Interim Report - Report No 185, June 1978

Case No 823 (Chile) - Complaint date: 12-AUG-75 - Closed

1. 68. The Committee last examined this case at its February 1978 session, when it submitted an interim report to the Governing Body.
2. 69. Since it last examined the case the Committee has received communications from the World Federation of Trade Unions (20 March 1978), the Latin American Central of Workers (18 April 1978) and the International Confederation of Free Trade Unions (27 April 1978). The Government, for its part, sent information in a communication dated 27 March 1978.
3. 70. In addition, during his direct contacts mission to Chile, Mr. Segovia, the representative of the Director-General, obtained information on the various matters still outstanding in the present case.

A. Arrest or disappearance of trade unionist or former trade unionists

1. 71. In February 1978 the Committee expressed its regret that the Government's recent communications contained no information with respect to the many persons named by the complainants as having been arrested or as having disappeared, whereas the Committee had hoped to obtain particulars, inter alia, as to the results of the further investigations undertaken by the Supreme Court into the disappearance of 11 serving or former trade union officials. The Government had stated, however, that it would supply all the available information by 1 April 1978. On the Committee's recommendation, the Governing Body, accordingly, urged the Government to supply particulars of the inquiries made into the situation of the persons named in a list drawn up by the Committee.
2. 72. As concerns three persons who, according to the WFTU, had been temporarily arrested (Samuel Astorga, Eduardo Berríos and Ramón Velasquez), the Government had denied the allegations made and declared that these persons had never been arrested. The Governing Body decided, in March 1978, to bring the Government's reply to the attention of the complainants. Lastly, the Governing Body, on the Committee's recommendation, requested the Government to forward its observations concerning the arrest of Juan Montecinos, the caretaker at the headquarters of the National Federation of Metalworkers' Unions, who was alleged to have been kept in custody for six hours and severely tortured.
3. 73. In its communication of 27 March 1978, the Government again states that in cases where trade unionists have been arrested, this was not due to their trade union activities but because of their involvement in partisan agitation, sometimes under cover of so-called trade union action.
4. 74. With regard to the persons who are said to have disappeared, the Government states that the law courts are now dealing with the actions brought in this connection. The procedure is in two stages: the preliminary investigation, which is conducted in private, and the court proceedings, when judgement is pronounced. The courts, which are quite independent from the Government, may not divulge what was revealed in confidence during the preliminary investigation until the case is closed either by a final judgement or by the dismissal of the case. Proceedings have been initiated in respect of each of the actions brought. In a large number of cases it has been established that many of the persons concerned were at home, some of them not even aware that they had been reported missing. Other persons presumed missing had been arrested under the State Security Act and then released, whereupon they returned to work. Another group is now abroad, and one person is in prison for fraud and bigamy. A number of persons have been found to have several aliases and identity documents. Some are not registered with the Identity Bureau.
5. 75. With regard to the complaints presented to the ILO, the Government states that, of the 269 cases mentioned over all these years, explanations have been given by the Government in 202 of them showing clearly the falseness of the accusations made. Before the change of regime, between 500 and 700 persons disappeared every year. According to United Nations statistics, the yearly figures for missing persons run into thousands in certain countries. The Government claims that it has always offered the fullest collaboration in the investigations undertaken. It mentions three factors which should not be overlooked in an impartial analysis of this question. Under the former regime, identity papers were forged on a vast scale for political and electoral purposes, so that many of the persons reported missing never really existed. Following the change of regime, numerous operations were carried out with a view to preventing the spread of hotbeds of internal subversion. These clashes resulted in the disappearance of certain persons. The Government remarks, in this connection, that the number of reports of missing persons is declining steadily and rapidly in so far as it, has become possible to restore order and security in the country. Lastly, in the Government's opinion, it is no exaggeration to assume that, in the campaign being waged against Chile, recourse may be had to the invention of further disappearances in order to keep the debate on Chile in the limelight.
6. 76. The Government has not supplied information concerning the arrest of Juan Martecinos, caretaker of the local trade union branch of the FENSIMET.
7. 77. During the direct contacts mission information was published in the press concerning the arrest of persons who were said to have committed crimes against the legislation on internal security, but in the course of the interviews with the trade union leaders of various trends no mention was made to the representative of the Director-General of actual or recent cases of arrest for trade union activities except for those which had taken place during the events of 1 May which are examined later in this present document.
8. 78. As regards the list of persons in respect of whom the Committee had requested information in its 177th Report, the Government supplied the following details to the representative of the Director-General. The person appearing in this list under the name of Pedro Abel Barria A. was probably Pedro Felix Argel Vera who was detained in Chin Chin Prison and who was amnestied by Decree Law No. 2191 of 16 April 1978. The Government has no information in respect of the following persons: José Bacza Cruces, Jorge Caceres Gonzalez, Gabriel Castillo Tapia, Carlos Contreras Maleye, Jose Corvalan Valencia, Juan Cortez Abruiz, Lenin Diaz Silva, Humberto Fuentes Rodriguez, Mario Fuica Vega, Maria Gutierrez Ramirez, Joel Huaniquir Penairdes, Fernando Lara Rojas, Victor Macaya Molina, Guillermo Martinez Quijon, Bario Miranda Godoy, Juan Moraga Garces, Miguel Morales Ramirez, Miguel Nazal Quiroz, Rodolfo Nunez Benairdes, Juan Orellana Catalan, Luis Recabarren Gonzalez, Manuel Recabarren Rojas, Anabal Ripeulme Pino, Jorge Salgado Salinas, Pedro Silva Busto, Jorge Solovera Garrado, Luis Vega Ramirez, Carlos Vizcarra Cofre, Jose Weibel Navarrette and Ricardo Weibel. As for the other cases, the Government refers to the information supplied to the ILO in its communication.
9. 79. As regards one of the procedures that had been set in motion concerning the disappearance of a number of persons, the Minister of Justice pointed out that the judge of the Court of Appeal of Santiago, who had been appointed to deal with this matter, went to the customs office known as "Abanzada de los Libertadores" at the frontier between Chile and Argentina where he was able to confirm from the records that Horacio Cepeda Marinkovic and Luis Lazo Santander had crossed over to Argentina on 6 January 1977, that Lisandro Cruz Diaz had done likewise on 11 January 1977 and that Lincoyan Berrios Cataldo had also done so on 21 December 1976. According to this information the departure from the country of these persons did not meet with any obstacles since no action on the part of the Government or of the courts prevented them from going abroad and in order to cross this frontier an identity card was all that was necessary.
10. 80. It was pointed out to the representative of the Director-General that the courts were dealing with a number of habeas corpus applications concerning persons who had disappeared. There was a certain doubt as to the effect which the measure of amnesty decreed by the Government could have on the subsequent judicial proceedings. Some lawyers publicly expressed the opinion that the inquiries through the courts should continue since, if this was not done, it would not be possible to know whether or not there existed any facts which could be covered by the amnesty. In any event, the authorities pointed out that they would make inquiries as to the actual state of the procedures concerning the persons mentioned in the report of the Committee on Freedom of Association and inform the ILO of the result.
11. 81. The Committee regrets that it is unable to note from the information supplied by the Government that any progress has been made as regards the supply of the information expected concerning the persons mentioned in the present case who are said to have been detained or who have disappeared and who appear on the list annexed to the Committees 177th Report. The Committee cannot fail to note the contradictions between the statements made by the Government and those made by the complainants who have supplied various details concerning the detention of numerous trade unionists or former trade unionists who have subsequently disappeared.
12. 82. The Committee notes that a number of habeas corpus applications are presently being dealt with by the courts concerning persons who have disappeared and that the authorities will inform the ILO as to the full scope of these judicial procedures. In the opinion of the Committee, whatever the scope of the amnesty which has been decreed, the amnesty itself should not prevent further inquiries being made to clarify the situation of these persons.

B. Transfers of trade unionists

1. 83. The complainants had referred to the assignment to forced residence of the following trade union officials: Georgina Aceituno, Juan Sepulveda, Hernán Mery and Samuel Astorga. The Government had stated that these measures had been taken by virtue of the special powers conferred on the President of the Republic by Legislative Decree No. 527 of 1974, which were subject to the control of the courts. In the case in question the court of Appeal of Santiago, seized of an appeal, had confirmed the measures taken, but ruled that the Government should not have fixed the place of residence of those persons in the province to which they were assigned. They themselves had the right to choose their place of residence within that province.
2. 84. At its session in February-March 1978, the Governing Body, on the Committee's recommendation, requested the Government to state the precise reasons for which measures of assignment had been taken against these persons.
3. 85. In its communication of 27 March 1978, the Government states that the persons concerned were set completely free on 2 March 1978 and their transfer to Arica was brought to an end. The Government points out that the measure taken with respect to these persons was a transfer from one province to another, which is not a penal sanction and should not be confused with the penalty of assignment to forced residence imposed by the law courts as a punishment for an offence. The persons mentioned in the complaint had been transferred to the north of the country after being caught attending a meeting deemed to be clandestine under the terms of the State Security Act and the Legislative Decree on the dissolution of political parties, inasmuch as officials and former members of parliament belonging to dissolved political parties were also present. According to the Government, there was no question of its being a trade union meeting.
4. 86. During the direct contacts mission the Secretary of State for the Interior confirmed to the representative of the Director-General that recourse to this measure of transfer, which had already been repealed, had been necessitated as a result of the participation by the persons concerned in a political meeting that had been organised in a church. The Secretary of State indicated that he would endeavour to obtain further information on the facts of the matter. It was not possible for the representative of the Director-General to obtain this further information before his departure from Chile.
5. 87. The Committee notes that, according to the Government, the participation of the persons concerned in a political meeting was the reason for the measures of transfer that were taken by the Government. In any event, having regard to the fact that these persons are now free, the Committee considers that no purpose would be served in pursuing its examination of this aspect of the case.

C. Withdrawal of Chilean nationality from trade union officials in exile

1. 88. With regard to the trade union officials who had been deprived of their nationality - Luis Meneses, General Secretary of the Single Central Organisation of Chilean Workers (CUT), and Humberto Elgueta and Ernesto Araneda, members of the External Committee of the CUT - the Government had stated that these persons, who were living abroad, had behaved in an unpatriotic manner. Such an attitude was punishable under the Chilean Constitution by loss of nationality, and the Government had no alternative but to enforce this provision. One of the persons in question, Mr. Elgueta, had availed himself of the opportunity open to him to lodge an appeal with the Supreme Court, which had declared the measure taken against him to be null and void.
2. 89. On the Committee's recommendation, the Governing Body, in February-March 1978, noted with interest the rescinding of the measure taken against Mr. Elgueta and suggested to the Government, bearing in mind the decision taken by the Supreme Court, the possibility of reconsidering, with respect to the other two persons named by the complainants, the extremely serious deprivation of rights to which they had been subjected.
3. 90. In its communication of 27 March 1978, the Government repeats the information already provided for the Committee's last session. It adds that as far as it knows, Mr. Meneses and Mr. Araneda have not lodged an appeal.
4. 91. From the information supplied by the President of the Supreme Court and the Minister of Justice during the direct contacts mission, it seems that the revoking of the measure taken concerning persons who have not lodged an appeal with the courts would require a new legislative provision of the Government. In addition, as a result of the coming to an end of the state of siege, the penalty of deprivation of nationality cannot be imposed by the Executive.
5. 92. The Committee takes note of this information. It suggests that the Government, in the spirit in which the amnesty was recently granted, re-examine the measure which affects Mr. Meneses and Mr. Araneda.

D. Measures affecting certain trade union officials

1. 93. At its February 1978 session the Committee examined complaints relating to the assignment to forced residence in the north of the country on 23 November 1977 of seven trade unionists, including three copper workers' leaders (Milton Puga, Director of the El Teniente Copper Salaried Employees' Union; Juan Fincheira, President of the Copper Salaried Employees' Union and Deputy General Secretary of the Latin American Committee for Miners and Metallurgy Workers; Carlos Arellano, Director of the Copper Manual workers' Union). According to the Government, these officials had been assigned to forced residence "for having engaged in political agitation in the trade union field and organised acts of indiscipline at work completely incompatible with national security". According to the complainants, however, they had been victimised for exercising their trade union rights. Later the Government had stated that the officials in question had been freed on 23 December 1977 and had returned to their homes.
2. 94. In its communication of 20 March 1978, the WFTU states that the three officials mentioned in the preceding paragraph have been forced to resign from their trade union office by order of the military government of the province. They have been replaced in their functions by decree, and in addition they have been dismissed from their jobs.
3. 95. In its communication of 18 April 1978 the CLAT refers to the removal from office by decree of two trade union leaders of the National Confederation of Bank Associations of the State of Chile, namely the Chairman, Andres del Capo Hamel, and its Vice-President, Arturo Moreno Patino. This decree is based on article 3 of the Decree Law No. 349 as amended by the Decree Laws Nos. 911 and 1323 which permit the intendant of a province to demand the resignation of trade union leaders of those organisations at which these decree laws are directed. The reasons given show that within the executive of this organisation there existed divergences of opinion which prevented it from functioning properly.
4. 96. The CLAT points out that on 10 January 1978 the intendant of the fifth region adopted a resolution which obliged the president of the National Federation of Port Workers of Chile, Mr. Carlos Frez Rojo, to hand in his resignation as leader of this organisation within 48 hours. Thereafter he was stripped of his functions as president by a decree dated 18 January 1978. This trade union leader had to change his place of work and for this purpose he was sent to the extreme north of the country.
5. 97. Mention is also made in the communications of the WFTU and the ICFTU of the fact that by Resolution No. 149 dated 2 March 1978 of the Ministry of Labour four new trade union leaders were appointed in order to make up the executive body of the National Federation of Maritime workers following the removal from office of the leader Domingo Sanchez Nunez.
6. 98. The information supplied to the representative of the Director-General during the direct contacts mission confirms that Juan Finchiera, Milton Puga and Carlos Arellano, leaders of the Occupational Union of Employees in the Copper Mines of El Teniente, as well as Arturo Latuz, Director of the Occupational Union of Caletones were transferred from their place of residence by an order made in November 1977 by the Ministry of the Interior. Articles in the press indicate that at that time there had been a labour stoppage, or certain of the workers of El Teniente had absented themselves, in order to support their occupational claims. This measure of transfer was lifted on 21 December 1977 and, according to the persons concerned, they were notified that an end had been put to their labour contracts as soon as they returned home. The undertaking invoked reasons which were directly linked to the measure of transfer. It seems that the undertaking had recourse to one of the reasons for dismissal introduced in the legislation by Decree Law No. 930 of 1975, namely the participation in illegal acts provoking the absence of workers. In this case the prior authorisation of the courts is not necessary in order to dismiss trade union leaders. The persons concerned appealed to the labour courts and the matter is being dealt with at present. As a result of their loss of employment the persons concerned have automatically lost their trade union responsibilities and they have been replaced by new trade union leaders by virtue of the procedure provided for by Decree Law No. 198. On 26 April 1978 the persons concerned requested in writing the intervention of the Minister of the Interior with a view to their reinstatement in their employment and in their trade union offices.
7. 99. The Committee notes that the question of the dismissal of the trade union leaders Juan Fincheria, Milton Puga, Carlos Arellano and Arturo Latuz is presently being examined by the labour courts. As regards the loss of trade union office following dismissal the Committee has always considered that national legislation which lays down that all trade union leaders must belong to the occupation in which the organisation functions may jeopardise the exercise of trade union rights. In fact, as is shown in the present case, the laying off of a worker who is a trade union leader can, as well as making him forfeit his position as a trade union official, affect the freedom of action of the organisation and its right to freely elect its representatives and even encourage acts of interference by employers. The Committee considers that the Government, which rapidly lifted the measure of transfer taken against the trade union leaders in question, should intervene so that they may be reinstated in their employment and in their trade union functions. Moreover, the persons concerned remain officials of the bank.
8. 100. As regards the trade union leaders Andres del Campo and Antonio Moreno, President and Vice-President of the National Confederation of Hank Associations of the State of Chile, the information gathered by the representative of the Director-General shows that these two trade unionists were elected before December 1973. In December 1977 they were removed from office by the intendant of Santiago on the basis of the provisions of Decree Law No. 349 of 1974.1 This decree law, as modified, authorises intendants to request the resignation, and accordingly the removal from office, of trade union leaders from various types of organisations, amongst which are associations of employees or officials in the public sector, when there are serious reasons which justify such a measure being taken. In the case of these two trade union leaders the authority which took the measure referred to the existence of serious "divergences" amongst the members of the executive of the trade union. In a letter dated 6 April 1978 addressed to the President of the Republic by a group of trade union leaders it is pointed out that the members who were still exercising executive office in the Confederation had, however, pointed out to the intendant that this supposed divergence did not exist.
9. 101. The representative of the Director-General confirmed that Carlos Frez Rojo, President of the National Federation of Port Workers, was also removed from trade union office by virtue of the provisions of Decree Law No. 349. Mr. Frez Rojo had been one of the seven trade union leaders transferred to Arica in November 1977, a measure which was lifted in December. The preamble to the decree removing them from office indicates that trade union leaders must see to it that the interests of the workers are safeguarded in the work centres. Mr. Frez Rojo, however, had engaged in activities which had nothing to do with his trade union. The person concerned has not been dismissed from the state enterprise where he works but he has been transferred to the port of Arica where he is at present. The Ministry of the Interior pointed out to the representative of the Director-General that Mr. Frez Rojo had been engaged in political activities in Santiago.
10. 102. Finally, as regards Mr. Domingo Sanchez Nunez, leader of a trade union at Talcahuano, affiliated to the Federation of Occupational Unions of Port Employees, it was pointed out to the representative of the Director-General that this person had been called upon by the Federation to fill a vacancy in the executive bodies. Having proceeded thus, the Federation was acting in conformity with Decree Law No. 198 which provides for the automatic grant of a post falling vacant in the executive body of a federation to the leader of an affiliated organisation who possesses the greatest seniority in the job. Subsequently, however, the labour authorities on the basis of another provision of Decree Law No. 198 which provides that the seniority rule does not have to be applied "in cases where by reason of special circumstances it is not possible to apply the provisions of the decree law" appointed four leaders of primary organisations instead of recognising the appointment of Mr. Sanchez Nunez. These four trade union leaders had just been appointed in their own unions. With the appointment of Mr. Sanchez Nunez the minimum number of trade union leaders laid down by Decree Law No. 198 was reached. Following the appointment by the Ministry of the four new trade union leaders, all the seats on the executive of the Federation were taken up.
11. 103. This question is presently the subject of an appeal for protection lodged with the courts by the Federation. According to the President of the Supreme Court this kind of appeal permitted the courts to examine administrative measures of this type.
12. 104. The Committee considers that all these cases relating to trade union leaders in the banking and maritime sectors point to the existence of discretionary intervention on the part of the administrative authorities in the internal affairs of trade unions. The possibility open to the administrative authorities to remove trade unionists from office or to appoint trade unionists can leave the way open to all kinds of abuse and is consequently incompatible with the principles of freedom of association. The Committee has already pointed out in other cases that the removal from office of trade union leaders in case of breach of the law or of the by-laws of a union do not become enforceable except on the basis of a firm sentence on the part of the competent judicial authority or in any case after the period allowed for the submission of an appeal has elapsed without such an appeal having been made.
13. 105. The Committee considers that the Government should re-examine the measures taken with a view to the trade union leaders concerned being able to resume their trade union functions.

E. Events which took place on 1 May 1978

1. 106. The WFTU, in a telegram dated 3 May 1978 points out that the authorities violently broke up a demonstration organised on 1 May. According to the WFTU 600 persons were arrested and treated violently on that occasion.
2. 107. It appears from the information gathered by the representative of the Director-General that the trade union leaders of a large number of trade union organisations who wished to celebrate 1 May 1978, presented to the Ministry of the Interior one month in advance a request for authorisation to hold a public meeting in Santiago. The programme was to consist of a speech by a trade union leader and some artistic performances. On 27 April the organisation was notified that this meeting had not been authorised and that the only demonstration provided for in Santiago on this occasion would take place at the government buildings in the presence of the President of the Republic. All those interested were publicly invited to attend this demonstration in which numerous trade union leaders would participate.
3. 108. It was announced in the press that the organisers of the meeting which had not been authorised would turn up at the place chosen in order to inform those invited that the meeting had been suspended. The police intervened to break up the meeting of the persons who had gathered. As regards this matter the Secretary of State for the Interior pointed out that a minimum principle of authority necessitated an intervention in a reunion which had not been authorised. He also emphasised that the police had acted moderately and in a correct manner. Some 400 people, amongst whom was the trade union leader for the railway sector, Ernesto Vogel, were arrested for an identity and residence check. They were all released the same day without having been interrogated even if some of them are being charged before the local police court for breach of the peace in addition, some of the demonstrators held a meeting in a church whence they withdrew peacefully without any intervention on the part of the police. The leaders of 24 trade union organisations issued a tract to the workers in which they examined various aspects of the social and trade union situation and in which it is indicated that authorisation to hold a meeting on the occasion of 1 May had been refused for the fifth year running.
4. 109. The Committee notes that the persons arrested on the occasion of the demonstration organised on 1 May were immediately released. It must however express its regret at the fact that the Government did not authorise a meeting requested by a large number of trade union leaders. In fact, as the Committee has already indicated as regards the prohibition of a meeting which certain trade union organisations wished to organise on 1 May 1977, trade unions should have the right to freely organise meetings which they wish on the occasion of Labour Day provided that they respect the measures taken by the authorities to ensure public order.

The Committee's recommendations

1. 110. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations concerning the detention or the disappearance of trade unionists or former trade unionists:
   • (i) to regret that the information provided by the Government does not permit it to note that any progress has been made as to the supply of information on the persons in question and to request the Government to continue its investigations in order that these persons might be traced;
   • (ii) to request the Government to transmit information on the results of the judicial proceedings that are taking place regarding these persons;
   • (b) as regards the allegations concerning the transfer of some trade unionists, to note that all the trade unionists concerned have regained their freedom, and to decide that no purpose would be served in pursuing further its examination of this aspect of the case;
   • (c) as regards the allegations concerning the withdrawal of Chilean nationality from trade union leaders in exile, to suggest to the Government that it should, in the spirit of the amnesty that has recently been decreed, re-examine the measure which affects Mr. Meneses and Mr. Araneda;
   • (d) as regards the allegations concerning the measures affecting certain trade union leaders:
   • (i) to draw the attention of the Government to the principles and considerations set forth in paragraphs 99 and 104 concerning the obligation on trade union leaders to belong to the occupation represented by their organisation and the removal from office of trade union leaders by administrative authority;
   • (ii) to request the Government to intervene with a view to the reinstatement of those concerned in their trade union functions and, in the case of dismissal, in their employment;
   • (iii) to request the Government to transmit the text of the judgement to be handed down in the case of Mr. Juan Fincheira, Mr. Milton Paga, Mr. Carlos Arellano and Mr. Arturo Latuz.
   • (e) with regard to the allegations concerning the events which took place on 1 May, to note that the persons arrested have been released, but to express its regret that the Government did not authorise a meeting requested by a large number of trade union leaders, and to stress that trade unions should have the right to freely hold meetings which they wish on the occasion of Labour Day provided that they respect public order;
   • (f) to take note of this interim report.
     • Geneva, 31 May 1978. (Signed) Roberto AGO, Chairman.