Report in which the committee requests to be kept informed of development - Report No 234, June 1984

Case No 1041 (Brazil) - Complaint date: 06-APR-81 - Closed

1. 193. The Committee has already examined this case presented by the National Confederation of Agricultural Workers (CONTAG), at its March 1982 meeting, when it presented an interim report to the Governing Body. (See 214th Report, paras. 604-617, approved by the Governing Body at its 219th Session (March 1982)). At subsequent sessions the Committee adjourned the case pending the receipt of comments from the Government and the outcome of the court proceedings. In a communication of 4 October 1983 the Government stated that the preliminary hearing was entering its final phase; at its November 1983 meeting the Committee therefore requested the Government to keep it informed of the outcome. Subsequently, CONTAG sent additional information dated 31 January 1984 and the Government communicated information on 21 May 1984.
2. 194. Brazil 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. Previous examination of the case

1. 195. The allegations under examination began with the murder on 21 July 1980 of the President of the Rural Workers' Trade Union (STR) of Brasilia, Wilson Souza Pinheiro, at the union's headquarters in Brasilia, in the State of Acre. On 27 July a demonstration of rural workers aimed at defending their rights and protesting against the murders and the acts of violence and injustice committed by large landowners was held in Brasilia in solidarity with the murdered man's family, and culminated with the death of the landowner Nilo Sérgio de Oliveira. The authorities accordingly instituted proceedings in the Twelfth Military Judicial Constituency in Manaus, in the State of Amazonas, against Francisco da Silva, President of CONTAG, Joao Maia da Silva Filho, trade union delegate of CONTAG for Acre and Randónia, the union officials Luis Inácio da Silva and Jacó Bittar, and the adviser Francisco Mendes, on the grounds of incitement to collective breach of the law and/or fomenting violent discord between the classes of society, indictments which under the National Security Act can carry a sentence of up to 30 years' imprisonment. In its complaint of 6 April 1981 and its letter of 10 July 1981 providing additional information CONTAG pointed out that, at their trial, the president and regional delegate of CONTAG had acknowledged that they were in Brasilia on 27 July 1980 to protest against the murder of union leader Wilson Souza Pinheiro, but had denied any responsibility for the death of the landowner Nilo Sérgio de Oliveira. The complainant added that the Military Council had rejected the public prosecutor's request for the preventive detention of the defendants.
2. 196. In its reply of 3 November 1981 the Government stated that, acccording to the Office of the Military Prosecutor, the two CONTAG officials were liable to the penalties prescribed in section 36, subsections (ii) and (iv) and sole paragraph of the National Security Act (incitement ... (ii) to collective breach of the law ...; (iv) to fomenting violent discord between the classes of society ...; sole paragraph: when such incitement leads to serious bodily injury or death"). The Government stated that, during the public demonstration over the murder of the president of the STR of Brasilia, these officials had incited the other participants to vengeance, breach of the law and fomenting discord between the classes of society; it stated that the landowner who had been murdered at the end of the demonstration had been held responsible for the death of Wilson Souza Pinheiro.
3. 197. In these circumstances, as regards the judicial proceedings against the trade union leaders José Francisco da Silva, Joao Maia da Silva Filho, Luis Inácio da Silva and Jacó Bittar, accused of violating section 36 of the National Security Act, the Committee, in view of the divergencies between the complainant's allegations and the Government's reply, and noting that a trial was in progress, had merely been able to express its concern at the severity of the sentences faced by the union leaders and requested the Government to communicate the text of the judgment of the military judicial authorities.

B. New information from the complainant

1. 198. In its communication of 31 January 1984 CONTAG announced that the trial of José Francisco da Silva, Joao Maia da Silva Filho, Francisco Alves Mendes Filho, Luis Inácio da Silva and Jacó Bittar, accused of offences against national security, would be held on 1 March 1984. According to the complainant the evidence produced during the preliminary hearing was insufficient to enable the accused to be sentenced, since it was obvious that they had committed no offence against national security. It points out that the National Security Act in force at the time of the events (Act No. 6620 of 17 December 1978) was replaced by a new National Security Act (Act No. 7170 of 14 December 1983) which specialists consider to be more flexible. The complainant organisation remarks that the penalties prescribed by the new Act are lighter and that incitement to collective breach of the law, one of the grounds on which the proceedings were instituted, is not regarded as an "offence against national security".

C. The Government's reply

1. 199. In its letter of 21 May 1984 the Government states that the trade unionists José Francisco da Silva, Joao Maia da Silva Filho, Luis Inácio da Silva ("Lula") and Jacó Bittar, tried by the Twelfth Military Judicial Constituency in Manaus, have been found not guilty of the charges brought against them by virtue of s. 439A of the Code of Military Criminal Procedure which stipulates: "the Council of Justice shall acquit the accused ... once it has been verified that: (a) there is proof that the act was not committed or no proof that it was committed". According to the Government, José Francisco da Silva has returned to his functions as President of CONTAG, Luis Inácio da Silva is President of the Workers' Party, Jacó Bittar is a member of the latter and Joao Maia da Silva Filho is working in the Labour Secretariat in the State of Acre.

D. The Committee's conclusions

1. 200. According to information made available to the Committee, the trial of the trade union leaders José Francisco da Silva, Joao. Maia da Silva Filho, Francisco Mendes, Luis Inácio da Silva and Jacó Bittar, accused of having contravened section 36 of the National Security Act, was scheduled for 1 March 1984 and the Committee notes that at that trial four of these trade unionists were acquitted by virtue of s.439A of the Code of Military Criminal Procedure. It also notes that they are presently carrying out their trade union functions or working in the labour administration. The Committee observes, however, that no mention is made in the Government's reply of Francisco Mendes and accordingly requests the Government to confirm that this adviser was also acquitted and to inform it of his present situation.
2. 201. The Committee requests the Government to send it the text of the judgment rendered by the military judicial authorities with the reasons adduced therefore.

The Committee's recommendations

• The recommendations of the committee
  202. 202 In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:
       • (a) The Committee notes that the trial of the accused trade union officials in this case was scheduled for 1 March 1984, and that José Francisco da Silva Joao Maia da Silva Filho, Luis Inácio da Silva and Jacó Bittar have been acquitted and are presently carrying out their trade union functions or working in the labour administration. Since the adviser Francisco Alves Mendes Filho is not mentioned in the Government's communication, the Committee requests it to confirm that he was also acquitted and to inform it of his present situation.
       • (b) The Committee requests the Government to send it the text of the judgment rendered by the military judicial authorities with the reasons adduced therefore.