Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 397, Mars 2022

1. 722. The complaint is contained in a communication dated 7 June 2020 from the National Socialist Union of Workers in Fishing, Aquaculture and Related Activities (SINSTRAPESCAVE).
2. 723. The Government sent its observations in communications dated 22 September and 2 November 2021 and 2 January 2022.
3. 724. The Bolivarian Republic of Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 725. The complainant organization denounces the arbitrary detention and subsequent irregular criminal prosecution and imprisonment of Mr Darío Salcedo, organization secretary of SINSTRAPESCAVE, as retaliation for formulating a just complaint against the employer.
2. 726. SINSTRAPESCAVE alleges that: (i) on the morning of 5 May 2020, officials from the Computer Crime Investigation Division of the Investigative and Criminal Police Corps (CICPC), without a warrant, raided the home in Caracas of Mr Darío Salcedo, a worker at the Socialist Fisheries and Aquaculture Institute (INSOPESCA) (hereinafter the public employer) and organization secretary of SINSTRAPESCAVE; (ii) they seized a computer and two mobile telephones from his home and they took him to the headquarters of the CICPC, where the Computer Crime Investigation Division operates; (iii) there they informed his family members that the president of the public employer and the director of human resources had lodged a complaint against the trade union official in respect of a Twitter message; (iv) a few weeks previously, on 17 April, Mr Salcedo had reacted from his Twitter account to a message published by another user, in which he said that the current Minister for Fisheries and Aquaculture would be unable to live without his privileges and in the conditions in which workers survive; (v) the reference to the Minister was due to the fact that he had allegedly said that the insufficient food provided in the CLAP boxes (Local Supply and Production Committees) should last them at least three months (the Minister had said that “we have to stretch it out, eat enough to sustain us and make it last until the next box comes”); and (vi) also, Mr Salcedo had sent a WhatsApp audio message to the director of human resources of the public employer, in which he strongly complained about the exorbitant increase in the price of a bag of food that is sold to the Institute’s workers, which was to rise from 15,000 Venezuelan bolivars (US$0.076) to 1,400,000 bolivars (US$7.09), in a country where the minimum wage is approximately US$2 per month, and with this bag containing just two packets of rice, two packets of sugar and two litres of oil.
3. 727. The complainant organization submits a copy of the judicial ruling of 4 May 2020 handed down by the 35th Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the Caracas metropolitan area, which gives as the grounds for the investigation messages from Mr Salcedo which, according to the judicial ruling, incited “mockery and hatred” against the presidents and directors-general of the People’s Ministry of Fisheries and Aquaculture, by indicating that those persons were allegedly blatantly robbing workers as a result of the price of the bags of food and other benefits granted to them. In particular, the criminal complaint alleged that, in an audio message sent to a human resources WhatsApp group at the Ministry, Mr Salcedo stated “that the price of this bag is robbery, that they were thieves and that he was tired of workers being robbed of their benefits”. The ruling also indicates that it was established that Mr Salcedo produced several publications distributing comments and videos designed to promote hatred and action (although no details are given in the ruling as to the specific content of these publications that led to the initiation of criminal proceedings), action that is categorized and sanctioned in the Constitutional Law against Hatred, for Peaceful Coexistence and Tolerance, highlighting action aimed at inciting contempt in the population for the authorities that represent the State of Venezuela.
4. 728. With regard to the facts that subsequently occurred, the complainant organization indicates that: (i) on 7 May 2020, Mr Salcedo was taken from his place of detention to the Palace of Justice for the preliminary hearing to be held before the 46th Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the Caracas metropolitan area, but the court declined jurisdiction because the arrest warrant had been issued by the 35th Court; (ii) on 15 May 2020, Mr Salcedo was again taken to the Palace of Justice, but the court in the case did not hand down a ruling; (iii) on 23 May 2020, Mr Salcedo was transferred from the CICPC cells on Urdaneta Avenue to the CICPC’s Arrest Division headquarters located on the El Rosal estate, where he is currently being held. The complainant trade union specifies that in that place there are highly dangerous prisoners and the inmates are so crammed into a tiny cell measuring 2 by 2 metres that they cannot all sit down at the same time, but must take turns and spend long hours standing up. SINSTRAPESCAVE indicates that in these horrible conditions of detention the physical and psychological integrity of the union’s organization secretary is at serious risk, which is further aggravated by the pandemic and the disastrous sanitary conditions in the country; (iv) on 24 May 2020, the preliminary hearing was finally held before the 46th Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the Caracas metropolitan area, whose judge decided to indict Mr Salcedo for the offence of promotion of and incitement to hatred, established in section 20 of the Constitutional Law against Hatred, for Peaceful Coexistence and Tolerance, with a prison sentence of 10 to 20 years (this section establishes the following: “Section 20: Anyone who publicly or through any means suitable for public dissemination promotes, fosters or incites hatred, discrimination or violence against a person or a group of persons, by reason of their real or alleged membership of a determined social, ethnic, religious or political group, sexual orientation, gender identity, gender expression or on any other discriminatory grounds shall be punished by imprisonment for 10 to 20 years, without prejudice to civil and disciplinary liability for the damage caused”); and (v) the judge ordered the imprisonment of the trade union leader at the Detention Centre for Type II Defendants “26 July” as if he were a public danger, located in San Juan de los Morros, Guárico state, some 149 kilometres from his home, in a country where economic hardship is compounded by a major petrol shortage, making it much more difficult for his family to travel from Caracas to San Juan de los Morros; moreover, this distancing meant that the official was completely cut off from his trade union (as an additional piece of information the complainant organization specifies that he has not yet been transferred to this prison centre due to an outbreak of tuberculosis there that has affected 27 inmates, as well as transport problems).
5. 729. The complainant organization indicates that although Mr Salcedo only has the status of defendant, in Venezuela this status is equivalent to a conviction owing to the slowness of the criminal process. Furthermore, SINSTRAPESCAVE denounces serious procedural irregularities: (i) Mr Salcedo’s defence was not allowed to have access to the file and Mr Salcedo has been held incommunicado since he was again moved to his current place of imprisonment, on the El Rosal estate, following the hearing on 24 May. This is a violation of the right to due process; and (ii) the judge already had the decision in her hand during the hearing; it had been handed to her by the Auxiliary Prosecutor of the Eighth Prosecutor’s Office (the prosecutor responsible for that office was not present at the proceedings, but did sign the documents).
6. 730. The complainant organization states that all the outrages that have been committed against Mr Salcedo for a simple trade union complaint (raiding his home, seizing his property, detaining him in subhuman conditions and subjecting him to a criminal trial that makes no sense and has no basis whatsoever, in the name of a law that is void, that in no way applies to him and with the prospect of a punishment that is out of all proportion) reflects the Government’s viciousness in respect of freedom of association. The aim is to impose an exemplary punishment in order to instil fear in everyone and paralyse the action of trade unions and their officials.
7. 731. The complainant organization adds that, conversely, no measures have been adopted in the framework of Mr Salcedo’s employment relationship: he has not been notified of any procedure to establish misconduct launched with the labour inspectorate nor of any internal administrative procedure, and neither has the payment of his wages been suspended.

B. The Government’s reply

1. 732. In its communication dated 22 September 2021, the Government transmits the information received from the competent authorities in respect of the case. The Government states that far from it being a case of arbitrary detention, due process was complied with and indicates that: (i) on 3 July 2020, the 35th Court of First Instance, acting as overseeing court for the Criminal Judicial Circuit of the Caracas metropolitan area decreed release on conditional bail in favour of Mr Salcedo, in this way replacing the preventive detention that had been imposed on him; (ii) on 2 August 2021, a preliminary hearing was scheduled for 31 August 2021 (it had not been scheduled previously in accordance with the rulings of the Supreme Court of Justice, which stipulated, in the context of the pandemic and the state of alert throughout the territory, that criminal courts would continue to operate only for urgent cases in accordance with the Basic Code of Criminal Procedure); (iii) the preliminary hearing was deferred due to the failure of the parties to appear, with only the representatives of the Public Prosecutor’s Office and of the Office of the Attorney-General of the Republic coming forward, and the prosecutor scheduling the date of 16 September 2021 for the charge to be made; and (iv) on 15 September, the hearing was held, the accused admitted the facts and was handed a sentence of five years, with the release on conditional bail being revised in accordance with the provisions of section 242 of the Basic Code of Criminal Procedure, Nos 3 (regular appearance before the court or the authority designated by the court) and 4 (prohibition on leaving the country without authorization, the area in which the accused lives or an area determined by the court).
2. 733. The Government also indicates that Mr Salcedo is no longer working for the public employer as he handed in his resignation with effect from 7 July 2020.
3. 734. In communications dated 2 November 2021 and 2 January 2022, the Government forwarded a copy of the court’s ruling of 16 September 2021 on Mr Salcedo’s trial. The Committee notes from its contents that it is clear that: (i) the conviction based the sentence on the authorities’ allegation that Mr Salcedo spread messages and audio messages, in particular via the WhatsApp network, claiming that high-ranking Venezuelan state officials are toying with the needs of the people by blatantly robbing workers as a result of the price of the bags of food and other benefits granted to them in times of pandemic, thus inciting mockery and hatred against those officials and against the President of the Republic; (ii) the ruling found that these posts by Mr Salcedo involve comments that are aimed at promoting hatred and destabilizing actions against the Government and therefore amounted to the offence of promoting or inciting hatred, as provided for and punished under section 20 of the Constitutional Law against Hatred, for Peaceful Coexistence and Tolerance; (iii) although the defence lawyer requested the dismissal of the proceedings against him, the accused admitted the charges and, given this admission, the minimum ten-year sentence was halved, in other words to a five-year sentence; and (iv) as requested by the Public Prosecutor’s Office, it was agreed to uphold the revised release on conditional bail – that is, instead of house arrest, an alternative measure of release on bail was agreed, involving regular appearances before the court every 30 days and a prohibition on leaving the country without authorization. Ancillary penalties to a prison sentence provided for in section 16 of the Criminal Code were also applied (consisting of “disqualification from political office for the duration of a sentence” and “subjection to supervision by the authorities for one fifth of the sentence term, once it has expired”).

C. The Committee’s conclusions

1. 735. The Committee observes that the present case alleges the arbitrary detention and subsequent irregular criminal prosecution and imprisonment of Mr Darío Salcedo, organization secretary of SINSTRAPESCAVE. The Committee observes, on the one hand, that the facts that had allegedly motivated the detention, criminal prosecution and imprisonment of Mr Salcedo were carried out in the exercise of his freedom of expression as trade union official. On the other hand, the Committee notes that the ruling convicted Mr Salcedo on the grounds that it had been proven that he had spread messages and audio messages claiming that high-ranking Venezuelan state officials were blatantly robbing workers as a result of the price of the bags of food and other benefits granted to them, and that this incited mockery and hatred against those officials and against the President of the Republic. The Committee also notes that it was agreed that the five-year sentence would be served through the revised release on conditional bail, whereby he would have to appear before the court every 30 days and was prohibited from leaving the country, and that ancillary penalties to a prison sentence provided for in section 16 of the Criminal Code (disqualification from political office for the duration of a sentence and subjection to supervision by the authorities for one fifth of the sentence term, once it has expired) would also be applied.
2. 736. The Committee observes in this respect that the complainant alleges in the complaint, and the Government does not contest in its reply, that this relates to messages that Mr Salcedo allegedly sent from his Twitter and WhatsApp accounts denouncing the precarious situation of workers and criticizing the officials of the relevant Ministry. The Committee also observes that Mr Salcedo’s critical remarks indicated in the initial judicial ruling of 4 May 2020 to substantiate the opening of the criminal investigation (ruling submitted with the complaint), and in the conviction of 16 September 2021 to substantiate the conviction, referred to the enjoyment of job-related benefits and were made in defence of the interests of workers.
3. 737. In this respect, the Committee wishes to emphasize the importance which it places on respect for the basic civil liberties of trade unionists and employers’ organizations, including freedom of expression, as essential prerequisites to the full exercise of freedom of association. Accordingly, the absence of civil liberties removes all meaning from the concept of trade union rights; the rights conferred on workers’ and employers’ organizations must be based on respect for those civil liberties, such as security of the person and freedom from arbitrary arrest and detention. Finally, the Committee wishes to emphasize that the detention of trade union leaders or members for trade union activities or membership is contrary to the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 119, 120 and 234].
4. 738. The Committee considers that Mr Salcedo’s criticisms on an issue of vital importance for workers (the price of the food bags and benefits granted to them) falls within the scope of freedom of expression in the exercise of their trade union freedom and should under no circumstances be subject to the imposition of criminal sanctions.
5. 739. Consequently the Committee, recalling the warnings and conclusions formulated by the Commission of Inquiry regarding other allegations of the use of criminal legislation to restrict the exercise of freedom of expression of trade union leaders and employers, expresses its deep concern that these messages by the trade union leader led to the initiation of criminal proceedings, his initial imprisonment and the handing down of a five-year sentence (having been subjected to release on conditional bail – first house arrest and, after sentencing, regular court appearances and a prohibition on leaving the country without authorization). In the light of the foregoing, the Committee urges the Government to take the necessary measures to annul any punishment or restriction, including alternative measures and ancillary penalties, imposed on Mr Salcedo for exercising his freedom of association.
6. 740. Furthermore, the Committee observes that the legislative provisions invoked to arrest, prosecute and imprison Mr Salcedo are extremely indeterminate (“anyone who publicly or through any means suitable for public dissemination promotes, fosters or incites hatred …”) and carry very heavy sentences (of 10 to 20 years’ imprisonment), and warns against their possible use, as the present case would attest, to restrict the exercise of freedom of association. The Committee urges the Government to submit to inclusive tripartite consultation the revision of the Constitutional Law against Hatred, for Peaceful Coexistence and Tolerance, in order to ensure that it cannot be used to restrict the exercise of freedom of association. The Committee, recalling the warnings and conclusions formulated by the Commission of Inquiry, requests the Government to keep it informed of all measures taken to this end and invites the Government to seek the technical assistance of the ILO in this respect.