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Governing Body

GB.274/8/2
274th Session
Geneva, March 1999

EIGHTH ITEM ON THE AGENDA

314th Report of the Committee on Freedom of Association

Contents

I. Introduction

II. Cases examined by the Committee on Freedom of Association

Case No. 1787 (Colombia): Interim report

The Committee's recommendations

Cases Nos. 1948 and 1955 (Colombia): Interim report

The Committee's recommendations

Case No. 1962 (Colombia): Interim report

The Committee's recommendations

Case No. 1964 (Colombia): Interim report

The Committee's recommendations

Case No. 1973 (Colombia): Interim report

The Committee's recommendations

III. Complaint concerning the non-observance by Colombia of 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), made by delegates to the 86th (1998) Session of the Conference under article 26 of the Constitution of the ILO

  1. Introduction
  2. Text of the complaint under article 26 of the Constitution of the ILO
  3. Decisions taken by the Governing Body at its 273rd Session (November 1998)
  4. The Government's reply
  5. Text of the annexes to the Government's observations

    Annex I.

    Violence in Colombia: Context and complexity; implications for basic rights and international humanitarian law

    Annex II.

    The political institutional system in Colombia

    Annex III.

    Position of the Colombian employers in respect of the complaint made by the workers of the country to the ILO and of the possibility of naming a commission of inquiry for the country

    1. Recommendation of the Committee on Freedom of Association to the Governing Body concerning the complaint under article 26 of the Constitution

I. Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 4, 5 and 17 March 1999 under the chairmanship of Professor Max Rood.

2. The Committee had before it several complaints of violations of freedom of association in Colombia, presented by a number of trade union organizations (Cases Nos. 1787, 1948, 1955, 1962, 1964 and 1973) as well as a complaint concerning the non-observance by Colombia of 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), made by several Workers' delegates to the 86th Session (1998) of the International Labour Conference under article 26 of the ILO Constitution.

3. In conformity with the decision adopted by the Governing Body at its 273rd Session (November 1998), the Committee submits, for the Governing Body's approval, a report on the pending cases and on the complaint presented in virtue of article 26 of the Constitution.

II. Cases examined by the Committee on Freedom of Association

Case No. 1787

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)
-- the World Federation of Trade Unions (WFTU)
-- the Single Confederation of Workers of Colombia (CUT)
-- the General Confederation of Democratic Workers (CGTD) and
-- the Trade Union Association of Civil Servants of the Ministry of Defence, Armed Forces, National Police and related bodies (ASODEFENSA)

Allegations: Murders and other acts of violence against trade union
officials and members and anti-union dismissals

4. The Committee last examined this case at its November 1998 meeting [see 311th Report, paras. 272 to 292]. The International Confederation of Free Trade Unions (ICFTU) sent additional information in communications dated 4, 13 and 25 November 1998 and 26 January and 2 and 12 February 1999. The Latin American Central of Workers (CLAT) forwarded new allegations in communications dated 21 and 28 January 1999.

5. The Government sent its observations in communications dated 12 November, 10 and 16 December 1998 and 6, 8 and 15 January 1999.

6. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

7. During the previous examination of the case, when it dealt with allegations concerning the murder of and other acts of violence against trade union officials and members, as well as anti-union dismissals, the Committee made the following recommendations [see 311th Report, para. 292, sections (b), (c), (d), (e), (f) and (g)]:

B. New allegations and information

8. The International Confederation of Free Trade Unions (ICFTU) in its communications of 4, 13 and 25 November 1998 and 26 January and 2 and 12 February 1999, and the Latin American Central of Workers (CLAT) in communications of 21 and 28 January 1999 raise the following allegations:

Murder and attempted murder of
trade union officials and members

Death threats

C. The Government's reply

9. The Government's communication of 15 January 1999 states generally that the Interinstitutional Commission for the Protection and Promotion of Human Rights was established in 1998, in response to the series of murders, disappearances, death threats and detentions of trade union leaders and members, as listed in the numerous allegations in connection with the cases before the Committee on Freedom of Association. The Commission is composed of representatives of the Office for the Protection and Promotion of Human Rights of the Ministry of Labour and Social Security, the workers' confederations of the trade unions at greatest risk, human rights non-governmental organizations (NGOs), the Episcopal Conference, the State's supervisory and investigatory bodies, the armed forces, together with the Office of the United Nations High Commissioner in Colombia. The Government specifies that such work is conducted in the context of the normal limitations established by criminal law in connection with the conduct of an investigation (pre-trial proceedings) and to the extent permitted by the natural complexity of the violence that has beset the country over the past four decades. Information was requested principally from the Office of the Procurator-General of the Nation, which is the body responsible for carrying out inquiries and gathering evidence regarding possible offences. It also decides whether a criminal proceeding is to be initiated based on the investigation. To begin the proceeding, the Prosecutor charges the suspects before a judge. The Office of the Procurator-General of the Nation is responsible for: (a) taking appropriate control measures in order to guarantee that the suspects are present during the proceedings; (b) providing protection for victims, witnesses and others involved in the proceedings. The Procurator-General of the Nation is required to investigate suspects and to respect their fundamental rights and procedural guarantees. All persons should report to the Procurator-General of the Nation any offences of which they are aware and collaborate with the system of justice as a witness or in reporting a crime. As ascertained by the ILO direct contacts mission in 1996, the Procurator-General of the Nation's Office is a body that is independent of the executive branch, belonging to the judiciary. Therefore, no ministry can give orders to the Procurator-General of the Nation's Office and may merely respectfully request the information it requires, provided that such information is not sub judice. Moreover, with a view to achieving optimal results in gathering information, the cooperation of other bodies was requested, including primarily the Ministry of the Interior, the National Attorney-General's Office and the national police. Consequently, the Government has been able to make some progress in its investigations. With respect to the outcome of investigation and judicial proceedings that had been initiated in connection with the following 84 cases of murder, disappearances, death threats and detentions of trade union officials and members, the Government states as follows:

D. The Committee's conclusions

10. Firstly, the Committee acknowledges the Government's efforts in drawing up its lengthy and detailed report on the numerous, serious allegations contained in this case, the majority of which refer to murders, disappearances, physical aggressions, detentions and death threats against trade union officials and trade union members, and to raids on trade union premises. The Committee deplores that since the last examination of this case by the Committee at its November 1998 meeting, such events have continued to take place, and it is deeply concerned about the violence that continues to be targeted at trade union leaders and members. The Committee must, therefore, recall that the right of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47].

11. With respect to the Government's final declarations, the Committee notes that in formulating its conclusions, the Committee does take into account the political, institutional and legal structures of the State which sometimes leads it to criticize legal provisions or situations that are incompatible with ratified Conventions. Regarding the Government's comments concerning the complainants' allegations not being supported by sufficient evidence, the Committee recalls that the Government is certainly entitled to point out the weaknesses regarding the evidence; the Government, with a view to responding to the allegations, can request the complainant to provide more specific information, setting out at least numbers, dates, places etc. in order to permit a denial or a confirmation of the alleged facts and to facilitate the Government to then provide further relevant details.

12. The Committee notes the Government's statement in the background report to the effect that, for the purpose of following up on the facts mentioned in the numerous allegations relating to the cases before the Committee on Freedom of Association, the Interinstitutional Commission for the Protection and Promotion of Human Rights was established in 1998, composed of the Ministry of Labour and Social Security's Office for the Protection and Promotion of Human Rights, the trade union confederations of the trade unions at greatest risk, human rights NGOs, the Episcopal Conference, the State's supervisory and investigatory bodies, the military forces, together with the Office of the United Nations High Commissioner in Colombia.

13. Nonetheless, the Committee deplores the fact that, despite the extreme gravity of the facts and the considerable time that has elapsed, the investigations undertaken have not yet led to the identification, trial and sentencing of the perpetrators of the large majority of the allegations. In this regard, the Committee emphasizes that "in the event that judicial investigations into the murder and disappearance of trade unionists are rarely successful, the Committee has considered it indispensable that measures be taken to identify, bring to trial and convict the guilty parties and has pointed out that such a situation means that, in practice, the guilty parties enjoy impunity which reinforces the climate of violence and insecurity and thus has an extremely damaging effect on the exercise of trade union rights" [see Digest, op. cit., para. 54].

Murders

14. With respect to the outcome of the inquiries into these numerous cases involving the murder of trade union officials and trade union members (see annexes I and II) (allegations still pending or presented in 1998), the Committee notes that, according to the information provided by the Government and on the basis of subsequent analysis of that information (see Annex III): (a) in the cases concerning the 24 workers of the "Rancho Amelia" banana farm in Turbo, Urabá, belonging to SINTRAINAGRO, and the case of José Isidro Leyton Molina, branch president of the CGTD, the guilty parties were identified, brought to trial and convicted; in the case of Bernardo Orrego Orrego, member of the association of vendors in Medellín Antioquía, the guilty party has been identified and is awaiting sentencing following trial; in the case of Juan Camacho Herrera, member of a trade union in the mining sector, warrants have been issued for the arrest of two individuals connected with the murder; and in the case of José Eduardo Umaña Mendoza, six people have been taken into preventive custody, having been accused of murder; (b) in 54 cases (some of which relate to a number of persons), the investigation that is being undertaken by the corresponding Procurator's Office is at the preliminary stage and in five cases additional information is provided on the facts; however the guilty parties have not been identified and brought to trial in 59 cases; (c) in eight cases, the corresponding Procurator's Office has closed the investigation; (d) in three cases it is not known whether investigations are continuing with a view to identifying and trying the guilty parties; (e) in the cases of Messrs Argiro de Jesús Betancur Espinosa and Alvaro José Taborda Alvarez, according to the Government, the murders were not motivated by trade union activities; (f) Messrs Luis Orlando Camacho Galvis and José Eduardo Umaña Mendoza were not trade union members.

15. In regard to the 59 cases in which the perpetrators of the murders have not been identified (some of which relate to a number of persons), the Committee urges the Government promptly to take the necessary steps so that it may determine as far as possible where responsibility lies, to punish the guilty parties and to prevent any repetition of similar serious events. The Committee urges the Government to keep it informed in this regard. With respect to the eight cases where the investigation was closed by the responsible Procurator's Office, the Committee urges the Government to inform it, at the earliest date, of the reasons for closing the investigations. In regard to the four cases in which it is not known whether the investigations are continuing, the Committee likewise urges the Government to take the necessary steps to identify the guilty parties and bring them to trial. The Committee likewise requests the Government to provide information on the outcome of the criminal proceedings under way against Freddy Mosquera Mosquera, in connection with the murder of Bernardo Orrego Orrego, and of the outcome of the issuing of warrants for the arrest of persons accused of the murders of José Isidoro Leyton Molina and Juan Camacho Herrera.

Disappearances

16. In regard to the outcome of the investigations into the disappearances of 13 trade union officials and trade union members (see Annexes I and II), the Committee notes from the information provided by the Government and the subsequent analysis of that information (see Annex III): (a) the hostages were released in six cases (Pedro Fernando Acosta Uparela, José Ricardo Sáenz, Emiliano Jiménez, Amadeo Jalave Díaz, Jhony Cubillo and Ulpiano Carvajal); (b) in regard to the cases of Ramón Alberto Osorio Beltrán, Alexander Cardona and Mario Jiménez, the investigation that is being conducted by the corresponding Procurator's Office is at the preliminary stage; (c) in the cases of Rodrigo Rodriguez Sierra, Rami Vaca, Jairo Navarro and Miseal Pinzón Granados, it is not known whether investigations to identify the guilty parties and bring them to trial are still continuing.

17. In regard to the latter seven cases, the Committee urges the Government to take the necessary steps to proceed with the investigations without delay, in order, as far as possible, to determine the whereabouts of those missing, to determine where responsibility lies, punish the guilty parties and prevent the repetition of similar deplorable events. The Committee urges the Government to keep it informed as promptly as possible of developments in these cases.

Death threats

18. Concerning the outcome of the investigations into 25 cases of death threats against trade union officials and trade union members (see Annexes I and II) (some of which concern a number of persons), the Committee notes that according to the information provided by the Government and the subsequent analysis of that information (see Annex III), police protection is being provided for most (18) of the persons threatened. In this regard, the Committee requests the Government to continue to offer protection to all trade union officials and trade union members in a situation of risk and to continue the investigations with a view to identifying and convicting those guilty of making the threats, and to keep it informed regarding steps taken in this regard.

Detentions

19. With respect to the outcome of the investigations into the detention of trade union officials and trade union members (see Annexes I and II), the Committee notes that in accordance with the information provided by the Government and on the basis of the subsequent analysis of that information (see Annex III), the 10 individuals involved are charged with rebellion, terrorism and conspiracy to commit crime, that criminal charges are being brought against them by the Office of the Procurator-General of the Nation, with respect for and observance of due process, protection of the right to defence and in accordance with criminal laws and that César Carrillo was released on 15 May 1998. With regard to the cases of Luis Rodrigo Carreño, Luis David Rodríguez Pérez, Elder Fernández and Gustavo Minorta, the Committee requests the Government to provide without delay information on the outcome of the investigations under way.

Raids on union headquarters, telephone tapping,
surveillance of trade union members (see Annex II)

20. With respect to the outcome of the investigations into raids on the headquarters of the Single Agricultural Trade Union Federation (FENSUAGRO) and of the executive subcommittee of the CUT-Atlántico, with telephone tapping and acts of violence, the Committee notes that according to the information provided by the Government (see Annex III), no information could be obtained on the subject, due to the fact that the event was not reported to the appropriate authorities for investigation. In that regard, the Committee urges the Government to take appropriate measures in order to ensure protection to all trade union officials and trade union members in a situation of risk and likewise to place a watch on their respective trade union headquarters. The Committee requests the Government to keep it informed of action taken in this connection.

Physical aggression and police repression (see Annex II)

21. With respect to police repression of employees of public enterprises in Cartagena during a peaceful demonstration on 29 July 1995, the Committee notes that according to the information provided by the Government (see Annex III), it was not possible to obtain information on the subject, since the event was not reported to the appropriate authorities for investigation. The Committee requests the Government to carry out an investigation into these allegations and to keep it informed in this respect.

22. Concerning the death of Fernando Lombana, member of ASOPEMA, caused by police repression during a demonstration in Santafé de Bogotá on 14 August 1995, the Committee notes that, according to the information provided by the Government (see Annex III), the member of the police, Luis Eduardo Sanabria Cruz, who had been charged with the murder, was found not guilty by the Office of Judge-Advocate 34 of the metropolitan police; this finding is being reviewed by the Supreme Military Court. The Committee requests the Government to inform it as promptly as possible of the decision taken by the Supreme Military Court in this case, and to forward without delay its observations on the allegations regarding the three trade union members who were seriously wounded and the persons arrested while taking part in the demonstration.

23. With regard to the five trade union members who were assaulted and injured by the police, the Committee notes the information provided by the Government (see Annex III), to the effect that cases are pending before the military criminal courts of the Directorate-General of the National Police in regard only to Mr. Héctor Ernesto Moreno Castillo and Edgar Méndez Cuéllar. The Committee requests the Government to inform it as promptly as possible of the outcome of these proceedings, and to provide information regarding the assaults against trade unionists César Castando, Luis Alejandro Cruz Bernal and Martha Janeth Leguizuman, who, according to the Government have not submitted complaints.

Attempted murders (see Annex II)

24. In regard to the cases concerning trade unionists Edgar Riaño, Dario Lotero, Luis Herández and Monerge Sánchez, the Committee notes that, according to the information provided by the Government (see Annex III), it was decided on 3 March 1993 to close the disciplinary investigation. In this regard, the Committee asks the Government to provide information on the reasons for that decision. In regard to the cases of Gilberto Correño and César Blanco Moreno, the Committee notes that inquiries are being made, and asks the Government to inform it as soon as possible of the outcome of those inquiries.

Other allegations of murder, physical aggression,
death threats and detention of trade union leaders
and members arising out of the national strike of
7 October 1998 (see Annex IV)

25. In regard to the allegations of murders, physical aggressions, death threats and detentions of trade union officials and trade union members committed following the beginning of a national strike of government workers on 7 October 1998, the Committee notes the information provided by the Government concerning the circumstances in which the events took place. Regarding the six cases of murder (see Annex IV), through the inquiries carried out by the Office of the Procurator-General of the Nation the following information was obtained:

26. The Committee deplores the fact that, despite the extreme gravity of the events, with the exception of two arrest warrants issued, the investigations undertaken have not led to the identification, trial or sentencing of the guilty parties in the six cases of murder mentioned above, for which reason it urges the Government to inform the Committee as soon as possible of the specific developments in this connection.

27. With respect to the six cases of allegations of physical aggression and injury (see Annex IV) (some of which involve a number of persons), the Committee notes the information provided by the Government to the effect that it was unable to obtain any information on such allegations, since the events were not reported to the relevant security or jurisdictional bodies. In this regard, the Committee is deeply concerned that, despite the serious physical aggressions and injuries described in the allegations, the Government has not been able to shed any light on the deplorable events and convict the guilty parties. The Committee emphasizes that "in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts" [see Digest, op. cit., para. 53]. The Committee requests the Government to carry out an investigation into the alleged facts and to keep it informed in this respect.

28. In regard to the three cases of detention (see Annex IV), the Committee notes the information provided by the Government to the effect that Orlando Riveros and Sandra Parra Montenegro were detained on 16 October 1998 in connection with the destruction of property not belonging to them and for rioting, and brought before the Ciudad Bolívar Immediate Response Unit. Sandra Parra Montenegro was released on the same day and Orlando Riveros on the following day (17 October 1998). José Ignacio Reyes does not appear on the list of persons detained in any of the metropolitan police stations of Santafé de Bogotá. The Committee requests the Government to confirm that he has been released.

29. In regard to death threats against the trade union leaders of the "Comando Nacional Unitaric" (composed of the CUT, CGTD and CTC), the Committee takes note of the information provided by the Government to the effect that it is providing police protection to members of this confederation who are at greatest risk and who have requested this service. Specifically, the Government states that the Ministry of the Interior's programme of protection for persons at high risk covers a significant number of trade union officials and provides them with the services of vehicle, bodyguards, bullet-proof vests, air tickets (for their bodyguards when they are required to travel outside the city). Some trade union officials have insisted that bodyguards should not be drawn from the state security bodies and prefer to select their bodyguards themselves. In this regard, the Committee requests the Government to continue to provide protection for trade union officials and trade union members in a situation of risk and to continue investigations to identify and punish those responsible and to inform it of action taken in this regard.

Allegations concerning restrictions
on the right to strike

30. With respect to the national strike of government workers, which began on 7 October 1998, the Committee notes the Government's observations, in particular the information that trade union confederations and a large number of government union organizations called a national strike of government workers of unspecified duration which began on 7 October 1998 and which was of a clearly political nature, not only for the reasons stated for calling this strike, namely to protest against the Government's economic and social policy, but also because the provisions contained in the Labour Code regarding strikes in essential public services were violated. The Government states that it was not a peaceful movement, since in some cases workers were obliged by force to stop work when the premises were occupied by groups of workers led by their trade union officials, thereby barring access to other workers who wished to carry out their duty, in some cases attacking them and also preventing user access to services. These events led to the intervention of the state police to restore order and to protect citizens, and to protect the right to work of those who wished to do so.

31. With regard to the Government's statement that it was a clearly political strike in protest against the Government's economic and social policy, the Committee draws attention to the principle whereby "while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policies". The Committee has stated that "The occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to workers" [see Digest, op. cit., paras. 482 and 479].

32. Concerning the Government's statement that the provisions of the Labour Code regarding a strike in essential public services were not respected, the Committee states that the Committee of Experts has for many years criticized legal provisions which forbid strikes not only in essential services in the strict sense of the term, but also in a wide range of services which are not necessarily essential (new article 450(1)(a) and Decrees Nos. 414 and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57 and 534 of 1967). The Committee also draws attention to the fact that the Committee of Experts has on several occasions criticized article 417, paragraph 1, of the Labour Code which prevents federations and confederations from declaring strikes. In this regard, the Committee requests the Government to take the necessary measures to ensure the enjoyment of the right to strike for workers and their organizations in services which are not essential in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population) [see Digest, op. cit., para. 542], as well as federations and confederations.

33. With respect to the Government's statement that in some cases workers were obliged to stop work by force when premises were occupied by groups of workers, barring access to other workers who wished to work, and in some cases attacking them, the Committee regrets these events and draws attention to the fact that "Taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries" [see Digest, op. cit., para. 586].

Allegations concerning the militarization of enterprises

34. With regard to allegations that some premises of state bodies were militarized, the Committee notes the Government's comments that the intervention of the national police on the premises of TELECOM, ECOPETROL, Caja Agraria, Social Security Institute and several health centres was carried out in compliance with legal requirements and was in proportion to the events, and that no military intervention occurred.

Allegations of violations of the right to bargain
collectively, and of anti-union discrimination

35. Concerning the outcome of the appeal submitted by the Andino Bank against the administrative decision imposing a fine on the bank for violation of the provisions of collective agreements, the Committee takes note of the information provided by the Government that, under decisions of 23 September and 2 December 1994, the penalty imposed on the Andino Bank for the above-stated violation was upheld.

36. In regard to the investigation into the alleged anti-union acts committed by the authorities of the Andino, Citibank and Sudameris Banks, the Committee notes that these investigations have not been concluded. As concerns the Anglo Colombiano Bank, the Committee notes the information provided by the Government that the investigation was closed for lack of legal grounds, since the parties repeatedly failed to attend proceedings to clarify the alleged violations. Nonetheless, the Technical Directorate of Labour ordered that the investigation should be reopened. In this regard, in view of the long period that has elapsed since the investigations were opened into the alleged anti-union acts committed by the authorities of the various banks, which have not yet had any concrete outcome, the Committee urges the Government to clarify these events and, if the allegations are substantiated, to ensure that measures are taken to punish those responsible for such acts and to prevent their repetition in the future.

37. In regard to allegations of various acts of trade union persecution against trade union officials, trade union leaders and trade union members of the Trade Union Association of Civil Servants of the Ministry of Defence, Armed Forces, National Police and related bodies (ASODEFENSA), the Committee notes the information provided by the Government that, first, in conformity with the Ministry of Labour and Social Security's resolution No. 00371 of 3 March 1998, ASODEFENSA is enrolled on the trade union register and has legal personality. Moreover, for the purpose of clarifying the events reported, the Ministry of Defence carried out an investigation which led to the issue of Circular No. 9571 by the Ministry addressed to all departments of the Ministry, reminding uniformed and civilian public servants of the obligation to respect the right to freedom of association and ordering them to refrain from taking decisions which obstruct trade union activity. The circular also draws attention to the right of trade union organizations to meet in official premises and requests that trade union communications should be allowed to circulate freely in the Offices of the Ministry of Defence, the Armed Forces and Police. Lastly, the Government states that the trade union rejected this circular because it considered that it did not comply with the requirements laid down during the consultation process, and as a result the authorities of the Ministry of Defence are establishing contacts with the trade union in order to dispel doubts and reach an agreement. In this connection, the Committee requests the Government to keep it informed of the outcome of these negotiations, and expresses its hope that all the outstanding matters will be resolved.

38. In regard to the Committee's request regarding the outcome of ongoing legal proceedings in connection with the dismissal of trade union officials and trade union members in the ALFAGRES S.A. and TEXTILIA Ltd. companies and in the Ministry of Finance, the Committee notes the Government's statement that the ALFAGRES S.A. company has stated that no legal proceedings have been lodged for anti-union acts for the reason that such acts never occurred; as reflected in its files, the persons in question left the company through voluntary resignation, or were terminated for just cause or by mutual agreement. Concerning the trade union official dismissed by the Ministry of Finance, the Committee notes with interest that according to the information provided by the Government, the Council of State resolved in a decision of 2 May 1996 to reinstate Ramón Vicente Ebratt Solano in his post; he has been paid the salary and other benefits that he had ceased receiving since the date of his dismissal for anti-union motives. With respect to the legal proceedings for anti-union dismissals in the TEXTILIA Ltd. company, the Committee notes with interest that Labour Court 5 ordered that the trade union leader Isidoro Tellez should be reinstated and he is now once more employed by the company; however, the Committee observes that the respective courts have not yet handed down a decision in three other cases. In this regard, the Committee requests the Government to keep it informed of the final outcome of these proceedings.

39. Lastly, as regards the new allegations and additional information provided by CIOSL and CLAT in connection with murders, attempted murders and death threats against trade union officials and trade union members, the Committee once more deplores the fact that it must acknowledge that anti-union violence has not declined, but that the allegations communicated during the course of the past four months (November 1998-February 1999) appear to indicate that it has continued. Similarly, the Committee once more recalls 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" [see 311th Report of the Committee on Freedom of Association, para. 282]. The Committee deeply regrets the murders of Oscar Artunduaga Nuñez, of the trade union of the Cali Municipal Enterprise Workers (SINTRAEMCALI), Jesús Orlando Arévalo, health secretary of the Trade Union of Workers of Arauca Public Service Enterprises (SINTRAEMPSERPA), Moisés Caicedo Estrada, trade union leader of SINTRE PORCE II, Gladys Pulido Monroy, trade unionist in the municipality of Tutasá, Vereda La Capilla, in the department of Boyacá, and Oscar David Blandín, attorney of the Union of Municipal Workers of Bello, and the attacks against and consequent serious injuries suffered by Tarciso Mora, president of the Colombian Federation of Teachers (FECODE) and Osvaldo Rojas Arévalo, president of the Trade Union of Workers of the Department of Cali. The Committee urges the Government to communicate its observations on all these allegations without delay.

40. Regarding the new allegations of death threats against trade union leaders and trade union members, the Committee notes the Government's information that protection is now being offered to trade union officials Héctor Fajardo Abril, Secretary-General of the CUT, Tarcicio Mora, president of FECODE, Gabriel Alvis, vice-president of USO, Jesús Bernal, president of the National Association of Employees of the Caja Agraria. Likewise, the Government states that it called a meeting on 8 September 1998, at the premises of the National Union of Banking Employees (UNEB), between members of the metropolitan police of Santafé de Bogota and the executives of the organization (Olimpo Cárdenas, Ana Cecilia Escorcia, Segundo Mora, Emidgio Triana, Rafael Peña, Alvaro Pulido, Miguel González, Raúl Malagon, Mauricio Alvarez, Orlando Romero, Alvaro Quintero, Domingo Tovar and Yuly González Villadiego), in order to analyse the collective threats that had been received and to ascertain the level of risk and take necessary action. Concerning the death threats against the officials of SINTRAEMCALI (Alexander López, Alexander Barrios, Harold Viafara, Marcel Castagall, William Lozano, Robinson Emilio Masso, César Martinez, Luis Hernández, Ramiro Perlaza and Luid Enrique Imbaqui), the Committee notes the Government's statement that the national police is taking measures to guarantee their personal protection while conducting their trade union activities. In this connection, the Committee requests the Government to continue to take measures to protect all trade union officials and trade union members in a situation of risk, and to proceed with investigations to identify and punish those responsible and to inform the Committee of the action taken in this regard.

The Committee's recommendations

41. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

Annex I

Allegations on which the Committee has requested
the Government for information on the investigations
and judicial proceedings under way

Murders

Disappearances

Death threats

Detentions

Annex II

Allegations pending or submitted during 1998
on which the Government has not yet
communicated its observations

Murders

Disappearances

Detention of trade union officials and members

Raids on union headquarters, telephone tapping,
surveillance of trade union members

Physical aggression and police repression

Attempted murders

Death threats

Annex III

Recent information of the Government
concerning the allegations

A. Murders

I. Cases in which the guilty parties have been identified, tried and convicted

II. Cases in which additional information is available, although
the perpetrators have not been identified and brought to trial

III. Cases in which the investigation being conducted by the
competent Procurator's Office is at the preliminary stage
and the guilty parties have not been identified and tried

IV. Cases in which the competent Prosecutor's Office ordered the closure of the investigation

V. Cases in which it is not known whether an investigation is being carried out

VI. Cases which according to the Government concern persons
who were murdered for non-union motives or who were not union members

B. Disappearances

I. Cases in which the kidnapped persons have been released

II. Cases which are at the preliminary stage of investigation by the Procurator's Office

III. Cases in which it is not known whether an investigation is being
conducted to identify the guilty parties and bring them to trial

C. Death threats

I. Cases of persons who have been threatened and provided with police protection

II. The National Attorney-General's Office has provided the
following information on seven cases of threats

D. Detention of trade union officials and trade union members

The following persons are accused of rebellion, terrorism and conspiracy to commit crime

The investigation continues in the following three cases:

E. Raids on unions headquarters, telephone tapping,
surveillance of trade unionists

F. Physical aggression and police repression

G. Attempted murder

Annex IV

Allegations of murder, physical aggression, death threats and
detention of trade union leaders and trade union members
committed after the beginning of the national strike of
government workers on 7 October 1998

Murders: (1) Orfa Ligia Mejía, trade unionist, 7 October 1998, in the municipality of Ipiales, department of Nario; (2) Marcos Pérez González, member of the Trade Union of Electricity Workers of Colombia (SINTRELECOL), 10 October 1998; (3) Jorge Ortega García, vice-president of CUT, 20 October 1998 (hours before he was murdered, Ortega García had submitted new allegations in connection with this complaint); (4) Hortensia Alfaro Banderas, vice-president of SIDESC, 24 October 1998, in the municipality of Manure, department of César; (5) Macario Barrera Villota, member of the Huila Teachers' Association, 25 October 1998, in Neiva, department of Huila; (6) Jairo Cruz, president of the Trade Union of Proaceites Workers, 26 October 1998, in the municipality of San Alberto, department of César.

Physical aggression and injuries: (1) 15 October 1998 in Barrancabermeja, against Virgilio Ochoa, member of SINTRACUAEMPONAL; (2) 15 October 1998 in Barrancabermeja, Ugeniano Sánchez, member of SINTRACUAEMPONAL, shot four times in the head; (3) 16 October 1998, Benito Rueda Villamizar, president of SINTRACUAEMPONAL; (4) Mario Vergara and Herberto López, trade union officials of SITTELECOM, brutally beaten by members of the police; (5) 13 October 1998, the police violently charged SITTELECOM workers, several of whom were injured; (6) 20 October 1998, in the city of Bogotá, on Carrera 7 between Calle 24 and 27, riot police assaulted workers who were beginning a peaceful march to Plaza Bolívar, and 22 October 1998, the police assaulted demonstrators who had gathered in Plaza Bolívar from all over the country.

Detentions: (1) 8 October 1998, José Ignacio Reyes, member of SINTELECOM; (2) 16 October 1998, in the San Francisco district of Ciudad Bolívar, Orlando Rivero and Sandra Parra.

Death threats: (1) All trade union officials of the Single National Commando (composed of CUT, CGTD and CTC). Lastly, the premises of TELECOM, ECOPETROL, Caja Agraria, ISS (Social Security Institute) and several health centres and other institutions were militarized.

Cases Nos. 1948 and 1955

Interim report

Complaint against the Government of Colombia
presented by
-- the Single Confederation of Workers of Colombia (CUT) and
-- the Trade Union of Workers of the Bogotá Telecommunications
Enterprise (SINTRATELEFONOS)

Allegations: Declaration of illegality of a strike,
acts of anti-union discrimination and
imposition of compulsory arbitration

42. The complaint in Case No. 1948 was presented by the Single Confederation of Workers of Colombia (CUT) in a communication dated 9 December 1997. The CUT sent additional information in a communication dated 8 January 1998.

43. The complaint in Case No. 1955 was presented by the Trade Union of Workers of the Bogotá Telecommunications Enterprise (Sindicato de Trabajadores de la Empresa de Telecomunicaciones de Santafé de Bogotá) (SINTRATELEFONOS) in a communication dated 2 March 1998.

44. The Government sent its observations on these cases in communications dated 7 October 1998 and 15 January 1999.

45. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

46. In their communications dated 9 December 1997 and 2 March 1998, respectively, the Single Confederation of Workers of Colombia (CUT) and the Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) state that as part of a privatization process which began in 1995, the Bogotá Telecommunications Enterprise (ETB) was converted in November 1997 into a 100 per cent joint-stock company and that its sale has been under discussion since the beginning of 1998. The complainants explain that they have always opposed attempts to privatize and sell ETB through every legal means because the workers in the enterprise want their status as "official employees" to be maintained and the State to retain its social function in the telecommunications sector.

47. The complainants allege that after SINTRATELEFONOS had presented the list of demands for collective bargaining on 24 October 1997, on 4 November the employer dismissed 20 union members and three union officers (including two of those who had negotiated the list of demands), all of whom were covered by trade union immunity. This occurred after the Ministry of Labour, by Decisions Nos. 00286 and 00287 of 9 October 1997, had declared work stoppages allegedly held on 27 and 30 May and 5 and 6 June 1997 illegal (despite the fact that the enterprise had not given the labour inspector the list of workers it intended to dismiss once they had been proved to have participated in, acted in, led, provoked or instigated the alleged work stoppages, as provided in Decision No. 1064 of 1959 and Regulatory Decree No. 2164 of 1959, both adopted by the Ministry of Labour).

48. The complainants add that the dismissals constitute an attempt by the district administration and the management of the enterprise to prevent the setting up of a bargaining committee convened for that day to negotiate the demands, this intention being manifested in the unusual act of inviting a Ministry of Labour and Social Security official as a witness to the possible failure of the trade union bargaining committee to appear. Persons from outside the enterprise who had no knowledge either of the enterprise or of the workers' real problems also came to the bargaining table for the sole purpose of holding up negotiations and preventing concrete agreements from being reached, as evidenced by the record of the completion of the stage of direct settlement of the demands; moreover, the Ministry of Labour was petitioned to convene a compulsory arbitration tribunal. The bargaining process was hindered to the point where the arbitrator appointed by management to the arbitration tribunal convened by the Ministry failed to appear in order to determine the third member of the court together with the trade union's arbitrator, thus further delaying the collective bargaining process. An attempt was also made to have an alleged denunciation of the collective agreement by the management recognized by the workers' bargaining committee for the sole purpose of not negotiating the demands presented by the workers on 24 October 1997. At the same time the management, as part of its policy of spreading uncertainty and fear, extended the deadline within which workers who had not yet availed themselves of the early retirement plan (PAP) for operatives and technicians could sign up for it.

49. The complainants therefore call for the reinstatement of the 23 persons who have been dismissed, payment of their lost wages, and revocation of the Ministry of Labour decisions declaring the alleged work stoppages illegal.

50. The complainants allege further that the system of "faceless justice" had been applied in accusations and investigations brought before internal and external supervisory bodies, such as the Anti-corruption Office (in the case of internal bodies) and the Bogotá Office of the Ombudsman in which about four investigations had been initiated, covering some 800 workers, initially for alleged slight misconduct, which may be converted to extremely serious misconduct, for allegedly failing to put their names down on the list of persons entering the ETB on or around the dates on which the sale or privatization of the ETB was being discussed.

51. The district administration and the enterprise management are also alleged to have indirectly caused criminal charges to be brought against union officers Mr. Víctor Manuel Bautista Ramírez, Social Welfare Secretary, and Ms. Sandra Patricia Cordero Tovar, Information, Press and Propaganda Secretary, who are accused of acts of violence against an official employee, and whose case has been filed under number 588 with Public Prosecutor's Office No. 287. It should be added that Mr. Víctor Manuel Bautista Ramírez has been suspended from his post for 90 days without remuneration or wages, a sanction unilaterally imposed by decision of the management, flouting due process and the presumption of innocence.

52. The complainants allege further that the ETB, pursuing its policy of sowing fear and uncertainty, recently dismissed without just cause Mr. Elías Quintana and Mr. Carlos Socha, who are covered by trade union immunity as a collective dispute is currently under way.

53. In its communications dated 9 December 1997 and 8 January 1998, the CUT alleges that the Ministry of Labour, by decision of 26 September 1997, ordered the cessation of a strike held by 300 workers of the metal engineering enterprise COMESA S.A. and convened an arbitration tribunal. The Trade Union of Workers of COMESA (SINTRACOMESA) lodged an appeal to have the decision overturned, in conformity with provisions of the decision in question; hence the decision was not final but was applied anyway. According to the complainant, although the strike lasted 69 days neither the enterprise nor the Ministry of Labour made any attempt to convene a meeting to bring the sides together. The CUT points out that it is the workers who must decide freely whether they will continue to exercise the right to strike or choose the arbitration tribunal and therefore requests that the decision of the Ministry of Labour imposing arbitration be revoked.

54. Lastly, the CUT alleges that 28 workers who are members of the industry trade union SINTRAELECOL were dismissed: 14 from the Cundinamarca Power Company, 13 from the EPSA enterprise in Cali and one from the Bogotá Power Company.

B. The Government's reply

55. In its communication dated 7 October 1998, referring to the collective dispute in the Bogotá Telecommunications Enterprise (ETB), the Government states that section 25 of Decree No. 2351 of 1965 and section 1 of Regulatory Decree No. 1373 of 1966, which concern dismissals during collective labour disputes, provide that "workers who have submitted a list of demands to their employer shall not be dismissed without just cause, duly proven, from the date on which the demands are submitted and during the statutory periods established for direct settlement". It is enough to read this provision to deduce that it is not for the Ministry of Labour and Social Security to comply with it, since it is employers who decide at a certain point in time to hire or fire their staff, and in the event of dismissals considered to be in violation of the above provision, the workers concerned have the option of availing themselves of the ordinary labour jurisdiction.

56. The Government adds that the Ministry of Labour and Social Security is empowered by law to declare work stoppages illegal, since section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour. Due process was not violated by the Ministry's adoption of Decisions Nos. 002286 and 002287 of 1997 declaring illegal the work stoppages in the Bogotá Telecommunications Enterprise (ETB), since in these cases the law does not provide for a procedure to be carried out before issuing an administrative decision in response to a petition to declare a strike illegal -- it is enough to verify that the stoppage or stoppages in fact occurred. Therefore, the Ministry has not violated article 29 of the Political Constitution, since in declaring work stoppages illegal it is not necessary for the parties to appear before the administrative decision is issued.

57. On the subject of declaring strikes illegal, the Administrative Court of the Council of State ruled as follows in a decision dated 19 June 1997:

58. Concerning the allegation that the correct time-limits had not been observed, i.e. that the stoppages were declared illegal months after they had occurred, sections 450 and 451 of the Labour Code do not fix a time-limit for the Ministry of Labour to declare or not to declare a collective work stoppage illegal. Hence the Ministry met all the legal requirements for issuing Decisions Nos. 002286 and 002287 of 9 October 1997.

59. Moreover, Circular No. 019 of 1991 was in fact intended for the labour and social security inspectors and instructs them on how they should draw up reports of verifications of stoppages of work. The same is true of the circulars issued previously on this subject, and these officials comply with it, since if this were not the case the Ministry could not declare the stoppages illegal. Although it is well known that trade unions sometimes do not take part in these verification procedures, either because they are not interested in doing so or because their representatives are not present at the time, the instructions take the position that workers' organizations should always be given an opportunity to participate in these procedures.

60. In its communication dated 15 January 1998, referring to the alleged dismissals in the Bogotá Telephone Company (23 workers, three of whom were members of the SINTRATELEFONOS executive committee), the Cundinamarca Power Company (14), the EPSA enterprise in Cali (13) and the Bogotá Power Company (1), the latter 28 workers being members of the industry union (SINTRAELECOL), the Government states that under section 25 of Decree No. 2351 of 1965, when workers are dismissed during a collective labour dispute, which may be in violation of its provisions, the workers concerned have the option of appealing to the ordinary labour courts which, under section 2 of the Labour Procedural Code, as amended by section 1 of Act No. 362 of 1997, were established to handle legal disputes in general arising directly or indirectly out of the contract of employment and, in particular, to handle cases involving trade union immunity of public employees, official employees and private individuals. Accordingly, workers covered by trade union immunity who are dismissed without the grounds for the dismissal having been legally determined may bring actions for their reinstatement and the consequent payment of the wages they had not received. Section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and Social Security in the cases expressly laid down in the law.

61. In this case, the Ministry of Labour met all the legal requirements for issuing Decisions Nos. 002286 and 002287 of 9 October 1997 declaring the illegality of work stoppages in the Bogotá Telecommunications Enterprise, and the above-mentioned legislation provides expressly that administrative decisions of this kind cannot be appealed through government channels. Accordingly, in Decision No. 000003 of 6 February 1998 the Ministry declared inadmissible the appeal for reversal lodged by the chairperson of the Trade Union of Workers of the Bogotá Telecommunications Enterprise.

62. The Government specifies that the Ministry decision declaring the stoppage illegal may be contested before the jurisdiction of the executive power by filing a complaint with the Council of State, which is the highest instance within the administrative jurisdiction. This legal means of redress enables the persons concerned (trade unions or workers) to have the legality of the administrative decision reviewed, with the possible result that it may be annulled if it is found to be contrary to law. In this case, neither the trade union nor the workers individually availed themselves of this legal means of redress, which must be interpreted as a renunciation of discussion in this area and of the only possibility of preventing the decision from taking effect.

63. Concerning the request for reinstatement with pay of the 23 workers dismissed by the Bogotá Telecommunications Enterprise, the Government points out in its communication of 15 January 1998 that by virtue of the autonomy of the executive, legislative and judiciary branches enshrined in the Political Constitution, the content of agreements reached by municipal councils, such as that of the privatization plan contested by the complainants, is within the exclusive remit of the councils, while the legality of their labour implications is a matter for the judiciary, which is responsible for determining the legality of such decisions.

64. It may be deduced from sections 405 of the Labour Code and 25 of Legislative Decree No. 2351 of 1995 that if employers decide to dismiss workers and exceed their authority in doing so, the appropriate channel for claiming rights such as reinstatement and payment of wages and benefits which have been suspended is the judiciary, since the ordinary labour jurisdiction was established to settle legal disputes arising directly or indirectly out of the contract of employment and, in particular, those relating to the trade union immunity of official employees, private individuals and public employees. In other words, this is an individual legal dispute which the judges of the Republic have sole and exclusive competence to hear and judge, and they are the ones to whom the persons concerned should have brought their case. Their failure to file a complaint to this effect should be interpreted as a renunciation of the exercise of the legal means afforded them by the institutional framework to obtain the rights which they consider to have been violated. The Ministry of Labour is thus not empowered to order reinstatements or uphold rights such as those claimed by the complainants.

65. Concerning the complainants' petition for revocation of Decisions Nos. 002286 and 002287 of 9 October 1997 issued by the Ministry of Labour, the Government states that under section 451 of the Labour Code, the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and Social Security in the cases expressly provided for by the law. The decision is to be executed immediately and may only be appealed by bringing an action before the Council of State. In the exercise of this authority, the Ministry of Labour and Social Security issued Decisions Nos. 002286 and 002287 of 1997, having verified that the stoppages had actually occurred, i.e. the legal procedure was carried out. The trade union lodged an appeal for the reversal of this decision and it was declared inadmissible according to national legislation, and therefore Decision No. 000003 of 6 January 1998 was issued. It should be pointed out that the trade union could have brought an action before the executive jurisdiction -- the Council of State -- to declare the administrative decisions void and it did not do so, thus failing to avail itself of the legal channels which cannot be replaced by the actions of third parties.

66. As regards the alleged terminations of employment under the voluntary and/or early retirement plans, the Government points out that Colombian legislation does not prohibit this, as it does not infringe freedom of contract, since each worker has the opportunity to choose freely whether or not to subscribe to such plans. If there is a defect in the manner in which the workers give their consent, this may be addressed through legal channels.

67. Concerning the criminal charges against Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar, the Government states that it has received a written communication dated 6 January 1999 on this matter, which was attached to the reply, from the Anti-corruption Office of the Bogotá Telecommunications Enterprise (ETB) which reads as follows:

The Government points out that the existing complaint refers to a personal case involving the commission of a common crime and bears no relation to labour matters.

68. Concerning the Trade Union of Workers of the Comesa Metalworking Company -- COMESA S.A. -- and the alleged violation of the right to strike, in its communication dated 7 October 1998, the Government states that the above-mentioned trade union submitted a list of demands to the COMESA enterprise, and as no agreement was reached at the direct settlement stage, the trade union declared and held a strike starting on 25 July 1997. By the powers vested in it by section 448 of the Labour Code, as amended by section 63(4) of Act No. 50 of 1990, the Ministry, by Decision No. 002183 of 21 September 1997, ordered that a compulsory arbitration tribunal be established in order to resolve the collective labour dispute. An appeal to overturn this decision was lodged, which was upheld by Decision No. 002332 of 16 October 1997. The above-mentioned provision (declared enforceable by ruling No. 115 of 26 September 1991 of the Supreme Court of Justice) empowers the Ministry of Labour, when a strike lasts for more than 60 calendar days, to order that the dispute be referred to an arbitration tribunal. When the Ministry exercises this authority, the workers are obliged to resume work within three working days, beginning on the date on which the decision was published in a widely circulated newspaper and not, as the trade union understood it to be, from the date on which the decision becomes final, since in these cases the decision is to be executed immediately, without prejudice to any appeals which may be lodged against it. This is the case because if the trade union's arguments were to be accepted, the strike would be prolonged to the detriment of the economic situation of the workers and the enterprise, and the immediate effect sought by the legal provisions would be nullified. In this case this authority was exercised bearing in mind that these tribunals provide a valid and effective means of resolving collective labour disputes.

69. In its communication dated 15 January 1998, the Government reiterates that the Trade Union of Workers of COMESA S.A. submitted a list of demands to the enterprise, on which no agreement was reached at the direct settlement stage and, as a result, the trade union declared and held a strike as of 25 July 1997. By the power vested in it by section 448 of the Labour Code, as amended by section 63(4) of Act No. 50 of 1990, once the period laid down in the law had elapsed (60 days) the Ministry of Labour, by Decision No. 002183 of 26 September 1997, ordered the establishment of a compulsory arbitration tribunal as a means of resolving the collective labour dispute. An appeal for the reversal of this decision was lodged, and the decision was upheld by Decision No. 002332 of 16 October 1997. These decisions were based on the fact that when the Ministry exercises the authority conferred on it by the above-mentioned provision, the workers are obliged to resume work within three days, starting from the date on which the decision was published in a widely circulated newspaper (section 46 of the Code of Administrative Litigation) and not from the date on which the decision became final as the complainants have alleged. If this argument were accepted the strike would be prolonged to the detriment of the national economy and the public economic interest, and the immediate effects sought by the legal provision would be nullified. This is also supported by article 55 of the Constitution, which calls for the application of "means of achieving a peaceful solution to collective labour disputes" to prevent them from continuing indefinitely. The Government adds that the trade union had the possibility of filing a complaint before the administrative tribunal to contest the legality of the administrative decision, and did not do so. It is clear from the above that in this case the procedures were carried out in accordance with national legislation and the requirements of international conventions, since the complainants could have availed themselves of legal channels to assert their rights.

C. The Committee's conclusions

70. The Committee observes that the allegations presented by the complainants refer to the dismissal of 20 members and three officers of SINTRATELEFONOS and to the declaration of illegality of work stoppages by the Ministry of Labour pursuant to which these dismissals were ordered, despite the fact that the alleged stoppages had occurred months before; to accusations and investigations by public bodies or the ETB enterprise affecting some 800 workers; to criminal charges brought against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Sandra Patricia Cordero Tovar; to the dismissal of the workers Mr. Elías Quintana and Mr. Carlos Socha during the collective dispute in which SINTRATELEFONOS was involved; to the referral of the collective dispute in the COMESA S.A. enterprise to compulsory arbitration by decision of the authorities when the workers were holding the strike; and to the dismissal of 27 SINTRAELECOL members employed in three enterprises.

71. Concerning the collective disputes in the Bogotá Telecommunications Enterprise (ETB), the Committee notes the Government's statements to the effect that: (1) section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and that the administrative decisions declaring the stoppages illegal were issued in accordance with the legislation; (2) an appeal for annulment could have been lodged against these decisions before the Council of State but neither the complainant nor the workers concerned had done so; (3) sections 450 and 451 of the Labour Code do not set a time-limit for the Ministry of Labour to declare a collective suspension or stoppage of work illegal; and (4) the workers covered by trade union immunity who were dismissed without the grounds for dismissal having been legally determined may bring actions for reinstatement and payment of wages due, but they have not availed themselves of these legal channels.

72. While it is aware that telephone services are essential services in the strict sense of the term in which the right to strike may be restricted or even prohibited [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 536 and 544], the Committee notes that the declaration of illegality of the work stoppages in the ETB enterprise was made by the Ministry of Labour, and recalls that "responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved" [see Digest, op. cit., para. 522].

73. In these circumstances, bearing in mind (1) that the declaration of illegality was made months after the work stoppages had occurred; (2) that the stoppages took place in the context of a privatization process which would necessarily have a substantial impact on the workers' situation (including changing their status) and in a highly tense atmosphere in which a new collective agreement was being negotiated; and (3) that according to the complainant -- and this was not denied by the Government -- attempts had been made during the bargaining process to hold up negotiations and impose compulsory arbitration on the workers, the Committee requests the Government -- over and above strict legality -- and taking account of the circumstances, to take measures with a view to furthering the reinstatement of the 23 workers who had been dismissed and requests it to take steps to this end.

74. Concerning the criminal charges against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar, the Committee notes that according to the Government the ETB has not brought criminal charges and that there has only been a complaint lodged by an individual against Mr. Ramírez referring to a personal case involving the commission of a common crime bearing no relation to labour issues. The Committee requests the Government to inform it of any ruling handed down with respect to Mr. Bautista Ramírez and any ruling that may eventually be handed down with respect to Ms. Cordero Tovar.

75. As regards the allegations concerning the collective dispute in the COMESA S.A. metalworking enterprise, the Committee notes that according to the Government the decision to convene an arbitration tribunal which put an end to the strike was taken pursuant to section 448 of the Labour Code, which authorizes the Ministry of Labour, in the event of a strike lasting more than 60 calendar days, to order the dispute to be referred to an arbitration tribunal in which case the workers must resume work within three working days; failure to do so, according to the Government, would be detrimental to the economic situation of the workers and the enterprise and to the national economy and the public economic interests; the Government recalls in this connection that article 55 of the Constitution calls for the application of "means of achieving a peaceful solution to collective labour disputes" to prevent them from continuing indefinitely; the Government also states that the trade union concerned did not appeal before the administrative jurisdiction against the decision ordering arbitration. The Committee observes nonetheless that the Government has not denied the complainants' statement to the effect that neither the enterprise nor the Ministry of Labour called any meetings to bring the sides together. In these circumstances, the Committee draws the Government's attention to the fact that "Compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population" [see Digest, op. cit., para. 515]. The Committee accordingly requests the Government to take steps to amend section 448 of the Labour Code (which has also been requested by the Committee of Experts) in line with the above-mentioned principle.

76. As regards the dismissal of SINTRAELECOL members in the Cundinamarca Power Company (14), the EPSA company in Cali (13) and the Bogotá Power Company (1), the Committee notes that the Government refers in its reply to its statements in connection with the dismissals in the ETB enterprise (examined previously) mentioning the existence of appeals before the judicial authority, without indicating the reasons for the dismissals. The Committee notes further that the Government has not referred specifically to the reasons for the dismissal of the workers Mr. Elías Quintana and Mr. Carlos Socha during the collective dispute in the ETB enterprise. The Committee therefore requests the Government to indicate the concrete facts which prompted the dismissal of all of these workers. Lastly, noting that the Government has not replied to the allegation concerning accusations and investigations by public bodies or the ETB affecting some 800 workers, the Committee requests the Government to send its observations in this respect.

The Committee's recommendations

77. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

Case No. 1962

Interim report

Complaint against the Government of Colombia
presented by
the Single Confederation of Workers (CUT) 

Allegations: Dismissals connected with restructuring,
in breach of the collective agreement

78. The complaint is contained in a communication from the Single Confederation of Workers, dated 6 March 1998. This organization submitted additional information by letter of 25 August 1998. The Government responded in its communication of 15 January 1999.

79. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

80. The Single Confederation of Workers alleges that, on 31 January 1993, the municipal authorities of Neiva (Department of Huila) illegally dismissed 155 public employees of the Public Works Office, on the pretext that the municipal administration had ordered the closure of this office with a view to its abolition. However, the CUT reports that the employer was the Municipality of Neiva and that the relevant legislation (Decree No. 2127 of 1945) does not provide for termination of employment contracts on grounds of abolition of posts; moreover, the collective agreement states that the municipal administration "has an effective commitment to guarantee the stability of employment of all unionized workers" and that in the event of unjust dismissal "the municipality shall reinstate the worker in the post occupied by him/her and shall accept to pay any remuneration and benefits that the worker has failed to receive".

81. The CUT adds that, when an appeal was lodged, the judicial authorities recognized that the dismissal was illegal but that "the workers' reinstatement was not effectively possible", given the administration's prerogative to carry out restructuring by virtue of the Political Constitution and in the general interest. At the same time, the Court of Appeal states that the municipal authorities are not exonerated from paying compensation for dismissal but that such compensation was not requested and consequently not granted.

82. The CUT also alleges that, when the dismissed workers appealed to the Supreme Court of Justice, that body threw out their claims, stating that "if the employer, in disregard for the law, closes, in part or in full, the enterprise and such closure results in the termination of an employment contract, it is legally inadmissible to claim reinstatement even if foreseen by law, collective agreement or accord".

83. Similarly, the CUT alleges that, in various rulings, the judicial authorities disregarded the guarantees of trade union privilege accruing to the 14 leaders of the Public Employees' Trade Union of the Municipality of Neiva (dismissed without the municipal authorities of Neiva having obtained prior judicial authorization). They also rejected the appeal by ten leaders of the Public Servants and Employees' Union of the Municipality of Pitalito, who were dismissed on 19 September 1994, without that municipality having awaited a court ruling regarding prior authorization for termination -- although the case was already at the appeal stage. There was also denial of the trade union privileges of five leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development (SINALTRAHIMAT, Neiva section) in the ruling handed down by the High Court of Neiva, Chamber for Civil Labour Affairs (the leaders in question had been dismissed in August 1993 without the prior judicial authorization required by legislation).

B. The Government's reply

84. In its communication of 1999, the Government states that the dismissal of the 155 employees of the Public Works Office of the Municipality of Neiva, Department of Huila, was the consequence of the municipal administration's restructuring programme consisting of the above-mentioned Office's closure which had led to the abolition of the relevant posts. As a result of these dismissals, the Regional Labour Directorate of Huila conducted an administrative inquiry into a breach of the collective agreement signed between the Public Employees' Trade Union of the Municipality of Neiva and the said municipal authorities; by resolution No. 0008, 15 April 1996, it imposed a fine upon the municipality of five minimum legal wages. The dismissed workers used all administrative channels with a view to legal action against the Municipality of Neiva for breach of the collective agreement which was in force at the time of the disputed decisions and sought forced reinstatement by the municipal authorities of the above-mentioned public servants in accordance with the terms of the collective agreement. After the Municipality of Neiva had been summoned to present its defence, the Labour Tribunal of First Instance, called upon to examine the cases, pronounced the respective judgements. As these were not favourable to the workers' claims, the dismissed workers lodged appeals with the High Court of Neiva, Chamber for Civil Labour Affairs, which threw out all of the workers' petitions. The judgement was based on the principle of an administration's prerogative to restructure, as established by the Council of State and in keeping with the Political Constitution.

85. The Government adds that a group of the workers concerned lodged an appeal (extraordinary judicial appeal) with the Supreme Court of Justice (highest regular judicial body); the relevant judgement was published on 29 May 1997, which, in substance, states: "hence, the charges are unsuccessful though it is appropriate to add that the demanded reinstatement presupposes the worker's dismissal and not the body's closure which was what occurred in the present case". This judgement constitutes a final decision and must be accepted and respected by the other branches of public authority.

86. The Government emphasizes that, in the case in question, there were no unjust dismissals but abolition of posts on account of the closure of the Public Works Office of the Municipality of Neiva; this decision is in compliance with the Political Constitution, article 315, No. 4.o, which authorizes local bodies to restructure and adjust to existing needs -- a norm addressed by Decree No. 16, 31 January 1993 -- as invoked by the Mayor of Neiva. The aforementioned was accepted to its fullest extent by the High Courts in judgements published by them on 23 May 1996, 28 August 1996, 29 May 1997, 19 July 1997 and 2 December 1997. Nor was there any breach of international labour Conventions ratified by Colombia, given that there is no ILO Convention or Recommendation requiring a member State to maintain obsolete, inefficient bodies which do not deliver the services required of them, on the sole grounds that trade union members work there.

87. Furthermore, the Government indicates that the state authorities of Colombia may not be held liable for alleged damages which it did not create. The persons claiming to have suffered a loss were the Neiva municipal workers, and municipalities are autonomous and fundamental bodies within the political and administrative division of the State. In the light of the various judgements of the High Courts, it was possible to ascertain that acquired rights had not been disregarded. No compensation was awarded to the relevant parties, given that there were no grounds for such; this was established in the above-mentioned judgements which placed an end to judicial examination and became immutable, obliging observance by all other branches of public authority.

88. In connection with the dismissal of the leaders of the Trade Union of Public Servants and Employees of the Municipality of Pitalito, the Government reports that, on 19 September 1994, legal proceedings were initiated before the Pitalito Labour Tribunal. The ruling handed down on 21 April 1995 sentenced the Municipality of Pitalito to reinstatement of the workers with protection in the same conditions of employment and to pay the wages which the workers had failed to receive in connection with their dismissal. The Municipality of Pitalito lodged an appeal against the tribunal's ruling and brought the case before the High Court of Neiva, Chamber for Civil Labour Affairs; the court reversed the ruling of the Pitalito Labour Tribunal and denied the special protection (amparo) of trade union privilege.

89. Finally, the Government points out that the municipality is required to accept and respect judicial decisions regarding the issues raised in the present case and that the actions of the various branches of state authority have been in compliance with domestic law and with the requirements of ILO Conventions Nos. 87 and 98.

C. The Committee's conclusions

90. The Committee observes that the present case relates to dismissals of workers or trade union leaders in the Municipality of Neiva, the municipality of Pitalito and the Institute of Hydrology, Meteorology and Land Development (Neiva section).

91. With regard to the dismissal of 155 public employees (including 14 trade union leaders) in January of 1993, the Committee observes that the complainant emphasizes that the relevant dismissal constitutes a breach of legislation as well as of the collective agreement, and criticizes the criteria applied by the judicial authorities in their decision not to demand the reinstatement of the dismissed workers. The Committee takes note that the Government states that: (1) the dismissals were ordered in connection with the municipal administration's restructuring, consisting of the closure (abolition) of the Public Office in which the dismissed persons had worked; this took place by virtue of a municipal decree in compliance with the Political Constitution of the State; (2) the Regional Labour Directorate of Huila imposed a fine of five monthly minimum legal wages upon the municipality in respect of a breach of the collective agreement; (3) the judicial authorities (Court of Appeal and Supreme Court of Appeal) came out against the demand for reinstatement of the dismissed workers; and (4) no compensation was awarded to the dismissed persons. The Committee concludes that, inasmuch as the restructuring affected all workers employed by the Public Works Office (irrespective of whether they were or were not trade union members or leaders), the issue of anti-trade union discrimination does not, in principle, arise; nevertheless, there remains the question of whether an administrative unit's restructuring, leading to its closure, may be in contradiction with the employment stability of the workers concerned whenever the collective agreement generally establishes the principle of such stability. In this regard, the Committee considers that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935]. Nevertheless, the Committee has emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring on the employment and working conditions of employees [see Digest, op. cit., para. 937].

92. The Committee observes that, according to the Government, the restructuring (abolition) of the Public Works Office was carried out by decree and notes that neither the complainants nor the Government have indicated that consultations between the parties have taken place or that attempts have been made to arrive at an agreement regarding the consequences of the restructuring (in particular with a view to relocating the workers affected, to the extent possible, in another public department). Consequently, the Committee draws the Government's attention to the principle that consultations should be held with trade union organizations on the consequences of restructuring on the employment and working conditions of employees.

93. In order for the Committee to be in a position to come to conclusions on the allegations concerning the non-respect of the collective agreement in the Municipality of Neiva, it requests the Government to transmit all administrative and judicial decisions concerning this collective agreement.

94. With regard to the judgement (criticized by the complainant) rejecting the reinstatement of the leaders of the Public Servants and Employees' Union of the Municipality of Pitalito, who had been dismissed on 19 September 1994, the Committee observes the Government's statement that it is bound to respect judicial decisions. The Committee observes that the District High Court, Chamber for Civil Labour Affairs, handed down a ruling on 30 July 1996 (sent by the complainant), which rejects the claim to reinstatement with the argument that, by that date, the statutory term of office of the relevant trade union leaders as well as the additional period of six months of protection provided for by legislation had already expired; consequently, they had no longer enjoyed the special protection (amparo) of trade union privilege as of 15 March 1994, it being irrelevant that the trade union had still not held new leadership elections by 19 September 1994. In these circumstances and observing that the action in question relates to problems having occurred in 1994 as well as to a relatively complex interpretation of the duration of the protection -- as laid down in the relevant legislation -- granted to trade union leaders from dismissal, and, given the particular circumstances of the case, the Committee will not pursue its examination of this allegation.

95. Finally, the Committee observes that the Government has submitted no comments regarding the judgement criticized by the complainant and which rejects the reinstatement of the leaders of the National Trade Union of Public Servants and Employees of the Institute of Hydrology, Meteorology and Land Development (Neiva section), who had been dismissed in August 1993 without the prior judicial authorization provided for by legislation. Hence, the Committee urges the Government to respond to this allegation and to communicate the text of the rulings handed down in this regard.

The Committee's recommendations

96. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

Case No. 1964

Interim report

Complaint against the Government of Colombia
presented by
the Trade Union of Glass and Allied Workers of Colombia
(SINTRAVIDRICOL)

Allegations: Anti-union interference and discrimination,
acts of intimidation and non-compliance with the terms
of a collective agreement

97. The complaint is contained in communications of the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) dated 15 April and 14 May 1998. The Government replied in a communication dated 15 January 1999.

98. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

99. In its communications dated 15 April and 14 May 1998, the Trade Union of Glass and Allied Workers of Colombia (SINTRAVIDRICOL) alleges that its members consist of the workers of three enterprises (Cristalería Peldar S.A., Compañía Nacional de Vidrios S.A. (CONALVIDRIOS) and Vidrio Técnico de Colombia (VITECO)) and that since 1994 the CONALVIDRIOS S.A. enterprise has carried out a series of legal, material and economic attacks against its local executive committees in the cities of Soacha and Buga with the aim of weakening them and turning the union into a minority organization. The other enterprises referred to respect the trade union and engage in dialogue and collective bargaining with it.

100. Specifically, the complainant alleges that the following violations of trade union rights have been committed:

101. The enterprise also brought criminal charges against seven officers of the Soacha local executive committee of the trade union for alleged procedural fraud, false impersonation and falsifying documents. The trade union brought criminal charges against four managers of the enterprise for trade union persecution (section 272 of the Penal Code).

102. Finally, the complainant attaches a copy of a judgement of the Supreme Court of Justice dated 21 January 1997, in which it is acknowledged that the CONALVIDRIOS S.A. enterprise exerted pressure on the workers in order to obtain their withdrawal from the trade union and ordered the enterprise "to refrain in future from acts aimed at preparing or processing withdrawal of trade union membership or any conduct aimed at obtaining the withdrawal of workers from membership of the enterprise trade union".

B. The Government's reply

103. In its communication dated 15 January 1998, the Government states that the complainant had not previously presented a complaint to the Ministry of Labour concerning alleged legal, material and economic attacks on the local executive committees of the complainant trade union in Soacha and Buga with the aim of weakening them and turning the union into a minority organization, and getting them to conclude a collective pact [which is not applicable to all workers but only to the union members], nor concerning the alleged enterprise policy of withdrawal of trade union membership by granting benefits to those who resign, nor concerning the denial of trade union leave, nor with regard to the alleged violations of human rights (manoeuvres by the enterprise to prevent workers from attending assemblies or talking with trade union officers, by dismissing or transferring those who do so to another workstation or shift in some cases), nor concerning failure on the part of the Ministry of Labour to act appropriately. The assertion of the complainants that the Colombian State is involved in these alleged acts, is denied.

104. The Government asks that it be placed on record that the Regional Director of Labour and Social Security of Cundinamarca to whom the complaint refers served in this position from 8 May 1991 to 4 September 1994 and was only afterwards hired by the CONALVIDRIOS S.A. enterprise. While it is true that it would be illegal to hold posts in the Ministry of Labour and in the CONALVIDRIOS enterprise simultaneously, the complaint indicates no proof that this in fact occurred or that the alleged acts occurred during this person's period of office in the Ministry of Labour and Social Security. In any case, the persons concerned could have lodged a complaint concerning his conduct before the bodies responsible for supervising discipline, such as the State Public Prosecutor, and, as a lawyer was involved, before the Supreme Council of the Judicature. It should be pointed out that after retiring from public service the person concerned was legally entitled to join CONALVIDRIOS S.A. or any other enterprise. The Government adds that in a country founded on the rule of law, such as Colombia, in which citizens have a wide range of judicial means of enforcing their rights, the legality of administrative decisions is supervised by the Council of State, the highest administrative tribunal, before which the complainants must appear upon a claim being lodged by one of the parties to bring an action to declare a decision void and reinstate a right, the purpose of which is to contest the legality of administrative decisions issued by the Government and award compensation for damages. As it was found that proper notification had not been given, the competent authority was unofficially informed of the facts in order to verify the alleged omission by administrative officials in order to sanction them for any breaches of discipline that had occurred. Attention is drawn to the above-mentioned supervision of the legality of such administrative decisions.

105. As regards the alleged dismissals of trade union leaders, the Government states that national labour legislation provides that workers who enjoy trade union immunity may bring an action for reinstatement in their jobs and that in order to do so the persons concerned must lodge a claim before the labour court in due time and provide evidence in support of their claims. Concerning the complainant's assertion that the dismissals were instigated by a former official of the administration and therefore the Ministry of Labour and Social Security allegedly behaved in a biased manner, the Government points out that the Ministry does not carry out any jurisdictional function with regard to the dismissal of workers covered by trade union immunity and therefore the union's tendentious presentation of the facts is not valid, since Colombia is firmly founded on standards which above all observe the guarantees with regard to the principles of legality, mutual respect and the common good, and, as the complainant states, the dismissals carried out by a former state official were ordered solely and exclusively in his capacity as Human Resources Director of the CONALVIDRIOS S.A. enterprise.

106. Concerning the alleged violations of human rights (manoeuvres by the enterprise to prevent workers from attending assemblies or talking with union officers by dismissing or transferring those who do so to another workstation or shift in some cases), the Government states that it has referred this issue to the Inter-Institutional Human Rights Office of the Ministry of Labour in order for it to carry out an investigation and hand down a decision in the matter.

107. The Government further denies the alleged incompetence and complicity of the State of Colombia, since it is the trade union which must bring actions to defend the rights which it considers to have been violated, and it must do so before the public powers (either the ordinary labour courts or the administrative jurisdiction, depending on the case), upon claims being lodged by the parties, who must provide evidence in support of their claims.

108. Lastly, the Government reiterates that the trade union has not availed itself of the different bodies and machinery afforded by the legal system to defend its rights and, in ignoring these channels, has acted rashly in bringing the complaint directly before the Committee on Freedom of Association. It is, therefore, requested that this matter be brought before the Governing Body of the ILO with a view to adopting measures to prevent this type of act from recurring.

C. The Committee's conclusions

109. The Committee observes that in this case the complainant has alleged a long series of acts of anti-union interference and discrimination (including dismissals of trade union officers and members, obstruction of trade union activities, acts of intimidation, pressure to obtain the resignation of trade union members) and non-compliance with the terms of the collective agreement by the CONALVIDRIOS S.A. enterprise.

110. Firstly, as regards the Government's statement contained in the last paragraph of its reply, the Committee recalls the rules governing its procedure in this regard as follows:

The Committee requests the Government to take the rules into account in the future.

111. The Committee notes the Government's statement to the effect that the complainant had not informed the authorities of some of these matters, that the legislation provides for administrative and judicial machinery and procedures in the event of a violation of the legislation, which includes provision for an action for reinstatement of workers who have been dismissed in violation of their trade union immunity. The Government also points out that the fact that a manager in the enterprise had formerly held office in the Ministry of Labour is neither illegal nor objectionable, but that once the complaint had been brought to its attention the competent authority had been informed of the alleged acts. The Government also states that the Inter-Institutional Human Rights Office of the Ministry of Labour will carry out an investigation into the aspect of the complaint concerning human rights.

112. The Committee regrets that the Government has not sent specific observations on the different allegations presented by the complainant in April and May 1998, particularly in view of the gravity of the acts referred to in the complaint, and that the Supreme Court of Justice, in a ruling handed down on 21 January 1997, ordered the CONALVIDRIOS S.A. enterprise to refrain from conduct aimed at obtaining the withdrawal of workers from union membership. In these circumstances, the Committee requests the Government to ensure that a detailed investigation is carried out into each of the allegations presented by the complainant and to inform it in this respect without delay.

The Committee's recommendations

113. In the light of its foregoing interim conclusions, the Committee invites the Governing body to approve the following recommendations:

Case No. 1973

Interim report

Complaint against the Government of Colombia
presented by
the Association of Managers and Technical Staff of
the Colombian Petroleum Industry (ADECO)

Allegations: Favourable treatment of a particular trade union organization,
violation of the right to collective bargaining, discrimination against
members of an organization, interference by an employer
and anti-union practices

114. The complaint is set out in a communication dated July 1998 presented by the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO). The Government replied in a communication dated 15 January 1999.

115. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

116. In its communication of July 1998, the Association of Managers and Technical Staff of the Colombian Petroleum Industry (ADECO), which operates in the Colombian Petrol Company (ECOPETROL), a state-run commercial and industrial enterprise employing 10,877 workers (including 4,300 technical staff), explains that it is an industrial trade union and that ADECO workers are covered by the Substantive Labour Code, while its managerial staff, technical staff and personnel employed in positions of confidence are, in accordance with the provisions applied to ADECO, covered by performance-related pay provisions distinct from the system agreed by the company through the relevant collective agreements, it being expressly stipulated in the relevant special pay scheme that in any event, pay and benefits for the staff in question shall not be inferior to those currently applied (Executive Decree No. 1209 of 1994). This special pay scheme is governed by the ECOPETROL Agreement No. 01 of 1977 which was updated every two years (until July 1997) whenever the collective agreement applicable to the other workers (which the Workers' Trade Union USO had signed) was reviewed.

117. ADECO explains that it registered as a trade union with the Ministry of Labour on 20 August 1996 and, in November 1996, asked the authorities to carry out a trade union census for the purposes of collective bargaining.

118. ADECO adds that it signed an agreement with USO on 22 October 1996 stipulating that a list of claims would be drafted jointly and that an ADECO delegate would be allowed to participate as a negotiator during talks on the next collective agreement. This agreement was not respected by USO following the adoption of a decision by its assembly; the need for a trade union census was ignored (ADECO and USO were both minority unions, neither of them representing 50 per cent of the workforce), and precedence was given to USO under the collective agreement. ADECO states that USO signed an accord with the company on 19 November 1996 and, for reasons of political expediency, granted ADECO only consultative status at the negotiating table (once talks had begun, it was excluded from the negotiations). After 17 February 1997, ADECO again asked the authorities to carry out a trade union census at the company. ECOPETROL refused to hold separate talks with ADECO; ADECO, therefore, again asked the Ministry of Labour for a census and for the establishment of an arbitration panel to rule on ADECO's demands as a minority union (and specifically on its right to bargain collectively as a minority union coexisting with USO, which while larger is still a minority union) for joint talks or, alternatively, arbitration.

119. ADECO states that USO and ECOPETROL signed a collective agreement on 27 May 1997 which is also illegally applied to members of ADECO and impairs their acquired rights in relation to wages and benefits which had been incorporated in individual work contracts of ADECO members since Agreement No. 01 of 1977. Its purpose is to destroy ADECO. On 21 October 1996, ADECO submitted a joint list of USO-ADECO claims to the enterprise which was approved initially by the joint assembly of all the company's unionized workers. ADECO also states that, before the collective agreement was signed, the registration of USO as a trade union had been cancelled by Administrative Decision No. 0040430 of 20 December 1996 following the merger of that union with another organization (ASOPETROL), and that on 16 May 1997, ADECO unsuccessfully proposed to the company an accord separate from the collective agreement ("accord ECOPETROL-ADECO") to safeguard the rights of ADECO members. ADECO emphasizes that it did not authorize USO to sign agreements on behalf of ADECO members.

120. According to ADECO, the authorities have so far not given a favourable decision on the matter of the trade union census; two appeals were lodged up to September 1997, and there has been no decision on the later appeal owing to the negligence and procrastination of the authorities. The census would be used to determine the coverage of the new collective agreement. However, the company maintains that USO took over the representative function of ADECO and therefore (unjustifiably) deducts ordinary and extraordinary subscriptions for USO from the wages of ADECO members. ADECO points out that legally, the terms of the collective agreement cannot be imposed on it. At the same time, according to ADECO, the company, through the Vice-President of Transport, shortly after the collective agreement was signed, put pressure on ADECO members to leave their organization. Resignation letters for that purpose were drawn up by company representatives, and it was made clear that those who refused to resign would lose their half-yearly bonus (which in fact subsequently occurred). This resulted in 110 resignations towards the end of May 1997. Furthermore, in implementation of the illegal collective agreement, identical rules were applied to members of ADECO as to those of USO, although the former received lower wage increases, a single scale of expenses and inferior educational benefits for children of union members, and were denied the half-yearly bonus which should have been paid on 30 May and 30 November of each year, etc. The trade union rights of ADECO were thus denied, including various union privileges, union leave and participation in joint committees. This was the reason for the resignation of 90 per cent of ADECO members (conveyed by company messengers), bringing the number of members from 300 down to 35.

121. Lastly, ADECO requests that all violations of the legislation be remedied and that the trade union census be carried out in the company, given that it is not proven that USO represents more than 50 per cent of the workers, and indicates that the labour authorities did not transmit the complaints made by ADECO of violation of freedom of association in December 1996 and in January and May 1997 and did not forward them to the Attorney-General's office.

B. The Government's reply

122. In its communication of 15 January 1999, the Government refers to the claims of the complainant which can be summarized under the following points: (1)  the question of the validity of Agreement No. 01 of 1977 of the ECOPETROL administration and the application of its provisions to members of ADECO and to non-unionized staff employed in managerial or technical posts or in positions of trust; (2) non-discrimination (with regard to equality, freedom of association and collective bargaining) by the company against unionized workers when collective agreements are concluded or when Agreement No. 01 of 1977 is updated; (3) cessation of acts by ECOPETROL that infringe the freedom of association of ADECO, and the granting of concessions to that organization including formal recognition, without any preference being shown to other unions; (4) payment of wage increases and the half-yearly bonus, as well as of other benefits provided for in Agreement No. 01 of 1977; (5) the decision on the administrative complaints made by ADECO and concerning the trade union census requested by that union to determine the coverage of the collective agreement of 27 May 1997.

123. As regards points (1) to (4), the Government states that at the time of the communication sent to the Government by the ILO's Committee on Freedom of Association, no complaint of this kind had been presented by ADECO to the Ministry of Labour and Social Security as the body responsible for monitoring compliance with laws and conventions relating to labour and social security. Given that the source of the complaint was the information provided by the ILO, which has provided a copy of the decision of the interested party, the competent official was instructed to initiate an investigation immediately, rectifying the complainant's omission, with a view to verifying the alleged facts and imposing appropriate sanctions where necessary. Once there is a final decision to conclude the case brought by ADECO before the Committee on Freedom of Association, the Government will issue a final report on the matter.

124. As regards point (5), the Government states that it should be borne in mind that the administrative official in question, in the decision of 21 October 1998, accepted the withdrawal by ADECO on 8 October 1998 of its request, and for that reason proceeded to file the dossier relating to the application for a trade union census, a copy of which is supplied. For this reason, the Government emphatically rejects this particular point; the complainant lodged a claim and withdrew it, without informing the Committee on Freedom of Association at the time. This clearly shows that the complainant maliciously and irresponsibly sought to set in motion an international mechanism while failing to inform the national authorities of the case.

C. The Committee's conclusions

125. In the present complaint, the complainant (ADECO) alleges that in the process of collective bargaining, the trade union USO and the enterprise ECOPETROL excluded ADECO and entered into a collective agreement (the legality of which is questioned by the complainant) which is also being applied to members of ADECO, despite the fact that the other union (USO) did not represent more that 50 per cent of the workforce at the enterprise (a legal prerequisite for negotiating on behalf of all the workers). According to the complainant, this situation has caused ADECO members to lose the acquired rights which they had enjoyed under the terms of an agreement concluded in 1997 with the administration of ECOPETROL (which ADECO claims to be valid), resulted in discrimination against them in terms of the entitlements and benefits enjoyed by the other workers, led to the loss by ADECO of trade union safeguards such as various union privileges, union leave, etc., and forced members of ADECO to pay subscriptions to USO. At the same time, the complainant ADECO stresses that the Ministry of Labour has not conducted the trade union census which it requested to determine the representativeness of the two unions operating at the enterprise, and emphasizes that USO did not comply with an accord with ADECO which guaranteed not only that a joint list of claims for negotiation would be put forward but also that an ADECO negotiator would be allowed to participate in the talks. Lastly, ADECO alleges that when the collective agreement was signed, representatives of the company put pressure on workers to leave the union, which resulted in a large number of resignations by members.

126. The Committee notes the Government's statement that instructions have been given to start an investigation immediately into the allegations in question, given that ADECO had not made any complaints to the Ministry of Labour concerning many of the issues raised. The Committee also notes that ADECO on 8 October 1998 withdrew its request to the competent authority for a trade union census at ECOPETROL. The Committee requests the complainant to provide additional information concerning this withdrawal.

127. Under these circumstances, the Committee requests the Government to communicate without delay the outcome of the inquiry into different aspects of this case covering all of the allegations made by the complainant.

The Committee's recommendations

128. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

III. Complaint concerning the non-observance by Colombia
of 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),
made by delegates to the 86th (1998) Session
of the Conference under article 26
of the Constitution of the ILO

A. Introduction

129. During the 86th Session of the Conference, the Director-General of the ILO received a letter dated 17 June 1998, signed by Mr. W. Brett, Workers' delegate from the United Kingdom and Chairman of the Workers' group, in his own name and in the name of the following Workers' delegates: Mr. C. Agyei (Ghana), Mr. A. Alvis Fernández (Colombia), Mr. K. Ahmed (Pakistan), Mr. L. Basnet (Nepal), Mr. M. Blondel (France), Mr. U. Edström (Sweden), Ms. U. Engelen-Kefer (Germany), Mr. R. Falbr (Czech Republic), Mr. S. Ito (Japan), Mr. Y. Kara (Israel), Mr. I. Mayaki (Niger), Mr. J. Miranda de Oliveira (Brazil), Mr. P. Mpangala (United Republic of Tanzania), Ms. P. O'Donovan (Ireland), Mr. J.C. Parrot (Canada), Mr. W. Peirens (Belgium), Mr. F. Ramírez León (Venezuela), Mr. Z. Rampak (Malaysia), Mr. I. Sahbani (Tunisia), Mr. A. Sánchez Madariaga (Mexico), Mr. M. Shmakov (Russian Federation), Mr. G. Sibanda (Zimbabwe), Mr. L. Trotman (Barbados), Mr. T. Wojcik (Poland) and Mr. J. Zellhoefer (United States), presenting a complaint under article 26 of the Constitution, to the effect that the Government of Colombia had failed to adopt measures to ensure the satisfactory implementation of 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). The text of this communication and its appendices are appended. The Director-General informed the Governing Body, during its 272nd Session, that he had received the complaint.

130. Article 26 of the ILO Constitution provides as follows:

131. 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), were ratified by Colombia on 16 November 1976 and thus have been in force for that country since 16 November 1977. All the authors of the complaint were Workers' delegates of their respective countries to the 86th Session of the Conference on the date of filing the complaint. They accordingly had the right to file a complaint, under article 26, paragraph 4, of the Constitution, if they were not satisfied that Colombia was securing the effective observance of these Conventions.

132. The authors of the complaint requested that it be referred to a commission of inquiry, as provided for in article 26, paragraph 3, of the Constitution. It is for the Governing Body to decide on this request.

B. Text of the complaint under article 26 of the Constitution of the ILO

133. The text of the complaint and of the corresponding appendices is reproduced below.

Mr. M. Hansenne,
Secretary-General,
86th Session of the
International Labour Conference.

Geneva, 17 June 1998

Dear Mr. Hansenne,

I have been authorized by the following Workers' delegates to the 86th Session of the International Labour Conference to submit, on their behalf, a complaint under article 26.4 of the Constitution against the Government of Colombia for non-observance of 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), both of which have been ratified by Colombia:

Mr. C. Agyei, Workers' delegate from Ghana
Mr. A. Alvis Fernández, Workers' delegate from Colombia
Mr. K. Ahmed, Workers' delegate from Pakistan
Mr. L. Basnet, Workers' delegate from Nepal
Mr. M. Blondel, Workers' delegate from France
Mr. W. Brett, Workers' delegate from the United Kingdom
Mr. U. Edström, Workers' delegate from Sweden
Mrs. U. Engelen-Kefer, Workers' delegate from Germany
Mr. R. Falbr, Workers' delegate from the Czech Republic
Mr. S. Ito, Workers' delegate from Japan
Mr. Y. Kara, Workers' delegate from Israel
Mr. I. Mayaki, Workers' delegate from Niger
Mr. J. Miranda de Oliveira, Workers' delegate from Brazil
Mr. P. Mpangala, Workers'delegate from the United Republic of Tanzania
Ms. P. O'Donovan, Workers' delegate from Ireland
Mr. J.C. Parrot, Workers' delegate from Canada
Mr. W. Peirens, Workers' delegate from Belgium
Mr. F. Ramírez León, Workers' delegate from Venezuela
Mr. Z. Rampak, Workers' delegate from Malaysia
Mr. I. Sahbani, Workers' delegate from Tunisia
Mr. A. Sánchez Madariaga, Workers' delegate from Mexico
Mr. M. Shmakov, Workers' delegate from the Russian Federation
Mr. G. Sibanda, Workers' delegate from Zimbabwe
Mr. L. Trotman, Workers' delegate from Barbados
Mr. T. Wojcik, Workers' delegate from Poland
Mr. J. Zellhoefer, Workers' delegate from the United States.

The substantive part of the complaint is contained in the appended documents and the authors reserve the right to submit additional information in accordance with the established procedures.

Yours sincerely,

W. Brett,
Chairman of the Workers' group,
86th Session of the
International Labour Conference.

 

Director-General
of the International Labour Office,
Geneva.

Geneva, 12 June 1998

Dear Sir,

The undersigned Workers' delegates to the 86th Session of the International Labour Conference file a complaint under article 26 of the Constitution against the Government of Colombia for its failure to adopt appropriate measures for the satisfactory observance of Conventions No. 87 (on freedom of association and the right to organize) of 1948 and No. 98 (on the right to organize and collective bargaining) of 1949.

Colombia has been a Member of the ILO since 1919 and, as such, has been bound to comply with the Constitution of the Organization since that time. It has also been party to Conventions Nos. 87 and 98 since their ratification in 1976.

The facts underlying the complaint are as follows:

FIRST: In regard to ILO Convention No. 87 on
freedom of association and protection of the
right to organize

Cases reported to the Committee on Freedom of Association

Since 1988, the Committee on Freedom of Association has been informed of 26 cases of violation of this instrument. Some of these cases also involve violations of Convention No. 98.

The violations of freedom of association reported to the Committee include numerous cases of violence endangering the lives and physical integrity of union members and against their freedom and right not to be transferred.

In 1987, the Committee examined Case No. 1343. In its conclusions, it advised the Government of Colombia that trade union rights can only be exercised in a context of respect for basic human rights, "... in a climate free of violence, pressure, fear and threats of any kind".(1) 

Cases Nos. 1434, 1477, 1761 and 1787 likewise related to violence against trade union members.

In 1989, the Committee's 265th Report stated that "... without doubt, it finds itself confronted with one of the most serious cases it has received concerning the respect for the right to life... , and that the dramatic situation of violence facing Colombia impedes the full exercise of trade union activities".

In 1997 alone, violent action had caused the death of 156 trade union members and officials, the forced disappearance of ten, the obligatory forced transfer of 342, the kidnapping of nine and a further nine attempts against the life of trade union members and officials. The figures for the period of 1998 that has elapsed are equally discouraging. On 27 February, Jesús María Valle Jaramillo, President of the Human Rights Committee of Medellín, a well-known defender of trade union and other popular leaders, was murdered in the offices of his legal practice in that city; on 18 April the lawyer Eduardo Umaña Mendoza, who was defending a number of officials of the Workers' Trade Union (USO) who are currently being tried by the so-called faceless justice system, was murdered in his home in Bogota. A few days prior to Umaña's murder, María Arango, formerly an activist of popular causes, was murdered by hired assassins in her home; over the last three months, ten massacres have taken place, for the most part of rural workers.

In its 309th Report, corresponding to its first meeting of 1998, the Committee on Freedom of Association stated that the Colombian case (No. 1787), as it related to freedom of association, was one of the most serious in the world.

The above demonstrates that the Government of Colombia has not in fact taken the necessary and appropriate measures to guarantee the free exercise of freedom of association and has allowed crimes against trade union members and officials to go unpunished, with continued threats, forced transfers, murders, disappearances and other violations which render impossible the free exercise of this right, thereby failing to comply with its duty to provide protection and guarantees.

The observations of the Committee of Experts on the
Application of Conventions and Recommendations

For over a decade, the Committee of Experts has been dealing with Convention No. 87 and has made repeated observations and direct requests with a view to encouraging the Government of Colombia to bring its domestic legislation into conformity with this instrument.

In 1987, the Committee of Experts stated that "... it would be grateful if the Government would indicate in its next report the measures it could adopt to bring the legislation into conformity with the Convention in the light of the above comments".

In 1989, the Committee of Experts "concludes that the legislation is contrary to the provisions of the Convention on many points".

In 1990, the Committee noted that "... the assurances given by the Government in its last report concerning the creation of a special committee to examine the whole of the legislation, which is now outdated in the light of its comments, in order to bring the legislation into conformity with ILO Conventions".(2) 

In 1991 and 1992, workers in general and the Committee of Experts were interested to learn of the promulgation of the new Constitution of the Republic of Colombia, article 53 of which provided for the incorporation into domestic legislation of duly ratified labour agreements, and article 93 of which stated that the instruments of international law -- which could not be curtailed or suspended in states of emergency -- took precedence over domestic law. However, since the Government has failed to take the necessary steps to harmonize Colombian legislation with the Conventions, the expectations engendered by the entry into force of the new Constitution have subsequently evaporated.

Despite the mandate embodied in the Constitution, national legislation has still not been brought into conformity with international law. The Bills drafted by the Government -- some with the assistance of ILO technical missions -- have in some cases been shelved during the legislative process in the absence of any steps by the Government to employ the instruments provided for by the Constitution to promote them. Other Bills, such as that relating to the definition of essential services in connection with the right to strike, have not been submitted to Congress for its consideration, seven years after the entry into force of the new Constitution.

The report of the Committee of Experts to the 86th Session of the Conference noted developments relating to the draft reform of the Code, prepared by the direct contacts mission in 1996, stating that "... the Committee therefore stresses the need to amend or repeal with the utmost dispatch the above-mentioned provisions of the Substantive Labour Code in order to bring the legislation into compliance with the Convention".(3) 

In the light of the above, it may readily be concluded that ILO Convention No. 87 is systematically violated.

SECOND: Regarding Convention No. 98 (on the
right to organize and collective bargaining)

Cases before the Committee on Freedom of Association

As stated in the first part, of the 26 cases that have been brought to the attention of the Committee since 1987, a considerable number involve violations of Convention No. 87, for which reason we will make specific reference only to Case No. 1916 and Case No. 1925 which are among those most recently examined. In the former instance, the Committee has urged the Government to reinstate 209 workers who were dismissed for participating in a strike at a municipal-level state enterprise and asked it to take measures to ensure that declarations on the legal status of strikes are made by an independent body and not by the administrative authority. Despite the fact that the Government has been aware of these decisions since early March 1998, it has failed to take the necessary steps to comply on the pretext that municipal autonomy must be respected.

This is not the first time that the Government has failed to comply with decisions of this type, as it will be possible to verify during the Commission of Inquiry.

The Government has likewise failed to take any steps to comply with the decision of the Committee in regard to Case No. 1925. Many trade union organizations in Colombia have been destroyed on the basis of the so-called "non-unionization" statute which provides better conditions to workers who are not covered by collective agreements. The Government has the duty to ensure that legislation is amended in order to prevent this practice. Likewise, it should take administrative steps with a view to imposing sanctions on employers who obstruct the right to collective bargaining.

It may readily be inferred from these cases that the Colombian Government does not comply with its duty to protect and guarantee rights relating to freedom of association and collective bargaining.

The observations of the Committee of Experts

As stated in its most recent report, to the 86th Session of the Conference, the Committee of Experts has for many years been concerned by the divergence between domestic legislation and Convention No. 98, and has insisted that the appropriate steps should be taken to bring legislation into compliance. The points most frequently raised in observations and direct requests refer to the right of public servants to bargain collectively, and the right of federations and confederations to bargain collectively and to take strike action, the right to strike in public services which are not essential in the strict sense.

Despite the sustained endeavours of the Committee of Experts to urge the Colombian Government to comply with the Convention and to promote the necessary reforms, the situation today is as it was ten years ago. The Government continues to fail in its duty to adhere to Convention No. 98.

THIRD: The deliberations of the Conference

Briefly, we would like to draw attention to the fact that over the past decade, the Conference's Committee on the Application of Standards has repeatedly invited the Government to discuss difficulties in complying with Conventions Nos. 87 and 98 and has twice devoted a section specifically to the Government of Colombia, most recently in 1990. The involvement of the Conference and of the Committee of Experts have not succeeded in persuading successive governments to heed the requests of the international community in these areas to which this complaint refers.

The ILO's interest in contributing to improving the situation in regard to freedom of association has prompted it to send three direct contacts missions to Colombia over the last ten years, resulting in commitments by the Government which have subsequently not been fully carried out.

Legal basis of the complaint

The undersigned base this complaint on article 26, paragraph 4, of the Constitution and act in the capacity of delegates to the 86th Session of the Conference.

Since the Government of Colombia has ignored the recommendations of the ILO Governing Body's Committee on Freedom of Association and those of the Committee of Experts, we request that the complaint should be examined by a commission of inquiry which would draw up its report as provided in article 26, paragraph 3, of the ILO Constitution. We further request that the matters pending before the Committee on Freedom of Association and before the Committee of Experts should be dealt with by the Commission of Inquiry.

We append a 17-page appendix containing the report submitted by the Colombian workers to the 86th Session of the International Labour Conference, and which should be considered as part of the complaint.

Report of the union confederations to the 86th International Labour Conference
(sent as an appendix to the complaint made under article 26 of the Constitution of the ILO)

Introduction

The Colombian trade union delegation to the 86th International Labour Conference, composed of the Single Confederation of Workers (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Democratic Workers (CGTD), has agreed to submit for the consideration of the 86th Session of the International Labour Conference, a report on freedom of association in our country, which focuses on demonstrating the lack of political will on the part of the Colombian State and of commitment on the part of successive governments to complying with the obligations assumed by Colombia as a member of the International Labour Organization and as State party to Conventions Nos. 87 and 98. For many years, the Organization's supervisory bodies have issued decisions requiring the Government to take concrete action, in response to which the Government representatives to the Conference have made a commitment to take action which is never honoured.

This report focuses on the matter of the impunity of the perpetrators of violations of the rights of trade union members and officials. Violence against trade union officials and members is certainly the main factor obstructing freedom of association in Colombia, exacerbated by increasing impunity and the absence of the political will to eradicate it.

Nineteen ninety-seven marked the tenth anniversary of a painful and continuous bleeding of the trade union movement which began in 1987 with an escalation of murders, disappearances, torture and ruthless persecution of trade union members and officials. As a result, Colombia won the sad distinction of being the most dangerous country for the exercise of fundamental rights of freedom of association and collective bargaining.

Acts of violence against trade unionism may be attributed to state agents, members of paramilitary forces and action by guerrilla groups. In 1998, far from improving, the situation has deteriorated significantly.

Society as a whole has been permeated by the intolerance demonstrated by the protagonists in the prolonged armed conflict. The exercise of the right to promote the organization of workers or to be a trade union member is considered to be subversive by certain public servants or by members of the paramilitary forces who view trade unionism as an ally of insurgency, while some guerrilla groups pursue as "traitors" former sympathizers who have subsequently espoused alternative political options.

While the confluence of these circumstances make for a complex situation, it is by no means confused. We have no doubt that, if the political will existed to do so, it would be possible to identify the intellectual authors of the crimes which we have for many years denounced before the ILO supervisory bodies and before this forum of the International Labour Conference, which is the supreme authority of the Organization.

Some of us on this stage today have been threatened merely for engaging in our trade union activities. We claim our right to testify, as eye witnesses of the situation that exists in Colombia today in this regard.

In addition, our report focuses on the manner in which Colombia has ignored the requirements of the Committee of Experts on the Application of Conventions and Recommendations to adapt domestic legislation and national practice to the provisions of Conventions Nos. 87 and 98.

The country: Location and characteristics

The State of Colombia is situated at the north-western end of South America, and borders with Venezuela, Brazil, Peru, Ecuador and Panama. The Atlantic Ocean lies to the north and the Pacific Ocean to the west. According to the Constitution adopted in 1991, Colombia is a lawful societal State organized in the form of a unitary republic.(4)  Public power is divided among the executive, judicial and legislative branches.

Colombia has a surface area of 1,141,748 km2 with a population of approximately 35 million inhabitants. Under 8 per cent of the economically active population (EAP) is unionized.

As we stated last year, the fact that the confederations' report centres on freedom of association does not mean that the Colombian Government is complying fully with the other Conventions to which it is party. We have decided to concentrate on the violations of freedom of association because we believe that if this right is not guaranteed, then other workers' rights cannot be fully defended by their representatives.

In Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities, as the supervisory bodies of the ILO and other international entities are aware. Colombian labour legislation, which was enacted prior to the promulgation of the Constitution of 1991 restricts the exercise of the population's rights, while the legal structure is not ideally suited to settling the problem of the impunity protecting those who have engaged in violence against persons exercising their trade union rights and against the population as a whole.

A different report: The situation of trade union
leaders and members continues to deteriorate
and the Government remains indifferent

Unlike the previous reports submitted by Colombian trade union confederations to the International Labour Conference, our report today does not contain a detailed list of events since the last Conference. We consider that it serves no purpose endlessly to recount in detail the dramatic events which prevent the full exercise of freedom of association in Colombia when the Colombian State, over and above the Government in power, has demonstrated no will to resolve the divergence between practice and international obligations in this sphere, just as it has failed to show the will to bring domestic legislation into conformity with the provisions of Conventions Nos. 87 and 98, despite the insistence of the ILO and of the international community as a whole.

We do not exaggerate when we state that the representatives of the Colombian Government have, for the last ten years, systematically deceived the international community year after year, making promises that they fail to keep.

This year we wish to draw the attention of the International Labour Conference to the most serious aspects of the complex situation of freedom of association violations in Colombia, namely:

For this purpose, we will list the ILO's requirements and actions over the last ten years and compare them to the actions of the Colombian Government.

Colombia: A long history of impunity and contempt of the ILO

Since 1987, over 2,000 trade union members and officials have been murdered in Colombia. In 1997, 156 were murdered; nine were the targets of attempted murder; nine were kidnapped; 342 were subject to obligatory transfer; ten disappeared and torture has been reported.(5) 

In drafting this report, we have reviewed the cases reported to the Committee on Freedom of Association, in conjunction with the observations of the Committee of Experts since 1987, using official ILO source documents.

1987: The Committee on Freedom of Association requests that criminals be punished

As far back as 1987, in examining Case No. 1343, in the light of the Government's claim that criminal proceedings had been brought "... and that in certain cases the provisional filing of the dossier had been ordered because the guilty paries could not be identified", the Committee's conclusions expressed "... the hope that it will be possible to conclude these proceedings in the near future and that they will make it possible to identify and punish those responsible for the crimes. The Committee wishes to refer to the general conclusions which it formulated regarding the present case on a previous occasion [246th Report, Case No. 1323, para. 408], and in which it stated that "all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions, with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind".(6)  In its 248th Report, the Committee likewise expressed the hope that "the investigations undertaken will make it possible to determine who is responsible, punish those who are guilty and establish the whereabouts of those who have disappeared" and, in connection with Case No. 1376, it deeply deplored the death of a trade union member and the disappearance of a further two and asked the Government for information on the inquiries instituted.

For over a decade, appropriate conditions have not existed in Colombia for the exercise of trade union freedoms. Civil and political rights of the Colombian population and of trade union members and leaders in particular, such as the right to life, integrity and personal liberty are violated with impunity. The mere exercise of the legitimate right to establish trade unions and actively to participate in them and of the right to collective bargaining, are sufficient reason for shady hired assassins to make attempts upon the life of those who exercise them or to deprive them of their personal liberty.

1989: The Cahier mission and the Committee on Freedom
of Association call for the disbanding of paramilitary groups

In its 259th Report, the Committee's conclusions on Case No. 1434 stated:

At that time, in line with the Cahier mission report, the Committee requested "vigorous measures to dismantle the paramilitary groups, and a radical strengthening of the financial and human resources of the judiciary".(7)  The Cahier report, which is appended to the examination of the case in question, states that "the main reproach levelled at the Government is its failure to act. The authorities have recently stated in public their commitment to peace and their desire to enforce the law. But this does not seem to lead to action with any convincing results. As regards justice, the trade unions have repeatedly stressed the fact that investigations yield no results and that no legal action is taken against persons guilty of committing crimes. Everyone I met emphasized the impunity with which the murderers operate. This impunity generates more violence".(8) 

Indeed, violence has since escalated in Colombia and the number of victims who are trade union members or officials has continued to rise.

Colombia: One of the most serious cases in regard
to the right to life. The Committee expresses its
disappointment at the Government's inaction

Still in 1989, in its 265th Report in which it examined Case No. 1477, the Committee "pointed out that, without doubt, it found itself confronted with one of the most serious cases it had received concerning the respect for the right to life, and that the dramatic situation of violence facing Colombia impeded the full exercise of trade union activities".

Consequently, the Committee expressed "its disappointment, reiterates the conclusions and recommendations it reached at its November 1988 meeting and is obliged to conclude at its present meeting that the Government has not yet adopted all the necessary and appropriate measures required from it to guarantee the right to life to trade union leaders and unionists, which is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87".(9) 

Ten years have subsequently elapsed and none of the governments in power during that period has taken appropriate measures to protect the life of trade unionists, trade union leaders and social activists and, far from dismantling and controlling paramilitary groups, as demanded during that period, they have grown stronger and larger, particularly in areas with a substantial military presence, and they have extended their geographical presence to virtually the entire country.

The need for measures to eradicate paramilitary activity,
to identify and punish the murderers of trade unionists
and to avoid a repetition of violent acts against
trade union members and leaders

The Committee on Freedom of Association has taken timely, persistent, repeated and energetic action against impunity in Colombia. The Government has continued its traditional stance of paying lip-service to action but, in practice, it shows no political will to remedy the serious matter of the impunity of the murderers of trade union members and trade union leaders and, instead of effectively combating paramilitary activity, it has allowed it to increase, to the point where today members of paramilitary groups exercise their criminal activities throughout virtually the entire country.

In its third meeting in 1990, the Committee re-examined the situation of violence and impunity in Colombia, in the context of its study of Cases Nos. 1434 and 1477. In the recommendations contained in its 275th Report it stated that:

Moreover, on that occasion, the Committee expressed its concern because, according to the Colombian Government itself, "only with very rare exceptions have the judicial inquiries undertaken since 1986 made it possible to identify or condemn the persons allegedly responsible for the murders and disappearances".(11) 

In its examination of Cases Nos. 1434 and 1477 during its first meeting of 1993, the Committee regretted the difficult situation affecting the country and "deeply deplores once again the serious nature of the allegations concerning the death and disappearance of trade union officials and trade unionists" and "urges the Government to inform it whether judicial inquiries have been opened with the intention of clarifying the facts and judging and sentencing the guilty parties in order to prevent a recurrence of such situations".(12) 

In 1994, during its examination of Case No. 1686 against the Government of Colombia, the Committee in its 294th Report stated in paragraph 296 that "as regards the alleged murder of trade union officials and trade unionists, the Committee expresses its deep concern at the serious nature of these events which it deplores and repudiates". The Committee recalled that "trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected" [see Digest of decisions and principles of the Freedom of Association Committee, 1983, 3rd edition, para. 70].

In 1995, when the Committee re-examined Case No. 1761 and Case No. 1787, as stated in its 297th Report, the Committee urged the Government "to take steps to ensure that judicial inquiries are carried out immediately to clarify all the alleged facts [crimes against trade unionists and trade union officials], determine responsibilities and punish the authors of the assassination of the trade union officials ..." which it went on to list.(13) 

The Committee reminded the Colombian Government that "it is the responsibility of governments to guarantee respect" for the principle 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".

On that occasion, the Committee noted "that in previous cases judicial investigations were unable to identify the guilty parties in the case of acts of violence similar to those alleged" and that therefore the Committee "expresses the hope that in this case the facts will be clarified and the guilty parties punished" and reminded the Government that "the absence of judgements against the guilty parties creates in practice a situation of impunity which reinforces the climate of violence and insecurity ..." [see 292nd Report, Cases Nos. 1434 and 1477 (Colombia), para. 255].(14) 

The Government of Colombia: Between indifference and inaction. Impunity continues

In 1997 and 1998, the Committee once more examined the case of violence against trade union members and trade union leaders in Colombia. In 1997, in paragraph 294(b) and (c) of its 306th Report, the Committee stated:

The Colombian Government's indifference prompted the Committee to draw the attention of the Governing Body of the International Labour Office to the Colombian situation, (in particular, Case No. 1787), as being one of the three most serious cases in regard to freedom of association, together with Nigeria and Sudan.(16) 

The Committee took note of the Government's communications of 29 May and 24 July 1997 and concluded: "First, before analysing the allegations and observations communicated by the Government, the Committee once again wishes to express its grave concern at the allegations which refer to a large number of murders, disappearances, as well as physical aggression, detentions and death threats against trade union officials, members and their families, as well as raids on trade union headquarters and trade union members' homes. In this respect, the Committee notes with alarm that for practically the whole of 1997 the complainants have presented allegations of violent acts against trade union leaders and members. The Committee deplores that in spite of the seriousness of the situation the Government's replies have been limited to a very reduced number of allegations. The Committee requests the Government to take steps to remedy this situation".(17) 

Subsequently, in paragraphs 84, 85 and 86, the Committee refers to the grave situation of impunity and calls for concrete action by the Government to remedy it. The Committee stated:

These paragraphs, which are cited from the most recent examination of Case No. 1787 against the Government of Colombia demonstrate that the Government's indifference and inaction have played their part in exacerbating the impunity that reigns in Colombia. In Colombia today, the exercise of trade union activities poses a serious threat to life and personal integrity, despite the fact that the Constitution currently in force recognizes and guarantees the rights of freedom of association.

Taking stock of the past year: Facts bear out the Committee's conclusions

In giving a brief overview of the events of the past year, we must begin with a recent occurrence. On Saturday, 18 April, the lawyer Eduardo Umaña Mendoza was murdered in his home; he was not only a prominent defence counsel for political prisoners, having devoted his professional life to bearing the banner of human rights, but at the time of his death he was also defence counsel for members of the Workers' Trade Union (USO) who were being tried by the faceless courts. In 1997, he succeeded in proving that some of the cases had been based on false testimony by witnesses who testified several times as though they were different people, which was made possible by the fact that their identity was not revealed. The cowardly manner in which Umaña was murdered denotes the level of criminal involvement and intent which has generated increasing terror in the country.

Two days prior to Umaña's murder, a former popular activist who had ceased her involvement in organizational activities some years previously, was murdered in her home in Bogotá. On 27 February, the President of the Human Rights Committee of Medellín, Jesús María Valle Jaramillo, was murdered in his office; he was a well-known defence counsel for political prisoners and popular activists in his region.

A further ten massacres have occurred in the past four months, most of them directed against rural workers. On 16 May, 12 individuals were massacred in the urban area of the oil centre of Barrancabermeja and 34 persons disappeared during the same attack by paramilitary forces. That event gave rise to a strike by oil workers, in the broader context of a civic strike which received the general support of the citizens of Barrancabermeja.

Human rights violations against trade union members and leaders during 1997 are briefly outlined in Chapter III of this report.

The divergence between national legislation and Conventions Nos. 87 and 98

The Substantive Labour Code entered into law in 1950. It is clear that a restrictive approach to freedom of association rights prevailed in the minds of the authors of the initial draft. For instance, standards relating to trade union membership and collective bargaining were not applicable to "public servants" simply because they were public servants, regardless of their level of responsibility in the state administration; trade unions were not permitted to engage in political activity in federations and confederations; they were denied the right to call or declare strikes and strikes were banned in "public services" which were understood in the broadest sense. The authors of the Code drafted legislation in such a way as to accommodate excessive interference by the administrative authorities in the establishment and activities of trade unions.

This restrictive attitude on the part of the first authors became more marked during the years of the military government (1953-57) which employed its powers under a state of emergency to introduce numerous amendments to trade union legislation, including the attribution to the administrative authority of decisions regarding the legality of strikes (Ministry of Labour), which had formerly been exercised by labour judges. Colombia lived for over 40 years under martial law in a state of emergency, and the civilian governments which succeeded the dictatorship adopted the method of introducing reforms to the Code under emergency powers. This entire body of regulations, which had originally been intended to serve an interim purpose, was subsequently adopted without further democratic discussion as permanent legislation.

In 1991, the new Constitution sought to remedy the contradictions between domestic legislation and international labour conventions. Article 53 of the Constitution provided that duly ratified international labour conventions were part of domestic law.(18) 

It would be only logical to conclude that any legal provisions which were contrary to the Conventions to which Colombia was party were relegated, or more accurately, replaced under the above-mentioned constitutional mandate. But the State did not view the matter in this light. The Ministry of Labour and Social Security continues to take the standards embodied in the Code as its reference, the judges of the Republic continue to treat the provisions which are contrary to the conventions as applicable and employers cling to many of the laws and decrees which are contrary to the body of international standards.

(a) The Committee of Experts on the Application of Conventions and Recommendations

This divergence between the law and practice, and Conventions Nos. 87 and 98 has been known to the Committee of Experts on the Application of Conventions and Recommendations for over ten years, and it has addressed observations and direct requests to the Colombian Government which have not been complied with by any of the three Governments in power between 1987 and 1998.

The requirements of the Committee of Experts in 1987

We will continue the approach adopted in the first part and review the main observations of the ILO's Committee of Experts since 1987, in order to demonstrate how the Colombian authorities, which should have been responsible for acting on these observations, in fact ignored them.

In 1987, the Committee of Experts made observations which primarily related to those aspects of national legislation which implied interference in the internal administration of trade unions and those which hampered the right of trade unions to promote and defend the interests of workers, on the basis that such provisions were contrary to Convention No. 87.

In regard to interference in the internal administration of trade unions, the observation of 1987 stated: "The Committee has referred to the following points:" and went on to mention that the provisions of the Substantive Labour Code and associated standards which, among other things, allowed the Ministry of Labour to approve or reject amendments to the constitutions of unions, those under which public servants may exercise control over the internal management of trade unions, the strict regulation of trade union meetings, the presence of authorities at general assemblies convened to vote the calling of a strike, the obligation to be Colombian for election to trade union office, the requirement that the Ministry of Labour must approve the election of trade union officers, the suspension, with loss of trade union rights, of leaders who have been responsible for the dissolution of a union, etc. In conclusion on this point, having noted the statement by the Government relating to the scope of articles 485 and 486 of the Substantive Labour Code, "the Committee considers that section 486 confers on public officials excessively wide powers of intervention in trade union affairs, contrary to Article 3, paragraph 2, of the Convention, which provides that the public authority shall refrain from any interference which would restrict the rights recognised in the Convention", ending with the statement that "the Committee repeats its comments on the other provisions, to which the Government does not refer".

In regard to the restrictions on trade unions in promoting and defending the interests of workers, the Committee of Experts stated: "The Committee would also refer again to the following provisions on which it has already commented but which are not mentioned in the report of the Government" and went on to list, among others, the prohibition on trade unions from holding meetings on political matters, the prohibition of federations and confederations from calling a strike, the prohibition of strikes in non-essential services, the power of the President to order the termination of a strike affecting the interests of the national economy and to submit disputes to arbitration, the automatic dismissal of trade union leaders who have intervened or participated in an illegal strike.

It closed its observation by stating that: "the Committee would be grateful if the Government would indicate in its next report the measures it could adopt to bring the legislation into conformity with the Convention in the light of the above comments".(19) 

It is clearly apparent from the substance of the observation that the Committee of Experts had been studying these matters prior to 1987.

Observations by the Committee of Experts between 1989 to 1991

In the light of the promulgation of the new Constitution in 1991, we will jointly review the statements of the Committee of Experts between 1989 and 1991 inclusive, given that the Committee issued no observations on Colombia in regard to the Conventions on freedom of association (Nos. 87 and 98) in 1988.

In 1989, the Committee of Experts not only took note of the Government's statement, but also of the comments by the CUT, the Government's response to the comments, and also the 259th Report of the Committee on Freedom of Association.

On that occasion, the Committee of Experts supported the Committee on Freedom of Association's report. In regard to the murders and atmosphere of violence, "it refers to the conclusions of the Committee on Freedom of Association" and "in particular, the Committee of Experts, as the Committee on Freedom of Association has already done, expresses its deep concern at the alarmingly violent situation confronting Colombia, which in general makes it impossible for the normal living conditions of the population to be maintained and prevents the full exercise of trade union activities".(20) 

The second part of the Committee's comments appears under the title "Provisions of the legislation criticized by the Committee in previous comments",(21)  with the observation divided into the two groups of standards identified in the observation of 1987, and covering the same points originally noted.

In 1989, the Committee of Experts "concludes that the legislation is contrary to the provisions of the Convention on many points" and, "requests the Government to consider the in-depth reform of the trade union legislation that is in force in order to bring it into conformity with the requirements of the Convention and to report on any measures that it adopts in this respect".(22) 

In the same year, the Committee of Experts examined Convention No. 98 and asked the Government: "to take measures to amend the legislation (sections 414 and 416 of the Labour Code) in order to grant public servants who are not engaged in the administration of the State the guarantees set out in the Convention, which include the negotiation of collective agreements and adequate protection against acts of anti-union discrimination".(23) 

In 1990, the Committee of Experts examined Convention No. 87 in extenso and, using the formula "... the Committee recalls the divergences existing between the national legislation and the Convention:", and goes on to repeat all the points mentioned above, including reference to the violation of the Convention inherent in the requirement that 75 per cent of members of a trade union should be Colombian.

On that occasion, the Committee of Experts, "notes that the assurances given by the Government in its last report concerning the creation of a special committee to examine the whole of the labour legislation, which is now outdated in the light of its comments, in order to bring the legislation into conformity with ILO Conventions" and concludes by stating that the Committee "trusts that the revision of the legislation that has been announced will make it possible to achieve firm results as regards all the points that have been raised".(24) 

As early as 1991,(25)  the Committee of Experts was pleased to know that Act No. 50 of 1990 had "made a number of improvements to the previous provisions as regards freedom of association and collective bargaining", which it went on to list. "Nevertheless, the Committee regrets that Act No. 50 has omitted to take into account certain comments that the Committee has been making for many years on the provisions of the legislation that are incompatible with the Convention. These comments concern the following points:" and the report goes on to list all the observations made in previous years, with the addition of a major discrepancy with the Convention which Colombia had used to sanction social protest, namely "the prohibition of strikes when they are called for the purpose of requiring the public authorities to take action in relation to matters which fall within their exclusive preserve".

It emphasized that there remained "many provisions that are still not in accordance with the Convention" and invited the Government to "take the necessary measures as soon as possible to bring the law and practice into full conformity with the Convention".

In respect to Convention No. 98, the Committee of Experts repeated the importance of the right to collective bargaining and protection for public servants.

From the new Colombian Constitution to 1997, six years
of discrepancy between national legislation and practice
and Conventions on freedom of association

In 1992,(26)  the Committee noted the Government's report, the discussions at the Conference in 1991 and the report of the direct contacts mission in 1991. It noted with interest the provisions of the new Constitution and the repeal of particular legal provisions which were contrary to Convention No. 87.

However, it also emphasized those provisions of the legislation which remained in force and were incompatible with the Convention. In keeping with the usual manner in which it grouped its observations regarding Colombia in connection with Convention No. 87, it made reference, among others, to the following: the requirement that two-thirds of the members should be Colombian to establish a trade union; the supervision of the internal management and meetings of unions by public servants; the presence of the authorities at general assemblies convened to vote on the calling of a strike; the prohibition on federations and confederations from calling a strike; the prohibition of strikes in non-essential services; the possibility of dismissing trade officers who have intervened or participated in an illegal strike.

It urged the Government to continue to take measures to adapt its legislation to the requirements of the Convention.

In 1992, the central issue in connection with Convention No. 98 continued to be collective bargaining by public servants and the protection against persecution, for trade union activity in the same sector.

The following year,(27)  the Committee of Experts noted that there had been some progress in 1992, "but pointed out that there were still a number of provisions which were not in conformity with the Convention" and listed those which it had previously indicated in earlier years and which, despite the introduction of the new Constitution in 1991, continued to be implemented, and it repeated its request to the Government to continue to take measures with a view to adapting legislation to the Convention.

In 1994,(28)  the Committee of Experts confined its attention regarding freedom of association to the submission of observations to Colombia regarding Convention No. 98, emphasizing the right of public employees who were not engaged in the direct administration of the State to negotiate collectively and to protection against acts of discrimination. It asked the Government in its next report "to provide information on any changes in the legislation in this respect".

In 1995 and 1996, the Committee of Experts made further observations on the discrepancies between domestic legislation and Conventions Nos. 87 and 98. In 1995,(29)  its observation related to Convention No. 87 and repeated what it had been saying since 1987, stating that "the Committee again expresses the hope that the Standing Tripartite Committee provided for in the National Constitution will be set up in the near future", and "asks the Government to ensure that the amendments made to labour legislation by the above Committee takes account of all the comments that the Committee of Experts has been making for many years". In 1996,(30)  the Committee's observation dwelt on Convention No. 98 and restated the right of public servants to negotiate their working conditions collectively.

In 1997, after reviewing its earlier comments,(31)  the Committee of Experts noted with interest the Government's statement that "it has prepared a Bill envisaging the repeal or amendment of various provisions of the Substantive Labour Code criticized by the Committee, and that the authorities of the Ministry of Labour have undertaken to submit this Bill to the Congress of the Republic during the current legislative period".

In connection with Convention No. 98, the Committee restated the right of public employees who were not engaged in the administration of the State to benefit from collective bargaining. "The Committee expresses the firm hope that the Congress will adopt the Bill as soon as possible to bring the legislation into conformity with the Convention."

On how the Bills passed by the Government to adapt legislation to
the Conventions on freedom of association were shelved

In its report to the 86th Session of the Conference, the Committee of Experts recalled that in its previous observation it had noted that the Government had prepared a Bill with the assistance of the ILO mission on freedom of association which visited the country in October 1996, and identified the provisions to be repealed or amended under that Bill. It also recalled that the Government had prepared a preliminary draft of a Bill defining the concept of essential public services and containing other provisions for the peaceful settlement of collective labour disputes with a view to adapting legislation to international standards.

On that occasion "the Committee notes that the Government has indicated that the Congress of the Republic decided to shelve the above-mentioned Bill and that, in these circumstances, the Ministry of Labour is studying the possibility of submitting to Congress the Labour Statutes referred to in article 53 of the Constitution and to include in it the amendments embodied in the shelved Bill. The Committee therefore stresses the need to amend or repeal with the utmost dispatch the above-mentioned provisions of the Substantive Labour Code in order to bring the legislation into compliance with the Convention".(32) 

With regard to the preliminary draft on essential public services, the Committee "observes that the Government has not mentioned in its report whether the preliminary draft Bill in question has been finally drafted with the aim of presenting it to the Congress of the Republic". The Government naturally made no mention of this draft since it was never presented to Congress.

With respect to Convention No. 98, the "Committee recalls that for many years it has been emphasizing the need for public employees who are not engaged in the administration of the State to benefit from the right to collective bargaining, and that in its previous observation it noted that a Bill guaranteeing this right for public employees had been submitted to the Congress of the Republic" and "in this respect, the Committee regrets to note that the Government states that the Congress of the Republic decided to shelve the Bill in question".(33) 

"The Committee expresses the hope that the Government will, as soon as possible, take measures to bring the legislation into conformity with the Convention."

Furthermore, it recalled that it had previously requested the Government to keep it informed regarding the need for industrial or branch unions to comprise more than 50 per cent of the workers in an enterprise in order to be able to bargain collectively and on the right for federations and confederations to bargain collectively. It observes that the Government had not responded to that observation and requested it to take measures to amend the legislation so as to guarantee industrial or branch unions which did not compromise more than 50 per cent of the workers concerned the possibility to bargain collectively.

The International Labour Conference of 1997.
Colombia: Promises that are not kept

The discussions within the Conference's Committee on the Application of Standards over the last ten years in examining Colombia's failure to comply with Conventions Nos. 87 and 98 regarding freedom of association might likewise be reviewed. However, the discussion will be confined to the debate which occurred during the 85th Session, 1997.

In connection with the draft Bill drawn up with assistance of the mission which visited the country in 1996, a Government representative stated that "the Bill was not an isolated act of the Government, much less a simple announcement as a way to escape criticism in this forum. On the contrary, it was an indication of a government policy oriented towards the promotion and respect of human rights, with special emphasis on the international labour Conventions which Colombia would fulfil".(34) 

The speaker also referred to the punishment of social protest and indicated that a committee had been established to revise of the penal laws and to lift summary discretion concerning certain penal processes related to workers. He went on to refer to a Bill on collective bargaining and collective contracts in the public sector, 18 articles which had been agreed upon by the social partners.

In fact, the Bills referred to by the Government representative of Colombia were shelved by the Congress of the Republic. Despite the fact that the Government had at its disposal constitutional instruments to urge the Congress to discuss and approve the Bills, the Government failed to do so, abandoning them and failing to show the interest claimed in the discussion before the Conference's Committee on the Application of Standards.

In addition, a full year elapsed during which the Bill on essential services and the right to strike was not submitted for discussion by the Congress of the Republic.

Lastly, while it is true that a committee exists that is responsible for reviewing provisions punishing social protest, the fact of the matter is that after 11 months of work, the trade union federations and human rights NGOs left the negotiating table on account of the Government representatives' determination to scupper all progress and agreements achieved, thereby returning to square one. This breakdown of talks happened in March, and the Government has made absolutely no sign that it wishes to recognize the progress achieved previously or to clarify with the trade union movement the differences set down in writing.

The numerous endeavours of the ILO

It should be made clear that, in addition to the action taken by the supervisory bodies of the ILO, as mentioned, the International Labour Office has made numerous attempts to assist the Government of Colombia in bringing legislation into conformity with international labour Conventions and, in so doing, to comply with the mandate of article 53 of the Constitution.

Hence, over the last ten years, the following direct contacts missions on the subject of freedom of association have been made to Colombia:

The reports of the missions were duly reviewed by the supervisory bodies.

In addition, the Lima Regional Office has always been available to provide advisory assistance to the Colombian Government.

Conclusions

On the basis of the contents of this report, we may conclude in summary that:

C. Decisions taken by the Governing Body at its 273rd Session (November 1998)

134. At its 273rd Session (November 1998), the Governing Body considered that it would be inconsistent with the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution that there should be any discussion in the Governing Body on the merits of the complaint while a proposal to refer the complaint to a commission of inquiry is pending before the Governing Body and until the Governing Body has before it the contentions of the government against which the complaint is filed, together with an objective evaluation of these contentions by an impartial body.

135. The Governing Body observed that the Committee on Freedom of Association has been examining a number of complaints submitted by workers' organizations alleging violation of union rights in Colombia. In some of these cases, the Governing Body has approved the provisional conclusions drawn up by the Committee. Other cases have been held in abeyance by the Committee to await the contentions of the Government. It recalled that the Committee of Experts on the Application of Conventions and Recommendations recently drafted observations to the Government of Colombia regarding the observance of the Conventions referred to in the complaint submitted under article 26 of the Constitution and that in 1998 the Committee on the Application of Standards of the Conference discussed some matters relating to the observance, in practice and under law, of Convention No. 87.

136. The Governing Body recalled that it had previously agreed (154th Report of the Committee on Freedom of Association, paragraph 33) that, in cases such as the present one, where various complainants have had recourse to the different procedures established by the Organization concerning the implementation of Conventions and the protection of freedom of association, it would be desirable to coordinate these procedures and to take account of the Committee's mandate to examine complaints in this connection. In the present case, the Governing Body observed that the complaint filed by a number of delegates to the Conference, under article 26 of the Constitution, largely concerned matters which were already before the Committee in the context of the special freedom of association procedure. It considered that in deciding on the appropriate measures to be taken regarding this latest complaint, it would be useful if it had the recommendations of the Committee on the pending cases and on the complaint submitted under article 26.

137. The Governing Body therefore took the following decisions at its November 1998 meeting:

138. Furthermore, the Governing Body considered that, in the event of a commission of inquiry being appointed, its members would be designated in accordance with the same criteria, and would serve in the same conditions, as the members of commissions previously appointed under article 26 of the Constitution. They would serve as individuals in their personal capacity, would be chosen for their impartiality, integrity and standing, and would undertake by a solemn declaration to carry out their tasks and exercise their powers as members of the Commission "honourably, faithfully, impartially and conscientiously". A solemn declaration in these terms would be in the nature of that made by judges of the International Court of Justice. The Officers will make proposals concerning other arrangements at the appropriate stage.

D. The Government's reply

139. In a communication dated 15 January 1999, signed by Mr. Camilo Reyes Rodríguez, Ambassador and Permanent Representative of Colombia to the United Nations Office and other international organizations at Geneva, the Government submitted the observations and information requested by the Governing Body. The Government's observations about the complaint concerning the non-observance by Colombia of 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), made by delegates to the 86th (1998) Session of the Conference under article 26 of the Constitution of the ILO are reproduced in full below.

Background

Content and scope of the complaint

The complaint filed by Workers' delegates to the 86th Session of the International Labour Conference was based on the one hand on the cases pending before the Committee on Freedom of Association and on the other on the observations made to the country by the Committee of Experts on the Application of Conventions and Recommendations owing to the failure of the Government of Colombia "to adopt appropriate measures for the satisfactory observance of 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)".(35) 

The complaint centres on the idea that the State of Colombia is persecuting the trade union movement and trying to eradicate it. The workers consider there to be two facets to the policy being pursued. Firstly, there is the violent persecution and physical elimination of workers and trade union officials because of their activities: the complaint alleges that "in Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities".(36)  It also notes that "acts of violence against trade unionism may be attributed to state agents, members of paramilitary forces and action by guerrilla groups".(37) 

At the same time, there is the use of impunity as a way of facilitating and perpetuating the policy of physical extermination: "The Government has shown no genuine political will to promote the identification, prosecution, trial and punishment of the criminals involved."(38)  "Violence against trade union officials and members is certainly the main factor obstructing freedom of association in Colombia, exacerbated by increasing impunity and the absence of the political will to eradicate it."(39) 

The second facet of this macabre policy is the alleged lack of political will to bring national legislation into conformity with the international labour Conventions ratified by the country and in particular Conventions Nos. 87 and 98. "In addition, our report focuses on the manner in which Colombia has ignored the requirements of the Committee of Experts on the Application of Conventions and Recommendations to bring domestic legislation and national practice into conformity with the provisions of Conventions Nos. 87 and 98."(40)  "This year we wish to draw attention to the most serious aspects of the complex situation of freedom of association violations in Colombia, namely ... (b) absence of the political will to bring legislation into conformity with the provisions of Conventions Nos. 87 and 98."(41)  Rather than being directed at the physical disappearance of individuals, this aspect of the policy targets the trade union movement in general, by applying legislation which, being contrary to the Conventions in question, serves essentially to prevent it from operating.

Legal basis of the complaint

"... we request that the complaint be examined by a commission of inquiry which would draw up its report as provided in article 26, paragraph 3, of the ILO Constitution ...".(42) 

Content and scope of the declarations by the
Government of the Republic of Colombia

The Government of the Republic of Colombia makes the following basic declaration:

With respect to the allegations concerning the death of workers and trade union officials it declares:

In Colombia there is no government policy of persecution, either against workers and trade union officials or against the trade union movement. The structure of the Colombian State, its institutions and the supervisory mechanisms of the public authorities make it impossible for a policy which represses the rights and freedoms of citizens to exist or to be implemented. The acts of violence against workers and trade union officials are the result of the complex climate of violence in the country, to which the State has been responding with significant measures in the areas where the violence originates. We do not claim ignorance of the problem of violence that is ravaging the country. On the contrary, all the measures taken by the State, and in particular by the present Government, with respect to the peace process are specifically aimed at broadening areas for consultation and dialogue in order to achieve peace and allow Colombians, including, of course, workers and trade union officials, to live together in peace.(43) 

The peace process in which the Government of Colombia is currently engaged therefore constitutes irrefutable evidence of an ongoing state policy to achieve the peaceful coexistence for Colombians that is so eagerly sought. Achieving this peace would no doubt contribute significantly to the full application of human rights given that it would imply the disappearance of not the only but certainly one of the principal causes for the transgression of those rights. The fact that this is a state policy can be seen in the various peace processes pursued in the past which resulted in a number of insurgent movements being incorporated into civilian life. The Government refers to these in Appendix I.

From a standpoint that does not take due account of all the factors contributing to the complexity of the problem, the violence is attributed to the Government of Colombia and it is asked to stop any further violence against the Colombian people. This results in inappropriate diagnoses and solutions. We are heartened by the conviction that the Committee on Freedom of Association and the Governing Body will recognize the complexity of the problem of violence and will understand the Government's clarifications in this respect.

As regards the divergence between domestic legislation and international labour Conventions, and in particular Conventions Nos. 87 and 98 that are the focus of the complaint, the Government states that it has been and that it continues to be state policy to comply with the Constitution of the International Labour Organization and the international Conventions ratified by the country. In addition, naturally, to also complying with the requests of the supervisory bodies, as long as they are in keeping with the provisions of the Conventions and the political and legal structure of Colombia.

Colombia has consistently pursued this policy, not as an act of liberality of successive governments, but as an expression of the country's political, institutional and legal structure, which obliges the State to promote and respect the rights and freedoms of its citizens.

The most representative advances in its legislation occurred with Act No. 50 of 1990. The Committee of Experts recognized the magnitude of the results by describing Colombia, in various parts of its General Survey of 1994, as one of the few "cases of progress" throughout the world with respect to these Conventions.

Allegations relating to the death of workers and trade union officials

The complainants' claims

The following quotations from the submitted complaint serve to summarize it:

"In Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities."(44) 

"Acts of violence against trade unionism may be attributed to state agents, members of paramilitary forces and action by guerrilla groups."(45) 

"This report focuses on the matter of the impunity of the perpetrators of violations of the rights of trade union members and officials. Violence against trade union officials and members is certainly the main factor obstructing freedom of association in Colombia, exacerbated by increasing impunity and the absence of the political will to eradicate it."(46) 

"Society as a whole has been permeated by the intolerance demonstrated by the protagonists in the prolonged armed conflict."(47) 

"Civil and political rights of the Colombian population and of trade union members and leaders in particular, such as the right to life, integrity and personal liberty, are violated with impunity."(48) 

The Government's declaration

The Government reiterates the complexity of the problem of violence in Colombia which the following conclusions serve to illustrate. These conclusions should be carefully examined and evaluated within their particular social, economic and military context. The corresponding figures have been taken from national statistics.

To conclude this section the Government would like to recall the words of the ILO direct contacts mission to Colombia in 1996 which stated in its report:

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.

Allegations relating to the legislative disparities between
domestic legislation and Conventions Nos. 87 and 98

The complainants' claims

The following quotations from the complaint serve to summarize this point:

"Colombia has ignored the requirements of the Committee of Experts on the Application of Conventions and Recommendations to bring domestic legislation and national practice into conformity with the provisions of Conventions Nos. 87 and 98."(49) 

"Despite the sustained endeavours of the Committee of Experts to urge the Colombian Government to comply with the Convention and to promote the necessary reforms, the situation today is as it was ten years ago."(50) 

The Government's declaration

In 1976 Colombia ratified Conventions Nos. 87 and 98, thereby confirming its position vis-à-vis the ILO's international standards.

The ratification of Conventions is subject to two provisos: first, that the process of adapting legislation shall take the necessary time for institutions, particularly socio-industrial ones that are so sensitive to change, to assimilate the amendments, adapt themselves and in this way guarantee that they last.

The second premise lies in the conviction that the commitments entered into when ratifying an instrument are contained in the text of that instrument.

As regards the first proviso, the executive branch and the international community understand that the process of amending legislation is a permanent, continuous and time-consuming one, which is not due to the legislative or executive branches' lack of political will -- although it is relatively easy to present and sell this idea -- but because of the actual nature of law as a science.

Article 19, paragraph 5(d), of the Constitution of the ILO makes provision for the fact that adjustment processes do not all take place at one specific time when all relevant changes are made and after which the law is frozen. If we also consider the work of the supervisory bodies, in particular the Committee of Experts, we find that the number of countries on which comments have been made with respect to Conventions Nos. 87 and 98 has grown disproportionately. Comments have risen by 260 per cent for Convention No. 87 and by 755 per cent for Convention No. 98. The increase cannot be put down to the number of ratifications over the same period, which was only 65 per cent for Convention No. 87 and 69 per cent for Convention No. 98.

It can be concluded from the above that disparities between national legislation and Conventions do not necessarily and irremediably prove the existence of a state policy to repress the trade union movement, as the complainants insinuated in their complaint. If this were the case, a shadow of doubt would hover not only over all the Members cited in Report III of the reports prepared by the Committee of Experts, particularly those on which some type of comment has been made concerning Conventions Nos. 87 and 98, but also over the effectiveness of the Organization's international cooperation. There are even less grounds for such a rash conclusion if the results achieved by a country during the process of adapting its legislation have been recognized by the Organization itself as "cases of progress". This is exactly what has happened with Colombia.

Three points illustrate the Colombian policy of compliance with the ILO: (a) the results achieved through the enactment of legislation over the past decade to overcome the discrepancies between domestic legislation and Conventions Nos. 87 and 98; (b) the efforts made by the executive branch to obtain parliamentary approval of bills submitted to promote the harmonization of legislation; (c) the current Government's intention to submit a bill with the same objective to the Congress of the Republic.

Results achieved through the enactment of legislation
to overcome the legislative discrepancies with
Conventions Nos. 87 and 98, with particular
reference to Act No. 50 of 1990

Guided by the terms with which the Committee of Experts recognized the progress achieved through the enactment of Act No. 50 of 1990, describing Colombia in its 1994 Survey on freedom of association as one of the major "cases of progress" in the world in 1983-93 with respect to Conventions Nos. 87 and 98, we can state that considerable results have been achieved in the process of adjustment to international labour legislation, and that these results are a tangible reflection of a state policy of recognition of and respect for trade union rights. In other words, it is clear that Colombia has fulfilled its obligations with respect to the adoption of measures to give effect to the provisions of these Conventions, as will be shown below.

The Committee has on numerous occasions noted with satisfaction the progress made by Colombia, but it appears that these statements were not given sufficient attention by the complainants when they prepared and drafted their complaint. Here are some examples:

(1) "The Committee noted with satisfaction the repeal of the provisions which required ministerial approval of amendments to the rules of first-level trade unions, federations and confederations" (p. 50, para. 111); (2) "The Committee noted with satisfaction that the provisions making the election of officials subject to approval by the administrative authorities had been repealed" (p. 51, para. 115); (3) "The Committee noted with satisfaction the repeal of provisions which regulated trade union meetings too strictly" (p. 57, para. 128); (4) "In the case of Colombia, the Committee noted with satisfaction the repeal of s.379(a) of the Substantive Labour Code which prohibited trade unions from intervening in political matters" (p. 58, para. 130); (5) "The Committee noted with satisfaction that s.39 of Act No. 50 of 1990 increased the amount of sanctions applicable in the event of acts that interfere with the right of association" (p. 100, para. 222); (6) "Significant improvements have also been achieved in other areas: (...) establishment of organizations without prior authorization (...) and to organize their administration and their meetings freely" (both these cases are referred to as examples of Colombia) (p. 122, para. 268); lastly, the statement made with respect to Convention No. 98 that "These cases of progress mainly concern measures strengthening the protection against anti-union discrimination", where Colombia is cited as an example (p. 125, para. 278) (emphasis added).

The Government of Colombia is very surprised at the complainants' insistence on the need to reform domestic legislation in the areas underlined in the above paragraph, which were amended in 1991 as the Committee of Experts itself notes.

In addition to the above reforms, Act No. 50 of 1990 established the automatic recognition of the legal status of trade unions (section 364 of the Substantive Labour Code and article 39 of the Constitution); eliminated the possibility of cancelling or suspending the legal status of trade unions, with these procedures only being possible through legal means (section 380(2) of the Substantive Labour Code and article 39 of the Constitution); eliminated the restriction on the right of enterprise management staff to form associations and extended the guarantee of trade union immunity (section 406 of the Substantive Labour Code); permitted the establishment of mixed unions made up of public officials and state employees (section 414 of the Substantive Labour Code); repealed the provisions that regulated trade union accounting (former section 397 of the Substantive Labour Code) and made it a requirement to issue reports on money management (former section 427 of the Substantive Labour Code).

Also, and in order to guarantee freedom of negotiation, relevant changes were made such as eliminating the mediation stage which required the Ministry of Labour to be involved in out-of-court settlements between the parties, and extending the direct settlement stage (section 434 of the Substantive Labour Code); allowing the presence at the negotiating table of up to two advisers from second- and third-level trade union organizations (section 434(2) of the Substantive Labour Code). These amendments also reflect the intention of the Colombian Government to expand and guarantee trade union rights in keeping with the spirit of the Conventions.

As regards the strengthening of the right to negotiate, it is important to note the provision that prohibits the existence of collective agreements in enterprises where more than a third of the workers belong to the trade union (section 70 of Act No. 50 of 1990).

Particular mention should be made of the special protection accorded to trade union immunity under article 39 of the Constitution, which now also protects all workers who have submitted a list of claims, further guaranteeing the right to negotiate by establishing that such workers "... shall not be dismissed without proven just cause from the date the list is submitted and during the time fixed by law for each of the stages of dispute settlement", according to the interpretation given to section 25 of Decree No. 2351 of 1965 by the Labour Division of the Supreme Court of Justice in its decision of 5 October 1998.

The legal institution of trade union immunity, inter alia, makes it impossible to pursue a policy of suppression of the trade union movement.

Likewise, the workers state in their complaint, with respect to a draft bill pertaining to "essential services" that: "The Government naturally made no mention of this draft since it was never presented to Congress."(51)  It is impossible that workers are unaware of the existence of the numerous laws that have been enacted to define and regulate the essential services: Act No. 31 of 1992, Act No. 100 of 1993, Act No. 142 of 1994, Act No. 270 of 1996, inter alia. Also, a judicial decision handed down by the Constitutional Court coincided with the views of the Committee of Experts by stating that "whether a public service is essential or not can be seen if the activities constituting it contribute directly to the protection of property, the satisfaction of interests or the fulfilment of values associated with the respect, observation, exercise and effectiveness of fundamental rights and freedoms" (decision of 27 October 1994).

Furthermore, and subject to its inclusion in the next report on Convention No. 98, the Government refers to the enactment of Decree No. 801 of 1998 in accordance with which the decision to opt for arbitration courts, in the case of trade unions of which less than half of the workers in an enterprise are members "... will be taken by an absolute majority of the workers of the enterprise who are members of this or these trade unions ..." (section 1(2)).

We repeat that the nature and extent of these measures were noted by the Committee of Experts in its 1994 Survey in the following terms: "These cases of progress mainly concern measures strengthening the protection against anti-union discrimination." If this is the case then is it conceivable to claim the existence of a policy to eliminate the trade union movement and its leaders or to declare that the Colombian Government is indifferent to the principles established in Conventions Nos. 87 and 98?

Allow us to emphasize the significance of Colombia's achievements in this area. In the case of Convention No. 87, only 41 cases were recognized in the Committee of Experts' survey as cases of progress. As for Convention No. 98, the number was even lower, just 18 countries were mentioned.

Efforts by the Colombian Government to obtain
parliamentary approval of bills submitted to
promote the harmonization of legislation

The policy of compliance with the ILO is also reflected in government efforts to gain National Congress approval of bills submitted to it for this purpose. In order to avoid hasty judgements which could lead to mistaken conclusions, these efforts must be viewed within the limits imposed by the actual structure of a State where power is shared between three branches, and where the legislative branch has the autonomy to approve such bills or not.

The Government's involvement in this respect is in preparing the bills -- the ILO has provided technical assistance to Colombia in this area -- in presenting them to the Congress of the Republic and in the attention that the ministers have given to requests made by its committees to explain the scope, nature and relevance of the bills.

It is therefore wrong to state "in the absence of any steps by the Government to employ the instruments provided for by the Constitution to promote them".(52)  "In the light of the above, it may readily be concluded that ILO Convention No. 87 is systematically violated."(53) 

The current Government's political will to submit
a bill to the Congress of the Republic to promote
the harmonization of legislation

In order to give continuity to the state policy of compliance with the ILO and also that of promoting trade union rights and freedoms, the Government of President Andrés Pastrana will submit for consideration by the Congress of the Republic, at the first constitutional opportunity, a bill that we will describe below.

Nevertheless, the Government does not wish a significant and in fact exceptional fact to be overlooked which is that Colombia has incorporated into its Constitution, in article 53, a provision whereby "International labour agreements duly ratified are part of domestic legislation".

While it is clear from a legal point of view, as stipulated in that article, that ILO Conventions are part of legislation and consequently individuals could request their immediate application without the need for an act or decree to enact them, or to become embroiled in the legal inefficiency involved in the application of conflicting legislation by the judges or administrative authorities who are responsible for settling disputes or requests to which these standards apply, it is also clear that the Government, as a reflection of its desire to comply with the ILO, has accepted the position of the Committee of Experts which advocates the explicit and formal harmonization of national legislation with Conventions, and the express repealing or amending of all legislation that does not comply in order to pave the way for social justice.

This is an additional reason why the Government has prepared the above-mentioned bill, in which it explicitly takes up the recommendations of the Committee of Experts which have not yet been incorporated into the various parts of the Substantive Labour Code.

Conclusions

The Government of Colombia does not understand the profound contradiction contained in the complaint submitted by the Workers' delegates. According to their statements, the policy of persecuting the trade union movement has appeared and become increasingly acute over the last decade: "In Colombia, over the last decade, violence has been brought to bear on trade union members and officials because of their activities."(54)  What is unclear to anyone reading the complaint with care is why precisely this coincides with the very decade when the greatest progress has been made in the area of legislative harmonization, as the actual complaint begrudgingly recognizes when it refers to the progress described by the Committee of Experts in respect of Act No. 50 of 1990.

That was in fact the year when, in the throes of one of its worst periods of violence and on the Government's initiative, the Congress of the Republic approved Act No. 50 which led to extensive amendments to earlier legislation and which incorporated numerous observations that the Committee of Experts had made about the country.

In view of the above, we are compelled to conclude that the claims with which the workers end the sections relating to the alleged violations of Conventions Nos. 87 and 98 are false: "In the light of the above, it may readily be concluded that ILO Convention No. 87 is systematically violated."(55)  "Despite the sustained endeavours of the Committee of Experts to urge the Colombian Government to comply with the Convention (No. 98) and to promote the necessary reforms, the situation today is as it was ten years ago (1989). The Government continues to fail in its duty to adhere to Convention No. 98."(56) 

E. Text of the annexes to the Government's observations

140. The text of the annexes sent by the Government is given below.

Annex I

Violence in Colombia: Context and complexity;
implications for basic rights and international
humanitarian law

Introduction

1.1.The purpose of this document is to describe the context of the situation of internal armed conflict affecting Colombia and which above all is an indispensable framework of reference for understanding the events which have resulted in acts of violence being carried out against unionized workers in the country, a matter which has come to the attention of the Committee on Freedom of Association of the International Labour Organization (ILO) because of the supposed relationship between these events and international labour Conventions Nos. 87 and 98 ratified by the Colombian State. The description and analysis of the social, political, economic and military context of the present situation in the country are intended to offer an integrated and more objective vision of the problem of violence in Colombia.

1.2.The central purpose of this document is to show that there is no State policy to encourage violence against social organizations and movements in Colombia. It also emphasizes the need to explain the extreme complexity of the phenomenon of violence affecting the Colombian nation, which is indispensable to an interpretation of the situation as a whole, as well as the factors contributing to the infringement of basic rights, the identity and the role of those responsible for such violations, the role of the Colombian State in this context and the possible responses and actions to bring an end to all these acts of abuse, including those which indirectly affect the freedom of association and trade union rights of Colombian workers.

1.3.An explanation and evaluation of the Colombian case in the above-mentioned terms will furthermore enable a series of conclusions to be drawn about the nature of the acts of violence which have come to the attention of the ILO. These conclusions, which are based on a comprehensive review of the origins of these acts, provide a basis for determining the responsibilities involved. The conclusions, the reasons for which are contained in the following pages, can be listed as follows:

Characteristics of the violence in Colombia

2.1.The country is beset simultaneously by different kinds of violence which require various kinds of parallel action by the Colombian State. The existing kinds of violence can be classified according to their type or scope as follows: (1) violence due to ordinary crime; (2) violence in everyday life; (3) violence of a political kind; (4) violence resulting from drug trafficking. These therefore are the four main sources of violence affecting the Colombian nation and which must be dealt with by the State with its limited financial, material and human resources. However, as will be explained below, there are links at different levels between the various forms of violence and the authors of such acts, which make it more difficult to reduce them.

2.2.Taken together, the various kinds of violence noted above in the seven main cities of the country occurred at a rate of 2,960 conflicts per 100,000 inhabitants in 1997, according to the National Household Survey carried out in that year.(57)  Of these, in the 11.9 per cent of households affected by such conflicts, 84.6 per cent were of a more serious nature since they involved acts of a criminal kind, whereas only 3.2 per cent concerned labour disputes.(58)  This last figure is emblematic of the Colombian situation, indicating a very low rate of labour disputes, as compared to matters of a criminal kind which normally concern acts of violence, where the indicators are very high. This reflects a fairly peaceful labour situation, although there are also serious problems due to the criminal nature of most of the conflicts and the way in which they are resolved (by violence), all of which is consistent with the situation of internal armed conflict and rampant crime. There is little doubt about the link between the conflicts of a criminal kind and violence as an explicit phenomenon. Although some of the criminal offences do not involve acts of violence, the offences which are most frequently carried out in Colombia do involve the use of violence.(59) 

The crime situation is even more serious, especially since the above-mentioned data from the National Household Survey refer to an urban area (the seven main cities) and not to the rural areas, where crime is rife. Here, because of the nascent state of industrialization, labour disputes are few and far between.(60) 

As regards the settlement of labour disputes, special importance is attached to the development of protective action (protection under the Constitution) as an effective and efficient mechanism for safeguarding basic rights. The statistics of the Constitutional Court concerning the settlement of cases of this kind show that in 1997 citizens made use of this instrument mainly to seek protection of their rights of petition (13,746 cases, equal to 26.25 per cent of the total), equality (6,859 cases, equal to 13.10 per cent of the total), due process (6,227 cases, equal to 11.89 per cent of the total), and work (5,939 cases, equal to 11.34 per cent of the total). Social security and the payment of pensions and wages also played an important role (2,515 and 1,080 cases, respectively, equal to 4.8 per cent and 2.6 per cent of the total), while one of the rights least invoked was that of freedom of association (393 complaints, equal to 0.75 per cent of the total in 1997).

In 1998 there was a slight improvement in the general problem of the crime rate as compared with 1997. In 1998 the number of murders recorded was 2,577 less than in 1997, an important achievement in terms of lives, but not satisfactory since the number of murders in Colombia in 1998, 26,350, was catastrophically high; massacres, of which the self-defence groups are to a large extent responsible, showed a slight reduction, with a total of three less than in 1997, although their rate is still very high, with 112 massacres in 1998; the number of cases of kidnapping with extortion by the guerrillas increased on a massive scale in 1998 to a total of 2,388, up from 1,833 in 1997; in 1998 acts of terrorism using explosives totalled 1,680, a figure which was also higher than that of 1997; cases of physical injury in 1998 totalled 37,430, which was 5,147 less than in 1997.(61) 

All the types of violence described at the beginning of this section play a role in the acts of murder and personal injury. Seventy per cent of massacres are carried out by self-defence groups on the extreme right and most of the other cases by guerrilla groups. Ordinary criminals and guerrilla groups are responsible for carrying out acts of abduction and bank robberies. Acts of terrorism are also carried out by guerrilla organizations and drug-trafficking groups. Ordinary thefts and the stealing of automobiles are in most cases the work of common criminals.

The crime rat is very high, indicating a massive degree of delinquency, regarding which the Colombian State must recognize the enormous difficulties involved in controlling the situation, despite its enormous efforts, its political will, and the considerable investments required in the fields of justice, security and defence.

Since 1990 murders have been committed with alarming frequency. According to 1996 data, Colombia has the second highest murder rate in the Americas, equal to 67 murders per 100,000 inhabitants.(62) 

Ordinary crime which includes a wide range of offences has in the last ten years achieved a relatively stable historical average of 200,000 offences per year.(63)  Apart from the problems of corruption, environmental attacks, sexual offences and other relatively serious punishable acts, crimes against the life and physical integrity of persons, as well as attacks against economic wealth, are the most common.

As regards murders, 40 per cent of the total number of deaths which occurred in 1996 seem to have had a link with other criminal activities, while 31 per cent of deaths appeared to be the result of a settlement of accounts, which in principle would link 71 per cent of the murders with ordinary crime and drug trafficking.(64)  Between 1958 and 1990, according to apparent crime statistics, there were a total of 2,718,400 offences against property.(65)  Between 1991 and 1996 a total of 601,541 offences against property were recorded, costing an estimated 3.4 billion pesos.(66)  Between 1958-90 a total of 1,111,177 cases of physical assault were reported.(67)  In the period 1991-96, 192,070 cases of physical assault resulting in a disability of more than 30 days for the victims were recorded, requiring approximately 109,000 million pesos' worth of medical attention.(68) 

Since ordinary crime affects various sectors of the civilian population without any special kind of discrimination, persons who have held prominent positions in various activities in the political, social, economic or labour life of the country have also become its victims. By way of example, mention can be made of the murder of María Arango Fonnegra (Case No. 787), who had a long working career in the Colombian popular movement and in human rights, and who was a well-known activist on the political left. The case is unusual since as a result of Arango's former links with the Communist Party, the crime was interpreted as a political one. However, Arango's death was the work of common criminals who were trying to prevent the political leader, who had already many years before her assassination retired from all political activity, from recovering 85 million pesos out of which they had swindled her.(69)  The two intellectual authors, an accomplice and the material author of the murder were arrested on the orders of the Procurator-General of the Nation.(70) 

Another similar case was the assassination of Alfonso Vargas, who was at the time Secretary General of the General Confederation of Democratic Workers (CGTD), who was also a victim of common delinquency.

The violence of everyday life, which is different from that of organized crime and the result of a socio-cultural environment in which it has become a means of resolving disputes, is also reflected in the crime statistics, and cannot be ignored in attempts to create an atmosphere of peaceful co-existence. The most serious manifestations of this kind of violence consist of murders, acts of physical assault and deaths resulting from the illegal practice of abortion in inappropriate conditions.(71)  Murders resulting from quarrels or brawls, which might be considered a typical product of this kind of violence, accounted for 21 per cent of the total number of cases in the period 1991-96.(72) 

As regards violence of a political kind, the most frequent cases involve murder, physical injury, massacres, abductions and extortion. Between 1958 and 1990 acts of subversion resulted in a total of 27,304 deaths, of which 3,326 were in the national police and the military forces and 23,978 were of civilians.(73)  It has thus been the defenceless civilian population which has been the main victim of the action of the armed groups. In the shorter period from 1976 to 1990, 687 guerrillas were killed in clashes with the public forces but at the same time 2,395 guerrillas were captured.(74)  In the period 1985-96 the armed conflict was relatively intense, resulting in 4,325 clashes between the public forces and the guerrillas, 2,974 acts of sabotage and 1,126 skirmishes, which resulted in 16,625 deaths: 4,552 civilians, 4,400 members of the armed forces (police and the military) and 7,673 guerrillas.(75) 

The Colombian guerrillas have carried out more kidnappings than any other revolutionary group in the world in a country like Colombia which also has the highest number of such cases in the world. Between 1976 and 1990 4,451 civilians were abducted.(76)  Political delinquency was responsible in the period 1985-86 for the kidnapping of 4,853 civilians, out of a total of 6,204 civilians abducted.(77)  The figures for 1997 and 1998, according to information from the Presidential Programme for the Defence of Individual Freedom, show a total of 1,443 abductions involving ransoms in 1997 and 1,294 up to the month of September 1998. Of these totals, 364 in the year 1997 and 370 in 1998 up to the month of September were due to subversive elements. As regards political abductions involving the payment of ransoms, in 1998, between January and September a total of 258 acts of this kind were reported, most of which were the work of the FARC (48.84 per cent) and the ELN (35.66 per cent). These figures do not include members of the public forces kidnapped by the subversive elements, who at present number more than 300 persons.

These crime figures do not include data on illicit drug trafficking, another of the fronts on which the Colombian Government, for political and ethical reasons, internal reasons and responsibility towards the international community, must act and deploy all its human, financial and material resources. Organized crime in Colombia is the second largest producer of coca leaf in the world, the raw material used for the manufacture of cocaine, although Colombia holds a world record in the destruction of illicit crops by manual methods and air fumigation; Colombian criminals continue to grow marijuana (cannabis) and engage in contraband activities; there is a growing cultivation of poppies, a necessary ingredient in the manufacture of heroin, and Colombian organized crime is the main distributor of cocaine in the world. In the same way, the Colombian State must give special attention to the identification and confiscation of the astronomical quantities of illicit money which may result from this trafficking, the control of chemical substances used in the manufacturing processes of the drugs and the secondary crimes resulting from the supply and demand of prohibited drugs. Mention should also be made of the resources and programmes for the development of alternative activities in the areas affected by the illicit crops, and which constitute a priority for the national Government.

The surface area used for the cultivation of coca leaf was 45,000 hectares in 1995, with 5,000 hectares being used for the cultivation of marijuana (1995).(78)  The illegal drug trade generates between 2,000 and 5,000 million dollars a year, with an accumulated capital from production and trafficking activities estimated at around $66,000 million in recent years.(79)  These figures show the enormous challenge faced by the Colombian State in waging a battle which goes well beyond the resources which the State, with limited assistance from the international community, has at its disposal. In the same way, the figures illustrate the enormous capacity of the drug-trafficking groups to generate crime and violence.

Drug trafficking plays a major role in the murders committed in the country. "The most violent departments are to be found in areas known to be under the influence of drug traffickers and in the new departments where illicit crops are being grown."(80)  The record of gangs of illicit drug dealers in carrying out acts of violence is a long one, and reached a high point in the narco-terrorist war against the State and members of civil society who opposed their plans.(81) 

In addition to carrying out indiscriminate terrorist acts against the civilian population in an attempt to force the State to halt its action against them and attacks against State officials which have resulted in the loss of life of magistrates, members of the police, ministers of State, etc., the drug traffickers also launched a mortal attack against the representatives of civil society. Gangs of drug traffickers murdered a selected number of political leaders (including four presidential candidates), journalists and trade union officials. They were also actively involved in the kidnapping of State officials and members of their families, journalists and political leaders. The groups of drug traffickers also play a role in the organization and financing of self-defence groups which are responsible for carrying out massacres of peasants and trade union workers. Furthermore, there is a clear link between the groups of drug traffickers on the one hand and the armed conflict and the crime rate on the other, and these groups have actively participated in the carrying out of murders, massacres, acts of terrorism and kidnappings.

As regards the characteristics of the victims of the criminal actions described in the previous paragraphs, most of them are not trade union leaders and workers, and they are affected by the violence only to the extent that they are involved in the internal armed conflict or are the victims of ordinary crime. However, their violent persecution is not the result of their trade union activities.(82) 

On the contrary, violence has affected the entire Colombian population in degrees determined by the characteristics of the internal armed conflict and the methods and types of violence used. Since the conflict is essentially rural, it is the peasant population which has been most affected. Peasants have also been the main victims of the massacres carried out by self-defence groups on the extreme right. In the case of the massacre of trade union workers, as will be seen below, these have been concentrated in the region of Urabá (Department of Antioquia), which is engaged in the industrial exploitation of bananas. Acts of extortion have been carried out against landowners and peasants who are considered small and medium-sized landowners. Families of all social classes have been the victims of kidnappings, especially in the upper middle class urban residential areas, as well as the owners of large and medium-sized rural estates.

In 1996, 93 per cent of murder victims were male, and the remaining 7 per cent women; 19 per cent were aged between 21 and 25, and 18.1 per cent between 26 and 30; 59 per cent of the murders occurred on the public thoroughfare; and 50 per cent of those who died were found to be under the effect of intoxicating substances.(83) 

The social, economic and political costs of the various kinds of violence carried out in the country are astronomical. Only the economic costs can be calculated and the figures reflect the enormous efforts made by the State and society to contain the violence, cushion its effects or simply to pay the costs. These include the losses of life in terms of human capital, the losses resulting from terrorism, the sums paid for extra medical costs and private insurance, additional military expenditure, the sums paid in respect of kidnappings and ransoms, as well as the loss of material goods due to the attacks carried out against property.

Thus in the period between 1991 and 1996, the gross cost of the internal armed conflict was equal to 9 per cent of the gross domestic product (GDP), a sum of 6.1 billion pesos, equal to an annual average of 1.5 per cent of the GDP. In the same way, since 1989 the country has been faced with levels of military expenditure above the average for Latin America, exceeding that average by an estimated 3.7 billion pesos in the period 1991-96 alone.(84) 

The violence produced by ordinary crime, in addition to the damage it causes in terms of the loss of lives and goods, has the serious effect of distracting the attention of the State security forces and its agencies in general and which could otherwise be focused on combating other forms of violence. Given the scope of ordinary crime as described in the previous paragraphs, it is clear that the State has to invest large amounts of material, human and financial resources to fight it.

The costs of the armed conflict, the investment required to curb the various kinds of crime and the expenditure required to protect the lives of the persons and groups who are most vulnerable to violence have strangled the public finances. In recent years, the country has invested around US$1,000 million a year just to combat drug trafficking.(85) 

Over and above the enormous expenditure which the State and society have been required to make, mention should also be made of certain economic indicators concerning the nation's income which only compound the costs resulting from the violence. Colombia has been faced with a high and continuous deficit in its trade balance, amounting to US$4,100 million in 1995, US$4,756 million in 1996 US$4,790 million in 1997.(86)  The picture is not very encouraging in this respect, since the international price of coffee, the main traditional product of Colombia, remained low throughout 1998, under US$1.3 per pound, whereas the price of oil, a product in which the country had placed its well-founded hopes, fell to one of the lowest international levels in history, US$10.83 per barrel. Industrial growth in 1998 was equivalent to zero, while the external debt rose to US$31,665 million.(87)  The fiscal deficit in 1998 was equivalent to 6.6 per cent of the GDP, a high-risk level for the economy as a whole.

The authors of the violence

The authors of the criminal violence in Colombia are many. In addition to the gangs and individuals who carry out acts of common delinquency and ordinary citizens who engage in acts of violence, specific groups have been established which have considerable economic and coercive powers, and a highly developed structure within the sphere of organized crime and political delinquency. This section will describe the characteristics of these groups. The acts of violence carried out by the guerrilla organizations, self-defence gangs and groups on the extreme right and the gangs and groups linked to drug trafficking are amongst the most serious and extensive. There are first of all the guerrilla groups, which are the oldest subversive armed organizations in the Americas, as well as the only active groups alongside two guerrilla organizations in Peru and two in Mexico.

The main subversive armed group active in Colombia, the self-styled Revolutionary Armed Forces of Colombia (FARC), was established as such in 1966, although its roots go back to armed groups which operated from the beginning of the 1950s.(88)  The organization is mainly made up of persons of peasant extraction. The FARC has followed an orthodox communist line and supported the traditional communist parties known for their pro-Soviet views.(89)  However, the organization is a product of the historical period known in Colombia as "the Violence" which occurred between 1946 and 1964.(90) 

The FARC is still today an autonomous political-military organization which cannot be described as the armed wing of a political party.(91)  As regards its objectives, "the Revolutionary Armed Forces of Colombia were established to fight and seize power for the people, to establish themselves as the people's army in opposition to the army which is in the service of the bourgeoisie and the exploiting classes".(92) 

Its structure comprises a "secretariat" which functions as the executive of the guerrilla organization, as well as a "central staff" under the general direction of the organization which is headed by Manuel Marulanda Vélez (alias "Tirofijo"). (93)  There then follow a number of "blocs", which are responsible for a specific territorial region, grouped together into "fronts", which constitute the major basic units into which the military apparatus is divided. The "blocs" are in turn directed by their respective "commander" and "staff" and the same structure is reproduced in the "fronts".(94)  At present, the FARC has seven "blocs" and 66 "fronts", with an estimated total force of between 7,000 and 8,000 armed fighters. In general, the organization has a rigid hierarchical and vertical structure.

Initially and for most of its 33 years of subversive activity, the FARC guerrillas were active in remote regions along the agricultural frontiers of the country, where they claimed to be defending the interests of small-scale rural landowners(95) , while at the same time gaining strength and power. During this period the organization increased its membership, weapons, financial resources and its military experience. At present, it has demonstrated its advanced attack capacity, which has led to a new stage in the armed conflict. Since the "Seventh Conference" held in 1982 the organization has established a plan to expand into strategic zones of economic importance in the agricultural and commercial sectors, because of the natural resources existing there or as a basis of access to regions of political, economic or social importance. Of the 33 departments which make up the political and territorial division of the country, they are absent in only eight. In 1995, the organization was present, in varying degrees, in a total of 522 municipalities, out of the 1,069 in the country.(96) 

In these circumstances, they control certain areas enabling them to establish communication corridors with other regions where military fronts are concentrated. They therefore have considerable capacity to bring together major military units (approximately 2,000 guerrillas) from different regions to attack major targets such as national army bases or relatively large towns. Their weapons are typical of infantry-based warfare, backed up in some fronts with heavy machine-guns and light artillery such as mortar.

The so-called National Liberation Army (ELN) was established in 1965, like other guerrilla organizations of Latin America, under the inspiration of the Cuban revolution and the theory of revolutionary "focal points".(97)  "In its programme principles, the National Liberation Army states: 'The National Liberation Army has arisen from the need of the Colombian people to have a conscious and aggressive armed wing which is capable of allowing it, through a direct confrontation with its enemies, to take power and establish a social system which is consonant with the development of the country and which frees the masses from the exploitation to which they have been subject throughout all their history'".(98) 

For more than a decade the organization attempted without any success to develop its model of insurgency, without establishing any real presence on the national territory or achieving any political or military influence and with a small number of members. By the middle of the 1970s it had been reduced to a number of small gangs, following an offensive by the national army and the death of most of its leaders.(99)  However, after a period of minimal survival, when it remained as an endemic phenomenon with a very low level of activity and little impact, the organization was given a new lease of life thanks to economic resources acquired from acts of extortion against multinational companies drilling for oil or installing oil infrastructure plants. This new capital enabled it to finance the establishment of new armed columns which would serve as a basis for the development of military and economic financing activities, all of which led to a sustained growth in its subversive activities, the size of its forces and territorial presence.

The ELN obtains most of the necessary resources for financing its military activities from the kidnapping of persons (nationals and foreigners), the extortion of entrepreneurs and other members of the civilian population, interest on its accumulated capital and, to a lesser extent, attacks on banking establishments or other individuals.(100) There is no evidence to conclude that it has benefited from the production or trafficking of illegal drugs.(101)  Its most destructive action has involved the blowing up of pipelines which transport oil, causing serious damage to the national economy and the environment.(102) 

Most of the leaders of the ELN are from the middle class.(103)  It is organized into "fronts" or "columns" which operate with considerable military and political autonomy in obtaining financing resources, and for this reason hierarchical dependency on its "central command" is both weak and relative. It has 35 "fronts" and around 3,000 armed fighters. Following the death from natural causes of its main leader in 1998, the former Spanish priest Manuel Pérez, the leadership was taken over by Nicolás Rodríguez Bautista (alias "Gabino").

The main ELN units are located in areas which have natural resources, and in particular, in oil-producing regions or those adjacent to the pipelines which transport crude oil. According to 1995 data, these units were present in 280 municipalities.(104) 

The so-called People's Liberation Army (EPL) is the third guerrilla organization in the country. It is made up of remnants of the former guerrilla movement of the same name established in 1967 by the Marxist Leninist Communist Party (PC/ML).(105)  The PC/ML had split from the traditional Communist Party, which it accused of being "revisionist", and adopted what in leftist terminology is known as the "pro-China" line.

The EPL was made up of members of the middle class, who were its leaders, and peasants. Its main area of influence was in the north-east region (border region between the departments of Córdoba and Antioquia) and in the adjacent region of Urabá (department of Antioquia). With the political reforms introduced in China following the death of Mao Tse Tung, the movement began to follow the policy guidelines of Enver Hoxa in Albania. Finally, in 1980 the EPL and its political wing abandoned Maoism(106)  and in 1984 began a process of negotiations with the Colombian State which was successfully concluded in 1991 with the demobilization of the guerrilla group and the granting of an amnesty to those members who accepted the peace process. This was followed by the founding of a legal political movement called "Esperanza, Paz y Libertad", which retains the EPL acronym, and whose members are engaged in a serious dispute with the FARC, an organization which is attempting to take control of its former areas of military and political influence.(107)  A dissident minority of the guerrilla group which continues to identify itself as the People's Liberation Army, led by Francisco Caraballo, continues its armed rebellion.(108) 

A fourth guerrilla group is the Jaime Bateman Movement, made up of a group of dissidents from the former group of rebels known as the Movimiento 19 de Abril (M-19), which refused to accept the peace process concluded with this organization. The M-19 emerged in 1970, although it was only in 1974 that it began military operations. Its members came from the middle class, and in particular the professional class. The Jaime Bateman Movement is a minor group which is active in the departments of El Valle and Tolima, and its size is the equivalent of one of the FARC's fronts. It participates in sporadic kidnappings and skirmishes with the public authorities.

The fifth group of rebels consists of a minute terrorist organization which operates under the names of the People's Revolutionary Organization (ORP) and the Jorge Eliecer Gaitán Movement (JEGA) and has been involved in kidnappings and selective murders.(109)  Its operations have been carried out on a fairly discontinuous basis, and its main leader is Hugo Antonio Toro Restrepo, alias "Comandante Bochica". It has no presence in rural areas, or any "fronts" or armed columns. It is active in the departments of Risaralda and Quindío.

The guerrilla movement has a total of approximately 10,000 armed fighters. In 1995 its territorial presence included 622 municipalities of the 1,069 which make up the Colombian territory.

On the ideological fringe there are also the armed groups of the extreme right, whose origins vary and which have different forms of organization. They are generally known in the mass media as "paramilitary" groups, in the universal sense of this term, since the groups which are known by this name in Colombia have no organic link with the State. Indeed, in Colombia, unlike other countries which have waged war against rebel groups, there are no real paramilitary forces to combat the guerrillas.(110)  The self-defence peasant groups of Guatemala, the civil defence forces of El Salvador and the peasant patrols of Peru were all official or officialized paramilitary structures which were armed, maintained and directed by the military forces of their respective countries to fight the war against the guerrillas. In Colombia, the so-called "paramilitary" organizations are in fact armed groups on the extreme right, which operate outside the law, and are therefore pursued by the authorities of the Colombian State.

Two characteristics can be mentioned concerning the establishment of the above-mentioned gangs: (a) the existence of various groups, many of them lacking continuity and with complex origins; (b) the influence of drug-traffickers in association with other social sectors, in the most significant cases.

In Colombia many anti-subversive "social cleansing"(111)  groups have operated which are organized like military forces or which function as hired assassins.(112)  Most of these groups have had a short existence, have been relatively unstructured, with a very weak sense of ideology, discourse and practice, devoid of any sense of ethics and with a fairly restricted and local scope of action. The urban groups emerged as a means of fighting against common delinquency, sometimes as an alternative to or simultaneously with their own illicit activity. The rural groups were mainly engaged in anti-subversive activities and to a lesser extent in the fight against certain kinds of common delinquency, and on many occasions were linked to illicit business activities, in particular concerning drug trafficking.

Of the various groups which were active, mention may be made of such organizations as "Alfa 83", "Los Tiznados", "Terminator", "Muerte a Abigeos-Maos", "El Embríon", "Pro Limpieza del Valle del Magdalena Medio", "Movimiento Anticomunista Colombiano", "Los Grillos", "El Escuadrón Machete" and "Falange". These groups are no longer active.

The more sophisticated groups which emerged in the first half of the 1980s were the direct descendants of the drug-trafficking organizations headed by Gonzalo Rodríguez Gacha and Pablo Escobar.(113)  An alliance was formed with the brothers Fidel and Carlos Castaño for the establishment of private armed "self-defence" groups.(114) 

The original groups were established in the area of the Magdalena Medio (a region in the departments of Boyacá, Cundinamarca, Antioquia and Santander) and in the north-west part of the department of Antioquia, in the central region of the country, where the drug traffickers had acquired estates, in response to the extortion activities carried out by the guerrillas against rural land owners.(115) 

The self-defence groups of the Magdalena Medio went through various operational stages, in line with the political and military objectives which they were pursuing. During the first phase, they eradicated the guerrilla groups of the Magdalena Medio region. In the second stage, they pursued a campaign to exterminate activists of the Patriotic Union, a legal leftist political front, founded by the Communist Party and the FARC (the political participation of the guerrilla movement, represented by rebels who had been granted amnesty, was a result of the 1984 peace process), in reprisal to FARC interference in the drug-trafficking business, and with which they concluded a temporary alliance, which soon led to irreconcilable disputes.(116)  During a third stage, they carried out campaigns of terror, which included massacres, in regions under the influence of the EPL (Urabá) or the FARC (north-west part of the department of Antioquia).(117)  In the final stage, when the groups were more closely linked to the security forces of the drug traffickers or their gangs of hired assassins, they participated in the assassination of many leading figures in the country (for example, in the murder of Luis Carlos Galán, the Liberal Party presidential candidate) and the serial murder of members of the national police.(118)  These self-defence groups, with a unified hierarchical command, originated in a specific region but over time they spread throughout the entire country.(119) 

The second stage in the development of the self-defence groups, in which remnants of the group organized in the Magdalena Medio have participated, has been centred on the rural areas of the department of Córdoba, to which the self-defence groups from north-west Antioquia, under the leadership of the brothers Fidel and Carlos Castaño, moved. The Castaño brothers, who were being sought by the Colombian State on various charges, soon extended their organization to the region of Urabá in the region of Antioquia. At one time, they clashed with Pablo Escobar's supporters, which resulted in a bloody private war between the two groups.

The self-defence groups have also pursued a territorial strategy aimed at achieving power at the local level, with the use of violence being combined with the acquisition of land which has given them an additional influence in social, economic and political terms, as well as bringing them obvious benefits.

During the offensive which they launched in 1997, the United Self-Defence Groups of Colombia (AUC) extended their activities to regions where the guerrillas have been traditionally present (departments of Bolívar, El Chocó, Santander and Meta), clashing with members of the ELN and the FARC. However, their main tactic consists of carrying out massacres against the civilian population, as a means of destroying the social base of the guerrilla movement or forcing the guerrillas into combat. In the same way, they undertake the selective assassination of political activists suspected of maintaining links with the guerrilla movement; these figures have included defenders of human rights, trade union officials and workers. Guerrilla leaders and members of their families have also been kidnapped.

According to data available for 1993, the self-defence groups were present in 138 municipalities, although the figure has certainly risen since the launching of their national offensive in 1997.(120)  The estimated membership of the AUC fluctuates between 4,000 and 5,000.(121) 

The armed groups operating in Colombia also include the squadrons of the drug-trafficking groups. The drug traffickers, in addition to their links with the self-defence organizations, have their own military and security apparatus, which is used to combat the state security forces, eliminate enemies or competitors in their illegal business and kidnap and assassinate state officials or leading figures of civilian society who have acted against their interests or expressed criticism of their activities.(122)  There is a long list of presidential candidates, ministers of State, journalists, trade union leaders, members of the police, political activists, Supreme Court magistrates, judges, prosecutors, entrepreneurs, competitors in the drug-trafficking business, and family members of all these persons, who have been murdered. The groups of traffickers have also used terrorism as a tactic for achieving their objectives by blowing up planes in flight, destroying automobiles with explosives on the public thoroughfare as well as on the premises of state agencies or private enterprises.

They have acted in this way to defend their economic interests and to escape legal action or to force the derogation or non-application of measures authorizing the extradition of nationals to foreign countries to be tried on drug-trafficking charges.

In most cases, the drug traffickers have not established any special or well-known groups themselves but have used their enormous economic resources to hire armed gangs or death squads.

Furthermore, one of the most common activities of the drug-trafficking groups has been the infiltration of institutions of the State or civil society through corrupt channels.(123) 

In general, these organizations have used their armed forces in a combined manner in the fight against anything considered to be Communist and as a means of establishing appropriate conditions for the illicit drug trade.(124) 

Evolution of the internal armed conflict

The strategy devised and implemented by both the FARC and the ELN consists of rapidly increasing and diversifying their financial resources, increasing their number of fronts by the splitting up of existing ones and infiltrating the local everyday life of the areas under their influence.(125) 

In order to increase and diversify their economic resources, the guerrillas have engaged in various illicit activities which have enabled them to acquire large amounts of capital. To a large extent, the means used by the guerrillas to obtain these resources have led to clashes with the drug-trafficking gangs.

The confrontation between the drug traffickers and the guerrilla organizations, and in particular the FARC is one of the factors which has most contributed to the worsening, spread and intensity of the violence in Colombia. The first consequence of the conflict unleashed between the drug traffickers and the guerrillas was a wave of atrocious murders.(126)  The drug-trafficking gangs launched a series of selective assassinations targeted against political leaders and activists on the political left and social and trade union leaders. This extended the conflict to the cities and to the civilian population.

In the southern region of the country, where the largest amounts of illicit crops are grown and where virtually the entire peasant population is engaged in this activity, FARC guerrillas have established a broad social base of support and which has also come into conflict with the State security forces. Indeed, since the armed forces are required to destroy the illegal crops and at the same time carry out military operations against FARC columns in order to neutralize them, their work has generated considerable hostility amongst the civilian population which sees these military detachments as forces which are trying to deprive them of their sources of survival. One possible means of offsetting the negative effects of the problem of the illicit crops lies in the "crop replacement programmes". However, these programmes have had only limited success since the traditional agricultural crops do not attract the international prices paid for the raw material used in cocaine and heroine production.

The use of criminal means to obtain economic resources rapidly has become a common practice of the guerrilla organizations. Although for some this implies a loss of their political objectives, it remains true that the use of such methods has become a means of achieving their political goals.(127) 

The Colombian guerrilla movement has abandoned all sense of ethics, on the pretext that the end justifies the means, although the main consequence has been the rapid accumulation of enormous wealth which it has enjoyed. "As a result, the income of the guerrillas rose from 349,000,000 pesos in 1991 to more than 1 billion pesos in 1996, i.e. 0.58 per cent of the GDP. Between 1991-96, income rose to 3.6 billion in 1995, i.e. 5.3 per cent of the GDP."(128) 

"Kidnapping, robbery and extortion by the guerrillas brought them an income of 1.7 billion between 1991 and 1996."(129)  These figures also illustrate another problem, namely the difficulty of convincing the members of the guerrilla movement to lay down their arms, since the criminal activities which they carry out provide them with a lucrative means of survival and an authentic style of life, which is sometimes, in the case of persons who joined the guerrilla movement when they were children, the only one they have known.

The expansion of the guerrilla fronts has also been rapid since 1982. There has also been an increase in fire power, resulting in spiralling violence, a greater number of victims and a broadening of the civilian sectors of society affected. In the same way, the growth of subversion has placed greater pressure on the public forces which have had to work double in combating an enemy which only fights when it is sure of its numerical superiority and which, in general, attacks and then escapes to mountainous and forest regions where it is difficult to pursue. Here it should be noted that the armed forces are also required to allocate a large number of their troops to protecting indispensable infrastructure work and resources, such as bridges, hydroelectric plants, dams, highways, power lines, telecommunication antennae, etc., thus immobilizing their units.

As regards the strategic objective of establishing effective power at the local level, the use of violence against all those who do not support their political project is, if not the only, then at least the preferred tactic of these groups. This violence, which is carried out with the above-mentioned objective, has been used against different social and political organizations, including those related to other guerrilla organizations, against the municipal authorities, represented by mayors and councillors,(130)  employers and workers of commercial and industrial enterprises or those engaged in the building of works of infrastructure, as well as landowners and peasants carrying out agricultural activities.

As regards the first point, the guerrilla organizations have acted against trade union officials and workers, in line with their strategy of acquiring control of labour organizations or preventing them from being influenced by other political views. This can be seen above all in the region of Urabá (Department of Antioquia) where workers and leaders of SINTRAINAGRO ( trade union of banana production workers) have been systematically persecuted by the guerrillas.

Acts of aggression by the FARC and the dispute between the EPL-Caraballo and the "Esperanza, Paz and Libertad" political movement have a long history and have always involved the questions of the armed territorial control of a region, in this case Urabá, and control of labour organizations, in this case the trade union of banana production workers and the community organizations of the populations of the region. The conflict, when set in the above-mentioned context, dates back to the struggle between the FARC and the People's Liberation Army (EPL) before its disbanding and the political agreement concluded with the Colombian State in 1991.

In contrast to the above and as confirmation of the fact that the evolution of the problem in the case if Urabá was not directly related to the worker-employer relations, it should be noted that although there were sometimes periods of tension which were only to be expected given the prevailing situation of violence, the relationship between enterprises and their workers was normal during the period of truce between the guerrillas. "In the end, the agreements resulted in the drafting and signature of 229 different collective labour agreements; at the same time, for the current year, there was a 30 per cent increase in banana production and an increase in banana exports of around 15 per cent."(131) 

In other cases, guerrilla violence has been targeted on workers and employers engaged in the growing of African palm oil, with workers being forced to suspend production under threat or as a result of actual acts of violence. Another particular example concerns the terrorist action perpetrated against the Nare cement factory (in the Department of Antioquia) which resulted in its destruction and subsequent unemployment for tens of workers.

In some cases, trade union members or leaders have been arrested on charges of "rebellion" and terrorism" on the orders of the Procurator-General of the Nation. As already noted, the Office of the Procurator-General of the Nation is a jurisdictional body which is completely independent of the executive. Its judicial decisions, which are handed down autonomously, within the framework of the guarantees of due process, require in the case of an arrest warrant the existence of proof of criminal responsibility.(132) 

The trade union central organizations have clearly stated that trade union organizations are neutral as regards the internal armed conflict and that the purpose of the trade union activities which they carry out is not to collaborate with or contribute to the political objectives of the guerrilla movement but to defend the interests and objectives of the workers.

The guerrilla offensive to improve their strategic position at the local level has also included greater presence and activity in the regions producing a large part of the national wealth.(133)  This has been accompanied by a demonstration of force in the replacement of official local authorities, as for example in the last regional elections, when the rebels issued death threats against the candidates of 23 municipalities in the department of Cundinamarca alone.(134)  Between 1995 and August 1997, the guerrillas, and to a lesser extent the self-defence groups, assassinated two Members of Parliament, a governor, 26 municipal mayors and 141 town council members.(135)  In 1997, 920 election candidates had to withdraw as a result of threats and 121 were kidnapped.(136)  Even so, it is worth noting that despite this wave of violence, the elections took place, with the highest elector participation rate in the history of Colombia.

When they are not attempting to replace the authorities with other power structures, the guerrillas use their strength to bring pressure to bear on decisions taken by local administrations. Thus the guerrillas in the municipalities located in these regions, as part of their strategy for constructing local power bases, pressure the municipalities into diverting funds from the public treasury towards works and programmes proposed by the rebels themselves. With this kind action, they not only increase their local influence and appear to the public as the champions of works in the public interest but contribute to the fragmentation of unity in the state organization, as well as obtain additional financial resources.

With the precise objective of defending the civilian population and democratic institutions, the Colombian State, in accordance with its constitutional and legal obligations, has done everything possible to halt the violence. Even so, and despite some success obtained, the public forces have had to pay a high price. In an ambush against a convoy of the national army in Puerres (department of Nariño) in 1996, 31 soldiers were killed. In an attack on the military base of Patascoy (department of Nariño) carried out by the FARC on 21 December 1997, 11 soldiers were killed and 18 kidnapped. In an attack (1998) by the FARC on the city of Mitú (department of Vaupés) 110 members of the police and the military were killed, as well as ten civilians, and 63 members of the police were kidnapped. In an attack (1998) by the FARC against the municipality of Miraflores (department of Guaviare), the headquarters of the main anti-narcotics base of the national police, from which most of the fumigations of illicit crops were carried out, around 100 persons were killed, most of whom were members of the police and the national army, 150 were injured and 125 uniformed members of the police and the army kidnapped. In an assault by the FARC (1998) against the military base of La Uribe (department of Meta), several members of the security forces were killed or kidnapped. The FARC (1998) destroyed the military base of Las Delicias (department of Caquetá) in an attack which killed many soldiers. In El Billar (department of Caquetá) they also attacked a battalion of the national army, resulting in a large number of deaths. In 1998, more than 500 members of the national police lost their lives in carrying out their duty. At present, 226 soldiers and 184 members of the police are being held by the guerrillas.

The subject of human rights is of vital importance in the development and consequences of the conflict. In a country which is faced with a serious internal armed conflict, members of the public forces may be involved in violations of human rights, despite the reprobation of such conduct by the State. It is also clear that the Colombian State and its institutions can only establish themselves as an alternative to the guerrilla groups and to the search for an easy life through criminal activity if they pursue democracy, defend the legal order, encourage the participation of citizens and promote basic rights, acting as guardians of human rights and the implacable enemies of those who violate such rights.

Although isolated members of the State security forces have committed infringements of human rights, these practices are neither approved or tolerated, since this type of conduct is contrary to the official policy of the Colombian State and, its very principles and nature. However, these ideas would be a dead letter if they were not put into practice through clear policies for the prevention and repression of infringements of human rights which may be committed by State officials, and effective results in terms of the behaviour of its armed institutions. As regards the first point, a clear policy has been established through a number of measures which will be described and analysed in the next two sections of this report. As regards the product of such policy, the significant reduction in the infringement of human rights by the public forces is an indication of what has in fact been achieved.(137) 

The paradoxical aspect of the human rights situation is the contradictory behaviour of the guerrilla forces themselves: "The guerrilla groups have a very ambiguous concept of the subject. They understand the respect of human rights as an obligation incumbent upon the State and see its violation by the public forces as an opportunity which should not be missed to make denunciations to the national and international public opinion, with a view to discrediting their legitimacy and discouraging support. On the other hand, however, they see the violations of human rights which they themselves carry out systematically and frequently as being fully justified, since they are directed towards the achievement of high objectives. In other words, noble ends justify atrocious means."(138) 

In this context, special importance is to be attached to the statement by the United Nations High Commissioner for Human Rights concerning the violation of human rights and international humanitarian law by the guerrilla organizations in Colombia.(139) 

For their part, the self-defence groups are no less redoubtable an enemy for the Colombian State. Their main strategy consists of imposing states of terror, resulting in the forced displacement of the population, through the carrying out of massacres or threats to do so. Since the civilian population in the regions where the guerrillas are active must, out of fear or self-interest, collaborate with the guerrillas, the United Self-Defence Groups of Colombia (AUC), in an attempt to undermine support from the population, has sought to create an even greater sense of fear or threat to their survival. Thus, for the self-defence groups any person suspected of helping the guerrillas must be assassinated.(140)  These groups are therefore one of the main sources of human rights violations in Colombia.

With these methods the self-defence groups are trying to: (a) forcibly displace the civilian population and deprive the guerrillas of their sources of logistical support and information; (b) force the guerrillas to engage in open combat to avoid attacks against the civilian population; (c) to gain the support of sectors of the civilian population for their cause, by setting it against the guerrillas under the threat of greater violence or enticing it with various means.

Within this process military clashes between the self-defence groups and the FARC in 1998 spread throughout the departments of El Chocó and Córdoba and, between the ELN and the self-defence groups in the south of the department of Bolívar. In all cases the civilian peasant and indigenous populations suffered the most.

Caught between the crossfire, the civilian population has been forced to migrate to areas not affected by the armed conflict or to the cities.

The self-defence groups have also committed attacks or engaged in combat against the armed forces and other state authorities and thus become another source of violence to which the attention and resources of the public forces and their units must be directed. Mention can be made of the following examples:

In the place known as La Rochela the self-defence groups ambushed a judicial commission, killing all its members, judges and members of the judicial police. In the department of El Meta, in October 1997, they attacked the members of another committee of inquiry, assassinating 11 persons including prosecutors, officials of the Judicial Research Technical Body (CTI) of the Office of the Procurator-General, officials of the Administrative Security Department (DAS) and officers of the national army. In the municipality of Villanueva (department of Guajira) the self-defence groups attacked members of the national police.(141)  In San Diego (department of Cesar) clashes occurred between the army and a command unit of the Peasant Self-Defence Organizations of Córdoba and Urabá (ACCU), which resulted in the capture of two delinquents and one death.(142) 

Tens of members of the self-defence groups have been arrested on the orders of the Office of the Procurator-General of the Nation. The repressive action by the State against the self-defence groups has also achieved significant results, including the capture of 120 members of the self-defence groups in 1998, out of a total of 248 members of the self-defence groups currently in prison.(143)  In the same way, persons suspected of being involved in the organization and command of the self-defence groups, such as Victor Carranza, have been captured and have been brought before the criminal courts.

The connection between the self-defence groups and the drug traffickers, who are both engaged in a process of accumulating productive land, is a further problem. "What is problematic in all this process is the fact that the system of buying and controlling land is linked with the intense violence of paramilitary activity, in which attacks against the civilian population are used as a means of forcing out the guerrillas."(144)  This problem is made even more difficult to resolve by the enormous economic capacity of the drug traffickers to acquire and maintain arms.

The action of the self-defence groups and the drug-trafficking gangs is a further element which threatens the authority of the State and the national legal order, as well as the essential principles of the social State based on the rule of law, all of which is negated by the practices of the self-defence groups. The self-defence groups and the drug-trafficking gangs pursue a political programme which is also a programme of regional power that is not only different from but contrary to that promoted by the Colombian State, and thus their activities are contrary to the stability and functioning of the national institutions.

"The enormous capital which organized crime reaps from the drug industry has become the main source of violence, corruption and social deterioration, and is a major obstacle to development."(145) 

Within the development of the conflict, "truth" is one of the first victims. Controlling information, manipulating it and bringing it into line with immediate political objectives are practices frequently used to gain the upper hand, to slander adversaries and to conceal or deflect responsibilities. In this connection mention can be made of the following flagrant examples:

The murder of Elsa Alvarado and Mario Calderón, employees of a non-governmental organization (NGO), whose various functions include the monitoring of human rights in Colombia. In this case, the assassination of Alvarado and Calderón was presented to public opinion and the mass media as a crime against the defenders of human rights. In fact, both were working on projects dealing with the protection of the environment on behalf of the NGO to which they were attached.

The assassination of Eduardo Umaña Mendoza, a criminal law specialist, who was known in the country as a human rights activist and a defending counsel in criminal cases. His death was categorically presented outside the country as the result of his participation as counsel for the defence of a number of members of the Workers' Trade Union (USO) being investigated by the Office of the Procurator-General of the Nation on charges of participating in terrorist attacks. However, no evidence has been given or exists in support of such a conclusion.

The assassination, noted earlier, of María Arango Fonnegra, which was seen as the work of self-defence groups on the far right, because of her links with the political left and the popular movement, was, as noted earlier, the result of an ordinary crime.

In the massacre at Machuca (department of Antioquia) on 18 October 1998, the National Liberation Army (ELN) blew up a stretch of the pipeline on the outskirts of this town, as a result of which a total of 72 civilians were burned to death, and several dozen were seriously burned, when the spilt fuel caught fire. The ELN leaders accused the National Army of having set the oil on fire, so as to be able to accuse the ELN of carrying out an attack against the civilian population. It was only several days later, when they were no longer able to deny their responsibility for the events, that the ELN leaders recognized that the fire and the death of civilians were due to a "lack of foresight" on the part of the guerrillas who had carried out the terrorist attack.

As has been pointed out on different occasions, the death threats and violations of the human rights of members of trade union organizations are not a result of their trade union activity, but their participation in militant political activities. Thus for example several trade union leaders have been given protection under the protection programme established for the Patriotic Union (UP), not only because of their status as trade unionists, but because they are members of the UP or even other groups on the political left. This is the case with Wilson Borja, president of FENALTRASE, member of the UP, and Jesús González, head of the human rights secretariat of the Single Central Organization of Workers (CUT) (and who is not a member of the UP). Under this programme, which is intended to protect members of the UP, and which has also helped to protect members of other political groups, persons who have been threatened may freely choose persons to act as their bodyguards, who are trained and armed by the State, which also provides official vehicles and pays for their wages.

The problem of violence and the evolution of the armed conflict have also had an effect on the functioning of institutions, and in particular, the administration of justice, resulting in congestion and thus increasing the possibility of crimes going unpunished. Each criminal judge is allocated an average of 442.8 new criminal cases a year. However in 1997 alone a total of 402,952 new criminal cases were initiated.(146)  This increase in new cases is greater than the number of criminal cases which are actually dealt with and, which, although high, is at all events too low given the large number of cases which enter the system, as well as those pending from previous years. This can be seen from the fact that the annual average number of cases concluded per penal judge is 385.35.(147) 

The task of administering justice in a rapid and effective manner by the courts has also been affected by the use of violence against judicial officials. In addition to the above-mentioned attacks by self-defence groups, the drug-trafficking groups and guerrillas have also assassinated officials of the judiciary. In the period 1979-1991, a total of 515 officials of the judiciary were victims of acts of violence, including 278 murders.(148)  As a result of this situation, the carrying out of judicial inquiries in regions controlled by the guerrillas and self-defence groups is extremely difficult.

However, as one of the positive signs in the development of the internal armed conflict, it is symptomatic that the municipalities with a higher rate of participation in the democratic electoral process are those which have the lowest rates of violence, whereas those municipalities in which there is a presence of some illegal armed group (guerrillas, self-defence groups, drug traffickers) have the highest rates of violence.(149)  The moral is clear: there is a need for more democracy and civilian participation and less interference by armed groups which claim to represent the interests and aspirations of the population.

In concluding this section, it should be pointed out that in accordance with the characteristics of the violence described above, and in particular those forms of violence carried out by members of the public forces acting outside the framework of the law and in association with self-defence groups, and the crimes committed by the self-defence groups themselves and the guerrilla organizations against the civilian population, all these acts are infringements of international humanitarian law the examination of which, within the framework of the international community, falls within the competence of the international bodies established by international law. Thus as noted earlier, Colombia, as a state party to the main international instruments regarding human rights and international humanitarian law, provides an adequate response, within the framework of the bodies established for such purposes by conventions or otherwise, to representations made to it, and presents the reports due in respect of its international obligations in this sphere.

State activity in the face of violence

The protection of human rights and international humanitarian law are crucial elements in the policy of the Colombian State, the importance and seriousness of which are neither disregarded nor given mere lip-service. This was made perfectly clear by the President of the Republic, Andrés Pastrana, in his presentation of the "Agenda for the protection of human rights" in Colombia: "The Colombian State recognizes the serious and grave nature of the human rights situation and I say this as President of the Republic in my capacity as representative of the State and the popular will." The second highest-ranking official of the Colombian State, the Vice-President of the Republic, Gustavo Bell, has thus been entrusted with coordinating the efforts made by the various state bodies with a view to protecting human rights and giving all the necessary collaboration to the Human Rights Unit of the Office of the Procurator-General of the Nation. For the same reasons, the present Government has continued the process of adopting measures to protect the basic rights of the Colombian population, within a state policy which had already established important guidelines.

The Political Constitution issued in 1991 established the Office of the Ombudsman, a body which is autonomous in administrative and financial terms, and the functions of which are to protect the rights of citizens. The Office of the Ombudsman, through its office responsible for the protection of human rights, maintains a permanent presence in the most crucial areas of conflict, receives denunciations concerning violations of basic rights and carries out the necessary inquiries for the adoption of the appropriate political or legal measures.

One of the main objectives of the 1991 constitutional reform was to modify the structure and functioning of the administration of justice, within a policy primarily directed at improving efficiency and fighting impunity. The changes introduced by the 1991 Constitution include the establishment of the Constitutional Court, the creation of the Superior Council of the Judicature and the organization of the Office of the Procurator-General of the Nation, as well as recognition of the indigenous jurisdiction. At the same time expenditure on justice increased during the following six years by 49 per cent.(150) 

The Political Constitution of 1991 established the concept of protection under the Constitution as an extraordinary and expeditious legal means of providing citizens with an effective instrument for the protection of their basic rights.

Since 1990 the national police has undergone a thorough process of review and restructuring, aimed at excluding from the institution any members with a record of involvement in cases of human rights violations or corruption. Under the programme for the restructuring of the police force, 8,500 uniformed members were dismissed from the institution in the last three years. These measures were considered necessary to re-establish public confidence in the police, an essential prerequisite if the police forces were to be able to carry out fully their responsibilities for the protection of citizens' rights. In general, the results achieved over a number of years have been very satisfactory, as can be seen in various indicators, such as for example the significant reduction in the number of denunciations of human rights violations perpetrated by members of the police and the repeated expressions of international support for the success of the Colombian police in combating crime. Also in recent years there has been an increase in the size of the police force, which at 103,000 members is equivalent to that of the United States, a country with a much higher population.

One of the strategies used to combat the violence consists of the elimination of the economic sources which have financed the activities of those who practice it. This was the purpose of Act No. 333 of 1996, which provided the authorities with an effective legal instrument for cancelling the ownership of unlawfully acquired property.(151)  At present the Office of the Procurator-General of the Nation has before it 123 cases involving the cancellation of unlawfully acquired property, and in respect of which assets of a value of 364,000 million pesos have been confiscated.(152) 

The nation has fully committed itself to the policy being developed to strengthen justice, with a view to combating impunity, restoring the authority of the State, protecting the lives, property and basic rights of its citizens. Colombia is the Andean country with the highest number of magistrates in the region, 4,800, followed by Venezuela which has 1,272; it has the highest number of jurisdictional units in the region, 3,259, far ahead of Venezuela, the second country in the region, with 1,270; and the greatest territorial distribution in its judicial system, with 33 circumscriptions, compared with 25 in Peru, the country with the second highest number in the region; Colombia has invested most in its legal system, 425,865,029 dollars in 1998, almost twice that of the second-ranking country in the region and has the highest per capita judicial budget indicator in the Andean region, 35.7, well above that of the second-ranking State, Venezuela, with an indicator of 10.7.(153)  Colombia has invested 1.25 per cent of its GDP in the justice sector, the highest index in the last 27 years, with the very recent exceptions of 1994 and 1995.(154) 

An empirical evaluation of the work carried out by the judicial authorities against organized crime shows that significant progress has been made. Thus between 1992 and 1995 a study of the judicial proceedings undertaken revealed that 120 groups involved in organized crime had been dismantled and all their members captured. These included bands of ordinary criminals, but also a large number of self-defence groups, militia and hired assassins.(155) 

The main groups in the country engaged in drug trafficking, some of which are involved in the financing and organization of self-defence groups, were thrown into disarray with the capture or death of their leaders and main members. These groups include the gangs of Pablo Escobar (dead), Carlos Ledher (imprisoned), Gonzalo Rodríguez Gacha (dead), the Rodríguez Orejuela brothers (imprisoned), José Santacruz (dead), Nelson Urrego (captured), Reinaldo Murcia (captured).

The great efforts made to improve the functioning of the administration of justice have enabled progress to be made, as can be seen from the main management indicators. In 1998 Colombia had one judge per 12,305 inhabitants.(156)  Between 1992 and 1995 7,012 sentences were handed down in cases involving terrorism, homicide, massacres, drug trafficking, insurrection and other serious offences by organized crime.(157)  Similarly, in 1997 the military criminal courts handed down 822 sentences against members of the armed forces for various offences.(158)  In 1998 other measures were taken such as the condemnation by the military criminal courts of two officials and two subofficials who participated in the death of 13 persons in Riofrio (Department of El Valle). The national Government also decided to set up a Special Committee for the Promotion of Human Rights Investigations, which operates at the highest level of the public administration and provides an additional means of action against crime.(159) 

The Office of the Procurator-General of the Nation set up a Human Rights Unit consisting of a specialized group of highly qualified investigators, provided with all the economic resources indispensable for carrying out their work, to deal with the most problematic cases of violence. At present the Human Rights Unit has before it 864 cases and has managed to capture 259 accused persons. Of the persons who have been captured and against whom proceedings have been taken by the Office of the Procurator-General there are a total of 120 members of self-defence organizations and 90 guerrillas (1998),(160)  and 248 persons suspected of being members of self-defence organizations have been arrested.(161)  The successful action of the Office of the Procurator-General includes the capture and prosecution of the alleged heads of the self-defence groups. Between September 1997 and February 1998, 29 members of the self-defence groups were killed by the public forces.(162) 

In 1998 extradition was re-established within the Colombian legal system which means that persons committing crimes outside the country can no longer seek refuge within the national frontiers. This measure affects the heads of the drug- trafficking groups, who are among the main protagonists of the violence affecting the country.

The investigation of crimes against defenders of human rights has been given special attention by the Colombian authorities. In this respect, the Office of the Procurator-General of the Nation has achieved positive results in its examination of all the cases, leading to the capture of the main co-participants in the five crimes. These include the murders of Eduardo Umaña Mendoza (arrests made), Jesús María Valle Jaramillo (five persons arrested). To these must be added the cases of the above-mentioned murders of María Arango Fonegra (four persons arrested); and Elsa Alvarado and Mario Calderón (five persons arrested).

Important results were achieved in 1998 in the fight against crime. A total of 6,298 persons were arrested on charges of murder, 14,281 persons were arrested by the Committee on Offences involving Physical Injury; 217 persons who had been abducted were freed by the national police, the highest number of cases involving the freeing of kidnapped persons in the history of the country; 386 kidnappers were captured; stolen property worth 550,000 million pesos was recovered.(163)  The measures taken to combat the production of and trade in illicit drugs, the main source of violence in the country, include the destruction of a total of 63,140 hectares of illicit coca and poppy crops; the confiscation of 55 ton of cocaine, 39 ton of marijuana, 350 kilos of heroin and morphine; the destruction of 190 laboratories used for processing drugs; the capture of 1,364 persons accused of drug trafficking; the confiscation of 1,127 tonnes of solid chemical substances and 1,866,257 liquid gallons used for the processing of drugs.(164) 

The national Government decided to dismantle and dissolve brigade XX of the national army responsible for military intelligence, following suspicion that some of its members had participated in human rights violations and subversive activities against the legitimately established Government.(165)  Although there is no conclusive judicial evidence on the criminal activities of certain members of the brigade, the national Government acted decisively since it was not prepared to tolerate even any suspicion about a unit of the armed forces.

As regards the alleged relationship between members of the public forces and illegal self-defence or private "justice" groups, the Government has been clear and transparent in recognizing that these are isolated incidents and have in no way been an expression of state policy, and that such cases are at all events punished with the full force of the law. As regards this matter, which is of essential importance for the Colombian State and the international community, it is essential to bear in mind the report of the Office of the United Nations High Commissioner for Human Rights, which is the international body responsible for examining infringements of human rights and international humanitarian law. The conclusions of the above-mentioned report, state that the collaboration or acquiescence of members of the public forces in activities carried out by private justice groups has been of an occasional nature.(166) 

Similarly, a Human Rights Office has been established within the Ministry of National Defence with responsibility for prevention policy and the promotion of a culture of respect of human rights within the military institution. The Human Rights Manual for Members of the Military Forces is an obligatory study text in the military academies.

The national Government has decided to undertake a reform of the Military Penal Code under which cases of infringement of international humanitarian law or human rights by members of the military or the police will be excluded from the competence of the military criminal courts and transferred to the ordinary courts. Although the infringements of human rights committed by members of the public forces occupy a secondary place in general statistics.(167)  the purpose of the reform of the Military Penal Code is to give total transparency to criminal proceedings under way against members of the armed forces by eliminating all possible suspicion of any favouritism which they might receive in sentences handed down by the military authorities.(168)  However, the proposed reform will to a large extent constitute a recognition of the legal texts of jurisprudence and judicial decisions that, in a healthy interpretation of law and the Constitution, have been handed down by magistrates.(169)  These legal decisions have stated that crimes against humanity may not be considered as having been carried out in the exercise of duty or pursuant to functions of an inherently military kind which as such would benefit from military protection.

In accordance with the above-mentioned legislative changes, effective steps have also been taken to amend ordinary penal legislation, with a view to strengthening the existing legal instruments and fully incorporating standards on human rights and humanitarian international law into the internal legal system.(170)  In this respect, on the initiative of the Procurator-General of the Nation, an integrated draft text of the Penal Code was presented to the Congress of the Republic, the revision and discussion of which have made rapid progress in Parliament.

The penal legislation in force provides sanctions for various infringements of human rights or international humanitarian law according to a classification of kinds of criminal offences within the penal statute.(171)  The new draft text introduces a systematic classification which includes specific and heavier sanctions for these and other violations and expressly recognizes the relevance of human rights and international humanitarian law to the Colombian penal system. This importance had already been established by the Constitutional Court, for example when it ruled that human rights as enshrined in international treaties signed by the Colombian State were the essential yardstick to the constitutional interpretation of the legal order.(172) 

The reforms proposed by the draft text of the Penal Code include the creation, as autonomous and special concepts, of the offences of "forced disappearance" (section 161),(173)  "genocide" (section 100), "advocacy of genocide" (section 101), "murder of a protected person" (section 135),(174)  "assault of a protected person" (section 136), "torture of a protected person" (section 137), "use of unlawful means and methods of war" (section 138), "acts of perfidy" (section 139),(175)  "acts of terrorism" (section 140), "acts of barbarity" (section 141), "inhuman and degrading treatment and biological experiments on a protected person" (section 142), "acts of racial discrimination" (section 143), "taking of hostages" (section 144), "illegal detention and prevention of due process" (section 145), "involuntary support of an act of war" (section 146), "plundering on the field of battle" (section 147), "failure to provide measures of support and humanitarian assistance" (section 148), "hindering of health and humanitarian measures" (section 149), "destruction and seizing of protected goods" (section 150), "destruction of property and equipment used for health purposes" (section 151), "destruction or unlawful use of cultural goods and places of worship" (section 152), "attack against plant and installations containing dangerous sources of power" (section 153), "acts of reprisal" (section 154),(176)  "deportation, expulsion, transfer or forced displacement of the civilian population" (section 155), "attacks against subsistence and acts of devastation" (section 156), "failure to adopt measures to protect the civilian population" (section 157),(177)  "unlawful recruitment" (section 158), "exaction or arbitrary contributions" (section 159), "destruction of the environment" (section 160) as well as an increase in the sanctions applicable to the crime of "torture" (section 173).(178) 

Pursuant to the above, the national Government signed on 10 December 1998 the Statute of the International Criminal Court.

As can be seen from this report, both international humanitarian law and international law respecting human rights, as well as their principles and concepts, have been at the heart of the entire strategy for achieving an immediate reduction of the violence affecting Colombia, as a preliminary stage to the humanization of the conflict, which is an indispensable step to the achievement of more comprehensive agreements for the total elimination of the internal armed conflict. This is also the purpose of the incorporation of standards of international humanitarian law into the Colombian Penal Code, but at the same time the matter has also been raised in conversations with several of the armed groups participating in the internal conflict.

The Colombian State has set up a system for protecting threatened persons which involves several state agencies. The protection of the life, integrity and freedom of persons in situations posing a risk of human rights violations is also a matter of crucial importance if the rights of the civilian population are to be not only established on paper, but guaranteed in an effective manner. The protection of the population and, within the population, of those persons or social groups in situations of risk, is provided by various state agencies.

In particular, the Administrative Security Department (DAS) provides personal protection to threatened persons or persons who are potential targets of terrorist action. However, this is a relatively difficult task, given the large number of vulnerable persons and groups directly threatened with death or other reprisals by armed groups,(179)  a situation which is further compounded by the limited economic and staff resources of state bodies. All this has resulted in the strengthening of special projects, with priority being given to the most vulnerable groups, such as the programme for protecting defenders of human rights in the country, under which special powers were given to the Special Administrative Unit for Human Rights of the Ministry of the Interior, since these persons are one of the highest risk groups in Colombia.(180)  The programme which covers different threatened persons, includes, according to the respective security studies, the provision of escorts, vehicles, bulletproof jackets, security training courses, television cameras, the cost of transfer to other cities, communication equipment, arms, economic assistance for personal maintenance, installation of security alarms and doors, etc.(181) 

The Human Rights Unit of the Ministry of the Interior has also established a programme for protecting political leaders, many of whom are also trade union leaders. These include the special protection programmes for Nelson Berrío, an official of the Workers' Trade Union (USO); Hector Fajardo, leader of the CUT; Tarcisio Mora, a leader of the Colombian Federation of Teachers (FECODE); Jesús Bernal, an official of SINTRACREDITARIO; Wilson Borja, a leader of FENALTRASE; Domingo Tovar, an official of the CUT.(182) 

However, measures taken to protect threatened persons are pointless without their own collaboration. This was unfortunately and clearly demonstrated in the assassination of the vice-president of the Single Central Organization of Workers (CUT), Jorge Ortega, who a few days before his death had refused the personal protection services offered to him by the State.(183) 

The Inter-Institutional Commission on Workers' Human Rights, set up by Decrees Nos. 1413 of 1997 and 465 of 1998, is another of the mechanisms established by the Colombian State to monitor human rights and deal with acts of violence. The Commission is made up on a participatory basis of state agencies and representatives of the organizations of civil society. Members of the Commission include the Minister of Labour, the Minister of the Interior, the Minister of Justice, the Minister of Defence, the Presidential Adviser for Social Policy, the Presidential Adviser for Human Rights, the Presidential Adviser for Displaced Persons, as well as representatives of non-governmental organizations (NGOs): five representatives of the worker central organizations, the President of the Episcopal Conference, the President of the José Alvear Restrepo College of Lawyers, the Director of the Colombian Commission of Jurists, the Procurator-General of the Nation and the Ombudsman.(184)  The Commission has a detailed workplan which is carried out collectively with state agencies, trade union organizations, and the non-governmental human rights bodies which make up the Commission.

The search for a negotiated solution to the armed conflict

For all the social and political forces of the nation, as represented in the State and civil society, the conclusion of a political agreement with the authors of the violence, and in particular with the guerrillas, is a priority objective in the search for peace. The possibility of achieving a lasting peace agreement, through negotiations with the subversive armed groups, would put an end to the internal armed conflict which is bleeding the country.

The ending of the internal armed conflict would have a number of favourable implications for a new and constructive development of the nation; the enormous resources which at present have to be invested in security and other activities relating to the defence of society and institutions could be used to generate employment and social well-being; a number of essential rights would be fully restored, which are necessary conditions for the development of society but which have been adversely affected by the process of the internal conflict.

If the internal armed conflict were ended by way of political negotiations an immediate repercussion would be that a series of supervisory functions and proactive, direct and indirect functions, would come into play, all of which are positive. With respect to the supervisory functions, which are of a direct nature as they relate to the occurrence and origin of the conflict, we should mention the end of the acts of violence which have seriously affected the rights to life, personal freedom, personal safety, the population's free choice of where to live, etc. The sphere of supervisory functions of an indirect nature, given their connection with the origins of the armed conflict, would cover such rights as freedom of association and trade union rights, free enterprise, etc. Among the proactive functions we should mention the creation of an environment of tranquillity and safety to attract investment and generate work and wealth.

In specific areas relating to social rights, such as freedom of association and trade union rights, which have attracted the interest of the International Labour Organization, and have been indirectly affected by the internal armed conflict, political negotiations with the perpetrators of the violence should efficiently eliminate the original, real factors which led to the violence.

Peace is then a way of generating the appropriate conditions for the population to be able fully to exercise all their social, economic and political rights where, in turn, the fulfilment of such rights constitutes the fundamental objective to be achieved by the State and civil society. Even if, in order to create the conditions for peace, which are seen as a way of consolidating the population's rights as citizens, the State has not renounced the monopoly of force, nor the duty to protect that it must provide an instrument, is currently under political negotiation with the armed insurgents that will not only help to develop these conditions but which is also a mechanism that can save lives, suffering, property, financial resources and time in conflict settlement.

The option of conducting political negotiations with armed groups situated on the fringes of the law is not unknown in the country's history, nor unrealistic in ideological or political terms. In Colombia's recent history, the State has successfully conducted a number of political negotiation processes with guerrilla groups, the principal effect of which was to reduce violence and its negative consequences, at the same time as creating better living conditions for the population. These peace processes led to the demobilization of certain guerrilla groups such as the 19th of April Movement (M-19) and the Popular Liberation Army (EPL), with only relatively minority dissident factions not laying down their arms; the Socialist Renewal Current (CRS), the Workers' Revolutionary Party (PRT) and the "Quintín Lame" group, whose constituents all came over to the side of the law.

The President of the Republic, Andrés Pastrana, established and is personally leading a peace process that the country is aware of and fully supports, as well as the strategy developed to apply it. This policy made provision for a political solution to the armed conflict based on negotiations with the insurgent movements as well as the adoption of substantive reforms of a political, economic and social nature.

The President said during the campaign period: "I am basing myself on the fact that what the guerrilla forces want to see is a change in the country's political and economic structures, the principal features of which can be found in the agendas for reconciliation that the insurgent groups made known some time ago. These agendas relate to substantive aspects which can and should be addressed by the Government during negotiations, which makes the war even more senseless. Negotiation would not only put an end to the confrontation, but it would guarantee that by way of broad agreement on a new plan for the country the basis for true reconciliation among Colombians would be put into place".(185) 

On the same occasion, the now President of the Republic was emphatic in saying that "peace must be the product of the meeting of the whole of Colombian society, which is why its definitive agenda must be the product of its active participation. Society at present is not only demanding an end to the confrontation, but is expressing its views on the new country the Colombians would like to see. Both expressions should represent an inescapable mandate for the parties to the conflict. These demands by civil society impose a new approach to negotiation which is not just limited to considering the subjects for discussion defined by the parties, but implies the creation of a broad, representative and plural space so that the peace agenda and its negotiation can be the result of democratic opinions. From this standpoint the participants should be the national Government and the leading members of the guerrilla movements, hopefully with a unified mandate, with the active involvement of civil society".

The current administration's peace policy is based on these convictions and all the decisions that have been made, both of a substantive and of a procedural nature, are intended to facilitate this process.

In the Government's view the peace process should begin and political negotiations should transcend the insurgency as it is an inescapable and unconditional duty of the State as a whole to overcome the objective conditions that caused it.

Overcoming poverty, achieving social justice and promoting and stimulating human rights are an essential part of the current peace policy. This is why the President of the Republic decided that the "national development plan" would be a plan for peace and why he proceeded to establish 'Plan Colombia', first announced during his inauguration as President. Through 'Plan Colombia' programmes and projects will be implemented which are designed to redress the economic and social situation in the country's most depressed areas.(186) 

'Plan Colombia' is designed in such a way that all Colombians can participate in decisions concerning its application, including the members of the insurgent forces, for the President of the Republic was serious when he said "I accept with realism that I will negotiate with insurgent forces which have stated their decision to be joint protagonists in rebuilding the nation". 'Plan Colombia' is coordinated by the High Commissioner for Peace, Víctor G. Ricardo.

The Government has worked hard to obtain the necessary resources to finance 'Plan Colombia'. Together with the contribution provided in the national budget, so-called "peace bonds" have already been established, a tax contribution by members of society who have greater financial capabilities, and further mechanisms are being set up to obtain other voluntary contributions from the private sector. Likewise, a widespread foreign operation is under way, as part of this Government's diplomatic efforts in pursuit of peace, to obtain resources through international cooperation. Definite and encouraging commitments have already been made in this respect by friendly countries and the multilateral bank.

The government operation also involved setting the scene for political negotiations with the insurgent forces. As the President said "the time has come to take the agenda of the guerrilla forces seriously as a condition to ending the stalemate of mutual distrust". The Head of State had previously said that "when the substantive agendas for reconciliation that were submitted by the insurgent movements were examined, particularly the platform for reconciliation consisting of ten points from the FARC and of 12 points from the ELN, it was easy to see that all the issues they contain are negotiable".

The President also noted that "the process should reconcile the urgent need to end the armed confrontation with the need to exhaust a full agenda for lasting peace, the fulfilment of which involves the whole nation, including the insurgent organizations. The first step in this respect must be to overcome the procedural difficulties which are the only ones standing in the way of dialogue".

As demonstrated above, the commitment of the Head of the State of Colombia, President Andrés Pastrana, to the peace and reconciliation policy was total, and this was widely recognized by public opinion.(187) 

His peace policy is unreservedly supported by all the country's political and social forces, including the opposition political parties, the associations of trade and industry, the trade unions and the non-governmental organizations (NGOs).

When he was a candidate to the first magistracy, in an action which demonstrated his open and public commitment to peace, President Andrés Pastrana met personally with Manuel Marulanda Vélez and members of the FARC staff to agree to the terms of the peace talks.(188) 

Since August 1998, when he was inaugurated as President of the Republic, the Government of Andrés Pastrana, as a clear demonstration of this will to seek a negotiated peace agreement, authorized the clearance of five of the country's municipalities covering a total area of 43,000 km2 in order to establish an "area of détente". This "area of détente", to be in force between 7 November 1998 and 7 February 1999, was created in order to provide an appropriate setting to begin negotiations and to offer security guarantees to FARC leaders, and implied the withdrawal of all the military forces and national police from the specified area.

In addition to the establishment of the "area of détente", the political nature of the FARC and the ELN was also recognized. President Andrés Pastrana endorsed a meeting of members of civilian society and some non-governmental state agencies with delegates from the National Liberation Army (ELN) in Mainz (Germany) to begin talks with this guerrilla organization. It then also authorized, with the approval of the Attorney-General of the Nation, the temporary release from prison of ELN leaders for the purpose of holding a meeting with the guerrilla group at a place chosen by the leadership of the subversive organization, in order to advance in the process of dialogue.(189)  The Government of President Andrés Pastrana not only agreed to, but also clearly supported, the holding of a "National Convention" on Colombian territory organized by the ELN with the participation of state representatives and members of civilian society, the latter selected by the ELN, where the peace talks will take place. The Government also recognized three members of the FARC as representatives of this organization to the peace talks, after having