Informe definitivo - Informe núm. 364, Junio 2012

Caso núm. 2873 (Argentina) - Fecha de presentación de la queja:: 04-MAY-11 - Cerrado

Allegations: The complainant organizations challenge a decree and ordinance issued by the authorities of the city of Mendoza which in their opinion denies and penalizes the right to demonstrate collectively

1. 164. The complaint appears in a communication from the United Trade Union of Education Workers of Mendoza (SUTE) and the Confederation of Education Workers of Argentina (CTERA) dated 4 May 2011.
2. 165. The Government sent its observations in a communication dated 13 February 2012.
3. 166. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 167. In their communication dated 4 May 2011, SUTE officially registered as trade union No. 866 by the Ministry of Labour, Employment and Social Security, and the CTERA alleges that two pieces of legislation have been adopted that are prejudicial to the interests of education workers in the Province of Mendoza who are members of CTERA and of other workers in the Province. The legislative acts are in serious breach of the principles laid down both in international law and in Argentina’s own legislation with respect to freedom of association. The legislation that the complainants challenge is as follows: Decree No. 863 issued by the mayor of the city of Mendoza and published in the Official Gazette of the Province of Mendoza on 30 June 2008, and Ordinance No. 3016 issued by the Deliberating Council of the municipality of Mendoza, which was never applied to the SUTE or its representatives until 4 August 2002.
2. 168. The complainant organizations consider that these municipal orders are in breach of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina on 18 January 1960, inasmuch as the Convention guarantees workers’ organizations the right to organize their activities and to formulate their programmes. They state that the public authorities’ interference in these matters is liable to prevent or hinder the legal exercise of those rights. They add that the regulations issued by the municipality were challenged in the Supreme Court of Justice of the Province of Mendoza, through the only channel provided for in the Province’s Civil Code of Procedure, in a bid to have them declared unconstitutional. The appeal was lodged with the Second Chamber of the Supreme Court as case No. 94017, “United Trade Union of Education Workers against the Municipality of Mendoza, on grounds of unconstitutionality”.
3. 169. The appeal was rejected by the Court without refuting the grounds advanced by the complainant and in violation of the latter’s right to offer and produce evidence, which is a manifest infringement of article 8.1 of the American Convention on Human Rights. The ruling was not challenged judicially, despite the fact that the Supreme Court of Justice of Argentina regularly does so, pursuant to article 280 of the Code of Civil and Commercial Procedure which empowers it to overturn both extraordinary federal appeals and direct appeals or complaints at its own discretion (this is the only judicial channel for obtaining a review of a decision handed down by the Supreme Court of Justice of a province). Moreover, the case law of both the Supreme Court of Justice of Mendoza both of the Province of Mendoza and the federal Supreme Court of Justice has repeatedly confirmed that the latter is not competent to hear cases involving provincial public law. This has led to a de facto situation in which the formal admission of extraordinary appeals and/or complaints has been left purely and simply to the discretion of the said Supreme Courts.
4. 170. According to the SUTE and CTERA the provisions that they are challenging violate the terms of ILO Convention No. 87 in so far as they prohibit and punish (by the imposition of fines and the threat of imprisonment) the holding of collective demonstrations within the capital of the Province of Mendoza. Decree No. 863/2008 reads as follows:
   • Article 1 – Use of the esplanade of the municipality shall be authorized for the holding of demonstrations and similar events within the city of Mendoza and, on such occasions, the venue shall be fitted out with adequate platforms and loudspeakers free of charge. The parties concerned must accordingly submit a request the Executive Department at least 48 hours prior to the event, indicating the name and address of the organization and of its legal or statutory representative, with the number of the relevant identity document, as well as the time the event is scheduled to start and to finish.
   • Article 2 – Demonstrations and similar events starting from any location other than that indicated in the preceding article shall proceed along the sidewalks, duly respecting pedestrian crossings and traffic signals.
   • Article 3 – The presiding Court of Misdemeanours shall be immediately notified of any failure to abide by the municipal regulations in force. The enforcement of the penalties provided for under ordinance No. 3016/13603/90 shall be the responsibility of the Directorate of Traffic of the municipality of Mendoza.
   • Article 4 – Cultural, sporting, educational, governmental and religious events involving the use of public roads within the meaning of Ordinance No. 3016/13603/90 shall be subject to prior authorization by the Executive Department, for which purpose a request must be submitted at least 72 hours prior to the event in accordance with Act No. 3909.
   • Article 5 – This provision shall be publicized as broadly as possible through the Press.
   • Article 6 – This provision shall be published, communicated and included in the Book of Decrees.
5. 171. The complainants go on to state that article 1 of Ordinance No. 3016 of 1990, which was applied to the SUTE for the first time in August 2008, stipulates: “The holding of any type of event on public thoroughfares within the area comprising the streets known as Patricias Mendocinas, Rioja, Córdoba, Godoy Cruz, Colón and Vicente Zapata is prohibited, other than the holding of events which by their size and conduct do not hinder the normal movement of pedestrians and vehicles; such events may be authorized by the Executive Department”. Decree No. 863/2008 stipulates: “Article 3 – The presiding Court of Misdemeanours shall be immediately notified of any failure to abide by the municipal regulations in force”. This refers to article 38 of the Code of Misdemeanours of the municipality of Mendoza, which stipulates: “Any person who disregards a legal provision adopted by the competent authority in the interests of justice, public safety or health shall, unless the act constitutes a more serious offence, be sentenced to 30 days under arrest or to a fine of up to 3,000 pesos”.
6. 172. According to the complainants, the municipality of Mendoza has clearly provided not only that trade unions that organize demonstrations be fined but also that the Court of Misdemeanours should be duly notified; the latter may order union officials or any workers participating in a march to be placed under arrest for up to 30 days. In other words, both the Ordinance and the Decree being challenged lay down rules of conduct which, if disobeyed, give rise immediately to a fine and/or up to 30 days under arrest. As can be seen from the provisions referred to, the fines are applicable both to the trade union that convenes a demonstration and to the workers who take part in it. This means that the municipality may impose a fine that is equal to two or three times the average wage of a member of the teaching staff, and even more in the case of non-teaching staff; at the same time, there is a real possibility that both union officials and workers taking part in a demonstration may be placed under arrest.
7. 173. The complainants explain that Argentina’s Constitution establishes that the State is a national unit comprising Provinces which retain powers that are not vested in the federal Government and that in turn the latter recognize an internal political division (articles 121 to 123 of the Constitution). These internal political units are known in the Provinces as municipalities and, as in the case of the city of Mendoza, as departments. Each department possesses an executive governing body (the Office of the Mayor) and a deliberating body (the Deliberating Council). The powers of the municipalities are set out in general terms by the national Constitution (autonomy); in the case of the Province of Mendoza, these powers are governed by Mendoza’s provincial Constitution, as established by the latter, are complemented by Provincial Act No. 1709 (the Municipalities Organic Act). The city of Mendoza is the capital of the Province (article 2 of the provincial Constitution) and the seat of all the provincial authorities (executive, legislative and judiciary).
8. 174. The headquarters of the General Directorate of Schools, which is the principal employer of education workers, is in the city of Mendoza, where numerous private employers (private management schools) are also located. The municipal regulations challenged by the complainants impede the people’s exercise of their right to demonstrate collectively, and therefore also that of the SUTE and of its members. The SUTE has already been sanctioned for exercising the right to demonstrate collectively, having been heavily fined for that reason since August 2008.
9. 175. The complainants maintain that the restrictions they are challenging have no legal basis. On the contrary, the Provincial Transit Act currently in force provides explicitly for the possibility of using public thoroughfares for demonstrations (article 73, Act No. 6082). Even the law that was in force when Ordinance No. 3016 was adopted contained no provision prohibiting the use of public thoroughfares for demonstrations or requiring authorization for such purposes. Article 3 merely stipulates that the Directorate of Traffic of the Province of Mendoza may make temporary arrangements for the movement of people and vehicles when circumstances so demanded for reasons of public order and safety (article 3(c), Act No. 4305). Moreover, the restrictions denounced by the complainants have no basis in fact since, under the pretext of regulating people’s right, they curtail the right to demonstrate only when the demonstration is in support of a demand or complaint; any other demonstration is allowed to take place even if it makes it impossible for people to move about and irrespective of the extent or degree to which traffic is disrupted. The ban applies to the entire territory of the municipality of Mendoza and thus prevents the exercise of freedom of association even in the limited sense of freedom of action and freedom to demonstrate in support of demands made of the workers’ employers and/or the public authorities.
10. 176. According to the complainants, the ban on the use of public areas in exercise of the right to demonstrate is an infringement of the fundamental principles laid down in Articles 19, 20.1 and 29.2 of the Universal Declaration of Human Rights (UDHR), Articles 3, 4, 5.1, 8.1(a) and (c), 8.2 and 8.3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Articles 2.1, 3, 19.1, 19.2, 21, 22 and 26 of the International Covenant on Civil and Political Rights (ICCPR). The municipal Decree challenged by the complainants maintains that mass demonstrations in support of a demand or complaint “entail the restriction of other individual and collective rights and cause traffic congestion and disruption in the city which pose difficulties for people and for private vehicles buses that use the thoroughfares every day and whose legitimate rights are thus affected”. Consequently, such demonstrations are prohibited anywhere other than on the esplanade of the municipality, whereas other “events” are specifically authorized under article 4 of the Decree. In other words, it is only when the “events” are in support of a demand or complaint that they constitute undesirable and reprehensible conduct, while sporting, religious, government-sponsored and other events supposedly do not disrupt traffic. Moreover, according to the Decree challenged by the complainants, collective and mass demonstrations that are not in support of a demand or complaint do not restrict other people’s individual rights or cause traffic congestion, or at least do not do so to the point where they need to be prevented, as in the case of demonstrations by workers demanding better wages or better working conditions or voicing their opinions, demands or complaints.
11. 177. According to the complainants, the Decree they are challenging requires demonstrators – when marching in support of a demand or complaint – to keep to the sidewalks and observe traffic signals or to meet on the esplanade in front of the municipality; this shows clearly that the Decree prevents freedom of expression and demonstrations only when workers meet to inform their fellow citizens publicly of their working conditions and their demands. Such activities as these are punishable by fines and possibly by up to 30 days’ imprisonment without any justification, since Decree No. 863/2008 is obviously not concerned with the flow of traffic or the use of public spaces but is aimed simply at preventing demonstrations in support of a demand or complaint, which is an essential and universal means of expression of workers all over the world. The Decree also strikes a blow against the right to establish trade unions and to participate in union activities, since it imposes restrictive conditions on demonstrations that it does not impose on associations that are not concerned with lodging complaints or demands with the authorities or with employers.
12. 178. The complainants state that it is abundantly clear that the Decree violates the principle of equality. Denying the complainants and their representatives the use of public areas is the method that the municipality has chosen to restrict their freedom of association while in practice there is no such ban on other people or groups in exactly the same circumstances. The wording of international treaties varies, but Article 1 of the UDHR and Article 3 of the ICESCR refer to the equality of all human beings in dignity and rights and to their equal right to enjoy all their rights, thereby consecrating or recognizing the right to equality in the same way as do Articles 2.1 and 3 of the ICCPR. This principle of international human rights law has been grossly violated by the Decree challenged by the complainants, inasmuch as it deems reprehensible only those trade union demonstrations or other mass demonstrations in support of demands and complaints.
13. 179. The complainants add that the regulation they are challenging violates the principle of legality embodied in the aforementioned international treaties, all of which stipulate that the exercise of recognized rights are subject only to restrictions provided for in law. Decree No. 863/2008 does not comply with the restrictions imposed by law and is not itself a law.
14. 180. It is the complainants’ understanding that any rule or regulation that restricts or regulates human or constitutional rights or other fundamental guarantees must be adopted by a democratically elected legislative body, in order to safeguard the democratic goals and principles on which the international treaties on human rights are based.
15. 181. The complainants wish to make it clear that the provincial Constitution, by investing the administration of local interests and services solely in the Office of the Mayor, has created a body whose competence is limited and which has the power to administer or govern itself only within the bounds of organic laws adopted by a higher body, i.e. the provisions of the Constitution and other legislation in force. That being so, the Executive Department of the city of Mendoza, acting through the Mayor and the Municipal Council, is guilty of a violation of freedom of association, inasmuch as it claims to exercise legislative powers which are explicitly denied it and whose exercise in practice violates the principles of equality, legality and reasonableness by undermining the free exercise of trade union rights. The ban imposed by the Mayor disregards workers’ rights in respect of a particularly sensitive issue for trade unions, namely, the possibility of publicizing their demands or official position in pursuit of their goals by making them known to workers and other citizens by the only means at their disposal, i.e. by word of mouth in public areas to which other people have access. Worse still, the ban is an attempt to hide the demonstrating workers from public view, thereby violating the most elementary principles of the international system of human rights.

B. The Government’s reply

1. 182. In a communication dated 13 February 2012, the Government provided the reply from the authorities of the city of Mendoza. The latter note from their analysis of the complaint that the complainants maintain that Ordinance No. 3016/90 and Decree No. 863/2008 violate Article 3 of ILO Convention No. 87, ratified by Argentina in 1960, and that the provisions they contain were contested before the Supreme Court of Justice of the Province of Mendoza, which rejected the appeal. The complainants based their appeal on grounds of the unconstitutionality of the municipal regulations, which they argue are in breach of Convention No. 87.
2. 183. The authorities state that, as the complainants themselves recognize, they took the matter to the provincial Supreme Court of Justice on the grounds of their unconstitutionality. The appeal lodged by the SUTE was rejected by the Second Chamber of the provincial Court in case No. 94017, under the heading “United Trade Union of Education Workers against the Municipality of Mendoza”. Since no appeal was lodged against the ruling, as the complainant recognizes, it was deemed confirmed and accepted. The Court stated categorically that: “The right to protest may, like any other right, be subject to reasonable regulations if it is intended thereby to maintain public order and safety in the movement of people and vehicles or ensure peaceful social coexistence. The requirement of mere advance notice in order to ensure public order and avoid detracting from other people’s rights that are likewise guaranteed by the Constitution is deemed to be reasonable. Allowing demonstrations to take place under the organizers’ own arrangements does not imply the restriction of any right but rather its legitimate exercise”. In other words, the provincial Court itself, in examining the case, declared that the regulations in question were not in breach of any precept whatsoever inasmuch as it was designed to enable demonstrations to take place in an orderly manner, which does not entail the restriction of any right but rather its legitimate exercise.
3. 184. The city authorities note that the complainants claim that the municipal regulations prohibit the holding of collective demonstrations within the provincial capital of Mendoza, and that it is punishable by fines or a possible prison sentence. According to the authorities, this interpretation of the regulation is erroneous since, to begin with, it does not prohibit collective demonstrations but seeks to ensure people’s freedom of movement, by arranging for peaceful demonstrations and placing platforms and loudspeakers at their disposal, subject to prior authorization, or by confining the demonstrators to the sidewalks and requiring them to respect the pedestrians and obey traffic signals (articles 1 and 2 of Decree No. 863/2008); similarly, prior authorization is required only if the demonstration hinders the normal movement of pedestrians and/or vehicles (article 1 of Ordinance No. 3016/90). In other words, not a single paragraph of the provision concerned imposes a ban on demonstrations as the complainants claim.
4. 185. This latter point, too, was recognized by the Supreme Court of Justice of the Province, which in its ruling stated: “The Court pointed out that, from its reading of article 2 of Decree No. 863, the trade union has no legitimate concern, inasmuch as the regulation does not prohibit the holding of marches or demonstrations elsewhere than on the esplanade in front of the municipality but merely regulates them by requiring that they take place on the sidewalks and that they respect pedestrian crossing and traffic signals. Such arrangements cannot be classified as “denying a right”, since the restrictions imposed are perfectly reasonable legal regulations, inasmuch as regulations aimed specifically at the movement of pedestrians on sidewalks and the abuse of that right are in full compliance with the fundamental principles of constitutional law. That being so, there is no way the article can be accused of being unconstitutional and undermining supposedly supralegal fundamental rights, since it is obvious that the regulations adopted under the legislation in force constitute no more than a reasonable and legitimate restriction that cannot possibly be considered a curtailment of any right. It may be concluded from the above that the complainant has not demonstrated in any credible way that it has suffered any such prejudice as it claims as a result of the enforcement of either Decree No. 863 or Ordinance No. 3016, given that the former reflects the logic and prudence that should prevail when regulating a right and the regulation adopted by the Deliberating Council was agreed to by the trade union. Consequently, the latter’s claim to have suffered a prejudice has to be rejected”.
5. 186. The city authorities state that the provisions in question clearly endeavour to balance the prejudice sustained by the complainants against that caused to the rest of the community. It is common knowledge that the main thoroughfares in the city centre are brought to a standstill every day by the steady increase in the number of vehicles using them, as well as the large number of public transport buses, and that even in normal circumstances this causes regular traffic jams in the city’s main arteries. If, in addition, the traffic is held up by demonstrations, the situation becomes even more fraught. It is the workers using the thoroughfares who suffer and the right to freedom of movement that is whittled away, and this in turn prevents people from getting to work and back and from receiving prompt treatment in health centres. If the city thoroughfares are used in such a way that the rights of the general public are disregarded or restricted, then prior authorization has to be required so that their use can be properly regulated and its consequences foreseen, with the traffic police controlling the traffic at certain points or through some other solution. At the same time, the point must be made that the complainants have their own institutional means of resolving their disputes, such as joint committees or the legitimate use of the right to strike. This is recognized in the preambular paragraphs of Decree No. 863/2008, which states that “it is reasonable and desirable that the exercise of the right to present demands and to hold meetings be reconciled with the right to freedom of movement, both of which have equal constitutional validity”.
6. 187. Furthermore, far from requiring that trade unions organizing demonstrations be fined or that their members be arrested, as the complainants maintain, the municipality uses Decree No. 863/2008 to offer demonstrators several options that do not deny them their rights. For example, with prior authorization they can use the esplanade in front of the municipality free of charge and equipped with platforms and loudspeakers. If they use another location, they can march on the sidewalks, provided they respect the pedestrians and traffic signals. If they want to organize other kinds of events involving the use of public thoroughfares, they must seek prior authorization, failing which they are liable to the fine provided for in the Ordinance or else the presiding Court of Misdemeanours is notified.
7. 188. There is nothing whimsical about this provision, which can be found in the former Provincial Traffic Act (Act No. 4305, superseded by Act No. 6082) which by means of regulatory Decree No. 200/79 used to prohibit pedestrians from using the streets (article 49). This is precisely what happens when a demonstration takes to the public thoroughfares. Article 73 of the current Provincial Traffic Act (Act No. 6082) stipulates: “The use of pubic thoroughfares is prohibited for purposes other than the movement of vehicles, such as processions, demonstrations, meetings, exhibitions and running, cycling, equestrian or motor car races. Authorization may be granted by the public authorities only if: (a) the free flow of traffic can be maintained normally by using alternative routes; (b) the relevant bodies certify that they will assure the necessary safety measures for people and assets at the location; and (c) the organizing body itself, or a duly contracted insurance company, accepts full responsibility for any damages sustained by third parties or by the road network as a result of an event involving certain risks”. Obviously, the general principle, which is set out in greater detail in the Act than previously, is that the use of public thoroughfares for purposes other than road traffic is prohibited, and that any exception to this rule is dependent on compliance with the conditions laid down therein and subject to prior authorization from the relevant authority – which, as shall be seen, is ipso facto the municipality.
8. 189. Notification of the presiding Court of Misdemeanours is based on article 50 of the provincial Code of Misdemeanours, entitled “Abusive use of the right of assembly”, which stipulates: “Any person or persons organizing meetings in public areas in breach of the lawful regulations governing safety and general convenience shall incur a fine of up to 3,000 pesos”. This shows that the complainant organizations’ claim that “trade unions organizing demonstrations are fined or their members are arrested” is therefore false.
9. 190. Article 3 of Decree No. 863/2008 stipulates that, in cases of non-compliance with the municipal regulations in force, the presiding Court of Misdemeanours must be immediately informed. It is then for the said Court to determine whether the Code of Misdemeanours has been breached and, if so, to impose a penalty – a decision that is not the responsibility of the municipality.
10. 191. Regarding article 2 of the Decree challenged by the SUTE, which claims that it undermines the rights of the trade union and its members, the relevant text reads: “Demonstrations and/or other events held in a location other than that indicated in the previous article must use the sidewalks and respect pedestrian crossings and traffic signals”. On this point the Province’s Supreme Court of Justice stated in its aforementioned ruling: “As indicated above, it is not this article but Ordinance No. 3016 and article 73 of the Provincial Traffic Law that prohibit the use of public thoroughfares for demonstrations, unless they have been authorized by the competent authority and on condition the normal flow of traffic can be maintained using alternative routes and provided safety measures are in place and there are no risks involved”.
11. 192. As the Public Prosecutor stated in the Court’s ruling, the possibility that the Decree affords for anyone to use public thoroughfares for demonstrations without seeking authorization does not imply, or provide grounds for claiming, that this unrestricted concession is unlawful when it invokes inconveniences that have to be avoided in order to comply with the requirements of the regulation. A requirement based on people’s convenience cannot be deemed manifestly unreasonable, nor does it infringe any constitutional right.
12. 193. The complainants also claim that the wording of the regulation implies that the fines and possibility of arrest referred to extend both to the trade union and to workers taking part in a demonstration; but it is not true that the said provisions they challenge are open to any such interpretation, as they do not impose sanctions on workers taking part in a demonstration. No workers have ever been sanctioned, and the SUTE has been charged only with causing an obstruction in violation of article 73 of Act No. 6082 and article 1 of Ordinance No. 3016/90.
13. 194. As to the point headed “Scope of the regulations being challenged” in which the complainants claim, inter alia, that (i) the restrictions introduced have no legal basis, (ii) the Traffic Act in force provides for the possibility of holding demonstrations, (iii) the provisions they are challenging restrict the right to demonstrate only when they are in support of demands or complaints and not otherwise, and (iv) the ban is a blanket prohibition that applies throughout the territory of Mendoza, the city authorities maintain that the complaint is completely unfounded for a number of reasons. To start with, Ordinance No. 3016/90, which was adopted by the Deliberating Council of Mendoza on 18 December 1990 and entered into force upon its publication in the Official Gazette on 25 February 1991, provides for the imposition of a fine on any person who violates article 1 thereof, which bans any kind of demonstration or similar event on public thoroughfares within the area comprising the streets known as Patricias Mendocinas, Rioja, Córdoba, Godoy Cruz, Colón and Vicente Zapata, save for events whose size and conduct do not disrupt the normal movement of pedestrians and/or vehicles and which may be authorized by the Executive Department. In other words, a regulation is now being challenged which has been in operation for more than 19 years and which does not entail any violation of the Constitution whatsoever.
14. 195. Moreover, as indicated above, the Ordinance derives from Provincial Act No. 4305 which, by means of Decree No. 200/79 banned pedestrians from the streets (article 49). Subsequently, the current Provincial Traffic Act (Act No. 6082) was adopted which banned the use of public thoroughfares for purposes other than the movement of people and/or vehicles but provided that in specified exceptional cases such use might be authorized under the powers conferred by article 73, which has already been examined. The same applies to article 50 of the provincial Code of Misdemeanours. In other words, the provincial regulation is the legal standard under which the provisions of Ordinance No. 3016/90 and Decree No. 863/2008 should be assessed.
15. 196. The Province’s Supreme Court of Justice has ruled that: “It is an undeniable fact that the streets are public assets of the State, as stipulated in article 2340(7) of the Civil Code to the effect that the streets, squares, paths, canals, bridges and any other public construction destined for the use of the community are reserved for the immediate and direct use and enjoyment of the inhabitants as a whole. It is generally agreed that they belong to the public domain of the municipality” (Rivera, Julio C. Instituciones del Derecho Civil, Parte General, Bs. As., Perrot, 1993, vol. II, No. 1017; Salomoni Jorge L., Teoría general de los servicios públicos, Bs. As., ad hoc, 1999, page 360). Article 1 of Ordinance No. 3016/90 is quite clear. It imposes a general ban on “the holding of demonstrations or other public events on public thoroughfares, except for events whose size and conduct do not disrupt the normal movement of pedestrians and/or vehicles and which may be authorized by the Executive Department”. This latter part of the said article makes it quite clear that there is no “total ban” such as the complainants allege. The whole point of the regulation is as far as possible to reconcile the right to demonstrate and present demands with the right of all citizens to freedom of movement, to a healthy environment – which becomes highly polluted in traffic jams – and, in general, to carry out their daily activities normally. Demonstrations are thus authorized on condition they do not disrupt the normal flow of traffic.
16. 197. The same applies to Decree No. 863/2008, except that in this case the administrative authority goes even further and provides a venue for demonstrations, i.e. the esplanade in front of the municipality, which in addition it offers to equip with platforms and loudspeakers at no charge. Having proposed a fully equipped venue for demonstrations, the next article declares, not that any demonstration held elsewhere than in the specified location is prohibited, but that any such event must take place on the sidewalks and must respect the pedestrians and traffic signals. This entails making it possible to reconcile conflicting rights.
17. 198. Contrary to the claims of the complainants, the city authorities maintain that, far from extending the ban imposed by the regulatory Ordinance, Decree No. 863/2008 sets out and amplifies the possibilities that exist for holding demonstrations, as has been explained in the preceding paragraphs, even to the point of accepting that the free movement of pedestrians could be sacrificed. Furthermore, it is not true that the ban has been extended to the entire city and thus goes beyond the framework of Ordinance No. 3016/90. The complainants forget to mention that Act No. 6082 – adopted after the said Ordinance – prohibits the use of public thoroughfares for purposes other than the movement of people and/or vehicles throughout the Province and not just in the city. It can therefore hardly be claimed in this respect that the Decree violates the Constitution in any way.
18. 199. The authorities insist that the principles of the Committee on Freedom of Association have definitely not been violated, since there is no trace of any “ban on the right to demonstrate” in the regulation under examination, as the complainants claim. Nor do the provisions in question discriminate in any way against the type of event referred to. There are also no grounds whatsoever for maintaining that the provisions violate the fundamental principles of the international declarations and treaties cited by the complainants or that they constitute “degrading treatment” or a slight on the dignity of any citizen. On the contrary, it is obvious from everything that has been said that the whole issue stems from the attempt to reconcile the rights of all the inhabitants of Mendoza without distinction of any kind.
19. 200. There is no violation of the right to freedom of expression and of opinion, either, since their exercise is not curtailed and demonstrations in support of demands and complaints are by no means banned, as the complainants would have people believe. The extensive arguments advanced by the latter on this point seem to overlook the fact that Act No. 6082 imposed a blanket ban on the use of public thoroughfares for purposes other than pedestrian and vehicular traffic and that Ordinance No. 3016/90 refers to any type of demonstration or similar event on public thoroughfares.
20. 201. The Decree under examination introduces a distinction that is quite reasonable, since experience has shown that the kind of demonstrations referred to in article 2 entail the use of the city streets; that is why it stipulates that they must keep to the sidewalks so as not to disrupt the traffic. Article 4 refers to other types of event, which do not necessarily occupy public thoroughfares. Even if they do, under article 1 of Ordinance No. 3016/90 they can still be held so long as their size and conduct does not disrupt the normal movement of pedestrians and/or vehicles, which is why they can be held without the explicit prior authorization of the Executive Department.
21. 202. It should be noted that article 2 of Decree No. 863/2008 does not stipulate any requirement as to prior authorization, precisely so as not to undermine demonstrators’ rights. Prior authorization is required only for the use of the esplanade in front of the municipality. Consequently, far from introducing a form of negative discrimination, the Decree actually facilitates the organization of this type of demonstration, provided the procedure laid down in article 2 is adhered to. It is therefore untrue that it undermines the principle of equality. Besides, no other kind of event can take over the public thoroughfares either, given the prohibitions already referred to in Act No. 6082 and Ordinance No. 3016/90. On the other hand, it is quite true that the pedestrians’ freedom of movement will be restricted, but this is precisely because the restriction of certain individual rights is the sacrifice that must be made to protect the right to demonstrate.
22. 203. The city authorities state that the regulation challenged by the complainants infringes neither the principle of legality nor the American Convention on Human Rights, both of which allow certain legal restrictions on rights when they are imposed in the general interest, as the complainants themselves recognize. Yet the latter try to ignore both the authenticity of the laws analysed here and the municipality’s competence to issue its own regulations on the subject, claiming that its competence extends only to purely “administrative” matters and disregarding the municipality’s degree of autonomy. They thus demonstrate a considerable ignorance of current institutional law. The point needs to be made that the blanket ban for the whole Province was made official by Act No. 6082 and that the complainants have never questioned that Act’s constitutionality. At the municipal level, it is Ordinance No. 3016/90 that lays down the conditions for exercising the right of assembly and Decree No. 863/2008 that establishes rules based on those provisions. The city authorities add that the laws adopted by the provincial legislature on the subject invariably make it a general principle that the use of public thoroughfares for demonstrations is subject to certain conditions; the Ordinance challenged by the complainants does no more than that, even though the complainants do everything they can to present it under a different light.
23. 204. In ruling on the matter, the Province’s Supreme Court of Justice stated: “Ordinance No. 3016 was duly adopted by the Deliberating Council in the exercise of the powers conferred on it by article 200(3) of the provincial Constitution, under which make it responsible for the health, welfare establishments not run by private companies and public thoroughfares, in conformity with the laws adopted by the legislature on the subject. ... That is why the Mayor, in the exercise of the powers conferred on him/her and acting within his/her sphere of competence, offers the use of part of the municipality’s public domain so that demonstrations do not cause chaos in the streets – which are intended for the immediate and direct enjoyment of the inhabitants and are in the charge of the police. This is why, subject to their seeking prior authorization, anyone wishing to organize a demonstration or other similar event can use the esplanade in front of the municipality.”
24. 205. There is no juridical or logical justification for feigning to be unaware of the constitutional authority of the legislature, the Deliberating Council and the municipality’s Executive Department to resort to the police in the way provided for. Moreover, the Mendoza city authorities believe that the regulation challenged by the complainants does not go against the opinions of the Committee on Freedom of Association, as the complainants claim. The latter consider that the purpose of the regulation “is not substantial, since pedestrians and vehicle drivers suffer only minor inconvenience”. It will be noted that, while the complainants arbitrarily play down the right of pedestrians and vehicles to freedom of movement, Decree No. 863/2008 explicitly states in its preambular paragraphs that its purpose is to reconcile the exercise of the right to present demands and the right of assembly with the right of people and vehicles to move about freely, both of which it recognizes as having equal constitutional validity. In other words, whereas the complainants refer pejoratively to the right of citizens to move about freely, the municipality places both sets of rights on an equal constitutional footing in an attempt to reconcile the interests of both parties.
25. 206. Finally, the authorities state that they can only request that the representation presented by the complainants be rejected, inasmuch as the provisions they are challenging are in no way designed to achieve the objectives that they suggest. On the contrary, the provisions are a reasonable attempt to reconcile the rights of a democratic society that have been established by competent and legitimate bodies, as was recognized by the Province’s Supreme Court of Justice in its ruling on case No. 94017, “United Trade Union of Education Workers against the Municipality of Mendoza de Mendoza, on grounds of unconstitutionality” – a ruling which is now definitive and has been recognized as such by the complainants.

C. The Committee’s conclusions

1. 207. The Committee observes in the present case that the complainant organizations challenge Decree No. 863/2008 issued by the Mayor of the city of Mendoza on 30 July 2008 and Ordinance No. 3016/90 issued by the Deliberating Council of Mendoza’s municipality, which in its opinion prohibit and punish the holding of collective demonstrations. (The said Decree (i) authorizes the use of the esplanade in front of the municipality – equipped at no charge with adequate platforms and loudspeakers – for the holding of demonstrations and similar events and stipulates that similar events starting from any other location must use the sidewalks and observe the pedestrian crossings and traffic signals, and (ii) provides that the presiding Court of Misdemeanours shall be informed of any failure to comply with the said regulations and that the Directorate of Traffic of the city of Mendoza may impose such sentences as are laid down in Ordinance No. 3016/90 – possible arrest of up to 30 days and fine of up to 3,000 pesos).
2. 208. To begin with, the Committee takes note that the complainant organizations and the government of the city of Mendoza state that the Supreme Court of Justice of the Province of Mendoza rejected a plea of unconstitutionality lodged by the SUTE against the Decree and Ordinance that it is challenging. According to the complainants, the Court rejected the appeal without refuting the evidence presented, thereby violating their right to present evidence, and no appeal was lodged against the ruling because the case law of the federal Supreme Court of Justice has repeatedly confirmed that it is not competent to rule on matters of provincial public law.
3. 209. The Committee also takes note that the government of the city of Mendoza states that the judicial authority of the Province maintained that “the right to demonstrate – like any other right – may within reasonable bounds be regulated in the interests of public order and the safety of pedestrians and vehicles or of peaceful social coexistence”. The Committee also takes note of the statement of the government of the city of Mendoza that: (1) the regulations challenged by the complainants do not prohibit collective demonstrations but are to ensure people’s freedom of movement, by arranging for peaceful demonstrations and placing platforms and loudspeakers at their disposal, subject to prior authorization, or by confining the demonstrators to the sidewalks and requiring them to respect the pedestrians and traffic signals, prior authorization being required in such cases only if the demonstration hinders the normal movement of pedestrians and/or vehicles; (2) none of the provisions prohibit demonstrations as the complainants claim, a fact that has been recognized by the Supreme Court of Justice of the Province of Mendoza; (3) the regulations seek to balance the prejudice sustained by the complainants against that caused to the rest of the community, it being common knowledge that the main thoroughfares in the city centre are brought to a standstill every day by the steady increase in the number of vehicles using them; (4) if, in addition, the streets are blocked by demonstrations, then the traffic can become so dense that workers using the roads suffer, freedom of movement is curtailed and people are prevented from getting to work or to health centres; (5) as a result, if the usage of the city thoroughfares disregards or restricts the rights of the general public, prior authorization is required so that their usage can be properly regulated and its consequences foreseen, with the traffic police helping to control the traffic; (6) far from stipulating that trade unions organizing demonstrations should be fined or their members arrested, the Decree offers demonstrators several options that do not deny them their rights (i.e. they can use the esplanade in front of the municipality or, if they use another location, they can march on the sidewalks provided they respect the pedestrians and traffic signals); (7) for any other event requiring the use of public thoroughfares a request must be made for prior authorization, failing which the fine provided for in the Ordinance applies and the presiding Court of Misdemeanours is notified and the corresponding sanction imposed – a decision which is not the responsibility of the municipality; (8) the regulation challenged by the complainants does not stipulate any penalty for workers taking part in a demonstration and no such penalty has ever existed, the entire responsibility being placed on the SUTE for causing an obstruction in violation of article 73 of Act No. 6082 and article 1 of Ordinance No. 3016/90 (the complainant sent the Committee a copy of a municipal resolution fining the SUTE for obstructing the traffic in several streets of Mendoza); (9) Ordinance No. 3016/90 introduces a federal ban on demonstrations or similar events on public thoroughfares, except for those whose size or conduct does not hinder the normal movement of pedestrians and/or vehicles and which may be authorized by the Executive Department; and (10) the regulation does not imply any discrimination against the type of demonstrations in question and there are no grounds for claiming that the provisions being challenged violate freedom of opinion or of expression.
4. 210. In the light of all the foregoing information and of the ruling in question, the Committee will not pursue its examination of these allegations.

The Committee’s recommendation

1. 211. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.