Report in which the committee requests to be kept informed of development - Report No 343, November 2006

Case No 2440 (Argentina) - Complaint date: 31-JUL-05 - Closed

Allegations: The complainant organizations allege that trade union leaders and members were arrested and tried as a result of protests held in the federal capital and the Province of Santa Cruz

230. The complaint is contained in a communication from the Association of State Workers (ATE) and the Central of Argentinean Workers (CTA) of July 2005. The complainants sent additional information and new allegations in July and August 2005.

1. 231. The Government sent its observations in a communication dated 23 February 2006.
2. 232. Argentina 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

1. 233. In their communication of July 2005, the Central of Argentinean Workers (CTA) and the Association of State Workers (ATE) allege that on 29 June 2005 at approximately 1 p.m., the following ATE leaders were detained: Messrs. Fernando Rubén Cardozo, Secretary-General of the Internal Committee of the President’s Office and Aldo Héctor Flores, a union steward. The events took place at the Government House, in the autonomous city of Buenos Aires at the address 50 calle Balcare, within the context of a plan of action by the ATE calling for restoration of the purchasing power of wages. The Internal Trade Union Committee of the President’s Office resolved to take action at that office, in the form of a protest consisting of “throwing propaganda leaflets in the palm court”. The following demands were made: receipt of an additional 100 pesos that used to be paid in the office and 300 pesos in future increases in what are termed “non-wage components”. This procedure was already current practice for employees of the Government House and had been used on a number of occasions during democratic government terms since 1983.
2. 234. The complainants add that the Government decided to ban protests by state workers via A.S.I. Memorandum No. 1229/2005, dated 28 February 2005, which provides that: “by order of the Secretary-General of the President’s Office, staff working at the Government House are informed that, for security reasons, demonstrations within the building are not permitted (signed, Lieutenant César Pablo Yague, Security Directorate, President’s Barracks)”. The complainant organizations state that having been arrested, the abovementioned trade union leaders were taken to federal police station No. 2 and charged with the offence of disobedience, pursuant to article 239 of the Penal Code, which expressly provides that: “any person who resists or disobeys a public servant in the legitimate exercise of his/her functions or a person providing assistance at the request of the aforementioned public servant or by virtue of a legal obligation, shall be punished by a prison term of between 15 days and one year”.
3. 235. The complainants indicate that police intervention in the workplace to restrict protest action constitutes a serious violation of Convention No. 87, and that this is even more serious given the fact that such restrictions were imposed at the headquarters of the national Government, which should guarantee fundamental rights through its dual role as head of state and head of public administration. The order issued in writing by the President’s secretary prohibiting the demonstration points to a serious violation on the part of the Government, which ordered restrictions on the right of members of the ATE to demonstrate, supposedly for “security” reasons, without any indication of causes or effects; this is particularly serious given that such demonstrations were customary amongst workers in the offices concerned and had not been subject to any restrictions since 1983.
4. 236. The unilateral decision by the State to repress those involved in this dispute and institute criminal proceedings against them leads to the inescapable conclusion that the State’s true aim is to silence the voices of dissent, thereby stifling workers’ freedom of expression, which is clearly unlawful in the light of the provisions of the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the ILO Constitution and Convention No. 87. Whatever aim the Government may invoke in an effort to justify a restriction on the right to hold demonstrations and protests, it is clear that criminal prosecution of those involved in strikes and other demonstrations is unlawful, disproportionate and contrary to universal human rights standards.
5. 237. In their communication of July 2005, the complainants state that the trade union leaders, Messrs. Cardozo and Flores, were acquitted in the case brought against them by the national government secretariat. The preamble to the ruling refers to the alleged infringement of article 239 of the Penal Code by the accused on 29 June 2005, the date on which the ATE organized a demonstration within the Government House to call for a wage increase. The judicial authority considered that, on the basis of the evidence collected during the investigation, the gathering organized by the accused did indeed take place for the purpose of exercising a labour right, and hence criminal sanctions were ruled out, particularly given the fact that the demonstration had been peaceful and had not involved physical violence (the complainants enclose a copy of the ruling handed down).
6. 238. In their communication of August 2005, the complainants allege that the Secretary-General of the ATE executive council for the Province of Santa Cruz, Mr. Gustavo Garzón, and the union stewards for the municipality of Pico Truncado, Ms. Pilar Peralta and Messrs. David Esteré, Pedro Payaguala, Julio Pezolano and Belisario Seguel, were arrested on 24 June 2005 in Pico Truncado, Province of Santa Cruz. The complainants add that on 29 July 2005, the magistrates’ court of Pico Truncado ordered the abovementioned trade union leaders to be brought to trial, along with more than 60 trade union members, for offences under the following articles of the Penal Code: article 194 of Chapter II on offences against transport and communications security, articles 237 and 238, clause 2, of Chapter I on offences against and resistance to authority and 149bis and ter, clause 2(a) of Chapter I on offences against individual freedom (the complainants enclose the ruling ordering the trials without preventive custody).
7. B. The Government’s reply
8. 239. In its communication dated 23 February 2006, the Government reports that, with regard to the allegations relating to the Province of Santa Cruz, the arrests were ordered by the local judicial authority, the body competent to do so, in the context of a case brought in response to several complaints lodged by various citizens and institutions (local students’ centre, Distrigas SA, Bolland y Cía SA, Transportadora de Gas del Sur (TGS) SA, etc.), who were denied the right to move freely, exercise their trade, etc. On 10 May 2005, at 11 p.m., the ATE, which at that time was not accredited as the organization representing municipal workers, decided to initiate protest action (work to rule). The protest was held on 11, 12 and 13 May 2005, with the municipality being informed on 11 May, after the action had begun. The Government states that the decision to begin industrial action was taken as a result of the lack of a positive response to the workers’ demands presented at the very end of the previous working day, allowing no time for the demands to be considered and discussed. Moreover, the industrial action was not as described in the communication, but was in fact held on a larger, more intensive scale, consisting of a stoppage at the workplace.
9. 240. The Government points out that following a range of proposals made by the municipality within the bounds of budgetary and financial reality, which were all systematically rejected by the trade union, industrial action escalated to the point where the city was held to siege by roadblocks for over 30 days, provoking complaints from the residents who brought the legal action mentioned earlier. Finally, the Government adds that, at the time of the events, the workers Pilar Peralta, David Esteré, Pedro Payaguala, Julio Pezolano and Belisario Seguel were not acting in the capacity of union stewards for the municipality of Pico Truncado, since they were nominated as members of the local delegation on 27 June 2005, with the municipality being notified of this on 29 June 2005.

C. The Committee’s conclusions

1. 241. The Committee observes that in the present case, the complainants allege the arrest of two Association of State Workers (ATE) trade union leaders on 29 June 2005 on charges of committing the offence of disobedience, following a protest at the Government House involving the distribution of propaganda leaflets, in addition to the arrest (on 24 June 2005) and trial of ATE trade union leaders and members in the Province of Santa Cruz.
2. 242. With regard to the allegations concerning the arrest of the ATE trade union leaders Messrs. Fernando Rubén Cardozo and Aldo Héctor Flores on 29 June 2005 on charges of committing the offence of disobedience, following a protest at the Government House in the federal capital, the Committee regrets to note that the Government has not communicated its observations on this matter. However, the Committee notes that the complainants sent additional information with the text of the ruling, revealing that the judicial authorities had decided to acquit the trade union leaders in question, finding that the accused had organized the gathering to defend a labour right and that the demonstration had been peaceful. In this respect, the Committee recalls that “the arrest by the authorities of trade unionists concerning whom no grounds for conviction are found or charges made involves restrictions on trade union rights. Governments should take steps to ensure that the authorities concerned have appropriate instructions to eliminate the danger which arrest for trade union activities implies” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 81]. In these circumstances, the Committee requests the Government to ensure that the abovementioned principle is observed.
3. 243. With regard to the alleged arrest (on 24 June 2005) and trial of ATE trade union leaders and members in the Province of Santa Cruz, the Committee notes the Government’s information to the effect that: (1) the arrests were ordered by the local judicial authorities within the context of a legal case brought in response to several complaints lodged by various citizens and institutions who had been denied the right to move freely and exercise their trade; (2) the ATE decided to initiate protest action at the same time as it informed the municipality of Pico Truncado, Province of Santa Cruz, of its status as the organization representing municipal workers; (3) the ATE decided to begin industrial action as a result of the lack of a positive response to its demands, without allowing time for the demands to be considered and discussed; (4) the trade union rejected various proposals by the municipality, stepping up the industrial action to the point where the city was held to siege by roadblocks for over 30 days, provoking complaints from the residents who brought the legal action; and (5) the union leaders mentioned by name by the complainants were not acting in the capacity of union stewards for the municipality of Pico Truncado, since notification of their nomination was given on 29 June 2005.
4. 244. In this respect, the Committee observes that an initial decision by the magistrates’ court of Pico Truncado, sent by the complainants, reveals that complaints were lodged concerning a picket organized by municipal and provincial public employees on the outskirts of Pico Truncado on Route 12 and their obstruction of transport from 23 May 2005 onwards. The Committee also observes that the judicial ruling called for a trial without preventive custody for a number of protest participants, ordering them to attend discussions, coordinated by the judicial authority, to reflect on the exercise of rights under article 14 and 14bis of the national Constitution, on pain of having their release or exemption from prison revoked.
5. 245. Nevertheless, observing that the Government denies that the detainees held union steward status at the time the events took place, citing violations of citizens’ right to movement and exercise of their trade and alleging an unwillingness on the part of the ATE organization in Santa Cruz to engage in dialogue and mentioning the severity and duration of the actions, involving roadblocks, undertaken by the organization, the Committee considers that in order to establish whether the events leading to the arrests and trials fall within the framework of the legitimate and peaceful exercise of trade union rights, as provided for in Article 8 of Convention No. 87, or whether these limits were transgressed, it must be informed of the ruling on the merits of this case handed down by the judicial authority.
6. 246. In these circumstances, the Committee requests the Government to keep it informed of the outcome of the ruling on the merits of the cases against the ATE trade union leaders and members arrested and tried in the Province of Santa Cruz in June 2005 for the alleged offences.

The Committee's recommendations

1. 247. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the arrest of the Association of State Workers (ATE) trade union leaders Messrs. Fernando Rubén Cardozo and Aldo Héctor Flores on charges of committing the offence of disobedience for having organized a protest, which were subsequently dismissed by the judicial authority, the Committee recalls that the arrest by the authorities of trade unionists concerning whom no grounds for conviction are found or charges made involves restrictions on trade union rights and requests the Government to ensure that this principle is observed.
   • (b) The Committee considers that in order to establish whether the events leading to the arrests and trials fall within the framework of the legitimate and peaceful exercise of trade union rights, as provided for in Article 8 of Convention No. 87, or whether these limits were transgressed, it must be informed of the ruling on the merits of this case handed down by the judicial authority.
   • (c) The Committee requests the Government to keep it informed of the outcome of the ruling on the merits of the case against the ATE trade union leaders and members arrested and tried in the Province of Santa Cruz in June 2005 for the alleged offences.