Rapport intérimaire - Rapport No. 226, Juin 1983

1. 348. The present case concerns allegations of violation of freedom of association in Chile submitted by the following trade union organisations in various communications: the international Confederation of Free Trade Unions (ICFTU) on 3 and 10 December 1982, 4 January and 24 March 1983, the world Federation of Trade Unions (WFTU) on 6 December 1982, 4 January and 15 March 1983, the World Confederation of Labour (WCL) on 21 January 1983, the Permanent Congress of Trade Union Unity of Latin American Workers (CPUSTAL), the Trade Unions International of workers in the metal Industry, the Confederation of Copper Workers on 9 December 1982, and the National Trade Unions Confederation of Workers of the Building, Wood and Building Materials industries on 23 December 1982.
2. 349. The Government supplied certain information in communications dated 21 February, 11 April and 5 May 1983.
3. 350. 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. The complainants' allegations

1. 351. All the complainant organisations denounced the arrest and subsequent expulsion without justification on 3 December 1982 of the trade union leaders Manuel Bustos, President of the National Trade Union Co-coordinating Council (CNS), and Hector Cuevas, National President of the Confederation of Building workers, both of whom had launched a protest movement against the increase in the cost of living and unemployment.
2. 352. Specifically, the ICFTU in its initial communications described the calendar of events in the following manner: on 19 July 1992, more than 600 trade union leaders headed by Manuel Bustos, President of the CNS, and Emilio Torres, President of the Confederation of Copper Workers, wrote to the President of the Republic requesting an audience to discuss the workers' problems and the application by employers of the new regulations concerning wages and job stability, which had been drawn up without the workers being consulted. Their letter called for a frank dialogue with the authorities and the suspension of Act No. 18134 on collective bargaining. The letter was signed by the Confederation of Copper Workers, the Workers' United Front, the Confederation of Chilean Private Sector Employees and the CNS and contained 623 signatures of leaders of various confederations, federations, associations, national and local trade unions.
3. 353. According to the ICFTU, the President of the Republic replied that he did not grant audiences to communists. The trade union leaders Bustos and Torres and the president of the public sector workers, Hernol Flores, were then allegedly detained for some hours by the police authorities, interrogated and threatened by the Director-General of the intelligence service.
4. 354. A subsequent letter which was addressed to the Minister of Finance on 5 October described the economic situation of the workers and a set of urgent minimum measures which the Government was requested to introduce. The authorities once again refused to listen to the grievances of the legitimate representatives of the workers.
5. 355. On 25 October the Minister of the Interior refused to allow the Taxi Drivers Union, led by Juan Jara C, to meet to discuss the economic situation as it affected taxi drivers.
6. 356. On 10 November, by resolution No. 30 of the departmental labour inspector of Santiago South, Trade Union, No. 1 of the "Sumac" S.A cotton factory was prohibited from holding a union meeting of solidarity with the Polish trade unionist Lech Walesa to which the principal trade union leaders of Chile were to be invited.
7. 357. Or. 16 November, the CNS requested authorisation from the Ministry of the Interior to organise an artistic and cultural event which was designed to raise funds to help unemployed workers who had been dismissed and their families. The request stated that the event was to take place in the Plaza Artesanos on Thursday, 2 December, between 6 p.m. and 8.30 p.m. approximately and that it would include, it addition to performances by a number of entertainers, an address by a trade union leader on the subject of unemployment, price increases and the exceptional wage readjustment of 25 per cent. The request was signed by ten CNS leaders, including Manuel Bustos, but the authorities replied that, in order to be considered, it must be submitted by a trade union organisation with an accredited legal personality. Several duly accredited trade union organisations affiliated to the CNS therefore introduced the same request. This time, however, the authorities did not reply.
8. 358. On 24 November 1982, uniformed members of the police burst into the headquarters of the National Trade Union of Industrial Assembly Workers (SINAII) in which the CNS offices are located and prevented the trade union leaders from entering the premises for several days.
9. 359. Finally, on 2 December 1982, the planned trade union meeting took place in the Plaza Artesanos. However, it was repressed with extreme violence. The workers who had gathered peacefully were provoked and attacked by the uniformed police services and by groups of civilians armed with blurt and sharp instruments and who acted under the protection of the uniformed police. Several persons were wounded and arrested. Eight of these were in a serious condition, in particular Efrain Plaza, CNS President for the central zone, who had to undergo an emergency operation, as a result of the blows which he had received from the police. The lawyers who intervened in support of the wounded and detained, including Jaime Hales, Eduardo Loyola and Roberto Morales, were brutally beaten by the police. Five journalists from the newspapers "El Mercurio" and "Las Ultimas Noticias", the radio stations "Portales" and "Cooperativas Vitalicias" and the weekly publication "Hoy" were injured.
10. 360. The President of the CNS, Mr. Bustos, was also brutally beaten by the police and hospitalised in an emergency medical centre. He was later taken away from the CNS headquarters by police officers in civilian clothing.
11. 361. On 3 December, the Chilean Government admitted that Manuel Bustos was being held at police investigation premises but prohibited his family, friends and lawyers from contacting him.
12. 362. On 4 December the arbitrary expulsion from the country was ordered of Manuel Bustos and of Hector Cuevas, President of the Confederation of Building workers. They were landed at Rio de Janeiro, where Hector Cuevas had to be hospitalised for treatment of injuries inflicted upon him by the Chilean police.
13. 363. Furthermore, on 9 December the Government banished the following five trade unionists arrested on 2 December to the inhospitable northern region of the country: Elmiro Antonio Aravena Lastra was sent to Monte Patria, Juan de Dios Alvarez to Paiguana, Roberto Antonio Jiménez Villa Nueva to Inca de Oro, Sergio David Mancilla Marin to Taltal and Victor Enrique Caripillan Paine to Quillagua.
14. 364. In a letter dated 4 January, the WFTU confirms these facts and adds that the union leaders who were expelled from the country were taken to Pudahuel international airport without being able to collect their clothes or personal effects since their expulsion took place after their arrest. Manuel Bustos' passport was returned to him only in the aircraft prior to his arrival in Brazil.
15. 365. The WCL, in a letter dated 21 January 1983, also denounces the arbitrary expulsion of the two trade unionists purely on trade union grounds.
16. 366. Furthermore, the National Trade Unions Confederation of Workers of the Building, Wood and Building Materials industries of , Chile, in its communication of 23 December 1982, points out that Jose Figueroa, a union official in charge of the Confederation's international relations, was arrested and tortured for two days and brutally beaten on 2 December during the above-mentioned demonstration in the Plaza Artesanos and that Efrain Plaza Plaza, President of the Trade Union of Building workers, Technicians and Managerial Staff, was beaten by plain-clothed police officers, detained at Santiago central police station for five days and had to undergo surgery.
17. 367. Furthermore, in subsequent communications in March 1983, the WFTU and the ICFTU denounces the arrest of the wife and three children of Hector Cuevas on 10 March 1983, in front of the Presidential Palace of the Moneda in Santiago as they were carrying placards calling for his return to the country. The complainants state that they were released, but that Mrs. Cuevas has again been threatened with arrest and her children with expulsion from school.
18. 368. Finally, the ICFTU states that in January 1983 the Appeals Court accepted a petition for amparo (habeas corpus) which had been lodged by Manuel Bustos and authorised him to return to the country. However, the military government introduced an appeal against this decision which prevented Manuel Bustos from exercising his right to live in his homeland. The ICFTU adds that the two expulsions are not exceptional and encloses a partial list of the names of 110 trade union leaders who ace currently living in exile.

B. The Government's reply

1. 369. In an initial communication dated 21 February 1983, the Government confirmed that Manuel Bustos had in fact been arrested and exiled by Decree No. 4015 of 2 December 1982 in application of article 24 (transitory) of the Constitution and that Supreme Decree No. 1709 of 10 December 1982 prohibited him from returning to the country.
2. 370. The Government explained that Manuel Bustos had submitted three petitions for habeas corpus (amparo) to the Appeals Court of Santiago. The first, dated 3 March, was rejected; the second, dated 22 December, is currently being examined and a decision is pending; the third, dated 27 December, was accepted by the Appeals Court but, as the Government explains, the decision has been suspended pending consideration of a request for clarification lodged by the Ministry of the Interior. The Government adds that the Supreme Court accepted the Ministry of the Interior's request and that the provisions of Supreme Decree No. 1709 are still in force. As of 21 February 1963, the date on which the Government communicated its reply, the Court had not yet ruled on the matter.
3. 371. As regards Hector Cuevas, the Government confirms that he too was arrested and expelled under Decree Nos. 4018 and 4019 of 3 December 1982 in application of the provisions of the Constitution and that he is also prohibited from returning to the country by Decree No. 1708. Hector Cuevas introduced several habeas corpus petitions (amparo). The first petition, on 7 December 1982, was rejected by the Appeals Court, but on 10 December he appealed against this decision and the case is still pending. The Government explains that a second petition submitted on 13 December and a third on 27 December 1982 are also pending.
4. 372. The Government states generally that Manuel Bustos and other persons have been penalised on several occasions in the past for offences involving unlawful association, attempted subversion of law and order and disturbing the political peace. At the request of the Government, they were prosecuted for these offences in a court of first instance and were found guilty of the charges against them and duly sentenced. However, when the case passed to a higher court, the Government, in a gesture of good will, dropped the proceedings and allowed the persons concerned to be conditionally released.
5. 373. The Government explains that instead of understanding the situation, these persons resumed their illegal activities almost immediately even though they had been warned on many occasions to act within the limits of the law. Their activities resulted in their expulsion inasmuch as they constituted offences against the legal order in force, i.e. the holding of a public demonstration of a clearly political nature which had been prohibited by the competent authorities in pursuance of their legal powers.
6. 374. As regards Juan de Dios Alvarez, R.A. Jiménez, S. Mancilla, V. Caripillan and E. Aravena, the Government confirms that they have been banished to various parts of the country after being arrested by the police. Their banishment was in accordance with the law. Each of the persons concerned was able to lodge an appeal with the Appeals Court of Santiago but the appeals were all rejected. The banishment order was made in application of article 24 (transitory) of the Constitution, on the grounds of having caused disturbances during an unauthorised public demonstration. The action taken by the Government against Manuel Bustos, Hector Cuevas and the other persons mentioned above was thus based on the legal provisions currently in force.
7. 375. The appeals lodged by Manuel Bustos and Hector Cuevas are still pending before the courts and the Government is awaiting a final ruling before transmitting a full reply to the ILO.
8. 376. In a more recent communication dated 11 April 1983, the Government explains that Mrs. Cuevas and her children were in fact arrested when they were attempting, without authorisation, to enter the Moneda Palace carrying placards. They were taken to the police station and released after verification of their domicile. Mrs. Cuevas was ordered to appear before the local police magistrate who ordered her to pay a small fire for causing a disturbance in public, which under municipal law constitutes a misdemeanour rather than an offence.
9. 377. The Government categorically rejects the allegation whereby the children of the trade union leader had been subjected to threats.
10. 378. In a communication dated 5 May 1983, the Government states that Jose Figueroa was arrested on 15 December 1982 and was released after a hearing on the following day and that Efrain Plaza Plaza was not arrested. It further states that the de facto headquarters of the organisation known as the National Trade Union Co-ordination Council (CNS) was not closed and that there is no prohibition against entering the premises. As regards the petitions for amparo (habeus corpus) against the exile of Messrs. Bustos and Cruzman, the Government states that their defence lawyers presented four appeals of which three have been dealt with. In the fourth case a request has been made that the other three cases be dealt with jointly. The Government also states that both the Appeals Court and the Supreme Court considered that the measures taken were legal.

C. The Committee's conclusions

1. 379. The case before the Committee concerns the arrest and subsequent expulsion of two trade unionists, namely the President of the National Trade Union Co-ordination Council (CNS), Manuel Eustos, and Mr. Hector Cuevas, for having organised trade union demonstrations as part of a protest movement by the workers against the increase in the cost of living and unemployment, as well as injuries inflicted on trade unionists during a demonstration and the banishment of five trade union leaders by administrative decision to the north of the country.
2. 380. The Committee notes that Manuel Bustos lodged an appeal against the expulsion order and that the petition was accepted by the Appeals Court, but that the Ministry of the Interior submitted a request for clarification with the Supreme Court on which no final ruling has yet been made.
3. 381. The Committee notes that, according to the information of the complainants, the trade union leaders concerned made several requests to meet the authorities to discuss grievances regarding the occupational interests of their members, that they requested advance authorisation to hold a meeting on 2 December 1982 and gave details of the themes the artistic, cultural and trade union event being organised and the time at which it would take place, and that they went ahead with the event without having received a reply to the authorisation requested. The Government has not replied to the allegation concerning the violent repression of the event.
4. 382. The Committee observes that the Government refers to the past record of the trade union leader Manuel Bustos, who had previously been 'sentenced by a court of the first instance for unlawful association and had subsequently benefited from the clemency of the authorities on the condition that he acted within the limits of the law.
5. 383. The Committee recalls that it examined the matter of Manuel Bustos' imprisonment in a previous case concerning Chile' and that it had stressed at the time that the adoption of measures of detention and sentencing against workers' representatives in connection with activities related to the protection of workers' interests endangers the free exercise of trade union rights. Furthermore, the Committee has emphasised many times the importance which it attaches to the right to hold trade union meetings as one of the basic aspects of trade union rights.
6. 384. In the present case, the Committee deplores that the two trade union leaders concerned were expelled from Chile and forbidden to return to the country for having organised a trade union demonstration, which was not authorised by the authorities. As regards the demonstration in question the Committee deplores the violence used by the forces of order against the demonstrators and recalls that the right to demonstrate is essential for the exercise of trade union rights. As regards the measures of exile the Committee stresses, as it has done on many occasions before, that the forced exile of trade unionists is a serious infringement of human rights and also of freedom of association since it weakens the trade union movement as a whole.
7. 385. The Committee considers that it should have at its disposal the text of the judgements delivered following the appeals that have been lodged. It, accordingly, requests the Government to transmit copies of these judgements.
8. 386. As regards the banishment of the five trade unionists mentioned by the complainants, the Committee recalls that the restriction of a person's movement to a limited area, accompanied by a prohibition of entering into the area in which his trade union operates and in which he normally carries out his trade union functions, is inconsistent with the normal enjoyment of the right of association and should therefore be accompanied by adequate judicial safeguards applied within a reasonable period and, especially, by observance of the right of those concerned to receive a fair trial at the earliest possible moment.