Rapport définitif - Rapport No. 233, Mars 1984

1. 58. The Committee examined this case at its session in November 1983 and submitted an interim report to the Governing Body [see 230th Report, paras. 592 to 618, approved by the Governing Body at its 224th Session (November 1983)]. The Government subsequently sent its observations in a communication dated 11 January 1984.
2. 59. 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. 60. When it examined this case at its November 1983 meeting, the Committee made the following recommendations on the pending allegations (see 230th Report, para. 618):
2. Concerning the allegation that the headquarters of the National Trade Union of Independent Craftsmen was broken into (on 30 April 1983) and that 15 trade union leaders and members had been arrested, the Committee draws the Government's attention to the fact that the right of the inviolability of union premises also necessarily implies that the public authorities cannot enter such premises without having obtained a corresponding legal warrant. The Committee also points out to the Government that the arrest of trade union leaders and trade unionists for taking part in trade union activities, even for a short period, constitutes an infringement of the principles of freedom of association. The Committee asks the Government to inform it whether all the trade union leaders and trade unionists mentioned by the complainants have already been released.
3. The Committee deplores that the exercise of the right to demonstrate was repressed on 1 May in the Plaza de Ina Artesanos, by means of wide-scale arrests and physical assaults on the workers and trade union leaders. While regretting that the demonstrators had been physically assaulted, the Committee expresses its concern that, according to the complainants, a group of individuals were involved in violent action and coordinated with the police in breaking up a public meeting in the Plaza de los Artesanos. The Committee requests the Government to send it the judgments of the trial being held in relation with this group's activities.
4. The Committee requests the Government to inform it whether those persons arrested for having taken part in the demonstrations on 1 May have been released.
5. The Committee deplores the death of two persons during the National Protest Day as a result of shots fired by the Chilean security services. In this respect, the Committee requests the Government to inform it of the judgment of the case being conducted at present.
6. The Committee deplores the fact that the Government did not reply to the allegation that police repression on the National Protest Day of 11 May 1983 resulted in hundreds of arrests and dozens of wounded. The Committee requests the Government to send its comments on this matter.
7. B. The Government's reply
8. 61. In its communication of 11 January 1984, the Government states that those persons arrested on 30 April 1983 in the premises of the National Trade Union of Independent Craftsmen were released on the same day; after taking their statements and studying their previous records, the Ministry of the Interior considered it unnecessary to institute legal proceedings against them. The Government adds that the persons in question were arrested on the grounds that they were planning to subvert public order on 1 May, shouting and uttering political slogans against the Government, referring to banished persons and the repression, as well as printing pamphlets condemning Government policy; these acts constitute an infringement of section 4(a) and (c) of the State Security Act No. 12927. The Government states that it cannot accept the principle whereby acts committed against the legislation in force by persons holding the position of trade union leader cannot be put down by the authorities. ,
9. 62. The Government also states that those arrested on 1 May throughout the country for having caused disturbances to public law and order did not exceed 100 persons. As soon as the latter proved their identity and confirmed their place of residence, they were released. The Government points out that, in accordance with the legal provisions in force, a person caught committing an offence, an ordinary or minor offence, may be detained by the police or upon an order from the authorities, merely to be at the competent magistrate's disposal for the following 24 hours.
10. 63. The Government expresses its concern over the Committee's conclusion in its 230th Report that a paramilitary group acted violently and coordinated with the police forces to break up a public meeting in the Plaza Artesanos. This conclusion shows a lack of objectivity since on the basis of information supplied by the complainants it has concluded that there was "co-ordination" between the police and a group of civilians referred to as a paramilitary group. The Government cannot accept this conclusion which seriously damages the honour of the Armed Forces. The Government asks what type of proof is available to warrant such a conclusion. The Government strongly denies the allegation that a group of civilians co-operated with the police in breaking up a public gathering in the Plaza Artesanos on 1 May. With respect to the Committee's request that the Government should send it the judgments of the trial being held in relation with this group of civilians' activities, the Government refers to its previous statements and points out that the Examining magistrate had not reached any conclusion whatsoever and declared a general dismissal of the proceedings.
11. 64. The Government categorically rejects and does not accept the Committee's conclusion relating to the death of two persons during the National Protest Day of 11 May 1983; it considers that it has overstepped its functions. The Government expresses its strongest protest against what it considers to be an intervention in matters falling within the internal jurisdiction of the country which have no relation to trade union problems. The Government denies that the death of two persons during the National Protest Day on 11 May 1983 was the result of wounds received from bullets fired by members of the security services (plain clothed policemen). The Government points out that the members of the secret services allegedly responsible for these acts were discharged of any responsibility by the 14th Court of Criminal Investigation; the latter, after having ascertained that the calibre of the bullets which had caused the death of these persons did not correspond to the firearms used by the police officers, ruled that the case should be stayed.
12. 65. Finally, the Government states that the so-called "National Protest Day of 11 May 1983" consisted of various acts of vandalism resulting in considerable damage to private property, grave disturbances in law and order and attempts to paralyse national activities. With respect to the "hundreds of arrests and dozens of wounded" which allegedly occurred on this day, the Government regrets to point out that this was the outcome of the violence unleashed by the demonstrators against the police, who merely fulfilled their duty to protect law and order. Indeed, the inappropriately named "peaceful demonstration" degenerated. barricades were positioned in the streets, tyres were burned, vehicles were stoned, the police were physically and verbally assaulted, resulting in dozens of wounded, electric cables were sabotaged and there was considerable damage to public and private property. The Government cannot therefore accept that there is any question of "police repression" and that these events can be described as a manifestation of freedom of association, to he enjoyed by trade unionists so that they might promote and defend their occupational interest. No trade union leaders as such took part in these events, which went beyond what might be termed a peaceful demonstration; neither was this demonstration merely held to attain trade union objectives because, in this case, it would not have demanded the Government's resignation.

C. The Committee's conclusions

1. 66. The Committee takes note of the Government's statements, in particular, that the trade union leaders and trade unionists arrested on the premises of the National Trade Union of Independent Craftsmen on 30 April 1983 were released the same day and that the persons arrested for having taken part in the demonstrations on 1 May were immediately released as soon as they had proved their identity and confirmed their place of residence.
2. 67. The Committee notes that the Government cannot accept the principle whereby acts committed against legislation in force by persons holding the position of trade union leader cannot be put down by the authorities. In this respect, the Committee wishes to point out that its task, when allegations of measures to deprive trade union leaders of their freedom are submitted to it, consists of examining, on the basis of available information, whether such measures have been taken because of trade union activities in the true sense of the term. Although the bearer of a trade union appointment does not, by virtue of his position, have the right to transgress legal provisions in force, neither should the latter infringe upon the basic guarantees of freedom of association, nor sanction activities which, in accordance with generally recognised principles of freedom of association, should be considered as legal trade union activities.
   • When allegations of measures taken against trade union leaders are submitted to the Committee, its role is basically limited to examining the above-mentioned issues.
3. 68. The Committee also notes that the Government denies that a group of individuals worked in co-operation with the police in breaking up a public gathering in the Plaza Artesanos on 1 May 1983.
   • With respect to the alleged violent actions of the above-mentioned group of individuals, the Committee notes that the Examining Magistrate having reached no conclusion whatsoever, declared a general dismissal of the proceedings. In view of the fact that the complainants alleged that some of the members of this group already acted in an almost identical way in the same place on 2 December 1982, the Committee wishes to stress that events of this nature considerably hamper the exercise of trade union rights and expresses the hope that the authorities will take the necessary measures to prevent them from recurring in the future.
4. 69. Moreover, the Committee notes the Government's statement that the Committee lacks objectivity in its conclusions in its 230th Report based on information from the complainants that there was "co-ordination" between the police and a group of individuals. According to the Government, this seriously damages the honour of the Armed Forces and it asks what kind of proof is available to warrant such a conclusion. In this connection, the Committee draws the Government's attention to its first reply (see 230th Report, para. 602) in which it did not deny the alleged co-ordination between the said group of individuals and the police, but limited itself to stating that. "the courts were notified of these events; after carrying out a full investigation, they were unable, unfortunately, to obtain the expected positive results. The Government condemns the aforementioned acts of violence and declares that it will deal severely with those found responsible by the courts". It therefore is understandable that in such circumstances the Committee, in its 230th Report, expressed "its concern that, according to the complainants, a group of individuals were involved in violent action and coordinated with the police in breaking up a public meeting in the Plaza de Los Artesanos". The Committee would stress that in its conclusion it expressed its concern over something reported by the complainants, which had not been denied by the Government, without deciding at any time that there had, in fact, been "co-ordination".
   • In addition, in respect of this aspect of the case, the Committee made no definitive pronouncement as is indicated by the fact that it requested the Government to send it the judgments of the trial being held in relation with this group's activities. Therefore, it cannot he said that the Committee lacks objectivity on an issue concerning which it has made no decision while awaiting the receipt of additional information from the Government.
5. 70. With respect to the death of two persons during the National Protest Day of 11 May 1983, the Committee notes that the Government denies that these deaths resulted from shots fired by members of the security forces and that those allegedly responsible for these acts have been discharged of any responsibility by the 14th Court of Criminal Investigation, which ruled that the case should be staved.
6. 71. The Committee notes that the Government categorically denies and rejects the Committee's conclusion in its 230th Report concerning the death of two persons during the National Protest Day o£ 11 May 1983 and that it considers that the Committee has overstepped its functions since it judged and condemned as the authors of the two murders members of the Chilean security services, solely on the basis of the complainants' statements. The Government expresses its strongest protest against what it considers to be an intervention in aspects within the internal jurisdiction of the country which have no relation to trade union problems. In this respect, the Committee would point out that in the first reply given by the Government on this point (230th Report, para. 606), the Government did not deny that members of the Chilean security services may have been responsible for the death of two persons during the events which took place on 11 May 1983, but merely limited itself to stating that the 14th Court of Criminal Investigation was looking into the responsibility of the alleged offenders. The Committee therefore concluded that the issue being heard before the 14th Court of Criminal Investigation was whether the officers in question were guilty by fault or negligence, and not the issue of whether they had been responsible for the deaths of the two persons, a point which the Committee considered evident given that the Government had not denied it expressly. The Committee would emphasise that the examination of allegations relating to the death of persons due to demonstrations which, according to the complainants, were of a trade union character, are not at all outside the Committee's competence in so far as the said demonstrations were allegedly trade union activities; therefore, there is no intervention in matters falling within the internal jurisdiction of the country.
   • On the other hand, the Committee stresses that its conclusion in its 230th Report that it "deplores the death of two persons during the National Protest Day of 11 May 1983 as a result of shots fired by the Chilean security services" in no way prejudges the existence of criminal responsibility or guilt on their part.
7. 72. With respect to the allegation that police repression on the National Protest Day of 11 May resulted in hundreds of arrests and dozens of wounded, the Committee notes that it appears from the Government's reply that this Protest Day was held for political reasons; furthermore, the Government cannot accept there is any mention of police repression because the alleged number of arrests and wounded was the outcome of the violence unleashed by the demonstrators (who erected barricades, burned tyres, stoned vehicles, assaulted the police, sabotaged electric cables and caused considerable damage to property).
8. 73. In these circumstances, since the Government states that the National Day of Protest of 11 May 1983 degenerated into criminal actions against individuals and property and as the complainants merely point out - without giving further details - that the violent police repression resulted in hundreds of arrests and dozens of wounded, the Committee can only deplore the climate of violence in which the National Protest Day of 11 May 1983 took place.