Informe provisional - Informe núm. 172, Marzo 1978

1. 221. The complaint from the World Federation of Trade Unions is contained in a telegram of 3 November 1975. The WFTU submitted additional information and new allegations in communications of 7 and 24 November 1975, 30 January 1976 and 19 January 1977. The Latin American Workers' Central (CLAT) also submitted a complaint, by a letter of 16 December 1975. In a communication of 31 December 1975, the World Confederation of Labour stated that it supported the allegations made by the CLAT.
2. 222. These complaints and the additional information were transmitted to the Government, which submitted comments by letters of 21 September and 5 November 1976, 14 February and 19 August 1977.
3. 223. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations made by the complainants

1. 224. The WFTU submitted the following allegations in its first communication. Joao Massena Mela, former secretary of the metalworkers' Union of Rio de Janeiro, had been arrested; Osvaldo Pacheco, former secretary of the Sao Paulo Dockworkers' Union, had been tortured; Vladimir Herzog, journalist with the cultural channel of the Sao Paulo television service had been killed; Manoel Conceicao dos Santos, president of the Maranhao Rural Workers, Union, already injured in 1968, had been tortured again on 28 October 1975. The complainants added, in their telegram of 7 November 1975, that Manoel Constantino and José Cerreiro (see below) had been arrested arbitrarily with other trade union leaders.
2. 225. In its letter of 24 November 1975, the WFTU stated that the families of the persons arrested had no idea where they were and suspected that they had been killed in prison. The complainants mentioned once again the names of Joao Massena Melo, arrested at the beginning of 1974, and Osvaldo Pacheco, (who was also president of the National Federation of Stevedores); the latter was said to have been arrested on 14 February 1975 and to have been tortured so much that he lost his reason; the complainants attached the text of an open letter from his wife denouncing this violence. The WFTU referred again to the murder of Vladimir Herzog, director of the reporters division of the second channel of the Sao Paulo cultural television service.
3. 226. The complainants added that, since 1964, the Brazilian trade union movement had been subjected to unremitting repression and interference on the part of the authorities. They quoted statements made to the press by several trade union leaders in Sao Paulo regarding deficiencies in the protection of trade union rights and the statement made by the Secretary for Public Safety in Sao Paulo to the effect that the repressive measures were caused by the state of war existing in the country. The WFTU referred again to the arrest, amongst others, of Manoel Constantino and José Cerreiro, president and vice-president respectively, of the Sao Caeteno Metalworkers' Union. It added that wages are fixed by the ministry of Labour without any consultation of the trade unions and that the latter are deprived of the fundamental right to defend the rights and uphold the demands of workers, in defiance of the law and international agreements signed by Brazil.
4. 227. In its complaint of 16 December 1975, which is supported by the WCL, the CLAT pointed out that Manoel Conceicao dos Cantos, a peasant trade union leader, had been imprisoned four years ago. After two years' imprisonment during which, according to the complainants, he was subjected to torture, he was released in a serious condition. The Cardinal of Sao Paulo had to intervene in order to have him admitted to a hospital in which he underwent a surgical operation and subsequent treatment as an outpatient. The CLAT added that this same person was again imprisoned on 28 October 1975 at Osasco (in the industrial zone of Sao Paulo) and that his present whereabouts were unknown, a fact which gave grounds to fear for his life. The CLAT also communicated a series of documents supporting its allegations.
5. 228. The WFTU further stated in its telegram of 30 January 1976 that José Manoel Fiel Filho, a militant of the metalworkers' trade union had been killed on 17 January 1976 after imprisonment by the armed forces. It also alleged, in its letter of 19 January 1977, that José Duarte, trade union leader in the national railways of the north-east, had been detained without trial since 1972. According to the WFTU, he was subjected to ill-treatment whilst in Bahia state prison and was today in a prison of the Paulo Sarasarte Penal Institute in the State of Ceará. He was 65 years old and was said to have had a heart attack as a result of this bad treatment.

B. Governmental comments

1. 229. In a communication of 21 September 1976, the Government stated that Manoel Conceicao dos Santos had been sentenced to three years' imprisonment under section 14 of Legislative Decree No. 892/69, which defines crimes against national security and political and social order. He had served his sentence and had been released on 28 May 1975. He had been arrested again on 10 November 1975 for questioning and released on 10 December 1975. In its letter of 5 November 1976, the Government stated that the Committee was not competent to examine this case, since it did not concern trade union leaders or militants. According to the Government, the persons named by the complainants did not exercise any administrative functions in a trade union, were not trade union militants and had not at any time been arrested in connection with trade union activity.
2. 230. In a subsequent letter of 14 February 1977, the Government stated the reasons for which it had been unable to provide the information requested from it. It stated that under the Brazilian Constitutional system, the executive, legislative and judicial powers were independent of each other and under the judicial procedure, it was the executive power which started proceedings. Action had been started against the persons mentioned by the WFTU before the courts of the various national States and the accused had been suspended from work pending the court holidays (extending from the 201st (November 1976) to the 202nd (March 1977) Sessions of the Governing Body).
3. 231. In a detailed letter of 19 August 1977, the Government stated that it had always expressed its support for the defence of human rights, which include trade union rights. Strict respect for the principles deriving from the Universal Declaration of Human Rights, the United Nations Charter and the ILO Constitution, which were involved in the case under discussion, did not conflict with the respect of other essential principles of international coexistence, which prohibited interference in the internal affairs of a State and those relating to its sovereignty. The information which it provided, continued the Government, had to be examined in the light of the positions of principle upheld by Brazil before the Human Rights Commission and other bodies in which the many aspects of these provisions were discussed. It had submitted the information in a desire to maintain a constructive dialogue with the Committee, to tightening its bonds with ILO and in the conviction that the information provided would constitute a complete and final denial of the allegations which had been made.
4. 232. The Government further stated that there exists in Brazil an ordinary justice, organised in accordance with the standards of the Constitution, the competence of which corresponds to the universal principle of natural law. There are neither trial privileges nor exceptional courts; penal action is conducted by a court and a judge selected according to the cause of the litigation and not the persons accused; every person can appeal against a sentence. Defence rights are fully guaranteed.
5. 233. Moreover, added the Government, the Federal Constitution protects freedom of association and expression and the right to hold political and philosophical convictions. It simultaneously prohibits all propaganda in support of war or subversion and acts designed to create or strengthen prejudice or discrimination on grounds of religion, race or social status. Violations of national security legislation (Legislative Decree No. 898/69) are also dealt with in accordance with ordinary procedure offering the aforementioned safeguards. The essential condition for any sentence based on this law is the existence of a specific fraudulent intention, the intention to prejudice or weaken internal or external state security. The Government has an obligation, it stated, to maintain the order essential for general well-being by assuring the country's development, and public security and peace. It was essential to prevent and, if necessary, to sanction acts designed to overthrow established order, destroy political institutions or harm progress and peace. Recourse was therefore had to the penal laws and the police system which these laws necessarily imply when offences are committed or when the State supposed, on the basis of well-established facts, that offences had been committed.
6. 234. The Government denied that there were political detainees in Brazil belonging to the trade union movement. Those of the persons mentioned by the complainants, who were the subject of criminal proceedings, had been accused of subversive acts; some had already been acquitted and others had been sentenced after being found guilty of violations of national security laws. They had been judged by ordinary courts, and had enjoyed the universal safeguards provided by penal procedure. The integrity and impartiality of the judges were proved by the acquittals pronounced on the grounds of inadequate legal proof and not because of the innocence of the accused persons, whose subversive activities were well known. With the exception of two cases, the Government emphasised, the persons mentioned in the complaints were not even associated with the trade union movement when they performed the illegal acts which led to their detention for the purposes of inquiry, or imprisonment on decision of the courts. The complainants had misrepresented the facts to make it appear that they affected trade union rights, which was not the case. The Government enclosed statements from employers' and workers' Confederations certifying that to the best of their knowledge nobody had been sentenced in Brazil on account of trade union activities.
7. 235. Regarding Manoel Conceicao dos Santos, the Government pointed out that he had been sentenced once for having organised the workers of several districts for political purposes, with a view to entering agricultural property, seizing land and installing peasants' families by force. The movement was directed against all owners in the area possessing enclosed properties. The enclosures were to be pulled down and destroyed, the occupants were to start collective farming there and the owners were to be prohibited passage over their own land. In the event of any of the latter reacting, they were to be assassinated by the farmers. A group of farmers, associated with the peasants' league, an illegal organisation, had destroyed the enclosures of several farm properties, under the leadership of Manoel Conceicao dos Santos.
8. 236. According to the Government, the person in question took part in clandestine activities, including guerrilla training, in the Pindare-Mirim valley in 1967. In 1968, he was injured during a clash with the police and admitted to the Maranhao State Medical Centre. As a militant activist, he had followed courses in guerrilla warfare abroad. He had been jobless for a long time and had often been arrested for interrogation in the various States which he had visited. He had no trade union connection and lived in hiding; the Government had been informed of some of his travels abroad using false passports. The Government recalled that he had been released in May 1975 and arrested again in Sao Paulo on 10 December 1975 for interrogation, but had been released the following day. It stressed that this person was a typical subversive agent who had held no job for a long time and consequently had no connection with trade union life.
9. 237. Joao Massena Melo, continued the Government, had not held trade union office for 15 years and, moreover, had had no connection with any union whatsoever since 1964. He devoted himself solely to terrorism, as he had done all his life, since he had been arrested and sentenced for illegal activities already in 1936. He went on trial in 1964 for subversion and had acted in a manner prejudicial to trade union life, and particularly in violation of section 521 of the consolidated labour legislation (conditions for the operation of trade unions).
10. 238. The Government explained that the Metalworkers' Union had been transformed at a certain stage into a centre for subversive agitation, although political and ideological propaganda were banned within organisations of that kind. Subversion had reached such a point within that union that "the sailors' mutiny" had set up its headquarters within it. Its leaders called for acts of indiscipline, rebellion and armed struggle amongst the personnel of the navy. The "sailors' mutiny", which almost led to civil war in the country, involved some dozens of rebelling soldiers who took up quarters at the union headquarters and were finally dislodged by the army in 1964. The persons concerned were tried with those who had given them backing, including some of the union's leaders. The case came before the naval court, as it involved a crime against national security. The violations of trade union life had such far-reaching effects within this union that the Ministry of Labour was obliged to put it under guardianship and penal action was finally taken against the former leaders, who had acted as subversive agents, and were responsible for misappropriations and misuse of union property. The union's finances were compromised to such an extent that the organisation was unable to resume a normal existence for a long time, and not until the situation had been restored to order by a representative of the Ministry of Labour.
11. 239. Joao Massena Melo, continued the Government, carried out subversive activities clandestinely as leader of a prohibited political party. He had been sentenced to five years' imprisonment in 1966, but did not serve his sentence, which has come under the statute of limitations. In 1969, he had again been sentenced to two years' imprisonment following another trial for which he had been under preventive arrest. Penal action was brought against him in 1971, but he was now living in hiding and his residence was unknown.
12. 240. According to the Government, Osvaldo Pacheo da Silva was one of the oldest and most active leaders of subversion in Brazil. He had been sought by the police during the 1940s, at which time he had already ceased all trade union activity and had been struck off the stevedores' roll. He subsequently succeeded in being re-registered and becoming elected president of the National Port Workers' Federation. Action had been brought against him in 1948 for subversive activities: he had stirred up about 100 political strikes in various essential services (ports, transportation, electric power), despite legal prohibition. He had been tried for subversive activities in 1953, especially for having encouraged port workers to refuse all service on American ships anchored in the port of Santos. He was considered responsible in 1955 for large-scale activities amongst peasants' leagues in rural areas. Osvaldo Pacheco who was associated with the Growers' and Agricultural Workers', Union of Brazil, an illegal organisation which sponsored the occupation of rural properties and encouraged other forms of violence, at the same time succeeded in setting up in the towns another underground organisation known as the Workers' General Command, the existence of which as a trade union organisation has never been authorised by law. In 1964, he had been acquitted under the limitation of statutes in a trial in which he was accused of violation of the law on security and he left the country. He was sentenced to nine years' imprisonment on 27 May 1966 for violation of sections 10 and 13 of the then existing law on national security (Act No. 1802/53). Having re-entered Brazil in 1968 under a false identity, he exercised various activities in the State of Rio Grande do Sul; on 26 June 1973, he was sentenced to four years' hard labour after trial for violation of section 43 of Legislative Decree No. 898/69 (reorganisation of an organisation which had been dissolved, suspended or which was prejudicial to national security). The Government emphasised that the person in question had held no trade union office since 1964, in particular because he was no longer registered on the stevedores' roll. The complaint with regard to violation of trade union freedom, or "torture" was unfounded.
13. 241. The Government stated that Manoel José Constantino had been president of the Sao Caetano do Sul Metalworkers' Union, but had left on retirement. The Government also referred to José Ferreira da Silva - and not Jose Cerreiro - vice-president of the same union. These two persons had been arrested for an inquiry as investigations had shown that they had participated in the activities of subversive groups. Manoel Josh Constantino had been held from 5 to 29 October 1975 for interrogation and had then been released. José Ferreira da Silva, who was responsible for organising subversive groups within plants, had been arrested on 4 October 1975 and released the following 18 December. The results of the investigations had been transmitted to the courts, which had acquitted the two persons for lack of proof. The Government stressed that their detention and trial had no connection with their trade union activities.
14. 242. José Duarte, stated the Government, had manifested his militancy as early as 1936, in subversive activities in the State of Sao Paulo. In 1958, he had been arrested for having led movements supporting the reorganisation of an association prohibited by law. He had been identified under a false name in 1948, as agitator in several towns in the State of Sao Paulo. He had been spotted in 1963 at meetings in support of armed revolution and reversal of the established order. He was sentenced in 1967 to one year's hard labour. Finally, in 1973, he was charged in the course of an inquiry opened in the State of Ceará for subversive activities in that State. He was at present on the run. The Government pointed out that the person concerned had held no job for a long time and that he had been sentenced not on account of his trade union activities, but for violations of national security legislation.
15. 243. The Government stated several times that these cases were not bound up with trade union activities and therefore did not fall within the terms of reference of the Committee. It added that Brazil did not submit its laws and court decisions to examination or appraisal, but in order to maintain the position of principle already referred to, it indicated the relevant regulations and provided data concerning the persons mentioned by the complainants. The Government stated that it accepted dialogue, but refused all interference in its internal affairs, such as the claim to the right to have examined by an international organisation with limited terms of reference, a matter not falling within those terms of reference. In full exercise of its sovereignty, continued the Government, Brazil ensured respect for its Constitution and other legislation and, in doing so, differed from no other country.
16. 244. The Government added that the persons referred to by the complainants had no need to be defended or protected against any danger whatsoever. Their rights and liberties had not been attacked. Three of them had been sentenced after due trial, at which the rights of defence, full publicity for the procedure and the right of appeal were at all times respected (Joao Massena Melo, Osvaldo Pacheco da Silva, José Duarte). The other three had been acquitted (Manoel Conceicao dos Santos, Manoel José Constantino, José Ferreira da Silva). Detention for interrogation had been carried out in accordance with legal police procedure and had been immediately notified to the competent judge. The detentions had been necessary to permit investigation of the responsibility of the persons engaged in illegal activities designed to overthrow established political institutions. The conclusions of the investigations carried out by the police authorities had been communicated to the Minister of the Public, for examination and transmission, if necessary, to the courts. Of the six persons mentioned, only two (Manoel José Constantino and José Ferreira da Silva) had been members of a union at the time of their short detention; they had been acquitted. The Government repeated that there was no link between the facts mentioned in the complaint and trade union rights.
17. 245. The Government then referred to the allegations regarding the death of Vladimir Herzog and Manoel Fiel Filho during their detention for interrogation with regard to subversive activities. It described in detail the investigations carried out after these two deaths and stated that the experts had arrived at the conclusion that the persons in question had committed suicide in prison without having been incited or helped. These conclusions had been transmitted to the judicial authorities, who had ordered the cases to be filed. Vladimir Herzog, added the Government, although a member of a union had never held union office; he had been arrested for activities prejudicial to national security. Regarding the arrest of Manoel Fiel Filho, this had no connection with the exercise of trade union rights.

C. Committee's conclusions

1. 246. According to the Government, the persons mentioned in the complaints, with the exception of Manoel José Constantino and José Ferreira da Silva, had no connection with the trade union movement at the time of their arrest or sentence. They were performing no functions at that time in the administration of the unions, were not militant trade unionists and had not been arrested for trade union activities. Consequently, the Government considers that the Committee is not called upon to consider these matters since its competence extends only to specific cases of violation of freedom of association.
2. 247. The Committee wishes to point out that it has frequently examined complaints concerning the detention of former trade union leaders with a view, particularly, to determining on the basis of all the available information, whether the measures taken against them were not related to their previous trade union activities. In the present case, several of the persons mentioned had previously held trade union office. At the same time, the Committee has always considered that when persons are sentenced on grounds having nothing to do with the exercise of trade union rights, the matter lies outside it terms of reference. It nevertheless has an obligation to check for itself, on the basis of all the information available, whether these persons were sentenced for acts covered by penal law or for trade union activities.
3. 248. In the case under consideration, the Committee notes in particular that Manoel José Constantino and José Ferreira da Silva were acquitted by the courts for lack of proof, after several weeks' detention during the last quarter of 1975.
4. 249. Regarding Joao Massena Melo and Osvaldo Pacheco, it seems clear that these persons had held no trade union office for a long time. Regarding Manoel Conceicao dos Santos, the information available shows that he had formed a peasants' union with a membership of around 50,000 in the north-east of the country, which had mainly participated in the occupation of land. On his release from prison in 1975 he had sought to become a normal member of society by working as cabinet-maker in the south of the country. He had attended a seminar on active non-violence and had been arrested shortly after the meeting. Moreover, the information available does not make it possible to conclude whether Vladimir Herzog and Manoel Fiel Filho had performed activities or held office in a trade union. It consequently does not seem to appear from the information available to the Committee that the persons mentioned in this paragraph were arrested or sentenced for trade union activities.
5. 250. Regarding José Duarte, the Committee notes that the Government does not reply to the allegations made by the complainants to the effect that he had been a union leader on the railways in the north of the country.
6. 251. The Committee must also point out that it has before it allegations and public information to the effect that some of the persons mentioned in the complaint were subjected to ill-treatment. It notes that the Government's detailed rely in this connection is limited to the allegations concerning the deaths of Vladimir Herzog and Manoel Fiel Filho. The Committee has also noted certain contradictions between the information provided by the complainants and that provided by the Government. In particular, according to the complainants, Joao Massena Melo and José Duarte have been under arrest since the beginning of 1974 and since 1972, respectively (in the latter case, the WFTU even indicated the prison in which the person concerned is said to be held), but according to the Government these persons have fled or are in hiding.