Rapport intérimaire - Rapport No. 142, 1974

Cas no 763 (Uruguay) - Date de la plainte: 03-JUIL.-73 - Clos

1. 191. The Committee considered this e previously at it. - session in November 1973, when it submitted an interim report on it to the Governing Body in paragraphs 532 to 552 of its 139th Report, which was approved by the Governing Body at its 191st Session (November 1973).
2. 192. In paragraph 552 of this report, the Committee recommended the Governing Body to ask the Government to forward its comments as soon as possible on the various allegations made against it.
3. 193. The comments of the Government were forwarded in three communications. The first was received on 13 November 1973 and the other two are dated 16 and 31 January 1974, respectively.
4. 194. In support of its complaint, the Trade Unions International of Chemical, Oil and Allied Workers submitted further informatics in a communication dated 3 October 1973. The World Federation of Teachers' Unions sent a fresh communication on 12 November 1973 and the World Confederation of Labour did the same on the 27th of that month. The Latin American Federation of Workers of the Building, Wood and Building Materials Industries made its complaint in a communication dated 10 December 1973.
5. 195. Uruguay has ratified both 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. A. The complainants' allegations

1. 196. It should be recalled that the allegations dealt on the one hand with the arrest of trade union leaders and on the other with the dissolution, by decree, of the National Workers' Convention.
2. 197. As regards the first set of allegations, the complainant organisations stated that numerous arrests had taken place and gave the names of some of the persons detained, and in particular: Antonio Tamayo, a leading figure in the National Workers' Convention and a representative of the Uruguayan workers at the International Labour Conference (58th Session), arrested on his return from the Conference; Félix Diaz, another leading figure in the Convention; Mario Acosta, General Secretary of the Building Workers' Federation and Vice-President of the Trade Unions International of Workers in the Building, Wood and Building Materials Industries; Daniel Baldassari, General Secretary of the Petroleum Workers' Federation and Vice-President of the Trade Unions International of chemical, oil and Allied Workers; Dr. Manuel Liberoff, Treasurer of the Medical Association of Uruguay, and five other leading figures in the Union: Juan J. Ormaechea, Nestor Figari, Alberto Cassamayou, Sergio Assandri and Carlos Buscato; and Victor Brindisi, General Secretary of the Teachers' Federation, a regional delegate of the Confederation of Latin-American Teachers and a leading figure in the National Workers' Convention.
3. 198. The World Federation of Trade Unions alleged further that sixty trade union leaders were being sought by the police, including Jose d'Elia, President, and Vladimir Turiansky, Vice-President of the National Workers' Convention, and Enrique Pastorino, President of the WFTU. In all some 1,500 workers have been arrested and threatened with trial by military courts, according to the WFTU. The latter also provided a list of 42 arrested trade union leaders, and the WCL sent a list (which it describes as incomplete) of 27 persons arrested.
4. 199. The WFTU, the WCL and the Trade Unions International of Workers of the Building, Wood and Building Materials Industries further complained that the National Workers' Convention had been dissolved by decree. The decree in question, which was issued on 30 June 1973, gave as the reason for dissolution the attitude of the leaders of the Convention, who were said to have encouraged and defended the use of violence and urged workers to occupy their workplaces thereby obstructing public services and supplies.
5. 200. When the Committee considered the case at its session in November 1973, it recommended that the Governing Body, without expressing a view as to the substance of the matter, should express its concern at these allegations and remind the Government that the Committee had always emphasised the importance which it attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists were charged with political or criminal offences which the government considered had no relation to their trade union functions, and the importance which it attached to the generally accepted principle (set out in Convention No. 87, ratified by Uruguay) that workers' organisations should not be subject to suspension or dissolution by administrative authority.
6. 201. In its communication dated 3 October 1973, the Trade Unions International of Chemical, Oil and Allied Workers stated that on 30 June 1973 the Uruguayan authorities, with support from the armed forces, brutally broke up a strike by the oil workers, members of an affiliated trade union organisation, and placed the ANCAP refinery under military control. The headquarters of the trade union concerned had been closed and its meeting outlawed. Furthermore, the President of that union, Jonds Sténeri, had been arrested and a warrant had been issued for the arrests of Daniel Baldassari, General Secretary, and of the Secretary-Treasurer. Moreover, the other Uruguayan affiliated organisation - the Glass Workers' Federation - had allegedly been prevented from exercising its normal activities.
7. 202. The World Federation of Teachers' Unions, in a communication dated 12 November 1973, asserts that the Uruguayan Government is continuing its repression of unionised teachers. The premises of teachers' unions have been broken into, typewriters and mimeograph machines destroyed and documents and records confiscated. It also claims that Victor Cayota, President of the Secondary School Teachers' Federation, has been imprisoned.
8. 203. In a communication dated 27 November 1973, the World Confederation of Labour provides a list (stated to be incomplete) of trade union leaders in custody for nearly five months. Apart from certain leaders already referred to, the following were being held in the Army Ordnance and Services College: Roberto Olmos, General Secretary, Trade Union of Graphic Arts; Héctor Betancourt, a leading figure in the Transport Federation; Honorio Libner, a leader of the National Workers' Convention and Chairman of the National Federation of Municipal Employees; Aparcicio Guzmán, a leader of the Trade Union of Graphic Arts; and Rubén Villaverde, a leading figure in the National Workers' Convention and the Federation of State Water and Sewerage Workers. The complainants also alleged that many workers were still locked up in barracks, the Montevideo police headquarters and the "Cilindro Municipal" Sports Stadium; some of their names are given. None of these persons had been sentenced or even brought to trial. Their only offence was to have defended the Constitution and freedom of association. The complainants concluded by asking the ILO to secure the immediate release of the trade union leaders and workers who were kept in gaol "so as to stifle the free and democratic trade union movement".
9. 204. In a communication dated 10 December 1973, the Latin American Federation of Workers of the Building, Wood and Building Materials Industries claimed that its affiliate in Uruguay, the Sole Union of Building and Allied Trades Workers, had had its headquarters forcibly occupied by troops, its funds confiscated and its meetings prohibited.
10. 205. In a communication received by the ILO, on 13 November 1973, the Government of Uruguay explained why it had arrested trade union leaders and dissolved the National Workers' Convention; in support of its comments, it enclosed an order approved by the Government on 30 June 1973.
11. 206. The Government begins by declaring that it has for some considerable time been making every effort to devise a solution for the country's problems which, while offering the advantages of equity, would be in the best interests of the workers themselves. To this end it has held numerous direct talks with the various branches of the labour force, patiently encouraged constructive discussions among all Uruguayan organisations of employers and workers, proposed the creation of joint advisory Committees and suggested improvements in wages and working conditions. Many trade union organisations, and the vast majority of Uruguayan workers, have been very favourably impressed by these activities and the motives behind them.
12. 207. However, the Government continues, the National Workers' Convention, led by totalitarian extremists from minority groups, has opposed the Government's policy. It has refused recognition of the right to work, championed violence, promoted the unlawful occupation of workplaces, both public and private, called for sabotage, encouraged continuous and very serious street disturbances, done its best to stop the flow of supplies to the people and tried to paralyse public services - indeed, work of any kind anywhere. It has been a matter, in the Government's view, not of a strike, but of the activities of certain fanatically anti-democratic minority groups which had pushed the National Workers' Convention into the action described as a means of producing social chaos and a change in the political, economic and social life of the nation. The violent opposition of the Convention to the authorities was not, according to the Government, due to trade union motives; it was obviously political, the prime aim being to destroy current institutions.
13. 208. The Government states that recourse to violence cannot be admitted in any organised society and must be rejected absolutely. In this connection it notes that section 80(6) of the Uruguayan Constitution lays down the suspension of civic rights for participation in political or social organisations which attempt to destroy the foundations of the national community either by violence or by propaganda advocating violence.
14. 209. The Government recalls further that section 39 of the Uruguayan Constitution entitles persons to associate for any purpose provided the association is not unlawful. Among the forms of unlawful association defined by Act No. 9936 of 18 July 1940 is that which advocates violence against the institutions of the Republic or against the civil authorities. Section 2 of the Act provides that such associations shall be dissolved and that their leaders and members participating in such activities shall be charged under the criminal law.
15. 210. These provisions, the Government adds, clearly show that the National Workers' Convention has become an unlawful association in the above sense. Its activities could, under the Criminal Code, constitute rebellion, riotous assembly, public incitement to break the law and commit criminal acts, promotion of class hatred and contempt of the public authorities. It is for the criminal courts to define the offences and the criminal responsibility of the members and officers of the organisation.
16. 211. The Government's conduct in the present case has, it states, been justified in that under the Constitution it is responsible for keeping the peace and for taking prompt and vigorous action in the event of grave and unforeseen disturbance (section 168, 1 and 17). Moreover, section 5 of Act No. 14068 of 10 July 1972 empowers the Government to suspend meetings or activities in all premises, public or private, when such meetings or activities cause, or might cause, a breach of the peace. With a view to the maintenance of order the Government has had to take the necessary measures for guaranteeing social peace and in particular to order the dissolution of the National Workers' Convention and the arrest and trial of its leaders by the competent criminal court.
17. 212. The Government, moreover, takes the view that the allegations of infringement of Conventions Nos. 87 and 98 cannot be sustained. While Convention No. 87 does require the authorities to "refrain from any interference which would restrict" the rights of organisations or hamper the legitimate exercise of those rights, it does, on the other hand, lay down that "in exercising the rights provided for in this Convention workers and employers and their organisations shall respect the law of the land". The National Workers' Convention, however, has taken the view that its independence and freedom of action are such that it can with impunity overlook the law of the land and even attempt to overturn or destroy it. It has ignored that defence of occupational interests for which trade unions exist in order to uphold certain political interests.
18. 213. Certainly, the Government continues, in any democratic society it is almost inevitable that the trade union movement shall be influenced by political parties. But it is essential to avoid a state of affairs in which the movement is used as a tool by some ideology or political faction and takes decisions which do not reflect the will of those who have freely come together in the defence of their interests.
19. 214. The observations made in respect of the National Workers' Convention, the Government considers, apply also to the complaints from the Medical Association of Uruguay and the Trade Unions international of Chemical, Oil and Allied Workers (concerning the state body ANCAP). Lastly, it affirms that it continues to observe the provisions of Conventions Nos. 87 and 98.
20. 215. The Governmental Order dated 30 June 1973, attached to the Government's letter to the ILO, declares the National Workers' Convention to be an unlawful association and decrees its dissolution. The order also decrees the closing of its premises, the attachment of its property, the freezing of all bank deposits in its name or that of any of its officers, and the arrest of these officers. Lastly, officers and members who may have carried out unlawful acts are to be tried by the competent criminal court.
21. 216. In its communication of 16 January 1974 the Government states that the imprisonment of Antonio Tamayo and the searches carried out for Enrique Pastorino are in no way related to their holding of union office. The Government says that the arrest of Antonio Tamayo was ordered by the executive authority pursuant to the declaration of a state of emergency (section 168(17) of the Constitution), and that it is because he is presumed to have engaged in subversive activities harmful to the security of the State that Enrique Pastorino is being sought. In a more recent communication, dated 31 January 1974, the Government states that Mr. Tamayo was set free at the end of December 1973.

B. B. The Committee's conclusions

1. 217. The Committee takes note of the Governments observations, and in particular of the fact that Antonio Tamayo has been set free. As regards the arrest of the other trade union leaders, the Committee notes that according to the Government they will be tried by an appropriate criminal court. It observes, however, that the Government does not indicate in its comments the present position regarding the detained persons or whether they have been brought to trial. As far as Enrique Pastorino is concerned, the Government does not provide details on the nature of the acts of which he is accused.
2. 218. In such cases, the Committee has always emphasised the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the government considers have no relation to their trade union functions or activities. Whenever the Committee has come to the conclusion, in the light of the information available, that the accused have been fairly tried by a proper court, have had the benefit of a regular judicial procedure and have been condemned for acts having nothing to do with ordinary trade union activities, it has ruled that the case did not call for further consideration. It has, however, emphasised that the question whether such a matter relates to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, but that it is for the Committee itself to decide on the point after an examination of all available evidence, especially the text of the judicial proceedings.
3. 219. As regards the dissolution, by decree, of the National Workers' Convention, the Committee once more emphasises the importance it attaches to the principle set forth in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), - ratified by Uruguay - according to which workers' organisations may not be dissolved or suspended by administrative authority. As the Committee has pointed out in other cases, dissolution by the Executive in virtue of a law conferring full powers or in the exercise of legislative functions, like dissolution by administrative authority, does not ensure the right of defence which normal judicial procedure alone can guarantee and which the Committee considers to be essential.
4. 220. The Committee has also taken note of the allegations concerning the ban on the activities of the Glass Workers' Federation and the Sole Union of Building and Allied Trades Workers, as well as the measures taken against several teachers' organisations. It has not yet received any comments from the Government with regard to these allegations.

The Committee's recommendations

1. 221. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) with reference to the alleged arrest of trade union leaders
   • (i) to take note of the Government's statement that Antonio Tamayo was set free in December 1973;
   • (ii) to draw the attention of the Government to the principles and considerations set forth in paragraph 218 above and especially to the principle that whenever trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions or activities, they should be given a prompt and fair trial by an independent and impartial tribunal;
   • (iii) to request the Government to state whether proceedings have been instituted against all these trade unionists and, if so, the nature of the court dealing with the case and the stage the proceedings have reached and to supply copies of the judgements, once they are rendered, with the grounds adduced therefor;
   • (b) as regards the alleged dissolution by decree of the National Workers' Convention to draw the attention of the Government to the importance it attaches to the principle that workers' organisations should not be subject to dissolution by administrative authority, and that likewise dissolution by the executive branch of the Government does not ensure the right of defence which normal judicial procedure alone can guarantee;
   • (c) to request the Government to furnish its observations on the alleged ban on activities by the Glass Workers' Federation and the Sole Union of Building and Allied Trades Workers and on the measures taken against several teachers' organisations;
   • (d) to request the Government to be good enough to send precise information on the nature of the acts of which Enrique Pastorino is accused;
   • (e) to take note of this interim report, it being understood that the Committee will submit a further report to the Governing Body as soon as it receives the information requested from the Government.