Interim report
Complaints against the Government of Colombia
presented by
-- the International Confederation of Free
Trade Unions (ICFTU)
-- the Latin American Central of Workers (CLAT) and
-- the World Federation of Trade Unions (WFTU)
Allegations: Murders and other acts of violence against trade
union officials and members, acts of anti-union discrimination and
refusal to reorganize the representativity of a trade union organization
248. The Committee last examined Case No. 1761 at its March 1995 meeting [see 297th Report, paras. 451-464]. The Latin American Central of Workers (CLAT) sent additional information in communications dated 2 and 8 May and 31 July 1995. The Government sent partial observations in communications dated 29 August and 9 October 1995.
249. The Committee last examined Case No. 1787 at its June 1996 meeting [see 304th Report, paras. 159-178]. The International Confederation of Free Trade Unions (ICFTU) subsequently submitted additional information in communications dated 20 and 28 May and 18 July 1996.
250. The complaint corresponding to Case No. 1896 is contained in a communication from the Latin American Central of Workers (CLAT) dated 7 May 1996.
251. At its meeting in December 1995, the Committee of Experts on the Application of Conventions and Recommendations made an observation on the application by Colombia of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and requested the Government to take measures to bring its legislation in line with the Convention. During the discussion of the case concerning the application of this Convention by Colombia at the meeting of the Conference Committee on the Application of Standards in June 1996, the Minister of Labour and Social Security, Orlando Obregón Sabogal, invited the ILO to carry out a mission in his country with a view to promoting trade union rights and social dialogue. Subsequently, the Government decided to extend the mandate of the mission to the cases pending before the Committee on Freedom of Association of the Governing Body (Cases Nos. 1761, 1787 and 1896).
252. The above-mentioned mission was carried out from 7-11 October 1996 by Santiago Pérez del Castillo, Professor of Labour Law from the University of Uruguay, accompanied by Horacio Guido, official of the Freedom of Association Branch of the International Labour Standards Department and Luis Zamudio, specialist in international labour standards of the Multidisciplinary Advisory Team based in Lima, Peru [see the report of the mission in Annex II]. The Government submitted observations on the three cases pending to the mission.
253. Colombia has ratified both 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).
Case No. 1761
Previous examination of the case
254. During the previous examination of the case, when it dealt with allegations concerning the murder of trade union officials and the judicial proceedings of trade unionists, the Committee made the following recommendations [see 297th Report, para. 464]:
Recalling that the rights of workers' and employers' organizations can be exercised only in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members, and that it is the responsibility of governments to guarantee respect for this principle, the Committee urges the Government to take steps to ensure that judicial inquiries are carried out immediately to clarify all the alleged facts, determine responsibilities and punish the authors of the assassination of the trade union officials Rodrigo Rojas Acosta, Alberto Alvarado, Tina Soto Castellanos and Rosario Moreno, as well as the assassination of Hugo Zapata Restrepo and the serious wounds sustained by Carlos Posada during the search of the headquarters of the Single Federation of Workers of Antioquía (FUTRAN). The Committee requests the Government to keep it informed of the outcome of each of the inquiries undertaken, and of the outcome of inquiries being conducted into the assassination of trade union officials Perea Israel and Camelo Reinaldo Miguel;
The Committee requests the Government to keep it informed of the outcome of the current trials of Mr. Luna, Mr. Chaparro and Mr. Patiño and to send it the text of the judgements handed down.
255. Similarly, given the failure of the Government to reply to certain allegations submitted, the Committee made the following recommendation:
The Committee requests the Government to send complete observations on the following allegations as soon as possible: (1) the arrest of eight union officials (Ortega García Jorge Luis, Tovar Arrieta Domingo Rafael, Triviño Flavio, Orozco Nassam Luis Ferdando, Martínez César, Quiceno Evelio, Escobas Héctor and Ronancio Germán) on 12 February 1994 in Mesitas; (2) the expulsion of workers from the headquarters of the Construction Workers' Trade Union (SINDICONS) on 11 February 1994 in Cali; (3) the carrying out of visits by members of the state security to trade union meetings and headquarters, for example the Congress of the National Federation of Construction and Cement Workers, which was held in Bogotá between 9 and 12 February 1994; and (4) the activities of paramilitary groups in Medellín that are preventing the normal exercise of trade union activities.
Additional information submitted by the CLAT
256. In its communications dated 2 and 8 May 1995, the CLAT alleges the murders of two trade union officials: Guillermo Alonso Benítez Zapata, legal adviser of the Workers' Union of Olimpo Ltd. (SINTRAOLIMPO), on 26 April 1995 in front of his home in the town of Chigorobo, Antioquía, and Marco Julio Martínez Quiceno, executive of the Workers' Union of Skanska, on 3 May 1995, at his home in the municipality of Tierralta, Córdoba.
257. In its communication of 31 July 1995, the CLAT alleges that the trade union official, Fernando Alfonso Davila Girón, president of the State Enterprise Workers' Union of Tuluá, disappeared on 26 November 1994 and that his relations announced his disappearance to the First Office of the General Prosecutor of Tuluá (anti-abduction unit).
The Government's reply
258. In its communications dated 29 August and 9 October 1995, the Government states that the Office of the General Prosecutor of the Nation had carried out inquiries in connection with the disappearance of Fernando Alfonso Davila Girón, that these were at the initial stage and that it would, in due course, communicate all information it might have been able to obtain in this respect.
259. The Government handed over to the mission documentation provided by the Office of the General Prosecutor concerning the allegations on acts of violence against trade union officials and members which, in particular, contained the following information:
Case No. 1787
Previous examination of the case
260. During its previous examination of the case, when examining allegations concerning the murders and disappearances of/and other acts of violence against trade union officials and members, the Committee made the following recommendations [see 304th Report, para. 178(a)]:
... expressing its deep concern at the increasing climate of violence in the country and the large number of murders and acts of violence against trade union officials and members, the Committee urges the Government to take immediately the necessary steps for the initiation of judicial investigations to elucidate all the alleged murders, threats and other acts of violence, establish who was responsible for them and punish the guilty parties. The Committee requests the Government to keep it informed in this respect. Furthermore, the Committee urges the Government to intensify its efforts to provide effective protection for all the trade union officials and members who have received threats. The Committee requests the Government to provide information on all the cases referred to in the annex (which is reproduced here below):
Allegations pending in March 1995
Murders:
Attempted murder:
Death threats:
Death threats and attempted murder:
Detention and raids on homes:
Raids on union headquarters, telephone tapping,
surveillance of trade union members:
Additional information presented by the complainant organization
in a communication dated 20 October 1995
Murders:
Disappearances:
Physical aggression and police repression:
Threats against:
261. Furthermore, when examining allegations on anti-union discrimination, the Committee made the following recommendations [see 304th Report, para. 178(b), (c) and (d)]:
... recalling that protection against anti-union discrimination must be provided, in particular against all acts to dismiss workers or prejudice them in any other way by reason of their trade union membership or activities, the Committee requests the Government to take the necessary steps to carry out an immediate investigation into the ALFAGRES S.A. enterprise and, in the event that the alleged acts of discrimination are proven, to reinstate the trade union officials who were dismissed, and to take steps to put an end to the threats or any other form of prejudice against workers belonging to the trade union. The Committee requests the Government to keep it informed in this respect;
... with regard to the Trade Union of Government and Public Administration Workers (SINTRHA), the Committee requests the Government to send, without delay, its observations on the allegations concerning the suppression of the posts of trade union officials and members, encouragement by the Government in public administration of an anti-union campaign to intimidate workers who wished to join the union, and the dismissal of members of the Executive Committee of the SINTRHA enterprise. The Committee requests the complainant organization to send its comments on the statement made by the Government concerning the refusal to register the amendments to the SINTRHA statutes; and
... recalling that the Government was previously requested to take the necessary measures to enable trade union leaders and members of the SINTRATEXTILIA trade union dismissed for their legitimate trade union activities to secure reinstatement in their posts, the Committee urges the Government to take measures to this end and to keep it informed in this respect.
Additional information from the complainant
262. In its communications dated 20 and 28 May and 18 July 1996, the ICFTU alleges various murders of trade union officials and members. In particular, the complainant organization states that:
The Government's reply
263. In its communication of September 1996, the Government once again states that inquiries are being carried out in connection with the death of the trade unionists Luis Noguera Cano and Eliecer Ojeda Cano. Furthermore, the Government points out that a person has been detained and is being tried in connection with the inquiries into the death of Luis Noguera Cano.
264. The Government handed over to the mission much information on acts of violence against trade union officials or trade union members, or against trade union premises. In particular, the Government states that judicial inquiries have begun in connection with the following murders of trade union officials or trade union members: (1) Antonio Moreno; (2) Manuel Ballesta; (3) Francisco Mosquera Córdoba; (4) Carlos Arroyo de Arco, (5) Francisco Antonio Usuga; (6) Pedro Luis Bermúdez Jaramillo; (7) Armando Umanes Petro; (8) William Gustavo Jaimes Torres; (9) Ernesto Fernandez Pezter.
265. In addition, the Government states that inquiries are being carried out in connection with the explosion at the headquarters of the National Construction Workers' Trade Union (SINDICONS) in Medellín.
266. As regards the alleged murders of the trade union members belonging to SINTRAINAGRO, Oriol Chaverra, Hernán Correra, Medardo Cuestas, Manuel Márquez, Pedro Barbosa, Omar Casarubio, Fernando Pérez and Amin Palacio, the Government states that these persons are alive and that they have not lodged any complaints that attempts have been made on their lives.
267. Concerning the allegations on the arrest of and death threats made against the trade union officials Domingo Tovar and Jorge Ortega García, the Committee analyses the Government's comments within the framework of Case No. 1761.
268. Concerning the allegations that had remained pending on acts of anti-union discrimination, the Government informed the mission of the following:
Case No. 1896
The complainant's allegations
269. In its communication dated 7 May 1996, the Latin American Central of Workers (CLAT) states that on 23 February 1996 the Ministry of Labour drew up Resolution No. 00431 referring to a census carried out in the National Telecommunications Enterprise of Colombia (TELECOM) concerning the representativity of trade union organizations operating within this enterprise. According to the complainant organization, the resolution stated that the Trade Union of Workers of the National Telecommunications Enterprise (SITTELECOM) had a total of 1,779 members as of 30 November 1995; this trade union rejected the census carried out by the Ministry of Labour, alleging that it had 4,471 active members (the enterprise upholds these figures by providing the list of check-offs for trade union contributors). The trade union organization explains that it should be borne in mind that the other organization representing TELECOM workers is the TELECOM Technicians Association (ATT), an organization which only represents technicians. SITTELECOM, on the other hand, covers various types of workers in the enterprise. In the census, the ATT is represented as being the majority organization in terms of membership (1,804) and therefore authorized by law to discuss the list of claims and sign a new collective labour agreement. Finally, the complainant organization alleges that the official figures presuppose the modernization of SITTELECOM whilst depriving it of the legitimate right to exercise its trade union prerogatives.
The Government's reply
270. The Government informs the mission that on 23 February 1996 the Ministry of Labour and Social Security issued Resolution No. 00431 through the Labour Department, which stated that the Union of Workers of the National Telecommunications Enterprise "SITTELECOM" had 1,779 members as at 30 November 1995 and that the TELECOM Technicians Association (ATT) had 1,804 members, out of a total of 8,710 workers employed by the National Telecommunications Enterprise TELECOM. The Government adds that these figures are not final but it was necessary to draw them up because of the appeal lodged by the trade union organization SITTELECOM. The Government points out that the census was carried out at the request of the TELECOM enterprise in order to establish the trade union representation with a view to collective bargaining, in accordance with the provisions contained in article 357, paragraph 2, of the Labour Code which states that when a basic trade union and an industrial trade union exist alongside each other within the same enterprise, the representation of the workers for all purposes of collective bargaining will lie with the trade union grouping the majority (half minus one) of the workers in the enterprise.
271. Furthermore, the Government points out that this trade union census was carried out whilst taking account of the following:
272. The Government stresses that the fact that the employer submits a list of workers paying trade union dues does not automatically mean that those paying the contributions are a member of the trade union because, under section 471 of the Labour Code, when a trade union is party to a collective agreement and its members account for more than a third of the workers in the enterprise, the agreement applies to all workers in the enterprise -- irrespective of whether or not they are a member of the trade union; furthermore, even those not belonging to the trade union must pay a contribution to the trade union to benefit from the agreement. The Ministry of Labour and Social Security's task was to conduct a census and determine the number of workers duly belonging to each trade union organization, without making any pronouncement on the subsequent right to bargain collectively. The Government states that the figures in the census reflect the number of members as at 30 November 1995 and that, to date, it is not able to account for any further changes in membership or withdrawal of membership in either of the trade unions.
273. The Committee notes the report of the representative of the Director-General, Professor Santiago Pérez del Castillo, of the mission carried out in Colombia from 7 to 11 October 1996, and wishes to thank him for the work he has accomplished. The Committee also thanks the Government, the authorities and the social partners for their full cooperation with the representative of the Director-General throughout the mission. Furthermore, the Committee takes note of the written information provided by the Government on the various cases and the various Bills submitted to Congress to bring the legislation in line with Conventions Nos. 87 and 98 and to ratify Conventions Nos. 151 and 144 which has been submitted to the Committee of Experts on the Application of Conventions and Recommendations.
274. First, before analysing the allegations and observations communicated by the Government in connection with each case in particular, the Committee feels bound to express its grave concern at the allegations which refer to a great extent to violent murder, disappearances and other acts of violence against trade union officials and members, as well as raids on trade union headquarters and trade union members' homes. The Committee recalls that it has for many years been examining cases on serious acts of violence against trade union officials and members in Colombia. It deeply regrets to note that the violence does not seem to have diminished but that, on the contrary, it seems to have been growing during the past few years, which once again has affected trade unionists.
275. The Committee notes from the mission report that, against the complex and serious climate of violence prevailing in Colombia, there are a series of causes for concern recognized by the majority of those interviewed by the representative of the Director-General: (i) the violence is endemic to all sectors of society (the figures given in connection with murders committed in 1995 vary between 25,000 and 30,000), but the trade union movement has been subject to serious attacks. This is a situation that has been dragging on for 45 years in Colombia and is compounded by the fact that the presence of the State authority is widely dispersed in some regions of the country; (ii) this violence may be attributed to the guerrilla movement, drug traffickers, paramilitary groups -- some of which act with the acquiescence and active participation of the state security forces -- and common criminals; (iii) a very large number of cases of acts of violence remain unsolved, which gives an added incentive to repeat them and to commit further violations of human rights (few are judged, proceedings are slow, general prosecutors cannot or dare not carry out investigations because their lives are endangered), and (iv) it is almost impossible to provide protection to trade union officials and members threatened. The Committee stresses the total ineffectiveness of the judicial system and the intervention of a separate military jurisdiction concurrently with the civil system.
276. The Committee notes that according to the mission report, the Government states that it has taken a number of positive measures to put an end to impunity. In particular, the Committee notes with interest the following measures adopted: (i) the establishment of the victim and witness protection programme of the Office of the General Prosecutor; (ii) the setting up of a National Human Rights Unit whose competence extends to, amongst other things, murders of trade union officials who have been presumably killed on account of their trade union activities; (iii) the planning within the Ministry of the Interior of a special administrative unit of human rights which will have a special section for the protection of persons who have received threats; and (iv) the setting up of a ministerial committee to examine cases on violations of human rights to verify the allegations which, in the event of finding the allegations are well-founded and of the responsibility on the State to order the payment of compensation. Taking note of these measures, the Committee stresses that the mission report reveals that the number of victims of violence is extraordinarily high and that the failure of judicial proceedings to shed light on the facts gives rise to an extremely high degree of impunity. In addition, the Committee profoundly deplores the fact that not one of the numerous allegations before it has resulted in the guilty party being punished. Finally, the Committee notes with interest the climate of social dialogue which the Government is trying to create, emphasizing the importance of a system of ethics and a new culture which, while it does not ignore differences or conflict, gives priority to dialogue and understanding.
277. Finally, the Committee notes with extreme concern that the mission report draws attention to the present increase in the number of paramilitary or self-defense groups in many sectors of the country, whose acts of violence are added to those of drug traffickers, the guerrilla movement, common criminals and, institutionalized by members of the security forces. Similarly the Committee notes that according to the report, the action of paramilitary groups primarily affects trade unionists in many regions of the country and that many of those interviewed stressed that the security forces allowed the action of such groups. Similarly, the Committee notes that those interviewed referred to the existence of cases in which state officials had committed infringements of human rights.
278. In this context and in connection with all the alleged acts of violence, the Committee reminds the Government that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed"; "the killing, disappearance or serious injury of trade union leaders and trade unionists require the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events"; and that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 46, 51 and 55]. Similarly, the Committee asks the Government to take all the necessary measures to dismantle the paramilitary groups which are preventing the normal development of trade union activities in various areas of the country.
Case No. 1761
279. As regards the allegations concerning the murders and injuries sustained by trade union officials or members, the Committee notes that the Government is carrying out judicial inquiries in connection with the murders of the trade union officials Rodrigo Rojas Acosta, Alberto Alvarado, Tina Soto Castellanos and Rosario Moreno, Hugo Zapata Restrepo, Guillermo Alonso Benítez Zapata and Marco Julio Martínez Quiceno; it is similarly carrying out inquiries on the serious injuries sustained by Carlos Posada during the search of the trade union headquarters of the Single Federation of Workers of Antioquía (FUTRAN). The Committee expresses the hope that the judicial inquiries under way might shed light on the facts, determine where responsibilities lie and punish the guilty parties. The Committee requests the Government to keep it informed of the outcome of these inquiries. Furthermore, the Committee requests the Government to keep it informed of developments regarding the inquiries under way in connection with the murders of the trade union officials Perea Israel and Miguel Camelo Reinaldo, as well as on the development of the judicial proceedings continuing against the trade union members Mr. Luna, Mr. Chaparro and Mr. Patiño (the Government had informed the Committee at its March 1995 meeting on the beginning of these latter judicial inquiries).
280. Concerning the alleged detentions of trade union officials, the Committee notes that the Government provided the following information: Ortega García Jorge Luis has been charged with rebellion but, at the same time, judicial inquiries are being carried out to look into threats made against him; he is at present free; Tovar Arrieta Domingo Rafael is not being held and judicial inquiries are being carried out to look into charges that he was abducted and threatened; Orozco Nassan Luis Fernando is not being held and judicial inquiries are being carried out to examine whether he was a victim of extortion; and Martínez César is being charged with abduction but, at the same time, judicial inquiries are being carried out to examine whether he was a victim of extortion. The Committee requests the Government to keep it informed of the judicial inquiries in which these trade union officials are involved.
281. Concerning the other alleged detentions of the trade union officials Triviño Flavio Quiceno Evelio, Escobar Héctor and Ronancio Germán on 12 February 1994 in Mesitas, the Committee notes that the Government has failed to communicate its observations. In these circumstances, the Committee requests the Government to ascertain whether these trade union officials are in fact detained and, in the event that it finds that they were arrested on grounds of their trade union activities, that they take measures to ensure their immediate release.
282. Finally, with respect to the allegations concerning: (1) the expulsion of workers from the headquarters of the Construction Workers Trade Union (SINDICONS) on 11 February 1994 in Cali; (2) the carrying out of visits by members of the state security to trade union meetings and headquarters, for example the Congress of the National Federation of Construction and Cement Workers, which was held in Bogotá between 9 and 12 February 1994; and (3) the existence of paramilitary groups in Medellín that are preventing the normal exercise of trade union activities, the Committee notes that the Government has failed to communicate its observations. In these circumstances, the Committee requests the Government to take measures to ensure that the state security forces do not enter into trade union headquarters if they do not have the necessary judicial warrant.
Case No. 1787
283. In connection with the many murders of and acts of violence committed against trade union officials and members, the Committee notes that the Government informed the mission that judicial inquiries were being carried out in connection with the following murders of, and death threats against, trade union officials or members: (1) Antonio Moreno (12.08.1995); (2) Manuel Ballesta (13.08.1995); (3) Francisco Mosquera Córdoba (02.1996); (4) Carlos Arroyo de Arco (02.1996); (5) Francisco Antonio Usuga (22.03.1996); (6) Pedro Luis Bermúdez Jaramillo (6.06.1995); (7) Armando Umanes Petro (23.05.1996); (8) William Gustavo Jaimes Torres (28.08.1995); (9) Ernesto Fernandez Pezter; (10) Jaime Eliacer Ojeda; (11) Alfonso Noguera; (12) Alvaro Hoyos Pabõn (12.12.95); (13) Libardo Antonio Acevedo (7.7.96) and (14) Jairo Alfonso Gamboa Lõpez (was threatened with murder). The Committee requests the Government to keep it informed of the outcome of the judicial inquiries under way.
284. Furthermore, the Committee notes that the Government is carrying out a judicial inquiry in connection with the setting off of an explosive device in the headquarters of the Construction Workers Trade Union (SINDICONS) in Medellín. The Committee requests the Government to keep it informed of the outcome of this judicial inquiry.
285. Concerning the alleged murders of members of the trade union organization SINTRAINAGRO, Oriol Chaverra, Hernán Correra, Medardo Cuestas, Manuel Márquez, Pedro Barbosa, Omar Casarubio, Fernando Pérez and Amin Palacio, the Committee notes that according to the Government, these persons are alive and they have not lodged any complaints that their lives have been threatened.
286. Furthermore, the Committee notes that the Government failed to submit observations on many murders, attempted murders, death threats, disappearances and physical attacks against trade union officials and members, as well as raids on trade union headquarters and trade union members' homes (see in Annex I the full list of allegations to which the Government has failed to reply). In these circumstances, the Committee urges the Government to communicate its observations as soon as possible on all the cases mentioned in Annex I.
287. With respect to the Committee's request that the Government should carry out an inquiry in the ALFAGRES S.A. enterprise to ascertain the veracity of the alleged anti-union dismissals, the Committee notes that according to the Government, the inspection and supervisory department of the Ministry of Labour carried out an inquiry and found "that the enterprise had not violated freedom of association". Furthermore, the Committee notes that the Government states that a number of trade unionists withdrew the complaint they had lodged with the administrative authorities and that other founder members of the trade union who negotiated their termination with the enterprise, subsequently initiated judicial proceedings to be reinstated. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way.
288. With regard to the allegations pending concerning the suppression of the posts of trade union members and officials at the Ministry of Finance, the promotion of an anti-union campaign by the authorities in this Ministry intimidating workers wishing to belong to the trade union and the dismissal of members of the Executive Committee, the Committee notes that according to the Government: (1) the jobs of trade union members and officials had not been cut with a view to destroying the trade union, but had been the result of restructuring within the Ministry affecting many workers; (2) there is no denying that an official of the Ministry did stir up an anti-union campaign but that this situation has been corrected; and (3) the three members of the union Executive Committee dismissed as a result of the restructuring have initiated judicial proceedings.
289. In this respect, concerning the restructuring by the Ministry of Finance which resulted in the dismissal of many workers, the Committee reminds the Government that it is important that "governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees" [see Digest, op. cit., para. 937]. Furthermore, as regards the campaign of anti-union intimidation -- moreover acknowledged by the Government which states that it has however been corrected -- the Committee points out to the Government that "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment" [see Digest, op. cit., para. 696]. Finally, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way in connection with the dismissals of the three members of the union Executive Committee.
290. Finally, in connection with the Committee's request to the Government that it should take the necessary measures to ensure that the trade union officials and members belonging to the SINTRATEXTILIA union who had been dismissed for their lawful trade union activities should be reinstated, the Committee notes that the Government states that a penal complaint has been launched against the TEXTILIA LTD enterprise and that a number of trade unionists have lodged judicial proceedings on fuero sindical (trade union immunity) and their reinstatement. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way, both within the penal and labour courts.
Case No. 1896
291. The Committee notes that the allegations made in this case refer to the complainant organization's lack of agreement with a census of members carried out by the Ministry of Labour and Social Security. In particular, the complainant organization alleges that SITTELECOM has 4,471 members and that the census conceded that it had 1,779, and that as a result of this census it ceased to be the most representative organization of the National Telecommunications Enterprise of Colombia and lost the right to negotiate a new collective labour agreement, which was handed over to the ATT.
292. The Committee notes the Government's statements to the effect that: (1) the census was carried out at the request of the TELECOM enterprise at national level, with a view to establishing which of the two organizations in the enterprise -- SITTELECOM and ATT -- was the most representative for purposes of collective bargaining (the Labour Code provides that the representation of workers through collective bargaining is incumbent upon the trade union grouping the majority -- half minus one -- of the workers in the enterprise); the statutes of SITTELECOM stipulate, amongst other requirements, that anyone wishing to be a member of the trade union must submit a written request for membership to the Executive Committee which decides whether to give its approval or not; (3) when carrying out the census on the SITTELECOM organization, the administrative authorities only considered as members those workers who had complied with the above-mentioned requirement to submit a request for membership in writing; the trade union organization SITTELECOM, through its various branches, did not submit the registers of members required to carry out the census and, in cases in which they did, the administrative authorities noted that most of those registered as members by SITTELECOM had not been duly accepted as members by the Executive Committee; (4) the fact that the employer draws up a list on the basis of trade union check-offs does not provide evidence that those paying contributions are members of the trade union given that, under section 471 of the Labour Code, the collective agreement might stipulate that dues should be paid by those not belonging to the trade union as they benefit from the collective agreement; and (5) the trade union organization SITTELECOM has lodged an appeal to the judicial authorities in relation with this census.
293. In this respect, the Committee notes that, according to the Government, the administrative authorities complied strictly with the provisions contained in the statutes of the SITTELECOM trade union organization when counting the members of the trade union in question and on account of various irregularities -- the failure of workers to submit in writing their request to belong to the trade union, the failure to submit the register of members and the failure of the Executive Committee to approve requests for membership -- reached a number of 1,779 members to which the complainant organization objects. In these circumstances, while noting that it does not have at its disposal any factors which might lead to conclude that the Government had favoured one trade union organization over another in the TELECOM enterprise when carrying out the census in question, the Committee urges SITTELECOM to take measures to ensure that all its members comply with provisions laid down in the statutes and, in the event that they do so, requests the Government to carry out a new census counting all the workers who have been effectively registered as members of the trade union organization in question. Finally, the Committee requests the Government to keep it informed of any developments that might arise in this respect and to send it a copy of the ruling concerning the appeal lodged with the judicial authorities by the trade union organization SITTELECOM.
294. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
Case No. 1761
Case No. 1787
Case No. 1896
Allegations on which the Government has not yet communicated
its observations in connection with Case No. 1787
Murders:
Attempted murders:
The trade unionists Edgar Riaño, Darío Lotero, Luis Hernández and Monerge Sánchez.
Death threats:
Detention and raids on homes:
Luis David Rodríguez Pérez (former leader of the National Trade Union of Workers of Incora -- SINTRADIN).
Raids on union headquarters, telephone tapping, surveillance of trade union members:
A raid on the headquarters of the Single Agricultural Trade Union Federation (FENSUAGRO), the tapping of telephones in the union headquarters and of members' telephones and surveillance of the President of the Federation, Luis Carlos Acero by armed persons.
Disappearances:
Physical aggression and police repression:
Annex II
Report of the mission to Colombia
carried out from 7 to 11 October 1996
by Professor Santiago Pérez del Castillo
(Parts relating to cases pending before the Committee)
Contents
II. Overview of labour relations in Colombia
III. Issues raised by the Committee of Experts (not reproduced)
1. Provisions of Colombian legislation to which the Committee of Experts objects
2. Position of the government authorities and the social partners
3. Impact of the mission on legislation
V. Cases pending before the Committee on Freedom of Association
VI. Reflections and concluding remarks
Appendices: (Appendices II, III and IV not reproduced)
I. List of persons interviewed
II. Legislative provisions to which the Committee of Experts objects
III. Texts of draft legislation
IV. Observations on the cases pending before the Committee on Freedom of Association submitted to the Mission
At its December 1995 meeting, the Committee of Experts on the Application of Conventions and Recommendations formulated an observation on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by Colombia and requested the Government to take steps to bring its legislation into conformity with the Convention.
During the discussion of this case in the Conference Committee on the Application of Standards in June 1996, the Minister of Labour and Social Security, Mr. Orlando Obregón Sabogal, invited the ILO to carry out a mission to his country in order to promote union rights and social dialogue. In this respect, the Committee formulated the following conclusion:
The Committee noted the written and oral information provided by the [Minister of Labour and Social Security] and the discussion which followed. The Committee recalled that the Committee of Experts insisted that the Government should take measures to remove the prohibition placed on public employees who were not employees engaged in the administration of the State to conclude collective bargaining agreements. The Committee observed with concern that many complaints of a serious nature were still outstanding and before the Committee on Freedom of Association. The Committee also noted that a draft law which was the result of a tripartite agreement would be presented to the next legislative session. It noted that the Government had invited an ILO mission in order to promote social dialogue and trade union rights. The Committee expressed the hope that, in this context, the next report from the Government would note substantial progress, in law and in practice, with regard to the application of the Convention.
Moreover, the Government decided to extend the mission's mandate to: (1) the issues raised by the Committee of Experts on the Application of Conventions and Recommendations in the context of its examination of the application of Convention No. 87 by Colombia; and (2) the complaints presented by various trade union organizations to the Committee on Freedom of Association of the Governing Body. The mission's mandate thus covered both the issues raised by the Committee of Experts with respect to the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No.87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the cases pending before the Committee on Freedom of Association (Cases Nos. 1761, 1787 and 1896).
The Director-General of the ILO appointed me as his representative to undertake this mission, which was carried out from 7 to 11 October 1996. I was accompanied on the mission by Mr. Horacio Guido, an official of the Freedom of Association Branch of the International Labour Standards Department, and Mr. Luis Zamudio, International Labour Standards Specialist with the Multidisciplinary Team based in Lima, Peru.
During the mission we met with His Excellency Mr. Orlando Obregón Sabogal, Minister of Labour and Social Security, and senior officials of the Ministry; Mr. Alfonso Valdivieso, General Prosecutor; Ms. Graciela Uribe de Lozano, Director-General for Special Affairs of the Ministry of Foreign Relations; Mr. Luis Eduardo Montoya Medina, the Attorney General; Mr. Carlos Gaviria Díaz, President of the Constitutional Court; the members of the Labour Court of Cassation of the Supreme Court; Mr. José Fernando Castro, the Ombudsman; the National Human Rights Unit; Mr. Edgar González Salas, Head of the Administrative Department for the Public Service; Mr. Carlos Medellín Becerra, Minister of Justice and Law; the Standing Committee on Concertation of Wage and Labour Policies; Mr. Carlos del Castillo, Resident Representative of the United Nations Development Programme (UNDP); and representatives of the Single Confederation of Workers of Colombia (CUT); the General Confederation of Democratic Workers (CGTD); the Confederation of Workers of Colombia (CTC); the National Federation of State Workers (FENALTRASE); the United National Federation of Salaried Employees and Professionals of the State and Public Service (FUTEC); the Single Agricultural Trade Union Federation (FENSUAGRO); the National Association of Manufacturers (ANDI); the National Federation of Merchants (FENALCO); and the Colombian Association of Small and Medium-sized Enterprises (ACOPI). A list of all the persons interviewed is appended to this report [Appendix I].
In all the interviews, the mission placed special emphasis on explaining the reason for its presence and its objectives, which were to explain and clarify the observations of the Committee of Experts and explore possible solutions to the problems that had arisen, as well as to collect as much information as possible concerning the cases pending before the Committee on Freedom of Association.
I should like to emphasize that the authorities provided us with every assistance in carrying out the mission, as well as a high degree of cooperation, for which I am most grateful. I would also like to express my appreciation to all the persons interviewed for the information they supplied.
Since his appointment in January 1996, the Minister of Labour, Mr. Orlando Obregón Sabogal, a prominent former trade union leader, has won a high degree of respect and credibility among the representatives of the various occupational organizations contacted by the mission, who, generally speaking, highlighted his serene personality, which was conducive to dialogue and understanding.
The policy pursued is characterized by efforts to bring the social partners closer together, giving priority to formal social concertation, which, the mission found, is considered in the context of the Colombian labour relations system as a most appropriate instrument for the achievement of mutual understanding between employers and organized workers.
According to the 1991 Constitution, which was the outcome of efforts to bring peace to the country by establishing a new political pact, "a permanent commission composed of the Government, the representatives of employers and of workers, will promote sound labour relations, contribute to the settlement of collective labour disputes, and coordinate wage and labour policies. The law will regulate its membership and functioning" (article 56, third paragraph).(1)
The current administration approved an Act elaborating on this provision, which itself drew its inspiration from one of the main advisors of the present Minister of Labour.
The Act on the concertation of wage and labour policies, which elaborates on this constitutional mandate, was approved this year (No. 278 of 1996). The same policy orientation is seen in the project entitled "A new culture of labour relations".(2) The above-mentioned Act is considered to be one of the main results of this project, as is the tripartite agreement reached on the Act respecting collective bargaining for the public sector. Also worth mentioning is the television programme entitled "Chóquelas", promoted by the authorities: it emphasizes the importance of a system of ethics and a new culture which, while it does not ignore differences or conflict, gives priority to dialogue and understanding. In the conditions prevailing in Colombia today, these values are essential for the development of a culture for peace.
Among the state authorities, special mention should be made of the Office of the General Prosecutor. The mission met twice with the General Prosecutor, Dr. Alfonso Valdivieso, who described the efforts being made to combat the impunity of crimes aggravating the serious situation of violence prevailing in the country, and especially those affecting fundamental human rights. He considered that the mission's visit was especially timely and appropriate and expressed his willingness to collaborate fully in achieving its objectives.
Within the Office of the General Prosecutor, the Investigations Department, comprising some 4,000 officials, carries out the functions of the judicial police.
Another body with responsibility for investigating crimes and for police functions in general is the Security Administrative Department (DAS), which reports directly to the President of the Republic.
The office of the Ombudsman, which is part of the Public Ministry, is a supervisory body mandated by article 118 of the Constitution to carry out "the safeguarding and promotion of human rights, protection of the public interest and monitoring of the official conduct of persons in public office". Under the Constitution and the legislation, the supervisory role of the Ombudsman with regard to the promotion and exercise of human rights is confined to the acts and omissions of a specific group of Colombians: public servants.(3)
As regards workers' organizations, it should be pointed out that out of a total of 11 million workers, some 7 per cent are unionized, according to information provided by one of the three main organizations; another organization placed the figure at around 10 per cent.
The confederation with the largest membership and that which has been hit hardest by acts of violence is the Single Confederation of Workers (CUT). It groups together 53 per cent of state employees (SINALTRASE), a large proportion of whom are members of the teachers' organization. A considerable share of the CUT's membership is affiliated to the International Confederation of Free Trade Unions (ICFTU).
During the mission there were press reports of the forthcoming elections of this confederation, for which 21 lists of candidates were presented. Press reports estimated the number of members entitled to vote to be as high as 287,000.(4) In their interview with the mission, the officers of the confederation placed the number of members at approximately 400,000.
Another important trade union confederation is the General Confederation of Democratic Workers (CGTD), which is affiliated to the World Confederation of Labour (WCL). It was the result of a merger between the Confederation of Democratic Workers, founded in 1988, and the CGT. This confederation did not sign the Social Pact of 1995 and maintains that it is openly opposed to the neo-liberal model of Presidents Gaviria and Samper. However, it does participate in the social concertation under article 56 of the Constitution. It is considered to be the main confederation of the private sector, with 380,000 members.
In addition to these two confederations, there is a third, the Confederation of Workers of Colombia (CTC), which is affiliated to the ICFTU.
Employers' organizations include the National Association of Manufacturers (ANDI), affiliated to the International Organization of Employers (IOE), which is the most representative organization, and the National Federation of Merchants (FENALCO). Both are members of the Social Concertation Commission. Small and medium-sized enterprises are represented by the Colombian Association of Small and Medium-sized Enterprises (ACOPI).
The FENALCO is a nationwide organization whose members range from small village shopkeepers to large supermarket chains. According to representatives of the organization, there is hardly any unionization among the workers employed by the enterprises affiliated to it, either because of their small size or because of the prevalent labour relations style.
One of the mission's objectives was to collect information on the various cases pending before the Committee on Freedom of Association dealing with extremely serious violations of human rights, such as murders, massacres, torture, forced disappearances, etc. These examples are neither recent manifestations nor isolated occurrences, as was confirmed by the mission, and can be seen from a brief glance at this supervisory body's jurisprudence.
The mission endeavoured to understand the reasons for the violence and inform itself about some of its manifestations. A large part of the country is sparsely populated. Fifty per cent of the country, the eastern region, only has one million inhabitants compared to the 35 million living in the rest of the country.
The prevailing climate of violence in this vast territory has been dragging on for 45 years and is aggravated by the fact, that according to a senior government official, the presence of state authority is widely dispersed in some regions of the country. Among the acts of violence -- sometimes marked by unusual cruelty -- are a very large number of unsolved cases and, although efforts are being made to combat this situation, understandably the fact that these crimes go unpunished is an additional incentive to repeat them and to commit further violations of human rights. Efforts have been made to strengthen machinery for the investigation and sentencing of crimes, but they do not appear to have borne fruit and, according to some authorities, it does not seem likely that the climate of violence will improve in the near future.
A report published in 1996 by the Office of the Ombudsman,(5) quotes the Colombian Commission of Jurists as saying that the country "has for over five years registered the highest homicide rate in the world: between 1988 and 1995 the number of homicides averaged 76 per 100,000 inhabitants". The situation is particularly appalling in the Urabá region, where the rate has reached 256 homicides per 100,000 persons. Some towns in the area have registered the following chilling figures: as many as 578 homicides in Carepa, 487 in Chigorodó, 385 in Apartadó and 354 in Turbo. Few cities in the world have achieved this shameful record.
The former Ombudsman, Mr. Jaime Córdoba Triviño, goes on to say that all of these alarming figures show that despite the new Constitution that entered into force in 1991, there is not yet a genuine commitment to the fundamental principles enshrined in it in Colombia. These figures also show that the State has failed, either by commission or by omission, to comply with international treaties on human rights. Colombia continues to be one of the most violent democracies in the world, with the most serious situation on the continent in terms of human rights and humanitarian law.
"No-one can honestly affirm that in Colombia the State is completely uninvolved in violence. There are still people in the armed forces and police who commit illegal and arbitrary acts in the course of their military and police activities. Today thousands of Colombians are still terrorized by paramilitary groups who enjoy complete freedom of action in areas under military control. People are still murdered, tortured and abducted in the context of repression and armed conflict."
"Many of the acts violating or threatening human rights committed in 1995 by Colombian agents of the State also constituted violations of international humanitarian law." The Ombudsman refers to acts and omissions by which those directly involved in hostilities -- the combatants -- fail to carry out their duties or violate the prohibitions imposed under article 3 of both the Geneva Conventions and additional Protocol II. "The author of an infringement of international humanitarian law may be any person fighting on either side of an armed conflict. In today's international jurisprudence and doctrine, serious violations of humanitarian law are termed war crimes."
"Moreover, serious violations of international humanitarian law continued to be committed in 1995 by members of guerrilla units. In particular, these included abductions, hostage taking, murders of persons accused of collaborating with the authorities and irresponsible use of the landmines known as 'quiebrapatas' (leg breakers) which affect the civilian population. The Ombudsman also made a statement in September 1995 against these criminal acts committed by guerrilla units."
A study commissioned by the United Nations Development Programme (UNDP) states that "the intensity and particular 'mix' of violence has varied from one region to another or from one period to another. In the last century, it was committed by rebel leaders and poorly armed farm labourers fighting in Cauca, Santander and along the Magdalena river. Partially confined to the high plateau in the thirties, violence descended into the lowlands in what was to become the guerrilla warfare-cum-criminal banditism rampant in the coffee-growing region. The FARC originally emerged as 'peasant self-defense units' in southern Tolima and spread throughout virtually all the colonized areas; the ELN spread from Santander to the oil-producing regions, the EPL settled in the lower coastal lands, the Quintín Lame took over the Cauca, the M19 positioned itself in the valley of the Cauca in an attempt at urban guerrilla warfare; the same went for a whole series of commando units and dissident groups that sprang up in the eighties. The paramilitary movement began in the areas of the large agricultural estates and spread like a cancer as quickly as land was turned over from cultivation to drugs in a sort of 'agrarian reform', in the middle reaches of the Magdalena river, the foothills or the coastal plains. Medellín suffered from Escobar's drug wars, Cali was beset by 'raids' and 'social cleansing' squads, Bogotá is legendary for its high levels of street delinquency and organized crime, Boyacá has succumbed to 'green fever' several times, César boasts of high abduction figures, while Urabá is being bled white in a multilateral conflict."
"Violence that is this persistent in time and this widespread over space must have deep and extensive roots in the society in which it prevails. But violence that is this prone to fluctuate and change over time and from one geographical area to another must also be affected by factors that vary over time and space. There is a single violence in Colombia just as there are many forms of violence. The factors or 'causes' of violence are also therefore both one and many, just as the solutions that will be needed to eliminate it are both one and many."
This text provides a perfect summary of what we have heard about the origins of violence from our various interlocutors: various attempts at classification have been made, but what distinguishes it most of all from that in other countries is the prevalence of private organized groupings, often without any underlying ideological motives or even any other motives whatsoever apart from that of acquiring money through crime. Paramilitary units are not necessarily linked to state security forces, and what we have repeatedly heard during interviews is that there are a variety of armed gangs pursuing a variety of objectives.(6)
A representative of an employers' organization stated that violence is everywhere and it is often difficult to tell where it comes from. He added that a good share of conflicts in Colombia are dealt with through violence. The justice system is powerless. Despite efforts made by the Government, it moves so slowly that people are not willing to wait and are losing their tolerance.
According to the same employers' representative, the violence of the liberal-conservative movement of the fifties gave way to a Marxist-inspired wave of violence in the sixties, which in recent years has been replaced in some cases by that committed by subversive movements involved in the drug trade, which comes into conflict with paramilitary groups, some of which are also linked to drug trafficking. In this context, employers who head large enterprises invest considerable resources in maintaining a high level of protection through security, intelligence and surveillance.
During the mission's visit, a prominent leader among agricultural employers(7) denounced the fact that guerrillas and drug traffickers rule rural Colombia, ganging up together and using terror to dominate a large part of the country. He affirmed that the production of drugs alone brings in an annual profit of 7 million dollars, more than their income from abductions, robbery and cattle rustling. He added that in 1996, 491 cattle breeders were abducted and 47 farmers who were leaders of occupational associations or cooperatives were murdered. According to the same source, in the first nine months of the year, abductors collected over 242 million dollars only through their operations targeting rural employers. He stated that 35,000 farmers paid some 2.5 million dollars a year in extortion to rural gangs (known as 'vaccinations') and in sums paid by landowners to employees to check on their property every 30 days.
As stated above, it is easy to see that violence has various origins and various targets. The list of aggressive attacks against the trade union movement is almost endless and new names are being constantly added. Some maintain that these acts are part of a premeditated plan to eradicate the trade union movement. Whatever the case, in accordance with our mission's mandate, it should be emphasized that an impressive amount of violence is targeted against persons holding trade union office or whose physical integrity and personal freedom are attacked solely on account of their trade union activity.
Moreover, in this case the problem is compounded by the fact that it is not always clear whether the victim's trade union office or activity as such was the motive for the crime. Cases of guerrilla supporters or violence for private motives were mentioned to the mission. Be that as it may, the situation amounts to a formidable obstacle to the normal exercise of trade union activity and creates a powerful deterrent added to that of discrimination which, as the mission found, this type of activity tends to attract.
A further example is the murder on 10 October 1996, during the mission's visit, in Barrancabermeja of a militant trade union leader of the USO in the petroleum industry. The workers employed in the Ecopetrol state enterprise held a 36-hour work stoppage in protest.(8)
The mission suggested to the Office of the General Prosecutor that it assign its Special Human Rights Unit the task of investigating the murder. To prevent this type of crime from going unpunished will contribute to curbing anti-union violence.
Protection of the specific principles of the normal exercise of trade union activity and promotion of participation in occupational organizations would be tangibly improved if public opinion were made aware that the Office of the General Prosecutor was taking special action on attempted murders or murders committed against trade unionists.(9) Until now anti-union violence does not appear to have been given special attention in the context of the general struggle against violence in general.
The ILO mission found a considerable presence of other agencies of the United Nations system and other international bodies in the joint efforts to combat the serious problem of violence in Colombia. In this context, and with a view to making an appropriate contribution that is consistent with the ILO's international mandate, emphasis was laid on the question as it related to labour relations and the international labour standards on freedom of association, with the Office working alongside the other specialized agencies.
III. Issues raised by the Committee of Experts
(not reproduced) ...
IV. Draft legislation for the ratification
of additional Conventions on freedom of association
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V. Cases pending before the
Committee on Freedom of Association
1. Cases pending [for an exhaustive list of the allegations pending see Appendix IV]
2. Aspects of the problem of violence (causes, impunity, paramilitary groups, drug trafficking, sluggishness of the justice system, protection measures in the event of death threats against trade union members)
Before giving an account of the specific information received concerning the various allegations in the complaints pending before the Committee, I felt it appropriate to provide a summary of the numerous observations made by the mission's interlocutors concerning the most serious allegations, which give an idea of the background against which the complaints were presented. These observations, which include important information concerning the general situation in the country, and in particular the situation of workers' and employers' organizations in the current context of violence, entirely reflect the opinions of the persons interviewed, and I have endeavoured to relay them as accurately as possible. In addition, Ministry of Labour authorities highlighted the guerrillas' recent threat to hold an armed strike in Bogotá which would take advantage of a planned education workers' strike, with demonstrations. It should also be pointed out that while the different interlocutors gave figures on the acts of violence committed in the country over the year 1995, they do not always coincide but place the number of murders at between 25,000 and 30,000, not counting other kinds of attack.
Government authorities
According to the Minister of Labour and Social Security, there is an acute climate of violence. Some circles consider that it should be eliminated by force, while others seek a solution through dialogue and understanding. The guerrilla war in Colombia is one of the most virulent and persistent in the world, having lasted for over 40 years. There are groups which support the guerrilla movement ideologically, while others assist it in various ways. Paramilitary groups emerged in response to guerrilla violence; they are private organizations fighting not only against the guerrilla movement but also against those suspected of assisting it. According to the Minister, over 30,000 persons are murdered in Colombia every year. When there are allegations of detentions of trade union leaders, letters are sent to the Office of the General Prosecutor, requesting priority attention, and the Attorney General and the Ombudsman may be present in order to guarantee due process of law. If the inquiry finds that the trade union leaders are members of the guerrilla movement, this is determined by the judiciary, without interference on the part of the Ministry of Labour. The Ministry of Labour and the Ministry of Defense hold joint meetings to raise awareness of the fact that someone involved in the social struggle is not to be compared with a guerrilla fighter. The army has a human rights commission which invites trade union leaders to express their views on the violence. When the headquarters of a trade union were searched by the army in Tolima, the Ministry requested information and was informed that the search was carried out on account of subversive activities. Every effort is made to take into account the fact that a trade unionist is involved in a social struggle. There are cases of trade union leaders being detained, not for their trade union activity, but because they are suspected of being involved in illicit activities. There has not been a decrease in the unionization rate as a result of the violence. The Ministry strives for recognition of the importance of trade union officers and to raise the status of the trade union movement.
According to the General Prosecutor the causes of the widespread violence in the country are the guerrilla war which has lasted for over 40 years, drug trafficking, paramilitary groups and common crime. Trade unionists with right-wing tendencies are murdered by guerrilla fighters, while left-wing ones are killed by paramilitary groups. In reply to the question whether acts of violence are committed against trade unionists because of their trade union activities or membership, he replied that violence of this kind did exist and that it was a very plausible hypothesis, since trade union associations had become politicized. In Urabá political forces are mixed up with trade union organizations. In reply to the question whether trade union officers had been detained on account of their office, he said that they had been detained not specifically for this reason, but for militant subversive activities. He stated that, for example, trade unionists of the USO had been detained for being involved in abductions and other crimes. In reply to the question whether protection could be provided for threatened trade unionists, he stated that this was almost impossible, but that there was a victim and witness protection programme. He admitted that the justice system was sluggish as a result of an excessive case-load and outdated machinery and procedures. He stated further that crime was on the increase, as well as total impunity, which encourages criminals. Lastly, the General Prosecutor stated that improved links would be established with the Ministry of Labour in order to provide more direct follow-up of all cases of murder or attacks against trade union officers and members.
The mission visited the National Human Rights Unit (set up in 1996). There they met with a Regional Prosecutor (one of the "faceless" prosecutors, i.e. one who is not known to be a prosecutor), who stated that the main objective of this unit is to do away with impunity. This Prosecutor stated that his office dealt with all of the cases that are hard to handle in the field, specifically because of acts of violence committed against prosecutors. The unit's mandate covers, inter alia, cases involving agents of the State (members of the security forces), or cases of action carried out by paramilitary groups and condoned by the security forces, or those in which violent acts are committed by subversive groups. As regards violence committed against trade unionists, there has been a proliferation of violent acts, with different kinds of violence occurring in each region, with its own peculiar features. In some regions there are agents of the State (members of the security forces) who, in collaboration with landowners, pursue an policy of eliminating subversion. The competence of the "faceless" prosecutors extends to crimes linked to terrorism, large-scale drug trafficking, rebellion, or abductions. Their involvement also depends on whether the victim of the crime is a trade union officer: for example, homicides fall within the competence of sectional prosecutors, but if the evidence shows that the victim is a trade union officer and the presumed motive for his death was his trade union activity, the case is handled by the Regional Prosecutor (the "faceless" prosecutor). According to the "faceless" Prosecutor interviewed by the mission, there are two theories explaining acts of violence against trade unionists: (1) violence against trade unionists is committed on account of their union activity, by paramilitary groups, in line with a general tendency to destroy trade union organizations; and (2) acts of violence against trade unionists are isolated cases, and not part of a systematic repression. The unit is also aware of the existence of acts committed by agents of the State (members of the security forces) in violation of human rights. In a number of situations there is also a problem of conflicting areas of competence between the ordinary justice system and the military penal system.
According to the authorities of the Ministry of Foreign Relations and an Advisor of the President's Office for Human Rights, it is very difficult to identify the causes of violence in Colombia and to determine its origins because it is committed by so many different authors (paramilitary groups, common criminals, drug traffickers, guerrillas). They stated that there is the will to make progress and solve human rights problems, but that there are difficulties in the way of eliminating impunity and that no solution has been found to the problem of the guerrilla war and drug trafficking. Specifically, as regards trade unionists who are victims of acts of violence, they stated that the Office receives complaints within its area of competence, but that problems arise from the lack of information given by the authors of such complaints and when more information is required any delay may result in the evidence being lost. In cases of detained trade unionists, the Office endeavours to ensure that procedural guarantees are provided. Many of those concerning whom complaints are made are accused of rebellion or of terrorist acts. They informed the mission that the Office carries out a number of measures to help solve cases in which the victims were members of the trade union movement. Specifically, they refer to the following: (1) including cases affecting unionized workers in the planned nationwide information network on human rights. The main objective of this planned communication network is to develop a nationwide information system that would provide a comprehensive overview of patterns of violence in the country, as well as trends, sectors affected, etc. They added that there was the problem of determining whether a victim was a trade unionist, as well as whether this fact was related to the crime, since in many cases the information available from the sources was minimal, which means that a lengthy process of sifting through other similar cases must be gone through in order to determine whether or not an inquiry has already been undertaken; (2) the machinery for expediting cases, which consists of two types of activity: (a) requests to the authorities carrying out the relevant inquiries to update the case, or requests to initiate inquiries in cases in which complaints have not yet been brought before the competent authority; and (b) the selection of a minimum number of cases, after concertation with the workers' confederations, to be brought before the National Human Rights Unit. The mission was also informed that on 5 July 1996, Act No. 288 was approved, which provides that compensation shall be paid for violations of human rights, as stipulated by the Inter-American Commission on Human Rights and the Human Rights Committee of the International Covenant on Civil and Political Rights. Moreover, the President's Office for Human Rights stated that, as regards threats and protection to be provided to persons who have been threatened, this is a key issue for all the groups affected by violence in the country and the need exceeded the State's capacity to meet it. Support is given to requests for urgent humanitarian action, such as enabling persons threatened with imminent danger to their physical integrity to travel to different areas of the country or abroad. Requests are also made to expedite complaints concerning threats brought before the competent bodies, and the Security Administration Department and National Police are requested to assess the degree to which the person is in danger and the possibility of offering personal security services, but the demand for protection in this country is so high that alternative methods are being envisaged to increase the availability of such services. In the case of victims and witnesses of crimes, the protection programme is the responsibility of the Office of the General Prosecutor, and one of the alternatives now being developed is the establishment within the Ministry of the Interior of a special administrative unit for human rights which will have a special section dealing with the protection of persons who have received threats. It is hoped that this section will be operational at the beginning of the coming year.
The Attorney General pointed out that there are still vestiges of an era of armed repression of labour disputes. He informed the mission that the Attorney General's Office takes measures against acts of violence in which the security forces are involved, and that it is possible that the security forces are involved in action targeting trade unionists, since historically a trade unionist was seen as a subversive. He repeated that this attitude is now changing.
According to the Ombudsman, the causes of violence in general are as follows: social injustice, marginality (10 million persons are living at income level 1), failure of the Government to meet its promises in terms of health care, education or employment; a guerrilla war that has lasted over 40 years, during which guerrillas have taken over whole municipalities even if they cannot win the war; drug trafficking in its various manifestations (security armies to protect drug lords; some guerrilla groups join the drug trade in order to finance themselves); the paramilitary groups, which have been meting out private justice for years; and the security forces, which sometimes exceed their authority. As regards violence against trade union officers and members, he did not believe that they were the targets of organized violence, nor that there was a state policy against trade unionists; the murders of trade unionists were isolated cases. Violence was on the increase and the guerrilla movement was gaining in strength and taking over municipalities. Common crime had also increased in the cities. In some sectors there was talk of links between the trade union movement and the guerrilla movement on the one hand, and with the military and paramilitary groups on the other. A certain amount of progress had been achieved in the trade union movement and there was some tolerance with regard to trade unions.
The Minister of Justice and Law stated that major efforts were being made to disseminate information on the work being done by international organizations and the importance of respect for human rights. He added that a ministerial committee had been set up to examine earlier cases of violations of human rights in order to verify the allegations, and if the State was found guilty, it would have to pay compensation. This Committee has already met, and out of 17 cases examined, the Government had ordered the payment of compensation in 15. He also emphasized the fact that this Committee would not solve the problem of violation of human rights, but that it does imply recognition of the fact that human rights were violated in some cases by the state security forces, respect for international organizations and the emergence of a shift in behaviour and awareness. As regards violence against trade unionists and the fact that crimes go unpunished because they are not solved, the Minister stated that a large part of the problem depends on finding a solution to the conflict of competence between the civil justice system and the military system. According to the Minister, the "current tendency is that if the inquiry is carried out by the military justice system, the decision handed down is normally in favour of the military", which contributes to impunity. In this respect he stated that plans were under way to amend the Code of Penal Procedure, in order to lay down clear rules for conducting trials. He pointed out that the problem lay in determining when human rights had been violated by a member of the security forces and when they had acted on or off duty. He affirmed that his Ministry had given a considerable impetus to the struggle against impunity. He stated that as regards the crime rate, hidden crime had much to do with impunity, since there were many crimes which were not reported. He explained that there was talk of an impunity rate of 97 per cent in the years 1993-94 but that the figures given by the various institutes differ according to the methodology used. Work was currently under way on creating an information system in the justice sector. As regards acts of violence committed against trade union officers and members, he stated that following the process of reconciliation, during which some guerrilla groups had decided to give up the armed struggle, the FARC and the ELN decided to continue fighting. According to the Minister, these guerrilla groups have clear links with the drug trade. Again according to the Minister, the guerrilla group ELN has a direct influence on some trade union organizations, as does the FARC. He added that it was not a total involvement but that much depended on the area of the country. There were some areas in which there were violent clashes between the army and the ELN (for example, in Santander, where the oil refineries were located). When political action is taken by a trade union and FARC or ELN sympathizers or activists are identified, the situation becomes very difficult, since the parties to the conflict target the trade unionists because this is easiest. This situation has led to the creation of paramilitary groups or self-defence groups that are waging a dirty war that goes beyond the traditional army-guerrilla conflict. There have been many cases of abduction by the ELN, which foments hatred, and since the State is unable to resolve these situations, landowners or cattle breeders resort to the use of paramilitary groups. Lastly, the Minister stated that when a trade unionist is persecuted for suspected guerrilla activity, the State attempts to protect him, but it cannot prevent murders or acts of violence from being committed sometimes because a trade union is suspected of having links with the guerrilla movement.
Social partners
The representatives of the Single Confederation of Workers of Colombia (CUT) stated with regard to violence that they wished to emphasize the subject of impunity. Specifically, they pointed out that: (1) some acts of violence were investigated, but not when trade union leaders were involved; and (2) they were suffering from the tendency to penalize the social struggle, since any social action was seen as guerrilla activity. According to these representatives, it was the paramilitary groups which attacked the CUT most often, and these groups acted on the orders of the army, drug traffickers or employers. The regions in which the highest number of acts of violence are committed against CUT officers and members are Urabá, South of Cesar, Barrancabermeja, Sucre and the Magdalena regions, where acts of violence arise out of land ownership issues or social activism by the workers. They stated that in El Valle attempts had been made to eradicate the trade unions since 1989. The army was arresting trade unionists and accusing them of guerrilla activity and of having committed subversive acts. Trade union officers were being threatened into leaving their jobs. In many cases the threats are made by the army.
According to the representatives of the General Confederation of Democratic Workers (CGTD), it was CUT members and officers who had been hit the hardest by acts of violence against the trade union movement; they considered that this was due to their political affiliation or sympathies or was merely on account of their trade union activities. According to these representatives, acts of violence affecting the trade union movement were committed mainly by the guerrilla movement or paramilitary groups. They stated that the latter were backed in the various regions by the military, the police or employers.
The representatives of the Confederation of Workers of Colombia (CTC) stated that violence was widespread, and that the labour and trade union movements were targeted by acts of violence because they had taken up the workers' defence. They stated that CTC officers and members had also been victims of violence, but that it was not possible to determine who the perpetrators were, because of the impunity that reigned in the country. They stated that in Urabá some 15 years before, the CTC had been the only organized confederation, but that as a result of the violence, its presence had been considerably reduced. They informed the mission that trade union officers and members were still being murdered and that in the coffee-growing region of Caldas in particular few trade unions had been set up for fear of violence, since people were afraid of being branded as guerrillas if they carried out trade union activities.
According to the representative of the Single Agricultural Trade Union Federation (FENSUAGRO) (one of the organizations, along with SINTRAINAGRO, which has been hit hardest by violence in Colombia), what they want from the Government is a clear stand on dismantling paramilitary groups. He felt that there was not the political will to dismantle the paramilitary groups operating in regions such as Urabá, Córdoba, Chocó, Meta or Magdalena Medio. The representative stated that attempts were being made to legalize the paramilitary groups through proposals to set up security cooperatives. He stated that in Urabá the paramilitary groups were formed of persons without links to the military, but that they were trained by the army. Lastly, he pointed out that the violence targeted the trade union movement, that workers wishing to set up a trade union had to do so secretly and that all human rights organizations were accused of being subversive, not only trade unionists. (The representative of the organization handed the mission extensive documents giving an account of acts of violence perpetrated on trade unionists and workers in various areas of the country, but mainly in the banana-growing area of Urabá).
The representatives of the National Association of Manufacturers (ANDI) stated that violence permeated all areas of society and that disputes were usually settled through violence, since the State was unable to meet the security needs of the population. They pointed out that the sluggishness of judicial procedures meant that people were unwilling to wait for a solution to come from the authorities, or to tolerate the situation of violence. They pointed our that the violence was perpetrated by subversive left-wing movements that had subsequently converted into drug traffickers/guerrilla fighters with a change in orientation, which came into conflict with paramilitary forces (they also referred to organized gangs of common criminals). Lastly, as regards the impact of violence on the employers' sector, they stated that although they had better means of personal protection, they had to spend large amounts of resources on defending themselves. Employers were also targeted by many threats and attacks, but it was very difficult to determine their origin.
3. Information obtained [see Appendix IV for the observations communicated in each case by the Government to the mission]
As regards the allegations of acts of violence committed against trade union officers and members (Cases Nos. 1761 and 1787), the Office of the General Prosecutor and the National Human Rights Unit provided extensive documentation. They stated that it was extremely difficult to obtain information, since all of the national prosecutors had to be contacted individually to elicit information on the cases in which complaints had been made. They pointed out that in many regions the prosecutors were unable to carry out inquiries as a result of acts of violence targeted against them, or because of the situation of conflict between the national army and the guerrilla movement. It should be emphasized that the authorities committed themselves to pursuing the inquiries, in order to be able to provide as much information as possible to the Committee on Freedom of Association.
As regards the allegations of anti-union discrimination which had remained pending in Cases Nos. 1787 and 1896, the authorities of the Ministry of Labour have provided information (see Appendix IV).
Although it is not unusual to find different forms of concertation in South America, this issue is more important in the Republic of Colombia because of the special circumstances prevailing there. Social concertation is an element which has perhaps not been sufficiently emphasized. Closer cooperation between capital and labour would bring tangible improvements to the climate of peaceful coexistence and would make an important contribution to establishing a culture of peace to replace the culture of war. With this in mind, it would seem logical to point out the need for tangible results if this valuable instrument is not to be discredited, especially in view of the fact that in its interviews with some of the social partners the mission heard that some initiatives to achieve consensus on proposed regulations involved months of negotiations and did not produce results.
Another institutional element which seems to need strengthening is the judiciary. As is the case in other countries of South America, it is extremely important to have a justice system that is autonomous, flexible and accessible as an instrument which the population is able to trust not only because of its independence but also because of its efficiency and technical capacity. If the population becomes disenchanted with the justice system, it can be assumed that this will be an additional incentive to resort to violence as a means of settling disputes, even individual ones. In the labour field, the mission did not fail to notice the fact that according to the information obtained there are few labour tribunals, at least in the city of Bogotá. In a city with over 7 million inhabitants there are only 16 labour courts of the first instance.
As part of the solution to the problem, emphasis should also be laid on the need to stop identifying the trade union movement with communism or left-wing extremism, especially in a context in which different sources assert that left-wing guerrilla groups are involved in drug trafficking, although one cannot talk of drug traffickers as a single category, but only of certain fronts or sections of the drug trade.(10)
Despite the crisis caused by violence and the political situation, institutions are being maintained. This is probably due to the stable equilibrium of checks and balances between the different powers of the State. While the executive power has the backing of the parliamentary majority, there are other power centres, many of which are jurisdictional, such as the Constitutional Court, the Office of the General Prosecutor, the Supreme Court of Justice, the Attorney General's Office, etc., which form an institutional framework of bodies that are independent of one another, and which seems to contribute effectively to maintaining political stability. In this respect, this can be said to be a country in which there is democratic rule of law, and one which has not had a military government in decades -- the last coup d'état occurred in 1953 -- making it an exception in the Latin American context.(11)
Although it can be said that for a country at war Colombia is a country in which democracy prevails, the General Prosecutor was also right in saying that the encouraging climate of democracy cannot conceal the weaknesses of democratic institutions and the difficulties in the way of strengthening them. He added that: There are deficiencies in the institutional and normative framework which limit the effectiveness of state institutions, restrict citizens' involvement and undermine the credibility of democratic institutions. This is why in recent years the country has moved increasingly towards a consensus concerning the importance of governability to support the consistent practice of sustained and equitable development. At the same time a reciprocal phenomenon has occurred, which is the process of strengthening civil society in terms of autonomy, directly linked to greater responsibility and activism of both social and political organizations and of citizens acting individually or in associations in the social, economic and political fields. The main challenge facing democracy if it is to remain in place as a standard of conduct and action of our States is to ensure that economic growth goes hand in hand with equity and that democracy in practice means the full exercise of citizenship.
Specifically with regard to the relationship between economic well-being and democratic co-existence, the former Ombudsman pointed out that "the growth achieved by the Colombian economy compared to most Latin American economies has not been translated into benefits for the population; the 'social debt' of the Colombian State towards its citizens has increased; there has been a deterioration in the situation with regard to human rights, in terms of economic, social and cultural rights". He points out that there is a poor distribution of income and that in addition to the failure of growth to help mitigate poverty, it has been accompanied by an increased concentration of wealth.
In his acceptance speech on being awarded an Honorary Ph.D from the University of Boston on 2 October 1996, General Prosecutor Valdivieso stated that: The relationship between justice and development is one of the most important emergencies of the moment in Latin America. Another is the sound exercise of the judiciary system, which has proven invaluable in consolidating the cause of democracy. The emergence of criminal organizations with unlimited economic resources has been more that a match for a state apparatus which is unable to cope with the magnitude of the problem. Add to this obsolete methods of dealing with public problems, inadequate means of state administration, errors in the design of public policies, an outworn legal framework and a weak judiciary, and this is enough to make one overwhelmed with scepticism. But what is worse, the absence of an institutional approach in the exercise of the State's function has opened the way to unlawful practices sponsored by organized crime, which have eroded the credibility of the political leadership. We in Colombia are now regretting our failure to deal decisively with the first manifestations of this phenomenon. Excessive tolerance, permissiveness and irresponsible ignorance of our role in rejecting it has led to this tragic situation which we are now beginning to overcome.
What we should like to emphasize in the above is the importance of functioning of the judiciary. A consensus emerged from several interviews to the effect that peaceful conflict resolution, dialogue between persons with conflicting interests, and in general terms, everything that contributes to building a culture of peace, are all based on a jurisdictional system that is flexible and efficient, and one on which the parties to the dispute feel they can rely.
As was pointed our by various state authorities, it is obviously urgently necessary to find civilized ways of managing conflict, which will also serve the general interest. If it cannot be overcome, at least it should be feasible to create conditions to prevent it so as to avert de facto situations that constitute formidable obstacles in the way of peaceful coexistence in the conditions currently prevailing in Colombia. "Dialogue is first and foremost a permanent learning process which not only contributes to overcoming conflict, but also leads to a better management of the enterprise and society as a whole."(12)
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I should like to conclude this report by extending special thanks for the assistance provided to me in the mission by Mr. Horacio Guido, who prepared the mission and possesses an exhaustive knowledge of the Colombian cases before the Committee on Freedom of Association, as well as the legislative aspects. I should also like to express my gratitude for the presence of Mr. Luis Zamudio, whose assistance was invaluable in helping me find my way in the country and conducting the various interviews more effectively.
I should also like to highlight the very high level of cooperation on the part of the authorities interviewed and the social partners, and to thank them for all the assistance provided.
There can be no doubt as to the interest and willingness of the Minister of Labour and Social Security with regard to solving all the problems raised by the Committee of Experts on the Application of Conventions and Recommendations in the context of the application of Conventions Nos. 87 and 98. Specifically, in connection with the mission (before, during or immediately following the mission) two important Bills emerged (one of them, on collective bargaining in the public sector, has already been submitted to Congress), together with a commitment to discuss them in depth in Congress; if they are adopted as they stand, these Bills will overcome the problems raised by the Committee of Experts, except for those relating to strikes in essential services, which are being dealt with in a draft Bill concerning which discussions and consultations are currently being held.
Moreover, the desire to promote trade union rights prompted ministry authorities, during the mission, to submit to Congress Bills providing for the ratification of Conventions Nos. 144 and 151, together with a commitment to submit to Congress a Bill concerning ratification of Convention No. 135.
As regards the cases still pending before the Committee on Freedom of Association, there is considerable reason for concern at the climate of violence prevailing in the country and affecting all population groups, but with especially severe repercussions for trade union officers and members. The causes underlying this violence, which also affects employers, officials of the judiciary, journalists, politicians and citizens in general, are extremely complex, and although the Government and Congress have adopted and continue to adopt measures to limit the extent of violence (protection programmes for witnesses or persons who have been threatened, put in place by the Office of the General Prosecutor, the setting up of a National Human Rights Unit, etc.) the number of victims is extraordinarily high and judicial inquiries are marked by an extremely high degree of impunity. Another