Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 847. The Committee examined this case at its meeting in June 2008 and presented an interim report to the Governing Body [see 350th Report, paras 1242–1408, approved by the Governing Body at its 302nd Session (June 2008)].
2. 848. In communications dated 19 November 2008 and 13 August 2009, the International Metalworkers’ Federation (IMF) sent a complaint against the authorities of the Secretariat of Labour and some decisions taken by the authorities concerning this case.
3. 849. The Government sent new observations in communications dated 24 November 2008, 29 June 2009 and 22 February 2010.
4. 850. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 851. At its June 2008 meeting, the Committee made the following recommendations on pending issues [see 350th Report, para. 1408]:
2. (a) In light of the new information provided by the Government, the Committee regrets the acknowledgement or registration by the administrative authority of the interim executive committee imposed by the union's General Vigilance and Justice Council (and the consequent removal from office of the executive committee presided over by Napoleón Gómez Urrutia) and considers that the labour authorities engaged in conduct that is incompatible with Article 3 of Convention No. 87, which establishes the right of workers to elect their representatives in full freedom.
3. (b) Observing that the Government does not refer in detail to the various flaws in the election process mentioned by the complainant, except with regard to the alleged forgery of the signature of a member of the General Vigilance and Justice Council, in relation to which it indicates that the injured party initiated penal action, the Committee requests the Government to send its observations in this regard.
4. (c) The Committee deplores the excessive length of the judicial procedures relating to various aspects of this case and the grave prejudice that this has caused to the complainant union and it requests the Government to examine measures with the social partners - legal or other reforms - to guarantee expeditious justice in relation to the exercise of trade union rights. The Committee urges for a rapid conclusion of the judicial procedures.
5. (d) The Committee deeply deplores the death of the worker, Reynaldo Hernández González, expects that the judicial proceedings will be completed as soon as possible and requests the Government to provide a copy of the ruling.
6. (e) The Committee requests the Government to indicate whether the trade unionists captured on 11 August 2007 were released.
7. (f) The Committee requests copies of the decisions handed down by the courts concerning the ballot for the union accreditation for collective agreements in eight enterprises.
8. (g) The Committee requests the Government to provide more detailed information on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in the present collective dispute.
9. (h) Noting with concern the gravity of the other pending allegations in relation to which the Government has not replied in detail and which include arrest warrants, the freezing of union accounts, threats and acts of violence, including the death and injury of trade unionists, the Committee urges the Government to reply to these allegations without delay, to conduct a full and independent investigation and to keep it informed in this respect.
10. (i) The Committee calls on all the parties concerned to continue to make efforts within the existing round of negotiations to resolve the collective dispute to which this case relates.
11. B. New information provided by the complainant federation
12. 852. In its communication dated 19 November 2008, the complainant federation sent a complaint (unsigned and undated) against the authorities of the Secretariat of Labour and Social Insurance to the Attorney-General of the Republic. In its communication dated 13 August 2009, the complainant federation sent the following documents:
13. - A decision of the Eighteenth Criminal Court of the Federal District, of 13 March 2009, in the criminal case against Napoleón Gómez Urrutia et al. for the offence of aggravated management fraud, which revokes the arrest warrant against Napoleón Gómez Urrutia on the ground of failure to establish the corpus delicti.
14. - A decision of the Ninth Criminal Chamber of the Supreme Court of Justice of the Federal District, of 8 December 2008, which confirms a decision revoking the arrest warrant against José Ángel Rocha Pérez (a member of the technical committee of the trust and a member of the executive committee of the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico (SNTMMSRM)) for the offences of management fraud and criminal association.
15. - A decision of the Fourth Collegiate Labour Court of the First Circuit, of 26 March 2007, granting amparo (protection of constitutional rights) to the members of the National Executive Committee of the SNTMMSRM, headed by Napoleón Gómez Urrutia, against the acknowledgement by the administrative authority of the interim appointment of another national executive committee and of the President of the union's General Vigilance and Justice Council; this decision confirms the stay of proceedings issued in the first instance in respect of the administrative authority.
16. C. New reply from the Government
17. 853. In its communications of 24 November 2008 and 22 February 2010, the Government requests that the Committee on Freedom of Association (CFA) take into account the information provided earlier, which shows that Case No. 2478 is an internal union matter and therefore should not continue to be examined. The Government reiterates that the labour authority, as the information provided on the case also demonstrates, has refrained from any action that would limit or hinder the legal exercise of the right of SNTMMSRM members to elect their representatives in full freedom in accordance with the law and the union's statutes, which is consistent with Articles 3 and 8 of ILO Convention No. 87. The Government points out that the apparent and "excessive" length of the judicial procedures relating to various aspects of this case are attributable neither to the labour authority nor to the courts, but to the complainants, which have exercised various legal means and remedies at the corresponding levels to defend the interests of the organization that they represent.
18. 854. These observations are formulated with reference to the statement made by the Government at the 302nd Session of the Governing Body, on 13 June 2008, during the adoption of the Committee's recommendations regarding Case No. 2478, and the additional observations provided to the International Labour Standards Department of the ILO in note No. OGE-03386 of 1 July 2008 on the same issue (the text of the statement is annexed).
19. Recommendation (a) of the Committee on Freedom of Association
20. (a) In light of the new information provided by the Government, the Committee regrets the acknowledgement or registration by the administrative authority of the interim executive committee imposed by the union's General Vigilance and Justice Council (and the consequent removal from office of the executive committee presided over by Napoleón Gómez Urrutia) and considers that the labour authorities engaged in conduct that is incompatible with Article 3 of Convention No. 87, which establishes the right of workers to elect their representatives in full freedom.
21. 855. The Government reiterates that this recommendation is inadequate and subjective, since in Case No. 2478 the Government has not infringed the provisions of Convention No. 87 concerning freedom of association and protection of the right to organize, as the observations provided in July 2008 demonstrate with regard to the actions of the General Directorate of the Registry of Associations of the Secretariat of Labour and Social Insurance (the labour authority), and they even confirm its consistency with Article 3 of Convention No. 87.
22. 856. As shown by the information transmitted to the Committee for its consideration, on various occasions throughout the process leading to the election of officers of the SNTMMSRM, the labour authority's actions have been attentive to the principle of absolute respect for the wishes of the workers to determine freely and independently who should represent them, in conformity with the statutes of this Organization. This principle is envisaged in article 123, subparagraph (A)(XVI), of the Political Constitution of the United Mexican States, in the related sections of the Federal Labour Act (sections 365(III), 371 and 377(II)) and in the internal rules of the Secretariat of Labour and Social Insurance (article 19(I) and (III)), which call for action by the labour authority, bearing in mind the statutes that govern the internal affairs of the mining union SNTMMSRM.
23. 857. Action by the labour authority also arises in connection with the case law and legal opinion referred to below:
24. Trade unions. The labour authority is empowered to check the records of proceedings relating to an election or change of officers in order to ascertain whether the procedure adhered to the statutes or, alternatively, to the Federal Labour Act. … Admittedly, the Federal Labour Act contains no legal provision that expressly empowers the responsible labour authority to acknowledge a change of officers of the trade unions in order to ascertain whether or not the records and documents submitted to it by the trade union representatives comply with the statutory rules; however, such power is clearly inferred from the harmonious and linked interpretation of sections 365(III), 371 and 377(II) of the aforesaid Act, since they establish that, in order to obtain their registration, trade unions must present a copy of their statutes, which must govern fundamental aspects of the union's internal affairs, and must provide notice of changes in their officers "accompanied by authorized copies in duplicate of the respective records of proceedings", requirements which, overall, warrant that the labour authority ascertain whether the procedure for changing or electing officers adhered to the statutory rules reflecting the free will of the union members - especially given the importance of the acknowledgement, since certification confers on those to whom it is granted not only the right to manage the union's assets, but also the responsibility for defending its members and the fate of trade union interests. Accordingly, it is not true that such checking constitutes an intrusion by authority to the detriment of the freedom of association enshrined in the Constitution; nor is it true that the denial of acknowledgement and withholding of certification overturns the election, since that could only be declared by a Conciliation and Arbitration Board through a proceeding in which it hears the affected parties, who in any case can challenge such denial through a petition of rights.
25. Source: Ninth Edition. Level: Second Chamber. Source: Federal Judicial Weekly and its Gazette. Volume: XII, September 2000. Argument: 2a./J. 86/2000. Page: 140. Subject: Labour issues. Case law.
26. [Precedents: Counter-argument 30/2000-SS. Among those upheld by the First Collegiate Labour Court of the First Circuit and the Second Collegiate Court of the Third Circuit. 6 September 2000. Five votes. Rapporteur: Juan Díaz Romero. Secretary: Raúl García Ramos. Case law argument 86/2000. Approved by the Second Chamber of this High Court in a private session held on 13 September 2000.]
27. Trade unions. Acknowledgement. The registering authority shall review only formal aspects of the documentation annexed for that purpose, not questions of fact, as grounds for nullification of the election. In relation to the acknowledgement of a change of trade union officers, in case law 2a/J 86/2000, published in the Federal Judicial Weekly and its Gazette, Ninth Edition, Volume XII, September 2000, p. 140, under the heading "Trade unions. The labour authority is empowered to check the records of proceedings relating to an election or change of officers in order to ascertain whether the procedure adhered to the statutes or, alternatively, to the Federal Labour Act", the Second Chamber of the Supreme Court of Justice established that although the Federal Labour Act does not expressly empower the registering authority to check whether the records and documents submitted by applicants for registration comply with the statutory rules, this power is inferred from the interpretation of sections 365(III), 371 and 377(II) of the legislation in question, from which it concluded that the labour authority can ascertain whether the procedure for changing or electing the officers adhered to those rules. Now, it must be considered that the aforesaid power has as its objective to verify, by checking the records and documents, compliance with the formal aspects of the procedure indicated by the statutes for the election or change of officers, such as whether there was a convocation, whether a meeting was held and whether the leadership whose acknowledgement is requested was elected by a vote of the majority of union members. However, such power does not involve the possibility for the registering authority to decide on questions of fact which some dissatisfied persons might invoke as factors determining the nullification of the election, such as the absence of identification of the workers, the fact that the meeting was not held, that persons voted who were not entitled to vote, among others, since the declaration of nullification or overturning of the election in question is not within the purview of the registering labour authority, but of the Conciliation and Arbitration Board when a labour court proceeding is brought, that is, a dispute between parties in which the latter have an opportunity to present their claims and offer evidence in defence of their respective interests. Fifteenth Collegiate Labour Court of the First Circuit.
28. Source: Ninth Edition. Level: Collegiate Circuit Courts. Source: Federal Judicial Weekly and its Gazette. Volume: XXIII, February 2006. Argument: I.15o.T.10 L. Page: 1921. Subject: Labour issues. Single argument.
29. [Amparo action for review 1875/2005. Aurelio Trejo Tinal. 11 November 2005. Unanimous vote. Rapporteur: Juan Manuel Alcántara Moreno. Secretary: Víctor Carrasco Iriarte.]
30. 858. The foregoing shows that the labour authority, by checking records and documents, has confined itself to verifying compliance with the formal aspects of the union's election procedure based on its statutes.
31. 859. Likewise, the labour authority's actions have met the criteria established by the Committee in the Digest of decisions and principles of the Freedom of Association Committee (fifth revised edition, International Labour Office, 2006) with regard to challenges to trade union elections:
32. 440. Measures taken by the administrative authorities when election results are challenged run the risk of being arbitrary. Hence, and in order to ensure an impartial and objective procedure, matters of this kind should be examined by the judicial authorities.
33. 442. In cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial, objective and expeditious procedure.
34. 860. In accordance with the foregoing, throughout the electoral process, the complainants have exercised the various legal means and remedies envisaged by the legal system to defend the interests of the organization that they represent; hence, the individual guarantees of the complainants involved have been respected in accordance with the principles of legal certainty and the right to a hearing.
35. 861. In this connection, pursuant to a judicial warrant, on 16 April 2007 the labour authority complied with the ruling handed down in amparo action No. 397/06 by restoring the validity of the decisions in which Napoleón Gómez Urrutia was recognized as Secretary-General of the SNTMMSRM.
36. 862. The labour authority carried out this administrative decision completely independently of the other penal proceedings instituted and relating to Napoleón Gómez Urrutia, Elías Morales Hernández and co-defendants, which will have to be examined under the terms of the law. In so doing, it adhered to Article 8 of Convention No. 87, which provides the obligation for workers, employers and their respective organizations to respect the law of the land.
37. 863. For the reasons expressed earlier, it is considered that the Committee's assessment concerning this case may not conflict with its own decisions and the principles it has adopted.
38. 864. Thus, the Government confirms that the acknowledgement by the labour authority complied with the statutes of the SNTMMSRM and that it is consistent with ILO Convention No. 87, particularly Articles 3 and 8, concerning the right of workers to elect their representatives in full freedom, the obligation for the labour authority to refrain from any action that would limit or hinder the legal exercise of that right, and the obligation of workers, employers and their respective organizations to respect the law of the land.
39. Recommendation (b) of the Committee on Freedom of Association
40. (b) Observing that the Government does not refer in detail to the various flaws in the election process mentioned by the complainant, except with regard to the alleged forgery of the signature of a member of the General Vigilance and Justice Council, in relation to which it indicates that the injured party initiated penal action, the Committee requests the Government to send its observations in this regard.
41. 865. In paragraphs 1389 et seq. of its conclusions, the Committee points out irregularities.
42. 866. As already indicated in its communication of 1 July 2008, the Government is willing to provide information, to the extent that the Committee requests, in order to clarify Case No. 2478. Accordingly, in a spirit of continued cooperation with the Committee as a supervisory body, a response is provided below to the alleged irregularities pointed out in the Committee's conclusions.
43. First irregularity
44. 867. The complainant organizations allege that the General Directorate of the Registry of Associations of the Secretariat of Labour and Social Insurance violated Convention No. 87 by "acknowledging" and registering in a flawed and illegal manner an alleged decision - contrary to the statutes - of the complainant union's General Vigilance and Justice Council to remove from office the executive committee presided over by Napoleón Gómez Urrutia and replace it on an interim basis with another executive committee presided over by Elías Morales Hernández.
45. 868. In paragraph 1392 of its conclusions, the Committee deplores the excessive length of the judicial procedures relating to this case and the grave prejudice that this has caused to the complainant union. It requests the Government to examine measures together with the social partners - legal or other reforms - to guarantee expeditious justice in relation to the exercise of trade union rights.
46. 869. The Government states that this issue covers the same ground as the recommendation in subparagraph (a). In the light of the foregoing, the Committee is requested to consider the observations made in that context.
47. Second irregularity
48. 870. The labour authorities failed to rectify that the Secretary-General (Elías Morales Hernández, allegedly expelled from the union in May 2002) and other officials were not active members of the union, as well as the absence of participation by the plenary of the National Executive Committee in the removal from office of the Secretary-General (the complaint indicates that the General Vigilance and Justice Council did not hear the executive committee that it removed from office, and that this was not taken into account by the labour authorities, thereby violating its right of defence).
49. 871. The Government indicates that, as may be inferred from the information it provided to the Committee in note No. OGE-05535 of 1 November 2006, on 17 February 2006, the members of the General Vigilance and Justice Council of the SNTMMSRM requested the labour authority to acknowledge the decisions adopted on 16 February 2006, consisting of sanctions and the removal from office of the titular and substitute members of the National Executive Committee, as well as the President of the General Vigilance and Justice Council and his substitute, and the appointment of new members of the committee and of the President of the General Vigilance and Justice Council, with other persons appointed on an interim basis to fill the executive positions, under the leadership of Elías Morales Hernández.
50. 872. The labour authority, respecting the wishes of the workers as expressed through the decisions of their competent internal body, after examining in good faith the documentation submitted and ascertaining that it complied with the legal requirements and the terms of the union's statutes, decided to acknowledge the decisions taken on 16 February on an interim basis until the appointments were approved or amended by the next national assembly. Lastly, the labour authority, complying with the decision issued by the judicial authority on 16 April 2007, set aside the acknowledgement granted to the interim national executive committee of the SNTMMSRM under the leadership of Elías Morales Hernández, as a result of which Napoleón Gómez Urrutia was definitively reinstated in his trade union rights as Secretary-General of the SNTMMSRM. Thus, the Committee is requested to disregard this irregularity.
51. Third irregularity
52. 873. The labour authorities were unaware that one of the two signatories of the decision removing the National Executive Committee from office certified before a notary that he had not signed the document and an expert examination of the handwriting found that the signature was false.
53. 874. In paragraph 1393 of the conclusions, the Committee requests the Government to keep it informed of the outcome of the criminal action for the falsification of documents brought by one of the members of the union's General Vigilance and Justice Council.
54. 875. In order to place its response in context, the Government refers to paragraph 1285 of the report, relating to the allegations made by Napoleón Gómez Urrutia, which reads as follows:
55. The Government indicates that it gave full support and provided the facilities so that an expert examination could by [sic] carried out by the Office of the Attorney-General of the Republic to determine whether or not a fake signature of Juan Luis Zúñiga Velásquez was contained in the documentation submitted for the removal from office and appointment of members referred to in the acknowledgement issued on 17 February 2006. The Government nevertheless fails to mention that, on 3 March 2006, Juan Luis Zúñiga Velásquez notified the General Directorate of the Registry of Associations that, in his capacity as first member of the General Vigilance and Justice Council, he never signed any document for the removal from office and penalization of Napoleón Gómez Urrutia or any member of the National Executive Committee, nor did he appoint on an interim basis other persons to executive posts in the union. The General Directorate never took these facts into account.
56. 876. In this respect, the Government stresses that in amparo action No. 397/06, filed in the Fourth Collegiate Labour Court of the First Circuit, by which the alleged unconstitutionality of the decision of 17 February 2006 was contested, the evidence presented was inadequate to establish the alleged falsification of the signatures of Zúñiga Velásquez; therefore the labour authority, not perceiving that there was an obvious discrepancy between the signatures that were submitted to it and those contained in its files, was not empowered to order that expert examinations be carried out or to contest ex officio the signatures submitted. Nevertheless, in accordance with section 604 of the Federal Labour Act, the Federal Conciliation and Arbitration Board is empowered to address labour disputes between various groups of workers, such as internal union disputes. Therefore, the authenticity of Zúñiga Velásquez's signatures could have been established in the corresponding procedural phases of a labour court proceeding. It must be pointed out that, in the final decision of 26 March 2007, the Fourth Collegiate Labour Court of the First Circuit granted amparo and the protection of the federal courts (file No. RT 64/2007) to Napoleón Gómez Urrutia and other co-complainants on the ground of formal aspects of the decision of 17 February 2006, but it did not examine issues relating to the alleged falsification of Zúñiga Velásquez's signatures. Furthermore, to date there is no court ruling which finds that Zúñiga Velásquez's signatures were falsified or invalid.
57. Fourth irregularity
58. 877. The complainant organizations denounce the negative attitude of the authorities towards the two general assemblies, one ordinary and the other extraordinary, which in March and May 2006 came out in favour of the return of the executive committee that had been removed and, in particular, deny that the quorum was not achieved, referring in this respect to a union census from the year 2000 which was outdated.
59. 878. With regard to this allegation, the Government notes that, in paragraph 1394 of its conclusions, the Committee sets aside this aspect of the allegations, taking into account the contradictions between the complainants' version and that of the Government on whether or not the statutory quorum was met for these assemblies to be validly constituted, and as these matters are no longer timely, the Committee considers that it is not necessary to pursue its examination of the allegations relating to the assemblies.
60. Fifth irregularity
61. 879. The allegation of the misappropriation of the union's trust fund of US$55 million, which was alleged to be at the origin of the removal from office of the executive committee by the General Vigilance and Justice Council, was based on false documents; there was also the failure to disclose a report by the National Banking and Currency Commission which confirmed that the union leader Napoleón Gómez Urrutia had not committed the offence of money laundering in relation to the trust fund of US$55 million, and an investigation is being carried out of the former Federal Prosecutor of Mexico and the Deputy Prosecutor-General for the alleged failure to disclose the report.
62. 880. The Government states that, according to information provided by the Units Specializing in Investigation of Fiscal and Financial Offences and Offences Committed by Public Employees, Including Obstruction of Justice, of the Office of the Attorney-General of the Republic, after carrying out an analysis, they reported that they have no information on the matters in question.
63. 881. Nevertheless, it must be noted that the Federal Conciliation and Arbitration Board is dealing with various legal actions against the union SNTMMSRM in relation to the provisional seizure of accounts of the mining union's trust fund of US$55 million, the procedural phase of which consists of the following:
64. (1) The principal action consists in the payment of the proportional share of 5 per cent of the shares, amounting to US$55 million, negotiated to the benefit of the workers of the Compañía Minera de Cananea SA de CV in the agreements dated 24 August 1990, in compliance with the actions taken by the First Bankruptcy Court on 16 August 1989 and 24 August 1990.
65. (2) The dispute is currently being examined in 21 cases, most of which are filed with Special Board No. 10, except for one which is filed with Special Board No. 47, located in Cananea, Sonora. The cases involve approximately 5,900 workers. It must be noted that there are four cases filed with Special Boards Nos 10 and 47 in which the actors have abandoned legal action.
66. (3) None of the 22 cases that are being processed has been able to lead to a preliminary decision, since in none of them has a hearing begun for the taking of evidence. It must be emphasized that the delay in the procedure is not attributable to the Board, since these judicial proceedings were brought by several actors against defendants and co defendants, in addition to which various delaying actions have been lodged, among which are the following:
67. - In three judicial proceedings, a procedural issue concerning lack of legal personality was raised against the SNTMMSRM delegation. The personality of the trade union delegation headed by Napoleón Gómez Urrutia was recognized under the terms of the final decision dated 26 March 2007, issued by the Fourth Collegiate Labour Court of the First Circuit in review No. RT 64/2007.
68. - In three judicial proceedings, a motion for consolidation was made.
69. - In four judicial proceedings, summonses were issued to third parties allegedly concerned.
70. - In eight judicial proceedings, a procedural issue was raised concerning material competence, in the course of which it became clear that Special Board No. 10 has decided to uphold it. The possibility cannot be excluded that the competence issue is the reason for challenging the findings on the merits, since it may be considered that the competence to resolve these disputes falls to the administrative and/or fiscal authorities.
71. - Fifteen cases originate from Special Board No. 47, located in Cananea, Sonora; four from Special Board No. 34, located in San Luis Potosí, San Luis Potosí; and two cases originate from Special Board No. 19, located in Guadalupe, Nuevo León, as a result of which Special Board No. 10 has ordered 21 personal notifications to be served by means of a warrant through the aforesaid special boards.
72. - On various occasions, hearings have been postponed at the request of the parties, on the ground that they were involved in conciliatory discussions.
73. 882. In this regard, various provisional decisions have been taken:
74. - In Special Board No. 19, two actions were brought against the SNTMMSRM in which a provisional decision was requested, consisting in the provisional seizure of the mining union's accounts. These actions were filed under Cases Nos 295/06 and 1488/06.
75. - The provisional seizures were processed and authorized by the President of Special Board No. 19, in the amount of US$196,090,713 and US$18,363,618, respectively. The National Banking and Currency Commission reported that the seized accounts of the SNTMMSRM were treated as if they were combined, up to the amount required.
76. - As a result of the procedural issues concerning territorial competence, Cases Nos 295/06 and 1488/06 were transmitted to Special Board No. 10, which assigned to them Cases Nos 216/06 and 498/07, respectively.
77. - In Case No. 498/07, an application for review of implementing acts was submitted to the President of the Special Board, and therefore it was not admitted. The case subsequently came before the Special Board, but not in due time, and therefore it was dismissed. The decision on dismissal was not appealed.
78. - In Case No. 216/06, an application was lodged for review of implementing acts, which was declared not receivable. In this case there is an indirect amparo action, which was filed in the Fifth District Labour Court of the Federal District under No. 191412007. The SNTMMSRM brought a complaint before the Fourth Collegiate Labour Court of the First Circuit against the decision issued by the District Court which is addressing the indirect amparo action, in which the motion requesting clarification of the impugned act was held not to have been submitted; this appeal was declared not receivable, as a result of which processing of the indirect amparo action continued. No ruling has been issued; however, the parties, who will be under the jurisdiction of the collegiate courts, have a remedy of review.
79. Recommendation (c) of the Committee on Freedom of Association
80. (c) The Committee deplores the excessive length of the judicial procedures relating to various aspects of this case and the grave prejudice that this has caused to the complainant union and it requests the Government to examine measures with the social partners - legal or other reforms - to guarantee expeditious justice in relation to the exercise of trade union rights. The Committee urges for a rapid conclusion of the judicial procedures.
81. 883. In addition to what is stated in the Government's observations sent in July 2008, the Government points out that this issue is also discussed in subparagraph (a) of the recommendations. In the light of the foregoing, the Committee is requested to consider as recapitulated here the points made in relation to the legal deadlines that judicial proceedings in Mexico must observe.
82. Recommendation (d) of the Committee on Freedom of Association
83. (d) The Committee deeply deplores the death of the worker, Reynaldo Hernández González, expects that the judicial proceedings will be completed as soon as possible and requests the Government to provide a copy of the ruling.
84. 884. As reported to the Committee in note No. OGE-05415 of 27 November 2007, the Government deplores the death of Reynaldo Hernández González, and reiterates that both the federal and the local authorities will continue their efforts to conclude preliminary investigation No. 208/07 into the person or persons responsible for the criminal manslaughter of Reynaldo Hernández González, which investigation, once it has been concluded, will be brought to the Committee's attention.
85. Recommendation (e) of the Committee on Freedom of Association
86. (e) The Committee requests the Government to indicate whether the trade unionists captured on 11 August 2007 were released.
87. 885. In its note No. OGE-02191 of 2 May 2008, the Government informed the Committee that, according to preliminary investigation No. 208/07 by the Agency of the Public Prosecutor located in Cumpas, Sonora, seven persons were detained on the scene of the events. They were detained solely in accordance with the terms and conditions established by the legal provisions and were released shortly afterwards. During the adoption of the 350th report of the Committee, on 13 June 2008, it was considered that there was information provided by the Government that apparently had not been considered by the Committee. In note No. OGE-03386 of 27 June 2008, the Government stated that it did not concur with the significance that was being given to this issue. It recalled that the Committee had been informed in due time that the persons in question had been released. It explained that the detention had lasted a few hours, as provided by law, and that once that period had elapsed, they had been released. In this connection, the Government wishes to reiterate that the information it provided was not fully appreciated by the Committee and therefore the recommendations in its report concerning Case No. 2478 are unwarranted and hardly objective. In the light of the foregoing, the Committee is requested to annul this recommendation.
88. Recommendation (f) of the Committee on Freedom of Association
89. (f) The Committee requests copies of the decisions handed down by the courts concerning the ballot for the union accreditation for collective agreements in eight enterprises.
90. 886. In paragraph 1401 of the conclusions, the Committee notes that the complainant union lodged amparo actions against the corresponding decisions of the Federal Conciliation and Arbitration Board which are currently under review. Accordingly, it requests the Government to provide copies of the respective rulings of the judicial authorities.
91. 887. The Government states that, as in the case of subparagraph (e) of the recommendations, relating to the release of the trade unionists detained on 11 August 2007, the Committee failed to take into account the information transmitted by the Mexican Government in its note No. OGE-02191, of 2 May 2008, in which it provided information related to the registration by the National Union of Mine Exploration, Exploitation and Production Workers of the Republic of Mexico (SNTEEBMRM) of eight collective labour agreements concluded by the SNTMMSRM and the enterprises Industrial Minera México, SA de CV (Planta San Luis, Planta Nueva Rosita, Refinería Electrolítica de Zinc and Unidad Charcas); Mexicana de Cobre, SA de CV (Planta Beneficiadora de Concentrados, Planta de Cal and Unidad la Caridad); and Minerales Metálicos del Norte, SA de CV
92. 888. The information on this process is reiterated chronologically below in the expectation that the Committee will take it into consideration this time. Detailed information can be consulted in the Government's submission of 2 May 2008.
93. - On 29 June 2007, before the Federal Conciliation and Arbitration Board, the SNTEEBMRM requested the registration of eight collective labour agreements.
94. - On 5 September 2007, the Federal Conciliation and Arbitration Board issued the certification of the ballot in which the workers in each of the eight work centres freely and transparently cast their votes to choose the union to which they wished to belong.
95. - On 15 October 2007, the Federal Conciliation and Arbitration Board notified the parties of its findings, in which it declared the SNTEEBMRM to be the new accredited party to the collective labour agreements in eight enterprises of the Grupo Minera México, in place of the SNTMMSRM, which was replaced as of that date as the accredited trade union in those work centres.
96. - In order to contest the foregoing, the SNTMMSRM lodged direct amparo actions against the decisions of the Federal Conciliation and Arbitration Board, which are currently under review before the competent jurisdictions and which, once they have been resolved, will be brought to the Committee's attention.
97. Recommendation (g) of the Committee on Freedom of Association
98. (g) The Committee requests the Government to provide more detailed information on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in the present collective dispute.
99. 889. In paragraph 1405 of the conclusions, the Committee reiterates its previous conclusions on justice delayed and the need for expeditious judicial procedures, and also requests the Government to provide more detailed information on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in the present collective dispute (in respect of which the Government has only denied the intervention of the army and refers to the presence of public security forces to guarantee the right to work of non-strikers).
100. 890. The Government states that the strike in the Cananea mining unit in Sonora began on 30 July 2007, as a result of the proceedings brought by the SNTMMSRM before the Federal Conciliation and Arbitration Board. The existing disputes between the SNTMMSRM and the enterprises holding the mining concessions, Industrial Minera México, SA de CV. and Mexicana de Cananea, SA de CV, led to the unjustified calling of the strike in question, which in due course was declared illegal by the Federal Conciliation and Arbitration Board because it was in conformity with neither the letter nor the spirit of the provisions laid down in respect of strikes in the Political Constitution of the United Mexican States and the Federal Labour Act. This strike was declared legal by the federal judiciary. In the light of the foregoing, the Federal Conciliation and Arbitration Board complied with the judicial decision.
101. 891. With a view to seeking a solution to this dispute, during 2007 and 2008, at the invitation of the labour authority, more than 30 working meetings were held in which representatives of the parties, jointly or separately, government conciliators and the Secretary of Labour and Social Insurance participated. In addition, Sergio Tolano, secretary of Branch No. 65 of the SNTMMSRM in Cananea, was invited to a meeting in order that, with the participation of federal and local authorities, a solution might be found for the Cananea mine, a meeting which Mr Tolano did not attend. Against the backdrop of the efforts to settle this dispute, the particular interest of the SNTMMSRM in conditioning the negotiations on labour issues on the penal problems of its former Secretary-General, Napoleón Gómez Urrutia, invariably made itself felt.
102. 892. The labour authority regrets that the work stoppage in this mine is still continuing, while reiterating its willingness to address the labour disputes between the aforesaid enterprises and the SNTMMSRM so that they might give priority to dialogue in the search for a solution, as the SNTMMSRM was urged to do by its secretary of labour, Javier Zúñiga García, who was elected at the recent Ordinary General Assembly held in May 2008, although that exhortation went unheeded.
103. 893. The labour authority reiterates its entire willingness to address this matter, to which end it has urged the parties on various occasions to resume negotiations with a view to achieving a satisfactory solution to the existing labour issues. This is the case with regard to the strike in the Cananea mining unit, in which the labour authority, on 8 October 2008, again invited Sergio Tolano, the local leader in Cananea, to a meeting to be held at the state government offices in Hermosillo, Sonora, for the purpose of holding talks aimed at resolving the dispute.
104. 894. However, Mr Tolano reiterated his position that this invitation would have to be addressed to his Secretary-General, Napoleón Gómez Urrutia. In taking this position, the SNTMMSRM seeks to condition a solution to the labour issue on recognition of Gómez Urrutia as Secretary-General of the union, when it is public knowledge that the labour authority denied his request for acknowledgement owing to his infringement of various provisions of the Political Constitution of the United Mexican States, the Federal Labour Act and the union's statutes.
105. 895. This new sign of intransigence on the part of the SNTMMSRM shows a lack of commitment to its members and their families, whose economic circumstances have been affected more than a year after the strike was called. In order to put an end to a strike movement, the labour laws require that the workers express a wish to do so; the participation of the authorities alone is not sufficient to resolve a dispute of this nature. It is therefore incumbent upon the SNTMMSRM and the aforesaid enterprises to adopt a proactive attitude towards negotiation so that agreements on a solution can be reached, since the labour authority does not have direct powers to resolve disputes unless the parties so wish. It must be considered that the economic and social consequences arising from the suspension of activities in these mines have seriously affected the mineworkers and their families, as well as Mexico's mining and metallurgy production, and therefore it is essential to end the strikes.
106. 896. With regard to the alleged violent expulsion of strikers from the mine in question, in the aforementioned note of 2 May 2008, the Government provided information in this respect. It also wishes to reiterate its categorical denial of the allegation in the IMF's communication that 700 members of the armed forces of the army and the federal security forces were called to expel the strikers.
107. Recommendation (h) of the Committee on Freedom of Association
108. (h) Noting with concern the gravity of the other pending allegations in relation to which the Government has not replied in detail and which include arrest warrants, the freezing of union accounts, threats and acts of violence, including the death and injury of trade unionists, the Committee urges the Government to reply to these allegations without delay, to conduct a full and independent investigation and to keep it informed in this respect.
109. 897. In paragraph 1395 of the conclusions, the Committee notes with concern that the Government has not replied in the context of the present case to other grave allegations made by the complainants. The Committee therefore urges it to reply without delay to the allegations concerning:
110. Pending allegation 1
111. - the armed assault on the main offices of the complainant union by Elías Morales and armed accomplices, including the ransacking, theft and destruction of confidential information; four of the attackers are alleged to have been arrested, but then released two hours later;
112. 898. The Government states that the Offices of the Central Investigators for Financial Offences, Minors, Vehicle Theft and Transport and Special Matters, of the Office of the Attorney-General of the Federal District, reported that they have no record of any preliminary investigations opened in connection with such incidents, and that there is no record of any investigation of Elías Morales on the ground of the alleged incidents that occurred in the main offices of what is now the SNTMMSRM in the city of Mexico on 17 February 2006. Because of the gravity of the case, the Government is surprised that no legal representative of the SNTMMSRM has presented any complaints to the corresponding authorities regarding the incidents mentioned, which may be reflected in a certain inconsistency in the interest shown by that union.
113. Pending allegation 2
114. - the illegal freezing of the bank accounts of the union, of Napoleón Gómez Urrutia and other union leaders;
115. - the maintenance of charges against the Secretary-General of the union, Napoleón Gómez Urrutia, for the misappropriation of the union's trust fund of US$55 million on the basis of false documentation and the manipulation of the legal system;
116. - the arrest warrants issued against the union leader, Napoleón Gómez Urrutia, based on the failure of the authorities to disclose reports and despite the fact that an independent hearing had exonerated him of all charges in relation to the US$55 million fund referred to above (the criminal charges have been withdrawn by four federal judges, but remain pending in Sonora and San Luis Potosí).
117. 899. In paragraph 1396 of the conclusions, the Committee emphasizes that, in view of the long period that has elapsed since the arrest warrants were issued and the fact that the investigation is still continuing, in at least two jurisdictions, into matters related to the trust fund of US$55 million, justice delayed is justice denied, and urges for a rapid conclusion of the judicial procedures. The Government states that, as shown by the information provided in connection with the fifth irregularity of paragraph (b) of the recommendations, there are legal grounds which demonstrate that the freezing of the bank accounts of the SNTMMSRM is lawful, as is the provisional seizure of the union's trust fund of US$55 million by the Federal Board of Conciliation and Arbitration. It must be recalled, moreover, that Napoleón Gómez Urrutia has not two, but three arrest warrants pending against him: one from 3 July 2006, issued by the Thirty-second Criminal Court of the Federal District for the offence of management fraud; one from 12 July 2006, issued by the Fifth Criminal Court in San Luis Potosí (currently the Eighteenth Criminal Court of the Federal District as the substitute authority) for the offence of specific fraud in the degree of co-participation; and one from 18 May 2006, issued by the Second Criminal Court of First Instance in Hermosillo, Sonora, for the offence of specific fraud in the form of management fraud and criminal association. Against these warrants, Gómez Urrutia brought amparo action No. 907/2008, filed in the Eighth District Criminal Court of the Federal District. On 15 October 2007, the District Amparo Court granted him amparo and the protection of the federal courts, a decision that was, in turn, appealed by the Agent of the Federal Public Prosecutor. The remedy of review was filed under No. RP201/2007 in the Eighth Collegiate Criminal Court of the First Circuit, which, on 24 March 2008, decided to rescind the ruling and order the reinstatement of the proceeding; accordingly, the decision granting amparo was set aside, and the arrest warrants remain in force.
118. 900. In its communication of 22 February 2010, the Government challenges once again the receivability of the complaint. The Government explains that, up to January 2010, four arrest warrants have been issued against Mr Gómez Urrutia, two at the federal level and two at the local level. The competent authorities ordered the freeze of the bank accounts of the SNTMMSRM to protect the workers affected by a presumed fraud.
119. - At the local level, Penal Courts Nos 32 and 51 of the Federal District have issued one arrest warrant each against Mr Napoleón Gómez Urrutia and Mr Juan Linares Montufar, for, inter alia, fraudulent administration of trust fund No. 9645-2. Mr Linares Montufar lodged a remedy of review (amparo), which was refuted in May 2009 by Criminal District Court No. 13 of the Federal District, thus confirming that there were elements pointing to the responsibility of the accused persons as regards the charges filed against them. On 18 January 2010, the Ninth Chamber of the High Court of Justice of the Federal District decided to quash the arrest warrant issued for fraudulent administration by Penal Court No. 51 of the Federal District, although the decision did not close the case and the competent authorities might appeal it.
120. - At the federal level, District Court No. 1 for Federal Penal Proceedings of the Federal District (hereinafter District Court No. 1 FPPFD) issued on 3 September 2008 an arrest warrant against Mr Napoleón Gómez Urrutia and two other persons for the federal offence of mismanagement of the aforementioned trust fund. In turn, District Court No. 9 for Federal Penal Proceedings of the Federal District also issued on 3 September 2008, in penal case No. 105/2009, an arrest warrant against Mr Gómez Urrutia for the offence of activities with funds of illicit origin such as acquisition, exchange, deposit and transfer.
121. - The Prosecutor-General of the Republic informed, via Notice of 21 June 2009, that District Court No. 7 for Penal Amparo Proceedings of the Federal District has issued the amparo ruling No. 866/08 and its annexed cases Nos 867/08, 883/08 and 884/08, granting amparo to Mr Héctor Félix Estrella, Mr Napoleón Gómez Urrutia, Mr Juan Linares Montufar and Mr José Ángel Rocha Pérez against the arrest warrants issued by District Court No. 1 FPPFD. However, the ruling of District Court No. 7 indicates that the competent court shall issue a new decision with full jurisdiction, which means that District Court No. 1 FPPFD would be able to issue new arrest warrants against the accused persons, once the established irregularities have been rectified.
122. 901. The Government adds that, in December 2008, the extradition of Mr Napoleón Gómez Urrutia has been formally requested from the Government of Canada, based on the arrest warrant issued by District Court No. 1 FPPFD, although the warrant was subject to appeal. This has been done in view of the fact that the offence for which extradition has been requested is a federal offence that is considered as a serious one, in conformity with section 113bis in conjunction with section 112(4) of the Financial Institutions Act. Mr Napoléon Gómez Urrutia, then Secretary-General of the SNTMMSRM and member of the technical committee of the abovementioned trust fund, is presumably responsible for the inappropriate use and securing of the resources of the clients of a financial institution, in that he fraudulently disposed of US$55 millions that constituted the trust fund and were the property of the workers affiliated to the said trade union. The measures taken by the Government of Mexico regarding the arrest warrants against Mr Napoleón Gómez Urrutia and others, are strictly in line with the principles of legality and transparency.
123. 902. The Government considers that the information supplied in the last communication of FITIM shows that the legal remedies provided for in the national legal system have been exhausted, which means that the actions undertaken by the Mexican authorities are in conformity with the principle of legality laid down in Convention No. 87. There are four valid arrest warrants against Mr Napoléon Gómez Urrutia and other members of the SNTMMSRM for various offences, following the claim of 6,464 mine workers requesting reimbursement of US$55 million that were unduly debited from the trust fund of which they are beneficiaries. The objective of the request addressed at the Government of Canada for the extradition of Mr Napoléon Gómez Urrutia, is that he finally faces the charges filed against him before Mexican courts according to national law.
124. 903. As may be observed, the alleged excessive delay in the administration of justice was not attributable to the competent authorities, but rather to the various remedies used by the complainant in the courts.
125. Pending allegations of the IMF
126. 904. In paragraphs 1406 and 1407 of the conclusions:
127. The Committee requests the Government to reply without delay to the remaining allegations of the IMF of 28 January 2008 relating to:
128. - the death threats, abductions, illegal arrest and beating of miners belonging to the union and their families;
129. - the abduction, beating and death threats against the wife of Mario García Ortiz, member of the executive committee of the complainant union, on account of "her husband's errors"; she was able to escape, but there was no investigation.
130. The Committee urges the Government to carry out a full and independent investigation without delay into all of the pending allegations and to keep it informed in this respect.
131. 905. The Government states that, following a review of the communication submitted by the IMF to the International Labour Office on 29 January 2008, including its annexes, it is necessary to reiterate what was stated in the observations transmitted by the Government to the Committee in note No. OGE-02191 of 2 May 2008, in the sense that none of these documents contain new allegations relating to Case No. 2478, since they are not related to the facts that gave rise to the complaint, for which reason it again requests the Committee to disregard the communication. It is appropriate to recall that Case No. 2478 had its origins in a complaint alleging that the Mexican Government had intervened in the appointment of the Secretary-General of the SNTMMSRM, allegedly to the prejudice of Napoleón Gómez Urrutia, who had been occupying that post. Nevertheless, with a view to contributing in good faith to the work of the Committee, the Government provides the following information:
132. - In relation to the alleged death threats, abductions, illegal arrest and beating of miners belonging to the union and their families, the Government has no reliable documentation that would enable it to conduct a full and independent investigation into these matters. In this connection, it would be grateful if the Committee could provide additional information in that regard, if it has any.
133. - With respect to the case concerning the wife of Mario García Ortiz, from the documentation provided by the IMF in its communication, it may be inferred that there is a preliminary investigation No. 65/2007, which was initiated on 2 February 2007 by the First Agency of the Public Prosecutor's Office, located in Lázaro Cárdenas, Michoacán. The Government will again consult with the corresponding authority in this regard.
134. Pending allegation of the IMF
135. - the assault on 20 April 2006 by the forces of order on strikers engaged in protest action in the Sicausta steelworks in the city of Lázaro Cárdenas in which the police and soldiers injured over 100 workers and killed two after opening fire.
136. 906. The Government states that in note No. 02191 of 2 May 2008, it transmitted to the International Labour Office preliminary comments on this issue. Of the incident which occurred on 20 April 2006 at the Sicartsa [sic] steelworks in the city of Lázaro Cárdenas, State of Michoacán, three elements stand out which refute the IMF's statement:
137. - With reference to the alleged intervention of troops, the Government reports that there is no record of the participation of elements of the Mexican army in this confrontation, since the incident involved the participation of the Federal Preventive Police of the Federal Secretariat of Public Safety and Security and the police of the State Government of Michoacán, which refutes the statement referring to the participation of soldiers.
138. - One cannot speak of an assault on or a confrontation with strikers, since notice of the strike referred to by the SNTMMSRM had not been issued, as shown by the certification of 18 April 2006, drawn up by the Secretary of Agreements attached to the Deputy Secretariat of Strike Notices of the Federal Conciliation and Arbitration Board, by which it is established that no record of any strike notice issued by the SNTMMSRM, Branch No. 271, against the enterprise Servicios Siderúrgica Lázaro Cárdenas - Las Truchas, SA de CV appears in the strike notice information and monitoring system or in the logbook of the Deputy Secretariat of Strike Notices after a search was conducted from 1 January 2006 to 18 April 2006.
139. - According to the Political Constitution of the United Mexican States, "An assembly or a meeting the purpose of which is to present a petition or a protest against an act or authority shall not be deemed illegal and may not be dissolved unless insults are addressed to such authority or violence or threats are used to intimidate it or compel it to take the desired decision" (article 9).
140. Participation of the Federal Preventive Police
141. 907. With respect to the events that occurred on 20 April 2006 as a result of the confrontation between the federal and local public security forces and workers employed by the enterprises Siderúrgica Lázaro Cárdenas - Las Truchas, SA de CV, Asesoría Técnica Industrial del Balsas, SA de CV, and Administración de Servicios Siderúrgicos, SA de CV (Sicartsa), the Federal Secretariat of Public Safety and Security provides the following information.
142. 908. The intervention of the Federal Preventive Police was due to:
143. (a) The criminal charges filed with the Office of the Attorney-General of the State of Michoacán by the legal representatives of the affected enterprises against various workers on the ground of their alleged responsibility for the offences of unlawful exercise of their rights, attacks on communication routes, damage to property, plunder and criminal association; and
144. (b) The powers expressly conferred on the Federal Preventive Police by the respective Act, which empowers it to prevent the commission of offences and administrative faults; to intervene in matters of public safety and security; to ensure, maintain and restore public order and peace; to safeguard personal integrity; to prevent the commission of offences against communication routes; to participate in joint operations with other police agencies; and to cooperate in high-risk situations at the request of the competent authorities.
145. 909. In this sense, the actions of the Federal Preventive Police responded to the flagrantly illegal actions of the strikers, which affected not only the operation of the enterprises but also general communication routes, such as federal highways, the Port of Lázaro Cárdenas, and communication routes in the city, through permanent blockades, which resulted in the alleged criminal responsibility defined in the corresponding sections of Title V of the Federal Penal Code, relating to offences against communication routes and connections, as well as those provided in the General Communication Routes Act.
146. 910. The intervention of the Federal Preventive Police also arose from the flagrancy of the possession by the demonstrators of explosives such as Molotov cocktails, firecrackers and other firearms, which is in contravention of the Federal Firearms and Explosives Act and its regulations. In addition, the use and detonation of these firearms was established by the testimony of the police officers who participated, which is included in the ministerial statements contained in preliminary investigation No. 199/2006-VII/06-VII of the Office of the Attorney-General of the State of Michoacán.
147. 911. According to the statement given to the Public Prosecutor's Office on 20 April 2006 by ministerial police officer Roberto Cuellar Jiménez, in which he declares that the miners were armed with handguns and shotguns, it may be inferred that there were workers who carried and activated firearms; this is also corroborated by the statements of some police officers and is covered by articles 7 and 8 of the Federal Firearms and Explosives Act, which provide for the obligation to report and register such weapons with the Secretariat of National Defence, and by the prohibition against possession and carrying of the weapons prohibited by this act and those reserved for the exclusive use of the army, navy and air force. The flagrancy also fits the hypothesis envisaged in article 160 of the Federal Penal Code, since in addition the workers used stones and homemade pellets, which are solid metal balls of various dimensions and sizes that are launched in waves and act as highly dangerous and sometimes lethal projectiles. Various workers also used machetes, sticks and other objects, including a backhoe, which was used by one miner solely for the purpose of assaulting the police; accordingly, several members of the Federal Preventive Police sustained injuries, including contusions, fractures and blunt force wounds, from the attacking workers.
148. 912. It was also considered that the industrial facilities of the enterprises involved are regarded as strategic, and that the failure to maintain them would pose a high risk of causing fatal and irreversible harm to the civilian population and the environment, and therefore the Federal Preventive Police also had an obligation to monitor compliance with the provisions contained in the General Ecological Balance and Environmental Protection Act, the General Civil Defence Act and any other legislation applicable in cases of in flagrante delicto.
149. 913. Had the Federal Preventive Police and other bodies not intervened, other strategic facilities, such as the coker plant, the high fumes plant and the light and power plant, could not have been reclaimed and safeguarded by the Secretariat of the Navy. It must be pointed out that any explosion of such facilities or contamination of water, air, soil and biodiversity and/or detonation of Molotov cocktails and other firearms in the workers' possession near other industrial facilities that are also strategic, including those belonging to Petróleos Mexicanos (PEMEX), the fertilizer terminal, the container terminal, the multiuse terminal, the metals and minerals terminal, the municipal pier, the Mexican Navy pier, the training centre pier, the grain storage terminal, fishing ports, naval yards, warehouses and silos that are in proximity to the scene of the conflict could, in turn, have caused a practically incalculable number of injuries, and therefore the intervention of the public security forces was necessary, effective and timely, and prevented much greater damage.
150. 914. From the date of the events to August 2006, the public security forces intervened to the extent strictly necessary to achieve what was laid down in the various agreements for resolving disputes between workers and enterprises.
151. Participation of the State Government of Michoacán
152. 915. Likewise, the Federal Secretariat of Public Safety and Security reported that the Attorney General of the State of Michoacán had informed the National Human Rights Commission (CNDH) of the participation of 172 members of the Ministerial Police in the operation of 20 April 2006 in Lázaro Cárdenas, Michoacán, and it draws attention to:
153. - The unnumbered official letter of 20 April 2006, signed by the commander of the State Ministerial Police responsible for the region of Lázaro Cárdenas, Michoacán, addressed to the Fourth Investigating Agent of the Public Prosecutor of the Office of the Attorney-General of Michoacán, in which he explains that he participated in the operation for the purpose of aiding and supporting the Federal Preventive Police in the evacuation of the facilities of the enterprise Sicartsa;
154. - Official letter No. 389, of 28 April 2006, signed by the Head of Investigating Agents of the Public Prosecutor of the Regional Prosecutor's Office of Morelia, Michoacán, addressed to the Inspector-General of the Office of the Attorney-General of the State of Michoacán, transmitting to the Inspectorate a copy of the documentation comprising preliminary investigations Nos 199/2006-VII and 083/2006, the first of these having been initiated against police officer No. 1 and law enforcement agencies for crimes of homicide, the first of which was perpetrated against Mario Alberto Castillo Ramírez and the second against society; and the second investigation, initiated against police officer No. 2 and police officer No. 3 for crimes of homicide and firing of a weapon, the first of which was perpetrated against Héctor Álvarez Gómez and the second against society, so that the Inspectorate, within its area of competence and if deemed necessary, could initiate the appropriate administrative proceeding.
155. - Official letter No. SUB/MOR/295/2006, of 28 April 2006, signed by the Regional Prosecutor of Morelia, addressed to the Secretariat of Financial Control and Administrative Management of the State Government of Michoacán, transmitting a certified copy of preliminary investigation No. 194/2006-IV against the then Coordinator-General of the Ministerial Police, for offences involving abuse of authority, and against law enforcement agencies and courts, so that they could be included in the administrative liability proceeding that was initiated against the aforesaid public servant.
156. - Official letter No. SUB/MOR/292/2006, of 28 April 2006, signed by the Regional Prosecutor of Morelia, addressed to the Secretariat of Financial Control and Administrative Management of the State Government of Michoacán, transmitting a copy of preliminary investigation No. 83/2006-III-AEH, which was conducted of police officer No. 2 for committing the crime of homicide against Héctor Álvarez Gómez, and of police officer No. 3 for committing the offence of firing a weapon, so that an administrative liability proceeding could be initiated against the aforesaid public servants.
157. 916. The Federal Secretariat of Public Safety and Security also reported that the Secretary of the Interior of the State of Michoacán informed the CNDH that:
158. (1) The State Government participated in the operation to evacuate the aforementioned enterprise Sicartsa, on 20 April 2006, in order to assist and cooperate with the Federal Preventive Police of the Federal Secretariat of Public Safety and Security, specifying that only one person was detained in connection with these events, whose name, Flavio Romero Flores, was submitted by the State Secretariat of Public Safety and Security to the State Attorney-General's Office, and that once he had given a statement he was released, because his alleged responsibility for the events in question had not been proven;
159. (2) On 21 April 2009, the Secretary of Public Safety and Security of the State Government of Michoacán and the Coordinator of the Ministerial Police of the State Attorney-General's Office tendered their resignations;
160. (3) On 28 April 2009, the State Government of Michoacán provided economic assistance to the relatives of the persons who lost their lives in the aforementioned events.
161. 917. Added to this information are various records, among which the following stand out:
162. - The 11 medical certificates issued on 20 April 2006 by the Mexican Social Security Institute for the care it provided to 11 members of the preventive police of the State Government of Michoacán who were injured during the operation;
163. - Official letter No. SNR-660-202/2006, of 28 April 2006, signed by the Under-Secretariat of Standards, Liabilities and Financial Position of the Secretariat of Financial Control of the State Government of Michoacán, addressed to the State Secretary of the Interior, reporting that administrative liability proceeding No. SNRSP-PAR-90/2006 had been instituted on that date against the then Coordinator of the Ministerial Police of the State of Michoacán;
164. - Two unnumbered official letters, of 28 April 2006, signed by the Secretariat of Social Development of the State Government of Michoacán, addressed to Martha Danelia Farías Torres and Ana María Rodríguez Nieto, respectively, transmitting to each of them cheques in the amount of 300,000 Mexican pesos (MXN) for economic assistance pursuant to the deaths of Héctor Álvarez Gómez and Mario Alberto Castillo Rodríguez, who regrettably lost their lives in the events that occurred on 20 April 2006.
165. 918. Likewise, the Federal Secretariat of Public Safety and Security reported that, on 18 and 19 August 2006, the enterprises reached agreement with the workers and their trade union representatives on, among other things, the payment of MXN1 million in compensation to each of the families of the deceased workers.
166. 919. In the light of the foregoing, the Committee can see that the intervention of the public security forces did not include the presence of the Mexican army, nor did this action signify an attack on the Sicartsa steelworks; that the workers acted outside the context of the right to strike, since there was no prior notice of their exercise of such right, and that the workers involved were not unarmed, as the SNTMMSRM indicates (paragraph 1292(l) of the report).
167. Recommendation (i) of the Committee on Freedom of Association
168. (i) The Committee calls on all the parties concerned to continue to make efforts within the existing round of negotiations to resolve the collective dispute to which this case relates.
169. 920. The Government states that, since July 2007, the labour authority has emphasized the resumption of conciliation discussions aimed at resolving the dispute in the mines. Nevertheless, it has met with intransigence towards negotiation on the part of the SNTMMSRM, since its representatives insist that a solution to this dispute must be comprehensive, involving all the pending legal issues, beginning with penal issues, moving on to commercial and civil issues, and only then addressing labour issues. As may be observed from its list of demands, submitted in August 2007, the vast majority are not related to the alleged violations of the collective labour agreements relating to safety and hygiene that were the basis on which the strikes were called. The intransigence on the part of the mining union shows a lack of commitment to its members and their families, whose economic circumstances have been affected more than a year after the strike was called.
170. 921. The Government draws the following conclusions:
171. - Throughout the process leading to the election of officers of the SNTMMSRM, the labour authority's actions have been in conformity with the union's statutes and consistent with the provisions of ILO Convention No. 87, particularly Articles 3 and 8, concerning the right of workers to elect their representatives in full freedom, the obligation for the labour authority to refrain from any action that would limit or hinder the legal exercise of that right, and the obligation of workers, employers and their respective organizations to respect the law of the land. The complainants have also exercised the various legal means and remedies envisaged by the Mexican legal system to defend the interests of the organization that they represent; hence, the individual guarantees of the complainants involved have been respected in accordance with the principles of legal certainty and the right to a hearing.
172. - The Government considers that the apparent and "excessive" length of the judicial procedures relating to various aspects of this case are attributable neither to the labour authority nor to the courts, but to the complainants, who have exercised various legal means and remedies at the corresponding levels to defend the interests of the organization that they represent.
173. - The Government deplores the death of Reynaldo Hernández González, and reiterates that both the federal and the local authorities will continue their efforts to conclude preliminary investigation No. 208/07 into the person or persons responsible for the criminal manslaughter of Reynaldo Hernández González.
174. - The Government reiterates that, since 2 May 2008, confirmation has been provided to the Committee that the persons detained at the scene of the events on 11 August 2007 were released shortly afterwards.
175. - As in the preceding case, the Government reiterates the information provided on 2 May 2008 to the effect that, on 15 October 2007, the Federal Conciliation and Arbitration Board notified the parties of its findings, in which it declared the SNTEEBMRM to be the new accredited party to the collective labour agreements in eight enterprises of the Grupo Minera México, in place of the SNTMMSRM, which was replaced as of that date as the accredited trade union in those work centres.
176. - The labour authority regrets that the work stoppage in this mine is still continuing, while reiterating its willingness to address the labour disputes between the aforesaid enterprises and the SNTMMSRM so that they might give priority to dialogue in the search for a solution. In order to put an end to a strike movement, the labour laws require that the workers express a wish to do so; the participation of the authorities alone is not sufficient to resolve a dispute of this nature. It is therefore incumbent upon the SNTMMSRM and the aforesaid enterprises to adopt a proactive attitude towards negotiation so that agreements on a solution can be reached, since the labour authority does not have direct powers to resolve disputes unless the parties so wish. The continued intransigence on the part of the SNTMMSRM, in seeking to condition a solution to the labour issue on recognition of Gómez Urrutia as Secretary-General of the union, despite his infringement of various provisions of the Political Constitution of the United Mexican States, the Federal Labour Act and the union's statutes, has demonstrated a clear lack of commitment to its members and their families, whose economic circumstances have been affected more than a year after the strike was called.
177. - As may be observed from the information provided earlier, there are legal grounds which demonstrate that the freezing of the bank accounts of the SNTMMSRM is lawful, as is the provisional seizure of the union's trust fund of US$55 million by the Federal Board of Conciliation and Arbitration, whose actions were lodged in 2006 and 2007 on behalf of around 6,500 workers belonging to the aforesaid union. Moreover, as a result of the remedy of review brought by the Agent of the Federal Public Prosecutor against the decision of the District Amparo Court, dated 15 October 2007, which granted amparo and the protection of the federal courts to Napoleón Gómez Urrutia, on 24 March 2008, the Eighth Collegiate Criminal Court of the First Circuit decided to rescind the ruling and order the reinstatement of the proceeding; accordingly, the decision granting amparo was set aside, and the three arrest warrants against Gómez Urrutia remain in force. With regard to the incident which occurred on 20 April 2006 at the Sicartsa steelworks in the city of Lázaro Cárdenas, State of Michoacán, the Government concludes that: (a) there was no record of the participation of elements of the Mexican army; (b) the incident involved the participation of the Federal Preventive Police of the Federal Secretariat of Public Safety and Security and the police of the State Government of Michoacán; (c) the actions of these authorities were consistent with the decisions of the Committee on Freedom of Association concerning police intervention during a strike; (d) the workers acted outside the context of the right to strike, since there was no prior notice of their exercise of such right, and the workers involved were not unarmed, as the SNTMMSRM indicates, since there were workers who carried and activated firearms; (e) the public security forces intervened to the extent strictly necessary to achieve what was laid down in the various agreements for resolving disputes between workers and enterprises; and (f) in the case of the two workers who died, the State Government of Michoacán has proceeded to implement the corresponding penalties and compensation.
178. - The labour authority has emphasized the resumption of conciliation discussions aimed at resolving the dispute in the mines. Nevertheless, it has met with intransigence towards negotiation on the part of the SNTMMSRM, which has conditioned a solution to the labour disputes on recognition of Gómez Urrutia, who is incapable of acting in that capacity.
179. 922. The Government is annexing the statement made by the delegation of the Government during the adoption of the Committee's recommendations concerning Case No. 2478 by the Governing Body at its 302nd Session, on 13 June 2008. In this statement, the delegation declares that it does not concur with the Committee's analysis and therefore does not share its conclusions and recommendations.
180. 923. In particular, the delegation of the Mexico made the following statements.
181. 924. Firstly, in relation to the recommendation contained in subparagraph (a), the Government considers that it did not infringe the provisions of Article 3 of Convention No. 87. The Government proceeded in good faith to register the interim executive committee designated by the complainant union's General Vigilance and Justice Council after it had removed the executive committee from office for acts contrary to the provisions of its statutes. This registration was set aside by the labour authority in compliance with a decision by the judiciary, the only authority competent to take decisions of this type, which reinstated the former leaders in their posts.
182. 925. The then leader of the complainant union, Napoleón Gómez Urrutia, has a number of legal actions against him lodged by workers belonging to the same union, among which is the charge that he misappropriated US$55 million from the mining trust fund. There are three arrest warrants against Gómez Urrutia, who is currently a fugitive from justice. Article 8 of Convention No. 87 provides that "workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land".
183. 926. The Government reiterates that this case is an internal union dispute and should not have been examined by the Committee. The Government showed its willingness to cooperate with the Committee and provided ad cautelam the information and comments which it believed to be related to the alleged violation of the principle of freedom of association and the right to collective bargaining.
184. 927. Secondly, with regard to the recommendation contained in subparagraph (c), the judicial procedures have been carried out with strict adherence to the applicable legal norms, in observance of the deadlines prescribed by law and with respect for the right of the parties to present evidence, allegations and legal remedies. To have violated the legal procedures would have been contrary to the absolute respect that must exist between the executive and judicial branches.
185. 928. There is information that was provided by the Government that appears not to have been considered fully by the Committee, probably because of lack of time. As a telling example, and without wishing to open a debate, the Government was requested to provide information on some unionists who had been detained. In that connection, the Government informed the Committee from the very first day that the unionists had been detained; that is to say, "had been" implies that they were no longer detained.
186. 929. The Government has promoted negotiation and dialogue and has offered its good offices in the search for a solution to the internal union dispute, with due respect for the principles of trade union independence and freedom under the terms of ILO Convention No. 87, which of course include the principle of the rule of law.
187. 930. The Government will transmit to the Committee, through the International Labour Office, detailed supplementary information on the points mentioned in this statement, as well as other issues.
188. 931. In its communication dated 23 June 2009, the Government states that it has noted the information submitted by the IMF as new allegations in relation to Case No. 2478, but indicates that the document allegedly referred to as "new allegations" turns out to be a mere transcription (an exact copy) of the report on the facts submitted to the Office of the Attorney-General of the Republic, which finally decided, on 5 March 2009, not to bring criminal charges; nor was the file on this investigation addressed to the Committee. Therefore, it is not constituted as a formal remedy that must be examined by the Committee. The document submitted by the IMF does not constitute new allegations, since aspects of the facts described in the aforesaid communication have already been addressed on various occasions by the IMF and the SNTMMSRM before the ILO, examined by the Committee and responded to by the Government in its replies. In view of the foregoing, the Government requests the Committee to completely disregard the document in question.

C. The Committee's conclusions

1. 932. The Committee notes the Government's statement contesting the receivability of a document of the complainant union entitled "Criminal charges against the labour authorities before the Office of the Attorney-General for acts related to pending issues". The Committee notes that a complaint was transmitted to it that was unsigned and undated and therefore considers it not receivable.
   • Recommendations (a), (b) and (c) of the Committee on Freedom of Association
     • (a) In light of the new information provided by the Government, the Committee regrets the acknowledgement or registration by the administrative authority of the interim executive committee imposed by the union's General Vigilance and Justice Council (and the consequent removal from office of the executive committee presided over by Napoleón Gómez Urrutia) and considers that the labour authorities engaged in conduct that is incompatible with Article 3 of Convention No. 87, which establishes the right of workers to elect their representatives in full freedom.
     • (b) Observing that the Government does not refer in detail to the various flaws in the election process mentioned by the complainant, except with regard to the alleged forgery of the signature of a member of the General Vigilance and Justice Council, in relation to which it indicates that the injured party initiated penal action, the Committee requests the Government to send its observations in this regard.
     • (c) The Committee deplores the excessive length of the judicial procedures relating to various aspects of this case and the grave prejudice that this has caused to the complainant union and it requests the Government to examine measures with the social partners - legal or other reforms - to guarantee expeditious justice in relation to the exercise of trade union rights. The Committee urges for a rapid conclusion of the judicial procedures.
   • 933. The Committee notes that the Government reiterates that: (1) this case is an internal union matter; (2) the State Secretariat of Labour and Social Insurance has not infringed Convention No. 87 or its Article 3, since its actions in proceeding to check records and documents are in conformity with law, case law and the rules of the statutes and with absolute respect for the wishes of the workers; (3) the mining union has been able to exercise the legal relief and remedies envisaged by the legal system, and in this connection, as indicated earlier, pursuant to a judicial warrant, on 16 April 2007 the labour authority complied with the ruling handed down in amparo action No. 397/06 by restoring the validity of the decisions in which Napoleón Gómez Urrutia was recognized as Secretary-General of the SNTMMSRM; (4) the Government considers that the apparent and "excessive" length of the judicial procedures relating to various aspects of this case are attributable neither to the labour authority nor to the courts, but to the complainants, which have exercised various legal means and remedies at the corresponding levels to defend the interests of the organization that they represent.
2. 934. The Government refers to the Committee's conclusion according to which the labour authorities failed to discover that the Secretary-General (Elías Morales Hernández, allegedly expelled from the union in May 2002) and other leaders were not active members of the union, nor the absence of participation by the plenary of the National Executive Committee in the removal from office of the Secretary-General (the complaint indicates that the General Vigilance and Justice Council did not hear the executive committee that it removed from office, and that this was not taken into account by the labour authorities). In this regard, the Committee notes that the Government reiterates that: (1) the members of the General Vigilance and Justice Council of the SNTMMSRM requested the labour authority to acknowledge the decisions adopted on 16 February 2006, consisting of penalties and the removal from office of the titular and substitute members of the National Executive Committee, as well as the President of the General Vigilance and Justice Council and his substitute, and the appointment of new members of the committee and of the President of the General Vigilance and Justice Council, with other persons appointed on an interim basis to fill the executive positions, under the leadership of Elías Morales Hernández; (2) the labour authority, in accordance with the wishes of the workers as expressed through the decisions of their competent internal body, after examining the documentation submitted and once it had been ascertained that it complied with the legal requirements and the terms of the union's statutes, decided to acknowledge the decisions taken on 16 February on an interim basis until the appointments were approved or amended by the next national assembly; (3) lastly, the labour authority, complying with the decision issued by the judicial authority on 16 April 2007, set aside the acknowledgement granted to the interim national executive committee of the SNTMMSRM under the leadership of Elías Morales Hernández, as a result of which Napoleón Gómez Urrutia was definitively reinstated in his trade union rights as Secretary-General of the SNTMMSRM.
3. 935. The Committee appreciates the detailed information provided by the Government and wishes to point out that at no time did it question whether the labour authority had examined in good faith the documentation submitted by the General Vigilance and Justice Council of the complainant union. The Committee observes in this regard that the complainant union has sent the final ruling handed down by the Fourth District Labour Court of the Federal District on 26 March 2007 in favour of the National Executive Committee of the complainant union, presided over by Napoleón Gómez Urrutia, confirming in the second instance an aspect of the previous ruling in which it exonerated the responsible authority of the Ministry of Labour. The Committee emphasizes, however, that in this ruling of 6 [sic] March 2007 there are several sections stating that, in taking its impugned decision (to replace the National Executive Committee headed by Napoleón Gómez Urrutia), the labour authority failed to "duly verify" the legislation and the union statutes, which "is in violation of the law"(page 106 of the ruling), that the labour authority decided to remove the executive committee from office by administrative act, without giving the affected parties an opportunity to be heard with due process, "and that the labour authority assumed, without having the power to do so, the jurisdictional authority that the labour laws… expressly reserve for the Conciliation and Arbitration Board" (page 118 of the ruling), which is a judicial body. In view of the foregoing, the Committee concludes that the conclusions which it reached regarding the merits of the allegations (replacement of the executive committee) of the complainant union remain entirely valid.
4. 936. With regard to the allegation that the labour authorities were unaware that one of the two signatories of the decision to remove the National Executive Committee certified before a notary that he had not signed the document and an expert graphologist certified that the signature was false (an allegation on which the Committee requested the Government to keep it informed of the outcome of the criminal action for the falsification of documents brought by one of the members of the union's General Vigilance and Justice Council), the Committee notes that the Government emphasizes that: (1) in amparo action No. 397/06, filed in the Fourth Collegiate Labour Court of the First Circuit, by which the alleged unconstitutionality of the decision of 17 February 2006 was contested, the evidence presented was inadequate to establish the alleged falsification of the signatures of Zúñiga Velásquez and therefore the labour authority, not perceiving that there was an obvious discrepancy between the signatures that were submitted to it and those contained in its files, was not empowered to order that expert examinations be carried out or to contest ex officio the signatures submitted; (2) nevertheless, in accordance with section 604 of the Federal Labour Act, the Federal Conciliation and Arbitration Board is empowered to address labour disputes between various groups of workers, such as internal union disputes; therefore, the authenticity of Zúñiga Velásquez's signatures could have been established in the corresponding procedural phases of a labour court proceeding; (3) in the final decision of 26 March 2007, the Fourth Collegiate Labour Court of the First Circuit granted amparo and the protection of the federal courts (file No. RT 64/2007) to Napoleón Gómez Urrutia and other co-complainants on the ground of formal aspects of the decision of 17 February 2006, but it did not examine issues relating to the alleged falsification of Zúñiga Velásquez's signatures; (4) furthermore, to date there is no court ruling which finds that Zúñiga Velásquez's signatures were falsified or invalid.
5. 937. The Committee requests the Government to keep it informed of the outcome of the criminal action for the falsification of documents brought by one of the members of the union's General Vigilance and Justice Council.
6. 938. The Committee notes that, according to the allegations, the alleged misappropriation of the union's trust fund of US$55 million, which had been at the origin of the removal from office of the executive committee by the alleged General Vigilance and Justice Council, was based on false documents; there was also, according to the allegations, the failure to disclose a report by the National Banking and Currency Commission which confirmed that the union leader Napoleón Gómez Urrutia had not committed the offence of money laundering in relation to the trust fund of US$55 million; according to the allegations, an investigation is being carried out of the former Federal Prosecutor of Mexico and the Deputy Prosecutor-General for the alleged failure to disclose the report. In this regard, the Government states that: (1) according to information provided by the Units Specializing in Investigation of Fiscal and Financial Offences and Offences Committed by Public Employees, Including Obstruction of Justice, of the Office of the Attorney-General of the Republic, after carrying out an analysis, they reported that they have no information on the matters in question; (2) nevertheless, it must be noted that the Federal Conciliation and Arbitration Board is dealing with various legal actions against the union SNTMMSRM in relation to the provisional seizure of accounts of the mining union's trust fund of US$55 million, the procedural phase of which consists of the following:
   • - The principal action consists of the payment of the proportional share of 5 per cent of the shares, amounting to US$55 million, negotiated to the benefit of the workers of the Compañía Minera de Cananea SA de CV in the agreements dated 24 August 1990, in compliance with the actions taken by the First Bankruptcy Court on 16 August 1989 and 24 August 1990.
   • - The dispute is currently being examined in 21 cases, most of which are filed with Special Board No. 10, except for one which is filed with Special Board No. 47, located in Cananea, Sonora. The cases involve approximately 5,900 workers. There are four cases filed with Special Boards Nos 10 and 47 in which the actors have abandoned legal action.
   • - None of the 22 cases that are being processed has led to a preliminary decision, since in none of them has a hearing begun for the taking of evidence. The delay in the procedure is not attributable to the Board, since these judicial proceedings were brought by several actors against defendants and co-defendants, in addition to which various delaying actions have been lodged, among which are the following:
   • - In three judicial proceedings, a procedural issue concerning lack of legal personality was raised against the SNTMMSRM delegation. The personality of the trade union delegation headed by Napoleón Gómez Urrutia was recognized under the terms of the final decision dated 26 March 2007, issued by the Fourth Collegiate Labour Court of the First Circuit in review No. RT 64/2007;
   • - In three judicial proceedings, a motion for consolidation was made;
   • - In four judicial proceedings, summonses were issued to third parties allegedly concerned;
   • - In eight judicial proceedings, a procedural issue was raised concerning material competence, in the course of which it became clear that Special Board No. 10 has decided to uphold it. The possibility cannot be excluded that the competence issue is the reason for challenging the findings on the merits, since it may be considered that the competence to resolve these disputes falls to the administrative and/or fiscal authorities;
   • - Fifteen cases originate from Special Board No. 47, located in Cananea, Sonora; four from Special Board No. 34, located in San Luis Potosí, San Luis Potosí; and two cases originate from Special Board No. 19, located in Guadalupe, Nuevo León, as a result of which Special Board No. 10 has ordered 21 personal notifications to be served by means of a warrant through the aforesaid special boards;
   • - On various occasions, hearings have been postponed at the request of the parties, on the ground that they were involved in conciliatory discussions.
   • - In this regard, various provisional decisions have been taken:
   • - In Special Board No. 19, two actions were brought against the SNTMMSRM in which a provisional decision was requested, consisting in the provisional seizure of the mining union's accounts. These actions were filed under Cases Nos 295/06 and 1488/06;
   • - The provisional seizures were processed and authorized by the President of Special Board No. 19, in the amount of US$196,090,713 and US$18,363,618, respectively. The National Banking and Currency Commission reported that the seized accounts of the SNTMMSRM were treated as if they were combined, up to the amount required;
   • - As a result of the procedural issues concerning territorial competence, Cases Nos 295/06 and 1488/06 were transmitted to Special Board No. 10, which assigned to them Cases Nos 216/06 and 498/07, respectively;
   • - In Case No. 498/07, an application for review of implementing acts was submitted to the President of the Special Board, and therefore it was not admitted. The case subsequently came before the Special Board, but not in due time, and therefore it was dismissed. The decision on dismissal was not appealed;
   • - In Case No. 216/06, an application was lodged for review of implementing acts, which was declared not receivable. In this case there is an indirect amparo action, which was filed in the Fifth District Labour Court of the Federal District under No. 191412007. The SNTMMSRM brought a complaint before the Fourth Collegiate Labour Court of the First Circuit against the decision issued by the District Court which is addressing the indirect amparo action, in which the motion requesting clarification of the impugned act was held not to have been submitted; this appeal was declared not receivable, as a result of which processing of the indirect amparo action continued. No ruling has been issued; however, the parties, who will be under the jurisdiction of the collegiate courts, have a remedy of review.
7. 939. The Committee also notes the Government's conclusions in which it emphasizes, based on the information provided earlier, that there are legal grounds which demonstrate that the freezing of the bank accounts of the SNTMMSRM is lawful, as is the provisional seizure of the union's trust fund of US$55 million by the Federal Board of Conciliation and Arbitration, whose actions were lodged in 2006 and 2007 on behalf of around 6,500 workers belonging to the aforesaid union. Moreover, as a result of the remedy of review brought by the Agent of the Federal Public Prosecutor against the decision of the District Amparo Court, dated 15 October 2007, which granted amparo and the protection of the federal courts to Napoleón Gómez Urrutia, on 24 March 2008, the Eighth Collegiate Criminal Court of the First Circuit decided to rescind the ruling and order the reinstatement of the proceeding; accordingly, the decision granting amparo was set aside, and the three arrest warrants against Gómez Urrutia remain in force. The Committee will examine at a later date the question of the arrest warrants against the union leader Napoleón Gómez Urrutia.
8. 940. With regard to the delay in the judicial proceedings relating to the present case, the Committee notes, based on the detailed information provided, that the Government indicates that this is due to the numerous delaying actions of the parties (lack of legal personality, consolidation of proceedings, issuance of summonses to third parties concerned, postponement of hearings, procedural issues, provisional decisions, remedies, among others). The Committee notes that the Government also states that the judicial procedures have been carried out with strict adherence to the applicable legal norms, in observance of the deadlines prescribed by law and with respect for the right of the parties to present evidence, allegations and legal remedies. To have violated the legal procedures would have been contrary to the absolute respect that must exist between the executive and judicial branches.
9. 941. The Committee notes the explanations regarding the reasons for the delay in the proceedings initiated against members of the executive committee headed by Napoleón Gómez Urrutia in relation to the alleged misappropriation of US$55 million of the mining trust fund and possible offences of fraud and management fraud, because what is involved is a hugely complex matter, the delay which is due largely to actions on the part of the defendants and co-defendants. The Committee considers, however, that the judicial proceedings relating to the replacement of the complainant union's executive committee, which the Government characterizes as an internal union dispute, should have been resolved more rapidly since the fundamental issues were questions of legality that the complainant union had raised in 2006. Accordingly, the Committee reiterates its invitation to a tripartite discussion on the advisability of expediting the labour court proceedings relating to matters of this type.
   • Recommendation (d) of the Committee on Freedom of Association
     • (d) The Committee deeply deplores the death of the worker, Reynaldo Hernández González, expects that the judicial proceedings will be completed as soon as possible and requests the Government to provide a copy of the ruling.
   • 942. The Committee notes that the Government deplores the death of Reynaldo Hernández González, and reiterates that both the federal and the local authorities will continue their efforts to conclude preliminary investigation No. 208/07 into the person or persons responsible for the criminal manslaughter of Reynaldo Hernández González, which investigation, once it has been concluded, will be brought to the Committee's attention. The Committee awaits the ruling that will be issued in relation to the death of the worker Reynaldo Hernández González.
   • Recommendation (e) of the Committee on Freedom of Association
     • (e) The Committee requests the Government to indicate whether the trade unionists captured on 11 August 2007 were released.
   • 943. The Committee observes that the Government informed the Committee that, according to preliminary investigation No. 208/07 by the Agency of the Public Prosecutor located in Cumpas, Sonora, seven persons were detained on the scene of the events; they were detained solely in accordance with the terms and conditions established by the legal provisions and were released shortly afterwards. The Committee takes note of this information.
   • Recommendation (f) of the Committee on Freedom of Association
     • (f) The Committee requests copies of the decisions handed down by the courts concerning the ballot for the union accreditation for collective agreements in eight enterprises.
   • (The complainant union lodged amparo actions against the corresponding decisions of the Federal Conciliation and Arbitration Board which are currently under review. Accordingly, the Committee requests the Government to provide copies of the respective rulings of the judicial authorities.)
10. 944. The Committee observes that the Government reiterates that in its note No. OGE-02191, of 2 May 2008, it provided information related to the registration by the National Union of Mine Exploration, Exploitation and Production Workers of the Republic of Mexico (SNTEEBMRM) of eight collective labour agreements concluded by the SNTMMSRM and the enterprises Industrial Minera México, SA de CV (Planta San Luis, Planta Nueva Rosita, Refinería Electrolítica de Zinc and Unidad Charcas); Mexicana de Cobre, SA de CV (Planta Beneficiadora de Concentrados, Planta de Cal and Unidad la Caridad); and Minerales Metálicos del Norte, SA de CV The Government reiterates in particular that:
    • - On 29 June 2007, before the Federal Conciliation and Arbitration Board, the SNTEEBMRM requested the registration of eight collective labour agreements;
    • - On 5 September 2007, the Federal Conciliation and Arbitration Board issued the certification of the ballot in which the workers in each of the eight work centres freely and transparently cast their votes to choose the union to which they wished to belong;
    • - On 15 October 2007, the Federal Conciliation and Arbitration Board notified the parties of its findings, in which it declared the SNTEEBMRM to be the new accredited party to the collective labour agreements in eight enterprises of the Grupo Minera México, in place of the SNTMMSRM, which was replaced as of that date as the accredited trade union in those work centres;
    • - In order to contest the foregoing, the SNTMMSRM lodged direct amparo actions against the decisions of the Federal Conciliation and Arbitration Board, which are currently under review before the competent jurisdictions and which, once they have been resolved, will be brought to the Committee's attention.
      • The Committee requests the Government to keep it informed of the outcome of these judicial proceedings brought by the complainant union.
      • Recommendation (g) of the Committee on Freedom of Association
        • (g) The Committee requests the Government to provide more detailed information on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in the present collective dispute.
      • (In its conclusions, the Committee had requested the Government to provide more detailed information on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in the present collective dispute (in respect of which the Government has only denied the intervention of the army and refers to the presence of public security forces to guarantee the right to work of non-strikers).)
    • 945. The Committee takes note of the Government's statements according to which: (1) the strike in the Cananea mining unit in Sonora began on 30 July 2007, as a result of the proceedings brought by the SNTMMSRM before the Federal Conciliation and Arbitration Board.; (2) the existing disputes between the SNTMMSRM and the enterprises holding the mining concessions, Industrial Minera México, SA de CV and Mexicana de Cananea, SA de CV, led to the unjustified calling of the strike in question, which in due course was declared illegal by the Federal Conciliation and Arbitration Board because it was in conformity with neither the letter nor the spirit of the provisions laid down in respect of strikes in the Political Constitution of the United Mexican States and the Federal Labour Act; this strike was declared legal by the federal judiciary and, accordingly, the Federal Conciliation and Arbitration Board complied with the judicial decision; (3) during 2007 and 2008, the labour authority held more than 30 working meetings and made numerous efforts to resolve the dispute (the strike is continuing to date), but the SNTMMSRM is conditioning the negotiations on labour issues on the legal problems of Napoleón Gómez Urrutia.
11. 946. More specifically, with regard to the alleged violent expulsion of strikers from the mine, the Committee observes that in its aforementioned note of 2 May 2008, the Government reiterates the information that it provided in this regard and again denies the IMF's statement that 700 members of the armed forces of the army and the federal security forces were called to expel the strikers. The Committee concludes that the Government does not deny the expulsion of the strikers from the Cananea mine, but places it in the context of the judicial decision in the first instance which declared the strike illegal (a decision that was subsequently revoked).
    • Recommendation (h) of the Committee on Freedom of Association
      • (h) Noting with concern the gravity of the other pending allegations in relation to which the Government has not replied in detail and which include arrest warrants, the freezing of union accounts, threats and acts of violence, including the death and injury of trade unionists, the Committee urges the Government to reply to these allegations without delay, to conduct a full and independent investigation and to keep it informed in this respect.
    • 947. With regard to the alleged armed assault on the main offices of the complainant union by Elías Morales and armed accomplices, including the ransacking, theft and destruction of confidential information (four of the attackers are alleged to have been arrested, but then released two hours later), the Government states that the Offices of the Central Investigators for Financial Offences, Minors, Vehicle Theft and Transport and Special Matters, of the Office of the Attorney-General of the Federal District, reported that they have no record of any preliminary investigations opened in connection with such incidents, and that there is no record of any investigation of Elías Morales on the ground of the alleged incidents that occurred in the main offices of what is now the SNTMMSRM in the city of Mexico on 17 February 2006. Because of the gravity of the case, the Government is surprised that no legal representative of the SNTMMSRM has presented any complaints to the corresponding authorities regarding the incidents mentioned, which may be reflected in a certain inconsistency in the interest shown by that union.
12. 948. With regard to the allegations concerning (1) the illegal freezing of the bank accounts of the union, of Napoleón Gómez Urrutia and other union leaders; (2) the maintenance of charges against the Secretary-General of the union, Napoleón Gómez Urrutia, for the misappropriation of the union's trust fund of US$55 million on the basis of false documentation and the manipulation of the legal system; (3) the arrest warrants issued against the union leader, Napoleón Gómez Urrutia, based on the failure of the authorities to disclose reports and despite the fact that an independent hearing had exonerated him of all charges in relation to the US$55 million fund referred to above (the criminal charges have been withdrawn by four federal judges, but remain pending in Sonora and San Luis Potosí), the Committee notes that the Government states that there are legal grounds which demonstrate that the freezing of the bank accounts of the SNTMMSRM is lawful, as is the provisional seizure of the union's trust fund of US$55 million by the Federal Board of Conciliation and Arbitration. Moreover, the Committee notes that the Government states that Napoleón Gómez Urrutia has various arrest warrants pending against him: one from 3 July 2006, issued by Criminal Court No. 32 of the Federal District for the offence of management fraud; one from 12 July 2006, issued by the Fifth Court of the Criminal Branch in San Luis Potosí (currently the Eighteenth Criminal Court of the Federal District as the substitute authority) for the offence of specific fraud in the degree of co-participation; and one from 18 May 2006, issued by the Second Criminal Court of First Instance in Hermosillo, Sonora, for the offence of specific fraud in the form of management fraud and criminal association; against these warrants, Gómez Urrutia brought amparo action No. 907/2008, filed in the Eighth District Criminal Court of the Federal District; on 15 October 2007, the District Amparo Court granted him amparo and the protection of the federal courts, a decision that was, in turn, appealed by the Agent of the Federal Public Prosecutor. The remedy of review referred to above was filed in the Eighth Collegiate Criminal Court of the First Circuit under No. RP201/2007; that court decided to rescind the ruling and order the reinstatement of the proceeding; accordingly, the decision granting amparo was set aside, and the arrest warrants remain in force. The Government reiterates that the alleged excessive delay in the administration of justice was not attributable to the competent authorities, but rather to the various remedies used by the complainant in the courts. The Committee wishes to refer, however, to the judicial rulings recently provided by the complainant federation:
    • - A decision of the Eighteenth Criminal Court of the Federal District, of 13 March 2009, in the criminal case against Napoleón Gómez Urrutia et al. for the offence of aggravated management fraud, which denies the arrest warrant against Napoleón Gómez Urrutia on the ground of failure to establish the corpus delicti;
    • - A decision of the Ninth Criminal Chamber of the Supreme Court of Justice of the Federal District, of 8 December 2008, which confirms a decision denying the arrest warrant against José Ángel Rocha Pérez (a member of the technical committee of the trust and a member of the executive committee of the mining union SNTMMSRM) for the offences of management fraud and criminal association.
      • The Committee observes that the Government refers to a ruling of the Ninth Chamber of the High Court of Justice of the Federal District, which decided on 18 January 2010 to quash the arrest warrant issued for fraudulent administration by Criminal Court No. 51 of the Federal District (a decision that might be appealed, according to the Government). The Government also refers to rulings issued by District Court No. 7 for Penal Amparo Proceedings of the Federal District, granting amparo to Mr Héctor Félix Estrella, Mr Napoleón Gómez Urrutia, Mr Juan Linares Montufar and Mr José Ángel Rocha Pérez against the arrest warrants issued by District Court No. 1 FPPFD (the amparo ruling aims at the rectification of the established irregularities by District Court No. 1 FPPFD, which would then be able to issue new arrest warrants against the accused persons). The Committee concludes that, according to the information supplied by the Government, there are at least two arrest warrants that remain presently in force (one issued by Criminal Court No. 32 of the Federal District and one issued by District Court No. 9 for Federal Penal Proceedings of the Federal District). The Committee observes that the situation of Gómez Urrutia and other members of the executive committee of the complainant union in respect of the arrest warrants against them has evolved in different directions in the penal and labour court proceedings relating to the trust, and requests the Government to supply information on the situation with regard to the arrest warrants and the freezing of the bank accounts of the complainant union and to keep it informed of further developments in these proceedings.
    • 949. In relation to the alleged death threats, abductions, illegal arrest and beating of miners belonging to the union and their families and the abduction, beating and death threats against the wife of Mario García Ortiz, member of the executive committee of the complainant union, on account of "her husband's errors" (she was able to escape, but there was no investigation), the Committee notes that the Government reiterates that none of these documents contain new allegations relating to Case No. 2478, since they are not related to the facts that gave rise to the complaint, for which reason it again requests the Committee to disregard the communication. The Committee wishes to recall, firstly, that it is the usual practice for complaints relating to the same union to be part of the same case, even if they deal with different issues. The Committee appreciates that the Government, with a view to contributing in good faith to the work of the Committee, indicates that it has no reliable documentation that would enable it to conduct a full and independent investigation into these matters. The Committee invites the complainant organization to provide further information on the alleged death threats, abductions, illegal arrest and beating of miners belonging to the union.
13. 950. With respect to the case concerning the wife of Mario García Ortiz, from the documentation provided by the IMF in its communication, it may be inferred that there is a preliminary investigation No. 65/2007, which was initiated on 2 February 2007 by the First Agency of the Public Prosecutor's Office, located in Lázaro Cárdenas, Michoacán. The Government will again consult with the corresponding authority in this regard. The Committee awaits the outcome of these consultations.
14. 951. With regard to the alleged assault on 20 April 2006 by the forces of order on strikers engaged in protest action in the Sicartsa steelworks in the city of Lázaro Cárdenas in which the police and soldiers injured over 100 workers and killed two after opening fire, the Committee notes that the Government emphasizes three elements which, in its view, refute the IMF's statement:
    • - With reference to the alleged intervention of troops, there is no record of the participation of elements of the Mexican army in this confrontation, since the incident involved the participation of the police;
    • - One cannot speak of an assault on or a confrontation with strikers, since notice of the strike referred to by the SNTMMSRM had not been issued, as proven by the certifications provided by the authorities, which show that there is no record of any strike notice issued by the SNTMMSRM, Branch No. 271, against the enterprise Servicios Siderúrgica Lázaro Cárdenas - Las Truchas, SA de CV;
    • - According to the Political Constitution of the United Mexican States, "An assembly or a meeting the purpose of which is to present a petition or a protest against an act or authority shall not be deemed illegal and may not be dissolved unless insults are addressed to such authority or violence or threats are used to intimidate it or compel it to take the desired decision" (article 9).
      • The Committee concludes that what was involved was not a strike declared in accordance with the law and that the alleged expulsion of the workers took place in this context.
    • 952. With respect to the events that occurred on 20 April 2006 as a result of the confrontation between the federal and local public security forces and workers employed by the enterprises Siderúrgica Lázaro Cárdenas - Las Truchas, SA de CV, Asesoría Técnica Industrial del Balsas, SA de CV, and Administración de Servicios Siderúrgicos, SA de CV (Sicartsa [sic]), the Committee notes that, according to the authorities, the intervention of the Federal Preventive Police was due to: (a) the criminal charges filed with the Office of the Attorney-General of the State of Michoacán by the legal representatives of the affected enterprises against various workers on the ground of their alleged responsibility for the offences of unlawful exercise of their rights, attacks on communication routes, damage to property, plunder and criminal association, and (b) the powers expressly conferred on the Federal Preventive Police by the respective Act, which empowers it to prevent the commission of offences and administrative faults; to intervene in matters of public safety and security; to ensure, maintain and restore public order and peace; to safeguard personal integrity; to prevent the commission of offences against communication routes; to participate in joint operations with other police agencies; and to cooperate in high-risk situations at the request of the competent authorities. The Committee notes that, according to the Government, the actions of the Federal Preventive Police responded to the flagrantly illegal actions of the strikers, which affected not only the operation of the enterprises but also general communication routes, such as federal highways, the Port of Lázaro Cárdenas, and communication routes in the city, through permanent blockades, which resulted in the alleged criminal responsibility defined in the corresponding sections of Title V of the Federal Penal Code, relating to offences against communication routes and connections, as well as those provided in the General Communication Routes Act; the intervention of the Federal Preventive Police also arose from the flagrancy of the possession and use by the demonstrators of explosives such as Molotov cocktails, firecrackers, pellets and other firearms, which is in contravention of the Federal Firearms and Explosives Act and its regulations. In addition, the use and detonation of firearms was established by the testimony of the police officers who participated, which is included in the ministerial statements contained in preliminary investigation No. 199/2006-VII/06-VII of the Office of the Attorney-General of the State of Michoacán; various workers also used machetes, sticks and other objects, including a backhoe, which was used by one miner solely for the purpose of assaulting the police; accordingly, several members of the Federal Preventive Police sustained injuries, including contusions, fractures and blunt force wounds, from the attacking workers.
15. 953. The Committee observes that the Government points out that from the date of the events to August 2006, the public security forces intervened to the extent strictly necessary to ensure that the various agreements be signed to resolve the dispute between the workers and the employer.
16. 954. The Committee also notes in this matter the proceedings initiated by the authorities on the ground of violent acts against workers; specifically, it notes: (a) preliminary investigations Nos 199/2006-VII and 083/2006, transmitted to the Inspector-General of the Office of the Attorney-General of the State of Michoacán, the first of these having been initiated against police officer No. 1 and law enforcement agencies for crimes of homicide, the first of which was perpetrated against Mario Alberto Castillo Ramírez and the second against society; and the second investigation, initiated against police officer No. 2 and police officer No. 3 for crimes of homicide and firing of a weapon, the first of which was perpetrated against Héctor Álvarez Gómez and the second to the prejudice of society; (b) preliminary investigation No. 194/2006-IV against the then Coordinator-General of the Ministerial Police, for offences involving abuse of authority, and against law enforcement agencies and courts, so that they could be included in the administrative liability proceeding that was initiated against the aforesaid public servant; and (c) preliminary investigation No. 83/2006-III-AEH, which was conducted of police officer No. 2 for committing the crime of homicide against Héctor Álvarez Gómez, and of police officer No. 3 for committing the offence of firing a weapon, so that an administrative liability proceeding could be initiated against the aforesaid public servants.
17. 955. The Government further indicates that the Federal Secretariat of Public Safety and Security also reported that the Secretary of the Interior of the State of Michoacán informed the CNDH that, in the evacuation of the enterprise Sicartsa, only one person was detained in connection with those events, whose name, Flavio Romero Flores, was submitted by the State Secretariat of Public Safety and Security to the State Attorney-General's Office, and that once he had given a statement he was released, because his alleged responsibility for the events in question had not been proven; on 21 April 2009 the Secretary of Public Safety and Security of the State Government of Michoacán and the Coordinator of the Ministerial Police of the State Attorney-General's Office tendered their resignations, and on 28 April 2009, the State Government of Michoacán provided economic assistance to the relatives of the persons who lost their lives in the aforementioned events. The Committee notes that the Government indicates that on 20 April 2006 the Mexican Social Security Institute issued 11 medical certificates for the care it provided to 11 members of the preventive police of the State Government of Michoacán who were injured during the operation; administrative liability proceeding No. SNRSP-PAR-90/2006 was instituted against the then Coordinator of the Ministerial Police of the State of Michoacán; the Michoacán authorities delivered to Martha Danelia Farías Torres and Ana María Rodríguez Nieto, respectively, cheques in the amount of MXN 300,000 for economic assistance, pursuant to the death of Héctor Álvarez Gómez and Mario Alberto Castillo Rodríguez, who regrettably lost their lives in the events that occurred on 20 April 2006; on 18 and 19 August 2006, the enterprises reached agreement with the workers and their trade union representatives on, among other things, the payment of MXN 1 million in compensation to each of the families of the deceased workers; the intervention of the public security forces did not include the presence of the Mexican army, nor did this action signify an attack on the Sicartsa steelworks; the workers acted outside the context of the right to strike, since there was no prior notice of their exercise of such right, and the workers involved were not unarmed, as the SNTMMSRM indicates. The Committee duly notes these compensations.
18. 956. The Committee deplores all the acts of violence that took place and recalls in general that, while workers and their organizations have an obligation to respect the law of the land, the intervention by security forces in strike situations should be limited strictly to the maintenance of public order [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 645], and also that the principles of freedom of association do not protect abuses while exercising the right to strike [see Digest, op. cit., para. 667]. The Committee requests the Government to inform it of the outcome of the proceedings relating to these acts of violence in the State of Michoacán.
    • Recommendation (i) of the Committee on Freedom of Association
      • (i) The Committee calls on all the parties concerned to continue to make efforts within the existing round of negotiations to resolve the collective dispute to which this case relates.
    • 957. The Committee notes that the Government states that: (1) since July 2007, the labour authority has emphasized the resumption of conciliation discussions aimed at resolving the dispute in the mines; countless actions and efforts have been undertaken to resolve the dispute through conciliation, and this applies not only to the cases described in the preceding paragraphs, but also to the disputes in the enterprises Industrial Minera México, SA de CV and Mexicana de Cananea; (2) nevertheless, it has met with intransigence towards negotiation on the part of the SNTMMSRM, since its representatives insist that a solution to this dispute must be comprehensive, involving all the pending legal issues, beginning with penal issues, moving on to commercial and civil issues, and only then addressing labour issues; (3) in its list of demands, submitted in August 2007, it may be observed that the vast majority are not related to the alleged violations of the collective labour agreements relating to safety and hygiene that were the basis on which the strikes were called; (4) the mining union shows a lack of commitment to its members and their families, whose economic circumstances have been affected more than a year after the strike was called; (5) the labour authority regrets that the work stoppage in the Cananea mine is still continuing, while reiterating its willingness to address the labour disputes between the aforesaid enterprises and the SNTMMSRM so that they might give priority to dialogue in the search for a solution, but in order to put an end to a strike movement, the labour laws require that the workers and the parties in general express a wish to do so; and (6) the continued intransigence on the part of the SNTMMSRM, in seeking to condition a solution to the labour issue on recognition of Gómez Urrutia as Secretary-General of the union, despite his infringement of various provisions of the Political Constitution of the United Mexican States, the Federal Labour Act and the union's statutes, has shown a clear lack of commitment to its members and their families, whose economic circumstances have been affected more than a year after the strike was called.
19. 958. The Committee appreciates the Government's efforts to foster a solution to the dispute in the mining units. It recalls that it is not for the Committee to issue an opinion on the attitudes of the parties to the negotiations, and hopes that they will soon reach an agreement. The Committee requests the Government to pursue its efforts to resolve the dispute in the mining sector.