Informe provisional - Informe núm. 243, Marzo 1986

1. 447. The Committee examined this case at its February, May and November 1985 meetings, when it presented interim reports to the Governing Body. (See 238th Report, paras. 330 to 364; 239th Report, paras. 298 to 340; and 241st Report, paras. 750 to 805, approved by the Governing Body at its 229th, 230th and 23lst Sessions respectively (February-March, May and November 1985).)
2. 448. Since then, the ILO has received the following communications from the complainants: International Confederation of Free Trade Unions (ICFTU): 23 October and 6 November, 2 December 1985 and 6 February 1986; National Federation of Trade Unions of Crews and Similar Branches of Chile: 30 October 1985; Trade Unions International of Workers in the Metal Industry: 1 November 1985; World Confederation of Organisations of the Teaching Profession (WCOTP): 6 November 1985; World Federation of Trade Unions (WFTU): 6 November 1985, 17 and 28 January 1986; World Federation of Teachers' Unions (FISE): 6 December 1985. The Government, for its part, sent its observations in communications of 21 and 28 November 1985, 16 and 19 December 1985 and 10, 20 January and 4 February 1986.
3. 449. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. Previous examination of the case

1. 450. The complaints presented in the present case concerned a number of events that have taken place in Chile since September 1984. The allegations referred to the intervention of the forces of order on the occasion of the Protest Day held on 4 September 1984, which is said to have resulted in the death of ten persons, many injuries and over 1,000 arrests. The complainants referred in particular to the case of Juan Antonio Aguirre Ballesteros who, they said, had been arrested and tortured and whose body had subsequently been found. In this connection, the Government indicated that inquiries were being carried out by the competent criminal courts.
2. 451. It appeared, in the light of the allegations made, that the headquarters of certain trade union organisations (in particular the Confederation of Building Workers, the Professional Association of Teachers of Chile (AGECH) and the Chilectra Trade Union) had been attacked by the police and that material had been destroyed, documentation confiscated and trade unionists arrested. The Government denied that it had given orders for the trade union premises in question to be searched. Furthermore, on the day following the attack on the AGECH premises, Messrs. Manuel Guerrero, President of the Metropolitan Sector of this organisation, and José Manuel Parada, an official of the Vicariate of Solidarity, were kidnapped in the street. Their bodies were subsequently found horribly mutilated. The Government stated that a judicial inquiry had been opened.
3. 452. The complainants also referred to numerous arrests and the banishment of trade unionists. According to the Government, some of these trade unionists had not been arrested, others had been released and the reasons for the banishment were not related to trade union activities. More recent allegations mention the indictment and provisional arrests of trade union leaders following the Protest Day held on 4 September 1985.
4. 453. The Committee also had before it allegations concerning infringements of the exercise of the right of assembly, in particular measures taken against a works union of the National Copper Corporation.
5. 454. Finally, it was alleged that trade union leaders had been dismissed in the teaching, ports and mining sectors.
6. 455. At its November 1985 Session, the Governing Body approved the following conclusions of the Committee:
   • a) The Committee notes that, since its last examination of this case, several matters which have been the subject of allegations before the Committee have not been dealt with by the administrative authorities, but have been placed before the judiciary.
   • b) As regards the inquiries carried out into the death of Messrs. Aguirre, Parada, Guerrero and Natina, the Committee notes that proceedings are still at the investigatory stage. While observing the excessive duration of these investigations, it expresses the firm hope that these inquiries will be concluded rapidly and will result in the determination of responsibilities so that the guilty parties can be punished. The Committee requests the Government to keep it informed of developments in these matters.
   • c) As regards the attacks against trade union premises, the Committee notes that, according to the Government, the forces of order did not enter these premises. The Committee stresses the importance of protecting trade union premises. It urges the Government to initiate judicial inquiries into the matter so that the responsible parties may be identified as soon as possible and requests the Government to keep it informed in this respect.
   • d) As regards the arrest and banishment of trade unionists, the Committee notes that the persons mentioned in the Annex to its previous report have regained their freedom of movement. It observes, however, that despite the lifting of the state of siege, several allegations refer to new arrests and banishments concerning which the Government has supplied certain information. The Committee requests the Government, with a view to restoring social peace and normal trade union activities, to take the necessary measures to end the banishments as soon as possible. It also asks the Government to keep it informed of all steps taken to this end.
   • e) As regards the indictment and preventive detention of trade union leaders, the Committee points out that the arrest by the authorities of trade unionists against whom no subsequent charges are brought may involve restrictions on freedom of association. The Government should take measures to ensure that the authorities concerned receive appropriate instructions to prevent the dangers involved for trade union activities by unjustified measures of arrest. The Committee reminds the Government that trade union organisations should be able to have recourse to protest strikes with a view to defending the economic and social interests of their members. It requests the Government to supply information on the outcome of the judicial proceedings under way against those responsible for and the organisers of the day of protest held on 4 September 1985.
   • f) As regards the right of assembly, the Committee recalls in general that freedom of trade union assembly is one of the fundamental aspects of trade union rights and that the public authorities should refrain from any interference which is likely to limit this right or impede its lawful exercise.
   • g) As regards the dismissals of trade union leaders, the Committee points out that the dismissal of a trade union leader is liable, by reason of the fact that dismissal causes him to lose his status as a trade union officer, to infringe the freedom of association of his organisation and its right to elect its representatives in full freedom and may even leave the way open for acts of interference by the employer. The Committee requests the Government to furnish its observations concerning the dismissals of trade union leaders in the teaching and port sectors.

B. New allegations

1. 456. In its communication of 23 October 1985, the ICFTU gives details of the measures taken by the Government following the Protest Day of 4 September 1985. It explains that, on the following day, the Government, acting through legal counsel of the Ministry of the Interior, lodged complaints against many trade union leaders on presumption of their responsibility in the violent acts which took place during the protest. According to the ICFTU, there were no grounds for the legal proceedings which resulted. It points out that the persons concerned included Sergio Troncoso, who had been banished to Melinka, Humberto Arcos, who was undergoing medical treatment in France, and José Ruiz di Giorgio, who was at that time in Magallanes taking part in a collective bargaining session. In the view of the ICFTU, this proves that the aim was not to arrive at the truth and to seek justice, but merely to break up trade union organisations by immobilising their leaders and keeping them out of the way.
2. 457. The complaint lodged against 95 trade union leaders was rejected in the first instance, continues the ICFTU. The Ministry of the Interior then lodged an appeal with the Sixth Chamber of the Court of Appeal. On 23 September the Court decided to charge Messrs. Rodolfo Seguel and Manuel Bustos for contravention of the State Security Act (participation in meetings for the purpose of conspiring to destabilise the legally constituted Government, holding of unauthorised demonstrations on the public thoroughfare, attempts to paralyse national activities). The ICFTU states that the Court refused to hear the counsel for the defence on the pretext that they were not parties in the case. On 27 September 1985 many trade union leaders were heard by the courts, arrested and later charged.
3. 458. In their communications of 6 November 1985, the ICFTU and the WFTU once again draw attention to the situation of Rodolfo Seguel, Manuel Bustos, Arturo Marténez, Eduardo Valencia, Mario Araneda and José Ruiz di Giorgio, still under arrest. The ICFTU also mentions the arrest on 31 October 1985 of Adrián Fuentes, Acting President of the Confederation of Building Workers, and María Rozas, President of the Women's Department of the National Trade Union Co-ordinating Body. The WCOTP refers to the arrest of the latter in its communication of 6 November 1985.
4. 459. In its communication of 30 October 1985, the National Federation of Trade Unions of Crews and Similar Branches of Chile reports that, on 8 August 1985, a leader of the Inter-Enterprise Port Workers' Union of the Province of Concepción, Mr. Manuel Jerez Alvarado, was summoned to attend the Maritime Governor's Office in Talcahuano the next day to answer an accusation made by the "Viento Sur" Fishery Company regarding his differences with the management due to his defence of certain workers. The Governor's Office withdrew his work booklet, and the undertaking dismissed him three days afterwards, requesting the courts to waive his trade union immunity. Moreover, the Governor's Office fined him about 22,000 pesos, a sum which he is unable to pay.
5. 460. The Trade Unions International of Workers in the Metal Industry, in its communication of 1 November 1985, refers to the arrest of two leaders of the Confederation of Workers in the Metal Industry (CONSTRAMET), José Ramón Avello Soto and José Enrique Nuñez Estrella, on 4 August 1985 and their subsequent banishment to the island of Melinka. It also mentions the arrest, on 5 September 1985, of another official, Ana María Miranda Urbina, Director of the Cultural Department of CONSTRAMET.
6. 461. In its communication of 2 December 1985, the ICFTU alleges that, on 29 November 1985, a number of trade union leaders in the maritime and port sector were arrested by the police while protesting against the Government's economic and social policy. The persons named are Sergio Aguirre, an official of the San Antonio Port Workers' Union; Salatier Sánchez, President of the CONGEMAR Union; Walter Astorga, a seamen's leader from the bay of San Antonio; Víctor Guerra, an official of the CONGEMAR Union; Héctor Aguayo, General Secretary of the Maritime Confederation of Chile (COMACH); Luis Salas, President of COMACH; Heriberto Jara, President of Dockers' Union No. 1 of Valparaiso; Mauricio Riquelme and Pedro Morales, officials of COMACH. These persons and nine other trade unionists are now alleged to be in custody at the First Police Commissariat of Santiago. The ICFTU points out that the CONGEMAR Union and COMACH have been on strike for a month.
7. 462. The FISE, in its communication of 6 December 1985, mentions the arrest of Father Renato Hevia, director of the review Mensaje and member of the Professional Association of Teachers of Chile.
8. 463. In its communication of 17 January 1986, the WFTU estimates that 5,000 persons were arrested and 67 killed in 1985. In addition, 590 trade union activists are said to have been banished to other parts of the country by government decision. Since in its view the Government is continuing to ignore the recommendations of the Committee and the Governing Body, the WFTU requests that a commission be sent to Chile.
9. 464. In its communication of 28 January 1986, the WFTU alleges that on 5 and 6 November 1985 during a protest demonstration organised in solidarity with the arrested trade unionists, four persons were killed. According to witnesses, three of them were killed by military personnel and one by civilians who fired shots from a van. In addition, on these days, 26 persons were banished to the north of Chile.
10. 465. The WFTU also mentions the case of three teachers of the No. 182 School "Puerto Navarino", who were dismissed for having protested against being paid with worthless cheques.
11. 466. The WFTU refers to the arrest on 4 December 1985 at Rancagua of Rodermil Aranda Flores, leader of the Trade Union of the Caletones Mines. His house was searched and a poster, a cassette and a publication were seized. He was, however, accused of stocking abundant material for subversive activities, such as explosives and paramilitary type equipment.
12. 467. In addition, the WFTU alleges the dismissal of the President of the Metropolitan Medical College, Dr. Ricardo Vacarezza, as a reprisal for his stance against the Government's health policy. A solidarity meeting organised by doctors was allegedly prohibited.
13. 468. In its communication of 6 February 1986, the ICFTU alleges that, on 20 January 1986 following a request from the Ministry of Labour, a Santiago court annulled the elections which had been held during the last congress of the Copper Workers' Confederation in January 1986. In addition, the elected officers (including Rodolfo Seguel, re-elected President by a majority vote) can neither express opinions nor represent their union on pain of imprisonment. On 31 January, Labour Ministry officials, supported by the police, confiscated the Confederation's assets and froze its bank accounts, thus preventing the Confederation's 29 employees from being paid.

C. The Government's reply

1. 469. It appears from the various replies of the Government that, after the violent events of 4, 5 and 6 September 1985, the Ministry of the Interior lodged a complaint with the ordinary courts to determine who was responsible for instigating, fomenting or taking part in the protest. The Government states that ten persons lost their lives during those days, that about 100 were injured, and that 18 policemen were seriously injured. The acts of violence and the ransacking of various commercial establishments caused 100 million pesos' worth of damages, and many public places were also damaged.
2. 470. The Court of Santiago appointed Mr. Sergio Valenzuela Patiño as magistrate to examine the complaints of contravention of sections 4(c), 6 i)and 11(2) of the State Security Act No. 12927, adopted in 1958. These sections refer to meetings with a view to overthrowing the Government or conspiring to destabilise it; the holding of unauthorised demonstrations on the public thoroughfare; and the unlawful interruption or collective suspension of, or strikes in, public services, services essential to the public, production activities, transport or commerce which provoke disturbances of the peace, disruptions in services essential to the public or damage to vital industries.
3. 471. The examining magistrate ordered the arrest of, and brought charges against, 12 persons whom he considered to bear the responsibility for the offences under the State Security Act. This decision was confirmed by the Court of Appeal and the Supreme Court following appeals presented by the defendants. The magistrate released eight of the accused on bail (Rodolfo Seguel, Luis Campos, José Figueroa, Arturo Marténez, Jorge Pavez, Samuel Bello, Carlos Poblete and José Rivera). Only four of the accused were denied release on bail by the examining magistrate: Manuel Bustos, José Ruiz di Giorgio, Mario Araneda and Eduardo Valencia, against whom proceedings were under way. Following an uprising in the Santiago Penitentiary, the prisoners were transferred to an establishment named Capuchinos, which is more comfortable and where security is stricter. All the releases on bail were confirmed by the Court of Appeal with the exception of those of Rodolfo Seguel and Arturo Martínez.
4. 472. Following further appeals presented by their counsel, Rodolfo Seguel, Eduardo Valencia and Arturo Martínez were released on bail on 27 November 1985. Subsequently, on 18 December 1985, the Court of Appeal unanimously decided to dismiss the charges against José Ruiz di Giorgio, since his participation in the offences was not proven. He was released the same day. The Court also decided to release Mario Araneda provisionally, but maintained the charges against him. The Court unanimously refused to dismiss the charges against Manuel Bustos and to release him provisionally. His counsel stated that he intended to reapply for his release on bail in January 1986. In this connection, the Government states that, in accordance with Chilean criminal procedure, provisional release may be requested as often as necessary before an individual is finally released.
5. 473. Finally, on 23 December 1985, the Court of Appeal unanimously decided to release Manuel Bustos on bail, and he left prison on the same day.
6. 474. As the regards the events of 4, 5 and 6 September 1985 which gave rise to the charges, the Government remarks that there were no strikes in the public service on those days. It reaffirms that the arrested trade unionists were released by decision of the examining magistrate and the Court of Appeal and that the judges and courts are independent. Consequently, the executive cannot give any instruction regarding the manner in which the law is to be applied. As regards the strikes, the Government recalls that Legislative Decree No. 2758 of 1979 to lay down rules for collective bargaining and strikes is fully applied in the country. Thus, between August 1979 and June 1985, there were 274 strikes, involving 63,496 workers and representing 5,114 lost workdays. It is thus clear, according to the Government, that workers' organisations have made use of strike action to defend the economic and social interests of their members. The Government also furnishes detailed statistics on collective agreements concluded between employers and workers.
7. 475. As regards the allegation relating to the arrest of Father Renato Hevia, the Government states that the Ministry of the Interior has requested the appointment of a magistrate to investigate the articles published in the Catholic review Mensaje managed by the person concerned. The First Chamber of the Court of Appeal of Santiago charged Father Hevia with insulting the President of the Republic and ordered him to be placed in preventive custody. The examining magistrate, following his investigations, concluded that there was insufficient evidence and provisionally dismissed the case, releasing the accused on bail. Finally, the Government states that there is no evidence that Father Hevia is a trade union official or member, or that he is a member of the AGECH. In the Government's view, this proves yet again that freedom of association bodies are being used for the sole purpose of embarrassing a member State.
8. 476. As regards the arrest of trade union officials in the port sector, the Government points out that these persons were arrested for having caused disturbances on the public thoroughfare on 29 November 1985, preventing movements of pedestrians and vehicles. A trade union official asked the Minister of Labour to intervene to obtain their release. The Minister obtained their release against a bail of 780 pesos (about US$4) for each of them and paid this sum himself.
9. 477. In connection with this case, the Government recalls that the offices of the ILO were illegally occupied by five persons for five days. It considers that the occupation of offices, the taking of hostages and illegal confinement for the purpose of attracting attention is an inadmissible way of exerting pressure, particularly when there are appropriate channels for dealing with freedom of association matters.
10. 478. As regards the strike of maritime and port workers in the ports of Valparaéso and San Antonio, the Government explains that the organisation of work in this sector was altered by Act No. 18032 in September 1981. According to the Government, this Act put an end to practices that were highly unfavourable to the workers, such as the hiring out of work permits, under which the worker had to pay half of the remuneration he received to the owner of the workbook or labour permit. This Act was therefore widely supported by the workers. With a view to improving the new system, tripartite commissions were set up and their studies resulted in a Bill to introduce major improvements in the fields of work and social welfare; this entered into force on 1 December 1985. Finally, the Government states that no trade union leader in the maritime and port sector is under arrest and that work is proceeding normally in all the ports of the country.
11. 479. In its communication of 4 February 1986, the Government provides information on the persons alleged to have been banished or arrested (see Annex). As regards the banishments, the Government states generally that these measures - which cannot last longer than 90 days - were taken by virtue of the powers given to the Chief of State by the Constitution. The reasons behind these measures were participation by the persons concerned in clandestine partisan politics which had no relation to the trade union activities they allegedly carried out.
12. 480. As regards the allegations of dismissals in the teaching sector, the Government indicates that the dismissals in the Castro municipality were necessary for the efficient operation of the service. In all cases, cheques covering compensation and salary adjustments were given to those concerned by the Labour Inspectorate and corresponding receipts were signed. As for Mr. Juan Ruíz Campos, dismissed in the Puerto Montt Municipality, the Government states that he appealed on the grounds of unjustified dismissal to the 2nd Civil Court at Puerto Montt. On 15 April 1985 the court confirmed the dismissal which had been based on violation of the State Security Act. The judgement is now executory.
13. 481. As regards the dismissal of Mr. Sergio Aguirre of the Chile Port Company, the Government states that the employer invoked the efficient functioning of the service and a reorganisation. According to the Government it was therefore not an anti-union discriminatory measure.

D. The Committee's conclusions

1. 482. The Committee notes that, since its last meeting in November 1985, the Government has supplied information on further developments in the judicial proceedings against the organisers of the Protest Day of 4 September 1985. It appears from this information that 11 of the 12 trade union officials initially arrested and charged have been released on bail and that the charge against one of them (José Ruiz di Giorgio) has been dismissed. All the accused have therefore been released. The Committee notes that these charges were brought for contravention of the State Security Act, and in particular the provisions relating to the organisation of meetings aimed at overthrowing the Government, holding unauthorised public demonstrations and organising illegal strikes. In connection with the strikes, the Committee notes the statistics supplied by the Government on the organisation of such action since 1979. It recalls, however, that under the provisions of the Chilean legislation relating to the calling of strikes (sections 45 to 55 of Legislative Decree No. 2758), a strike may be decided on only in connection with the renewal of collective agreements. These provisions also rule out the calling of strikes by federations and confederations. In this connection, the Committee must stress that that the prohibition on the calling of strikes by federations and confederations is incompatible with the principles of freedom of association and that the occupational and economic interests which the workers defend by resorting to strikes do not merely concern better conditions of work or collective claims of an occupational nature but also the seeking of solutions to economic and social policy questions (see 214th Report, Case No. 1081 (Peru), para. 261; 217th Report, Case No. 1089 (Upper Volta), para. 239).
2. 483. In the present case, while noting that the accused have been released on bail, the Committee requests the Government to supply information on developments in the trials under way and on their results, once the judgements have been handed down.
3. 484. As regards the arrests of trade union leaders in the port sector during a demonstration, the Committee also notes that the persons concerned were released after the Minister of Labour stood bail for them. The Committee understands, however, that the charges against these persons have not been dropped. It therefore requests the Government to supply information on the judicial proceedings against them.
4. 485. As regards the arrest and banishment of other unionists, the Committee notes that, according to information supplied by the Government (see Annex), some of these persons were simply requested to undergo a control of their identity papers or to give evidence in the framework of the inquiry into the September 1985 Protest Day. On the other hand, other persons were banished. The Government limits itself to indicating that these banishments were based on clandestine partisan political activities, and does not mention the concrete acts in question. The Committee observes once again that these banishments affect trade union leaders and therefore must have directly affected the functioning of the trade union organisations. It firmly requests the Government once again to take the necessary steps so that such measures, which do not provide for any judicial guarantees, are not taken again.
5. 486. The Committee also takes note of the information provided by the Government that the dismissals of trade unionists in the teaching and port sectors were based, in its opinion, on reasons connected with the functioning of services. In one case, however, the dismissal was justified because of violation of the State Security Act, although the precise acts giving rise to these violations were not supplied to the Committee. The Committee would, in general, express its concern over the fact that workers can lose their jobs after being arrested or sentenced for having committed acts which the national legislation deems to be crimes, but which, according to generally recognised principles, could be considered as normal and lawful trade union activities.
6. 487. Finally, the Committee notes that the Government has supplied no information on the most recent allegations in this case, namely the death of four persons during demonstrations on 5 and 6 November 1985, the arrest of Rodemil Aranda, a leader of the Trade Union of the Caletones Mines and the dismissal of trade union leaders in the health and port sectors, Ricardo Vacarezza and Manuel Jerez Alvarado, respectively, the cancellation of the Copper Workers' Confederation elections and the confiscation of this organisation's assets. The Committee expresses the hope that this information will be transmitted as soon as possible.

Z. ANNEX

• LIST OF PERSONS MENTIONED BY THE COMPLAINANTS AS HAVING BEEN ARRESTED AND THE
• GOVERNMENT'S REPLIES THERETO ARAYA Lorenzo President of the Antofagasta
• Building Workers' Trade Union, banishment ended on 14.6.85. DIANTA Pablo
• Leader of the San Antonio Building Workers' Trade Union, banishment ended on
  28. 286.85. RIVAS Abraham Treasurer of the Concepción Building Workers' Trade
• Union, banishment ended on 13.5.85. DEIJ Antonio Secretary of the Concepción
• Building Workers' Trade Union, banishment ended on 13.5.85. ROZAS María AGECH
• leader. Interpellated on 4.11.85 for acts disturbing vehicular and pedestrian
• traffic. Released after an identity check. JEREZ Mercedes AGECH leader. Called
• to give evidence in the inquiry into the events of September 1985. Remains
• free. GALLARDO Claudio CONSTRAMET leader, banishment ended on 16.12.85.
• MARTINEZ Arturo Called to give evidence in the inquiry into the events of
• September 1985. Remains free. SOTO Humberto Secretary-General of the Unitary
• Front of Workers. Called to give evidence in the inquiry into the events of
• September 1985. Remains free. LILLO Edmundo President of the National
• Federation of Workers in Commerce. Called to give evidence in the inquiry into
• the events of September 1985. Remains free. OSORIO Eduardo AGECH leader.
• Called to give evidence in the inquiry into the events of September 1985.
• Remains free. FIGUEROA José Substitute President of the Confederation of
• Building Workers. Called to give evidence in the inquiry into the events of
• September 1985. Remains free. RIVERA José National leader of the
• Confederation of Building Workers. Called to give evidence in the inquiry
• into the events of September 1985. Remains free. MIRANDA Ana María Official,
• Cultural Department of the Confederation of Workers in the Metal Industry.
• Interpellated on 4 September 1985 for acts interrupting vehicular and
• pedestrian traffic. Released after an identity check. NU EZ José Enrique
• Official of the Confederation of Workers in the Metal Industry, banishment
• ended on 5.11.85. AVELLO José Ramon Official of the Confederation of Workers
• in the Metal Industry, banishment ended on 5.11.85. FUENTES Adrián Acting
• President of the Building Workers' Confederation, banishment ended on
  15. 157.85.