Definitive Report - Report No 85, 1966

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

1. 33. The complaint of the World Federation of Trade Unions (W.F.T.U.) is contained in a communication dated 25 October 1963 addressed to the Secretary-General of the United Nations and transmitted by him to the International Labour Organisation. The Government furnished observations on the complaint by a communication dated 30 May 1964.
2. 34. 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. 35. The complainants allege in general terms that the mere request for freedom of association and trade union activity are crimes punishable by law and that thousands of democrats are serving heavy sentences for strike action or crimes of opinion, over 100 of them being condemned to life imprisonment by virtue of the Security Measures Law, which enables 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.
2. 36. In support of these general allegations the complainants cite one specific case, that of Mr. Manuel Rodriguez da Silva, described as a " metallurgical worker and trade union leader ". He is alleged to have been arrested in 1936, interned without trial for nine years and arrested again in 1950; the complainants state that he is still in detention, after more than 23 years in prison, by virtue of the Security Measures Law, although the sentence imposed in 1950 has long been completed.
3. 37. In its reply dated 30 May 1964 the Government denied that the mere request for trade union freedom or exercise of trade union activity was punishable, and stated that under Legislative Decree No. 39660 of 20 May 1954 all persons 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. The Government denied that any prisoners accused of acts connected with crimes were in any penal institution. In the Government's view the allegations made allusion to persons convicted of subversion. Such persons, where supplementary imprisonment was imposed for security reasons, were released after less than three years of such imprisonment; others, said the Government, served no supplementary imprisonment, while others again were released after serving only half of the main term to which they had been sentenced.
4. 38. The Government stated that Mr. Manuel Rodriguez da Silva was one of the only three persons among those serving terms of supplementary imprisonment for security reasons in whose cases it was considered necessary not to limit the supplementary imprisonment to three years. In his case security imprisonment began on 5 March 1958 and he was released on 8 January 1964.
5. 39. At its meeting in November 1964 the Committee decided to request 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. The Government replied to this request by a communication dated 7 April 1965.
6. 40. In this communication, which was examined by the Committee at its meeting in May 1965, the Government stated that Mr. Rodriguez da Silva was sentenced by the Lisbon Criminal Court, on 24 April 1951, to four years' solitary confinement, with 15 years' loss of political rights, for offences punishable under sections 169, 172 and 173 of the Penal Code, commuted on appeal, 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. He completed his sentence on 4 March 1958 and then began to serve his period of assignment to forced residence until his release on 8 January 1964.
7. 41. The Committee, as indicated in paragraph 252 of its 83rd Report, observed that under section 169 of the Penal Code 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.
8. 42. While it appeared to the Committee from the tenor of the above-mentioned sections of the Penal Code that the sentences served by Mr. Rodriguez da Silva were imposed on grounds unconnected with any trade union activities in which he might have been engaged, the Committee, following its usual practice, recommended the Governing Body in paragraph 253 of its 83rd Report, before submitting its definitive conclusions, to request the Government to be good enough to furnish the texts of the judgments given against Mr. Rodriguez da Silva and of the reasons adduced therein.
9. 43. The 83rd Report of the Committee was approved by the Governing Body on 28 May 1965, in the course of its 162nd Session. The above request for further information was brought to the notice of the Government by a letter dated 3 June 1965. On 23 August 1965 the Government furnished the texts of the judgments given by the courts on 4 July 1951 and 15 March 1954 referred to in paragraph 40 above.
10. 44. From the judgment of the Supreme Court of Lisbon given on 4 July 1951 it appears that Mr. Rodriguez da Silva, charged together with certain other persons, had been sentenced after it had been proved that he belonged to the Portuguese Communist party, described as a clandestine organisation seeking to change the Constitution and overthrow the Government by violent means, had been found in possession of subversive propaganda and money belonging to the party, had used a cover name as an agent and organiser of the party, and had been found in possession of a Browning pistol and ammunition. The court reduced his sentence, as indicated in paragraph 40 above, because it was not proved that he intended to use the pistol " in pursuit of criminal purposes ".
11. 45. The judgment of 15 March 1954 sentencing him to a further six months' imprisonment was based on proof that he had used a false identity in order to lease premises for the Communist party and had obtained forged identity papers.

B. B. The Committee's conclusions

1. 46. These judgments appear to confirm that the sentences served by Mr. Rodriguez da Silva were imposed on grounds not connected with any trade union activities in which he might have been engaged.

The Committee's recommendations

1. 47. In these circumstances the Committee recommends the Governing Body to decide that the case does not call for further examination.