenced by the numbers.
123. 979. Between November 2002 and February 2003 the unemployment rate went from 15.7 to 20.7 per cent, which meant an increase of 553,515 in the number of unemployed persons. In November 2002, the number of unemployed persons reached 1,852,736 and went up to 2,406,251 in February 2003. The so-called "civic work stoppage" and the sabotage promoted by the conspirators Carlos Fernández of FEDECAMARAS, and Carlos Ortega, the alleged leader of the CTV, destroyed 760,846 jobs (increasing unemployment by 5 per cent). Is it the work of trade union leaders to destroy jobs? Is this how FEDECAMARAS seeks to justify its actions and persuade the ILO that Convention No. 87 has been violated?
124. 980. However, it is well known that by the end of 2003 employment had recovered to the level it was at prior to the "work stoppage" and the sabotage promoted by Carlos Fernández and FEDECAMARAS, job creation was at 100 per cent in the private sector of the economy. If there had been no clear economic rules and respect for private institutions, employers and dialogue with construction companies, would this recovery of employment have been possible? Which president of a country could have resisted a coup d’état, economic sabotage and a series of insults if he did not have the support of the overwhelming majority of his people?
125. 981. During the so-called "civic work stoppage" the unscrupulous actions of Carlos Fernández and FEDECAMARAS impacted on the human right to a healthy environment, with the organizers of the work stoppage and their followers causing sabotage to refineries, oil wells and other facilities which in turn led to the spillage of crude oil and other components of hydrocarbons, with the intention of making national and international public opinion think that it was the Government that caused this situation and attributing environmental damage to the Government, as supposedly it had placed "incapable" staff in the jobs abandoned irresponsibly by trustworthy managers and personnel who had been working in the oil industry, legally dismissed for having voluntarily abandoned their jobs. They even went as far as the criminal audacity of setting traps in sectors of the oil industry that could cause accidents which, if they had happened, would have resulted in incalculable loss of human life of the people living close to the centres of extraction, refining and distribution of various products of the oil industry, as well as resulting in the contamination of a healthy environment which is the heritage of humanity.
126. 982. The provision of sources of energy for the basic industries of aluminium and iron in the industrial enclave of Guyana was sabotaged, as part of a plan to make the legitimate Government of Venezuela succumb and to damage enterprises of strategic importance for the Republic and suppliers of raw materials for international markets in Europe, America, Asia and Africa.
127. 983. Vessels that transported fuel for vehicles and other national level transport were paralysed or sunk; the valves and access keys of computer centres that control oil activities were sabotaged; the "Democratic Organizing Committee" to which FEDECAMARAS belongs, gave orders through its spokespersons Mr. Ortega and Mr. Fernández, to abandon jobs in sensitive areas of the oil industry for the filling of tank trucks that transport fuel and the provision of domestic gas that allows millions of Venezuelan families to prepare food, with the population in general having to queue for endless hours to supply themselves with fuel and gas while the sabotage targeting the oil industry was sorted out, with direct consequences on the human rights of the majority.
128. 984. In an uncontrolled manner, the "Democratic Organizing Committee" and its spokespersons Mr. Ortega and Mr. Fernández roused the middle-class sectors of the population to harass embassies accredited in Venezuela, such as the Embassy of Brazil for selling fuel to the Republic and the Embassy of Algeria for offering, in the framework of international cooperation, technical assistance to the oil industry following the brutal and heartless economic sabotage. Likewise, a grotesque media campaign was begun, targeting a series of employers and the Colombian Government for engaging in commercial relations with the Bolivarian Republic of Venezuela, for the simple fact of selling meat, milk and other foodstuffs in short supply to the Venezuelan population as a result of the stockpiling and lack of production because of the lockout agreed to with the alleged executive committee of the CTV and the employers’ association FEDECAMARAS.
129. 985. Mr. Fernández of FEDECAMARAS and Mr. Ortega allegedly of the CTV both mounted campaigns inciting the population to commit offences, trying to make employers and natural persons not pay taxes (fiscal obligations) or make social security contributions and other tax-related obligations, which resulted in the fact that over 600,000 pensioners did not receive their pensions on time, and that medical attention could not be given to people suffering catastrophic illnesses such as HIV/AIDS, diabetes, renal deficiency and other illnesses requiring delicate and costly care, this having an impact on the human right to health, to obtain one’s pension on time, to tranquillity, to social security in general.
130. 986. A restricted timetable was implemented for the normal operation of opening hours of banks and financial institutions, and there were threats to extend the closure of these financial institutions. During this period, the population could not access their money promptly or efficiently in order to cover their basic needs for food, the purchase of medicines, the use of public or private transportation, the purchase of clothing and shoes.
131. 987. Cultural rights were violated by way of a publicity campaign and propaganda against Christmas celebrations (propaganda on television, radio and in the printed media, the slogan for the whole month of December was "Christmas for later!"), thus violating cultural rights, religious belief and the freedom to profess one’s religion. However, Mr. Fernández did enjoy the New Year’s celebrations, travelling to the nearby island of Aruba, leaving his few followers behind who had been urged to spend New Year’s Eve at the motorway access route at Plaza Altamira as part of the "national protest".
132. 988. The right to health was violated, there were shortages in expenditure on medication, particularly for those in need of treatment for chronic and catastrophic illnesses, etc.
133. 989. The human right to recreation was violated through the suspension of mass sources of entertainment such as cinemas, areas for walking and recreation, including the paralysis of the professional Venezuelan baseball season.
134. 990. The human rights to non-discrimination and equality were violated when the media systematically harassed the mental health of adults and children by transmitting propaganda of racist, classist, exclusive content and discrediting the harmonious and peaceful coexistence of the various social strata of the population of Venezuela.
135. 991. Violation of the human rights to life and physical integrity through the political and violent use of police forces which are under the responsibility of mayors and governors of the opposition against the population who were protesting publicly against the fascist actions of the opposition, with the spokespersons Ortega and Fernández using the opportunity to accuse the Government of such actions, calling the President of the Republic a tyrant, a murderer and a dictator.
136. 992. Slander and insults were directed against family members of people who had died as a result of the repressive action of police and para-police groups belonging to the fascist opposition, this occurring on the occasion of the wakes following a series of protests where essentially people died who supported the national Government, thus violating the human right to reputation and religious beliefs.
137. 993. Human economic rights were targeted, such as the right to individual and collective property and to work, as a consequence of the "work stoppage" the tenants of commercial centres suffered irreparable damage as a result of their arbitrary closure by the owners who are big capitalists who show very little concern for small and medium-sized enterprises and the sources of employment generated by such establishments.
138. 994. The human right to work was trampled on in the so-called "civic work stoppage" or economic sabotage, this caused the loss of over 500,000 jobs in the commercial, industrial and services sectors, thus having a very worrying effect on the unemployment situation in the country, triggering a spiral of inflation and a major fall in economic activity.
139. 995. Intolerance and fascist ideology were spread openly with the main spokespersons being the political parties of the opposition, the media, the spokespersons of the CTV and FEDECAMARAS, calling on the population to dress in black as a sign of death, desolation (it should also be taken into account that black is the colour favoured as a symbol of fascism), also having as a central element the slander of humble people, calling them rabble, under-class, drunks, ignorant, toothless, smelly, dirty, etc.
140. 996. There were absurd calls to disown the public institutions and to persecute peace and justice. When the Supreme Court of Justice handed down judgements that "benefited" the opposition, such as, for example, the decision of 20 August 2002 that stated that there were no grounds to judge four generals and admirals of the National Armed Forces for their involvement in the coup d’état of April 2002, the judges were treated as heroes, impartial and just by the opposition. However, in the case of the decision of the Constitutional Division of the Supreme Court of Justice, where those who sabotaged the oil industry were ordered to fulfil all the decrees and resolutions of the National Executive in order to restore normality, these opposition sectors accused the Supreme Court of Justice of the very opposite and of being "abducted" by the Executive Power.
141. 997. The ultimate in irresponsibility of these sectors, following two months of supposed work stoppage, their spokespersons, Carlos Ortega and Carlos Fernández of FEDECAMARAS, in addition to the "Democratic Organizing Committee", did not know how to get out of the failed "civic work stoppage", and blame was thrown from one to the other and they said entirely shamelessly "the work stoppage got out of hand", "we did not call for an indefinite work stoppage", "we never called for a work stoppage to make the current President of the Republic leave"; with these cowardly and extremely irresponsible claims, those who in the national and international sphere "believed" and supported these sectors should be evaluated; the "IT WASN’T ME" attitude confirms that these sectors were not pursuing demands for progress and for the full application of human rights for the people of Venezuela, they were pursuing and are still insisting on an authoritarian outcome. Has everything described so far been "a national protest, civil demonstration and/or day of protest"?
142. 998. The Committee on Freedom of Association has clearly stated its views on disregard for legislation by employers’ or workers’ organizations:
143. 204. Political matters which do not impair the exercise of freedom of association are outside the competence of the Committee. The Committee is not competent to deal with a complaint that is based on subversive acts, and it is likewise incompetent to deal with political matters that may be referred to in a government’s reply [see Digest, 1985, para. 201].
144. 450. In the interests of the normal development of the trade union movement, it would be desirable to have regard to the principles enunciated in the resolution on the independence of the trade union movement adopted by the International Labour Conference at its 35th Session (1952) that the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers and that when trade unions, in accordance with the national law and practice of their respective countries and at the decision of their members, decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social or economic functions, irrespective of political changes in the country [see Digest, 1985, para. 352].
145. 454. Trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests [see Digest, 1985, para. 355].
146. 457. It is only in so far as trade union organizations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference in their activities. On the other hand, it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character. These two notions overlap and it is inevitable, and sometimes usual, for trade union publications to take a stand on questions having political aspects, as well as on strictly economic and social questions [see Digest, 1985, para. 359].
147. 999. Carlos Fernández did not act in pursuit of the "promotion and defence of the economic and social interests of the workers", and neither did he promote a "national protest, civil demonstration and/or day of protest".
148. 1000. As to the comments made by FEDECAMARAS and the IOE concerning the Enabling Act and dialogue, we wish to make certain observations below. The Government declares that the allegations put forward by FEDECAMARAS-IOE denote a very specific way of trying to hide the subversive, illegal and authoritarian actions of the association FEDECAMARAS and its officials; they establish in their allegations that there has been no dialogue and take as an example the illegal promulgation of 49 executive orders, a matter that the Government of the Bolivarian Republic of Venezuela will provide detailed information about, as it is not the mandate of the Committee on Freedom of Association to examine matters that are unrelated to freedom of association, let alone suggest elements and opinions on these issues that are put before the Supreme Court of Justice and are not taken up in ILO Convention No. 87.
149. 1001. However, in the best spirit of collaboration and cooperation, the Government of the Bolivarian Republic of Venezuela states seriously and responsibly that the executive orders promulgated in the Enabling Act arose from broad consultations with citizens, and various social, academic and cultural sectors of the country, the high-level and grass-roots employers’ organizations were consulted and work was done together with them on the preparation of this legislation. First of all, the legislation was consulted on the basis of the democratic conviction of the current national Government of the Bolivarian Republic of Venezuela; secondly, because it is a constitutional obligation; and, thirdly, because it is a fundamental tool to promote the harmonious coexistence of the various social classes that live in the Bolivarian Republic of Venezuela.
150. 1002. Background. It is important to clarify the process for the approval of the enabling acts by the National Executive.
151. 1003. The promulgation of the Enabling Act is the constitutional authorization given to the President of the Republic to legislate by way of executive orders. This authority is clearly defined in the fourth paragraph of article 203 of the Constitution of the Bolivarian Republic of Venezuela: "Enabling acts are those enacted by the National Assembly by three-fifths of its members, in order to establish the guidelines, purposes and framework for matters that are being delegated to the President of the Republic, with the status and force of legislation. Enabling acts must establish the length of time for which they shall remain in force".
152. 1004. In this way, under the mandate of the Constitution, a normal process in democracies such as Venezuela, the President of the Bolivarian Republic of Venezuela requested the sovereign National Assembly of the Bolivarian Republic of Venezuela to empower it to legislate on matters of vital importance for the attainment of human rights, and this was established by the National Assembly through the Act Authorizing the President of the Republic to Issue Orders With the Force of Law in the Subjects Delegated, published in Official Gazette No. 37077, dated 14 November 2000, with the National Executive having as a limit a period of one year to legislate on issues summarized in the following table:
153. Productive or social sphere Number of orders approved
154. Industrial development 1 executive order
155. Agriculture and livestock development 4 executive orders
156. Sustainable development 3 executive orders
157. Financial system 11 executive orders
158. Regional development, social well-being 3 executive orders
159. and communities
160. Oil industry 1 executive order
161. Services sector 7 executive orders
162. Institutional development 19 executive orders
163. 1005. All the executive orders are of a strategic nature for the dignified development of the inhabitants of the Republic, that is to say, the legislation is an integral part of the gradual attainment and achievement of human rights in an integral, indivisible and direct manner. The enabling acts are interrelated to ensure compliance with the Constitution of the Bolivarian Republic of Venezuela and with the international commitments assumed by the Republic in the sphere of human rights.
164. 1006. Consultations with and the participation of the employer sector in respect of the content and preparation of enabling acts began immediately the National Executive was constitutionally empowered on 14 November 2000. Thus began a systematic series of meetings to define work timetables, work methodology and respective proposals. Throughout this process each of the associations concerned and affiliated to the employers’ association FEDECAMARAS participated.
165. 1007. It should be noted that during the coup d’état of 12 April it was these executive orders that the employers’ association FEDECAMARAS and the illegitimate leadership of the CTV, the media, opposition political parties, the "Democratic Organizing Committee", military coup supporters and recognized jurists in human rights in our country, all agreed to suspend fully with cheers and applause on 12 April 2002. The suspension of the enabling acts was also accompanied by the dissolution of all the public powers constitutionally and legitimately constituted and also endorsed by the sovereign popular vote; we refer to the executive, legislative, judicial, electoral and citizens’ powers. So whom and which principles did the coup d’état target? A coup d’état that, as the Committee on Freedom of Association knows and as the international community in general knows, only lasted 47 hours, as the rule of law and the Constitution were restored by the people and the National Patriotic Armed Forces, which in turn and unequivocally restored the legitimate and constitutional President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías, that is to say, the people and National Armed Forces fully restored human rights.
166. 1008. During the period of drafting the executive orders referred to, consultations were held with numerous sectors of national life, including employers’ and workers’ organizations, with the employers’ association FEDECAMARAS excluding itself unilaterally, and arrogantly not wishing to participate in the majority of consultations held. Nevertheless there were consultations with grass-roots employers’ and workers’ associations, in other words, first- and second-level federations and trade unions, with consensus being achieved on the majority of the executive orders, with a few exceptions, a controversy that is natural in democracies, and that has been gradually solved through discussions and agreement in the National Assembly with individual reforms, or simply by way of partial or total repeal depending on the complaints made by the respective plaintiffs before the Supreme Court of Justice. As the discussions progressed, differences of opinion were presented in which the employers made their positions more radical, insisting on imposing their will and not the will and interests of the historically excluded and impoverished population. In this way, the vice-president of FEDECAMARAS and representatives of the Chamber of Construction and of CONINDUSTRIA met with the Executive Office, headed by the Minister of Planning, Jorge Giordani, chief of the Economic Office of the National Executive, on 28 August 2001, and also with the special commission that drafted the Hydrocarbon Act, incorporated in fact in the Enabling Act, to give their observations. In subsequent meetings they discussed the other subjects covered by the Enabling Act, by economic sector.
167. 1009. These facts and controversies are considered to be absolutely normal under the rule of law and in democracies, showing that the democracy of the Bolivarian Republic of Venezuela is not only representative, but also participative, elements that had long been aspired to and sought after by the Venezuelan people and that are now beginning to be seen in the most recent Bolivarian Constitution with the 49 enabling acts of which the Venezuelan people feel proud, as we do not just have human rights described on paper, we are applying and progressively developing them with a profound democratic vocation.
168. 1010. The 49 executive orders comprise the spirit, purpose and reason of the national Constitution and of social justice, the latter a fundamental assumption in the regional and universal system of human rights, particularly of the ILO. The executive orders referred to directly benefit rural families, artisanal and industrial fishermen, members of cooperatives, the environment and the huge number of impoverished Venezuelans, directly excluded for centuries by the so-called representative democracy that was in place from 1958 to 1998; during this period, paradoxically for many factors of national and international life, virtually nothing happened in Venezuela in the sphere of human rights and in fact these rights were systematically violated (paradoxically?) by those who are now assiduous campaigners before the supervisory bodies of the regional and universal systems of human rights.
169. 1011. Since his constitutional arrival in 1999, democratically elected by the votes of the people of Venezuela, the current President Hugo Rafael Chávez Frías, has always maintained his readiness to participate in dialogue with all the social sectors, and in particular with the employer sector, this attitude has not changed and nor will it be changed by current government policies. This is how after intense days of dialogue between the various social sectors, both organized and not organized, in 1999 a new stage began, aiming to comply with the provisions of the Constitution of the Bolivarian Republic of Venezuela.
170. 1012. This new stage of dialogue began in a systematic fashion with the approval of the Enabling Act. One example of this is what was said about Pedro Carmona Estanca, the recent president-elect of the employers’ organization FEDECAMARAS:
171. Less than 48 hours after having assumed the presidency of FEDECAMARAS, Pedro Carmona Estanca received not only the majority backing of the employers, but also of the members of the executive and legislative powers, and the employer sector promised to intensify dialogue, stating that "the public readiness of President Hugo Chávez to grant us an audience constitutes a major positive step because it will allow us to establish the bases for an institutional meeting and deal with fundamental issues such as economic recovery, investment as an instrument in national progress, employment and public insecurity, which must be overcome given its huge impact on our society. The president of CONINDUSTRIA, Lope Mendoza, was satisfied by the reaction of the Government in entering into a dialogue with the representatives of the national productive sector". Where is the lack of dialogue, the lack of consultation, the destruction of freedom of association and the right to private property?
172. 1013. It is important to point out that during the previous administration of the employers’ organization, presided over by Vicente Brito, the former president of FEDECAMARAS took on political/opposition positions against the Government, even during the constituent process brought forward to 1999. Mr. Brito consistently opposed it and, when the date approached to conduct the popular referendum that approved the new Constitution, FEDECAMARAS called on the population to vote "No", which was clearly discriminatory as one of the arguments in the campaign against the new Constitution and telling people to vote "No", was the recognition given in the Constitution to the indigenous peoples settled on our territory for thousands of years. The executive body presided over by Mr. Brito, the first vice-president of FEDECAMARAS was Pedro Carmona Estanca, the successor of Brito in the presidency of the employers’ association.
173. 1014. Mr. Carmona, as the new president of FEDECAMARAS, criticized his predecessor stating that "it is not for FEDECAMARAS to get involved in small-time politics, in partisan politics, but yes we should be involved in major politics, in the rules of the market economy, social equity, respect for private property, security, investment". With this objective, the entire executive committee of FEDECAMARAS was received at the seat of Government on 10 August 2001 by President Hugo Rafael Chávez Frías, and Mr. Carmona publicly stated the following in that respect:
174. ... it was an in-depth and sincere meeting, with topics being duly addressed, held in a climate of mutual respect and readiness to promote constructive and institutional reconciliation (...) it was agreed to hold a working meeting between the executive committee of FEDECAMARAS, the presidents of the sectorial bodies and the Economic Office, in which specific topics will be addressed that require action or consultations (...) with the participation of the President of the Republic. It was also agreed to raise the tone of the debate and minimize public controversies whilst maintaining appropriate channels of communication. It was thus a positive balance that opens the doors to dialogue ...
175. 1015. We note the interest, the clear practice and the will of the Venezuelan Government to engage in dialogue and agreements with employers and the productive sectors of the population, as well as its spirit of sincerity, stressing in this respect that, when President Chávez left on an official tour in September 2001 to Colombia and Chile, Mr. Carmona was invited to form part of the presidential entourage as a sign that it was one single country that was concluding commercial and cultural agreements and agreements for the exchange of goods and services. Who could have been more suitable to negotiate with employers of other countries than the highest representative of the employers’ association of the Bolivarian Republic of Venezuela?
176. 1016. After this the officials of FEDECAMARAS began to distance themselves from opportunities for dialogue for selfish reasons, when they saw that their unilateral suggestions were not docilely accepted by the authority and other sectors participating in the preparation of the enabling acts, in dialogues and negotiations with conflicting interests of those who do not have a background of consensus, construction and equity as the employers’ association FEDECAMARAS has historically shown. Why did the various employer sectors associated with FEDECAMARAS withdraw from the dialogues to reach agreements on the promulgation of the enabling acts? The reply to this question relates to the fact that the employers associated with FEDECAMARAS thought that the new Constitution of the Bolivarian Republic of Venezuela would not be observed, they thought that they would act in violation of the most recent Constitution, refusing to recognize it and adjusting it to their own interests, as they did with the 1961 Constitution, accompanied by the Punto Fijo Agreement, described earlier in this document.
177. 1017. The employer sectors, far from adapting themselves to the requirements of a democracy for peaceful coexistence, opted to begin a series of illegal actions. First of all, without going to the judicial bodies, they demanded that the handing over of idle lands, lands owned by the State, to peasants and their families be stopped denying the possibility for peasants and their families to make them productive, in a country where at that time over 90 per cent of productive land were in the hands of landowners and unproductive, with many of those landowners not even proving that they owned the lands that they said they owned. Here the employers are opposing a social and economic policy for the social inclusion of the impoverished population, a constitutional mandate, they are trying to avoid that the lack of production of foodstuffs be corrected in order to make our country self?sufficient and avoid importing 90 per cent of the foodstuffs that the inhabitants of the Bolivarian Republic of Venezuela consume. Is the production of foodstuffs and the generation of wealth and the fair distribution of land currently in the hands of the few contrary to ILO Convention No. 87?
178. 1018. The representatives of FEDECAMARAS accuse the Government of decreeing legislation unilaterally, without dialogue, in violation of the national Constitution. However, the employers of FEDECAMARAS, while they were doing this, were subversively meeting with opposition political factors and agreeing to carry out acts of economic sabotage with eminently political objectives, such as the convening of staggered work stoppages by region, such as the case of the state of Zulia. They did this on 9 October 2001, including threats to stagger the protests even more, and more radical threats were made by the agriculture and livestock association of the National Federation of Stockbreeders (FEDENAGA), affiliated to FEDECAMARAS, which threatened to paralyse the production of meat and milk, and also to extend the work stoppage to other regions. Is this the way in which to promote dialogue?
179. 1019. In parallel the Government created a favourable atmosphere for a meeting to discuss and establish agreements, and for this President Hugo Chávez set up a Special Commission to discuss the differences and the producers suspended the work stoppage "until further notice", at the request of the agriculture and livestock producers. Obviously, this first attempt to paralyse sectors of production failed as trade, transport and banks operated as usual, according to the Ministry of the Interior and Justice and the State Governor (El Universal, 10 October 2001): "Despite the closure of the Pan-American highway - which for over eight hours paralysed the free movement of traffic between the municipalities of the south of the lake - the civic work stoppage convened by the stockbreeders of Zulia did not have the success predicted by the agriculture and livestock association in the city, where the call to strike was heeded by less that 30 per cent"(ibid).
180. 1020. However, FEDECAMARAS systematically and voluntarily closed itself off to dialogue and, in view of this systematic refusal to talk, the Government held dialogues and negotiations with small and medium-sized enterprise sectors, historically excluded from major political, economic, social and employers’ decisions made by FEDECAMARAS and the governments in power before the current national leader assumed the presidency. This exclusion occurred as previously described in the framework of the Punto Fijo Agreement.
181. 1021. The discussions, dialogue and agreements reached with the small employers grouped together in FEDEINDUSTRIA were fruitful, and resulted in cooperation and financing agreements for small and medium-sized enterprise owners and producers in the States of Cojedes, Táchira, Zulia, Monagas and Falcón through the National Fund for Reciprocal Guarantees for Small and Medium-sized Industries (FONPYME), with the president of FEDECAMARAS recognizing, in the state of Falcón, that having decreed the free zone in this federal entity "reactivated national tourism".
182. 1022. The mechanisms to favour dialogue never ceased on the part of the national Government. It is important to point out that during the call to the "civic work stoppage" convened by FEDECAMARAS on 10 December 2001, the President of the Bolivarian Republic of Venezuela appointed the Minister of Defence at that time, José Vicente Rangel Vale, the current Executive Vice-President of the Republic, to develop higher-level efforts at dialogue. The response from the employers’ association FEDECAMARAS and its president at that time, Pedro Carmona Estanca, was to refuse, giving as an excuse the fact that he would only speak with the Constitutional President of the Republic, Hugo Chávez Frías, one further element demonstrating the high-handedness of the employers’ leadership and the more specific evidence of intolerance before the call to discuss and seek solutions to controversies, but in addition it indicated the clear position of the plans for the coup d’état which came to fruition in April 2002.
183. 1023. Faced with the controversy created by the employer sector in relation to the approved enabling acts, a controversy stirred up fundamentally by the leadership of FEDECAMARAS, the National Assembly of the Bolivarian Republic of Venezuela formed a Special Commission which invited the various sectors to put forward their observations on the legal instruments, a normal occurrence as the amendment of approved enabling acts was the responsibility of this state body, as the mandate of empowerment to the National Executive had expired. The National Assembly meetings were attended by the employer sectors to make their statements after having tried to paralyse the country on 10 December 2001, as indicated above.
184. 1024. What has been described in the previous paragraph once more reveals the mechanisms of understanding established by the State of Venezuela, by means of dialogue and not of blackmail and intentions to refuse to recognize the rule of law, democracy and human rights which is what these employer sectors grouped together in FEDECAMARAS did, who always maintained a hidden coupist card, while they pretended to be democratic in the face of national and international public opinion.
185. 1025. In January 2002 the president of FEDECAMARAS at the time, Pedro Carmona Estanca "... stressed his confidence in the independence of the National Assembly and in the Supreme Court of Justice in their decision-making". Apart from the legal resources provided by our democratic jurisdiction, which have been used, as they are entitled to do, by some officials of FEDECAMARAS as an employers’ association, who have lodged annulment proceedings against the approved orders and against standards contained in various articles in the 48 executive orders. While they were doing this, the employers’ officials were acting according to a very well-planned, authoritarian, political agenda, which partially culminated on 12 April 2002 with the de facto Government of Pedro Carmona Estanca, former president of FEDECAMARAS. In this short period of dictatorship, not only did FEDECAMARAS and Carmona repudiate the Constitution of the Republic, but they also violated and undermined all human rights, dissolving the state institutions; in addition they decided to suspend the validity of the 48 executive orders. Any more power and authoritarianism is difficult to imagine. Will the Committee on Freedom of Association endorse this conduct? Is this course of action taken by employers’ associations and their officials protected under ILO Convention No. 87?
186. 1026. If the employers’ association FEDECAMARAS and its outgoing president Pedro Carmona Estanca and his successor as president Carlos Fernández really believed in democracy, then why did they not activate the provisions of article 74 of our national Constitution, which indicates the possibility of putting the executive orders to an abrogatory referendum, to be requested on the initiative of a number of no fewer than 5 per cent of the electorate and validated by the indispensable agreement of 40 per cent of the electorate? Why then did the former president of FEDECAMARAS prefer to act in violation of legislation and break the constitutional thread, with the support of his vice-president and subsequent president of the employers’ association FEDECAMARAS, Carlos Fernández?
187. 1027. The methods used by FEDECAMARAS with the previous governments, of putting legislation before the legislative power through deputies allied to their political views, which would be discussed for various periods of time depending on appearances, deals and the interests of the political and employer sectors, were gradually changed by the current government administration, with the participation of all social sectors and not just specific ones being encouraged.
188. 1028. There were also changes to the custom and privilege of employers to stop or delay draft legislation detrimental to their economic and social benefits up to untenable limits. One example of this was the National Commission of Prices and Wages (in which FEDECAMARAS and the CTV participated), which held discussions for eight months between 1988 and 1989 on the wages to be paid to workers and the most appropriate prices for producers and traders, with the freezing of production and the stockpiling of basic foodstuffs exacerbating this.
189. 1029. Such was the abuse by these commissions mediating for their interests, without concrete agreements, that at the same time social discontent was brewing and finally exploded with the events of the so-called Caracazo of 27 February 1989, an event whose repercussions are still being felt and owing to which thousands of families are still in mourning, all from the popular districts and sectors of the country. It was an event for which the corresponding administrative, political and criminal responsibilities of those who held power at that time and gave the order to fire on the unarmed population have still not been attributed. A few days after the Caracazo, the Government in power decreed an increase in wages and the freezing of the price of basic essentials: the common denominator was over 400 murders by the armed forces and police force of that time.
190. 1030. All these authoritarian attitudes by the employers’ association FEDECAMARAS, such as the refusal to recognize dialogue, withdrawing from tables for dialogue, imposing their criteria and engaging in blackmail "if their interests were not included over and above the interests of the others", tearing up Official Gazettes where legislation was published, calling for insurrection, carrying out coup d’états, which certainly made it necessary to change the dialogue between the national Government and this employer sector, FEDECAMARAS, which was positioned outside the law. The conduct of FEDECAMARAS did not frustrate the intentions of the national Government to transform dialogue, going from an exclusive type of dialogue and decision-making to a broad, inclusive, productive and non-discriminatory dialogue, within the Constitution and legality, not outside it in the manner adhered to by FEDECAMARAS.
191. 1031. The consistent action of the Venezuelan Government in believing in dialogue led to the establishment of a Presidential Commission to Promote and Coordinate the National Tables for Dialogue, presided over by the Executive Vice-President of the Bolivarian Republic of Venezuela, Dr. José Vicente Rangel, by way of Order No. 1753, with the involvement of persons representing broad sectors of national life, and with the aim of establishing the practice of a social and participative democracy to open new channels of representativeness and participation in public management.
192. 1032. This was immediately after the coup d’état driven by subversive actions with the clear intention of destabilizing the state institutions and imposing a dictatorship and taking power by force, which they succeeded in doing for a short time on 12 and 13 April 2002, the Government of Venezuela recalling that one of the fundamental architects of the political, economic and social destabilization was Pedro Carmona Estanca, president of FEDECAMARAS and then his first vice-president Carlos Fernández, who assumed the presidency of FEDECAMARAS following the exile of Mr. Carmona and is now a fugitive from Venezuelan justice, with the two leaders of FEDECAMARAS having in common the wrongful utilization of work stoppage or strike, making illegal and subversive calls for these measures.
193. 1033. It should come as no surprise that FEDECAMARAS refused to form part of the tables for dialogue set up immediately after the people of Venezuela and its National Armed Forces restored the President of the Bolivarian Republic of Venezuela to his post and restored the Constitution and the democratic institutions repudiated by Carmona and Carlos Fernández, presidents of the employers’ association FEDECAMARAS. This proves that the intention of these employers of FEDECAMARAS is to pursue their intentions of carrying out a coup d’état and go on maintaining exclusive dialogue to make labour relations more flexible and deregulated, as they show with their attitude that all they have in mind are their own interests, arrogance, exclusion and the position of a superior class.
194. 1034. Following the coup d’état of April 2002, representatives of the employer sector, such as FEDEINDUSTRIA and CONFAGAN, participated in the meetings held in conjunction with the tables for dialogue, as did representatives of SMIs and SMEs, of economic sectors such as automobiles, textiles and pharmaceuticals, and persons from various spheres, such as Monsignor Mario Moronta for the Catholic Church, Mr. Francisco Natera, former president of FEDECAMARAS, representatives from the trade union sector, journalists, media intellectuals, representatives of the automobile, chemical-pharmaceutical, clothing, textiles, social economy, public transport, tourism and many other sectors. These tables for dialogue helped to re-establish confidence between employers and workers with respect to government management, to solidify a truly productive, sustainable, diversified and united economy.
195. 1035. The peculiarity is that FEDECAMARAS did not want to participate in the negotiations because the Venezuelan Workers’ Confederation (CTV) was not incorporated into the dialogue; thus the National Executive could not do anything, as the CTV lacked legitimate trade union officials. In other words, owing to an intra-union legal controversy, some persons from the CTV sector who say they belong to the executive committee of the CTV, but have no means of proving it, could not participate in the tables for dialogue. However, this dispute led to the Government of Venezuela sending a personal invitation to the person who said he was the president of the CTV, Mr. Carlos Ortega, as the call for dialogue was without any exclusions, and even then FEDECAMARAS refused to participate. Once more, the blackmail can be seen: either you do what I want, or I will not participate, it is that simple, either you recognize an illegal executive committee of the CTV or I will not participate in the dialogue. This was once again the position held by FEDECAMARAS with respect to the calls for dialogue by the national Government.
196. 1036. "The tables for dialogue held in May 2002 arose from a context of political confrontation between the defenders of the stockholders’ and oligopolistic model who struggled for the control of the Government through unconstitutional means and those of us who defended the legality and legitimacy of the Venezuelan Government", with specific objectives of establishing consensus on the difficulties of the productive, employers’ and workers’ sectors and on the measures to be applied in the short, medium and long term; measures intended to reactivate the production apparatus, strengthen institutionality with respect to all legal regulations, the direct participation of the legal and legitimate representatives of the employers and workers, and re-establish respect for the rights of workers. These tables for dialogue constituted a forum where it was possible to take a distance from political confrontation, with a paradigmatic win-win approach, with dialogue predominating and consensus on contradiction and open conflict, in a climate of understanding, trust and favouring ideas and proposals to promote an economic solution and overall development.
197. 1037. The implementation of the tables for dialogue, following the coup d’état promoted by FEDECAMARAS, helped to re-establish some form of government management, which was certainly affected by the events of the coup of April 2002, and with actions that contributed to the country’s economic recovery, on the basis of the provisions of our Constitution and the plan of action for the nation established in the Economic and Social Development Plan 2001-07, to advance in the recovery, reactivation and restructuring of the industrial apparatus, of production and of employment. Intra- and inter-institutional cooperation has been strengthened, as has the process for the execution of agreements, with all of this leading to a transition process away from an economic model dependent on oil income towards an endogenous development model which is diversified, sustainable and viable with dignified and decent jobs. These are structural changes, not only in the political sphere but also in respect of social and economic issues.
198. 1038. In this entire major process the leadership of FEDECAMARAS chose not to participate, but its members, grouped in sectoral and regional associations did, and thus dialogue was maintained, and is still continuing; there is also a methodology in place to monitor the agreements concluded. This form of management based on the direct and participative involvement of citizens establishes compromises and accountability by the Government, employers, workers, and organizations of the social and united economy.
199. 1039. But in addition dialogue was maintained, achieving greater depths and developing in accordance with the political situation, dialogue at the highest level between the national Government and the political opposition, and in this way, in November 2002, the table for dialogue, negotiation and agreement was established, and in that forum there were representatives of the employers’ association FEDECAMARAS, through the intermediary of Mr. Rafael Alfonso, president of the Venezuelan Association of Foodstuffs (CAVIDEA).
200. 1040. The table for negotiation and agreement had as its facilitator César Gaviria Trujillo, Secretary-General of the Organization of American States (OAS), invited by the Government of Venezuela, and in addition had the support of the Carter Center and of the United Nations Development Programme (UNDP). During the period from November 2002 and May 2003 dialogue and negotiations progressed slowly, with the firm position of the members of the Government appointed as representatives to the table to always act in the framework of the national Constitution of the Bolivarian Republic of Venezuela, and not to stray from it, with the following slogan becoming popular: "Inside the Constitution everything, outside the Constitution, nothing". On 29 May 2002 the agreement referred to was signed.
201. 1041. The establishment of the Currency Administration Commission (Cadivi) was a necessary measure in view of the political, social, anti-democratic and economic sabotage imposed by FEDECAMARAS.
202. 1042. At the beginning of 2002, all the economic indicators predicted for the first six-month period of the year the country’s gradual economic recovery. But external factors, driven by political and economic sectors, contrary to the plans for recovery established by the national Government, put the break on and put the Venezuelan economy frankly into a recession: the coup d’état of 11 April, capital flight, speculation, tax evasion and a work stoppage with sabotage to the oil industry, the country’s main source of income.
203. 1043. The repercussions of these actions contrary to the national interest had an immediate impact which translated as: reduction in international reserves and oil income, decrease in tax revenue, destabilization of the external value of the currency, uncertainty, investment to meet the shortfall caused by the shortage of fuel and some basic foodstuffs, resulting from the work stoppage, among other things.
204. 1044. The Venezuelan economy was hard hit and was on the verge of collapse at the beginning of 2003, a year when in fact, in accordance with macroeconomic forecasts, the consolidation of social programmes intended to improve the quality of life of the entire population should have been achieved.
205. 1045. Given this situation, the national Government decided to take an economic measure, which will be maintained until the disastrous effects caused to the national economy disappear and the sustainable growth that they tried to thwart is achieved.
206. 1046. On 5 February, a system of exchange controls was established by way of an agreement signed by the Ministry of Finance, representing the National Executive and the Central Bank of Venezuela.
207. 1047. For the implementation of this agreement on 5 February 2003, the President of the Republic, in the Council of Ministers, decreed the establishment of the Currency Administration Commission (Cadivi).
208. 1048. Cadivi came into being with the mission to administer efficiently and transparently, in accordance with certain technical criteria, the national foreign exchange market, and has the challenge of contributing through its smooth running and the help of other policies, to achieving economic stability and the progress of the nation, both consecrated as sovereign principles in the national Constitution of the Bolivarian Republic of Venezuela.
209. 1049. The Government adds a graph and indicates that the graph conclusively explains the other side of the plan of the conspirators, including Carlos Fernández and FEDECAMARAS. On the right of the graph, appears the level of international reserves of Venezuela in dollars, and in the bottom of the graph appear the months of 2002 - note the fall in international reserves. This fall was what forced the national Government, together with the Central Bank of Venezuela, to monitor the disproportionate flow of currency abroad as, according to the indicators shown, the conspiracy against the country meant that in a short time the flight of capital would leave the Republic unable to cover the purchase of materials, foodstuffs or medicines abroad, even more so if there was no foreign currency income from the sale of oil and its derivatives owing to the sabotage that had systematically targeted the industry for two months.
210. 1050. It should be pointed out that foreign currency monitoring meant an increase with respect to the amount of international reserves registered at the beginning of the year, when the combination of oil sabotage (that demolished exports) and the speculative attack on our currency (that produced a violent flight of foreign currency) had reduced international reserves to US$13,635 million (including the Intergovernmental Fund for Macroeconomic Stabilization - FIEM) in January 2003.
211. 1051. The recovery followed. This was achieved with the recovery of over 700,000 jobs which were lost following the economic sabotage of our economy. If employers had been denied foreign currency, would it have been possible to recover over 700,000 jobs during the last three quarters of 2003?
212. 1052. In this document the State of Venezuela, owing to the eminently political, subversive and anti-democratic nature of the official Carlos Fernández and of the employers’ institution FEDECAMARAS that he represented following the coup d’état and during the sabotage of the Venezuelan economy, requests the Committee on Freedom of Association to consider that the complaint lodged does not deserve closer examination, and also reiterates its readiness to provide any information that the Committee may require to confirm all the observations provided.

C. The Committee’s conclusions

1. 1053. The Committee observes that in this case the IOE and FEDECAMARAS have submitted allegations relating to:
   • - the marginalization and exclusion of the employers’ associations and FEDECAMARAS in the process of decision-making, thus excluding social dialogue, tripartism and in general the conducting of consultations (particularly in respect of very important legislation that directly affects the employers), in this way failing to comply with the recommendations of the Committee on Freedom of Association;
   • - actions and interference by the Government to promote the development of and encourage a new employers’ organization in the agriculture and livestock sector to the detriment of FEDENGA, the most representative organization in this sector;
   • - violations of human rights and rights fundamental for the exercise of activities of employers’ organizations as contained in Convention No. 87, and in particular acts of aggression and intimidation by the authorities and paramilitary groups and reprisals against FEDECAMARAS, its affiliated organizations and its officials for exercising their right to strike in national civic work stoppages, namely:
   • - the detention of Mr. Carlos Fernández on 19 February 2003 in reprisal for his actions as president of FEDECAMARAS, without judicial order and without the guarantees of due process; according to the complainants he suffered ill-treatment and insults from violent groups led by a government deputy;
   • - physical, economic and moral harassment, even by means of threats and aggression against Venezuelan employers and their officials by the authorities or persons close to the Government (details are given of various cases);
   • - operation of violent paramilitary groups with government support, with action against the premises of an employers’ organization and against the protest activities of FEDECAMARAS;
   • - creation of a hostile environment for employers by allowing the authorities (and at times encouraging) to dispossess and occupy farmland in full production in violation of the Constitution and of legislation and without adhering to legal procedures; the complainants refer to 180 cases of illegal invasions of estates in production and indicate that most of those cases have not been settled by the corresponding authorities;
   • - the application of a system of exchange control decided unilaterally, discriminating against enterprises belonging to FEDECAMARAS in awarding administrative authorization for the purchase of foreign currency as a reprisal for participation by this employers’ confederation in national civic work stoppages.
2. 1054. In general terms, the Committee stresses the severity of the allegations and deplores that despite the fact that the complaints were submitted in March 2003, the Government’s reply dated 9 March 2004 does not specifically respond to a considerable portion of the allegations.
3. 1055. The Committee observes that in response to the complaint as a whole and to an incidental claim by the complainants (that the national civic work stoppage on 9, 10 and 11 April 2002 led to the national crisis that resulted in the resignation of the President of the Republic which was publicly confirmed by the country’s highest military official, but that only lasted a few days as it was later cancelled by the President himself), the Government states that: (1) the only reason for the complainants’ accusations is to justify their positions which have nothing to do with occupational or trade union situations but that on the contrary are strictly illegal, anti-democratic and discriminatory policies and FEDECAMARAS is an eminently political, subversive and anti-democratic institution; (2) FEDECAMARAS executives have demonstrated subversive actions with the clear intention of destabilizing the state institutions and imposing a dictatorship and taking power by force, as achieved on 12 and 13 April 2002 with a coup d’état, the de facto president then being Mr. Pedro Carmona, former president of FEDECAMARAS; (3) the work stoppage by FEDECAMARAS in April 2002 became a general strike on 11 April 2002, calling all the coupist factors to a march, giving a certain mass character to the "protest" to justify the coup d’état that had been planned for months; (4) Carlos Fernández, the following president of FEDECAMARAS, endorsed the dictatorship on 12 April 2002 when he signed the "Act of Constitution of the Government of Democratic Transition and National Unity" in representation of the employers; (5) FEDECAMARAS, the CTV and other sectors in the civic work stoppages, between 2001 and 2003, made subversive calls in an attempt to achieve the overthrow of the President of the Republic and were resisted by the overwhelming majority of the people of Venezuela; these civic work stoppages occurred as a result of the far-reaching process of change in Venezuelan institutions and society vis-à-vis the previous implementation of neo-liberal measures, exclusive globalization, privatization and the deregulation of the rights of workers and the loss of control of the state economic apparatus by FEDECAMARAS; the loss of privileges by FEDECAMARAS and the fact that it is not above the Constitution is what this case is about.
4. 1056. In this respect, the Committee will deal with questions relating to the civic work stoppages further on, but wishes to point out that this complaint does not relate to Pedro Carmona, that the allegations relate to situations both preceding and following the events of 12 and 13 April 2002 (above all the national civic work stoppages of December 2002 to January 2003), that its mandate is limited to examining the allegations of violations of the rights of workers’ and employers’ organizations, their representatives and affiliates, and that it is not the competent international forum to deal with questions of an exclusively political nature.
5. 1057. The Committee regrets, however, that in its reply the Government indiscriminately and repeatedly discredits FEDECAMARAS and all its officials, without supporting this widespread condemnation with solid proof or judicial decisions.
   • (a) Conclusions on the allegations of exclusion and marginalization of employers’ associations and of FEDECAMARAS from social dialogue, particularly as regards the development of laws that affect their interests and the establishment of economic policies
6. 1058. The IOE and FEDECAMARAS point out that the Government has not convened the Tripartite Commission of Venezuela for years and indicate that, in violation of legislation and the Constitution of the Republic, they have not been consulted in respect of the development of laws, legal texts or economic policies that directly affect their interests, specifically:
   • - the Labour Procedure Act;
   • - the awarding of a general increase in the minimum wage of 20 per cent by way of decree;
   • - the ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169);
   • - the unilateral establishment of a new banking control scheme imposed by the authorities and more generally the establishment of blatantly anti-employer economic policies and guidelines; and
   • - the Enabling Act of 13 November 2002 that empowered the President of the Republic to issue 49 executive orders in areas affecting employers’ interests.
7. 1059. With respect to the 49 executive orders promulgated by the President of the Republic in accordance with the Enabling Act of the National Assembly dated 14 November 2000, the Committee notes that according to the Government: (1) those executive orders were the result of broad consultation with the citizens, a number of the country’s social and cultural sectors and consultations with both top-level and grass-roots organizations, which were involved in drafting them; (2) from the outset each of the employers’ associations concerned affiliated to FEDECAMARAS and numerous actors in national life were consulted, including the employers’ and workers’ organizations (trade unions and federations); (3) on 10 August 2001 the President of the Republic met with the executive committee of FEDECAMARAS in plenary and "it was agreed to hold a working meeting between FEDECAMARAS and the Economic Office to deal with specific issues requiring action or consultations ... with the participation of the President of the Republic"; (4) on 28 August 2001 the vice-president of FEDECAMARAS and representatives of the Chamber of Construction and of CONINDUSTRIA met with the Executive Office, headed by the Minister of Planning. and with the special commission that drafted the Hydrocarbon Act, to give their observations; in subsequent meetings they discussed the other areas of the Enabling Act by economic sector; in September 2001 the president of FEDECAMARAS was invited to join the entourage of the President of the Republic on an official tour to make it known that the employers could engage in negotiations; (5) afterwards, when the officials of FEDECAMARAS realized that their unilateral plans were not accepted meekly by the authority and other sectors participating in the drafting of the executive orders, they began to distance themselves from opportunities for dialogue for selfish interests and voluntarily put an end to the dialogue of their own accord; (6) faced with this refusal, the Government maintained dialogue and negotiations with small and medium-sized enterprise sectors grouped together in FEDEINDUSTRIA, and reached cooperation and financing agreements; (7) there was consensus on most executive orders, with a few exceptions (it is not clear from the Government’s reply whether when consensus is mentioned only FEDEINDUSTRIA is referred to or also some of the associations affiliated to FEDECAMARAS; nevertheless, given that the Government asks the question "Why do the various employer sectors associated to FEDECAMARAS withdraw from dialogues to reach agreement on the promulgation of the enabling acts?", it would appear that in the consensuses being referred to by the Government, those from the enterprise sectors associated to FEDECAMARAS were not included).
8. 1060. The Committee notes that, according to the Government, the 49 executive orders covered subjects of vital importance for the attainment of human rights and directly benefited the vast impoverished Venezuelan population excluded for centuries from the so-called representative democracy. The Government also indicates that some FEDECAMARAS officials lodged annulment proceedings against the legislation approved and against regulations contained in various articles of the 49 executive orders and thus decided to cancel the validity of all of them.
9. 1061. The Committee notes the Government’s observations in support of its view about the self-exclusion of FEDECAMARAS from dialogue, as follows: (1) since attempts were made to paralyse the country on 10 December 2001, the National Assembly, in view of the controversy created essentially by the leadership of FEDECAMARAS, set up a special commission and invited the various sectors, and the employer sectors attended the meetings; and (2) during the civic work stoppage convened by FEDECAMARAS on 11 December 2001, this organization refused to engage in a dialogue with the Vice-President of the Republic on the grounds that it would only engage in a dialogue with the President of the Republic. The Committee also notes that the Government alleges that FEDECAMARAS refused to be part of the Presidential Commission and of the national tables for dialogue (May 2002) set up by the authorities, with the pretext that the Venezuelan Workers’ Confederation had not joined them (according to the Government, the Confederation was not included because it lacks legitimate representatives). The Committee stresses, however, that, according to the Government, these commissions included journalists, intellectuals, the Catholic Church, etc., and that the tables for dialogue in question do not appear to relate to bipartite or tripartite negotiations or consultations in the sense imparted in ILO instruments (in effect, the Government indicates that it is "management in the framework of direct and leading participation of citizens, establishing compromises and the rendering of accounts by the Government, employers, workers and organizations of the social and joint economy"), and neither do those conducted in the framework of the special commission of the "Legislative Assembly" referred to by the Government nor do the negotiations and consultations of the table for negotiations and agreements set up in November 2002 in which, according to the Government, FEDECAMARAS participated and in which the Government and "opposition" reached a political agreement on 29 May 2002 to always act within the framework of the national Constitution (the Secretary-General of the Organization of American States was invited to participate in this process).
10. 1062. The Committee concludes that in the process of preparing the 49 executive orders in accordance with the Enabling Act of 13 November 2000 - a process that by law had to be completed within one year - consultations were conducted with FEDECAMARAS and its affiliated organizations in the first phase and particularly in August 2001. If these consultations were genuine consultations to achieve consensus, as maintained by the Government, or minimum superficial consultations for appearances, as maintained by the IOE and FEDECAMARAS (which point out, however, that the Government conducts detailed consultations with groups that are relatively unrepresentative of the population and that sympathize with the political regime), is something on which the Committee does not have sufficient elements to be able to make a decision. Whatever the case may be, the Committee observes that the Government’s claim about the self-exclusion of FEDECAMARAS from dialogue in general and in particular with respect to the 49 executive orders as from September 2001 does not seem to be backed up by conclusive evidence (for example, institutional statements by FEDECAMARAS, invitations from government authorities to deal with labour, social or economic issues in bipartite or tripartite forums that were not accepted). Returning to the 49 executive orders, apart from its surprise that it was decided to regulate a number of vital and complex issues (hydrocarbons, economic and social development, agrarian reform, etc.) in the short period of one year and by reason of executive orders promulgated by the Executive Power, the Committee must point out that in its reply the Government has not specifically replied to the allegations concerning major defects of legality and constitutionality with respect to those executive orders and the procedures followed to adopt them, defects that the complainant organizations outline in considerable detail and in a relatively convincing manner in their complaint and also in a long annex that is not included in this report. In effect, the Government’s reply did not go into the substance of these matters and limited itself to indicating that some FEDECAMARAS officials lodged annulment proceedings against the legislation approved and against regulations contained in the 49 executive orders and that they thus decided to suspend the validity of those executive orders as a whole (the Committee believes that the judicial authority has not yet handed down its decision in this respect). Consequently, the Committee cannot determine whether the Government took into account the point of view of FEDECAMARAS on the defects of illegality and unconstitutionality that it invokes or whether it preferred to ignore this point of view during the preparation of the 49 executive orders.
11. 1063. With respect to the new system of exchange control, the Committee notes that the Government bases that system on the fact that the country was on the brink of collapse at the beginning of 2003 when there was a disproportionate flow of currency out of the country that would have prevented the Republic from being able to respond to the purchase of food, medicines and other materials abroad. The Committee notes the Government’s indication that the new system of exchange control arose from an agreement signed between the Ministry of Finances and the Central Bank of Venezuela and that subsequently the President of the Republic in the Council of Ministers decreed, on 5 February 2003, the establishment of the Currency Administration Commission. The Committee observes, however, that although the Government cited a situation of economic emergency to justify the new system of exchange control, there is nothing in its reply to indicate that it carried out consultations with FEDECAMARAS about this new system, which is, however, a matter that clearly affects their interests.
12. 1064. The Committee also wishes to point out the following: (1) the Government’s reply does not mention any bipartite or tripartite agreement or consultation in the sense imparted by ILO instruments with FEDECAMARAS as from September 2001 in matters (policies or legislation) of a labour or economic nature; (2) the Government has not denied that the National Tripartite Commission has not met for years as stated in the allegations; and (3) the Government has also not denied the alleged lack of consultations with FEDECAMARAS in respect of the process of drafting important legislation such as the Labour Procedure Act, the widespread increase in the minimum wage of 20 per cent by way of order or in respect of the process of ratification of ILO Convention No. 169, the new banking control scheme or, on a more general note, the establishment of economic policies and guidelines.
13. 1065. This being the case, the Committee concludes and deplores that for years the Government has not convened the National Tripartite Commission and that, on an ongoing basis, it does not conduct bipartite or tripartite consultation with FEDECAMARAS in the sense imparted by ILO instruments with regard to policies and legislation that fundamentally affect their interests in labour, social or economic matters, thus violating the fundamental rights of this employers’ confederation. The Committee calls the Government’s attention to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which establishes that consultations "should aim, in particular, at joint consideration of matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions" and includes among the matters for consultation "the preparation and implementation of laws and regulations affecting their interests". The Committee again points out to the Government the principle to which it already called its attention in its 330th Report, Case No. 2067 (Venezuela), paragraph 175, reproduced below:
    • The most representative employers’ and workers’ organizations, and in particular the confederations, should be consulted at length, on matters of mutual interest, including everything relating to the preparation and application of legislation concerning matters relating to them and to the fixing of minimum wages; this would contribute to legislation, programmes and measures that the public authorities have to adopt or apply being more solidly founded and to greater compliance and better implementation. This being the case, the Government should, as far as possible, also base itself on the consensus of workers’ and employers’ organizations, which should share the responsibility for achieving well-being and prosperity for the community in general. This is particularly true in light of the growing complexity of problems facing societies, and also, of course, facing the people of Venezuela. No public authority should claim to hold all knowledge nor presume that what it proposes will always and entirely satisfy the objectives in any given situation.
14. 1066. The Committee emphasizes that tripartite consultation should take place before the Government submits a draft to the Legislative Assembly or establishes a labour, social or economic policy and that that consultation should form part of the elements required for the Government to take its decision, specifically because the confederations principally representative of workers and employers represent them, that is to say, they represent in this case thousands of employers and a very considerable proportion of the labour world. Therefore, in more general terms, the Committee recalls that the 1944 Declaration of Philadelphia that forms part of the ILO Constitution reaffirms among the fundamental principles on which the ILO is based, the following: "the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare".
15. 1067. For all the above reasons, the Committee urges the Government to stop marginalizing and excluding FEDECAMARAS from social dialogue and, in future, to fully apply the ILO Constitution and the principles therein on consultation and tripartism. The Committee also urges the Government, without delay, to convene periodically the Tripartite National Commission and to examine in this context, together with the social partners, all laws and orders adopted without tripartite consultation.
16. 1068. From a more global perspective, the Committee wishes to refer both to the Government’s statement in which it indicates that it does not recognize the legitimacy of the executive committee of the Venezuelan Workers’ Confederation (CTV) (the Committee expressly asked the Government to recognize it - see 330th Report, Case No. 2067, paragraph 173) and to the general context in the country where an ever more apparent climate of political and social confrontation prevails, which the Committee deeply regrets. The Committee believes that the failure to recognize the executive committee of the CTV and the marginalization and exclusion of FEDCAMARAS from social dialogue, irrespective of the Government’s reasons, constitutes one of the essential factors in the social and political confrontation and, in the Committee’s view, this situation must be urgently remedied. It is obvious that these organizations (which are the most representative confederations) do not share the Government’s economic and social model, but excluding them from the social institutional system does not contribute to social peace, public tranquillity and social stability in general and, on the contrary, it generates in practice ongoing conflicts and the mobilization of thousands of employers and hundreds of thousands of workers who cannot make their voices heard through the organizations they have chosen. The Committee therefore considers that the Government should give a new orientation to labour relations and reconsider its attitude with respect to FEDECAMARAS and the CTV.
17. 1069. At this critical juncture in the situation in the country, and observing that for many years there has been an ongoing conflict between the Government, on the one hand, and FEDECAMARAS and the CTV, on the other, the Committee offers the Government the services of the ILO to provide the State and society with its experience so that the authorities and social partners may regain trust and, in a climate of mutual respect, establish a system of labour relations based on the principles of the ILO Constitution and of its fundamental Conventions, as well as the full recognition, in all its consequences, of the most representative confederations and all organizations and significant trends in the labour world.
    • (b) Conclusions on the allegations concerning actions and interference by the Government to promote and encourage a new employers’ organization in the agriculture and livestock sector to the detriment of FEDENGA, the most representative organization in the sector
18. 1070. The complainant organizations have alleged that the Government has promoted the development of the so-called National Confederation of Farmers and Stockbreeders of Venezuela (CONFAGAN) to the detriment of the National Federation of Stockbreeders (FEDENGA), the true representative organization in the sector, carrying out actions to benefit CONFAGAN, the Government interfering, in this way, in the internal affairs of the employers’ organizations. The complainant organizations indicate that FEDENGA was excluded from the Agriculture and Livestock Council owing to the support it provided to the popular claim of FEDECAMARAS against the Government. The Committee deplores that the Government has not replied to these allegations (it has only indicated that FEDENGA threatened to paralyse the production of meat and milk in 2001 and to extend a work stoppage in the State of Zulia to other regions) and consequently it urges the Government to reinstate FEDENGA to the Agriculture and Livestock Council and to stop favouring CONFAGAN to the detriment of FEDENGA.
    • (c) Conclusions on the national civic work stoppage of December 2002 to January 2003 and the arrest with ill treatment of president Carlos Fernández on 19 February 2003 in reprisal for his actions as president of FEDECAMARAS and without the guarantees of due process
19. 1071. Concerning the ill treatment suffered by Carlos Fernández, president of FEDECAMARAS, during his arrest, the Committee notes the Government’s statements that his detention was replaced by the judicial authority with house arrest when the lawyers of Carlos Fernández alleged his blood pressure problems. The Committee notes the press articles to which the Government refers and according to which Carlos Fernández and his wife stated that they had been well treated by the police who carried out the arrest and that he had not been physically ill treated and that there had been no aggression against him. The Committee stresses that press articles are of limited value as evidence and that the complainant organization has alleged that: (1) Carlos Fernández was assaulted by unidentified individuals on 19 February 2003; they were not wearing uniforms and did not have the appearance of officials or police and had arrived in vehicles without identification, without number plates and without a judicial warrant; (2) Carlos Fernández thought that it was a kidnapping and tried to defend himself; following a violent struggle in which Mr. Fernández was hit causing superficial injuries and bruises to the chest area, he was immobilized and pushed into his car; (3) shots were fired and only afterwards people appeared and identified themselves as police; (4) on 20 February 2003, he was shut in a cell measuring 2 metres by 2 metres, without ventilation, without light and with only a mat on the floor.
20. 1072. Given that the Government has not specifically replied to these points, the Committee requests it to carry out an investigation in this respect and to keep it informed.
21. 1073. Concerning the allegations relating to the violation of due process, the Committee notes that, according to the allegations: (1) Carlos Fernández was detained on 19 February 2003 without being presented with a judicial warrant; (2) on 20 February 2003, he remained incommunicado and was not able to speak to his lawyers; (3) press articles attributed to the President of the Republic expressions from which it could be gathered that he was involved in this detention; (4) on 21 and 22 February, he made a statement before the judicial authority; (5) violent groups led by a government deputy tried to exert pressure on the judicial authority on 21 and 22 February by congregating and hindering access to the court and shouting insults; (6) on 23 February 2003 (it appears from the allegations), the imprisonment was changed to house arrest by judicial decision taking into account Carlos Fernández’s state of health; (7) the judge who handed down the initial order of detention was challenged by the defence and withdrew; (8) of the five accusations initially made against Carlos Fernández three were eliminated (treason against one’s country, conspiracy (criminal association) and devastation (incitement to plunder the nation), with the charges of civil rebellion and instigation to commit offences remaining.
22. 1074. The Committee wishes to refer to an appendix sent by the complainants (which is not contained in the allegations to avoid repetitions) which is reproduced below and which describes a certain number of irregularities and violations of due process to most of which the Government has not responded:
    • The process adhered to by the authorities of Venezuela in the detention of Carlos Fernández Pérez is evidence of the intention to leave him in a state of defencelessness before the charges imputed to him.
    • Carlos Fernández was summoned to the Office of the Attorney-General on 30 January of the current year to make a statement as a witness.
    • After having begun the corresponding statement he was informed that his status has changed and he was sent a summons to make a further statement on 4 February, together with his defence lawyers, but this time as defendant.
    • The day fixed for the statement, the defence lawyers he appointed asked to postpone the statement on the grounds that they had not had access to the file. On that occasion, the Sixth Prosecuting Attorney of the Office of the Attorney-General refused to show the file to the lawyers and the grounds were entirely irregular.
    • In view of the conduct of the Office of the Attorney-General, Carlos Fernández went to the same judge who had witnessed the swearing in of his defence lawyers and exercised the right derived from the right of defence, consisting in that the statement that the procurators should have taken from him would not be given at the Office of the Attorney-General but instead in the court of jurisdiction (article 125(6), organic Criminal Procedure Code).
23. On 6 February, the Office of the Attorney-General gave access to the file. Irregularly, due to the conduct of the defence lawyers, the Sixth Prosecuting Attorney, Luisa Ortega, presented summons for Carlos Fernández, in order for him to make his statement at the Office of the Attorney-General. The summons were incoherent, because on one it was stated that he should appear on Monday, 10 February, and on the other on Tuesday, 11 February.
    • On Monday, 10 February, Carlos Fernández presented himself at the Office of the Attorney-General, accompanied by his defence lawyers, and stated that he would not be appearing because he had exercised the right for the prosecuting attorneys to take his statement before the court of jurisdiction.
    • On Wednesday, 12 February, the first court of jurisdiction refused him the right to make a statement before the court. On Monday, 17 February, the defence appealed and the decision remained pending as to whether he would be obliged to make his statement at the Office of the Attorney-General.
    • On the following day, 18 February, with the decision remaining pending that would imply the obligation to make the statement before the Office of the Attorney-General, and without anything having been said about the appeal, the Office of the Attorney-General went to a court other than the one that had been involved and requested that Carlos Fernández be detained.
    • This request, without him being allowed to exercise his defence through a statement, lacks sense. It should only be able to be applied to those who have refused to appear. This is not the case with Carlos Fernández who, faced with the proceedings initiated against him, was entirely ready to cooperate with the judicial authorities.
    • He appeared twice before the Office of the Attorney-General, on the first occasion when he made a statement as a witness, he committed legislative fraud because at that time, in accordance with the provisions of the organic Criminal Procedure Code, the content of the investigation made him a defendant, depriving him of the right of defence, given that he had not been given access to the proceedings and his lawyers were not allowed to be present. Despite this, Carlos Fernández did attend at the Office of the Attorney-General.
    • The second time he went to the Office of the Attorney-General was not to carry out an act of defiance, but to let the acting prosecuting attorneys know that he would not attend to make the statement because he was exercising the right to have his statement taken in court.
    • The reaction of Luisa Ortega, Sixth Prosecuting Attorney at the Office of the Attorney-General, to the exercise of the right indicated and to a decision that was not final, was to treat him in the way that people are treated who are reluctant to make statements and, without having heard him or allowed him to make a statement or defend himself, promoting proceedings that could benefit him and seeking, in this way, to destroy the basis of the accusation previously made against him, directly requested that he be detained.
    • Carlos Fernández was not reluctant or rebellious before the Office of the Attorney-General. He demonstrated with his actions his readiness to comply with the criminal accusation against him, becoming the one being persecuted, without due process.
    • The Procurator’s actions violated the following rights:
      • - Effective judicial protection: the first court of jurisdiction refused to recognize the right whereby the statement could be taken by the Office of the Attorney-General in the presence of the judge so that he could monitor the activities of the Office of the Attorney-General.
      • - His right to defence was violated as he was not informed of the accusation against him prior to requesting that he be detained. The haste of the Prosecuting Attorney meant that she did not wait for the decision on the appeal on the right lodged by Carlos Fernández.
      • - He was not allowed to exercise the means of defence established in article 131 of the organic Criminal Procedure Code which materialized when he made the statement.
      • - In addition, before his detention he was illegally prevented from filing proceedings to demonstrate the absence of any offence.
      • - The containing order of the request for detention submitted by the Prosecuting Attorney also violated his right to defence because the incriminating elements were not presented individually and, although he was accused of five offences, it is not said what proof relates to each of them, presenting them as a whole, which means that the defence has to guess which is the evidence that is supposed to demonstrate each one of the five offences he is accused of.
      • - The request is lodged with a court that was not competent to hear it as it was not that court which had carried out the preliminary hearing. It was a court other than the one that carried out the first procedural acts, such as the appointment of defence lawyers and that decided on the requests for his statement to be taken before the court and that the inadmissibility of the means of preventive judicial imprisonment was declared in advance (article 125(6) and (8) of the organic Criminal Procedure Code).
      • - Despite the fact that the court to which the request was made knew after the detention that it was not competent and that the jurisdictional court was, it did not decline to hear the case, it did not return the records to the first jurisdictional court, which is why it was necessary to challenge it.
      • - Of the five offences of which he was accused, following the decision of the court to which the file was referred as a result of the challenge already mentioned, two survived: rebellion and instigation to commit an offence. The conduct attributed to Carlos Fernández is not consistent with these offences. As such, the principle of legality is violated, as established in article 49(6) of the national Constitution. For example, for rebellion there has to be insurrection, an armed uprising, and the work stoppage convened by FEDECAMARAS was peaceful, supported by civil society, not armed and in the exercise of a democratic right.
      • - The court that handed down the final decision violated the principle relating to the general jurisdictional court before or at the time of the indictment, because the one competent to hear the case, as has already been said, because it had carried out the preliminary hearing, was the court of jurisdiction.
      • - Despite there being a court that had carried out the preliminary hearing, the Office of the Attorney-General did not lodge its request for imprisonment with this court, but went to another that, incidentally, knew nothing about any of the abovementioned rights. The Representative of the Office of the Attorney-General mentions nothing in this respect; in other words this information was hidden at the time the detention of Carlos Fernández was being requested.
      • - Therefore, inter alia, the following have been violated: the right to defence, the right to the general jurisdictional court, the obligation of the Office of the Attorney-General to be a party in good faith in the criminal process (article 49 of the Constitution of Venezuela, Nos. 1, 3, 4 and 6).
    • 1075. The Committee notes the Government’s statements according to which: (1) the arrest of Carlos Fernández took place following a legally valid request and was executed by the Office of the Attorney-General of the Republic, in the person of the Sixth Prosecuting Attorney of the Office of the Attorney-General; (2) the proceedings were originally initiated for the offences of instigation to commit an offence, devastation, incitement to conspire and treason against one’s country, at the request of the Office of the Attorney-General of the Republic in accordance with the organic Criminal Procedure Code, accusations brought against him from the accumulated evidence that shows the damage to the country by the sabotage of the oil industry during the public and notorious leadership by Carlos Fernández of the so-called "civic work stoppage" or lockout that took place in December 2002 and January 2003; (3) the trial judge was No. 34 of the criminal jurisdiction of the Metropolitan Area of Caracas who in turn was challenged by the defence lawyers of Carlos Fernández and replaced with trial judge No. 49; (4) this judge did not accept the crimes of treason against one’s country, incitement to conspire (conspiracy) and devastation and upheld the accusations of civil rebellion and instigation to commit offences and detained Carlos Fernández under house arrest while she continued the trial on the basis of blood pressure problems; (5) on 30 January 2003, Mr. Fernández testified as a witness at the Office of the Attorney-General and was then summoned to make another statement as a defendant, a summons that he did not attend to which he did not agree; (6) on 18 February 2003, the representatives of the Attorney-General asked for preventive judicial imprisonment before the court of jurisdiction, proposing that Mr. Fernández be brought before the jurisdictional committee and the judge to rule as appropriate; (7) on 19 February 2003, trial court No. 34 granted the request and issued a warrant to arrest and detain Mr. Fernández; (8) on 20 March 2003, the Appeals Court decided to free Mr. Fernández, withdrawing the charges against him; Mr. Fernández immediately left the country; (9) on 20 March 2003, the Sixth Prosecuting Attorney of the Office of the Attorney-General lodged an appeal for protection of constitutional rights (amparo) with the Constitutional Division of the Supreme Court of Justice, which accepted the allegations of the Office of the Attorney-General of the Republic and once again ordered the house arrest of Carlos Fernández, an order that the Supreme Court of Justice ruled to maintain in a decision read by the President of the Court on 2 August 2003; Mr. Fernández is therefore on the run.
24. 1076. The Committee notes that the Government has sent the decision of the Supreme Court of Justice (8/VIII/03) that revokes the decision of the Appeals Court on procedural grounds (missing the signature of one of the three magistrates (21/III/03) who, for reasons of health, was absent from the court for some hours) but regrets that the Government has not sent the decision of the Appeals Court that ruled on the question of law. The Committee also notes that the Government’s statements did not answer each one of the violations of due process and irregularities that, according to the complainant organization’s annex listed previously, Mr. Fernández had been a victim and it believes that the complainant organization has provided sufficiently convincing evidence of a lack of impartiality in this case. Very specifically, the Committee expresses its surprise that a judge was challenged; three of the charges were suppressed by another judge and the Appeals Court ended up dropping all of them, although the decision of this court was brought before the Supreme Court of Justice, which revoked it for procedural reasons and once again decided at the request of the Office of the Attorney-General (the same prosecuting attorney that had originally accused him of five charges) to order the arrest of Mr. Fernández.
25. 1077. With regard to the question of law, the Committee notes that the point of view of the complainant organizations and of the Government differ, although both match in the arrest of Carlos Fernández, President of FEDECAMARAS, in relation to the national civic work stoppage that took place between 2 December 2002 and the end of January 2003.
26. 1078. The Committee notes the complainant organizations’ statements that the arrest of Mr. Fernández was in retaliation and as discrimination against the exercise by FEDECAMARAS of its right to peaceful demonstration and for its protest activities against the abuses of the Government and the economic and social crisis brought about by the Government’s policies, the lack of dialogue with FEDECAMARAS and the violation of the rights of employers and workers, which culminated in insecurity, violations of private property with invasions of agricultural land and property, encouraged by the Head of State, an increase in poverty and unemployment, public verbal attacks by the Head of State on employers and their leaders, etc.; in this context a number of national civic work stoppages were carried out; the arrest of Carlos Fernández took place following the national work stoppage begun on 12 December 2002 and concluding at the end of January 2003; this stoppage was carried out by the Democratic Organizing Committee that united FEDECAMARAS, the most representative trade union organizations, the main NGOs and the political parties.
27. 1079. However, the Committee notes that the Government maintains that: (1) the objective of the "civic work stoppage" of FEDECAMARAS and the Democratic Organizing Committee (of which it is a part) relates not to trade union purposes but to strictly political, insurrectional, subversive and anti-democratic purposes; the objective of the civic work stoppage which was begun in December 2002 was, on the contrary, the overthrow of the President of the Republic; the objectives were announced in various ways: "to get a recall referendum", "to see the fall of the President" or "for the President to initiate an election process"; (2) on the FEDECAMARAS web site it stated that the civic work stoppage was "our greatest pressure to demand a democratic and electoral outcome to the crisis in the country" and the Democratic Organizing Committee urged the population to continue until the electoral goal was achieved (a recall referendum for the President of the Republic); (3) during the civic work stoppage dissident soldiers in the Plaza Francia in Altamira were implicated in the murders of three young people and in terrorist acts at the Consulate of Colombia and the Embassy of Spain and in other areas; (4) before the civic work stoppage, Carlos Fernández approached the soldiers taking part in the coup of April 2002 in order to "unify criteria" and shortly afterwards he allied himself with those rebel soldiers (who called for civil disobedience with insurrectional objectives) to sign a "democratic agreement" against the Government; the expression "indefinite national work stoppage" was already present in all statements; (5) Mr. Fernández gave public instructions to illegally and fraudulently collect signatures to call for a consultative referendum that they tried to convert to a recall referendum; he publicly encouraged sabotage of the economy, violence and social intolerance; he publicly called for the employers to close their companies (including those producing food and medicines) that were paying wages to workers who did not complete their working hours; he subjected the population to violent closures of motorways and streets; he encouraged fascist sectors to undertake violent closures of businesses, supermarkets, etc., accompanied by municipal police belonging to the opposition during the work stoppage; as a result of the tirades of Mr. Fernández, there were attacks on workers and public transport vehicles and in some cases people were seriously injured; (6) the right to education, freedom of movement and the health of individuals was violated; employers in the country tipped millions of litres of milk into the rivers and other waterways, forcing the population to face a lack of necessary foodstuffs; (7) the right to information, freedom of expression, television and mass media were subject to abuse (and the main protagonists were Mr. Ortega and Mr. Fernández) with subliminal advertising techniques and war propaganda, lies, manipulation and disinformation, incitement to constrain freedom of movement; officials and their families were threatened physically and verbally; the installations of the Oil Refineries of Venezuela company were cut off and sabotaged using terrorist activity causing damage to equipment and the finances of the country (more than 10,000 million dollars) as this company provides 83 per cent of the GDP of the Republic; more than 500,000 labour posts were lost and unemployment increased five percentage points (from 15.7 to 20.7 per cent); the oil industry suffered sabotage to refineries and oil wells and other installations that led to the spillage of crude oil; boats were stopped or sunk; access valves and keys to computer centres in the oil industry were sabotaged; (8) the provision of energy sources to the aluminium and iron industries in Guyana was sabotaged; (9) there was harassment of foreign embassies; campaigns were initiated to encourage non-payment of taxes and social security payments; (10) a restricted work timetable was implemented in financial organizations; a publicity and propaganda campaign against the celebration of Christmas, etc., was carried out.
28. 1080. The Committee is aware that the civic national work stoppages were huge and complex public demonstrations in which not only members of employers’ and workers’ organizations participated but also members of sympathetic political parties, NGOs and where the right to demonstrate was combined with employers’ lockouts and probably indefinite general strikes which lasted, in the case of the national civic work stoppage, from December 2002 to January 2003 - two months.
29. 1081. The Committee notes that the Government has basically described the illegality and illegitimacy of these civic work stoppages from an exclusively political or insurrectional point of view (the aim to overthrow the President of the Republic) and has maintained the legality and the legitimacy of the arrest of Carlos Ortega. In order to deal with those issues, the Committee wishes to highlight a series of issues.
30. 1082. The first issue is that the Constitution of the Republic very generously provides for the right to public assembly without prior permission (article 53) and the right to strike in the public and the private sectors (article 97) and other human rights, and it includes provisions on the recall of all mandates and magistracies through the calling of a referendum (article 72). Also, article 350 provides that "the people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights" (in this respect, a report of the general secretary of the OAS attached by the Government indicates that this provision must not be interpreted as a general right to rebellion). Because this is a recent Constitution, these rights have not been developed in legislation and this (for example, in cases of conflicts of constitutional rights; or of minimum services to be maintained during strikes) leads to confusion and, although it does not justify them, it may explain some of the abuses and excesses referred to by the Government, that the Committee deeply regrets. The second issue is whether the national civic work stoppage was exclusively political and insurrectional as indicated by the Government (in which case, the Committee would not have competence in this issue). In this respect, the Committee emphasizes that the national civic work stoppage did not give rise to any coup d’état and that while the Government has provided information that shows that the main objective was to depose the President of the Republic or achieve a recall referendum, the abovementioned constitutional provisions do not allow for illegality or illegitimacy or the classification of insurrectional nature to be attributed to this objective (or demand) on the hypothesis that it was the only one (moreover, the Government has annexed a political agreement with the support of the OAS) following the national civic work stoppage that the Government signed with the Democratic Organizing Committee - which organized the work stoppage - in which the parties issued a statement against violence and for peace and democracy and propose specifically to contribute to resolving the crisis in the country through the electoral process and refer to the concept of recall referenda (article 72 of the Constitution) if they are formally requested by a minimum number of voters. The Committee emphasizes, however, that the allegations in the present complaint show that FEDECAMARAS and the employers considered the national civic work stoppage directly linked to the social and political acts of the Government and their consequences and to the exclusion of FEDECAMARAS from social dialogue by the Government; moreover, the Government itself has recognized in its reply that it does not accept the legitimacy of the executive committee of the Confederation of Venezuelan Workers (CTV), which also took part in the national civic work stoppage and which is the most representative workers’ confederation (the chronology itself of the statements during the national civic work stoppage, which the Government attached, includes, in the Committee’s opinion, statements vindicating Mr. Fernández that show that the national civic work stoppage was an act of protest by FEDECAMARAS for employer reasons and in fact this official mentions "mistaken economic policies, devaluation, controlled exchange rates ... the objective of the Government is to destroy private enterprise" ... "we do not agree that they continue with the closure of enterprises ..., 40,000 million dollars" are missing "through government mismanagement ..."). Consequently, the Committee cannot share the point of view of the Government that this national civic work stoppage had nothing to do with issues relevant to employers’ organizations. Moreover, the Committee recalls the principle that "in a situation in which workers’ organizations [and employers’ organizations] consider that they do not enjoy the freedoms essential for the performance of their functions, they should be entitled to demand the recognition of these freedoms and such claims should be considered to form part of legitimate trade union activities" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 28].
31. 1083. The third issue refers to the arrest of Carlos Fernández, president of FEDECAMARAS, with regard to which the complainant organizations indicate discrimination and the fact that it occurred as a result of his activities as an employers’ official. The Committee notes that the participation in the civic work stoppage was out of the ordinary (according to statements by the current president of FEDECAMARAS, which appear in one of the Government’s annexes, for some days participation rose to one and a half million people) and notes that the Government states that there was sabotage and violent acts with damage to physical integrity, as well as numerous violations of human rights and enormous economic and job losses. The Committee profoundly regrets this and hopes that those responsible for the crimes will be punished. The Committee notes that the Government ascribes to the president of the CTV and the president of FEDECAMARAS incitement to a large part of the crimes and offences mentioned but it has not proven nor highlighted the specific causal link between the various specific statements ("tirades" according to the Government) or possible acts of the president of FEDECAMARAS and such offences, such that it seems to credit him rather with a non-individualized or causal generic global incitement; moreover, in the chronology of statements during the civic work stoppage sent by the Government as an attachment there is no statement by Carlos Fernández showing calls to violence or the commission of crimes. The Committee recalls that "there should be no confusion between trade unions’ [or employers’ organizations’] performance of their specific functions, i.e. the defence and promotion of the occupational interests of workers [or employers], and the possible pursuit by certain of their members of other activities that are unconnected with trade union functions [or those of employers’ organizations]. The penal responsibility which such persons may incur as a result of such acts should in no way lead to measures being taken to deprive the unions themselves or their leaders of their means of action" [see Digest, op. cit., para. 456]. Moreover, the Committee notes that the Government’s reply seems to show that of the organizations involved in the national civic work stoppage and that made up the Democratic Organizing Committee (FEDECAMARAS, CTV, NGOs, important political parties, etc.), arrest warrants were issued only for the president of FEDECAMARAS and the president of CTV.
32. 1084. Taking all these facts and the specific constitutional context of Venezuela into account, the Committee considers that the arrest of Carlos Fernández, as well as being discriminatory, aimed to neutralize or act as retaliation against this employers’ official for his activities in defence of employers’ interests and, therefore, it urges the Government to take all possible steps to annul immediately the judicial proceedings against Carlos Fernández and to ensure that he may return to Venezuela without delay and without risk of reprisal. The Committee requests the Government to keep it informed in this respect. The Committee deeply deplores the arrest of this employers’ official and emphasizes that the arrest of employers’ officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association, and requests the Government to respect this principle.
    • (d) Conclusions on the allegations relating to discrimination in the application of a new system of exchange control
33. 1085. With regard to the allegations relating to the application of a new system of exchange control in 2001 (suspension of free buying and selling of currencies) unilaterally established by the authorities, discriminating against companies belonging to FEDECAMARAS in the administrative authorization for the purchase of foreign exchange currencies (in retaliation for its participation in the national civic work stoppages), the Committee notes that the Government replies by asking how, following the civic work stoppage (from December 2002 to January 2003), in the last three trimesters of 2003, would they have been able to recover the more than 700,000 posts that were lost after the economic sabotage of the national economy if they had refused companies foreign currencies. The Committee, however, points out that the allegations are based on quoted declarations of the Minister of Production and Trade and the President of the Republic. The Committee has examined elsewhere the justification given by the Government for this system.
34. 1086. Having taken account of the alleged discrimination and serious difficulties expressed by the complainant organizations because of the negative impact in many industries of this system that was unilaterally established by the authorities, the Committee requests the Government to examine with FEDECAMARAS, without delay, the possibility of modifying the current system and that it guarantee, meanwhile, in case of complaints, the application of the same system, without discrimination of any sort, through impartial bodies. The Committee requests the Government to keep it informed in this respect.
    • (e) Conclusions on the allegations relating to the physical, economic and moral harassment (including threats and attacks against the Venezuelan employer sector and its officials by the authorities or people close to the Government); the operations of violent paramilitary groups with governmental support against the facilities of an employers’ organization and against the protest actions of FEDECAMARAS; the dispossessions and occupation of farms in full production that have been allowed or at times encouraged by the authorities in violation of the Constitution and without following legal procedures; the policy of harassment of the private communication sector
35. 1087. The Committee regrets that the Government has not specifically replied to these allegations. In these circumstances, the Committee urges the Government to take the necessary measures, without delay:
    • - to ensure that the authorities do not try to intimidate, pressure or threaten employers and their organizations for their activities with regard to legitimate demands, in particular in the communications and in the agro-industrial sectors;
    • - to carry out, without delay, an investigation with regard to: (1) the acts of vandalism at the premises of the Lasa Chamber of Commerce by Bolivarian groups supporting the regime (12 December 2002); (2) the looting of the office of Julio Brazón, president of CONSECOMERCIO (18 February 2003); (3) the threats of violence on 29 October 2002 by alleged members of the government political party against Adip Anka, president of the Bejuma Chamber of Commerce;
    • - to carry out an investigation, without delay, into the allegations relating to 180 cases (up to April 2003) that have not been resolved by the authorities of illegal invasion of lands in the states of Anzoátegui, Apure, Barinas, Bolívar, Carabobo, Cojidas, Falcón, Guárico, Lora, Mérida, Miranda, Monagas, Portuguesa, Sucre, Taclira, Trujillo, Yanacuy and Zulia, and requests that, in the case of expropriations, it fully respect the legislation laid down and the relevant procedures;
    • - to urgently carry out an independent investigation (by people in whom the workers’ and employers’ confederations have confidence) into the violent paramilitary groups mentioned in the allegations (Coordinadora Simón Bolívar, Tupamaros movements and Círculos Bolivarianos Armados, Quinta República, Juventud Revolucionaria del MVR, Frente Institucional Militar and Fuerza Bolivariana) with a view to dismantling and disarming them and that it ensure that there are no clashes or confrontations between these groups and protesters in demonstrations, and to keep it informed in this respect.
36. 1088. In a general way, the Committee expresses its serious concern about these allegations and at the poor situation of the rights of employers’ organizations, their representatives and their members. The Committee draws the Government’s attention to the fact that "the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations" [see Digest, op. cit., para. 47]. The Committee also underlines 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, due process and the protection of premises and property belonging to workers’ and employers’ organizations, are fully respected and guaranteed. The Committee urges the Government to fully guarantee these principles in the future.