Informe definitivo - Informe núm. 25, 1957

A. A. The complainants' allegations

1. 249. The complaint of the Latin American Confederation of Workers (W.F.T.U) is contained in two communications dated 8 March and 6 April 1956, which are analysed separately.
   • Communication of 8 March 1956
2. 250. According to this communication an outbreak of repression directed against all trade union organisations has occurred in Argentina, in violation of the principles of the Universal Declaration of Human Rights. The state of siege is alleged to be the means used by the provisional Government to break into premises belonging to trade unions, imprison leaders and prohibit trade union meetings. It is claimed that members of the armed forces, who can in no way represent the interests of the workers, have been placed at the head of trade union organisations. Over 100 trade union leaders and active unionists are said to have been relegated to Patagonia and confined in a concentration camp. They include Rubens Iscaro, General Secretary of the Movement for Trade Union Democratisation and Independence and a leader of the Building Workers' Union, whose home is alleged to have been attacked by the police at daybreak on 30 December 1955.
   • Communication of 6 April 1956
3. 251. It is alleged that on 18 January 1956 two newspaper sellers were arrested for selling the paper Nuestra Palabra. It is alleged that at Mar del Plata two building workers were dragged off as " disturbers of the peace " and transferred to the National Penitentiary. It is said that Messrs. Luis Martinez, Ulises Zangoititas and Rodolfo Weidman, of the Insurance Workers' Union, were arrested in Buenos Aires. A worker of the " Atlanta " firm who had supported a strike by the personnel of the factory is alleged to have been arrested on 18 January and sentenced to 30 days' imprisonment as an " agitator ". In December 1955 the police are said to have " attempted to deprive of their liberty " the construction workers Andrés Ibarrolla, Amado Ibarrolla and Domingo Moner. They are said to have been ordered to report to the police station at Quilmes. Forty offenders sentenced to 30 days' imprisonment are said to be detained in the prison of Villa Devoto. It is claimed that in the National Penitentiary good conduct certificates are demanded of members of their households who wish to visit prisoners. There is said to be a warrant for the arrest of Victor Vázquez ; his house is said to have been broken into and books confiscated. Vázquez is alleged to have been sentenced to 30 days' imprisonment for breach of the new police regulations : owing to the opposition of the public prosecutor the writ of habeas corpus applied for on his behalf was not granted. Francisco Mazo, E. F. Vai and Simón Gamarnik are said to be under permanent arrest at the pleasure of the Government so that the application made to a court in La Plata for a writ of habeas corpus has not been granted. It is said that the rights of the defence are restricted and that in most cases the judges themselves reject applications for writs of habeas corpus. The publication of Unidad Sindical, Vocero, Lucha Obrera, El Federal, Derechos del Hombre and other papers is said to be prohibited. The complaining organisation also submits an " incomplete " list of the imprisoned trade unionists and of political prisoners " in the following penal establishments : the prison of Rio Gallegos (Santa Cruz), the Women's' Reformatory, the San Miguel Asylum, the prison of Viedma (Rio Negro), the National Penitentiary, the prison of Olmos (La Plata), the jail of the Department of La Plata (Province of Buenos Aires), the prison of Villa Devoto (Federal Capital), the prison of Esquel (Chubut), the police station at Caseros (Province of Buenos Aires) and " southern prisons ". Of the names mentioned it is said that E. F. Vai was tortured in the prison of Viedma and Leonardo Gómez in the police station at Caseros. Pedro Castagno and Saúl Veloso are said to be detained in the prison of Villa Devoto (Federal Capital) and to be threatened with deportation.
   • ANALYSIS OF THE REPLY
4. 252. The Argentine Government submitted its observations in communications dated 4 May and 7 November 1956 and 19 February 1957, which are analysed separately.
   • Communication of 4 May 1956
5. 253. In this communication the Argentine Government replies to the allegations submitted by the Confederation of Workers of Latin America on 8 March 1956. The policy followed in the labour field is outlined as follows in the declaration of principles of the revolutionary Government : " To establish freedom of association so as to ensure the genuine democratic operation, outside the field of party politics, of occupational organisations and trade unions, which the Government will make a special point of supporting ; to take government action to guarantee that real social justice shall prevail in an atmosphere of freedom ; the gains and rights of the workers to be fully recognised and further increased ; one of the Government's basic intentions is to achieve a real advance in the living conditions of the lower income brackets ". Although the provisional Government has been compelled to order arrests in accordance with its objectives and with a view to maintaining its stability and public order, nobody has been arrested merely owing to the fact he is a worker or a trade union leader. Where persons have been arrested or prosecuted this action has been taken owing to ordinary offences or misdemeanours having absolutely no relation to the fact that these persons are workers. Thus Rubens Iscaro was arrested at his home by the police by order of the competent authority and in accordance with due process of law Iscaro and other political leaders have been accommodated (and not " relegated ") in a number of penal establishments (and not in " concentration camps "). Whilst a state of siege does in a way limit the rights of the individual it does not abolish them, since it is always possible to put up a defence either through administrative channels or by resort to the courts. These arrests were ordered exclusively with an eye to political activities connected with the former totalitarian régime ; the Government appointed an administrator to run the affairs of the General Confederation of Labour and its affiliates in order to restore order in the management of the unions and to put an end to the venality and corruption of the leaders imposed on the movement by the dictatorship that has been overthrown. This intervention in the management of the unions was, moreover, intended to guarantee that within a period which was wisely kept short (within 150 days of 1 May 1956) really free elections would be held within the unions.
   • Communication of 7 November 1956
6. 254. In this communication the Argentine Government transmits a memorandum of the Ministry of the Interior referring chiefly to the allegations put forward by the Latin American Confederation of Workers on 6 April 1956. The Government begins by stating that, although all the necessary steps were taken to collect all the facts, the inadequate identification of the persons whose imprisonment is denounced by the Latin American Confederation of Workers held up the inquiry. In particular there have been cases of homonym, as with regard to Luis Martinez-one of the most common names-which called for the consultation of over 100 entries. In addition, it should be borne in mind that since Argentina is a federal State, each province, as well as the federal capital territory, has its own system of identification. Individual police files and the records of penal establishments are organised on the basis of identity numbers. In this country, however, there is no general register from which it can be determined whether a person is or is not being prosecuted in some particular province. Moreover, in each province the identity index cards give only the final judgment in the case and do not mention the mere fact of a prosecution. The Government states that in the light of these explanations the persons mentioned in the complaint of the Latin American Confederation of Workers dated 6 April 1956 can be classified in two categories : (1) persons in the hands of the Government ; and (2) persons detained by other authorities.
7. 255. As regards the first category, " persons in the hands of the Government ", the provision that entitles the Government to proceed in this manner is Act No. 14433 of 16 September 1955, proclaiming a state of siege. According to article 23 of the Argentine Constitution of 1853, " in the event of an interior disturbance or an external attack that imperils the functioning of this Constitution and of the authorities set up thereby, a state of siege shall be proclaimed in the province or territory where public order is disturbed and Constitutional guarantees shall be suspended therein, provided that whilst these guarantees are suspended the President of the Republic may not convict on his own or impose sentences. In such a case his power over persons shall be limited to that of arresting them or transferring them from one part of the country to another, unless they prefer to leave Argentine territory." In a list of names appended to its reply the Government gives the names of the persons in the hands of the Government, stating the date of arrest, the number of the Decree ordering the arrest and the date of release. On the date of the Government's communication only 11 persons were in this position. The Government gives their names, the dates of their arrests and the number of the Decree in each case. The fact that these persons are in the hands of the Government does not mean that the Constitutional guarantee of due process of law has been abrogated with regard to them. According to the jurisprudence of the Argentine Supreme Court, whose judgments the Government quotes, " the detention of those convicted does not constitute a punishment but a preventive security measure which may be stopped by taking advantage of the option to leave the country " (Judgments, Vol. 167, 1933, p. 267). According to another decision (Judgments, Vol. 200, 1944, p. 253), " the intention behind the Constitution is to reconcile the need to maintain public order, which is the proper atmosphere for freedom, with the protection granted by the Constitution to the rights of the individual. So long as the person arrested or transferred has not signified his intention [of exercising his right to leave the country] the restriction of his liberty is Constitutionally valid ; if he signifies his intention and is allowed to go, no action lies in law ; if he is denied [the right to leave] or if it is made subject to restrictions that are contrary to law, the courts become competent to act in the defence of the right that has been ignored. This ensures that the purposes of article 23 [of the Constitution] are achieved ; each power operates within its own field and none of the guarantees of article 18 [of the Constitution : rights of the individual] are endangered."
8. 256. The Government explains that the existence of a state of siege is due to the fact that the country has been going through a period of revolution after the overthrow in September 1955 of a totalitarian dictatorship. With a view to the prompt restoration of the republican democratic régime provided for in the Constitution of 1853, the present revolutionary Government has been compelled to maintain a state of siege as provided for in the Constitution itself, and this makes it necessary at times to impose a minimum of restrictions on individual rights, while respecting the Constitutional guarantee of due legal process. The Government has issued writs for an election to be held in 1957. It should be stated that the existing state of siege, which is a legal position provided for in the Constitution, represents the abolition of the " internal state of war " imposed on the country by the former dictatorship in violation of Constitutional rules. In addition, one of the first steps taken by the revolutionary Government was to guarantee the absolute independence of the judiciary. The allegation that some of those arrested have been arbitrarily deprived of the possibility of habeas corpus proceedings-besides being a gratuitous accusation-cannot be remedied by the Executive but through applications by those concerned to the competent appeals courts.
9. 257. The Government encloses an alphabetical list of the names of the persons who are mentioned by the complainant and whom it has not been possible to identify for the reasons previously stated. In any case none of these persons is now under arrest. At the most they would be offenders sentenced for minor offences or misdemeanours. Sentences of imprisonment for such criminal offences do not exceed 30 days. The regulations governing misdemeanours lie within the exclusive jurisdiction of each province. Generally speaking the proceedings for dealing with misdemeanours are summary : there are two instances and a defendant can submit evidence and appeal to a higher court. The offender may even by special appeal (on ground of unconstitutional action) go so far as the country's Supreme Court. The provincial laws guarantee due legal process for trials relating to minor offences and misdemeanours. The Government states that if the organisation which made the complaint were to supply more information (identification certificates, date and place of arrest, province, etc.), thus enabling the identification of the persons in question, it would perhaps be possible to carry out more thorough inquiries. At all events all the persons concerned had broken laws relating to offences or had committed misdemeanours, and had either served their sentences at the time of the Government's reply or were never arrested.
10. 258. In conclusion, the Government refers to other charges that are so vague that it cannot reply in detail. It has not been possible to find any trace of the alleged cases of torture. The Government draws attention to the fact that the Latin American Confederation of Workers has not stated to what court the relatives of the tortured men submitted their complaints. The law courts are always available to relatives to deal with all speed with complaints relating to illegal arrest and torture, which constitute offences under the Argentine laws. With respect to the allegations regarding the freedom of the press, the Government states that 847 dailies and other periodicals are published in the country. Only six of them belong to the Government, and even the editors of these six papers have freedom of opinion. It can be imagined that a tremendous percentage of the publications defend ideas in opposition to those of the Government. The prohibition of distribution-and not of freedom of expression--has in some cases been necessary for security reasons since a certain section of the press followed the directions of the deposed dictatorship and had adopted an attitude that was directly subversive. Such restrictions on individual freedom under a state of siege have been recognised as being legitimate by decisions of the national Supreme Court. Apart from these restrictions, newspapers and reviews of the most varied tendencies enjoy full freedom of expression ; and numerous political and trade union public meetings have been held. Authorisation to hold public meetings has not been refused to any party, including the Communist Party of Argentina. Since September 1955 more than 2,000 political speeches of various tendencies have been broadcast.
    • Communication of 19 February 1957
11. 259. In this communication the Argentine Government states that, of the 11 persons listed in their letter of 7 November 1956 as having been arrested and placed at the disposition of the executive authorities, four have been released (one of them choosing to leave the country) and that the Government is now considering the cases of the other persons arrested. On 14 February 1957 the Minister of the Interior, Dr. Carlos Alconoda Aramburu, declared : " The revolutionary Government, respecting human rights and the law, has arrested no one by reason of his political opinions. It is only in proven cases of subversion endangering social peace or of sabotage against the national patrimony that the Government has found itself obliged to exercise the powers conferred upon it by article 23 of the Constitution." The Government also transmits the text of a judgment of the Supreme Court, dated 28 December 1956, dismissing the appeal of Mr. Rubens Iscaro and others against a refusal of habeas corpus by the lower court. With respect to the newspapers Vocero, Derechos del Hombre, El Federal (organ of the former Government Party in the province of Córdoba), and Lucha Obrera (organ of the National Revolutionary Socialist Party allied with the former Government Party), their publication has been suspended, states the Government, by reason of the fact that they engaged in subversive propaganda in favour of the régime abolished by the revolution.
12. 260. In a statement made on 19 February 1957 the Controller of the General Confederation of Labour declared that, first degree elections having taken place in the trade unions throughout the country-these organisations having been handed back to their members-steps are now being taken to hold elections in the federations, which will be followed by an end of the control of the federations. He said that the Electrical and Motive Power Workers' Federation was the first to be handed back to its legitimate administrators, elected by the workers in a truly democratic election. The statement ended with the declaration that the extraordinary general meeting of the electrical and motive power workers had approved everything that had been done during the period of control and that the other federations would, in turn, soon be handed back to the workers. The Government adds that 3,217 of the 4,263 trade unions have been handed back to their own administrations, following new elections, and that the same step will be taken with respect to the remainder. In the case of federations, the Government states that 25 have already been convened for the purpose of electing their administrations and that the remaining ones will be convened before the end of March. After that the same measures will be taken in the case of the General Confederation of Labour.

B. B. The Committee's conclusions

1. 261. The allegations which the Committee is called upon to examine refer to various governmental measures towards the end of 1955 and in the early months of 1956, i.e. during a period of grave political disturbance in Argentina, which was then under martial law. The Government to which the complainant organisation attributes such action is a revolutionary Government which took power in September 1955. In examining the various allegations submitted it is therefore necessary to have regard to the political situation through which the country was passing and to the political aspect of the governmental actions complained of. In many previous cases', in which it had to examine allegations against countries which were in a state of political crisis or had just passed through grave disturbances (civil war, revolution, etc.), the Committee considered it necessary, when examining the various measures taken by the governments, including some against trade union organisations, to have regard to such exceptional circumstances when examining the merits of the allegations. It is common knowledge that Argentina has passed through a revolutionary period and that the normal operation of its institutions has not yet been fully re-established. The various allegations made by the Latin American Confederation of Workers should, therefore, be considered in the light of the above facts.
   • Allegations relating to the Detention of Trade Unionists and Workers
2. 262. Most of the allegations submitted by the complaining organisation refer to the arrest of trade unionists and workers. It appears from the Government's reply that, on 7 November 1956, only 11 of the hundreds of persons mentioned by the complaining organisation were still in the hands of the Government. According to the Government's later reply dated 19 February 1957 only seven of these 11 persons then remained in custody, three having been released and one having chosen to exercise his right to leave the country. The Government is considering the cases of those still detained. In the view of the Government, since the arrest of these persons was ordered by an agent of the authority specified in the Constitution, the guarantee of due legal process has been respected. The Executive has confined itself to applying a preventive security measure and not a punishment, and those arrested can halt this security measure immediately by observing the Constitutional procedure, which gives them the option of leaving Argentine territory, an option exercised by one of those concerned. The Minister of the Interior declared on 14 February 1957 that the persons detained were not arrested by reason of their political opinions but were arrested only in proven cases of subversion or sabotage seriously endangering social peace. Further, the Government states that it has been unable to find any trace of the alleged tortures. In any case the appropriate criminal proceedings have not been instituted before the courts in which relatives of the persons concerned may institute proceedings with respect to matters of this kind.
3. 263. In the many cases in which the Committee has had to examine allegations regarding enforcement of measures of a strictly political character, such as martial law, it has always required the information submitted by governments to be sufficiently precise and circumstantial enough to enable it to conclude that the arrests were in no way occasioned by trade union activities. In the present case the Argentine Government has made a full inquiry into the position and supplied the Committee with detailed information, including particulars of the dates of release of 110 persons, and a list of 42 persons who have not been sufficiently clearly identified by the complainant to make possible full inquiries concerning them and in respect of whom the Government has no record of their having been detained.
4. 264. The question of the justification for introducing emergency measures, such as martial law or the like, is one which lies outside the competence of the Committee except in so far as it may have effect on the exercise of trade union rights.
5. 265. The Government states that the arrests of the seven persons who are still in prison were ordered with scrupulous respect for the Constitutional safeguard of due process of law : it was not strictly a case of imposing penalties, but rather of provisional security action to which the persons concerned can put an end at any time by making use of their rights under article 23 of the Constitution. The Supreme Constitutional Court of Argentina has declared this kind of restriction on individual liberties to be legitimate during a state of emergency. Furthermore, the arrested persons have administrative and judicial procedures for their defence ; and although, as the complainant organisation itself indicates, the courts in certain cases did not allow the writs of habeas corpus (see paragraph 261 above), this itself implies recognition that each of the persons concerned is in a position to defend himself under normal judicial procedure.
6. 266. The Government has confirmed that in every case the safeguard of due process of law was respected and that the supreme judicial authority of the country, which is independent of the Executive, confirmed the legality of the Government's action. What the Committee on Freedom of Association is concerned with is not, however, whether the action taken is legal under Argentine law, a matter on which the findings of the Supreme Constitutional Court of Argentina are clearly final, but whether the legal powers vested in the Argentine Government by the national law have been exercised in a manner inconsistent with freedom of association. The Committee has always emphasised the importance of due process in cases in which trade unionists are charged with offences of a political character or with offences under the ordinary law and has taken the view that granting a trade unionist his freedom on condition of his leaving the country cannot be regarded as compatible with the free exercise of trade union rights. The requirement of due process would not appear to be fulfilled if under the national law the effect of a state of siege is that a court to which application is made for habeas corpus cannot make and does not make an examination of the merits of the case. The question in such a case is not whether the judiciary is independent but whether the law which it is called upon to apply is consistent with the principle of freedom of association and affords adequate guarantees of an independent and impartial examination of the merits of cases in which a trade unionist has been charged with a political offence. In all these circumstances the Committee, while recognising the exceptional character of the situation in Argentina and noting that only seven of the persons named by the complainant now remain under arrest, considers it appropriate to draw attention to the importance which it has always attached to the observance of due process in such cases, and to affording any such persons a fair trial on the merits of the charges on which they are detained.
   • Allegations relating to Repression of the Trade Union Movement
7. 267. The complaining organisation alleges in general terms that there has been in Argentina a movement of repression against all trade union organisations. Some trade union meetings are said to have been prohibited and members of the armed forces are alleged to have been appointed to run the various trade union organisations, although these persons lack any representative character. The Government denies that any such repression occurred, since one of the objectives stated in the revolutionary Government's declaration of principles is precisely the re-establishment of freedom of association. In order to put an end to the administrative corruption prevalent in various trade union organisations, due to the venality of the leaders imposed by the dictatorship which had been overthrown, the Government was obliged to appoint persons to administer the General Confederation of Labour and the unions affiliated to it. The function of these persons was to guarantee free and honest elections in the said organisations within a reasonable period (150 days from 1 May 1956). The Government states, in its communication dated 19 February 1957, that elections have been held in the 4,263 trade unions and that 3,217 of these have already been handed over to their own administrations, and that all the trade union federations will have been convened before the end of March to elect administrations which will take over control. Then, declares the Government, the same measures will be taken in the case of the General Confederation of Labour.
8. 268. As regards the alleged repression of trade union activities and prohibition of trade union meetings, it should be observed that these allegations are of general character and do not mention any specific case of prohibition of meetings or other repressive action apart from those examined in the preceding paragraphs (arrests, etc.). It should also be pointed out that the statutory system of workers' organisation which the present Government introduced by Decree No. 9270 of 23 May 1956 (repealing the previous trade union legislation which had been the subject of observations by the present Committee), expressly guarantees the right of assembly without previous permission (section 16 of the Decree).
9. 269. As regards the appointment of persons to administer the General Confederation of Labour, the Government admits that this occurred and states that it was a measure rendered necessary by the corrupt administration of the unions whose officers had been appointed by the previous Government. The object of the said action was to make it possible for free elections to be held within a reasonable period. Intervention of this kind would appear incompatible with freedom of association in a normal period. It should be remembered, however, as pointed out in connection with the previous allegations, that this step was of a provisional character and taken by a revolutionary Government against trade union organisations which, in its view, were controlled by the Government recently overthrown. In Case No. 12 (Argentina) the Committee examined the situation arising out of this control of the General Confederation of Labour by the previous Government, and the Governing Body recommended the Argentine Government to reconsider the then existing law and practice. It would appear that the measures taken by the present Government were designed to implement the earlier recommendation of the Governing Body and that at the present time (February 1957) the object of the action taken by the Government is being achieved, primary trade union elections having been held and the administration of the unions in question having been handed over to the officers so elected, while preparations for similar elections in the case of the higher trade union organisations are now being made, after which they also will be handed over to their new administrations.
10. 270. In these circumstances the Committee considers that the intervention in the administration of the General Confederation of Labour and its affiliates, which the Government admits, was an exceptional measure of an entirely provisional character ordered during a period of transition towards a normal situation, which is being gradually re-established by means of free elections. The Committee therefore recommends the Governing Body to note that the return to a normal trade union situation is already well advanced and to reaffirm the importance which it attaches to re-establishing fully a situation in which workers without distinction may establish and freely join organisations of their own choosing. It also considers that the allegations regarding repression of trade union meetings are too vague to permit of an examination on their merits.
    • Allegations relating to the Trade Union Press
11. 271. The complainant organisation alleges that publication of Unidad Sindical, Vocero, Lucha Obrera, El Federal, Derechos del Hombre, and other periodicals has been prohibited, and that persons selling Nuestra Palabra have been arrested. The Government, for its part, states that the restrictions imposed on the dailies mentioned by the complainant were based on the state of emergency which justifies, as the Supreme Court of Justice has admitted in several judgments, limitation for security reasons of the freedom of a certain section of the press " directly subversive and hostile to the revolution ... following the directives of supporters of the fugitive ex-dictator ". The Government adds that the publication of the newspapers Vocero, Derechos del Hombre, El Federal (organ of the former Government Party) and Lucha Obrera (organ of the National Revolutionary Socialist Party allied with the former Government Party) was suspended because they engaged in subversive propaganda in favour of the régime abolished by the revolution. Apart from this, states the Government, publications enjoy complete liberty of opinion, liberty of expression has not been hindered, and public, political and trade union functions have taken place in all freedom, while the radio is freely used for political propaganda. The Government indicates that the restrictions imposed during the state of emergency are temporary and that the return of the country to a normal Constitutional situation by means of elections is due to take place in 1957. The need to defend the objectives of a revolution sometimes involves, according to the Government, the imposition of a minimum of restrictions on individual rights, in accordance with express provisions of the Constitution.
12. 272. In earlier cases relating to freedom of the press, the Committee considered that it was not called upon to examine the questions relating to freedom of the press in general but that it was competent only to examine the questions relating specifically to trade union publications, because as it stated in Case No. 101 (United Kingdom-British Guiana) " the right to express opinions through newspapers or publications is certainly an essential element in trade union rights ".
13. 273. In the present case, of the publications whose circulation was admittedly restricted by the Government, only the Unidad Sindical would seem from its name, in the absence of other information, to be a labour or occupational organ. Nevertheless, it should be noted that the complaining organisation has offered no proof that the circulation of trade union publications was hindered by the reason of their being trade union publications. It appears from the Government's explanations that the restrictions imposed (during a revolutionary period and a state of emergency) were not based on the trade union nature of the publications but only on their " directly subversive " character, and that the restrictions were limitations of the general freedom of the press imposed for "reasons of a political character and not purposes of trade union repression. In these circumstances the Committee, while stressing the importance of freedom of the trade union press as an essential element in trade union rights, considers that the restrictions imposed by the Argentine revolutionary Government on certain publications during the period of emergency appear mainly to have been based on reasons of a general political character. While bearing in mind the exceptional character of these measures, the Committee recommends the Governing Body to draw the attention of the Government to the importance of ensuring respect for the freedom of trade union publications.