Informe provisional - Informe núm. 129, 1972

Caso núm. 666 (Portugal) - Fecha de presentación de la queja:: 10-MAY-71 - Cerrado

1. 235. The complaints lodged by the World Confederation of Labour are contained in various communications dated 10 May and 10, 11 and 25 August 1971. The International Confederation of Free Trade Unions submitted its complaints on 23 July and 6 August 1971. Lastly, the complaint of the World Federation of Trade Unions is contained in a communication dated 8 September 1971. The complaints were transmitted to the Government, which furnished its observations in two communications dated 15 November 1971 and 27 January 1972.
2. 236. Portugal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations concerning the Arrest of Trade Union Leaders
  237. 237 The complaints of the WCL, the ICFTU and WFTU refer to the arrest of Mr. Daniel Cabrita, General Secretary of the National Union of Bank Employees. According to the complainants, this trade union leader was arrested on 30 June 1971. In one of the complaints it is stated that he is held " incommunicado " and not even allowed to contact his lawyer. He is said to have been arrested for having signed a letter to the Minister of Corporations and to the ILO, protesting against the choice of the Portuguese workers' delegation to the 56th Session of the International Labour Conference in June 1971.
  238. 238 The WCL states that, in signing this letter, Mr. Cabrita was exercising a right implicitly recognised by the Constitution of the ILO, and that if a member State of the ILO takes punitive measures for such an action against the person concerned, it is obviously in breach of the commitments it entered into as a Member of the Organisation. According to the WCL, the Committee on Freedom of Association should draw the attention of the Governing Body to this Constitutional aspect of the behaviour of the Portuguese Government so that the Governing Body may take any necessary action and, in any case, submit a detailed report to the International Labour Conference.
  239. 239 The WCL and the WFTU also refer to the arrest of many other trade unionists, who, according to the WCL, amount to over 100. The WCL refers specifically to Antonio dos Santos, Secretary of the National Union of Journalists, arrested on 4 August 1971, and to Maria Julia dos Santos, General Secretary of the Commercial Employees' Union, arrested on 6 August 1971. According to the WCL, the cause of this repression was the letter of protest, referred to above, sent to the ILO. Moreover, the Minister of the Interior is alleged to have made it known that henceforth the police would have full powers to reduce to silence trade unions and trade unionists who criticised the Government's policy. The allegation concerning the arrest of Mr. Antonio dos Santos is also contained in a communication from the ICFTU.
  240. 240 In its reply to the complaints presented by the ICFTU and the WCL, the Government refers to the three leaders mentioned, explaining that Daniel Cabrita and Maria Julia dos Santos belong to the Lisbon branches of their respective unions. According to the Government, the three leaders were arrested in complete accordance with the laws and regulations governing preventive detention, and the reports on the relevant investigations were submitted to the Criminal Court of Lisbon for the trial of the accused. Daniel Cabrita and Maria Julia dos Santos were charged with belonging to a terrorist organisation, " Armed Revolutionary Action ", which is an illegal, secret and subversive association seeking to promote anarchist terrorism throughout the country. Antonio dos Santos, who is on bail while awaiting trial, was charged with having committed acts against the security of the State. While under arrest, he was given opportunities of speaking with a colleague from the trade union headquarters, since at the time a collective labour agreement was being negotiated with the news agencies.
  241. 241 The Government adds that there is absolutely no truth in the allegations that the cause of the arrests lay in the letters sent by some trade unions to the ILO to protest against the choice of the workers' delegates to the 56th Session of the International Labour Conference. This was immediately confirmed by the Secretary of State for Labour and Social Welfare to the executives of the trade union organisations concerned. Moreover, the Government adds that one of the letters in question was not signed by Daniel Cabrita but by another trade union leader against whom none of the alleged reprisals were taken.
  242. 242 The Government states that it is also untrue that more than a hundred trade unionists are imprisoned or that any trade union leaders, apart from those mentioned, are under arrest. The total number of persons imprisoned because of their connections with the subversive movement mentioned does not exceed 46. Apart from the trade union leaders referred to in the complaints, none of these prisoners plays an active role in trade union life. As regards the statement attributed to the Minister of the Interior in one of the complaints, to the effect that henceforth the police would have full powers to reduce to silence trade unions or trade unionists who criticised the policy of the Government, the latter states in its reply that the complainants' allegation is clearly tendentious and probably refers to the speech made at Braga on 11 July 1971. The Government quotes some passages from the speech, in which it is stated that the unrest observed since the arrest of certain persons demonstrates that these are prominent figures in the revolutionary movement and that the pressure groups are seeking to impose subversion on the normal exercise of the functions of authority. In his speech the Minister deplored the fact that the executives of certain trade unions had not explained to their members that justice in its strictest and most absolute form-criminal justice-was a matter for the State and that respect for legal institutions was one of the basic duties of citizens.
  243. 243 Lastly, the Government makes a number of observations on the way in which the workers' delegates to the International Labour Conference were appointed, considering, nevertheless, that this matter is not the object of the complaints and falls outside the competence of the Committee on Freedom of Association.
  244. 244 The Committee observes that, the appointment of the workers' delegates to the Conference does not constitute an allegation submitted to it for its consideration and that this matter has been duly dealt with by the competent body of the Conference in accordance with the procedure established for this purpose. On the other hand, the problem raised in this case concerns reprisals that the Government is alleged to have taken against particular trade union leaders on the grounds of protests lodged concerning the choice of delegates.
  245. 245 The Committee considers that, if a Government took reprisals-directly or indirectly-against trade unionists or the leaders of workers' or employers' organisations for the simple act of having protested against the appointment of workers' or employers' delegates to a national or international meeting, this would constitute an infringement of trade union rights. In the present case, however, the Government categorically denies that the arrest of the trade union leaders was connected with the protest made, adding in fact that the arrest was motivated by the subversive activities against the security of the State carried out by the persons concerned.
  246. 246 The Committee has stated in the past, in cases of allegations relating to the prosecution and sentencing of trade union leaders, that the only question to be decided is the real reason for the measures complained of being taken, and only if these measures have been taken by reason of legitimate trade union activities can there be any infringement of freedom of association. In a number of cases where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the governments' replies amounted to general denials of the allegation, or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegations. In this connection the Committee has stressed that the government concerned cannot decide unilaterally whether the matter in respect of which sentences have been imposed is related to a criminal offence or to the exercise of trade union rights, but that it is for the Committee to make this decision in the light of all the information and, above all, of the text of the sentence. When it has been learnt, from information received by the Committee, that the persons concerned had been judged by the competent judicial authorities, with the safeguards of normal procedure, and sentenced on account of actions unconnected with normal trade union activities or going beyond the scope of normal trade union activities, the Committee has considered that the case called for no further examination.
  247. 247 There is one particular aspect of the allegations on which the Committee wishes to make certain observations. In one of the complaints referring to Daniel Cabrita it is stated that he had been prevented from contacting his counsel. The Committee has had before it a letter sent by the counsel of Maria Julia dos Santos, containing the same statement in respect of his client. In its reply, the Government fails to refer to this specific point, merely stating that the trade union leaders were arrested in strict conformity with the legal provisions governing preventive detention.
  248. 248 In more than one case in the past the Committee has considered it appropriate to refer to the fundamental principles laid down in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights of the United Nations, considering that their infringement can affect the free exercise of trade union rights. As regards the aspect of the allegations referred to, the Committee considers it appropriate to recall that the International Covenant, in Article 14, states that everyone charged with a criminal offence shall have the right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.
  249. 249 The Committee notes that, according to the Government's statement in its reply, the findings of the investigations on the three arrested trade union leaders (one of whom has been released on bail) were sent to the Criminal Court of Lisbon for the trials. The Committee was later informed that, by a recent decision, a sentence was imposed on Daniel Cabrita.
  250. 250 In these circumstances, the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the considerations stated in paragraphs 246 and 248 above;
       • (b) to request the Government to furnish the text of the judgements which have been, or which will be, handed down in the cases of Daniel Cabrita, Antonio dos Santos and Maria Julia dos Santos, together with the grounds for these judgements.
  251. Allegations concerning the Banning of Inter-Union Meetings
  251. 251 The WCL alleges in its communication of 10 August 1971 that the decision to write to the ILO protesting against the choice of workers' delegates was taken at various inter-union meetings held in Lisbon. In order to put an end to trade union activities that displeased the régime, the Minister of the Interior is said to have ordered the banning of inter-union meetings.
  252. 252 In its reply, the Government states that the Minister of the Interior did not ban inter-union meetings. What was forbidden was the regular holding of a certain type of meeting outside the legal framework, since the activities of occupational organisations should be confined to the purposes for which they were established, i.e. purposes relating to the occupations concerned. If unions decide to deal with questions that are not connected with the occupations they represent, they are going beyond their powers and infringing the principles of representativity and uniqueness. Moreover, the Portuguese trade union system makes express provision for the Constitution of unions and federations. The Government concludes that this does not mean that inter-union meetings do not continue to be held, particularly in the case of the joint negotiation of collective labour agreements. What it is wished to avoid is the occurrence of situations such as those reported by some trade unions on whose behalf decisions were taken without their having been present at any joint meeting or having expressed their opinion on the matters under discussion.
  253. 253 The Committee has repeatedly maintained that freedom of assembly for trade union purposes constitutes one of the fundamental elements of trade union rights and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. As regards the legal aspect, Convention No. 87 establishes, in Article 8, that workers and their organisations should respect the law of the land, adding, however, that the law of the land should not be such as to impair, and that it should not be so applied as to impair, the guarantees provided for in the Convention. These guarantees include the right of workers' organisations to organise their activities and to formulate their programmes (Article 3).
  254. 254 On the basis of the foregoing, the Committee considers that it is for the workers' organisations themselves to decide on the desirability of holding joint meetings for the purpose of discussing trade union problems of common interest, without the law or the authorities restricting the exercise of this right.
  255. 255 It would appear, moreover, from the Government's statements, that there are also problems in this case arising out of the adoption of decisions in the name of trade unions that had not attended the relevant meetings. The Committee considers that in situations of this kind it is for the executives of the unions concerned to adopt the measures they consider appropriate, and in particular to define responsibilities and specify their own positions.
  256. 256 The Committee recommends the Governing Body to draw the attention of the Government to these considerations and particularly to those in paragraph 254 above.
• Allegations concerning the Suspension of Trade Union Leaders and the Closing of Trade Union Offices
  257. 257 In its communication of 11 August 1971, the WCL states that the labour tribunal has decided upon the suspension of all the leaders of the Oporto branch of the National Union of Bank Employees. Furthermore, the offices of this union and of its Lisbon branch were closed by the police. The WFTU also refers to the closing of these trade union headquarters in its communication of 8 September 1971.
  258. 258 In its communication of 27 January 1972, the Government states that on 30 July 1971 the Public Security Council ordered the offices in question to close because the organisations occupying them had, through the action of their leaders, been diverted from the purposes for which they were established. The Council acted in pursuance of section 23 of Legislative Decree No. 37477 of 13 June 1949, which is applicable to associations of all types. This section states that premises which serve as a headquarters for, or are used by their owners to facilitate, subversive activities shall be closed down and may be occupied by the authorities.
  259. 259 The National Labour and Social Welfare Institute, having examined the matter and considered the reasons invoked for the closure of the offices, referred the case to the competent court in accordance with subsections 1, 2 and 5 of section 21 of Legislative Decree No. 23050, as amended by Legislative Decree No. 49058 of 1969. The court ordered the suspension of the responsible leaders of the Oporto and Lisbon branches of the National Union of Bank Employees and in their stead appointed committees of management consisting of members of the two organisations, in accordance with subsection 7 of section 21, referred to above. As a result the offices could be reopened on 17 August 1971. Representation on the committee of management has been arranged on a pluridistrict basis and the number of members exceeds the membership of the bodies they replace.
  260. 260 Finally, according to the Government, the labour court has decided to remove the responsible leaders of the Oporto union from office, judgement still being pending in the case relating to the Lisbon union.
  261. 261 The Committee notes that the administrative and judicial authorities have taken various measures as stages in a process beginning, according to the Government, with the perpetration of subversive activities by the responsible leaders of the two unions. The measures in question have been the closure by the Public Security Council of the trade union offices, the suspension of the responsible leaders by order of a court, the appointment of committees of management by the National Labour and Social Welfare Institute (subsection 7 of section 21 of Legislative Decree No. 23050, as amended by Legislative Decree No. 49058) and the removal by a court of the responsible leaders of the Oporto union from office.
  262. 262 The Committee has already pointed out in connection with another case relating to Portugal, that it has taken the view on various occasions in the past that the principles established in Convention No. 87 do not prevent supervision or control of the internal acts of a trade union to ascertain whether such acts violate the law of the land; at the same time the law of the land must not be such as to infringe the principles of freedom of association. However, the Committee has also considered that it is of the greatest importance that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority.
  263. 263 In the present case, the decision to close the trade union offices was taken by an administrative authority, in the absence of any previous judicial proceedings where the parties concerned could exercise their right to defend their interests. As regards the suspension of the responsible union leaders, the Committee notes that the Government refers to the application of various subsections of section 21 of Legislative Decree No. 23050, as amended by Legislative Decree No. 49058. The provisions relating to the suspension of trade union leaders in this Decree were supplemented by Legislative Decree No. 502/70, which provides that, where application for such suspension is made by the National Labour and Social Welfare Institute, the magistrate shall make his order on the basis of the findings of an investigation carried out by the Inspectorate of Corporations, without examining the substance of the case himself. The Committee refers to its earlier conclusions and recommendations on this aspect of the law in connection with Case No. 654 (Portugal).
  264. 264 As regards the appointment of committees of management by the National Labour and Social Welfare Institute in substitution for the leaders who have been suspended, the Committee recalls that it has already pointed out in another case relating to Portugal, which involved earlier legislation, that the legal provisions empowering the Government to appoint committees of management to replace the elected committees of trade unions are not compatible with the principle of freedom of association. More recently, the Committee, bearing in mind the opinions expressed by the Committee of Experts on the Application of Conventions and Recommendations, has stated that the removal of trade union leaders in cases where violations of the legislation or of the internal statutes have been proved, as well as the appointment of temporary administrators, should be effected through the courts.,
  265. 265 Since a court has already taken a decision to remove the responsible leaders of the Oporto union from office, judgement still being pending in the case relating to the Lisbon union, the Committee recommends the Governing Body to request the Government to send the text of the decisions taken, together with the grounds adduced therefor.

The Committee's recommendations

1. 266. In all these circumstances, with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations concerning the arrest of trade union leaders:
   • (i) to draw the attention of the Government to the considerations in paragraphs 246 and 248 above; and
   • (ii) to request the Government to furnish the text of the judgements which have been or which will be handed down in the cases of Daniel Cabrita, Antonio dos Santos and Maria Julia dos Santos, together with the grounds for these judgements;
   • (b) with regard to the allegations concerning the banning of inter-union meetings, to draw the Government's attention to the considerations in paragraphs 253 and 255 above, and in particular to what is stated in paragraph 254, to the effect that the workers' organisations themselves should decide on the desirability of holding joint meetings with a view to discussing trade union problems of common interest, without the law or the authorities restricting the exercise of this right;
   • (c) with respect to the allegations concerning the suspension of trade union leaders and the closure of trade union offices:
   • (i) to draw the Government's attention to the observations contained in paragraphs 262 to 264 above;
   • (ii) to request the Government to send the texts of the decisions taken and the grounds adduced therefor in the proceedings relating to the removal from office of the responsible leaders of the Oporto and Lisbon branches of the National Union of Bank Employees;
   • (d) to take note of this interim report, it being understood that the Committee will submit a further report when it has received the supplementary information referred to in subparagraphs (a) (ii) and (c) (ü) of this paragraph.