REPRESENTATION (article 24) - NICARAGUA - C105 - 1982

1. International Organisation of Employers

Closed

Report of the Committee set up to examine the representation presented by the International Organisation of Employers under Artilce 24 of the Constitution alleging non-observance of the Abolition of Forced Labour Convention, 1957 (No. 105) by Nicaragua

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. Introduction
2. 1. By a letter of 29 December 1981,(Endnote_1) the International Organisation of Employers made a representation, under Article 24 of the Constitution of the International Labour Organisation, alleging non-observance by the Government of Nicaragua of the Abolition of Forced Labour Convention, 1957 (No. 105).
3. 2. The Abolition of Forced Labour Convention, 1957 (No. 105), was ratified by Nicaragua on 31 October 1967. It came into force in that country one year thereafter, on 31 October 1968.
4. 3. The provisions of the Constitution of the International Labour Organisation concerning the submission of representations are the following:
5. "Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it."
9. 4. The procedure for the submission of representations is governed by the revised standing Orders adopted by the Governing Body at its 212th Session in March 198O. (Endnote_2)
10. 5. Under Article 2, paragraphs 1 and 2 of these Standing Orders, the Director-General brought the representation and all the items of information in his possession regarding its receivability before the Governing Body.
11. 6. At its 219th Session (March 1982), the Governing Body examined the question of the receivability of the representation and considered that it fulfilled the formal conditions provided in Article 2 of the Standing Orders. It then decided to appoint the Committee provided for in Article 3, paragraph 1 of the Standing Orders, in accordance with the recommendations of its Officers in a report submitted to it at that same session. (Endnote_3) This Committee consisted of Mr. Niels Ole Andersen (Government member, Denmark), Chairman, Mr. Vicente Castellano Satater (Employer member)(Endnote_4) and Mr. Heribert Maier (Worker member).
12. 7. Immediately after being appointed, the Committee met in Geneva on 5 March 1982. It decided under Article 4, paragraph 1, subparagraph (a) of the Standing Orders: (a) to invite the IOE to submit, before 30 April 1982, any additional information it wished to bring to the attention of the Committee; (b) to invite the Government to submit its observations regarding the representation before 30 April 1982, it being understood, that any additional information received from the IOE would also be communicated to the Government.
13. 8. By a letter of 30 April 1982 the IOE indicated that it had no additional information to add to the contents of its letter of 29 December 1981.
14. 9. The Government submitted its observations on the allegations in a communication of 4 May 1982. (Endnote_5)
15. 10. The Committee noted that the allegations and the legislation disputed in the representation had already, following a complaint concerning violation of freedom of association, been dealt with by the findings and conclusions of the Committee on Freedom of Association in its 216th Report, (Endnote_6) which was examined by the Governing Body at its 219th Session.
16. 11. Between June and August 1982, informal consultations took place between the members of the Committee and the Office. During these consultations Mr. Castellano Sabater informed the Office that he approved the substantive part of this report. At their meeting held on 8 November 1982, Mr. Andersen and Mr. Maier adopted this report.
17. Examination of the representation and of the reply received
18. Allegations
19. 12. The International Organisation of Employers alleges that the Government of Nicaragua failed to fulfil the obligations incumbent on it by virtue of its ratification of the Abolition of Forced Labour Convention and, in particular, under Article 1(a).
20. 13. The IOE, considers that the non-observance by Nicaragua of its obligations is a result of the adoption on 20 July 1979 of the Act respecting the Maintenance of Public Order and Security, (Endnote_7) the amendment on 9 August 1980 of section 4 of that Act, (Endnote_8) and the sentencing by a Nicaraguan court on 29 October 1981 of a number of executives of the Supreme Council of Private Enterprise in Nicaragua (COSEP) to terms of detention and labour on public works (Endnote_9) for writing and publishing a letter addressed to the authorities of the country, in which they expressed certain opinions conflicting with the Government's social and economic policies. (Endnote_10)
21. The Government's observations
22. 14. In its communication of 4 May 1982 the Government rejects the allegation that Nicaragua has violated the Abolition of Forced Labour Convention (No. 105), and states that the persons, who had received the prison sentences were sentenced not for their position as executives of COSEP, but for endangering public security and the national economy. The Government considers that this was fully proven in the course of a regular judicial procedure, and that the sentences were in no way passed as a means of coercion or as punishment for holding or expressing political views or for ideological opposition, but for endangering the established government by violating the Act respecting the Maintenance of Public Order and Security.
23. 15. The Government recalls that the COSEP executives were freed on 15 February 1982 at the Government's request in order to strengthen national unity against aggression; it stresses that at no time during their imprisonment did they perform any form of voluntary or forced labour.
24. 16. The Government adds that, in an opinion given at the request of the Minister of Labour, the Nicaraguan Supreme Court indicated that the sentence of labour on public works provided for in Article 4 of the Act respecting the Maintenance of Public Order and Security has in practice always been inapplicable because the manner and circumstances in which this sentence is to be carried out have not been defined or regulated by any legal provision, that this sentence is not provided for in the Penal Code in force and has not been included either in the revised text of section 53 of that Code contained in Decree No. 644, adopted on 3 February 1981, subsequent to the Act respecting the Maintenance of Public Order and security; and that Article 13 of the Penal Code forbids any extensive interpretation in criminal matters. The Court concludes that, in view of the above, the use of any form of forced or compulsory labour is excluded. For these reasons the Government considers that the IOE's representation has no valid legal basis.
25. The Committee's conclusions
26. 17. The Committee notes that the questions raised by the representation concern the compatibility between Article 1(a) of the Abolition of Forced Labour Convention and the Act of 20 July 1979 respecting the Maintenance of Public Order and Security, the amendment to section 4 of that Act made on 9 August 1980, and the application of section 4, as amended, to the persons and acts mentioned in the court decision of 29 October 1981.
27. 18. The Committee considers it useful firstly to recall the scope of the international standard, account being taken also of the relevant indications given by the Committee of Experts on the Application of Conventions and Recommendations.
28. 19. Article 1 {a) of the Abolition of Forced Labour Convention states that:
29. "Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour -
30. (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system."
31. 20. The Committee of Experts on the Application of Conventions and Recommendations has indicated that this provision of the Convention applies to any legislation providing for the imposition of penalties involving compulsory labour in any form for holding or expressing political views or views ideologically opposed to the established political, social or economic system. (Endnote_11)
32. 21. Several questions have arisen in this connection. As regards the range of activities which must be protected against any punishment involving forced or compulsory labour, the Committee of Experts has stressed in particular that freedom to express political or ideological opinions entails the freedom to express oneself through the press and other publications. (Endnote_12) As regards the restrictions on those rights, and liberties which must be accepted as normal guarantees against abuse, the Committee has referred to Article 19 of the International Covenant on Civil and Political Rights (Endnote_13) and to Article 29 of the Universal Declaration of Human Rights,(Endnote_14) which define those limitations which may he established in law. The Committee has taken account, of similar criteria in evaluating national legislation and practice regarding the provisions of Article 1 (a) of Convention No. 105.(Endnote_15)
33. 22. In addition to the limits within which it must be exercised in normal circumstances, freedom of expression may also, in exceptional periods, be subject to more general restrictions. Noting that, "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed", Article 4 of the International Covenant on civil and Political Eights recognises the possibility of exceptional recourse to such action, the Committee of Experts has nevertheless stressed that emergency measures which may have a bearing on the application of Article 1 (a) of the Convention of 1957 should be strictly limited in nature and duration to what is necessary in order to cope with circumstances which would endanger the existence or well-being of the whole or part of the population. (Endnote_16)
34. 23. In examining the compatibility of the Act of 20 July 1979 respecting the Maintenance of Public Order and Security with Article 1(a) of the Abolition of Forced Labour Convention, the Committee considered that it was pointless to evaluate the legal provisions which had been repealed in 1980. It therefore limited its analysis to the text of the Act, as amended in 1980, applied in the judgement of 29 October 1981, and remaining in force. The relevant provisions of the Act are the following:
35. "Section 4. Any person committing any of the following offences shall be liable "to detention ("arresto") involving compulsory labour on public works for from ten day to two years:
36. ...
37. (c) the dissemination verbally or in writing of statements, proclamations or manifestos intending to harm -
38. 1. national security and integrity, public security and the national economy;
39. 2. the defence of order and the prevention of crime;
40. 3. the protection of the health, morals and dignity of others and their reputation and rights;
41. 4. the authority and impartiality of the judiciary."
42. 24. The Committee notes the information supplied by the Government, in particular, the opinion given by the Supreme Court indicating that the sentencing to compulsory labour on public works, as provided for in section 4 of the Act respecting the Maintenance of Public Order and Security, is and remains inapplicable under the system of law in force. In these circumstances, the Committee trusts that the Government will see no difficulty in formally amending the provisions in question.
43. 25. However, quite apart from the question of assignment to compulsory labour on public works which the Government had submitted to the Supreme Court, the Committee notes from sections 61 and 63 of the Penal Code that the detention ("arresto") provided for in section 4 of the Act in itself may involve an obligation to work at a job which may be chosen from those practised within the penal establishment: only those able to afford the cost of their upkeep and detention are exempted from this obligation. The Committee must observe that, even if those persons who were sentenced by the court decision of 29 October 1981 have not been required to perform labour during their detention, the legal provisions in force do not in themselves seem to ensure the granting of a general exemption from compulsory labour to persons convicted under section 4(c) of the Act respecting the Maintenance of Public Order and Security. In these circumstances, the Committee must examine the bearing of the penal provisions considered on the freedom to express political and ideological opinions, protected in Article 1 (a) of the Convention against punishment involving compulsory labour.
44. 26. The Committee notes that section 4(c) of the Act respecting the Maintenance of Public Order and Security covers offences defined in terms that are so general that they are either incompatible with Article 1 (a) of the Convention - such as the offence of "disseminating statements intended to harm the national economy" - or might be interpreted in a manner incompatible with the Convention, such as the offences of "disseminating statements intended to harm public security" or "the defence of order". As the Committee on Freedom of Association has observed, the danger of such an extensive interpretation is enhanced by the judicial classification of these types of offences in Nicaragua as offences "of abstract danger", which may be committed without the action resulting in any real damage to the juridically protected object. (Endnote_17)
45. 27. The Committee further notes that the government authorities stated that the provisions in question were of a temporary and exceptional nature and were adopted during a difficult period of national reconstruction. (Endnote_18) However, even if these difficult circumstances were considered likely to endanger the life or well-being of the whole or part of the population,(Endnote_19) the Committee does not consider on the basis of the elements at its disposal that these circumstances justified the imposition of penalties involving compulsory labour as a punishment for holding or expressing political views.
46. 28. The Committee therefore considers that measures should be taken to amend the legislation, in particular as regards section 4 (c) of the Act respecting the Maintenance of Public Order and Security, in order to ensure that the expression of political or ideological opinions cannot give rise to the imposition of penalties involving compulsory labour, and consequently to ensure the observance of Article 1 (a) of Convention No. 105 both in law and in practice.
47. 29. As regards the penal conviction on 29 October 1981 of a number of executives of the Supreme Council of Private Enterprise in Nicaragua under section 4{c) of the Act respecting the Maintenance of Public Order and Security, the Committee considers that, since the persons concerned have already been freed without having been required to perform compulsory labour, and whatever the bearing of their penal conviction on freedom of opinion, this aspect of the particular case does not call for comment under Convention No. 105.
48. The Committee's recommendations
49. 30. The Committee recommends the Governing Body -
50. (a) to approve this report, and in particular the following conclusions:
51. (i) section 4 (c) of the Act respecting the Maintenance of Public Order and Security provides for the imposition of penalties involving compulsory labour for offences of opinion defined in terms so general that some are incompatible with Article 1(a) of the Convention and others are at least capable of being interpreted in a manner contrary to the Convention;
52. (ii) measures should be taken to amend the legislation, in particular as regards section 4 (c) of the Act respecting the Maintenance of Public Order and Security, to ensure that the expression of political or ideological opinions cannot give rise to the imposition of sanctions involving compulsory labour;
53. (iii) the Government should inform the ILO of all measures taken to this end, so as to enable the Committee of Experts on the Application of Conventions and Recommendations to examine developments regarding this aspect of the case;
54. (iv) as regards the persons convicted under section 4 (c) of the Act respecting the Maintenance of Public Order and Security who have been freed without having been required to perform labour, their particular case does not call for comment under Convention No. 105;
55. (i) to declare the closure of the current procedure initiated following a representation submitted by the International Organisation of Employers concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105) by the Government of Nicaragua.
56. Geneva, 8 November 1982.
57. (signed) N.O. Andersen, Chairman,
58. H. Maier.
59. Endnote 1
60. Appendix I.
61. Endnote 2
62. Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93 to 95.
63. Endnote 3
64. GB.219/16/8 and GB.219/205, para. 71.
65. Endnote 4
66. Mr. Castellano Sabater died on 20 October 1982.
67. Endnote 5
68. Appendix II.
69. Endnote 6
70. GB.219/6/19.
71. Endnote 7
72. See the text of this Act in Appendix I, Annex 1.
73. Endnote 8
74. Appendix I, Annex 2.
75. Endnote 9
76. Appendix I, Annex 3.
77. Endnote 10
78. The text of this letter is appended to GB.219/6/19.
79. Endnote 11
80. See in, particular: International Labour Conference, 65th Session, 1979, Report III (Part 4B): Abolition of Forced Labour, General Survey by the Committee of Experts on the Application of Conventions and Recommendations, paras. 102 to 109.
81. Endnote 12
82. ibid., para. 133.
83. Endnote 13
84. This Article reads as follows:
85. "Article 19 1. Everyone shall have the right to hold opinions without interference.
86. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
87. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
88. (a) for respect of the rights or reputations of others;
89. (b) for the protection of national security or of public order (ordre public), or of public health or morals."
90. Endnote 14
91. This article reads as follows:
92. "Article 29
93. 1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
94. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
95. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations."
96. Endnote 15
97. See the General Survey of 1979 on the abolition of forced labour, para. 133.
98. Endnote 16
99. See in particular International Labour Conference, 52nd Session, 1968, Report, III (Part IV): Report of the Committee of Experts on the Application of Conventions and Recommendations, Part III: Forced Labour, para. 92, and 65th Session, 1979, Report III (Part 4B): Abolition of Forced labour, para. 134.
100. Endnote 17
101. GB.219/6/19, para.36.
102. Endnote 18
103. ibid.
104. Endnote 19
105. See para. 22 above.