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ILO / 332nd Report of the Committee on Freedom of Association INTERNATIONAL LABOUR OFFICE CASE NO. 2258 Complaints against the Government of Cuba presented
by Allegations: The authorities recognize only one trade union central controlled by the State and the Communist Party and prohibit independent trade unions, which have to carry out their activities in a very hostile environment; non-existence of collective bargaining; the law does not authorize the right to strike; arrest and harassment of trade union members, who are threatened with criminal penalties, physical violence; unlawful house entry; trials and sentencing of trade union officials to long prison terms; confiscation of trade union property and infiltration of state agents into the independent trade union movement 458. The complaints in the present case are contained in communications from the International Confederation of Free Trade Unions (ICFTU) (15 April 2003) and the Latin American Central of Workers (CLAT) (28 April 2003). The World Confederation of Labour (WCL) supported the complaint of CLAT in a communication dated 9 May 2003. The Government sent its observations in communications dated 16 May and 6 June 2003. 125 459. Cuba has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A. The complainants' allegations 460. In its communication of 15 April 2003, the International Confederation of Free Trade Unions (ICFTU) states that the Cuban authorities only recognize one trade union central, the Central Organization of Cuban Trade Unions (CTC), which is under the strict control of the State and the Communist Party, which appoints its leaders. The Government prohibits independent trade unions. Collective bargaining does not exist. The right to strike is not authorized by law and practically does not exist. The Government has not fulfilled any of its promises to reform the Labour Code. In reality, there are a number of independent trade unions, which carry out their activities in a very hostile environment. Workers who try to join these trade unions are persecuted and can lose their jobs. 461. The ICFTU, looking back over what has happened with the independent trade unions, describes events that have taken place and that have harshly affected the activity of these trade unions with an escalation in arrests and harassment of those involved in "counter-revolutionary" activities since 2001. 462. In 2001, the following events took place: – On 12 April, Lázaro García Farra, a trade union member of CONIC,
who is currently in prison, was brutally assaulted by prison guards.
463. In 2002, the following events took place: 464. With regard to 2003, according to ICFTU sources, on 18 March, in the television programme "Round Table" transmitted by Cuban television, the main speaker, Ricardo Alarcón de Quesada, President of the National Assembly of People's Power (the Cuban Parliament) stated that "the counter-revolutionaries would be judged in accordance with Law No. 88, which relates to the protection of the national independence and economy of the Republic of Cuba, and the Criminal Code in force, which is Law No. 62". A police operation, already organized against the political opposition, came into effect immediately following the programme and 40 people opposing the regime were arrested by state security agents. These detentions, now amounting to some 78 members, took place as a result of government accusations of treason and conspiracy with the United States Interests Section in Havana. The official government statement said that "they have been arrested by the relevant authorities and will be brought before the courts". As well as the detentions that took place, all the books in the trade union library of CUTC were confiscated as was a computer, two fax machines, three typewriters and considerable documentation belonging to the trade union. 465. According to the ICFTU, among the detained were the
following: (2) Iván Hernández Carillo, member of the National Executive Committee
of CONIC, beaten and handcuffed to an iron grill. There is a prosecution
request for 25 years' imprisonment that has still not been confirmed.
He was transferred to the state security provincial headquarters
in the province of Matanzas, where he is being held in solitary
confinement. (4) Miguel Galván, another Deputy Director of the Training Centre,
who was also detained, has been sentenced to 20 years' imprisonment.
466. Furthermore, the ICFTU points out that Aleida de las Mercedes Godines, Secretary-General of CONIC, and Alicia Zamora Labrada, Director of the Trade Union Press Agency Lux Info Press, were two state security agents who were infiltrated into the independent trade union movement. They were identified by the Cuban Government itself in a public ruling against the dissidents. According to information received, Ms. Godines had been infiltrated into the independent trade union movement 13 years ago. She communicated on a number of occasions with both ORIT, the Inter-American Regional Organization of Workers of the ICFTU, and with the ICFTU to request persistently that CONIC be affiliated to both organizations. The ICFTU attaches a press clipping (Granma of 11 April 2003). 467. In its communication of 28 April 2003, the Latin American Central of Workers (CLAT) states that Pedro Pablo Alvarez, Secretary-General of CUTC and trade union members Oscar Espinosa Chepe and Carmelo Díaz Fernández, were detained and have been sentenced to 25, 20 and 15 years' imprisonment, respectively, for having expressed openly, publicly and democratically their opinions, in legitimate use of their rights as workers and trade union officials, which shows, once again, the lack of trade union freedom in Cuba. The charges laid against the abovementioned trade union officials do not relate to reality (as is the case, for example, of their receiving funding from a certain country), nor are they, in general, criminal issues; they are arguments that hide a clear political intention, and in no way do they conflict with the responsibility of trade union officials in a free and democratic society. Furthermore, the repressive attitude of the Government of Cuba against CUTC and its officials is nothing new. 468. CLAT also refers to the complaint presented by the World Confederation of Labour (WCL) on 26 March 1998 in Case No. 1961, which has already been examined by the Committee on Freedom of Association. 469. In its communication of 9 May 2003, the WCL supports the claim presented by CLAT on 28 April 2003. The WCL highlights that a number of trade union officials belonging to CUTC, among whom was Pedro Pablo Alvarez, Secretary-General of CUTC, were wrongly detained and sentenced to a number of years in prison. The sentences applied to Pedro Pablo Alvarez, Oscar Espinosa Chepe and Carmelo Díaz Fernández, were for 25, 20 and 15 years' imprisonment, respectively. Added to this is the confiscation of trade union materials found in the CUTC library. Harassment against members of CUTC, according to the WCL, is not a recent event. In Case No. 1961, already examined by the Committee on Freedom of Association, there is abundant proof of this and of the arbitrary behaviour of the Government of Cuba against an independent trade union organization such as CUTC. B. The Government's reply 470. In its communication of 16 May 2003, the Government states that legislation in force and daily practice in all centres of labour activity in Cuba guarantee the full exercise of trade union activity and the widest enjoyment of the right of freedom of association. This is confirmed by the existence of 19 national trade unions, 5,426 trade union offices with 50,356 territorial trade union officials and 109,522 grass-roots trade union branches with 714,593 trade union officials. 471. The existence of one trade union central has not been imposed by the Government, nor does it relate to any provision that has not been approved by the sovereign will of Cuban workers. The fight for unity in the trade union movement in Cuba has a long and respected tradition which dates back to the nineteenth century and which was strengthened in the difficult and bloody days of workers' demands in the first-half of the twentieth century. In 1938 – long before the triumph of the Cuban revolution and the popular referendum that established the socialist constitution of the country in 1976 – the Workers' Confederation of Cuba was established, through the free and democratic decision of Cuban workers of the time, which, in the following year, became the Central Organization of Cuban Trade Unions. The unity of the workers' movement has been a deciding factor in the history of the independence of the Cuban nation: first, in the fight against Spanish colonialism, subsequently, in the confrontation with North American neo-colonialism and, since 1959, in defence of the Government, which, for the first time in the long history of the country, is exercised by Cuban workers. 472. Following the triumph of the Cuban revolution, impostor trade union officials arrived and endeavoured to impose the Batista dictatorship. The strategic objective was to divide the Cuban trade union movement in order to destroy worker power in Cuba. This clearly subversive activity benefited from numerous resources flowing from official North American funds. There were those who tried to cover up their subversive activities against the constitutional order freely given by Cuban workers by taking the guise of trade union officials, no less. 473. Neither the Labour Code in force, nor complementary legislation, establish prerequisites or conditions for the establishment of trade unions. All Cuban workers have the right freely to join trade unions and to establish trade union organizations without need for prior authorization. All trade unions and the Central Organization of Cuban Trade Unions are fully independent of the Government, the employers and any other commitment that is not the defence of the interests of their worker members. The Government cannot interfere in their activities. They draw up and approve their statutes and regulations, adopt the structure of their organizations, their methods and ways of working, according to their interests, without any control, supervision or interference from any government or party department or employee. The workers belonging to each union nominate and elect their trade union officials at the various levels, from grass-roots workers' assemblies to the regularly held congresses, with the greatest respect for the most strict trade union democracy. Trade union representatives are democratically elected by the workers, they take part with broad powers in the management councils where decisions are taken that affect them, and this both at the basic enterprise level and at the level of the bodies and institutions of the central state administration itself. 474. It is totally incorrect for the ICFTU to allege that there are no collective labour agreements in Cuba. These are agreed individually in all labour centres of the country, in accordance with the laws and regulations of the ILO, the practical application of which has been communicated in the framework of the reports on Convention No. 98. The Labour Code lays down the necessary guarantees for the full exercise of trade union activity in all labour centres of the country and for the broadest participation of workers and their representatives in the adoption of decisions that affect their widest interests. 475. The right to strike is not prohibited in Cuban legislation. However, with the institutionalization of state power in which workers have a decisive influence in the executive, legislative and judicial functions, the exercise of the right to strike has not been necessary. Moreover, this has been possible, thanks to the effective development and implementation of a number of mechanisms to resolve labour disputes, in which trade union representatives have a broad capacity and mandate to speak and to vote. If, at any time, Cuban workers decided to have recourse to strike action, nothing would prevent them from exercising this right. 476. Worker participation takes place in a normal and institutionalized manner. The effective and direct participation in the distribution and enjoyment of the wealth created by labour has enhanced the focus on collaboration and not on conflict. Cuban workers, collective owners of the basic means of production of the country, are aware that the resources of the country and the wealth that they create will not go to swell private, national or foreign bank accounts. They take part in social dialogue that is participatory and democratic, which enables them every day to better their working and living conditions, in spite of the impact of the blockade against Cuba. 477. The Labour Code is regularly revised and improved from proposals received by the trade union representatives themselves. The most recent proposals for the revision of the Labour Code are currently being analysed and revised. The draft has been submitted to the trade unions and the Central Organization of Cuban Trade Unions for consultation. The latter, at its XVIIIth Congress, agreed to take the draft to the workers for consultation via meetings in labour centres where comments and proposals will be collected for the trade unions to discuss with government representatives. The changes to the Labour Code are not a "government promise" as stated by the ICFTU, neither is this an intellectual exercise in legal technique. This is a democratic and participatory process. The need to change the Labour Code arises out of the change in socio-economic conditions in which the productive activity of the country takes place. The Labour Code needs to reflect these realities and must provide a solution to the problems arising out of development. ILO technical cooperation activities are being implemented in the country. As can be seen, the Cuban Government fully respects the right of workers to be consulted with regard to the new Labour Code. 478. Those people identified by the ICFTU as alleged "independent trade union members" are neither trade union members nor independent. These people have been recruited by the United States Interests Section in Havana to carry out subversive activities against the constitutional order established by the workers of Cuba. Their wages are paid by a foreign power, which is carrying out a policy that is hostile to the Cuban population and Cuban workers, from whose territory they carried out numerous attacks and terrorist activities with impunity that have cost the lives or have caused the permanent mutilation of almost 5,000 Cuban workers. 479. These people have no labour link with any of the Cuban workers' collectives. They receive large amounts of money from the Government of the United States, which allows them to live without working, betraying the most valuable interests of Cuban workers. 480. In recent months, in particular, the people mentioned by the ICFTU, following instructions from the United States Interests Section in Havana, have intensified their subversive activities in order to force provocation which serves to justify direct military aggression. 481. The Helms-Burton Act, approved in 1996 in clear violation of international law, among other issues, openly encourages the creation of and provides financial assistance to groups and individuals who carry out activities against Cuban constitutional order. The United States Agency for International Development (USAID), in accordance with this and other anti-Cuban laws, is used to channel funds for subversive activities in Cuba. In the year 2000 alone, this agency allocated US$ 8,099,181 to this. This figure has reached US$ 22 million in the past three years. 482. Organizations of Cuban origin located in southern Florida, supported and protected by the United States Government, promote, finance and implement with impunity terrorist activities against the country, which have caused enormous human and material damage to workers. These activities include pressure and threats against foreign investors not to invest in Cuba to the detriment of economic development and the creation of employment in the country. In the face of the lack of support from among the Cuban people, the major priority has been to fabricate provocation that will encourage direct military attack by the United States against the island. 483. In 1999, Cuba, with as much right as any other country, and with more reason as the country that is assaulted and directly affected by the hostile policy of the United States, adopted Law No. 88, entitled "Law of Protection of National Independence and Cuban Economy". This Law provides, among other issues: Article 5.1. Those who seek information to be used in applying the Helms-Burton Law, the blockade and the economic war against our people, aimed at destroying internal order, destabilizing the country and to destroy the socialist state and the independence of Cuba, will be imprisoned. 484. None of the charges attributed to any of those people identified by the ICFTU bears any relation to the right to establish trade unions or any other field of activity of the ILO. All the people mentioned were judged and sentenced with all guarantees of due process for their activities in the service of a foreign power that maintains a hostile policy towards Cuban workers. 485. In the cases mentioned in the report of the ICFTU, summary or expedited proceedings were used in full accordance with the legislation in force and from the gravity of the crimes committed. This establishes the power of the President of the Supreme Court to shorten the period for enforcement of a sentence; this places no limitations on the guarantees of due process. This proceeding exists in the legislation of more than 100 countries throughout the world. In Cuba, the law on rules of legal procedure in criminal cases dates from 1888; it was enforced as the law on procedure up until 1973, at which point new regulations were adopted that drew largely on this. 486. All the defendants were aware of the charges being brought against them and had the opportunity to refute all that they considered relevant before the sentenced was passed. They were charged before the proceedings opened and they were given the opportunity, as are all those in Cuba, of presenting their explanations, considerations, opinions or any other element of interest relating to the charge. 487. All the defendants exercised their right to professional representation by counsel for the defence who, according to Cuban legislation, can be chosen by the defendant or, failing that, by the court. Fifty-four defence counsel took part in the 29 proceedings. Of the 54 defence counsel, 44 (80 per cent) were chosen by the defendants; ten were court-appointed lawyers. 488. All the defendants exercised their right to have their hearing heard by already established courts. No special – ad hoc – court was established to try them. Their proceedings took place in the relevant provincial courts, according to Cuban law; they were tried by judges who had been nominated prior to charges being laid, judges who already existed and worked in those courts. No emergency judges were nominated, nor were special tribunals set up. 489. All the defendants exercised their right to be heard by pre-existing courts and judges for their hearings; there was a hearing at which the defendant appeared, where he/ she exercised the right to intervene to the end, where he/ she replied to questions by the counsels for defence and prosecution, where witnesses and experts were called and heard, and were questioned by the counsel for the defence. 490. There was a hearing because the law does not allow a court to make a decision without a hearing, in which, if the defendant pleads guilty or agreement is reached, a sentence can be handed down. In Cuba, hearings are compulsory. Nobody is judged through documentation or without having their opinions and statements and those of their lawyers heard. The hearings were also public. An average of 100 people took part in each hearing. In total, almost 3,000 people took part in 29 hearings, basically relations, as well as witnesses, experts and, on average, around 100 people per hearing. 491. All the defendants and their lawyers exercised their right to present proof in their favour that, as well as the proof presented by the police, was taken into account by the Prosecutor's Office. Each defendant was able to present witnesses. The counsel for the defence presented 28 witnesses who had not previously been called by the Prosecutor's Office, of whom 22, the large majority, were authorized by the courts to stand as witnesses. The counsel for the defence had prior access to the file of the charge. 492. Those who were sentenced have the right to appeal these sentences in a higher court than that in which they were sentenced, in this case the Supreme Court, and Cuban legislation respects that right scrupulously. 493. The Government states that it has been most transparent and meticulous with regard to the physical security and the physical and moral integrity of each of the defendants at all stages of the process. There is not the least bit of evidence, the least suspicion, of coercion, pressure or threat, much less blackmail. 494. The Government has the duty and the right to defend the independence of its people, using the legal means established in the country, within strict respect of national laws and ratified international instruments. 495. The right to a legitimate defence is laid down in the United Nations Charter. Cuba continues to be assaulted by the United States on economic, political and propaganda levels. The person who collaborates with these aims is committing a serious crime. In the cases mentioned, there is the aggravating factor of having carried out these activities for money provided by the power that maintains a hostile and aggressive policy against the Cuban nation. 496. The people mentioned by the ICFTU, as has been stated, were not detained or sentenced for being trade union members. To cite only one example, in the proceedings for Oscar Espinosa Chepe, false trade union official of the non-existent CUTC, irrefutable proof was submitted that from January 2002 up until January 2003, over just one year, he received from abroad US$ 7,154 for his subversive activities. In his case, US$ 13,660 was found in the lining of a suit, apart from the US$ 7,000 he received during the year. This person has had no known labour connection for approximately ten years. 497. The people mentioned were judged and punished for facts and behaviour that are typified in the legislation as crimes, with extensive proof, evidence from experts and witnesses and with procedural guarantees, the protection of criminal procedure Law No. 5 of 1997 and article 91 of the Cuban Criminal Code, Law No. 62 of 1987, which came in turn from the Spanish Criminal Code. 498. This article has been part of Cuban criminal legislation since the time when Cuba was a Spanish colony and it appears almost verbatim in the criminal codes of other countries. It lays down: "Actions aimed at undermining the sovereignty and territorial integrity of the State. Any person who executes an action in the interest of a foreign State with a purpose of harming the independence of the Cuban State or the integrity of its territory shall incur a sentence of ten to 20 years of denial of liberty or death." This clause has existed as such since the 1936 Social Defence Code in Cuba, which came in its turn from the Spanish code. 499. The Government states that from the comprehensive information that it has presented to the Committee on Freedom of Association, this body will be in a position to conclude its examination of Case No. 2258. 500. In its communication of 6 June 2003, the Government reiterated that none of those detained, and mentioned by the ICFTU in its report, were deprived of their liberty or sentenced because they were trade union members, as none of them were carrying out trade union activities in any labour centre in the country. In fact, not one of them has any labour links because they have been expelled or removed from their workplaces. Far from defending the interests of Cuban workers, they unconditionally support the blockade. 501. These people were judged and sentenced by competent courts for facts and behaviour typified in the laws of the country as crimes, with comprehensive material proofs, evidence from experts and witnesses. The proceedings against them fulfilled all criteria for guarantees of due process, which in Cuba are fully compatible with international norms in force on this subject. It states, moreover, that it has been most transparent and meticulous with regard to the physical and moral security of each one of the defendants at all stages of the proceedings and that there is not the least evidence or suspicion of coercion, pressure or threats. 502. These activities were carried out in the legitimate exercise of the right of free will of the country and in defence of its national security. It reiterates that none of the charges laid against any of those people mentioned by the ICFTU bears any relation to the right of association or any other right that falls within the responsibility of the ILO. 503. In addition to what has been previously stated, the Government states that in the searches carried out in the homes of those who were sentenced, documents, money, materials and means were confiscated that have no relationship to any trade union activity but are used in conspiracy activities to subvert Cuban constitutional order. The detention, household searches, confiscation of resources and materials, as well as the proceedings against each one of these people were carried out strictly within the law, as has always been done for this type of proceeding in the country. 504. The claim in the report on Víctor Manuel Domínguez García is not true, as no type of legal or any other action has been carried out against this person. 505. All the defendants made use of defence counsel services, and defence counsel had access to the documents that contained the prosecution files before the hearing, among other established procedural guarantees. All recognized the charges laid, duly signing their declarations before the acting body for judicial hearing. The charges were duly proven in the hearings, which were held on 3 and 7 April 2003. 506. None of the people mentioned had been elected "trade union official" by any collective labour body. All of them had a standard of living above the Cuban average and other incidental expenses without working. They received frequent supplies of cash and materials to carry out illegal and hostile activities against the established constitutional order. 507. The inappropriately named "Single Council of Cuban Workers" (CUTC), and the other factions calling themselves "trade unions" and which only exist on the payroll of the United States Interests Section in Havana, far from defending the interests of Cuban workers, carried out activities in unconditional support for the economic, commercial and financial blockade criticized in successive resolutions of the United Nations General Assembly. 508. The purported foreign representative of the non-existent "CUTC" is René Laureano Díaz Gonzáles, a resident of Miami, and President of the so-called "Trade Union Federation of Electric, Gas and Water Plant of Cuba in Exile", who, before leaving the country, was directly involved in an explosives attack carried out in 1960 against the Thermoelectric Power Station in Tallapiedra, Havana. He has taken part in a number of other terrorist activities against Cuban workers. He has personally funded and directed various terrorist organizations such as the "Rebel Army in Exile", the "Comandos Eléctricos" and the "Comandos Mambises". Through the previously mentioned organizations, he has attempted to introduce false currency in Cuban territory to sabotage the economy and to recruit activists whom he has trained in carrying out acts of sabotage against the national electricity and energy system and assassination attempts on the life of the Cuban Head of State. 509. The Government also provides further information on
the people mentioned in the complaint: – Oscar Espinosa Chepe, detained on 19 March 2003, prosecuted
under preliminary investigation file No. 351/ 03, with a prosecution
request for 25 years' imprisonment, based on Law No. 88 (already
explained in the initial communication sent on 16 May 2003). This
demand was upheld by the appropriate court. Mr. Chepe is a self-styled
member of the national executive committee of the non-existent CUTC.
Through Pedro Pablo Alvarez Ramos, he has similar links with the
terrorist organizations of Cuban origin in Miami and with United
States federal agencies, the intelligence services, among others.
He is paid to fabricate false information against the Cuban political
system and economy. He has actively worked to prevent foreign investment
in Cuba. He took part in a number of meetings with employees from
the United States Interests Section in Cuba from whom he received
money and instructions for conspiring against Cuban constitutional
order. – Carmelo Agustín Díaz Fernández, detained on 19 March 2003, prosecuted
under preliminary investigation file No. 347/ 03, with a prosecution
request for 15 years' imprisonment, based on article 91 of the Criminal
Code for "acts against the territorial independence or integrity
of the State", and sentenced by the appropriate court to 16 years'
imprisonment. He is the self-styled official of the non-existent
"Independent Trade Union Press Agency". His activities, ordered
and financed by the United States Government, include fabrication
and dissemination of false news, inciting public disorder and direct
action, using any means possible, against the constitutional order
of the country. Previously, he was expelled from another faction
for taking, for his own personal ends, funds received by the faction,
taking advantage of his position of "treasurer" in this faction.
He has been employed by the purportedly named "Radio Martí" (a subversive
service against Cuba of the official radio programme Voice of America)
and by "Voice of the Foundation", a peripheral service of the terrorist
Cuban-American National Foundation. He has also maintained permanent
links with employees of the United States Interests Section in Cuba,
who have entrusted him with a number of subversive activities against
Cuban constitutional order and the search for information relating
to Cuban national security. – Iván Hernández Carrillo, detained on 18 March 2003, prosecuted
under preliminary investigation file No. 19/ 03, with a prosecution
request for 30 years' imprisonment, based on Law No. 88, and sentenced
by the appropriate tribunal to 25 years' imprisonment. He has a
comprehensive record of anti-social activities. It is not known
whether he has ever worked. He lived on payments from terrorist
groups of Cuban origin in Miami and from the United States Government
for his subversive activities against Cuban constitutional order.
He was warned on a number of occasions, in accordance with Cuban
legislation, by the appropriate authorities, with regard to his
participation and organization of illegal and damaging activities
against constitutional order, including a number of activities against
public order. In 1997, a file in the preliminary stages was opened
on him for illegal activities in the service of the United States
Interests Section in Havana. He has maintained systematic links
with the United States Interests Section, from which he received
funding to carry out subversive activities against the constitutional
order of the country. – Miguel Galván Gutiérrez, detained on 18 March 2003, prosecuted
under preliminary investigation file No. 341/ 03, with a prosecution
request for life imprisonment, based on article 91 of the Criminal
Code for "acts against the territorial independence or integrity
of the State", and sentenced by the appropriate court to 26 years'
imprisonment. He worked for false information agencies created and
financed by the Central Intelligence Agency, with the aim of disseminating
false information about Cuban life. He swindled a number of people,
to whom he offered "guarantees" that their requests to emigrate
to the United States would be accepted in exchange for which he
would use their signatures to support counter-revolutionary plans
to subvert Cuban constitutional order, accepted in a referendum
by more than 97 per cent of the Cuban population. He has regular
links with members of terrorist organizations based in Miami and
with employees of the United States Interests Section in Havana,
from whom he received subversive materials, equipment and funding
to carry out activities against the Government. – Víctor Manuel Domínguez. The claim in the report is false as he enjoyed freedom of movement and activity and was not the subject of any type of legal proceedings or administrative proceedings of any other kind. 510. The Government states that, as can be seen, the abovementioned people are not trade union members. They took instructions from the United States Interests Section in Havana. All of them supported the United States Government blockade against the Cuban people. They were all responsible for carrying out activities to promote and to justify military aggression against the Cuban people. The Committee on Freedom of Association should take into consideration that these were not trade union members carrying out their legitimate right to action to protect the interests of workers. Much less were they tried for activities defending workers. The Government believes that this information will be sufficient for any objective and impartial body to consider closed any examination of a communication based on false arguments, as is the case with the complaint against Cuba by the ICFTU, which has given rise to Case No. 2258. The Government reiterates its full commitment to freedom of association and protection of the rights of workers. The Government will continue to refute false complaints put forward by false trade union officials against the great process of social transformation undertaken by Cuban workers. The Government is always ready to cooperate with the Committee on Freedom of Association of the ILO as it carries out its mandate. C. The Committee's conclusions 511. The Committee notes that in the present complaint
the complainant organizations have presented allegations referring
to the following issues: The authorities recognize only one trade union central controlled by the State and by the Communist Party and prohibit independent trade unions, which have to carry out their activities in a very hostile environment; non-existence of collective bargaining; non-recognition of the right to strike; arrest and harassment of trade union members, threats of criminal penalties; physical violence, unlawful entry, trials and sentencing of trade union officials to long prison terms; confiscation of trade union property and infiltration of state agents into the independent trade union movement. The authorities recognize only one trade union central controlled by the State and by the Communist Party and prohibit independent trade unions, which have to carry out their activities in a very hostile environment 512. The Committee notes the Government's statements with regard to the allegations and, in particular, the Government's statement: (1) that the single trade union central in existence (that currently brings together 19 national trade unions, 5,426 trade union offices with 50,356 territorial trade union officials and 109,522 grass-roots trade union branches with 714,593 trade union officials) has not been imposed by the Government, is exclusively the result of the sovereign will of the workers, and dates back to before the revolution as it was established in 1938 as the Workers' Confederation of Cuba which became, in the following year, the Central Organization of Cuban Trade Unions (CTC); (2) neither the Labour Code in force in Cuba, nor complementary legislation, lays down requirements or conditions for the establishment of trade unions; all Cuban workers have the right freely to join a trade union and to establish trade union organizations, without need for prior authorization; (3) the trade unions and the CTC are fully independent of the Government (which cannot interfere in their activities), employers and any other commitment that is not the protection of their worker members; (4) workers belonging to each trade union draw up and approve their statutes and regulations, adopt the structure of their organizations, their methods and ways of working, according to their interests, without any control, supervision or interference from any public official, government department or political party; they nominate and elect their trade union officials at the various levels, with absolute respect for the most strict trade union democracy; (5) the trade representatives democratically elected by the workers take part with broad powers in the management councils where decisions are taken that affect them, and this both at the basic enterprise level and at the level of the bodies and institutions of the central state administration. 513. With regard to these allegations, the Committee is bound to take into account that in Cuba there is only one officially recognized trade union central that is mentioned in the legislation. On a number of previous occasions it has received complaints concerning the non-recognition of trade union organizations other than the officially recognized existing trade union structure, in particular, from the Confederation of Democratic Workers of Cuba (CTDC) (Case No. 1805) and from the Single Council of Cuban Workers (CUTC). (Case No. 1961), also mentioned in the present case. The Committee stresses that when national legislation designates a particular trade union or employers' organization for recognition it violates the intent and provisions of Conventions Nos. 87 and 98. 514. In this respect, the Committee notes that in its last report adopted in 2002, the Committee of Experts on the Application of Conventions and Recommendations referred to the need to remove from the Labour Code of 1985 the reference to "Confederation of Workers". The Committee emphasizes that trade union pluralism must remain possible in all cases and that the law should not institutionalize a de facto monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish. The Committee stresses that when national legislation designates a particular trade union or employers' organization for recognition it violates the intent and provisions of Conventions Nos. 87 and 98. 515. In these circumstances, the Committee emphasizes that in accordance with Convention No. 87, ratified by Cuba, workers should have the right to establish in full freedom the organizations that they consider necessary independently of whether they support or not the social and economic model of the Government, including the political model of the country, and that it is for these organizations to decide whether they shall receive funding for legitimate activities to promote and defend human rights and trade union rights. All trade union options that do not resort to violence should be able to exist and to express their views. Noting that the proposals for revision of the Labour Code are being studied, the Committee asks the Government to adopt without delay new provisions and measures to recognize fully in law and in practice the right of workers to establish the organizations that they consider necessary at all levels, and the right of these organizations freely to organize their activities. The Committee requests the Government to keep it informed in this respect. 516. The Committee also notes the Government's statement that the CUTC is an illusory and non-existent organization that does not group together workers but rather a small number of people who do not work, and that it maintains itself by funding received from abroad. According to the Government, the so-called "Single Council of Cuban Workers" (CUTC) and the other factions that call themselves "trade unions" do not protect the interests of Cuban workers and support unconditionally the economic, commercial and financial blockade imposed against the Cuban people. 517. The Committee also notes that according to the Government the foreign representative of the non-existent "CUTC" is the president of what is known as the "Trade Union Federation of Electric, Gas and Water Plant of Cuba in Exile" who, before leaving the country, was directly involved in an explosives attack carried out in 1960 against the Thermoelectric Power Station in Tallapiedra, Havana, and has taken part in a number of other terrorist activities against Cuban workers. 518. In this respect, the Committee must recall that, according to the ILO, "the term 'organization' means any organization of wo rkers or of employers for furthering and defending the interests of workers or of employers". As the Committee has already indicated in its examination of Case No. 1961 [see 328th Report, paras. 40-43], the CUTC is affiliated to the Latin American Central of Workers (CLAT) and to the World Confederation of Labour (WCL), international trade union organizations, and it requested registration from the Ministry of Justice in 1995. The Committee requests the complainant organizations to send a copy of the statutes of each of the organizations mentioned in the complaint (CUTC, CONIC and CTDC), so that it might examine this aspect of the case in full knowledge of the facts. Non-existence of collective bargaining 519. The Committee notes the Government's statement that: (1) the allegation by the ICFTU that there are no collective labour agreements in Cuba is completely untrue. These are agreed on an individual basis in each of the labour centres of the country, in accordance with laws and regulations of the ILO, the practical application of which has been communicated in the framework of the reports on Convention No. 98; and (2) the Labour Code establishes the necessary guarantees for the full exercise of trade union activity in all labour centres of the country and for the broadest participation of workers and their representatives in the adoption of decisions that affect their widest interests. 520. The Committee requests the Government to provide detailed information on the various collective agreements signed in recent years (the parties to the agreements, the subject matter of the agreements, the number of workers covered in the private sector and in the public sector). Non-recognition of the right to strike 521. The Committee notes the Government's statement that the right to strike is not prohibited in Cuban legislation; however, with the institutionalization of state power, in which workers have a decisive influence in the executive, legislative and judicial functions, the exercise of this right has been unnecessary. According to the Government, this has also been possible due to the effective development and implementation of a number of mechanisms for resolving labour disputes, in which trade union representatives have a broad capacity and mandate to speak and to vote. The Government emphasizes that, should Cuban workers decide to resort to strike action, nothing prevents them from exercising this right. 522. In this respect, the Committee recalls that "it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 474]. The Committee requests the Government to take measures to ensure the effective recognition of the right to strike and guarantee that no one will be discriminated against or suffer prejudice in their employment as a result of the peaceful exercise of the right to strike. The Committee requests the Government to keep it informed in this respect. Detention of trade union members; physical violence, trials and sentencing of trade union officials to long prison terms 523. The Committee notes with deep concern the allegations relating to the detention and the extremely harsh sentencing of trade union officials of CUTC, CONIC and CTDC. The Committee highlights, in particular, that the complainant organizations confirm that these people are trade union members. The allegations of the ICFTU, CLAT and WCL cover the following sentences: sentences of 15 to 26 years' imprisonment for trade union members Pedro Pablo Alvarez Ramos (25 years, according to the Government), Carmelo Diaz Fernández (15 years, according to the Government), Miguel Galván (26 years, according to the Government), Héctor Raúl Valle Hernández (12 years, according to the Government), Oscar Espinosa Chepe (25 years, according to the Government) and Nelson Molinet Espino (20 years, according to the Government); according to the ICFTU, there is also a prosecution request for 25 years' imprisonment for Iván Hernández Carillo (the Government states that he was sentenced to 25 years' imprisonment), who, moreover, has been beaten. 524. The Committee also notes the Government's statements that none of the people mentioned by the ICFTU were trade union members, nor were they tried, deprived of their freedom or sentenced for being trade union members or for carrying out trade union activities in defence of workers; none of them carried out trade union activities at their labour centre and none of them had any labour links; none of these people had been elected "trade union official" in any centre of the country. The Government states that: (1) all of these people had a standard of living that was higher than the Cuban average and other incidental expenses without working with money that they received from abroad to carry out activities that were illegal and contrary to constitutional order; (2) none of the charges against them had any bearing on the right to association or any other area of activity falling under the purview of the ILO; (3) these people were tried and sentenced by courts for facts and conduct typified as crimes; (4) the searches of the homes of those who had been sentenced led to the confiscation of documents, money, materials and means that were used in conspiracy activities to subvert Cuban constitutional order; (5) all of the defendants recognized the charges against them, duly signing their declarations before the judicial body; the charges brought were duly tried in legal hearings. 525. With regard to the reasons for the proceedings against those people mentioned in the complaints, the Committee notes the Government's statement that they were tried and sentenced for activities classified as crimes by Cuban legislation, and that the hearings and sentencing of these people were carried out in legitimate exercise of the right of free determination of the country and in defence of its national security; all those sentenced are responsible for carrying out activities aimed at promoting and justifying military aggression and restricting the right to free determination of the Cuban people. According to the Government, the people mentioned were tried and sentenced under the protection of Criminal Procedure Law No. 5 of 1977 and article 91 of the Cuban Criminal Code, Law No. 62 of 1987. Article 91 lays down: Acts against the territorial independence or integrity of the State. Whoever executes an action in the interest of a foreign State with the purpose of harming the independence of the Cuban State or the integrity of its territory shall incur a sentence of ten to 20 years of denial of liberty or death. 526. The Committee notes the Government's statement that those who were sentenced enjoyed all the guarantees of due process (which it listed) although it acknowledged that this was a summary hearing (on the authority of the President of the Supreme Court) and stated that this in no way limited the guarantees of due process. The Committee notes the Government's statement that the detentions, search of houses and confiscation of resources and means were carried out within the law. The Committee notes the Government's information on detentions and sentencing of specific people referred to as trade union members by the complainant organizations (allegations relating to 2003) or on the records of these people. According to the cases, they are accused in the Government's reply of the following charges (mostly non-specific): funding by organizations that the Government qualifies as terrorist organizations, providing services to these organizations, subversive and conspiratorial activities, support for the blockade against Cuba, links with intelligence services in a foreign country (accepting money and instructions), fabrication of false information to support the blockade, obstructing foreign investment, acts against the territorial independence or integrity of the State, inciting public disorder, direct activities against constitutional order, links with foreign employees, the search for information relating to Cuban security, records of anti-social behaviour, trafficking and sale of dollars, illegal resale of products stolen from businesses in the country, receiving funding for recruitment of people to carry out subversive activities, activities against public order, being in the service of false information agencies, swindling various people to gain support for counter-revolutionary plans, receiving subversive material and funding for activities against the Government. 527. However, the Committee notes that some of the charges or records indicated by the Government are too vague or are not necessarily criminal and can come under the definition of legitimate trade union activities, while the legislation cited by the Government envisages sentences that could include death. 528. The Committee must remind the Government that detention and sentencing of trade union officials or members for reasons relating to activities to defend the interests of workers is a serious violation of public freedoms in general and trade union freedoms in particular. Taking into account the various cases presented to the Committee relating to harassment and detention of members of trade union organizations that are independent of the established structure, and also taking into account that the sentencing was handed down in summary hearings of very short duration, the Committee requests the Government to take steps to release immediately the people mentioned in the complaints. The Committee requests the Government to send copies of the criminal sentences handed down against these people and regrets that this has still not taken place in spite of the request to this effect made by the Office on 22 May 2003 in the framework of the procedure in force. 529. Finally, the Committee notes that the Government denies utterly that Víctor Manuel Domínguez García, Director of the National Centre for Training, had been the subject of any proceedings against his freedom of movement. Confiscation by the police in March 2003 of books from the CUTC trade union library, a computer, two fax machines, three typewriters and numerous documentation 530. The Committee regrets that the Government has made no reply to this allegation and urges it to send its observations without delay. Infiltration of State agents into the independent trade union movement 531. The Committee notes the allegations of the ICFTU, which state that Aleida de las Mercedes Godines, Secretary of CONIC, and Alicia Zamora Labrada, Director of the Trade Union Press Agency Lux Info Press, were two state security agents infiltrated into the independent trade union movement (the former for 13 years, according to information received from the ICFTU). The Committee notes that the ICFTU has attached a press clipping (Granma of 11 April 2003) that confirms these allegations. The Committee notes that the Government has made no reply to these allegations and urges it to send detailed observations in this respect without delay. ICFTU allegations for 2001 and 2002 (threats against trade union members, sentencing of a trade union member to two years in prison, violence against trade union members, detentions, searches of houses, and attempts by the police to prevent a trade union congress) 532. The Committee notes with regret that the Government has not given specific replies to the following allegations: 2001 – On 26 January, Lázaro Estanislao Ramos, a delegate from the Pinar
del Río branch of the Independent National Workers' Confederation
of Cuba (CONIC), was threatened in his home by a state security
employee, Captain René Godoy. The official warned him that his confederation
had no future in Pinar del Río and that penalties against opposition
would worsen, culminating, if necessary, in the disappearance of
the dissidents. – On 27 April, Georgis Pileta, another independent trade union
member in prison was beaten by guards after he was sent to the punishment
cells. – On 6 September, CONIC held its second national meeting, amidst retaliation by the State. A massive operation was carried out by the political police to prevent the annual trade union assembly being held. The political police threatened trade union officials with possible charges of rebellion if there was any protest in the areas surrounding the premises where the assembly was being held. Moreover, they stopped all people trying to enter the building, asking for their identification and the reason why they were coming to that place. They also prohibited various trade union members from entering the building and violently expelled them from the surrounding areas. 533. The Committee urges the Government to send detailed observations on these allegations without delay. 534. The Committee urges the Government to accept a direct contacts mission. The Committee's recommendations 535. In the light of its foregoing interim conclusions,
the Committee invites the Governing Body to approve the following
recommendations: (a) The Committee emphasizes that, in accordance with Convention
No. 87, ratified by Cuba, workers should have the right to establish,
in full freedom, the organizations that they consider necessary
irrespective of whether or not they support the social and economic
model of the Government, including the political model of the country,
and that it is for these organizations to decide whether they shall
receive funding for legitimate activities to promote and defend
human rights and trade union rights. (e) Noting that it has always recognized the right to strike
as a legitimate right of workers and their organizations in defence
of their economic and social interests, the Committee requests the
Government to take measures to ensure the effective recognition
of the right to strike and guarantee that no one will be discriminated
against or suffer prejudice in their employment as a result of the
peaceful exercise of this right. The Committee requests the Government
to keep it informed in this respect. (f) The Committee is extremely concerned to note the allegations
relating to the detention and the extremely harsh sentencing (between
15 and 26 years' imprisonment) of trade union officials of CUTC
and CTDC. (h) The Committee regrets that the Government has not replied
to the allegations relating to the confiscation by the police in
March 2003 of books from the CUTC trade union library, a computer,
two fax machines, three typewriters and numerous documentation.
The Committee urges the Government to send its observations without
delay. (j) The Committee notes with regret that the Government
has given no specific reply to the allegations of the ICFTU relating
to years 2001 and 2002 (threats against trade union members, sentencing
of a trade union member to two years in prison, violence against
trade union members, detentions, searches of houses and attempts
by the police to prevent a trade union congress). The Committee
urges the Government to send detailed observations on these allegations
without delay. |
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