Interim Report - Report No 83, 1965

Case No 370 (Portugal) - Complaint date: 25-OCT-63 - Closed

1. 237. The complaint by the World Federation of Trade Unions (W.F.T.U.) is contained in a communication dated 25 October 1963 and addressed to the Secretary-General of the United Nations; it was transmitted by that organisation to the I.L.O in accordance with the established practice. The complaint was communicated to the Government for its observations by letter dated 26 December 1963; the Government replied in a communication dated 30 May 1964.
2. 238. Portugal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 239. The complainants allege first of all, in general terms, that in Portugal the mere request for freedom of expression, assembly and association and trade union action is a crime punishable by law.
2. 240. They then state that in the prisons of Caxias, Peniche, Pide de Porto, the prison settlement of Paços de Ferreira and the concentration camps in the colonies, there are thousands of Portuguese democrats serving heavy prison sentences for strike action or crimes of opinion, and that these include over 100 condemned to life imprisonment by virtue of the so-called Security Measures Law, which enables the imprisonment to be extended indefinitely after the original sentence has been served, for three years at a time, on the mere proposal of the political police.
3. 241. In support of these general allegations the complainants cite the case of Mr. Manuel Rodriguez da Silva, " metallurgical worker and trade union leader ". According to W.F.T.U this person was arrested in 1936, interned in the Tarrafal concentration camp for nine years without having been judged, again arrested in 1950 and is still in Fort Peniche after more than 23 years in prison. Although he has long since completed the sentence imposed in 1950, the complainants continue, he remains in prison under the Security Measures Law.
4. 242. In its reply of 30 May 1964 the Government first declares that the allegation that the "mere request" for freedom of association or trade union action "constitutes a crime punishable by law " is completely false; under Legislative Decree No. 39660 of 20 May 1954, section 1, all citizens exercising their civic and political rights are entitled to establish associations of a non-secret character, the objectives of which do not involve any prejudice to the rights of other persons, the common weal, the interests of the community or the principles on which the moral, economic and social order of the nation are based.
5. 243. The Government states further that no prisoner accused of acts connected with strikes is in any penal institution. " As for concentration camps ", it continues, " the relevant allegation is completely unfounded as none exists in any quarter of the national territory, metropolitan or overseas."
6. 244. As regards the persons to whom W.F.T.U appears to allude, the Government states that they had been convicted of subversion, and goes on to say that " persons convicted of subversion on whom supplementary imprisonment (described in the communication as life imprisonment ) was imposed for security reasons were released after less than three years of such imprisonment "; that others " did not even begin to undergo supplementary imprisonment and others again were released after serving only half the main term to which they had been sentenced: for instance, some persons who were sentenced to five years' imprisonment (main term and security measure combined) were released after two years ".
7. 245. As regards the person named by the complainants, Mr. Manuel Rodriguez da Silva, the Government states that he was one of the only three persons among those serving terms of supplementary imprisonment for security reasons in whose case it was considered necessary not to limit the supplementary imprisonment to three years. However, the Government continues, he did not complete six years' security imprisonment, since this imprisonment started on 5 March 1958 and he was released on 8 January 1964; in any case, he too had been charged with and convicted of subversion alone.
8. 246. When the case came before it at its 38th Session in November 1964 the Committee recalled that in the past, where allegations that trade union leaders or workers had been arrested or detained for trade union activities had been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security, or for unlawful acts, the Committee had followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions, and the exact reasons therefor. The Committee added that if in certain cases it had concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this had been after it had received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.
9. 247. The Committee observed that in the present case, in reply to the complainants' allegation that a person mentioned by name and described by them as a trade union leader had been arrested, the Government merely stated that his arrest and imprisonment were due entirely to reasons of internal security.
10. 248. In these circumstances, having regard to the precedents mentioned in paragraph 246 above, the Committee recommended the Director-General to ask the Government to inform it, firstly, by what authority the sentence on Mr. Manuel Rodriguez da Silva had been imposed, and secondly, what precisely were the acts with which he had been charged.
11. 249. The Committee's request for information having been transmitted to the Government by letter dated 16 November 1964, the Government replied in a communication dated 7 April 1965.
12. 250. In this communication the Government supplies the following particulars. Manuel Rodriguez da Silva, Brazilian-born and naturalised Portuguese, a locksmith by trade, was arrested on 7 February 1950. He was tried by the Criminal Court of Lisbon on 24 April 1951 and sentenced to four years' solitary confinement, with suspension of all political rights for 15 years, for offences punishable under sections 169, 172 and 173 of the Penal Code. Following an appeal against the verdict of the criminal court, the sentence was commuted on 4 July 1951 to two years' imprisonment, followed by eight years' assignment to forced residence. On 15 March 1954 the Third Criminal Court in Lisbon sentenced him to a further six months' imprisonment for offences under sections 169, 216 (5), 219 and 233 of the Penal Code, three months' remission being granted under Decree No. 40144. The accused completed his sentence on 4 March 1958, upon which he began to serve his period of assignment to forced residence, which was extended for periods of three years until he was released on 8 January 1964.
13. 251. Since the Government does not specify the charges on which sentence was imposed on the person concerned, but merely lists the relevant sections of the Penal Code, it is necessary to refer to the texts of these sections.
14. 252. Under section 169 the import, manufacture, possession, purchase, sale or supply, on any grounds whatsoever, or the transport, storage, use or carrying of prohibited weapons or explosive devices or materials, in an unlawful manner, or in a manner contrary to the rules laid down by the competent authorities, is deemed to be a punishable offence if those responsible intend them to be used, or are aware that they will be used, for the commission of a crime against the external or internal security of the State. Section 172 prescribes the penalties for acts preparatory to crimes against the external or internal security of the State, while section 173 deals with conspiracy or plotting with a view to the commission of such crimes. Sections 216 and 219 are concerned with the forging of documents, while section 233 prescribes penalties for the use of a false name with a view to escaping by any manner or means the lawful surveillance of the public authorities, or to causing any manner of harm to the State or to individuals.

The Committee's recommendations

1. 253. It would seem from the tenor of the sections of the Penal Code cited in the preceding paragraph that the sentences served by Mr. Manuel Rodriguez da Silva were imposed on grounds unconnected with any trade union activities in which he might have been engaged. However, since at its 38th Session the Committee asked the Government to indicate the precise nature of the acts with which Mr. Rodriguez da Silva had been charged-which the Government has failed to do in its latest reply-and since, moreover, the person in question was sentenced following conviction, the Committee - recalling that in all cases involving matters which were the subject of pending national judicial proceedings it has taken the view that such proceedings might make available information of assistance to it in appreciating whether or not allegations were well founded, and has requested governments to communicate the text of the judgments given and their grounds recommends the Governing Body to request the Government of Portugal to be good enough to furnish the text of the judgments given against Mr. Rodriguez da Silva and of the reasons adduced therein, and to adjourn the examination of the case pending receipt of this information.