Informe provisional - Informe núm. 58, 1962

Caso núm. 253 (Cuba) - Fecha de presentación de la queja:: 10-FEB-61 - Cerrado

1. 622. In a letter dated 10 February 1961 addressed directly to the I.L.O, the Federation of Cuban Electricity, Gas and Water Workers (in Exile) submitted a complaint relating to alleged breaches of freedom of association in Cuba.
2. 623. The Government forwarded its observations in a letter dated 25 October 1961.
3. 624. Cuba 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. A. The complainants' allegations

1. 625. The complainants allege that three fellow workers, viz. William Lesanté Naser, Julio Casielles Amigó and Orilio Luis Méndez Pérez, were accused of having been materially responsible for acts of sabotage in Havana and were shot in January 1961 after having been tried and sentenced to death " despite the fact that it was not found possible to prove them guilty ". The complainants add that the court in this case applied a law which had not been promulgated until 37 days after the acts with which the accused were charged. The complainants also allege that the members of the executive committee of the Federation of Cuban Electricity, Gas and Water Workers, including the four signatories of the complaint, were, threatened by the Government to make sure that the workers publicly demanded that the revolutionary tribunals should order the shooting of the aforesaid union members and that when they flatly refused to do so the Confederation of Trade Unions " in collusion with the Government " called meetings which were " packed with individuals who had no connection at all with our industry " and dismissed all the senior officials of the Federation from the Havana district branch.
2. 626. In its reply dated 25 October 1961 the Government begins by referring to the complaint as having been lodged " by a group of four persons in exile who have conferred upon, themselves the intensely exaggerated title of the Federation of Cuban Electricity, Gas and Water Workers' ". The Government goes on to declare that " it is deplorable that the I.L.O should have felt bound to give currency to this complaint by a group of privileged agents of the Electric Bond and Share Company against the Cuban Revolutionary People's Government, which has the support of the workers, the poor peasants, the intellectuals and the students and has organised armed militias-a Government which was bitterly fought by the United States monopolies and millionaire imperialists, by the former landowners and parasitical capitalists, by the thieving and tyrannical hack politicians dislodged from power and by the former corrupt, moneymaking, strike-breaking union leaders imposed on the workers by the tyranny of Batista ". The main contention of the Government appears to be that, while the I.L.O is prepared to examine allegations against the present Government, it did not examine complaints concerning the repression of the trade union movement under the previous régime. The reply concludes as follows: " There is not a trace of oppression of the workers in Cuba because the arms are in the workers' own hands and it is the workers who administer industry and the country itself. Action is only taken (in accordance with the law and with due respect for human dignity) against counter-revolutionaries, murderers, arsonists, terrorists, saboteurs and mercenaries who invade our country at the order of the United States Government. Never have the workers enjoyed so much freedom to meet, to settle their own problems, to discuss them with members of the Government, to hold demonstrations and to take part in the management and organisation of production. Only a government with the widest support among the workers and the entire people would turn the barracks into schools, form a militia, give arms to the workers and peasants and call: the people together to discuss questions of all kinds in public. Only a government with the unqualified backing of the people could defeat in less than 72 hours a well-planned and powerful attack launched by the United States Central Intelligence Agency with 1,50 well-armed mercenaries who made a surprise landing in the Zapata Marshes. This support is due to the fact that ours is a just and revolutionary government, a government of the workers, the poor peasants and the whole people, a government with a patriotic, democratic and socialist purpose."
3. 627. The Government appears to question the right of four persons who, before they went into exile, were officials of the Federation of Cuban Electricity, Gas and Water Workers; to present the complaint, because, in its view, they were " mercenaries " who were thrown: out of office by their organisation as enemies of the new régime.
4. 628. In paragraph 27 of its First Report, the Committee laid down the principle that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringements of trade union rights has been established for it to admit that the dissolution or purported dissolution of an organisation by governmental action extinguishes the right of the organisation to invoke the procedure. The Committee followed this principle, for example, in Case No. 3 relating to the Dominican Republic" and in Case No. 65 relating to Cuba-, when the previous Government was in power. Pursuing the same line of reasoning, the Committee, in Case No. 72 relating to Venezuela examined in May 1956, did not consider a complaint to be irreceivable because it relates to persons who no longer perform trade union duties as the result of a governmental measure dissolving the organisation to which they belonged and, in Case No. 143 relating to Spain ° examined in October 1957, did not consider a complaint irreceivable because former trade union leaders had set up a new organisation in a foreign country. The fact that their original organisation or a succeeding organisation has continued to exist in their own country, but under government control, has not been accepted by the Committee as a reason for refusing to entertain the complaint, although the question as to whether or not they were ousted from their old organisation by legitimate procedures is a factor which the Committee has had to consider when examining the complaint in substance.
5. 629. In the present case it is not disputed that the four signatories of the complaint were officials of the Cuban Federation of Workers in Electricity, Gas and Water Undertakings, an organisation which apparently still exists in Cuba, but from which the complainants contend they were ousted as a result of threats by the Government. While the arguments of the Government on this contention are a matter for consideration when examining the merits of the case, the Committee considers that, in the circumstances, and following its earlier jurisprudence, the complaint should be regarded as receivable.
6. 630. The second contention of the Government is that no comparable complaints against the repression of the trade union movement by the previous régime were entertained by the Committee. In fact, the Committee, in Cases No. 65 and 159, examined numerous allegations against the previous Cuban régime, including allegations relating to arrests and acts of violence against trade unionists, and made recommendations to the Governing Body which were drawn to the notice of the Cuban Government.
7. 631. As regards the substance of the allegations, the Government declares that Messrs. Lesanté Naser, Casielles Amigó and Méndez Pérez were arrested and sentenced in accordance with laws passed before the acts of terrorism which they committed and were convicted by an appropriate, responsible court. The Government contends that they conspired to destroy the electricity service and to commit terrorist acts and that, as the result of the activities of these persons and their associates, five of the main electrical substations in Havana were dynamited. The Government adds that no claim by the workers was involved and that no dispute with the workers was in progress and asks since when has the placing of bombs to blow up publicly owned undertakings been a trade union activity and since when has the storing of dynamite and conspiring to assassinate leaders of the Revolutionary Government and sabotaging the nationalised industries been one of the duties of trade unionists.
8. 632. If, in fact, the grounds on which the persons concerned were sentenced had no relation to the exercise of trade union rights, the matter would fall outside the competence of the Committee. In the past, however, the Governing Body has emphasised that the question as to whether such a matter is one relating to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. Where allegations as to arrests and sentences of trade unionists have been met by governments with statements that the arrests or sentences were on the ground of subversive activities or for common law crimes, the Committee has followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the legal or judicial proceedings instituted and the result of such proceedings.
9. 633. In these circumstances, while it is not clear from the complaint how far questions relating to trade union rights may have been involved, the Committee considers that, having regard to the allegations that there was no evidence of sabotage by the persons concerned and that they were convicted by virtue of retroactive legislation and to the gravity of allegations concerning the loss of human life, it needs to have before it the text of the court decisions on which the Government relies before it can judge how far the contention of the Government that the cases involving the persons concerned were purely cases of sabotage, and not cases involving the exercise of trade union rights, is justified.
10. 634. In these circumstances the Committee recommends the Governing Body to request the Government to furnish the texts of the judgments in accordance with which the three persons concerned were sentenced to death.
11. 635. As stated in paragraph 625 above, the complainants also allege that the members of the executive committee of the Federation of Cuban Electricity, Gas and Water Workers, including the four signatories of the complaint, were threatened by the Government to make sure that the workers publicly demanded that the revolutionary tribunals should order the shooting of the aforesaid union members and that when they flatly refused to do so the Confederation of Trade Unions " in collusion with the Government " called meetings which were " packed with individuals who had no connection at all with our industry " and dismissed all the senior officials of the Federation from the Havana district branch.
12. 636. On this point the Government declares in its reply that it is untrue that it threatened the members of the executive committee of the Federation of Cuban Electricity, Gas and Water Workers that they must demand the shooting of the accused and it adds that "All the workers spontaneously called for this sentence to be given ". It goes on to say that the meetings which dismissed the union officials from office were called and held in accordance with the union rules and were attended by more than 3,000 members of the Federation and the Havana district branch of the electricity, gas and water workers.
13. 637. While appreciating that the Government contends that the workers who were shot had been found guilty of sabotage, the Committee has serious difficulty in accepting without reservation the account of these events given by the Government. It is difficult to reconcile the statement that all the workers spontaneously called for the shooting of union members with the Government's further statement that 314 workers were suspended, some of whom will be given work only in places where they cannot commit sabotage. Nor can the existence of an emotional popular demand for the execution of a capital sentence properly be invoked before the Freedom of Association Committee as evidence upon the question whether or not there has been a violation of freedom of association.
14. 638. While noting that the Government denies the allegations to the effect that the members of the executive committee of the Federation of Cuban Electricity, Gas and Water Workers were threatened, the Committee is far from clear concerning the relationship between these allegations and the dismissals admitted by the Government.
15. 639. In this connection the Committee wishes to emphasise, as it did in Case No. 159 relating to conditions in Cuba under the previous Government, the importance which it has always attached to the fact that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights, and to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. It wishes to emphasise further, as it did in Case No. 159 relating to conditions in Cuba under the previous Government, the importance it has always attached to the principle that workers' organisations should have the right to elect their representatives in full freedom. The Committee recommends the Governing Body to draw the attention of the Government to the foregoing principles.
16. 640. The complainants also allege that as a result of the events described in paragraph 635 they were persecuted to such an extent that they were forced to take refuge in various embassies, where they lived for more than 50 days before finally going into exile.
17. 641. Lastly, the complainants allege that, after the executions took place, the Government dismissed more than 500 workers in the electricity industry without notice; that more than 100 workers in the same industry are in prison; and that as many again have had to give up their jobs as a result of the authorities' threats of imprisonment and that there are a number of union officials among them.
18. 642. On this point the Government declares in its reply that only 314 workers were suspended; that the proper procedure was observed in each case; that many workers have been reinstated in their jobs after due investigation; that others will be given work in places where they cannot commit sabotage; that it is false to say that hundreds upon hundreds of workers have been tortured and that " There is not a trace of oppression of the workers in Cuba because the arms are in the workers' own hands and it is the workers who administer industry and the country itself ".
19. 643. In this connection the Committee recommends the Governing Body to draw the attention of the Government to the importance which it has always attached to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Cuba, that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.

The Committee's recommendations

1. 644. In all the circumstances the Committee recommends the Governing Body:
   • (a) to reaffirm the duty of the Committee to examine all complaints which are receivable under the rules in force, irrespective of the government to which they relate, with equal impartiality;
   • (b) to decide that the complaint is receivable, having regard to the principle on which the Committee has acted consistently since its First Report that a government cannot deny the right of complainants to submit a complaint by reason of measures taken against them which are alleged in the complaint to have violated freedom of association;
   • (c) to reaffirm that political matters not involving the exercise of freedom of association are outside the competence of the Committee and to decide that, in these circumstances, the Committee has no jurisdiction of the complaint in so far as the facts out of which it arose may have been acts of sabotage and is likewise incompetent to deal with the political matters referred to in the Government's reply;
   • (d) to reaffirm that the fact that a complaint may have a political aspect does not relieve the Committee of its duty of examining whether or not an allegation of violation of freedom of association is well founded;
   • (e) to draw the attention of the Government to the fact that it is bound by the obligations imposed by 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), ratified by Cuba;
   • (f) to reaffirm that the question whether a matter relates to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned;
   • (g) to request the Government, in accordance with the practice always followed in cases in which allegations as to sentences passed on trade unionists have been met with statements that such sentences were passed because of subversive activities or common law crimes, to indicate, in order to enable the Committee to reach a conclusion as to how far any question of freedom of association was involved, whether the appropriate and responsible court by which the sentences of death in the case of Messrs. Lesanté Naser, Casielles Amigó and Méndez Pérez were pronounced was an ordinary court of law, and, if not, to give particulars as to its nature and procedure and to request the Government to furnish the text of the judgment given;
   • (h) to decide that an emotional popular demand for the execution of a capital sentence cannot be invoked before the Freedom of Association Committee as evidence upon the question whether or not there has been a violation of freedom of association;
   • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the fact that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights and to the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (j) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Cuba, that workers' organisations should have the right to elect their representatives in full freedom;
   • (k) to draw the attention of the Government to the importance which the Governing Body attaches to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Cuba, that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.