Definitive Report - Report No 24, 1956

Case No 100 (El Salvador) - Complaint date: 20-MAR-54 - Closed

A. A. The complainants' allegations

1. 24. In a communication dated 20 March 1954 addressed to the Secretary-General of the United Nations and transmitted by him to the I.L.O, the World Federation of Trade Unions presented a complaint alleging infringements of freedom of association in El Salvador, which, in its view, constitute a violation of the Universal Declaration of Human Rights and of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
2. 25. More specifically, the complainant alleges that on 23 November 1953 Mr. Cayetano Carpio, a leader of the Union of Bakery Workers of El Salvador and a member of the El Salvador Trade Union Reorganisation Committee, was arrested in San Salvador. It is alleged that the examining magistrate concerned considered that the charge brought against Mr. Cayetano Carpio was unfounded and that, consequently, he had been wrongfully arrested. Further, it is contended that the authorities have denied that the person in question was detained from September 1952 to November 1953, although this in fact was the case. Finally, the World Federation of Trade Unions demands the immediate liberation of the person concerned.
3. 26. In accordance with the procedure in force the Director-General, in a letter dated 22 June 1954, informed the complaining organisation that any further information which it might wish to furnish in substantiation of its complaint should be forwarded to him within a period of one month. In a communication dated 24 July 1954 the World Federation of Trade Unions stated in reply that the information contained in its complaint constituted sufficient proof of the violations alleged and that it had, therefore, nothing to add to its original communication.
4. 27. The Director-General communicated the complaint of the World Federation of Trade Unions to the Government of El Salvador by a letter dated 25 June 1954, requesting the Government to forward any observations which it might wish to make.
5. 28. At its 10th, 11th, 12th, 13th and 14th Sessions, the Committee, having received no observations from the Government, adjourned its examination of the case. Letters of reminder were sent to the Government on 2 December 1954, 12 March 1955, 21 June 1955, 28 November 1955 and 23 July 1956.
   • ANALYSIS OF THE REPLY
6. 29. The Government of El Salvador presented its observations on the complaint of the World Federation of Trade Unions in a communication dated 17 August 1956.
7. 30. In its reply the Government begins by stating that the reason why it refrained in the first place from making any observations on the complaint was the fact that it regards the complaint as being completely without foundation. The Government then states that, contrary to what the complainant appears to allege, the Government of El Salvador has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ; it adds that, as El Salvador was not even represented at the session of the Conference at which that Convention was adopted, it cannot in any way be bound by an instrument in the approval of which it took no part.
8. 31. Recalling that the policy followed by the Government of El Salvador is characterised by the democratic spirit by which it is inspired and by social tolerance, the Government makes the following comments in its reply on the facts in issue. On 9 December 1953 Mr. Cayetano Carpio was proceeded against in the Criminal Court of Second Instance on a charge of having disseminated subversive propaganda. On 11 December 1953 the Court ordered the preventive detention of the accused; on 2 April 1954, having decided that the facts alleged against the person concerned did not constitute a penal offence, the Court dismissed the case. An appeal was lodged against this decision and was dismissed by the Supreme Criminal Court of Appeal on 24 June 1954. Consequently, on the same date, Mr. Carpio was again set free.
9. 32. According to the Government, these facts show that there has been no violation of freedom of association. The competent authorities did no more than their duty in instituting proceedings which they considered to be justifiable and the fact that the person against whom proceedings were taken was a trade union leader was quite independent of the measures taken. Further, adds the Government, the status of a trade union leader which a person may enjoy cannot absolve him from having to observe the law or shelter him from proceedings to which he may render himself liable by infringing the law.

B. B. The Committee's conclusions

1. 33. The World Federation of Trade Unions alleges that Mr. Cayetano Carpio, a leader of the Union of Bakery Workers of El Salvador, was arrested on the pretext of having disseminated subversive propaganda and implies that the trade union status of the person concerned was the real reason for the measures which were taken against him. The complainant adds that the Government's attitude in the case is all the more serious when it is remembered that the Government has approved the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
2. 34. The Government states that his status as a trade unionist had no connection with the measures taken against the person concerned and adds further that, the facts alleged against Mr. Carpio having been adjudged not to constitute an offence, he was released from custody. The Government then points out that it has neither ratified nor approved the above-mentioned Convention and that, in consequence, that instrument imposes no obligation upon it.
3. 35. With respect to the last point raised in the Government's reply and having regard to the fact that one of the reasons given by the Government for its delay in replying to the accusations made against it appears to have lain in the fact that, in its view, non-ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948, made it unnecessary for it to furnish any such reply, the Committee recalls' that, in discharging the responsibility which has been entrusted to it to promote the application of the principles contained in the Declaration of Philadelphia-which now constitutes an integral part of the Constitution of the International Labour Organisation-it should be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in 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), which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of their law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Conventions and stating the difficulties which prevent or delay the ratification of such Conventions.
4. 36. In these circumstances, while recognising that the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) are not binding upon El Salvador, the Committee considers that it should examine the allegations made in the present case and report thereon to the Governing Body and notes with satisfaction that the Government of El Salvador has seen fit to furnish observations on the substance of the complaint.
5. 37. With regard to the specific allegation made by the complainant, the Committee recalls that, in several earlier cases in which it has had to examine allegations relating to the prosecution and arrest of trade union leaders, it has taken the view that the only question which arose was to know what was the true reason for the measures complained against and that only in the event of such measures being taken in consequence of genuinely trade union activities could there be an infringement of freedom of association.
6. 38. In the present case the complainant simply lets it be understood that the measures taken against Mr. Carpio had their origin in his status as a trade union leader. The Government, on the other hand, affirms that there was no connection between those measures and the trade union activities or affiliation of the person concerned, who was prosecuted on a charge of having disseminated subversive propaganda. The Government adds, further, that when the charge had been dismissed Mr. Carpio was liberated immediately.
7. 39. Having regard to the imprecise nature of the allegations made by the complainant and to the statement of the Government that there was no relationship of cause and effect between the trade union status of Mr. Carpio and the measures taken against him and, especially, to the fact that Mr. Carpio was liberated as soon as the court had found that the facts alleged in the charges against him did not constitute an offence, the Committee, while drawing the attention of the Government to the importance which it attaches to the principle that it should be the policy of every government to ensure the right of a detained person to receive a fair trial at the earliest possible moment, considers that the complainant has not offered sufficient proof to show that trade union rights were infringed in the present case.

The Committee's recommendations

1. 40. In these circumstances, for the reasons indicated in paragraphs 37 to 39 above and subject to the observations contained in those paragraphs, the Committee, while regretting that the Government replied only after considerable delay and repeated reminders, recommends the Governing Body to decide that the case does not call for further examination.