Rapport intérimaire - Rapport No. 233, Mars 1984

Cas no 1212 (Chili) - Date de la plainte: 08-JUIN -83 - Clos

1. 520. The Committee examined this case at its November 1983 meeting, when it submitted an interim report to the Governing Body [see 230th Report, paras. 619 to 659, approved by the Governing Body at its 224th Session (November 1983)]. Subsequently, the Government sent its observations in a communication dated 11 January 1984.
2. 521. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 522. When the Committee examined this case at its November 1983 meeting, it made the following recommendations concerning the allegations still pending [see 230th Report, para. 659]:
   • "The Committee deeply deplores the four deaths and physical assaults which occurred on 14 June 1983 (second National Protest Day).
   • The Committee expresses its grave concern at the detailed allegations of torture submitted by the complainants and requests the Government to undertake a prompt and independent judicial investigation of the alleged cases of torture (especially with respect to María Rozas, Sergio Troncoso - both trade union leaders - and José Anselmo Navarrete - trade unionist) with a view to elucidating the facts in full, to identifying the persons responsible and to taking proceedings against them.
   • The Committee asks the Government to take all the measures necessary to ensure that the dismissed trade union leaders (34 according to the complainants) are reinstated as soon as possible in their jobs, that the CODELCO firm abandons the legal proceedings it has instituted to disqualify trade union leaders from holding office and that it reinstates all those workers who have been dismissed for trade union reasons.
   • The Committee asks the Government:
     • (i) to send it the findings of the investigations carried out by the normal legal channels into the four deaths and physical assaults which occurred on 14 June 1983 (the second National Protest Day);
     • (ii) to send its observations on the trial and/or arrest of the 12 trade union leaders and the five trade unionists mentioned in Annex I;
     • (iii) to send its observations on the allegation that the premises of the National Trade Union Coordinating Body were broken into and that furniture and equipment were stolen;
     • (iv) to send its observations as soon as possible on the recent allegations concerning the abduction, torture and death threats against Raúl Montecinos, CTC union leader, on 7 October 1983, who is presumably in hospital at the moment;
     • (v) to inform it of the results of the judicial investigations under way into the alleged cases of torture, in particular regarding Maria Rozas, Sergio Troncoso - both trade union leaders - and José Anselmo Navarrete;
     • (vi) to inform it of the measures taken to put an end to the acts of anti-union discrimination taken against trade union leaders and workers.

B. The Government's reply

1. 523. Referring to the deaths and physical assaults that occurred during events on 14 June 1983, the Government states that it deeply regrets these distressing incidents which would never have occurred had it not been for the irresponsibility of persons who, without measuring the consequences and in spite of previous experience in May, once again encouraged the disruption of law and order. The members of the Carabineros were the main target of the violence unleashed by the demonstrators, which led to a large number of people being seriously injured, some of them by bullet wounds. The Government once again draws attention to the fact that these violent incidents occurred during the night of 14 June 1983, after a normal working day, in outlying suburbs. They did not involve any union leaders or trade unionists, had no trade union objective and were merely the type of criminal acts that are covered by ordinary penal law. Demanding the resignation of the Government, quite apart from encouraging parents not to send their children to school, not to buy anything in the shops, to black-out their houses and bang on pots and pans at 8 p.m., not to use public transport and not to go to work, can hardly be described as promoting and defending occupational interests or as the outcome of a labour dispute in the course of collective bargaining. Incidents such as these, which involved verbal and physical aggression against members of the Carabineros, setting up barricades and charging a "levy" on people driving home from work, attacking and looting commercial establishments, stoning public health vehicles and premises, blowing up electrical installations, etc., obviously have nothing to do with freedom of association.
2. 524. The Government is greatly concerned by the fact that this aspect of the case is clear proof of an attempt to divert the Committee from its proper and relevant function and to have it examine matters that have nothing to do with freedom of association and become involved in issues that are entirely outside its sphere of competence and constitute inadmissible interference in the internal affairs of a State.
3. 525. As regards the trial and/or arrest of the 12 union leaders and five other persons referred to in Annex I of the Committee's previous report on the case (230th Report), the Government states that, at the same time as it withdrew charges against Rodolfo Seguel for violating the 1958 State Security Act (No. 12927), the Government withdrew charges against the other copper union leaders and members listed in Annex I of the Committee's report and charged along with Rodolfo Seguel. The persons concerned are not awaiting trial and legal proceedings against them were dropped in September 1983.
4. 526. As regards the allegation that the premises of the National Trade Union Coordinating Body were broken into and that furniture and equipment was stolen, the Government draws attention to the Code of Penal Procedure (sections 42 and 156 to 183), which stipulates that no building or closed premises may be entered and searched except in the circumstances and manner laid down by the law, such as the entering and searching of any public or private enclosed area to apprehend a person or seize books, papers or other objects that may serve to uncover or prove an offence. Consequently, the Government vigorously rejects the accusation that the premises of the said organisation were "broken into". It cannot accept that a search conducted by the police in accordance with the law should be described as "breaking into". As to the allegation that "furniture and equipment were stolen", the Government denies this slanderous accusation. Sections 114 and 115 of the Code of Penal Procedure state that instruments, weapons or objects of any kind that are intended to be used in committing an offence shall be seized by the judge, who shall order that they be officially registered and kept under seal. The objects may be returned during or after completion of criminal proceedings if, in the view of the judge, it is not necessary to keep them. The objects seized on the premises of No. 67, calle Abdón Cifuentes, headquarters of the de facto entity which calls itself the National Trade Union Coordinating Body - namely, typewriters, mimeograph machines, 100,000 leaflets in support of the 12 July 1983 "Protest", 30,000 handbills with instructions concerning the action to be taken on 12 July 1983, leaflets, posters and placards with offensive slogans against the Government and documents, literature and various other forms of anti-Government propaganda - were placed before the Court on 11 July 1983. The owners of these goods must apply to the courts for their return. The Government points out that in Chile the Judiciary is independent of the Executive.
5. 527. As to the alleged torture of Maria Rozas, José Anselmo Navarrete and Sergio Troncoso, the Government states that the accusations are based on information derived from a document drawn up by persons totally lacking in objectivity, impartiality and independence in terms which are vile and insulting to a member State and which the Government totally rejects. The Government considers, that the complainant has not supplied sufficient precise information on the cases of torture which have allegedly led to the hospitalisation of the victims in a serious condition. The Government consequently expresses its grave concern at the sweeping and false accusations of a complainant who, after a four-day visit to the country as a tourist, claims to be able to judge and condemn a member State. The Government points out that article 19.] of the Political Constitution of 1980, which deals with the right to life and to physical and psychological integrity, prohibits the use of any, illegal pressure and provides for legal redress for any persons who is deprived of or hindered or threatened in the legal exercise of this right and constitutional guarantee. The Government is not aware that any of those concerned has appealed to the relevant Court of Appeals in exercise of the said right of legal redress to demand the restoration of the rule of law and protection thereunder.
6. 528. As to the alleged abduction, torture and death threats on 7 October 1983 against Raúl Montecinos, who is said to be in hospital, the Government states that it has managed to obtain the following information:
   • - At about 12.30 a.m. on Saturday 8 October 1983, as Raúl Montecinos Rosales was passing through the Pasaje Aníbal Pinto, opposite No. 38 (bus stop No. 17), Avenida Vicuña Mackenna, he was stopped by four unknown persons, one of whom punched him in the left eye, injuring him slightly.
   • - Members of the Carabineros from the La Florida police station, who conducted the initial investigations, spoke to a neighbour, Maíra Angélica Figueroa González, who, hearing Raúl Montecinos' calls for help, immediately summoned an ambulance from the Sotero del Río Hospital, to which he was subsequently taken.
   • - The official of the Carabineros who was on duty at the Medical Assistance Centre registered Raúl Montecinos' complaint and made an appointment for him at the local police court of La Florida at 10 a.m. on Tuesday 11 October 1983 to confirm his statement regarding the minor injuries he had sustained and provide further information. The La Florida police report bears the number 3,030.
   • - Emergency medical assistance report No. 85137 of the Sotero del Rio Hospital Emergency Unit gives, as probable diagnosis, a state of "drunkenness" and a "biparietal hematoma". It adds that no "alcohol test" was carried out and the provisional prognosis corresponds to "minor injuries". The report states that the patient arrived in ambulance No. 511 and was examined at 1.58 a.m. on 8 October 1983.
7. 529. In view of the foregoing the Government categorically rejects the accusation that Raúl Montecinos was arrested by order of the Government or by members of the police.
8. 530. The Government repeats its view that it is unacceptable that ordinary offences of this nature should be taken into consideration as infringements of freedom of association merely because the perpetrator or victim of the offence is a union leader.
   • The Government regrets, once again, that these false and slanderous accusations are clear proof of an attempt to divert the Committee from its proper and relevant function and to have it examine matters which have nothing to do with freedom of association, which are outside its sphere of competence and which constitute inadmissible interference in the internal affairs of a State.
9. 531. Furthermore, the Government objects to the conclusions and recommendations contained in paragraphs 652, 653, 654 and 659(d) of the Committee's 230th Report. The Government states that it is out of the question to recommend that it interfere in the running of undertakings by requiring that workers who have been dismissed be reinstated or that legal proceedings which undertakings are entitled by law to institute before the courts be abandoned. It cannot accept that a worker's dismissal be seen as a violation of freedom of association, especially where the courts of law are involved. The Government rejects the accusation that the dismissed trade union leaders and workers have suffered from anti-union discrimination for having encouraged protest actions. The Government emphasises that it respects the right of all Chileans to dissent and to protest, provided they do so in a peaceful and orderly manner. It points out, however, that the "protest actions" were not promoted by the "trade union movement" but by a few leaders with party-political ties. The protest actions, as already explained, led to violent incidents, the breakdown of law and order and attacks against the established government regime.
10. 532. According to the Government, the National Copper Corporation (CODELCO), which is responsible for the administration of the work centres of Chuquicamata, El Salvador, Andina and El Teniente, has informed it that the situation as at October 1983 is as follows.
    • - With respect to the disqualification of trade union leaders from holding office, CODELCO requested the relevant courts on 17 May 1983 to disqualify the union leaders of its Chuquicamata, El Salvador, Andina and El Teniente divisions, referred to in Annex II (Case No. 1212) of the Committee's 230th Report, from holding trade union office. In doing so, CODELCO-Chile invoked its right under section 29 of Legislative Decree No. 2756 of 1979, as it relates to section 15 of Legislative Decree No. 2200 of 1978. CODELCO's request that the courts settle the matter cannot be looked upon as an infringement of freedom of association, since its reason for taking such a step was that, although no labour dispute of any kind existed with its employees represented by the union leaders, they had called for an illegal work stoppage on non-occupational grounds. As to the list of union officials concerned by the disqualification, on 6 October 1983 CODELCO withdrew its request as regards Sergio Neira and José Pérez, respectively Chairman of the Andina Industrial Union and national leader of the Confederation of Copper Workers (CTC), of its Andina division.
    • - Regarding the subsequent dismissal of a number of union leaders from its Andina, El Salvador and El Teniente divisions, referred to in Annex II (Case No. 1212) of the Committee's 230th Report, CODELCO acted in accordance with section 22 of Legislative Decree No. 2200 of 1978 as it relates to section 15 of the same Decree. Section 22 states explicitly that, in the case of workers who are protected against dismissal as trade union officials, the protection provided for by law shall not apply in relation to the reasons specified in section 15 of the Decree; consequently, prior court authorisation to take appropriate steps need not be sought - without prejudice, of course, to the workers' right to appeal against their dismissal as illegal. if the court finds in favour of the workers, they are reinstated in their post and union office and recover the protection provided for by law. The persons concerned thereupon lodged an appeal to have their dismissal declared null and void. The matter is currently before the courts. CODELCO has stated that it will respect the final decision handed down by the courts. The appellants have formally requested the courts to maintain them in their trade union posts during the proceedings. A recent decision handed down by the Court of Appeals of Rancagua and confirmed by the Supreme Court of Justice states that, pending the court's decision regarding their protection against dismissal, union leaders may vote and stand for re-election to their posts (copy of the decision enclosed by the Government).
11. 533. The Government states that, just as in the case of the disqualification of trade union leaders from holding office, CODELCO was induced to take action for reasons which had nothing to do with labour problems but were once again inspired by non-occupational considerations. Since in all four Divisions collective agreements had been renewed immediately prior to the incidents leading up to the measures adopted, there were no labour problems pending.
12. 534. The Government draws attention to two inaccuracies in Annex II of the Committee's report: first, Roberto Carvajal Mieres is cited under (b) Llanta Union (1), El Salvador Area, as having been dismissed whereas his contract is still in force; second, Leonel Abarca Quinteros is cited under (b) Sewell and Mina Industrial Union, El Teniente Area, as having been dismissed whereas his contract is still in force and he is currently President of the said Union. Moreover, union leaders Sergio Neira and José Pérez, cited under (b) Andina Industrial Union, Andina Area, withdrew their petition that their dismissal be declared null and void on 6 October 1983.
13. 535. Finally, the Government adds that CODELCO has reinstated 95 per cent of the workers dismissed, following consideration of their, case by special committees set up in the Division.
14. 536. Furthermore, the Government points out that the so-called "peaceful protest" on 14 June 1983 was not organised by the country's principal trade union organisations but by political movements involving former parliamentarians and leaders of political parties. Consequently, it is impossible objectively to conclude that the incidents that occurred on the so-called "peaceful protest days" and their outcome occurred within a trade union context. Such an unsubstantiated conclusion goes against the case law of the Committee itself.
15. 537. The Government repeats once again that it has never engaged in any discriminatory acts against freedom of association and can therefore hardly be expected to take steps to put an end to something that has never taken place.

C. The Committee's conclusions

1. 538. The Committee observes that, at various points in its reply, the Government contests the Committee's competence to examine certain matters raised by the complainants which, in the Government's opinion, have no bearing on freedom of association and constitute inadmissible interference in the domestic affairs of a State. The Government refers specifically to the allegations regarding the death of certain persons and physical attacks that occurred on the 14 July 1983 National Protest Day and to the "abduction, torture and death threats" to which union leader Raúl Montecinos has allegedly been subjected. The Committee totally rejects the Government's claim that it is examining matters outside its sphere of competence which constitute interference in the domestic affairs of a State. The Committee has at all times emphasised that the purpose of the Committee's entire complaints procedure is to promote respect for trade union rights in law and in fact. The procedure moreover protects governments against unsubstantiated accusations, which is why they should recognise the importance of their sending detailed replies to the allegations against them [see for example 1st Report, para. 31, and 208th Report, Case No. 957 (Guatemala), para. 284]. It is only on the basis of the most objective consideration of the information supplied by the complainants and by the governments that the Committee decides whether or not trade union rights have been violated.
2. 539. The Committee wishes to point out that, should the allegations as presented by the complainants in the present instance [see 230th Report, paras. 622 and 629] prove accurate, they could constitute a violation of trade union rights. Consequently, under present procedure the Committee was and is empowered to examine such allegations, along with the observations of the Government, and, should it deem it necessary, to request further information. The Committee wishes to emphasise that, with respect to the aspects of the case referred to by the Government, it did not reach any final conclusions in its 230th Report but requested the Government for further information.
3. 540. The Committee also observes that, referring to its recommendation with respect to the reinstatement of trade union leaders and workers in their jobs and the abandonment by CODELCO of legal proceedings to disqualify union leaders from holding office, the Government states that it is out of the question to recommend that it interfere in the running of undertakings by requiring that workers who have been dismissed be reinstated or that legal proceedings which undertakings are entitled by law to institute before the courts be abandoned. On this point, the Committee wishes to recall that, traditionally, it has made no distinction between allegations against governments and allegations against employers but has considered in each particular instance whether or not the government has ensured the free exercise of trade union rights within the country concerned [see 16th Report, Case No. 107 (Burma), para. 52; 180th Report, Case No. 550 (Guatemala), para. 303; 139th Report, Case No. 721 (India), para. 509]. Consequently, wherever the Committee has concluded that measures of anti-union discrimination exist that are ascribable to the administration of one undertaking or another, it has requested the government concerned to put an end to such measures and, as appropriate, to take steps to restore the situation in which the persons concerned initially found themselves.
4. 541. With regard to the deaths and physical assaults which occurred on 14 June 1983 (second National Protest Day), the Committee notes that, according to the Government, the "so-called peaceful demonstration" of 14 June 1983 was not organised by the country's principal trade union organisations (as asserted by the complainants) but by political movements involving former parliamentarians and leaders of political parties. The Committee also notes that, in its previous replies [see 230th Report, para. 633], the Government stated that trade union leaders as such did not take part in the events which occurred on 14 June and which had no trade union objective and that the persons who died or were wounded were not union leaders and were not engaged in trade union activities. Under the circumstances, the Committee cannot but note the contradiction between the allegations and the Government's reply as to the nature, background and objectives of the National Protest Day of 14 June 1983.
5. 542. With regard to the trial and/or arrest of the 12 trade union leaders and the five trade unionists mentioned in Annex I (Case No. 1212) in its 230th Report, the Committee notes that, in addition to dropping charges against Rodolfo Seguel for violation of the 1958 State Security Act (No. 12927), the Government likewise withdrew charges against the other union leaders and members listed in Annex I.
6. 543. Concerning the allegation that the premises of the National Trade Union Coordinating Body were broken into and that furniture and equipment were stolen, the Committee notes the Government's statement and, specifically, that the objects seized included various forms of anti-government propaganda. The Committee requests the Government to indicate whether the search conducted by the police - which according to the Government, was in accordance with the law - was based on a warrant and to send information regarding the nature, background and objectives of the 12 July 1983 "demonstration" to which part of the seized propaganda is said to refer.
7. 544. As to the alleged abduction, torture and death threats on. 7 October 1983 against union leader Raúl Montecinos, who is said to be in hospital, the Committee notes that the Government rejects categorically the accusation that he was arrested by order of the Government or by members of the police. The Committee observes that, according to the Government, the facts of the case are that on 8 October 1983 Raúl Montecinos was stopped by four unknown persons, one of whom punched him in the left eye, causing minor injury. In view of the Government's explanations and the fact that a corresponding complaint was lodged with the judicial authority, the Committee considers that this allegation, which does not appear to have any trade union connotations, does not call for further examination.
8. 545. Concerning the alleged torture of Maria Rozas, José Anselmo Navarrete and Sergio Troncoso, the Committee notes that the Government is not aware that any of the persons concerned has appealed to the Court of Appeals in exercise of the right to legal redress of any person who is deprived of or hindered or threatened in the legitimate exercise of the constitutional right to life and physical and psychological integrity. The Committee also notes that the Government rejects totally the information contained in the document on which the allegations are based. Nevertheless, since the allegations relate to the physical integrity of trade union leaders, the Committee urges that an investigation be carried out so as to elucidate the facts in full and to identify the persons responsible.
   • The Committee requests the Government to keep it informed of its findings.
9. 546. The Committee notes the Government's statement regarding the Committee's recommendation with respect to the dismissal of union leaders and workers in the copper sector and the legal proceedings instituted by CODELCO for the disqualification of trade union leaders from holding office. The Committee notes that, according to the Government's reply, the requests presented by CODELCO that trade union leaders in the Chuquicamata, El Salvador, Andina and El Teniente Divisions be disqualified from holding trade union office and that union leaders in the last three Divisions referred to be dismissed were in accordance with provisions currently in force and were based on the fact that, although no labour dispute of any kind existed, the union leaders had called for an illegal work stoppage on non-occupational grounds. Since collective agreements had just been renewed in the four Divisions referred to, there were no labour problems pending.
10. 547. The Committee notes, moreover, that on 6 October 1983 CODELCO-Chile withdrew its request for union leaders Sergio Neira and José Pérez, of the Andina Division to be declared disqualified from holding office and that, on the same day, the latter withdrew their petition that their dismissal be declared null and void. The Committee observes, moreover, that, contrary to the complainants' allegations, union leaders Roberto Carvajal Mieres and Leonel Abarca Quinteros have not been dismissed. The Committee also notes that CODELCO-Chile has reinstated 95 per cent of the workers dismissed, following consideration of their case by special committees set up in the Andina Division.
11. 548, In the circumstances, while noting the Government's statement that the requests for disqualification and dismissal of union leaders were the outcome of an illegal work stoppage for non-occupational reasons, inasmuch as the relevant collective agreements had just been renewed, the Committee hopes that, given the large number of union leaders involved, the Government will engage in negotiations with CODELCO-Chile with a view to the reinstatement of the union leaders dismissed and the abandonment of legal proceedings for the disqualification of union leaders from holding office. The Committee requests the Government to keep it informed of any developments in this respect and of the findings of the special committees that CODELCO-Chile has agreed to set up to consider the reinstatement of the workers dismissed.

The Committee's recommendations

1. 549. Under the circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:
   • (a) The Committee notes that the Government has withdrawn its charge of violating the State Security Act (No. 12927) which it had preferred against the union leaders and trade unionists whose case the Committee has examined.
   • (b) The Committee requests the Government to indicate whether the search of the premises of the National Trade Union Coordinating Body conducted by the police (which, according to the Government, was in accordance with the law) was based on a warrant and to send information regarding the nature, background and objectives of the 12 July 1983 "demonstration" to which part of the seized propaganda is said to refer.
   • (c) The Committee urges that an investigation be carried out into the alleged torture of Maria Rozas, Sergio Troncoso (both trade union leaders) and José Anselmo Navarrete (trade unionist) so as to elucidate the facts in full and to identify the persons responsible. The Committee requests the Government to keep it informed of the outcome of the investigation.
   • (d) The Committee hopes that the Government will engage in negotiations with CODELCO-Chile with a view to the reinstatement of the union leaders of the copper sector who have been dismissed and the abandonment of legal proceedings for the disqualification of union leaders from holding office. The Committee requests the Government to keep it informed of any developments in this respect and of the findings of the special committees that CODELCO-Chile has agreed to set up to consider the reinstatement of the workers dismissed.