Interim Report - Report No 93, 1967

Case No 385 (Brazil) - Complaint date: 03-APR-64 - Closed

1. 177. This case has already been the subject of five interim reports by the Committee, contained in paragraphs 133 to 152 of its 81st Report, 271 to 277 of its 83rd Report, 474 to 491 of its 85th Report, 209 to 233 of its 87th Report and 215 to 219 of its 90th Report.

A. A. The complainants' allegations

1. 178. The only part of the complaints still unsettled has two aspects: a general aspect dealing with the arrest or sentencing of trade union leaders and a specific aspect dealing with the case of Mr. Riani.
2. 179. With regard to the first aspect, two series of allegations have been made: one by the World Federation of Trade Unions to the effect that 47 trade union leaders had been arrested and the other by the Latin American Federation of Christian Trade Unionists to the effect that four trade union leaders had been sentenced to long terms of imprisonment (18, 15 and ten years).
3. 180. With regard to the allegations of the World Federation of Trade Unions the Committee took note of the information furnished by the Government to the effect that, of the 47 trade union leaders named by W.F.T.U, 11 had been released without having had any charge brought against them, 15 were the subject of an inquiry but remained at liberty, nine were abroad, four had fled and three were in custody awaiting trial.
4. 181. The Committee therefore recommended the Governing Body to take note of the information furnished by the Government and to request the Government to be good enough to keep it informed of further developments regarding the persons concerned and, in particular, to furnish the texts of any judgments handed down and of the reasons adduced therein.
5. 182. In the various communications that it has since addressed to the I.L.O, the Government refers to the case of only one of the persons mentioned by W.F.T.U, namely Mr. Ziller, Vice-President of the National Confederation of Bank Employees (C.O.N.T.E.C.) and a member of the Executive Committee of W.F.T.U. The Government states that, since he has fled, he has been sentenced in his absence to 30 years' imprisonment, and encloses the text of the judgment handed down by the military tribunal of Belo Horizonte, which shows that he has been found guilty of crimes against national security.
6. 183. The Committee therefore recommends the Governing Body to request the Government to be good enough to keep it informed of the situation of the other trade union leaders named by W.F.T.U in its communication of 7 December 1964 and not yet released, about whom the Government has already furnished certain information in its communication of 22 June 1965.
7. 184. With regard to the allegations of the Latin American Federation of Christian Trade Unionists concerning the sentencing of the trade union leaders Antonio Faria Lopez, Fausto Drumond, José Boggione and Alberto Josh dos Santos, the Committee took note of the information furnished by the Government to the effect that the military tribunal of Belo Horizonte had tried these persons for crimes against national security and sentenced them to various terms of imprisonment. Having also noted, from the Government's information, that the accused had appealed to the Military High Court, the Committee recommended the Governing Body to request the Government to communicate to it the texts of the judgments of the court of first instance and of the appellate court.
8. 185. In a communication dated 24 May 1966, the Government sent the Office the text of the first-instance judgment on the four trade union leaders referred to in the previous paragraph. Under this judgment Mr. Faria Lopez has been sentenced to 18 years' imprisonment, Mr. Drumond to 15 years' imprisonment, Mr. Boggione to 15 years' imprisonment and Mr dos Santos to ten years' imprisonment, all four for having attempted, with the material and financial aid of a foreign State or a foreign or international organisation, to overthrow the political and social order established by the Constitution.
9. 186. In another communication, dated 22 June 1966, the Government stated that on appeal, the sentences of Mr. Faria Lopez, Mr. Drumond and Mr. Boggione had been reduced to one year by the Military High Court and that, having already served this term, these three persons had been released. Mr. dos Santos had been acquitted by the same tribunal on appeal and had also been released.
10. 187. Although the Government has not supplied the text of the appeal judgment referred to above, as it had been requested to do, the Committee considers that since the four trade union leaders involved are now at liberty, there would be no point in its pursuing the examination of this aspect of the case.
11. 188. Nevertheless, before recommending the Governing Body to take note of the release of the persons concerned, the Committee observes that one of them has been found innocent by the appeal court and that the other three have had their sentences reduced very considerably.
12. 189. In this connection the Committee wishes to recall that, in several earlier cases', it has pointed out that the detention by the authorities of trade unionists against whom no grounds for sentence can subsequently be proved is liable to impose restrictions on trade union rights. The case of Mr dos Santos provides an illustration of this situation. In the three other cases the reduction to one year of sentences originally set at 18 years for one of the persons concerned and 15 for the other two shows very clearly that the charges finally brought against them have no relation to those on which the original sentences were based. When it is realised that the arrest of the four persons concerned goes back to the month of March 1964 and that the appeal judgment was handed down on 21 June 1966, it is evident that detention prolonged in this way can impose restrictions on trade union rights.
13. 190. The Committee therefore recommends the Governing Body to take note of the release of the trade union leaders mentioned by the Latin American Confederation of Christian Trade Unionists but to point out to the Government that the arrest or detention of trade unionists against whom no grounds for sentence can subsequently be proved or whose detention has in fact lasted longer than the term of imprisonment to which they have been sentenced is liable to impose restrictions on trade union rights.
14. 191. It will be recalled that the particular case of Mr. Riani had two aspects. Firstly, as Mr. Riani was a trade union leader and measures had been taken against him, the Committee and the Governing Body had to determine whether his case involved an infringement of trade union rights. Secondly, a special question arose by reason of the fact that, at the time when the events giving rise to the complaint took place, Mr. Riani was a deputy member of the I.L.O. Governing Body and the measures taken against him prevented him from performing his functions in that capacity.
15. 192. As regards the second point, the Committee has already formulated its comments, which have been approved by the Governing Body.
16. 193. With regard to the first point, the position was that Mr. Riani had been sentenced to 17 years' rigorous imprisonment by the Tribunal of Military Justice of the Fourth Military Region for subversion contrary to public order. The Committee noted at its May 1966 session that the Government had furnished the text of the judgment handed down by the said court, and that Mr. Riani had appealed. The Public Prosecutor had announced that he favoured a partial revision of the judgment and a sentence of ten years' rigorous imprisonment instead of one of 17 years. The Government had stated that it intended to furnish the text of the appeal judgment. This text was sent by the Government to the I.L.O by a communication dated 14 September 1966.
17. 194. The essential findings of this judgment, handed down on 11 July 1966 by the Military High Court, are that the crime defined by section 2 (IV) of Act No. 1802/53, for which Mr. Riani had been sentenced in first instance, cannot be considered to have been committed if the accused has not in fact carried out activities clearly and deliberately intended to change the political and social order of the nation; that nevertheless incitement of the masses to direct action with the use of violence, the instigation to paralyse the public services, the preparation of such paralysis, contribution to bringing it about, or orders issued to achieve this end are in themselves offences that must be punished as such; and lastly that the first-instance judgment is accordingly modified, that the legislative basis of the offences committed is corrected and that the sentence on Mr. Riani is reduced from 17 to seven years' rigorous imprisonment.
18. 195. More particularly, the court considered that Mr. Riani, who was both a member of Parliament and a trade union leader, had taken advantage of his position and of a " period of abnormal conditions due to the system of government introduced by the ex-President " to publicly advocate direct action and violence with a view to overthrowing the established political and social order, that he had incited the masses to abusive and criminal strike action with a view to paralysing the public utility services, and that he had devoted himself to intense and violent political propaganda in his speeches, at meetings, through trade union circulars and at trade union demonstrations.
19. 196. In the view of the court all these actions, although they had been carried out in preparation for the major crime defined in section 2 (IV) of Act No. 1802/53 (see paragraph 194 above), for which Mr. Riani had been sentenced in first instance, could not be held to be a first step in committing this crime and could not, therefore, be punished as such. These actions were, however, offences in themselves, and it was for having committed them and confessed to them that Mr. Riani was sentenced by the court to seven years' imprisonment under section 66 of the Military Penal Code.

B. B. The Committee's conclusions

1. 197. It seems clear, both from the explanations furnished by the Government and from the texts of judgments in the possession of the Committee, that the grounds for the sentence incurred by Mr. Riani do not lie in his trade union activities in the real sense of the term but rather in political activities exceeding, in the view of the court, the limits of normal trade union activities. The Committee considers that it should not and cannot pronounce on this view reached by the court or on the sentence imposed by the tribunal in accordance with the view it had formed.
2. 198. With regard to the procedure followed, the Committee has noted that, according to the explanations furnished by the Government, the Brazilian military courts form an integral part of the judicial system, of which the Military High Court is the oldest organ, and that they offer certain guarantees, such as the right to defence. The Committee nevertheless considers that such a judicial system assumes a special character when its decisions are applied to a civilian.
3. 199. Moreover, while it is in any event the duty of the Committee and the Governing Body to seek to ensure that the exercise of trade union rights is not infringed, this duty becomes especially imperative where trade union leaders are involved who are also members or deputy members of the Governing Body and where the measures applied to them have prevented them from performing their functions as such. Although Mr. Riani no longer has that status, he was, nevertheless, when the events giving rise to this case took place, a deputy member of the Governing Body.
4. 200. It is for these reasons, having regard to the considerations set forth in the two preceding paragraphs, that the Committee recommends the Governing Body to request the Government to be good enough to keep it informed of any change that may occur in the situation of Mr. Riani.

The Committee's recommendations

1. 201. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to request the Government to be good enough to keep it informed of the situation of the trade union leaders named by the World Federation of Trade Unions in its communication of 7 December 1964 who have not been released and concerning whom the Government has already furnished certain information in its communications dated 22 June 1965 and 24 May 1966;
   • (b) to take note of the release of the trade union leaders mentioned by the Latin American Federation of Christian Trade Unionists in its communication dated 4 October 1965;
   • (c) to draw the attention of the Government to the fact that the arrest or detention of trade unionists against whom no grounds for sentence can subsequently be proved or whose detention has in fact lasted longer than the term of imprisonment to which they have been sentenced is liable to entail restrictions of trade union rights;
   • (d) to note that, following the announcement of the Public Prosecutor that he favoured a reduction of the term of 17 years' imprisonment imposed in the first instance on Mr. Riani to a term of ten years, the judgment rendered on 11 July 1966 by the Military High Court of Brazil has reduced the sentence to a term of seven years' imprisonment;
   • (e) to emphasise again the importance of ensuring that, where trade unionists are accused of political offences or common law crimes, they should receive a fair trial at the earliest possible moment by an impartial and independent judicial authority, attended by all the guarantees of normal judicial procedure;
   • (f) to request the Government to be good enough to keep it informed of any change in the situation of Mr. Riani;
   • (g) to take note of the present interim report, it being understood that the Committee will report further to the Governing Body when it has received the additional information requested of the Government.