Informe provisional - Informe núm. 211, Noviembre 1981

Caso núm. 823 (Chile) - Fecha de presentación de la queja:: 12-AGO-75 - Cerrado

1. 373. The Committee has examined this case on several occasions and in particular at its February 1981 Session, when it submitted an interim report to the Governing Body.
2. 374. Since the last examination of the case, the complainant organisations have sent the ILO the following communications: the World Federation of Trade Unions (WFTU) (communications dated 11 March, 25 May, 8 and 13 July 1981); the Trades Union International of Workers in the Metal Industry (10 June 1981); the International Confederation of Free Trade Unions (ICFTU) (3, 9, 16 and 17 July 1981, 12 August 1981); National Trade Union Co-ordinating Body (CNS) (3, 8 and 9 July 1981); the Permanent Congress of Trade Union Unity of Latin American Workers (CPUSTAL) (9 July 1981); the World Confederation of Labour (WCL) (13 July 1981); the International Federation of Teachers' Unions (IFTU) (14 July 1981); the Trade Unions International of Public and Allied Employees (20 July 1981).
3. 375. For its part, the Government forwarded observations in a letter dated 24 September 1981.

A. Previous examination of the case

1. 376. At its session in February 1981, the Committee had adopted interim conclusions on one of the aspects of the case, namely the arrest of two trade union leaders: Manuel Bustos and Alamiro Guzmán, chairman and secretary-general respectively of the CNS. The Committee had requested the Government to inform it of the results of the legal proceedings taken against these two persons.
2. 377. Furthermore, the Committee had asked to be kept informed of any subsequent developments concerning two other aspects of the case: the inquiries undertaken into the disappearance of trade unionists or former trade unionists and trade union legislation.

B. New allegations

1. 378. In its communication of 11 March 1981, the WFTU alleges the arrest on 7 March of Luis Vergara, President of the Glass Federation and Carlos Gonzales, leader of the Coal Federation.
2. 379. The WFTU includes with its communication of 25 May 1981 a report of the external Committee of the Single Central Organisation of Chilean workers. In addition to allegations already examined by the Committee, the report refers to the situation of 35 workers who were allegedly dismissed from the Panal Textile Undertaking because of their trade union activities during a lawful strike lasting 57 days which had been organised in this undertaking.
3. 380. The other communications from the complainants concern the arrest of ten leaders of the National Trade Union Co-ordinating Body (CNS). This organisation explains in particular in a communication dated 9 July 1981, that in accordance with requests made by trade union leaders in November 1980 at the organisation's national advisory meeting, the CNS has drawn up a list of demands, now referred to as the "register of national demands", which was approved by 500 trade union organisations and 2,000 leaders who represented, according to the complainant organisation, 800,000 workers. The national executive of the CNS was instructed to present the register of demands to the governmental authorities. The main demands concerned legislation on work contracts, the recognition of greater freedom of association, the extension of collective bargaining, wage adjustments, social security reform and housing.
4. 381. The CNS requested an interview with the Minister of Labour on 8 June in order to deliver the register of demands, but the request was refused. The register was therefore sent to him by post. The minister of the Interior then instituted legal proceedings against 11 national trade union leaders, all members of the CNS executive. These trade unionists were accused of arrogating the right of representing workers without being legally qualified to assume such functions and of political proselytism and militancy. Under the provisions of Legislative Decree No. 2347, the first of these charges is punishable by prison sentences running from 541 days to 5 years and under the National Security Act, the second charge is punishable by imprisonment and exile. The Minister of the Interior also made use of the power conferred on him by the new Constitution to request the Constitutional court to apply the provisions of article 8 of the Constitution concerning acts of totalitarism and terrorism. The Constitutional court must decide as a matter of conscience whether the accused are guilty or innocent and what penalties should be imposed. Furthermore, according to the CNS, the authorities summoned each of the trade unions which had signed the register of demands and threatened to dissolve them if they did not withdraw their signatures.
5. 382. On Tuesday, 7 July, all the trade union leaders against whom proceedings had been instigated were summoned to appear before the examining magistrate. They were immediately arrested and transferred to the Santiago public prison. Only Juan Manuel Sepúlveda, the CNS officer in charge of international relations escaped this fate since he was on a trade union mission in Europe. The CNS points out that its chairman Manuel Bustos and secretary-general Alamiro Guzmán had already been prosecuted by the Ministry of the Interior for the same offence and had been given a suspended sentence of 541 days of imprisonment by the Court of First Instance; as a consequence, they will now have to serve the sentence without any possibility of a new suspension being granted. The ICFTU subsequently informed the ILO of the release of eight of the CNS leaders so that only Manuel Bustos and Alamiro Guzmán are still being detained.
6. 383. In a telegram dated 12 August 1981, the ICFTU reported the expulsion to Argentina of Chilean lawyers who had agreed to defend the accused trade union leaders before the courts.

C. The Government's reply

1. 384. The Government points out that technical amendments were made to legislation respecting trade union organisations with a view to bringing the texts into line with the country's political Constitution, approved in a referendum held in September 1980. It adds that the advisability or otherwise of introducing new amendments to national legislation is a matter exclusively within its sovereign rights, in accordance with its policy and the national interest. The Government states that employers' and workers' organisations were consulted on a permanent basis during the preparation of the respective bills.
2. 385. As regards the judicial proceedings concerning the trade unionists who have disappeared, the Government states once again that these cases are being investigated and fall within the competence of the ordinary judicial authorities. The Government will transmit any new information of interest to the Committee.
3. 386. As regards the initial legal proceedings taken against Manuel Bustos and Alamiro Guzmán in January 1981, the Government points out that the examining magistrate issued his findings at the beginning of April and that in June the accused were given a suspended sentence of 541 days imprisonment. The accused appealed to the Court of Appeal which upheld the original sentence. The defence counsel then lodged a new appeal, known as a "complaints appeal", with the Supreme Court. The latter, in a judgement delivered in August 1981, also upheld the original verdict.
4. 387. The allegations made in connection with the arrest of two trade unionists, Luis Vergara and Carlos Gonzales, are, according to the Government, unfounded. It explains that there is no trace of their having been arrested and that these persons are not known in the sectors of activity mentioned by the complainants since the organisations of which they are said to be leaders enjoy no legal or de facto existence.
5. 388. As regards the proceedings taken against the leaders of the CNS, the Government states, on the basis of the relevant texts in force, that Chilean law guarantees all citizens full freedom of association, and that they may freely establish, join or withdraw from trade union organisations. Furthermore, under section 1 of Legislative Decree No. 2347 of 1978, associations or groups of persons which represent workers without having the legal capacity to do so are declared contrary to the public order and the national security. According to the Government, this provision protects the activity of legitimately elected leaders, since otherwise it would be impossible for workers to distinguish between legally established organisations and de facto organisations which are established and dissolved without statutes and in accordance with interests not shared by the workers.
6. 389. The Government continues that, despite the clarity of these provisions, a group of former militants from dissolved political parties set itself up as the leader of an organisation, called the National Trade Onion Co-ordinating Body, established completely outside the law. This group, claiming to represent all Chilean workers, addressed a document called "register of national demands" to the President of the Republic which practically requested the repeal of trade union legislation. The offence committed was not the fact of having presented a request to the head of State, but rather that the group had assumed the status of workers' representative without being trade union leaders. The Government states that the legally established organisations have moreover publicly denied their alleged affiliation to the CNS.
7. 390. The Government explains that the sole purpose of the proceedings which were instituted against the leaders of this organisation was therefore to protect the trade union activity and freedom of legally established organisations. It also points out that the legitimately elected trade union leaders of legally existing organisations have the right to present petitions. The President of the Republic frequently meets with such leaders without such contacts leading to court proceedings against the trade unionists.
8. 391. The judicial authorities were therefore requested to examine whether the action of the CNS leaders constituted an offence or not. An examining magistrate was appointed and found grounds for a charge against the CNS leaders of illegally assuming the representation of workers. The defence requested the magistrate and subsequently the Appeals Court and the Supreme Court to annul the indictment and to release the persons concerned on bail. These two requests were refused. Subsequently, during the trial, bail was granted to the accused with the exception of Messrs. Guzmán and Bustos since under the Penal Code, persons who have been previously given suspended sentences of imprisonment are not entitled to bail. The Government points out however, that the persons concerned may request their temporary release as many times as they wish.
9. 392. As regards the allegations concerning the expulsion of four lawyers from the country, the Government points out that these persons - whose names it gives - were not the defence counsel of the CNS leaders, but were militant members of suspended political parties. Three of them had exercised ministerial functions in previous governments. One is in Venezuela, one in Spain and two in Mexico.
10. 393. In conclusion, the Government states that it has provided this information as a demonstration of its desire to cooperate with the ILO, but that it does not accept that it should be judged on the basis of complaints which are designed to complicate and prolong indefinitely the Chilean case before the ILO.

D. Conclusions of the Committee

1. 394. The Committee notes that technical adjustments have been made to the trade union legislation. However, these amendments are not such as to warrant any modification of the comments made in its previous report. It therefore requests the Government to continue to keep it informed of any subsequent developments in this matter.
2. 395. The Committee also notes that inquiries are continuing into the disappearance of trade unionists. It would like to be kept informed of the results of the judicial inquiries now under way.
3. 396. As regards the matters involving the leaders the National Trade Union Co-ordinating Body, the Committee notes that the leaders in question have been prosecuted for having acted as representatives of the workers without having the legal capacity to do so, since they are the leaders of a de facto organisation which does not enjoy legal personality. The Committee must, however, point out that the origin of the present case is certainly one which concerns freedom of association because the proceedings were instituted after a register of demands of a clearly social and occupational nature had been presented by the leaders concerned. Furthermore, this register had been drawn up in accordance with a decision taken at a meeting which was attended by a large number of federations or Confederations which represent workers from different sectors of activity and of which the leaders of the CNS are, for the most part, also leaders.
4. 397. If it is true that the CNS does not possess legal personality - in that it appears that this organisation never requested it - the Committee must however recall that, when it examined the new trade union legislation, it had pointed out that a certain number of provisions relating to federations and Confederations were incompatible with the principles of freedom of association, in particular as regards the setting up of these organisations. The Committee is of the opinion that these restrictions imposed on the creation and activities of Confederations might be able to explain, at least to a certain extent, why the CNS has apparently not requested legal personality. In addition, the Committee notes that a number of organisations which take part in the activities of the CNS do have legal personality. The Committee also recalls that the CNS-represents - as the ILO mission which was sent to Chile in December 1980 was able to note - a body which co-ordinates different workers' organisations belonging to various sectors of activity.
5. 398. As regards the allegations that the Government refused to meet with the CNS leaders, the Committee must stress the importance, for the maintenance of a country's social harmony, of regular consultations with employers' and workers' representatives; as regards the trade union sphere such contacts should embrace the whole spectrum of trade union activity, irrespective of the philosophical or political beliefs of its leaders.
6. 399. The Committee notes that only the two trade unionists holding the principal executive function at the CNS, namely Manuel Bustos, chairman and Alamiro Guzmán, secretary-general, are still being detained at the present time. It points out that the proceedings taken against these two persons are of a particularly serious nature since the accused had already been found guilty of having represented workers without having the legal capacity to do so in an earlier trial and that their sentence could not this time be suspended. The Committee understands that the judicial proceedings in this matter are following their course. It therefore requests the Government to provide information on the results of these legal proceedings.
7. 400. As regards the other allegations which have been made by the complainants since the last examination of the case (arrest of two persons in March 1981 and expulsion of four lawyers), the Committee takes note of the denial by the Government of the complainants' statements concerning the anti-trade union nature of the alleged facts.
8. 401. Finally, the Committee observes that the Government has not provided information on the allegations made by the WFTU concerning the dismissal of workers in the Panal Textile Undertaking.

The Committee's recommendations

• The recommendations of the Committee
  402. 402 In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions:
• The Committee takes note of the information supplied by the Government on the technical amendments made to the trade union legislation. It requests the Government to continue to keep it informed of any subsequent developments in this matter.
• The Committee also notes that the judicial inquiries into the disappearance of trade unionists are continuing and requests the Government to keep it informed of the results of these investigations.
• As regards the proceedings instituted against the leaders of the National Trade Union Co-ordinating Body, the Committee notes that the reason put forward by the Government to justify such action is, in particular, that the organisation concerned has no legal existence in this connection, the Committee recalls that the trade union legislation contains a certain number of provisions relating to federations and Confederations which are incompatible with the principles of freedom of association, in particular the provision concerning the setting up of these organisations. The Committee is of the opinion that these restrictions imposed on the creation and activities of Confederations might be able to explain, at least to a certain extent, why the CNS has apparently not requested legal personality.
• The Committee notes that the proceedings taken against Manuel Bustos and Alamiro Guzmán are of a particularly serious nature in as far as their sentence on this occasion cannot be suspended. It requests the Government to transmit information on the results of these legal proceedings.
• Finally, the Committee requests the Government to send its observations on the allegations concerning the dismissal of workers from the Panal Textile Undertaking.