Interim Report - Report No 248, March 1987

Case No 1351 (Nicaragua) - Complaint date: 17-OCT-85 - Closed

1. 421. The Committee examined Cases Nos. 1129 (presented by the Latin American Central of Workers and the World Confederation of Labour) and 1351 (presented by International Organisation of Employers) at its November 1986 meeting (see 246th Report, paras. 197 to 265, approved by the Governing Body at its 234th Session (November 1986)). The Committee had already examined Case No. 1129 at its meetings of November 1982, February 1984 and November 1985. (See 218th Report, paras. 467 to 481; 233rd Report, paras. 236 to 242 and 317; and 241st Report, paras. 440 to 494, of November 1982, February-March 1984, and November 1985, respectively.)
2. 422. Subsequently, the Government sent certain observations in communications dated 12 and 16 January 1987. The International Organisation of Employers sent additional information concerning Case No. 1351 in a communication of 23 January 1987.
3. 423. Nicaragua 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. Previous examination of the cases

1. 424. When it examined Case No. 1129 at its 1986 meeting, the Committee reached the following conclusions on the allegations then pending (see 246th Report, paras. 248 and 249):
2. The Committee notes that, according to information provided by the Government, Arcadio Ortéz and Ricardo Cervantes Rivo were sentenced by the anti-Somoza people's courts for belonging to an armed counter-revolutionary organisation and for activities in support of the same organisation. The Committee regrets that the Government, in referring to the sentence handed down on the trade unionists Milton Silva Gaitán and Orlando Napoleón Molina Aguilera by the anti-Somoza people's courts did not mention the specific charges brought against them. The Committee also regrets to note that the Government failed to reply to the allegations concerning the raid on the CTN headquarters on 24 October 1985 involving destruction of its archives and concerning the arrest, sometimes accompanied by threats of death or torture, of the trade unionist Eduardo Aburto, Eric Gouzález González, Carlos Herrera, Sergio Rosa and Eugenio Membreño (in the case of the latter, the claimants had alleged his arrest on October 1985, whereas in the Government's reply, reference is made to the release of these trade unionists in March 1983) and to the searching of houses accompanied by threats and intimidation to the families of the two last-mentioned trade unionists. In these circumstances, the Committee accordingly requests the Government to provide information on these aspects of the case as a matter of urgency, as well as the sentences which have been or will be handed down in respect of the trade unionists mentioned in this paragraph. The Committee notes that the anti-Somoza people's courts were specifically created by the decree on the state of emergency in April 1983, and recalls that it has always attached great importance to the fact that all cases, including those in which trade unionists are charged with political or common law crimes, should be tried promptly by an impartial and independent authority. The Committee requests the Government to transmit the text of the legislation establishing the anti-Somoza tribunals.
3. 425. As regards Case No. 1351, the Committee made the following recommendations at its meeting of November 1986 on the allegations then pending (see 246th Report, para. 265 (j) and (k)):
4. The Committee also notes that according to the Government, on 6 and 7 September 1985 no one was arrested for matters related directly with the allegations. The Committee requests the Government to indicate specifically whether the president of COSEP was placed under house arrest on 7 September 1985 ("Private Enterprise Day"), as alleged by the complainant and, if so, the reasons.
5. The Committee observes that Decrees Nos. 128 and 130 proclaiming a state of national emergency with the subsequent restrictions on civil and trade union freedoms should have expired at the end of October 1986. The Committee expresses the firm hope that these restrictions will not be reimposed and requests the Government to furnish information on the subject.
6. B. Further developments
7. 1. The Government's replies
8. 426. As regards Case No. 1129, the Government encloses with its communication of 12 January 1987 the text of Decree No. 1233 of 11 April 1983, which created the anti-Somoza people's courts. The Decree's preamble states, in particular, that the exceptional situation arising from the war and the crimes against humanity perpetrated by the counter-revolutionaries "require flexible interim judicial organs to judge and pass sentence on persons found guilty of these crimes against humanity, while the state of emergency persists". Sections 1 through 6 of the Decree are reproduced below:
9. Section 1. First and Second Instance Anti-Somoza People's Courts are hereby created and given jurisdiction over the crimes specified in sections 1 and 2 of Decree No. 1074 of 6 June 1982, and similar crimes described in the Criminal Code; the organisation, operation and jurisdiction of these courts shall be governed by the provisions of this Act.
10. Section 2. A first instance Anti-Somoza People's Court is hereby established in the city of Managua, with jurisdiction over the entire Republic; likewise, an Anti-Somoza People's Appeals Court is hereby established in the same city, with jurisdiction over appeals filed in connection with the decisions of the first instance court.
11. Section 3. Each of the courts mentioned in the previous section shall be composed of three titular members and their respective alternates, to be appointed by the National Reconstruction Government Junta; one of these will serve as president of the court.
12. Section 4. Only adult, Nicaraguan citizens with full citizenship rights will be eligible to sit on the above-mentioned courts. The person appointed to serve as president of the court must be an attorney-at-law.
13. Section 5. Each court shall appoint a clerk, a process server and such other staff as the court may need.
14. Section 6. The crimes referred to in section 1 of this Act shall be tried in accordance with the procedures established by Decree No. 896 of 4 December 1981, except that there shall be no ordinary or extraordinary recourse against the decisions of the Appeal's Court.
15. 427. The jurisdiction of the anti-Somoza people's courts shall extend to the crimes described in sections 1 and 2 of Decree No. 1074 of 6 July 1982, which are set out below:
16. Section 1. Crimes against national security shall include:
17. a) actions designed to submit the nation, in whole or in part, to foreign domination, or to undermine its independence and integrity;
18. b) the disclosure of political secrets or information on national security as regards the country's defence or foreign relations, or secrets whose disclosure may undermine the country's economic security;
19. c) actions designed to damage plants, roads, bridges, public works or property needed for defence, with a view to undermining the nation's defensive efforts;
20. d) the use of arms with a view to attacking the national Government, its agencies or employees, as well as all actions undertaken for the same purpose;
21. e) any attempt to depose the local authorities or to prevent legally appointed or elected officials from assuming office;
22. f) any effort to prevent the authorities from carrying out their functions freely and in compliance with administrative or judicial orders;
23. g) the proposal and acceptance of, or participation in conspiracies to commit any of the crimes listed in this section, as well as complicity in the same. Persons found guilty of the crimes mentioned in subsections (a), (b), (c) and (d) of this section will be sentenced to terms of imprisonment ranging from five to 30 years; those found guilty of the crimes mentioned in the other subsections shall face prison sentences ranging from three to 15 years.
24. Section 2. The authors of, accomplices in or accessories to the crime of sabotage against production centres, public service facilities, infrastructure, public or private means of transport or any other type of public or private equipment or installation will be sentenced to terms of imprisonment ranging from eight to ten years.
25. The authors of, accomplices in or accessories to crimes of assault involving the use of weapons of war or the uniforms, insignias or other means of identification of the armed forces or law enforcement staff, shall likewise be sentenced to terms of imprisonment ranging from eight to ten years.
26. 428. Decree No. 896 (a procedural Act for crimes against the public order and national security), dated 4 December 1981, includes the following provisions, among others:
27. Section 1. Ordinary courts shall have jurisdiction over the infractions of the "Act for the preservation of the public order and national security" listed in Decree No. 5 of 20 July 1979, as amended, in accordance with the procedures established in this Decree.
28. Section 2. The following rules shall apply to the first instance court's investigation, prosecution and punishment of crimes listed in the above-mentioned Decree:
29. a) proceedings shall be opened at the request of the Government's prosecutor, who shall notify the person or persons indicted; such person or persons shall have two days in which to reply orally or in writing, personally or through their attorney. At their own request, or at any convenient time, the person or persons under indictment may make statements without being under oath;
30. b) if the person or persons indicted fail to reply within two days, either personally, or through an attorney, in spite of the judge's summons, they will be considered to have entered a plea of not guilty; in the event that such person or persons have not retained counsel, the court shall appoint a public defender so that the proceedings may continue;
31. c) once the period for replying to the indictment has elapsed, or once the court has appointed a public defender, the court will hear testimony within a maximum period of eight days, subject to the extensions provided for in section 7 of this Act. Thereupon, the judge will pronounce judgement within a period of three days if the person or persons indicted are in detention, or within a period of ten days if the person or persons indicted are not in detention;
32. d) if one or more of the persons indicted are not present, those who are absent will be tried apart from the main trial, with a view to expediting the proceedings involving those who are present. The separate proceedings for those who are absent shall be based on a copy of the corresponding indictment and a record shall be made of those failing to appear; thereupon a summons shall be issued in accordance with the provisions for summary trials contained in section 369;
33. e) during the first instance proceedings, which may not exceed a period of 20 days, person or persons indicted who are being detained are considered to be under legal arrest and, if found guilty, such arrest will continue until a final judgement is handed down.
34. Section 5. At any point during the proceedings, the judges and courts may, at the request of the Government's prosecutor, order the arrest or release on bail of the person or persons indicted. The Government's prosecutor will be consulted with regard to collective releases on bail.
35. 429. As regards Case No. 1351, the Government provides the following information on the state of emergency in its communication of 16 January 1987: On 9 January 1987, the President of the Republic of Nicaragua proclaimed the Political Constitution which had been ratified by the National Assembly after public consultation and debate. On the same day, the Government published Decree No. 245 which re-established the state of emergency as a juridical means of defence in the war of the United States against Nicaragua, with a view to fighting counter-revolutionary actions and preserving the rights of Nicaraguan citizens.
36. The scope of the aggression facing Nicaragua was recognised by the International Court of Justice of the Hague in its historic sentence of 27 June 1986, in which it clearly and categorically condemns the Government of a certain country for its violations of such basic principles of International Common Law as abstaining from using and threatening the use of force, non-intervention and the respect for the sovereignty of States. This landmark sentence clearly states that there is no justification whatsoever for this Government to undertake such actions, which victimises the Nicaraguan people. Likewise, the sentence reflects the scope of the war of aggression that has been unleashed on the Nicaraguan people, and justifies the emergency measures which the Government of Nicaragua has taken in accordance with international standards.
37. The judgement handed down by the International Court of Justice provides a fundamental legal foundation for the Nicaraguan positions. However, in spite of the World Court's request that the country in question cease and desist its aggression against Nicaragua, it has continued and stepped up its aggression, as evidenced by the recent decision of its President to sign a Bill that approves new funds for its mercenary forces and, what is more, provides for the training of these mercenary groups by North American military advisers and authorises the supply of all types of weapons, including airborne, land and marine means of transport. These actions constitute an interference in the Latin American world; they exacerbate the crisis to levels heretofore unknown and tend toward the generalisation or "Vietnamisation" of the conflict.
38. The State in question has also continued pursuing its bloody and inhumane official policy of state terrorism; several officials of its Government, including the President, have openly recognised that their avowed policy is to bring down the Government of Nicaragua. Moreover, by using an illegal veto to block the resolution of the United Nations Security Council giving effect to the World Court's judgement, this Government left Nicaragua no choice but to resort to the General Assembly of the United Nations which, on 3 November 1986, issued an historic resolution which urgently called for the complete and immediate application of the decision handed down by the International Court of Justice on 27 June 1986 respecting military and para-military activities in and against Nicaragua, in accordance with the pertinent provisions of the Charter.
39. Lastly, the Government of Nicaragua shares the hope of the Committee on Freedom of Association that the state of emergency will be lifted as soon as its underlying causes have disappeared.
40. 2. New allegations
41. 430. The International Organisation of Employers indicates in its communication of 23 January 1987 that the state of emergency was not lifted at the end of October. On 9 January 1987, the President of Nicaragua proclaimed the nation's new Constitution, which had been adopted by Parliament in late November 1986; in particular, the Constitution guarantees the right to strike, the right of association, assembly, habeas corpus, affiliation with political parties, and the right to receive and distribute information. Less than two hours after this proclamation, which automatically derogated Decrees Nos. 128 and 130 (which declared the state of emergency), the President of the Republic and the official radio station, "La Voz de Nicaragua", announced that the national state of emergency had been re-established by means of Decree No. 245 for a period of one year, and that 13 clauses of the new Constitution were suspended; these clauses concern the inviolability of the home, correspondence and communications (article 26); the right to express opinions in public and in private, individually or collectively, orally, in writing or by any other means (article 30); the right of movement within the country, to enter and to leave (article 31); the guarantee against arbitrary detention (article 33); the right of habeas corpus (for actions against the public order) and the constitutional guarantee for the protection of civil rights (article 45); the right of workers to establish organisations for the defence of their interests (article 49); the right of assembly without prior authorisation (article 53); the right of public demonstration (article 54); the right to specific information, and to solicit, receive and spread information and opinions, orally, in writing or by any other means (article 66); the guarantee against censorship (article 67 and 68 (second part)); and the right to strike (article 83).
42. 431. According to the IOE, immediately prior to this new suspension of civil rights related to the exercise of trade union freedoms, the trade unions, the employers' associations and the political parties in opposition had called for the state of emergency and the restrictions to civil liberties to be limited to the troubled areas in the northern part of the country. Their request went completely unheeded and unanswered.

C. The Committee's conclusions

1. 432. The Committee notes that according to the pertinent legislation, the anti-Somoza people's courts are special or extraordinary tribunals which handle summary proceedings entailing a number of significant restrictions on the rights of defendants. Nevertheless, the Committee notes that according to the legislation involved, the crimes over which the anti-Somoza people's courts have jurisdiction, in principle, have no bearing on the exercise of trade union rights or activities. Noting however the contradiction on this point between the complainant and the Government, the Committee again asks the Government to supply copies of the judgements of these courts concerning the persons mentioned by the complainants. The Committee also requests the Government to reply to the allegations made in Case No. 1129.
2. 433. As regards the declaration of the state of emergency contained in Decree No. 245 of 9 January 1987, the Committee takes note of the important motives invoked by the Government, and of the restrictions which that situation implies in the exercise of certain fundamental public freedoms and trade union rights, as noted by one of the complainant organisations. In this respect, the Committee notes that the restrictions previously examined in Cases Nos. 1317 and 1351, contrary to the Government's letter of 16 January 1987, are not limited to counter-revolutionary activities. The Committee has always refrained from expressing an opinion on the political aspects of a state of emergency (see, for example, 151st Report, Case No. 809 (Argentina), para. 199), while recommending that in the event of states of siege or emergency, as regards its relations with employers' and workers' organisations and their representatives, the Government should as far as possible rely on measures provided for in ordinary law rather than on emergency measures which are liable, by their very nature, to involve certain restrictions on fundamental rights (see, for example, 56th Report, Case No. 216 (Argentina), para. 157).
3. 434. For its part, the Committee of Experts on the Application of Conventions and Recommendations has emphasised that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists (see General Survey, Freedom of Association and Collective Bargaining, Report III, Part IV(B), International Labour Conference, 69th Session, 1983, para. 72). Given that the state of emergency has continued over a period of several years, entailing serious restrictions on trade union rights and public freedoms that are essential for the exercise of such rights, the Committee again expresses the firm hope that the state of emergency will be lifted in the near future. Although it recognises the existence of extremely grave circumstances in Nicaragua, the Committee considers that a return to normality in trade union life would be facilitated, in any case, by limiting the application of the state of emergency to certain geographical areas. At least, it is necessary to safeguard the exercise of specifically trade union rights such as the establishment of employers' and workers' organisations, the right to hold trade union meetings in trade union premises, and the right to strike in non-essential services.
4. 435. Lastly, the Committee notes that the Government has not sent its observations on the allegation pending in connection with Case No. 1351.

The Committee's recommendations

1. 436. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee requests the Government to lift the state of emergency in the near future. In the meantime, it requests the Government to limit its application to certain geographical areas. In any case, it is necessary to safeguard the exercise of specifically trade union rights such as the right to organise, the right to meet on trade union premises, and the right to strike in non-essential services.
   • b) With a view to this, it requests the Government, in its relations with employers' and workers' organisations, to rely on measures provided for in ordinary law rather than on emergency measures.
   • c) It requests the Government to send its observations and supply the information requested by the Committee during its previous examination of these cases as regards issues still pending, in particular copies of the judgements of the anti-Somoza people's courts concerning the trade unionists mentioned by the complainants.