Rapport intérimaire - Rapport No. 87, 1966

Cas no 385 (Brésil) - Date de la plainte: 03-AVR. -64 - Clos

1. 209. This case has been the subject of three interim reports by the Committee, contained respectively in paragraphs 133 to 152 of its 81st Report, in paragraphs 271 to 277 of its 83rd Report, and in paragraphs 474 to 491 of its 85th Report.
2. 210. The case raised two series of allegations: one relating to the placing of trade union organisations under control, and the other to measures taken against trade union leaders.

Allegations relating to the Placing of Trade Union Organisations Under Control

1. 211. With regard to this aspect of the case, the Committee at its meeting in November 1965 recommended the Governing Body to note the Government's statement that the control of trade union organisations in Brazil has terminated and that elections are now taking place, and to request the Government to be good enough to continue to keep the Governing Body informed of further developments with regard to this matter.
2. 212. This recommendation was approved by the Governing Body at its 163rd Session (November 1965) and the text thereof was brought to the notice of the Government by a letter dated 23 November 1965. The Government replied by a communication dated 5 February 1966.
3. 213. In this reply the Government states that, after the total removal of the control which had been exercised over 600 of the country's 4,000 trade union organisations, elections had taken place, by 1 January 1966, in the case of 60 per cent of the organisations previously subjected to control. The results of these elections, which took place within the prescribed period, the Government continues, have almost all been officially registered by the Ministry of Labour and Social Welfare, and, in the case of the remaining trade union organisations, elections will take place according as the conditions attached thereto by law are complied with.
4. 214. The Committee recommends the Governing Body to note that the procedures for elections in the trade union organisations formerly under control have continued since the approval of the 85th Report of the Committee by the Governing Body and to request the Government to be good enough to continue to keep the Governing Body informed of further developments with regard to this matter.
5. Allegations relating to Measures Taken against Trade Union Leaders
6. 215. This part of the complaints had two aspects-one relating to arrests and sentencing of trade union leaders, and one relating to the particular case of Mr. Clodsmith Riani.
7. 216. With regard to the case of Mr. Riani the Committee, at its meeting in November 1965, considered it necessary to draw the attention of the Governing Body to the exceptionally serious nature of the circumstances of this case. It recalled that, at the moment of his original arrest, Mr. Riani had been President of the National Confederation of Industrial Workers of Brazil and had been, and still was, a deputy member of the Governing Body of the International Labour Office. Having been imprisoned for the first time on 6 April 1964, he had been freed following habeas corpus proceedings on 29 September 1965 and again detained on another charge, after which a second habeas corpus application had been denied; when the Committee was examining the case in November 1965 a third habeas corpus application was pending. The Committee drew attention to its established jurisprudence, in accordance with which it has always emphasised the importance of ensuring that, where trade unionists are arrested for political offences or common law crimes, they should receive a fair trial at the earliest possible moment by an impartial and independent judicial authority, and pointed out that this principle represented the application to the questions submitted to the Committee of the provisions of articles 9, 10 and 11 of the Universal Declaration of Human Rights, the text of which the Committee cited. Finally, the Committee pointed out that this principle, which it has applied to all complaints of this nature, assumes a quite special importance when the person concerned is a member or deputy member of the Governing Body of the International Labour Office, by reason especially of article 40 of the I.L.O. Constitution, which provides that members of the Governing Body shall enjoy " such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation ".
8. 217. Having observed that Mr. Riani, despite having been freed under habeas corpus procedure, had remained in detention for 19 months without being brought to trial, the Committee recommended the Governing Body to draw the attention of the Government of Brazil to the importance of the considerations set forth in the preceding paragraph. The Committee also recommended the Governing Body:
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10. (ii) to request the Government of Brazil to take the necessary measures to ensure that the case is dealt with on its merits within a very short period;
11. (iii) to request the Government to forward to the Governing Body the texts of the habeas corpus judgments already given or to be given and of the judgments to be given on the merits of the case;
12. (iv) to request the Government to forward to the Governing Body, not later than 1 February 1966, information as to the position reached in the proceedings and as to the situation of Mr. Riani at that time.
13. 218. The conclusions cited above having been adopted by the Governing Body were brought to the notice of the Government, which replied by a communication dated 5 February 1966, followed by a letter dated 17 February 1966.
14. 219. In this reply the Government states that Mr. Riani was charged with subversion contrary to public order and misappropriation of trade union funds. He was tried on the first charge on 15 December 1965 by the Tribunal for the Fourth Military Region and sentenced to 17 years' rigorous imprisonment. The Government adds that the person concerned has availed himself of his right to lodge an appeal against the judgment with the Military High Court which, as the vacation lasts until 7 March 1966, will give its verdict on the appeal after its sittings have been resumed.
15. 220. Referring to the observations made by the Committee in its 85th Report, the Government declares that the Brazilian military courts, consisting of the Military High Court and its lower courts, are an integral part of the Brazilian judicial system, that the Military High Court has functioned without interruption since 1808 and constitutes the oldest judicial body in Brazil, and that its reconstitution has not entailed any change in its structure but merely an increase in the number of its members. The Government affirms that no special courts have been set up, that the military courts referred to in the present case are regular and normal courts and that Mr. Riani, therefore, has been tried by " an impartial and independent judicial authority ".
16. 221. In its observations the Government states that it cannot understand why the Committee should have seen fit to refer to articles 9 to 11 of the Universal Declaration of Human Rights and also to article 40 of the I.L.O. Constitution. The Government argues that the crimes in respect of which Mr. Riani was charged have long been defined as offences in Brazilian legislation and that the sentences imposed on him were prescribed in such cases before he committed the acts which led to their being applied in his own case. The Government declares that the charges brought against Mr. Riani, who is a Brazilian citizen and therefore subject entirely to the national jurisdiction, had no connection with his trade union activities or with his activities as a member of an organ of the I.L.O.
17. 222. After stating that, in view of the principle of the separation of powers enshrined in the Brazilian Constitution, the executive power has no possibility of influencing or changing judicial decisions duly rendered, the Government concludes its observations on this aspect of the case in the following terms:
18. Mr. Riani has therefore been sentenced by a regular, independent and impartial tribunal, normally constituted, in accordance with the law of Brazil, for dealing with crimes therein provided for, and he has fully enjoyed the right to defend himself. It follows therefore that the role of the I.L.O and of its organs should consist in this case of taking note of the information given above, because it cannot be recognised as competent to pass judgment on the application of legislation by a sovereign State.
19. 223. With regard to this last point the Committee wishes to point out, as it has done in several earlier cases in which governments appeared to maintain that a reply in general terms to the effect that detentions of trade unionists have been due to unlawful or subversive activity and not to their trade union activities should be regarded as adequately substantiated, that the question as to whether the matter in respect of which sentences have been imposed or detentions ordered is to be regarded as a matter relating to a criminal or political offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned in such a manner as to prevent the Governing Body from inquiring further into it.
20. 224. The Committee also wishes to point out that in past cases in which the matters raised had been the subject of proceedings before a national judicial authority it has followed the practice, considering that the decisions given might make available information of assistance to it in appreciating whether or not allegations were well founded, of requesting governments to communicate the text of the judgments given and of the grounds adduced therein. It was with this in mind that the Committee had recommended the Governing Body to request the Government to furnish the information indicated in the conclusions cited in paragraph 217 above.
21. 225. In the present case, having regard to the nature of the Government's reply, the Committee recommends the Governing Body:
22. (a) to take note of the Government's statement that, by a judgment of the Tribunal for the Fourth Military Region dated 15 December 1965, Mr. Riani was found guilty of subversion contrary to public order and sentenced to 17 years' rigorous imprisonment;
23. (b) to note the Government's statement that Mr. Riani has appealed against this decision to the Military High Court;
24. (c) to note the Government's statement that the Brazilian military courts, consisting of the Military High Court and its lower courts, are an integral part of the Brazilian judicial system, of which the Military High Court constitutes the oldest organ, and that Mr. Riani, therefore, was tried by an " impartial and independent judicial authority " within the meaning attached to that terminology by the Committee on Freedom of Association;
25. (d) to observe that the Government has not acceded to the request made to it to furnish detailed information on the case of Mr. Riani and, in particular, the texts of the judgments rendered;
26. (e) to draw the attention of the Government to the fact that the question as to whether the matter in respect of which sentences have been imposed on trade unionists is to be regarded as a matter relating to a criminal or political offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned in such a manner as to prevent the Governing Body from inquiring further into it;
27. (f) to draw the attention of the Government to the fact that the question at issue is not the application of the legislation of a sovereign State but the question whether there has been any violation of internationally accepted principles governing the exercise of trade union rights or of the Constitution of the International Labour Organisation;
28. (g) to reaffirm, in these circumstances, 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, a principle which represents the application to the questions submitted to the Committee on Freedom of Association of the provisions of articles 9, 10 and 11 of the Universal Declaration of Human Rights and which, having been applied by the Committee in respect of all complaints of a nature similar to those before it in the present case, assumes a quite special importance when the person concerned is a member or deputy member of the Governing Body of the International Labour Office, by reason especially of article 40 of the Constitution of the International Labour Organisation, which provides that members of the Governing Body shall enjoy " such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation "; and to draw the attention of the Government to the importance attached by the Governing Body and the Conference to the discharge of those obligations;
29. (h) to urge the Government once again to furnish the text of the judgment by which Mr. Riani was sentenced to 17 years' rigorous imprisonment and of the reasons adduced therein;
30. (i) to request the Government to inform the Governing Body as to the result of the appeal lodged by Mr. Riani and to furnish the text of the judgment and of the reasons adduced therein and, generally, to keep the Governing Body informed of any further developments in connection with the case of Mr. Riani.
31. 226. With regard to the cases of the trade union leaders other than Mr. Riani referred to by W.F.T.U, the Committee took note, at its meeting in November 1965, of information furnished by the Government to the effect that, of the 47 trade union leaders named by W.F.T.U, 11 were at liberty with no charges pending against them, 15 were at liberty while their cases were being investigated, nine were abroad, four had fled and three were detained pending trial.
32. 227. 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.
33. 228. In its communication dated 5 February 1966 the Government states that, like Mr. Riani, " all the trade union leaders who have been or are being prosecuted by the Brazilian military or criminal judicial authorities have been or are being proceeded against pursuant to national laws and before the ordinary courts ".
34. 229. In these circumstances, in accordance with the principles referred to in paragraphs 223 and 224 above, the Committee recommends the Governing Body, as it did at its preceding session, to request the Government to be good enough to furnish the texts of the judgments handed down or to be handed down and of the reasons adduced therein.
35. 230. At its meeting in November 1965 the Committee observed that the Government had not at that time furnished observations on the communication dated 4 October 1965 from the Latin American Confederation of Christian Trade Unionists, which had been transmitted to it on 21 October 1965. It was alleged in this communication that four trade union leaders had been sentenced to long terms of imprisonment (18, 15 and 10 years). The Committee had requested the Government to furnish its observations on these allegations.
36. 231. In its communication dated 5 February 1966 the Government makes the following comments on this aspect of the case: " The military tribunal of Belo Horizonte has tried, also for crimes against national security, four trade union leaders of the State of Minas Gerais, Messrs. Antonio Faria Lopes, Fausto Drumond, José Boggione and Alberto José dos Santos, and sentenced them to various terms of imprisonment. The accused having appealed, their appeals have been submitted to the Military High Court; it has appointed Minister Romeiro Neto as reporter and the case will be heard very shortly. The prosecution and judging of these trade union leaders, for crimes of subversion, have been in accordance with legal standards in force in Brazil." The Government adds that the considerations set forth with regard to the case of Mr. Riani are equally relevant in the case of these four persons also.
37. 232. In this case also, and again pursuant to the principles referred to in paragraphs 223 and 224 above, the Committee recommends the Governing Body to request the Government to be good enough to furnish the texts of the judgments given by the courts of first instance and, when they are handed down, of the judgments of the appellate court, together, in both cases, with the reasons adduced therein.

The Committee's recommendations

1. 233. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to note, with regard to the allegations relating to the placing of trade union organisations under control, that the procedures for elections in the organisations formerly under control have continued since the approval of the 85th Report of the Committee by the Governing Body and to request the Government to be good enough to continue to keep the Governing Body informed of further developments with regard to this matter;
   • (b) with regard to the particular case of Mr. Riani:
   • (i) to take note of the Government's statement that, by a judgment of the Tribunal for the Fourth Military Region dated 15 December 1965, Mr. Riani was found guilty of subversion contrary to public order and sentenced to 17 years' rigorous imprisonment;
   • (ii) to note the Government's statement that Mr. Riani has appealed against this decision to the Military High Court;
   • (iii) to note the Government's statement that the Brazilian military courts, consisting of the Military High Court and its lower courts, are an integral part of the Brazilian judicial system, of which the Military High Court constitutes the oldest organ, and that Mr. Riani, therefore, was tried by an " impartial and independent judicial authority " within the meaning attached to that terminology by the Committee on Freedom of Association;
   • (iv) to observe that the Government has not acceded to the request made to it to furnish detailed information on the case of Mr. Riani and, in particular, the texts of the judgments rendered;
   • (v) to draw the attention of the Government to the fact that the question as to whether the matter in respect of which sentences have been imposed on trade unionists is to be regarded as a matter relating to a criminal or political offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned in such a manner as to prevent the Governing Body from inquiring further into it;
   • (vi) to draw the attention of the Government to the fact that the question at issue is not the application of the legislation of a sovereign State but the question whether there has been any violation of internationally accepted principles governing the exercise of trade union rights or of the Constitution of the International Labour Organisation;
   • (vii) to reaffirm, in these circumstances, 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, a principle which represents the application to the questions submitted to the Committee on Freedom of Association of the provisions of articles 9, 10 and 11 of the Universal Declaration of Human Rights and which, having been applied by the Committee in respect of all complaints of a nature similar to those before it in the present case, assumes a quite special importance when the person concerned is a member or deputy member of the Governing Body of the International Labour Office, by reason especially of article 40 of the Constitution of the International Labour Organisation, which provides that members of the Governing Body shall enjoy " such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation "; and to draw the attention of the Government to the importance attached by the Governing Body and the Conference to the discharge of those obligations;
     • (viii) to urge the Government once again to furnish the text of the judgment by which Mr. Riani was sentenced to 17 years' rigorous imprisonment and of the reasons adduced therein;
   • (ix) to request the Government to inform the Governing Body as to the result of the appeal lodged by Mr. Riani and to furnish the text of the judgment and of the reasons adduced therein and, generally, to keep the Governing Body informed of any further developments in connection with the case of Mr. Riani;
   • (c) to request the Government once again to furnish the texts of the judgments handed down or to be handed down in the cases of the other trade union leaders named by the World Federation of Trade Unions and referred to in paragraphs 227 and 228 above, together with the reasons adduced therein;
   • (d) to request the Government to furnish the texts of the judgments given by the courts of first instance and, when they are handed down, of the judgments of the appellate court, together, in both cases, with the reasons adduced therein, in respect of the persons named by the Latin American Confederation of Christian Trade Unionists and referred to in paragraphs 230 and 231 above;
   • (e) to take note of the present interim report of the Committee, it being understood that the Committee will report further to the Governing Body when the information indicated in subparagraphs (a), (b), (c) and (d) above has been received.