Rapport intérimaire - Rapport No. 133, 1972

1. 251. This case was last examined by the Committee at its session in March 1972, when it submitted to the Governing Body an interim report which is contained in paragraphs 235 to 266 of its 129th report.
2. 252. In the above-mentioned report the Committee recommended the Governing Body to request the Government to furnish the text of the judgements which had been, or would be, handed down in the cases of Daniel Cabrita, Antonio dos Santos and Maria Julia dos Santos, all trade unionists who were stated by the complainants to have been arrested by the authorities. The Committee also recommended the Governing Body to request the Government to send the texts of the decisions taken and the grounds adduced therefor in the proceedings relating to the removal from office of the responsible leaders of the Oporto and Lisbon branches of the National Union of Bank Employees.
3. 253. On 22 February 1972, the ICFTU communicated additional information in connection with the complaints. In two communications dated 19 May 1972, the Government transmitted further observations in connection with the case and the text of one of the judgements which had been requested from it.
4. 254. Portugal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
   • Allegations concerning the Arrest of Trade Union Leaders

A. A. The complainants' allegations

1. 255. The Committee recalls that the complainants had alleged that Mr. Daniel Cabrita, General Secretary of the National Union of Bank Employees, had been arrested on 30 June 1971 for having signed a letter to the Minister of Corporations and to the ILO protesting against the choice of the Portuguese Workers' delegation to the 56th Session of the International Labour Conference in June 1971. It had also been alleged that Antonio dos Santos, Secretary of the National Union of Journalists and Maria Julia dos Santos, General Secretary of the Commercial Employees' Union, had been arrested as measures of reprisal in connection with the said protest. The allegation was also made that Daniel Cabrita and Maria Julia dos Santos had been prevented from making any contact with their respective counsel. In this connection, the Government had denied that these arrests were related to the protest made, adding that they were motivated by the subversive activities against the security of the State carried out by the persons mentioned.
2. 256. In its communication dated 22 February 1972, the ICFTU indicated, in particular, that Manuel Candeias, President of the Metalworkers' Union (Lisbon Branch), Alfonso Rodrigues and José Marcelino, members of the joint labour-management committee of the Portuguese Airlines, and Augusto Rosa, had been sentenced together with Mr. Cabrita. The complainants also communicated the dismissal from union office of the leaders of the Lisbon Branch of the National Union of Bank Employees.
3. 257. In its latest communication the Government states that, as may be seen from the texts of the judgements, the measures taken against the trade unionists in question and the sentences imposed were in no way connected with their normal trade union activities, but on the contrary, were taken as a result of activities which were subversive and in blatant violation of the Constitution and of the Penal Code. These trade union leaders were tried before a common criminal tribunal consisting of three judges and in the presence of the representative of the public prosecutor and counsel for the defence, who had been freely chosen by the accused. Throughout the proceedings, continues the Government, all the usual standards applicable in criminal procedure were observed and the accused were afforded, and made use of the usual facilities in the preparation of their defence.
4. 258. The Government explains that, in accordance with article 8 of the Constitution, as recently amended, no person may be deprived of his liberty, or be preventively detained, except in the cases and conditions prescribed in paragraphs 3 and 4 of that article. These paragraphs provide that the law may permit preventive detention for a person who is caught in the commission of a crime or for acts involving criminal intention in respect of which a penalty of imprisonment of more than one year would be imposed. Preventive detention in cases where guilt has not been established is limited to periods fixed by law and may be ordered only if there are strong suspicions that the person has committed the crime. The Government continues that, apart from cases where persons are caught in the commission of a crime, imprisonment in a public prison or detention in a private dwelling-house or mental institution can be ordered only by a writ issued by the judicial authority or such other authorities as may be expressly indicated in the law and setting out the grounds on which the imprisonment or detention has been ordered. Imprisonment, in cases where guilt has not been established, is subject to confirmation, after the accused has been given a hearing, within the time-limits prescribed by law. Imprisonment will not be ordered or confirmed if it can be replaced by measures of provisional liberty, legally granted, which may be sufficient to achieve the necessary ends. The habeas corpus procedure may be used in cases where there has been an abuse of authority.
5. 259. With regard to the question of communication with other persons, the Government explains that, in accordance with section 274 of the Code of Criminal Procedure, before the first interrogation-that is to say, before statements are made to the Public Ministry-prisoners whose guilt has not been established may not contact any person; once the statements have been made they may do so unless the Public Ministry, by a properly founded order, directs that they be kept in prison for a period, which may not exceed 48 hours. In the latter case, the person detained may make contact with his relatives or spouse, although he may not discuss any matters relating to the crime.
6. 260. As for the health of prisoners, this, according to the Government, is perfectly welt assured by the private medical prison services, and they may be cared for at their own expense by a doctor of their own choice.
7. 261. All the above measures were taken, states the Government, in the cases referred to in the complaints.
8. 262. Accordingly, adds the Government, it was not possible for the counsel of Maria Julia dos Santos and Daniel Cabrita to see them, contact them or be present when they made their initial statements. On the other hand, states the Government, it is not known whether Maria Julia dos Santos requested the aid of a private doctor since she would, in any event, receive all the medical care she required or requested. For his part, Daniel Cabrita was cared for by a doctor of his own free choice.
9. 263. The Government emphasises that the law of Portugal does not differ in these respects from the laws of other countries, and is in harmony with the conclusions of the Committee established by the Commission on Human Rights in 1961/62.
10. 264. The Government adds that the judgement in the case of Maria Julia dos Santos has not yet been rendered, but that it will be communicated to the Committee in due course.
11. 265. On a number of occasions in the past the Committee has pointed out that, in cases of allegations relating to the prosecution and sentencing of trade union leaders, the only question to be decided is the real reason for which the measures complained of were taken, and only if these measures were taken by reason of legitimate trade union activities can there be any infringement of freedom of association. The Committee has also stressed that when it has been learned that the persons concerned have been judged by the competent judicial authorities, with the safeguards of normal judicial procedure, and sentenced on account of actions unconnected with normal trade union activities or going beyond the scope of normal trade union activities, the Committee has considered that the case called for no further examination.
12. 266. The Committee notes the Government's explanation that, in the present case, the persons who have already been tried, namely Daniel Cabrita, Manuel Candeias, Alfonso Rodrigues, José Marcelino, Augusto Rosa and Antonio dos Santos, were tried before the common criminal court, that they were subject to the ordinary rules laid down in the Code of Criminal Procedure and that they were sentenced following a full examination of the evidence relating to the case. The Government has attached to its communication the text of the conclusions relating to the case of Antonio dos Santos. According to the Government, Antonio dos Santos was sentenced on account of the subversive nature of the acts which he committed. From the text of the conclusions it appears that such acts were of a political nature. As regards Daniel Cabrita and the other persons mentioned above, the Government states that they were sentenced for having carried out subversive activities as members of the Communist party, which, according to the Government, is a secret, subversive and unlawful Organisation which, by violent or unauthorised means, seeks to alter the Portuguese Constitution or destroy or change the method of government of the State of Portugal. The Government has transmitted certain court documents, but it has not supplied the text of the sentence in the case of Daniel Cabrita and his co-defendants.
13. 267. With regard to the case of Antonio dos Santos, the Committee notes that this person was sentenced by the ordinary criminal court for reasons unconnected with the normal exercise of trade union activities. The Committee, accordingly, recommends the Governing Body to decide that this aspect of the case calls for no further examination. With regard to the case of Daniel Cabrita and his co-defendants, the Committee notes the explanations supplied, and the court documents transmitted by the Government. The Committee is unable, however, to reach its conclusions on this aspect of the case until the full text of the sentence reached by the criminal court has been made available to it. It accordingly recommends the Governing Body to request the Government to supply the text of the sentence. With regard to the case of Maria Julia dos Santos, the Committee notes that judgement has not yet been rendered and, accordingly, recommends the Governing Body to request the Government to supply the judgement, as well as the grounds adduced therefor, as soon as these documents are available.
    • Allegations concerning the Banning of Inter-Union Meetings
14. 268. When it previously examined this case the Committee, on the question of allegations relating to the banning of inter-union meetings, drew attention to the principle that freedom of assembly for trade union purposes constitutes one of the fundamental elements of trade union rights and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee also considered that it was for the workers' organisations themselves to decide on the desirability of holding joint meetings for the purpose of discussing trade union problems of common interest, without the law or the authorities restricting the exercise of this right.
15. 269. In its latest communication, the Government emphasises that the authorities do not intervene in inter-union meetings except, as a general principle, to make statutory provision for the right of assembly. The Government adds that occupational organisations are free to decide whether such meetings should be held and are, in fact, encouraged by the authorities to hold inter-union meetings when questions such as the joint negotiation of collective contracts or agreements need to be discussed. Where the National Institute of Labour and Social Welfare was obliged to intervene, it did so at the request of the parties concerned since they considered that their rights and interests were jeopardised.
16. 270. In this connection, the Committee, noting the explanations supplied by the Government, would again recommend the Governing Body to draw the attention of the Government to the principles mentioned in paragraph 268 above, and to point out that it is for the executive organs of trade unions to adopt the measures which they consider appropriate, and in particular, to define responsibilities and specify their own positions when, as seems to have been the case, certain problems arise as to the adoption of decisions on behalf of trade unions not having participated in inter-union meetings.
    • Allegations concerning the Suspension and Dismissal from Office of Trade Union Leaders and the Closing of Trade Union Offices
17. 271. The Committee recalls that, in connection with certain allegations concerning the suspension by the labour tribunal of all the leaders of the Oporto branch of the National Union of Bank Employees and the closure by the police of the offices of that branch and the Lisbon branch, it noted that the decision to close the offices in question had been taken by an administrative body, namely the Public Security Council, in the absence of any previous judicial proceedings where the parties could have exercised their right to defend their interests.
18. 272. The Government, in its communication, states that the closing of trade union offices was a temporary measure taken by a body of persons which, although of an administrative nature, was composed of persons capable of giving careful consideration to the collective interests of the parties concerned. The Government adds that this procedure is resorted to only where the gravity of the situation is such that any lengthy judicial proceedings are to be avoided.
19. 273. With regard to this aspect of the case, the Committee, while it notes the explanations supplied by the Government, can only once again emphasise that it is of the greatest importance that, in order to guarantee an impartial and objective procedure, even in cases involving circumstances of an exceptional nature, control should be exercised by the relevant judicial authority.
20. 274. In connection with the suspension from office of the leaders of the Oporto branch Of the National Union of Bank Employees, the Committee referred to its earlier conclusions and recommendations, contained in its report on Case No. 654 (Portugal), on the legislation and procedure concerning the suspension of trade union officers.
21. 275. The Government, in its latest communication, refers the Committee to the observations supplied in connection with Case No. 654 and attaches the court judgement dismissing the leaders of the Oporto branch of the union in question. From the information supplied by the Government concerning the trade union leaders of the Lisbon branch of the Union and from the court judgement in the case of the dismissal of the leaders of the Oporto branch of the Union, it is apparent that all these trade union leaders were finally dismissed from office for disseminating information or communiqués in which, according to the Government, the Directorate of Public Security was attacked or criticised for its action in detaining Daniel Cabrita, and in which statements were made with the intention of causing confusion and doubt as to the said action of the Directorate of Public Security. The Government also states that these leaders also refused, without justification, to attend or participate in the work of the committee established to conclude collective labour agreements for bank employees, thus creating a situation in which the functioning of this committee was rendered impossible. The court judgements state that the leaders did not act with any respect for the " higher interest of the nation, and the common good " and that their actions " implied incitement to disorder and indiscipline ", and that, this being the case, there was no doubt that there had been a breach of section 5 of Legislative Decree No. 23048/1933, and sections 1 and 10 Of Legislative Decree No. 23050/1933, as amended by Legislative Decree No. 49058/1969.
22. 276. As regards the statutory procedure for the suspension and dismissal of trade union officials, laid down in Legislative Decree No. 502/70, the Committee refers to the conclusions and recommendations contained in its examination of Case No. 654 (in the present report).
23. 277. As regards the final dismissal from office of the leaders of the Oporto and Lisbon branches of the National Union of Bank Employees, it would appear, from all the information available to the Committee, that the acts committed by these leaders, namely the dissemination of certain documents and the withdrawal from collective bargaining negotiations, were in fact connected with the arrest of the General Secretary of that union, Mr. Daniel Cabrita. The refusal of the trade union leaders to participate further in collective bargaining negotiations seems to have been an act of protest against the arrest, and requires to be examined as such. Actions of this kind on the part of the leaders of a trade union should not, per se, warrant their dismissal from office. The court judgements in the present case indicate that the view was taken that the withdrawal from negotiations constituted an act which was not in the "higher interest of the nation ", and for which, therefore, legal sanctions should be applied. In the opinion of the Committee, such a wide interpretation of the legislative provisions in question involves the risk of the application of sanctions which could be disproportionate to the conduct of trade union leaders, and could thus lead to an infringement of the basic right of trade unions to elect their representatives, and to organise their activities in full freedom.
24. 278. As regards the information or communiqués which the trade union leaders in question are stated to have distributed, the Committee considers that, in the absence of precise information as to the matters contained in those documents on the basis of which the trade union leaders were dismissed from office, it is unable to reach any conclusions as to whether the distribution of such documents constituted an act which would reasonably fall within the scope of legitimate trade union activities, or whether such an act was an abuse of their positions as trade union leaders and of such gravity as to warrant their dismissal from office. The Committee, in accordance with its usual practice in such circumstances, recommends the Governing Body to request the Government to supply copies of the documents or communiqués on the basis of which the trade union leaders were dismissed.
25. 279. On the question of the appointment of committees of management by the National Institute of Labour and Social Welfare in substitution for the leaders who had been removed from office, the Government states that the persons chosen will necessarily be members of the union, as provided in paragraph 7 of section 21 of Legislative Decree No. 23050. The Committee would once again point out that legislation empowering the Government to appoint committees of management to replace the elected committees of trade unions is not compatible with the principle of freedom of association, and that the removal of trade union leaders in cases where violations of the legislation (which, in turn, should not run counter to the principles of freedom of association) or of the internal statutes have been proved, as well as the appointment of temporary administrators, should be effected through the courts. The Committee recommends the Governing Body to request the Government to examine the possibility of amending the legislation in the light of these considerations.