Rapport définitif - Rapport No. 336, Mars 2005

1. 844. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 20 May 2004.
2. 845. The Government sent its observations in a communication of 5 November 2004.
3. 846. 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 complainant’s allegations

1. 847. In its communication of 20 May 2004, the Latin American Central of Workers (CLAT) alleges that on 15 March 2002, the electoral commission of the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO) announced the results of elections to the union’s executive board and swore in the new members. On 23 April 2002, Carlos Viloria and Jesús Pinto filed a complaint regarding the elections with the National Electoral Council (CNE), on the grounds that at one of the voting centres four voting tables were supposed to be set up (there were 1,217 voters), but only one actually was set up, violating the electoral rules and preventing many voters from voting. The National Electoral Council, in a decision dated 5 November 2003, ordered new elections at the centre in question for 19 November 2003, with four voting tables, but upheld the election results at the other voting centres.
2. 848. The president of SUTRASALUD CARABOBO appealed to the Supreme Court of Justice to overturn the CNE decision and initiated constitutional protection (amparo) proceedings, but abandoned these in February 2004 in view of the fact that the Supreme Court did not suspend the new partial elections ordered by the CNE. The president consequently appealed to the CNE which, however, did not respond.
3. 849. The CLAT states that Carlos Viloria and Jesús Pinto, who filed the complaint regarding the elections that took place on 26 March 2002, ceased to be members of SUTRASALUD CARABOBO because they had set up another, parallel trade union body before appealing against the CNE decision; they therefore did not have the status of SUTRASALUD CARABOBO members. This allegation was filed with the National Electoral Council, which nevertheless called for new elections in its decision of 5 November 2003. The elections held on 19 November 2003 at SUTRASALUD CARABOBO Voting Centre No. 10, Section 5, located at the Enrique Tejera de Valencia Hospital Complex, Carabobo State, were disrupted by force by the Ministry of Health, the National Guard and the Directorate of Intelligence and Prevention (DISIP), which acts as the state political police. The complainant states further that:
4. – a DISIP commission under the aegis of the Ministry of Health and assisted by the National Guard, supervised the electoral commission to ensure that ballots were transferred to a location other than the agreed one for counting;
5. – in a commando-style operation, the National Guard, accompanied by activists from the Government’s party (Fifth Republic Movement) assigned more than 300 votes to candidates on List 4;
6. – the headquarters of SUTRASALUD CARABOBO were seized by the National Guard and government party activists and are still held by them.
7. 850. At the same time, candidates on List 3, which represents the electoral group to which the president of the union belongs and which won a majority on the SUTRASALUD CARABOBO executive board in the elections of 26 March 2002, won another resounding victory by a margin of 500 votes which then “disappeared” when a count was conducted by the National Guard and the DISIP. The National Guard and the DISIP appropriated election materials and adjusted the results in favour of List 4 (the government list).
8. 851. Following the seizure by force of SUTRASALUD CARABOBO headquarters by members of the state security forces, the president of the union and other union officers of List 3 were prevented from entering the headquarters for three months. The headquarters have been permanently guarded by the National Guard since 19 November 2003. The doors and padlocks were broken, bars and grilles removed and taken away, and all the furnishings, equipment, archives and other trade union property there were taken or used to help members of List 4.
9. 852. The National Electoral Council certified the results of the elections on 19 November 2003, in a new decision dated 27 February 2004. This means that the authorities endorsed the illegal, arbitrary and violent presence, between 19 November 2003 and 27 February 2004 (three months and eight days), of persons other than permanent members of the SUTRASALUD CARABOBO executive board at the latter’s headquarters (which was guarded by state security forces).
10. 853. For these reasons, the president of the union lodged a complaint against the decision upholding the election results with the Electoral Chamber of the Supreme Court of Justice (at the time of this complaint, the case was at the submission of evidence stage).
11. B. The Government’s reply
12. 854. In its communication of 5 November 2004, the Government provides a copy of Ruling No. 85 of 8 June 2004 by the Electoral Chamber of the Supreme Court of Justice, which concerns issues relevant to the case currently before the Committee on Freedom of Association.
13. 855. In proceedings currently under way before national bodies, in a written communication dated 10 March 2004, José Mogollón, acting in his own name and as president of the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO), lodged an appeal to suspend Decision No. 040122-06 of 22 January 2004, published in the Electoral Gazette No. 189 of 27 February 2004, which had acknowledged the validity of the electoral process. The appeal was based on the following arguments:
14. The appellant made a number of complaints against the partial rerun of elections held by the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO) (underlining added), namely:
15. (i) invalidity of the Trade Union Electoral Commission which conducted the partial rerun of the election;
16. (ii) invalid set up of the voting tables and balloting arrangements, under the terms of section 216 of the Organic Act respecting voting rights and political participation;
17. (iii) invalidity of the votes because of the illegal constitution of the polling station, in accordance with section 218 of the Organic Act respecting suffrage and political participation;
18. (iv) lack of evidence of “other factors adverse to the supposed winning list” owing to interference by the National Guard;
19. (v) inconsistency with the election results;
20. (vi) invalidity of the ballot records; and
21. (vii) ineligibility of Carlos Viloria and Jesús Pinto.
22. 856. These complaints are the basis for the presumed violation of trade union rights. The Electoral Chamber of the Supreme Court of Justice gave the following ruling:
23. According to the jurisprudence of this Electoral Chamber (cf. Ruling No. 117 of 12 June 2002), “acknowledgement of the validity” of a trade union election is a formal act issued by the highest electoral body as the “organizer” of trade union elections (article 293, para. 6, of the Constitution of the Bolivarian Republic of Venezuela), which in accordance with the principle of freedom of association recognized in article 95 of the Constitution implies a ruling to the effect that certain objective criteria have been met for the purpose of determining the representation of the trade union organizations. According to section 56 of the Special Statute for the renewal of the trade union leadership, this means receiving the certificated ballot counts, adjudications and announcements of the results and verifying that the electoral procedure has been followed; it does not imply an exhaustive ruling on the legality of the process in question. Even after such “acknowledgment” has been given, the interested parties can lodge an administrative appeal with the National Electoral Council – provided that statutory time limits for such appeals are respected – against electoral rulings given by trade union electoral commissions. (Underlining added.)
24. 857. For this reason, the Electoral Chamber in its Ruling No. 117 of 12 June 2002 stated that:
25. [...] given that the purpose of this action is to overturn the decision in question, the allegations referred to in the case should be restricted to that decision, to ensure that there is a correspondence between the reported facts of the case and the petition. If there is no such correspondence, the arguments will lack relevance and not be germane to the resolution of the dispute; the court in that case will have to dismiss the arguments, since there will be no logical relationship between the decision and the grounds given for it, and this would be inconsistent with the right to effective judicial protection. (Underlining added.)
26. The Chamber concludes that the appellant’s allegations should have focused on the matter of acknowledgement of the validity of the trade union elections – the act that is being legally challenged – rather than on the elections of the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO), because there has to be a direct correspondence between the reported facts and allegations and the act which is the subject of the complaint, in this case, the act of acknowledgement of the validity of the elections. (Underlining added.)
27. 858. This decision set aside the appeal filed on 10 March 2004 by José Mogollón against the Decision of the National Electoral Council (No. 040122-06) of 22 January 2004, published in the Electoral Gazette (No. 189 of 27 February 2004), which had acknowledged the validity of the elections held by the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO).
28. 859. On the basis of the above, and in the light of the documentation provided, the Government trusts that the complaint will be set aside on the grounds that it is without foundation, given the need for a direct coherence between the facts and allegations made.

C. The Committee’s conclusions

1. 860. The Committee notes that in the present case, the complainant objects to the interference by the authorities following trade union elections held in March 2002 by the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO).
2. 861. The Committee notes the decision of the Electoral Chamber of the Supreme Court of Justice of 8 July 2004, which sets aside the appeal filed on 10 March 2004 by José Mogollón, former president of SUTRASALUD CARABOBO, against the Decision of the National Electoral Council No. 040122-06 of 22 January 2004, published in the Electoral Gazette No. 189 of 27 February 2004, which formerly acknowledged the validity of the elections held by SUTRASALUD CARABOBO on 19 November 2003. These elections were a partial rerun of elections held in March 2002 and were ordered by the National Electoral Council.
3. 862. The Committee notes that, for the reasons indicated in the Electoral Chamber’s decision, reproduced in the Government’s reply, the Chamber has not substantively examined a number of complaints by the appellant (former president of SUTRASALUD CARABOBO) against the partial rerun of the elections held by the Single Trade Union of Workers of Health Care and Private and Public Social Security Institutions in Carabobo State (SUTRASALUD CARABOBO) on 19 November 2003, namely:
   • (i) invalidity of the Trade Union Electoral Commission which conducted the partial rerun of the election;
   • (ii) invalid set up of the voting tables and balloting arrangements, under the terms of section 216 of the Organic Act respecting voting rights and political participation;
   • (iii) invalidity of the votes because of the illegal constitution of the polling station, in accordance with section 218 of the Organic Act respecting suffrage and political participation;
   • (iv) lack of evidence of “other factors adverse to the supposed winning list” owing to interference by the National Guard;
   • (v) inconsistency with election results;
   • (vi) invalidity of the ballot records; and
   • (vii) ineligibility of Carlos Viloria and Jesús Pinto.
4. 863. In his complaint, the former president of SUTRASALUD CARABOBO alleges, for example, that the Electoral Commission did not include the requisite number of members on 19 November 2003, because three of the principle members were prevented from attending the elections, and the ballot records were signed by only two members, in contravention of union rules.
5. 864. The Committee points out that on previous occasions, it has objected to the role assigned by the Constitution and legislation to the National Electoral Council in organizing and supervising trade union elections, including the power to suspend elections; it has considered that the organization of elections should be exclusively a matter for the organizations concerned, in accordance with Article 3 of Convention No. 87, and that the power to suspend elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence and due process. In addition, the complainant has highlighted the presence of and interference by the National Guard and other authorities in the (partial) elections which the National Electoral Council had ordered to be rerun on 19 November at one of the voting centres. The Committee also notes the delays by the CNE, which did not give a ruling on the trade union elections of March 2002 until 5 November 2003, and by the Electoral Chamber of the Supreme Court of Justice, which gave its ruling on 8 July 2004 regarding the CNE decision, but without giving any ruling on the substance of the appellant’s arguments. The Committee greatly regrets the interference by various state authorities, including the National Electoral Council, in the SUTRASALUD CARABOBO elections, and requests the Government in future to refrain from such interference and to ensure that trade union elections can take place without interference by the public authorities, and that any suspension of trade union elections is a matter solely for the judicial authority. The Committee considers, however, given the Electoral Chamber’s ruling in June 2004 and the considerable time that has passed since the elections in March 2002, that it will not recommend a further rerun of the elections.