Rapport définitif - Rapport No. 181, Juin 1978

1. 24. The Committee has already examined this case at its November 1977 session, when it submitted interim conclusions in paragraphs 221 to 252 of its 172nd Report. The Governing Body approved this report in November 1977 (204th Session).
2. 25. 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. A. The complainants' allegations

1. 26. The allegations still outstanding concern the situation of Mr. José Duarte. The WFTU had alleged that Mr. Duarte, a trade union leader on the railways in the north-east of the country, had been detained without trial since 1972; it claimed that he had suffered ill-treatment whilst in Bahia state prison, and that he was now in the prison of the Paulo Sarasarte Penal Institute in the State of Ceará. Aged about 65 years, he was said to have had a heart attack as a result of this ill-treatment.
2. 27. According to the Government, Jose Duarte had manifested his militantism as early as 1936 in subversive activities in the State of Sao Paulo. In 1948 he had been arrested for having led movements supporting the reorganisation of an association prohibited by law. In 1949 he had been identified under a false name as an 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 had been sentenced in 1967 to one year's hard labour. Finally, in 1973, he had been charged in the course of an inquiry opened in the State of Ceará into subversive activities in that State. He was at present on the run. The Government pointed out that he had held no job for a long time and that he had been sentenced not on account of his trade union activities, but for breaches of national security legislation. The Government further stated that José Duarte had been sentenced after due trial, at which the rights of defence, full publicity for the proceedings and the right of appeal were assured.
3. 28. In November 1977, the Committee noted that the Government had not replied to the allegations to the effect that José Duarte had been a trade union leader on the railways in the northeast of the country. It also drew attention to contradictions between the information provided by the complainants and that provided by the Government. According to the WFTU, Jose Duarte had been under arrest since 1972 (the WFTU even named the place of detention); according to the Government he was on the run. On the Committee's recommendation, the Governing Body requested the Government to provide information on the factors which had led to the indictment against José Duarte in 1973.
4. 29. The Government replied by a letter dated 2 February 1978. In 1969, it states, this person was reported to the public prosecutor for the Fourth Military Region for crimes against national security within the meaning of sections 2(IV), 5 and 9 of Act No. 1802/53. Finally, still for crimes against national security, he was sentenced by the court for the Tenth Military Judicial District to four years' hard labour for breaches of sections 43 and 45(1) and (II) of Legislative Decree No. 898/69. Under the terms of section 43, "reorganising or attempting to reorganise, de facto or de jure, even under a false name or in a simulated manner, an association or a political party dissolved in pursuance of a statutory provision or a court decision, or engaged in activities prejudicial or dangerous to national security, or enabling such an association or party to operate, under the same conditions, while it is legally suspended", is punishable by from two to five years' hard labour. Under the terms of section 45 "making subversive propaganda, (1) using any media for social communication such as newspapers, magazines, periodicals, books, bulletins, pamphlets, radio, television, cinema, theatre and other similar media as vehicles for hostile propaganda or psychological warfare or revolutionary or subversive warfare; (II) suborning persons at workplaces or educational establishments", is punishable by from one to three years' hard labour.
5. 30. He was arrested, continues the Government, following investigations by the federal police in the State of Ceará, where he was engaged in subversive activities. In prison, he was guilty of inciting prisoners to take part in a revolt, which finally involved all the prisoners. Contrary to the allegations, declares the Government, this person was under medical care while in prison and was visited by the doctor in the normal manner; his state of health was perfect when he left the prison. Upon completion of his sentence he was released, and went back into hiding; his whereabouts are unknown.
6. 31. The Government states that at José Duarte's trial his rights of defence were respected and that it was possible for him to appeal to the higher courts.
7. 32. According to the Government, this person has not engaged in any occupation or lawful activity for at least 12 years, and accordingly has no links with the trade union movement. Contrary to the allegations to the effect that he was a trade union leader on the railways in the north-east, the Union of Workers in the North-Eastern Railway Companies has stated that its records make no mention of any official or member by the name of José Duarte. Nor is his name to be found in the records of the Regional Delegation for Labour in the State of Pernambuco, where the union has its headquarters. The Government recalls that it has already forwarded statements by employers' and workers' Confederations attesting to the fact that nobody has been sentenced in Brazil for engaging in lawful trade union activities. All these facts, it concludes, together with those already examined by the Committee in connection with this case, suffice to prove that here again the person concerned was not a worker exercising any form of occupational activity whatsoever whose rights, protected by the ILO Conventions, might have been infringed. José Duarte served his sentence for activities contrary to the law, totally unconnected with trade union affairs.

B. B. The Committee's conclusions

1. 33. The Committee notes this information. It notes in particular that according to the Government, José Duarte was sentenced for breaches of Legislative Decree No. 898/69, respecting national security, and that after serving his sentence he was released in perfect health. These statements contradict the allegations that this person has been detained without trial since 1972 and subjected to ill-treatment. The Committee notes, however, that the Government has not supplied details of the concrete facts which led to his being sentenced to four years' hard labour.
2. 34. The Government repeats that José Duarte has not engaged in an occupation, and hence in trade union activities, for a number of years. The complainant organisation for its part, has not furnished particulars of the trade union activities in which this person is said to have engaged. The Committee regrets that it does not have fuller information on this case.