Rapport intérimaire - Rapport No. 108, 1969

1. 192. The Committee previously considered this case at its sessions in May and November 1967 and February and May 1968, when it submitted to the Governing Body the interim reports contained in paragraphs 231 to 265 of its 98th Report, paragraphs 319 to 406 of its 101st Report, paragraphs 187 to 207 of its 103rd Report, and paragraphs 202 to 223 of its 105th Report, all of which were approved by the Governing Body.
2. 193. In paragraph 223 of its 105th Report, the Committee made certain recommendations, some of which were to request the Government of Argentina to supply further information. These recommendations were communicated to the Government in a letter dated 11 June 1968: the Government replied in a letter forwarded by the Permanent Mission of the Argentine Republic to the international organisations in Geneva on 16 September 1968.
3. 194. 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. A. The complainants' allegations

• Allegations relating to the Detention of the Trade Union Official, Eustaquio Tolosa
  195. 195 When it considered the case at its last meeting, the Committee analysed the sentence passed on Mr. Tolosa by a court of first instance on 21 March 1968. In the Preamble to the sentence it is stated that Mr. Tolosa is charged with the offence defined and made punishable by section 1 of Act No. 14034. In accordance with this Act, a copy of which was supplied by the Government, " any Argentinian who by any means whatsoever advocates the application of political or economic sanctions against the state of Argentina shall be punished by a term of from 5 to 25 years' imprisonment and total and permanent disqualification ". The Act in question was passed in 1951 with the aim of ensuring that no Argentine national could continue to act as apparently a certain individual was acting at that time, viz., advocating the termination of commercial links between a certain foreign country and Argentina. In analysing the facts which gave rise to the trial, the verdict refers to a meeting held in London from 14 to 16 November 1966 by the International Transport Workers' Federation (I.T.F.) at which it was decided to recommend an international boycott to be applied wherever appropriate until such time as the Argentine Government reconsiders its present anti-labour campaign and puts an end to the military intervention in the affairs of the United Argentine Dockers' Union (S.U.P.A.): (a) against ships and aircraft flying the Argentine flag; (b) against goods which would normally be carried to and from Argentina; (c) refusing to unload goods arriving from Argentina. According to the evidence submitted to the court, Mr. Tolosa was present at these meetings and voted for this decision. To quote the verdict: " There is no room for doubt that the decision taken in London implies the application of sanctions of an economic nature against the State of Argentina. Refusal to unload goods of Argentine origin or carried in ships or aircraft flying the Argentine flag is unquestionably an economic measure." This measure, according to the verdict, was not aimed against private individuals, i.e. the owners of the ships, planes, cargoes or undertakings concerned, but against the Government of Argentina for the purpose of coercing it into ending its intervention in the affairs of the S.U.P.A. Mr. Tolosa, by attending the discussion at which this decision was taken and by voting for it, committed the offence made punishable by Act No. 14034. In view of these considerations, the judge concluded by sentencing Mr. Tolosa to five years' imprisonment, together with various disqualifications.
  196. 196 On that occasion the Committee noted that, as appeared from the sentence, the trade union leader in question was tried by an ordinary court with the safeguards of a proper trial and sentenced for violation of an Act which was already in existence and which imposed penalties on any Argentine citizen supporting the application of economic measures against the State. The Committee likewise observed that in this case an international boycott was decided upon to coerce the Government because of certain measures which it had taken in its capacity as a public authority.
  197. 197 As it was not clear from the information available to the Committee whether the verdict passed by the court of first instance was final or whether an appeal had been lodged with a higher court, the Committee had recommended the Governing Body to take note of the verdict and to request the Government to be good enough to keep it informed of any new developments in the case of Mr. Tolosa, especially as regards any appeal against the sentence, and if there were an appeal to forward a copy of the decision of the court concerned.
  198. 198 In its letter dated 16 September 1968 the Government sent a copy of the judgment of the court of second instance on the appeal which had been lodged by Mr. Tolosa's official counsel. In the judgment it is stated that the case was the first of its kind to be brought under section 1 of Act No. 14030 and that the verdict against which the appeal was made correctly sets forth the events which led to the proceedings against Mr. Tolosa. It is recalled in the judgment that the person in question had claimed that, in view of his attitude at the meeting of the I.T.F, he had not committed the offence laid down in the Act, since he did not call for sanctions against Argentina; his intention was to " save his country ", and the boycott decided upon was provided for in the statutes of the Federation. Mr. Tolosa's counsel had claimed that it was not conclusively proved that his behaviour had been as alleged, and that Mr. Tolosa's specific attitude at the meeting of the Federation lacked a sufficient causal connection with the actual boycott in Argentine and foreign ports.
  199. 199 In view of the evidence before it, the court considered that a formal offence had been committed, and that in order to constitute this offence an actual boycott was not necessary, the simple act of advocating the application of sanctions being sufficient. According to the judgment, Mr. Tolosa had advocated the application of economic sanctions against the Argentine State, and it was not necessary to prove, in order for the offence to be committed, that he had taken any specific initiative in this respect, since it was sufficient that he had contributed to, or co-operated in, the adoption of the measure " by any means whatsoever ", as provided for by the Act. As regards the argument that the measure was provided for in the statutes of the I.T.F, the judgment indicates that this was not proved and that even if it had been, provisions of that nature could not have the effect of invalidating national legislation, since at no time had the Argentine Republic renounced its sovereign power to punish criminal acts which might harm or endanger the legal property which it considers must be protected, even when such acts are committed abroad but could produce effects within the national territory.
  200. 200 In view of all these considerations, the court decided to confirm the sentence of first instance passed on Mr. Tolosa for the offence of advocating the application of sanctions against the State of Argentina, as defined and made punishable by section 1 of Act No. 14034.
  201. 201 In view of this confirmation of the sentence on Mr. Tolosa, the Committee must recall again that, when considering this question at its last meeting, it had already pointed out the circumstances giving rise to the act in question, that is to say, the amendment of the dock labour legislation by the Government without consulting the S.U.P.A, despite the request by the Union to be allowed to take part in the preparation of the new legislation. Having been denied this possibility, the S.U.P.A called a strike, which led to the taking over of the Union by the Government, and thereafter the I.T.F adopted the boycott resolution referred to. In this connection the Committee considered that consultation with the trade union organisation concerned during the preparation of the new dock labour standards might perhaps have prevented the situation out of which the present case arose. The Committee considered that in this way the Government would have been acting in accordance with the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which states that measures appropriate to national conditions should be taken to promote effective consultation and co-operation between public authorities and employers' and workers' organisations. Such consultation and co-operation should aim, in particular, at joint consideration of matters of mutual concern with a view to arriving to the fullest possible extent at agreed solutions. Consultation should also aim at ensuring that the competent public authorities seek the views, advice and assistance of employers' and workers' organisations in respect of such matters as the preparation and implementation of laws and regulations affecting their interests.
  202. 202 Similarly, the Committee wishes to recall that, when it analysed the reasons given for the verdict at first instance on Mr. Tolosa, in so far as they dealt with the international support decided upon by the I.T.F, it noted that the judge had placed particular emphasis on the fact that in this case the measure in question was not directed against certain employers but against the Argentine State and that this measure had been advocated by an Argentine citizen, thereby infringing penal legislation in force in the country. The Committee laid particular stress on this situation. It also emphasised the importance of the standard laid down in Article 5 of Convention No. 87 to the effect that any organisation, federation or Confederation shall have the right to affiliate with international organisations of workers or employers.
  203. 203 In these circumstances the Committee recommends the Governing Body:
       • (a) to take note of the judgment at second instance against Mr. Tolosa, in proceedings in which the offence provided for in Act No. 14034 of 1951 was under consideration for the first time in Argentina;
       • (b) to reiterate the principles set forth in paragraphs 201 and 202 above;
       • (c) to request the Government to be good enough to keep it informed of any new developments with regard to Mr. Tolosa, and in particular of any pardon which might be decided upon.
  204. Allegations relating to Measures to Take Over Various Trade Union Organisations and to Suspend Their Trade Union Status and Other Allegations Outstanding
  204. 204 At its meeting in May 1968 the Committee examined certain allegations relating to the taking over of various trade union organisations and the suspension of their trade union status in the light of a communication dated 27 March 1968 from the Government. On that occasion the Committee recommended the Governing Body to take note of the fact that trade union status had been restored to two of these organisations, and to urge the Government once more to repeal as soon as possible the measures still in force to suspend and take over certain trade unions and to request the Government to keep it informed about the measures it has taken or proposes to take to this end.
  205. 205 The Committee also recalls that at its meeting in November 1967 it had examined a series of allegations relating to interference by the authorities in the C.G.T., measures directed against union leaders and members, and compulsory arbitration and collective bargaining. In order to come to a conclusion on these aspects of the case, the Committee had requested the Government to supply more precise information or observations, as indicated in paragraphs 383, 386 and 398 of the Committee's 101st Report.
  206. 206 The Committee notes that, despite the time which has elapsed, it has not received the information and observations referred to in the two preceding paragraphs, and accordingly recommends the Governing Body to regret this fact and to urge the Government to be good enough to send this information as soon as possible, in order to permit the further examination of these outstanding allegations.