Rapport intérimaire - Rapport No. 380, Octobre 2016

1. 244. The Committee has already examined the substance of Case No. 2761 on two occasions [see 363rd and 367th Reports], the last of which was at its March 2013 meeting, when it submitted an interim report to the Governing Body [see 367th Report, paras 420 to 453, approved by the Governing Body at its 317th Session].
2. 245. By way of a communication dated 4 March 2014, the Union of Energy Workers of Colombia (SINTRAELECOL) presented in the framework of Case No. 3063 concerning the right to collective bargaining, allegations relating to acts of violence. By way of a communication dated 30 May 2014, the Cali Municipal Enterprises Union (SINTRAEMCALI) presented a complaint concerning acts of violence which led to the opening of Case No. 3074. To the extent that Case No. 2761 deals with all allegations of anti-union violence occurring in Colombia since 2010, the allegations in Case No. 3063 concerning alleged acts of violence as well as all of the allegations in Case No. 3074 will be examined in the framework of Case No. 2761, as requested by the Government in communications dated 8 July and 28 October2014.
3. 246. The Government sent its observations in communications dated 30 September 2013, 28 October 2014, and 13 April and 7 September 2016.
4. 247. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 248. At its March 2013 meeting, the Committee made the following interim recommendations concerning the allegations made by the complainant organizations [see 367th report, para. 453]:
   • (a) Deeply regretting the alleged acts of violence denounced in this case against union leaders and members, the Committee firmly expects that the new policy adopted by the Office of the Public Prosecutor concerning investigations – under which it has been decided to give priority to all cases of murders of trade unionists cited in this case and a tripartite mechanism has been set up in the form of monthly meetings to deal with concerns and observations with respect to the investigations – will be conducive to the swift resolution of the cases that have been denounced, including the new allegations presented by the WFTU and the CUT, so that the perpetrators of all acts of violence against union leaders and members can be identified, prosecuted and convicted. The Committee requests the Government to inform it of the outcome of the investigations concerning the acts of violence in the present case, especially regarding the functioning of the tripartite mechanism established to collaborate in the investigation of acts of violence against trade unionists. As regards recommendation (c) of its previous examination of this case, the Committee requests the complainant organizations to provide the Public Prosecutor with all the necessary information so that the relevant investigations can be instituted.
   • (b) The Committee draws the special attention of the Governing Body to the extreme seriousness and urgent nature of the matters dealt with in this case.

B. New allegations

1. 249. In a communication dated 4 March 2014, SINTRAELECOL denounces, firstly, the brutal assault on 10 January 2014 against the president of the Caldas branches of SINTRAELECOL and the CUT, Mr Oscar Arturo Orozco, at the hands of the mobile anti-riot squad. The complainant states that: (i) the incidents took place during a public demonstration against the restructuring of the Caldas Hydroelectric Power Company SA ESP (CHEC); (ii) the demonstrators, including the workers’ wives and children, were trampled by around 50 police officers from the mobile anti-riot squad; (iii) to protect their family members and themselves, the demonstrators tried to stop the brutal police attack with their bare hands; (iv) they were then violently beaten with batons, several of them falling to the ground; (v) after managing to get back up, union president Oscar Arturo Orozco used his megaphone to plead with the police to call off the police attack; (vi) at that moment, a member of the mobile anti-riot squad set off an explosive device on the ground; (vii) fragments from the device hit Oscar Arturo Orozco, who lost his left eye and sustained damage to his lower eye socket.
2. 250. The complainant alleges, secondly, that Mr Oscar Lema, branch president of SINTRAELECOL in Magdalena, has been the target of death threats, yet failed to receive the protection sought from the public authorities. In this regard, the complainant states that: (i) given the new threats he received on 13 January 2014, the relevant bodies were asked to carry out a risk assessment and to implement various security measures; (ii) although a response was received indicating that a request had been submitted for a review of preventive measures at the trade union headquarters’ facilities, the protection scheme requested has failed to materialize; (iii) to ensure his safety, Mr Lema had to move home, and even then the death threats did not stop; and (iv) years before, Mr Lema had already been the victim of death threats, along with Mr Eduardo Vásquez, the union’s treasurer, who was ultimately murdered by a paramilitary movement.
3. 251. In a communication dated 30 May 2014, SINTRAEMCALI denounces acts of violence directed against the organization’s headquarters and the vehicle of one of its officials. The complainant states specifically that: (i) in the early morning of 16 April 2014, four individuals doused the door of the union headquarters with petrol and threw incendiary bombs at it, causing major damage to the building; (ii) on 20 May 2014, several individuals set fire to the car belonging to Mr José Ernesto Reyes, vice-president of SINTRAEMCALI, who suffered burns to his legs while trying to extinguish the fire during the incident; (iii) these episodes occurred after SINTRAEMCALI had requested the National Protection Unit to provide urgent protection for all members of the executive committee.
4. 252. The complainant adds that the aforementioned acts of violence took place: (i) four days after the judge of Municipal Criminal Court No. 29, which has jurisdiction in the city of Bogotá, ordered the former President of the Republic, Mr Álvaro Uribe Vélez, and the former Vice-President of the Republic, Mr Francisco Santos Calderón, to make symbolic acts of apology for the stigmatizing statements both had made in 2007 against SINTRAEMCALI, SINTRAUNICOL and SINTRATELEFONOS; and (ii) three days before the start of the trial concerning the “Operation Dragon” case, the name given to a plot to persecute and destroy trade union, human rights advocacy and political opposition organizations.

C. The Government’s response

Investigation policy for acts of anti-union violence

1. 253. While recognizing the impunity gap that exists and recalling the independence of the different government branches, the Government states that it has collaborated with the Office of the Public Prosecutor in allocating resources to ensure that it has the tools needed to move the investigations forward. In communications dated 30 September 2013 and 28 October 2014, the Government states that the Prosecutor’s subunit that deals exclusively with the issue of anti-union violence, created within the Office of the Public Prosecutor’s National Human Rights Unit, has 25 specialized prosecutors deployed in several cities across the country. It also has a special group of more than 100 judicial investigators, composed of members of the Technical Investigation Unit and national police investigators. There are also three specialized courts dealing exclusively with the issue.
2. 254. In these communications, the Government recalls once again that the Public Prosecutor had found that acts of violence perpetrated against workers and trade unionists were being investigated in isolation. Based on this analysis, the Office of the Public Prosecutor adopted Directive No. 001 on 4 October 2012 “establishing criteria for the prioritization of situations and cases and introducing a new criminal investigation management system in the Office of the Public Prosecutor” in order to combat organized crime more efficiently and determine whether there were, or still are, criminal policies and plans aimed at curtailing workers’ right to freedom of association. The Government states that, as part of the implementation of this policy, the Analysis and Context Unit was established with the aim of coordinating the information currently available in the various units of the Office of the Public Prosecutor. The Analysis and Context Unit has given priority to the problem of violence committed against trade unionists and already has a team of five public prosecutors, six analysts and four investigators. In this connection, the Analysis and Context Unit agreed to prioritize four key situations relating to the most serious violations of the right of association in Colombia from the 1990s to the present day. These situations, which led to the reassignment of 44 investigations to the Analysis and Context Unit, concern: (i) several trade unions of the Cauca valley, including SINTRAEMCALI, the Valle Single Trade Union of Education Workers (SUTEV) and sugar cane cutters’ trade unions; (ii) trade unions in universities in the Caribbean region; (iii) unions of workers in the mining and energy sector; and (iv) trade unions in the banana industry in the 1990s. The Government adds that the Inter-institutional Committee on Human Rights has been conducting a tripartite analysis of the progress made in combating impunity and violence against trade union organizations.
3. 255. In a communication dated 13 April 2016, the Government states that the internal structure of the Office of the Public Prosecutor has been modernized and restructured. In this connection, work in the area of violence against trade union organizations is being undertaken primarily by the following four directorates of the Office of the Public Prosecutor: (i) the National Directorate for Analysis and Context; (ii) the National Directorate for Coordination of Public Prosecutors; (iii) the Human Rights Directorate; and iv) the National Directorate for District Prosecutors’ Offices and Public Safety. The Office of the Public Prosecutor has also developed strategies for prioritizing and vetting cases. In this context, the Office of the Public Prosecutor’s Unit for Human Rights and International Humanitarian Law established a follow-up group for investigations under each topic at the national level, which has enabled it to identify those showing little progress in investigations, with the aim of creating the necessary procedural impetus through these offices. Monitoring and follow-up of investigations where the victims are trade unionists is carried out, and monthly legal technical committees and working groups are being held in order to review, monitor and evaluate the effective and efficient development of the investigative function. The Government states that these kinds of activities lead to important progress being made such as establishing the truth and merits of the key arguments in a case and identifying the causal link as a precondition for criminal liability.
4. 256. The Government goes on to refer to the investigations into threats against members of the trade union movement, for which only two convictions have been handed down. Since the establishment of the Public Prosecutor’s subunit, a joint strategy has been under development to analyse both national and local information on death threats that have occurred since 2005 to the present date and whose investigations are still open. There are 192 cases of threats under investigation in total, plus two cases that have reached trial, with two defendants.
5. 257. The Government also states that the ILO has been a key player in providing support to train judges and prosecutors through the project entitled “Promoting compliance with international labour standards”. It highlights, among several initiatives, the specialized diploma in investigating and prosecuting offences committed against trade unionists.

Progress made in the investigations

1. 258. The Government reports that significant progress has been made in the investigations into the murders and other acts of violence examined in the context of the present case, highlighting the following results:
   • – In 2014, the national police assisted in solving 54 cases, arrested 66 persons and helped link 61 suspects to offences. In 2015, they arrested five persons in connection with murders in 2015, 48 persons in connection with murders committed in other years and linked 73 persons to offences in order to bring prosecutions.
   • – In 2014, the Office of the Public Prosecutor issued 63 arrest warrants, submitted 25 indictments and brought 14 cases to trial; and in 2015, 62 persons were linked to offences and charged, three indictments were submitted, 19 persons were arrested, 15 of whom are currently in custody, and 20 applications were made for protective measures.
   • – The above actions by the police and prosecutors have led to judges handing down 22 convictions, meaning that to date 700 convictions have been handed down for offences committed against trade unionists, with 569 persons receiving sentences.
2. 259. In its communications of April and September 2016, the Government provides information on the specific progress made in Case No. 2761: (i) 78 cases are still open; (ii) of these 78 active cases, 51 are at the inquiry stage; (iii) two cases have resulted in convictions, although some aspects of those cases remain at the inquiry stage; (iv) one case is under investigation; (v) seven cases are at the preliminary investigation stage; (vi) one case is at the arrest-warrant stage; (vii) one case is at the pre-trial stage; (viii) 13 cases are at trial; (ix) two cases have led to final convictions; and (x) in total, 12 final or other convictions have been handed down in connection with the aforementioned cases and 21 persons have been linked to them.

Information on protective measures

1. 260. In its communication of 13 April 2016, the Government states that it remains fully committed to the protection of trade union leaders and activists, which is why it will continue its efforts to ensure the protection programme (National Protection Unit) is resourced. The unit’s budget allocated to the protection of trade union leaders was US$18.5 million in 2015. The Government further states that: (i) from 2012 to the present date, the National Protection Unit conducted 2,782 risk assessments for trade union leaders or activists; (ii) all requests for protective measures for trade union members provide for a risk assessment; (iii) there are currently 589 trade unionists under protection, who benefit from different measures, such as means of communication, bulletproof vests, transport support, relocation support, armoured vehicles, conventional vehicles and officials responsible for protection; (iv) more than 400 trade unionists benefit from protection plans with measures that include armoured vehicles, conventional vehicles and escorts; (v) there have been no cases of murder among the trade unionists covered by the programme, nor among those whose protection was withdrawn following an updated risk assessment; (vi) in 2014, 11 applications for emergency procedures were received from trade unionists, eight of which from trade union leaders and three of which from trade union activists, and, of those, emergency procedures were granted in six cases; (vii) in 2015, 28 applications for emergency procedures were received from trade unionists, 25 of which from trade union leaders and three from trade union activists and, of those, 24 were granted emergency procedures; (viii) given the imminent danger in these cases, they were dealt with as a priority for the implementation of urgent measures.
2. 261. The Government adds that the National Protection Unit has been implementing collective protection schemes for trade unionists. These schemes are assigned by the Committee for Risk Assessment and the Recommendation of Measures, in which the workers’ confederations participate. The schemes are submitted to the committee after a risk assessment has been carried out in each branch of the national executive committees and regional and local subcommittees, where trade unionists have the opportunity to express their views not only on the threats, risks and vulnerabilities, but also on the protective measures that they consider should be implemented. These observations are weighed against the technical results of the risk assessments, and these considerations are presented to the committee.
3. 262. In its communication of 7 September 2016, the Government states that the peace process currently under way establishes some agreements on security guarantees and combating criminal organizations. The agreement provides for several initiatives, including: (i) the creation of a special investigation unit for dismantling criminal organizations that threaten human rights advocates, social movements or political movements; and (ii) the creation of a comprehensive safety and protection programme for communities and organizations in the territories. Social organizations and communities will participate in the programme, which will have a special protection protocol for the groups affected by the conflict.

Collective redress for the trade union movement

1. 263. The Government states that it has recognized the trade union movement as a victim of acts of violence and that it has a duty to provide collective redress to trade unions, which is not only a legal obligation established by Act No. 1448 of 2011, but also a political and ethical obligation. The Government adds that: (i) on 10 July 2012, an initial meeting was held with the CTC, CUT and CGT trade union confederations and the FECODE trade union federation, which responded to the State’s call; (ii) there have since been several meetings with delegates from the trade union movement, the Comprehensive Victim Support and Reparation Unit for victims of the armed conflict and the Ministry of Labour to chart the course for the process, and especially to listen to the trade union movement, which from the outset has been reluctant to embark on the process; (iii) under the programme to provide collective redress to the trade union movement, in April 2014 and April 2015 meetings took place with the President of the Republic, who reaffirmed the commitment of the State to the process of collective redress for the trade union movement; and (iv) during these discussions, it was decided to create a high-level round table to discuss the collective redress measures to be implemented.

New allegations of violence

1. 264. By way of a communication dated 28 October 2014, the Government communicated its observations regarding the allegations of violent acts directed at the SINTRAEMCALI headquarters and the vehicle of one of its officials. The Government first submits the observations of the EMCALI enterprise, which states that it: (i) has no knowledge of the perpetrators or instigators of the acts or their motives; (ii) is always attentive to the requirements of the public authorities concerning the safety of SINTRAEMCALI leaders and the leaders of other organizations present in the enterprise; and (iii) is developing a policy that is fully respectful of the rights to freedom of association and collective bargaining. The Government then submits the responses of the Public Prosecutor’s Office and the National Protection Unit and its own observations, indicating that: (i) the unit of the Public Prosecutor’s Office attached to the specialized judges of the criminal circuit is conducting a criminal inquiry into terrorism concerning the events of April 2014; (ii) on 12 June 2014 a judicial investigator visited the enterprise and met Mr Jorge Iván Vélez Calvo, the president of SINTRAEMCALI; (iii) the events are being examined by the Office of the Counsel for Cali Province, the management of the President’s Programme for Human Rights and International Humanitarian Law, the Office of the Vice-President of Colombia and the Office of the Counsel for Valle Region; (iv) Mr José Ernesto Reyes Mosquera is receiving protective measures provided by the Unit, as are the other members of the SINTRAEMCALI executive committee; (v) Operation Dragon refers to events that occurred in 2004 that were investigated by the Attorney-General of the Nation and the Public Prosecutor’s Office, for which the outcome of the investigation has been communicated to the Committee on Freedom of Association; and (vi) it will be the judicial authorities that will be responsible for determining whether the events of April 2014 are related to the events of 2004.

The Committee’s conclusions

1. 265. The Committee recalls that these cases concern allegations of numerous murders of leaders and members of the trade union movement and other acts of anti-union violence. During its last review of Case No. 2761, the Committee noted that all the cases reported in this complaint were investigated, that the Prosecutor was launching a new investigation policy and that significant resources were being dedicated to combatting impunity and protecting trade union leaders and trade unionists at risk. The Committee had asked the Government especially to provide information on the outcome of the investigations into the alleged acts of violence in this case and on the functioning of the tripartite mechanism established to collaborate with the investigations into acts of violence against trade unionists.

Investigation initiatives and outcomes

1. 266. The Committee takes note of the information provided by the Government concerning both the quantitative and the qualitative efforts made by the public authorities to resolve the cases of acts of anti-union violence and punish the guilty parties. In this respect, the Committee notes in particular that: (i) the national police, the Public Prosecutor’s Office and the judiciary have specific staff and units dedicated exclusively to acts of anti-union violence; (ii) under the new investigation policy launched in 2012 by the Public Prosecutor’s Office, the Analysis and Context Unit prioritized four key situations related to the most serious violations of the right to freedom of association in Colombia since the 1990s; (iii) the National Unit for Human Rights and International Humanitarian Law of the Office of the Public Prosecutor established a group to follow up on the investigations under each topic at the national level to identify those with little investigative progress, with the aim of taking action to move the cases forward. This methodology applies to cases where the victims are trade unionists; (iv) a joint strategy is being designed to analyse both national and local information on cases of death threats against trade unionists that have occurred since 2005 and that are still open; and (v) the Inter-institutional Commission for Human Rights has been conducting a tripartite analysis of the progress made in combating impunity and violence against trade union organizations.
2. 267. The Committee also takes note of the information provided by the Government concerning the progress made in resolving and punishing all the acts of anti-union violence committed in the country, where it indicates that: (i) as a result of the actions of the police and the Public Prosecutor’s Office, the courts handed down 22 convictions in 2015; (ii) a total of 700 convictions have been handed down for crimes perpetrated against members of the trade union movement; (iii) the investigation into a large number of reports of death threats has led to only two convictions for that offence. The Committee also takes note of the information communicated by the Government concerning the investigation into the acts of violence reported in this case, where it indicates that: (i) of the 83 murder cases assigned to the Public Prosecutor’s Office, involving 105 victims, 78 cases are still open; (ii) of those 78 cases, 51 are at the inquiry stage; (iii) two cases have led to convictions although some aspects of those cases remain at the inquiry stage; (iv) one case is under investigation; (v) seven cases are at the preliminary investigation stage; (vi) one case is at the arrest-warrant stage; (vii) one case is at the pre-trial stage; (viii) 13 cases are at trial; (ix) two cases have led to final convictions; and (x) in total, 12 final or other convictions have been handed down in connection with the aforementioned cases and 21 persons have been linked to them.
3. 268. While taking due note of the significant efforts and the various initiatives of the public authorities to achieve better efficacy in the investigation of the acts of violence perpetrated against trade union officials and trade unionists, the Committee notes with concern that, at least in respect of the acts reported in this case, progress in the investigations has been limited. The Committee observes in particular that, since its last review of this case in March 2013, the number of convictions has increased from 11 to 12 and that, many years after the acts were committed, the vast majority of cases of murder and other acts of violence reported in this case remain unpunished. In this respect, the Committee recalls that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights, and emphasizes the need, in a case in which judicial inquiries connected with the death of trade unionists seem to be taking a long time to conclude, for proceedings to be brought to a speedy conclusion [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 52 and 53].
4. 269. Under these conditions, taking into account the substantial initiatives already adopted in this regard by the public authorities, the Committee urges the Government to continue taking all the measures necessary to ensure that all of the acts of anti-union violence reported in this case are brought to justice. In this respect, the Committee requests the Government to facilitate an inter-institutional evaluation of the investigation strategies used by the public authorities in the cases of violence against trade union officials and trade unionists and to keep it informed of the outcomes. Noting that it has few elements on the actual functioning of the tripartite mechanism established in 2012 to collaborate with the investigations into the acts of violence against trade unionists, the Committee requests the Government to provide information in this regard. Likewise, the Committee requests the Government to provide further information on the types of anti-union offences, apparently not reported in this case, that led to the recent convictions.

New allegations of violence

1. 270. The Committee takes note of the allegations of SINTRAELECOL, according to which: (i) the trade union leader Mr Oscar Arturo Orozco lost an eye in January 2014 as a consequence of the violent repression of a demonstration by a squad of riot police; and (ii) the trade union leader Mr Oscar Lema was the target of death threats that obliged him to move home without having been afforded the protection requested.
2. 271. The Committee notes with regret that the Government has not communicated its observations on these allegations and requests it to do so promptly. As regards SINTRAELECOL’s first allegation, the Committee recalls the principle that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 140]. As to SINTRAELECOL’s second allegation, the Committee requests the Government to ensure that Mr Oscar Lema’s situation has been duly assessed in order to provide him with any protective measures he might require.
3. 272. The Committee also takes note of the allegations of SINTRAEMCALI, according to which the headquarters of the organization and the vehicle of one of its officials were set on fire in April and May 2014, days after a criminal court judge had ordered that a public apology be made to the organization for statements stigmatizing it and days before the opening of a court case about an alleged plan dating back to 2004 to persecute and to destroy trade unions. In this regard, the Committee notes that the Government states that the Public Prosecutor’s Office is conducting a criminal inquiry into terrorism in connection with the arson attack on the seat of the organization in April 2014, and that Mr José Ernesto Reyes, owner of the vehicle set on fire in May 2014 as well as all SINTRAEMCALI leaders are receiving protective measures. The Committee notes nonetheless that it has received no information from the Government concerning any inquiry relating to the arson of the vehicle of Mr José Ernesto Reyes in May 2014. The Committee therefore requests the Government to ensure that an inquiry is initiated by the competent authorities into the arson of the vehicle of Mr José Ernesto Reyes, and to keep it informed of the outcome of that inquiry and the investigations conducted by the Public Prosecutor’s Office in connection with the arson attack on the seat of SINTRAEMCALI.

Protective measures

1. 273. The Committee notes that the Government states that the strong commitment of the public authorities to providing security to the members of the trade union movement is demonstrated by: (i) the allocation in 2015 of a budget of US$18.5 million for the protection of trade union leaders; (ii) the fact that 2,782 risk assessments for trade union leaders and activists have been conducted since 2012; (iii) the protection currently provided, through a range of measures, to 589 trade unionists; (iv) the application to more than 400 trade unionists of protection measure plans that include armoured vehicles, conventional vehicles and escorts. The Committee also takes note of the Government’s statement that there have been no cases of murder of trade unionists among those covered by the protection programme, nor among those whose protection was withdrawn following a renewed risk assessment. The Committee invites the Government to maintain the efforts described and to keep it informed in this regard.