Rapport définitif - Rapport No. 108, 1969

1. 31. The Committee previously examined this case at its meeting in May 1968, when it reached certain final conclusions on the case as a whole, which are contained in its 105th Report, which was approved by the Governing Body at its 172nd Session (May-June 1968).
2. 32. On 26 June 1968 the National Labour Congress of Uruguay submitted a communication in which it presented a series of observations on the basis of which it requested that the case be reconsidered. This communication having been transmitted to the Government of Uruguay, the latter replied by a letter dated 16 August 1968.
3. 33. Uruguay 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).
4. 34. On other occasions, the Committee has considered that it could not reopen a case which it had already examined in substance and on which it had submitted final recommendations to the Governing Body, except where new evidence was adduced and brought to its notice.

A. A. The complainants' allegations

1. 35. The Committee recalls that, according to the allegations contained in the original complaints, the General Council of the Permanent Congress for Trade Union Unity of the Workers of Latin America (C.P.U.S.T.A.L.) was due to be held in Montevideo from 29 August to 1 September 1967 on the invitation of the National Labour Congress of Uruguay (C.N.T.), to discuss problems of trade union unity in Latin America and to start a study of social security in the region. According to the same allegations, the C.N.T had obtained permission from the Government to hold this meeting and visas had been granted to the national delegations which were due to attend. Nevertheless, on 22 August 1967, the Government issued a decree forbidding the meeting. Some participants who had arrived in the country to attend the meeting were detained and expelled from Uruguay. With regard to the specific purpose of the meeting, it had also been alleged that its main aim was to analyse the possibility of forming a continent-wide trade union organisation, thus furthering the work begun in Brasilia in 1964, when the Congress for Trade Union Unity was formed. The agenda comprised a review of the work accomplished by the Secretariat and of the state of organisation of the trade union movement in Latin America. The complainants maintained that the Government had violated Convention No. 87, which refers to the right to establish federations, as well as the legislation of Uruguay, which guarantees freedom of association and the right of assembly.
2. 36. In its reply, the Government had stated that in banning the above-mentioned meeting it acted in accordance with the relevant Constitutional and statutory standards. It referred to the fact that the Government was empowered to grant or refuse the necessary permission for the holding of any meeting aimed at making demonstrations or criticisms in favour of or against the policy of a foreign State or its international position or its actions as an entity under international Law (section 1, Act. No. 9565 of 2 July 1936). The Government maintained that it had respected the Constitutional provision which guarantees the right of assembly but which, at the same time, authorises the Government, in accordance with the law, to restrict this right in order to guarantee safety and public order. In deciding to impose the ban, the Government took into account the background and circumstances of the case; viz. the political aim of the meeting, the affiliations of the delegates, the links between this meeting and the decisions concerning internal subversion and the violent overthrow of governments, embodied in the resolutions of the Havana Tri-Continental Conference, and the need for strict compliance with the State's international obligations. The Government had also explained in its reply that permission to hold the meeting had never been applied for or obtained and that no entry visas into the country had been granted, since in any case such visas were not necessary for Latin American citizens. None of the foreign delegates had been detained but as the meeting could not be held they were informed that they should leave the country. The Government stated that no Uruguayan trade union organisation had requested the repeal of the measure and maintained that Convention No. 87 did not apply to this case, which involved the prohibition of a meeting of foreign representatives on national territory.
3. 37. In examining the information submitted by the complainants and by the Government, the Committee noted the contradiction between the information supplied by the two parties. It also recalled the importance it had always attached to the fact that the authorities should refrain from any interference which would restrict the right to hold trade union meetings or impede the lawful exercise thereof, but considered that in the present case the actual point at issue appeared to be the sovereign right of a country to grant or refuse entry to foreigners wishing to come into it. In this connection it pointed out that it was not called upon to deal with the general question of the status of aliens, which was not covered by international Conventions, and it referred to another case in which it had decided not to examine certain allegations that the authorities of a country had refused visas to the workers' delegates of a foreign trade union organisation, thus preventing them from taking part in a trade union congress held on territory which was then under the jurisdiction of these authorities. The Committee consequently recommended the Governing Body to decide that this case called for no further examination.
4. 38. In its latest communication, the National Labour Congress of Uruguay maintains that the real point at issue was not that stated by the Committee but recognition by the Government of the right of assembly since, according to the Government, it was indispensable to obtain official authorisation in order to exercise this right. According to the complainants this criterion is a contradiction of article 38 of the Constitution, which guarantees the right of peaceful assembly without arms, which shall not be denied by any authority in the Republic except by virtue of a law and only when public health, safety and order are threatened ". Act No. 2499 of 28 June 1897 regulates this Constitutional provision and does not stipulate that prior authorisation must be obtained in order to exercise the right of assembly. On the other hand, the complainants maintain that Act. No. 9565 of 2 July 1936, to which the Government referred, is unconstitutional according to national legal theory and case law.
5. 39. Repeating what it had already stated with regard to the aim of the meeting which was to be held, the complainants reject the Government's argument that the measure was adopted to meet the need of guaranteeing public order, being confined to banning a subversive meeting. They maintain in this respect that neither the intentions of the organisers nor the items on the agenda of the meeting gave the Government any justification for considering, as stated in the preamble to the decree banning the meeting, that " it is undesirable in the present circumstances to allow the said meeting to take place in the light of the proclamation of insurrection issued by the recent Havana Congress and the repercussions which such a meeting might have on the relations maintained by the Republic with other countries of the continent ".
6. 40. The complainants refer in this respect to the opinion expressed by the I.L.O. working party set up in Uruguay (with tripartite membership and advisory informative functions). On 30 December 1967 this working party sent a memorandum to the Ministry of Labour and Social Security, in response to the Government's request for a report. It was stated in this memorandum that " only in the event of a breach of the law, that is to say when legal grounds can be invoked, is there any justification for the restriction of a right as widely recognised as the right of assembly of trade union organisations and Confederations. The members of the working party consider that the text of the resolution of 22 August, as published in the official gazette, invokes no legal grounds which might justify the curtailment of freedom of association, as constituted by the banning of a meeting of the type planned ".
7. 41. In its reply, the Government states that it wishes to raise no objection to further discussion of this case or to its being studied in all its aspects. It repeats its respect for trade union rights, in accordance with the national and international provisions which govern them with a view to ensuring their effectiveness within the public order upheld by the law. The Government points out that although the complainants have put forward no new facts in their communication, it wishes to make a number of observations on certain statements contained therein.
8. 42. With regard to the resolution of 22 August 1967, the Government states that Act No. 9565, under which the resolution was issued, is a provision currently in force in the country which the Government is obliged to apply. This Act has never been declared unconstitutional by the Supreme Court of Justice nor, in the 32 years during which it has been in force, has its Constitutionality ever been questioned before this body. The Act was applied in 1952 on the same grounds in accordance with the Constitution, which establishes the possibility of restricting the right of assembly by means of a law whenever public safety and order may be endangered. In this respect, the Uruguayan Constitution corresponds to the Universal Declaration of Human Rights and to the provisions of the International Covenant on Civil and Political Rights, in providing that: " No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security, public safety or public order, the protection of public health or morals or the protection of the rights and freedoms of others."
9. 43. The Government points out that in its reply to the original complaints it has already given the reasons for which it considered that the proposed meeting might affect safety and public order, thus coming within the provisions of Act No. 9565. It adds to these reasons the fact that the resolutions adopted by the C.P.U.S.T.A.L at its meeting in Montevideo in 1964 were of a purely political nature and were directed against the Organisation of American States (O.A.S.), of which Uruguay is a member, and against the governments of various American States with which the country maintains diplomatic relations. In these circumstances, it was clear that the new meeting would take the same attitude as that adopted in 1964, the situation being further aggravated by the fact that the meeting would have to express its solidarity with the subversive policy recommended by the Havana Tri-Continental Conference of 1966 and by the Conference of the Latin American Solidarity Organisation (1967), which Uruguay had denounced as violating international law and the principle of non-intervention. The Government repeats that it was on the grounds of all these considerations that it decided to ban the meeting in question with a view to ensuring public order.

B. B. The Committee's conclusions

1. 44. The Committee notes that the complainants request a re-examination of the case with regard to the right of assembly, which is alleged to have been infringed by the Government. In this respect, the complainants submit further evidence in stating that the Act on which the decision to ban the proposed meeting was based was considered unconstitutional under Uruguayan legal theory and case law, and refer to the opinion expressed by the I.L.O. working party, according to which this decision was unjustified. For its part, the Government maintains that the allegations submitted by the complainants do not, in fact, contain new evidence, but it states that although the Committee has already given a ruling on this case, it has no objection to all its aspects and possible repercussions being considered. With regard to the alleged unconstitutionality of the Act referred to, the Government points out that no ruling to this effect has ever been given by the Supreme Court.
2. 45. The Committee considers that basically both the complainants and the Government have repeated the facts originally stated, although certain additional information has been provided in connection with national legislation on the right of assembly. On the basis of these facts, the Committee considered that it should formulate its conclusions on the measures adopted by the Government against the foreign delegates who were to take part in the meeting; these conclusions were not contested by the complainants.
3. 46. In their latest communication the complainants have submitted a series of considerations in order for the Committee to re-examine the question from the point of view of the exercise of the right of assembly of trade union organisations and, in view of the position adopted by the Government with regard to this request, the Committee considers it appropriate to formulate its observations on this aspect of the case.
4. 47. In this respect, the Committee has stated on many occasions) that the right of trade unions to meet freely in their own premises, without need for prior authorisation and without control by the public authorities, constitutes a fundamental element of freedom of association. The Committee has also considered that the organisations concerned must observe the general provisions applicable in a country with regard to public meetings. In these cases, it rests with the government, which is responsible for the maintenance of public order and the exercise of police authority, to decide whether meetings, including trade union meetings, may in certain special circumstances endanger public order and security and to take adequate preventive measures
5. 48. In the present case, the Government adopted the measure without considering whether the meeting would be of a private or public nature. The Government had based its decision on the political nature which the meeting might have had, as could be supposed from the previous meetings of the C.P.U.S.T.A.L, at which statements had been made against the O.A.S and against other American countries with which Uruguay maintains diplomatic relations. They also referred to the connection which the meeting might have with certain resolutions concerning internal subversion adopted, for example, by the Havana Tri-Continental Conference. This suggestion has been rejected by the complainants, who repeat that the objectives and agenda of the meeting related strictly to trade union matters. The government measure is legally based on Act No. 9565, which empowers the Government to grant or refuse permission to hold meetings aimed at making demonstrations against the policy of a foreign State, its international position or its actions as an entity in international law. In view of the above considerations, the Government maintains that the purpose of the measure was to ensure public order.
6. 49. The Committee notes that the complainants and the Government disagree with regard to the Constitutionality of the above-mentioned Act, and that whilst the Government provides certain specific information on its application in the past, the complainants have supplied no evidence to support their statement that this Act is considered contrary to the Constitution of Uruguay by national legal theory and case law.
7. 50. On the basis of the above considerations, the Committee confirms that this case involves a problem relating to the right of assembly of trade union organisations in a situation where, according to the Government, the exercise of this right could have repercussions of a political nature which would affect the international position of the Government of Uruguay as well as safety or public order.
8. 51. In a previous case, the Committee had to examine allegations concerning a national trade union congress which was banned by the authorities on the grounds of certain specific facts which gave reason to believe that the meeting was in danger of losing its trade union objectives and of being used for political ends. On that occasion, the Committee decided to call the attention of the Government to the desirability of giving the trade union movement the greatest possible measure of freedom of action in the occupational sphere which was compatible with the maintenance of public order. At the same time, the Committee pointed out that it would be desirable for the parties concerned to have regard, in the interests of the normal development of the trade union movement, to the principles enunciated in the resolution adopted by the International Labour Conference at its 35th (1952) Session. This resolution declares in particular that the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers and that when trade unions in accordance with the national law and practice of their respective countries and at the decision of their members decide to establish relations with a political party or to undertake Constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social or economic functions, irrespective of political changes in the country.
9. 52. With regard particularly to the political activities of trade unions, the Committee also recalls the conclusions of the Committee of Experts on the Application of Conventions and Recommendations, to the effect that the general a priori prohibition of the political activities of trade unions may raise difficulties by reason of the fact that the interpretation given in practice to the relevant provisions may change at any moment and restrict considerably the possibility of action of the organisations. For this reason the authorities should only repress abuses which might be committed by organisations which had lost sight of the fact that their fundamental objective should be the economic and social advancement of the workers.
10. 53. The Committee takes account of the fact that the present case relates not to the congress of a national organisation but to a trade union meeting of an international nature. This type of meeting may give rise to special problems, not only because of the nationality of the participants but also in connection with the international policy and commitments of the country in which the meeting is to take place. In this connection the government of a particular country may consider it necessary to adopt restrictive measures on the grounds of certain special circumstances prevailing at a particular time.
11. 54. The Committee considers that such measures might be justified in exceptional cases, having regard to specific situations, and provided they conform to the laws of the country. However, it should never be possible to apply measures of a general nature against particular trade union organisations unless in each case sufficient grounds exist to justify the government decision-such as genuine dangers which may arise for the international relations of a State or for safety and public order. Otherwise the right of assembly, the exercise of which by international organisations should also be recognised, would be seriously restricted.
12. 55. In the case under examination there is disagreement between the complainants and the Government with regard to the aims of the meeting which motivated the decision adopted by the Government. There is also disagreement as to the legality of this decision, mainly in the light of the Constitutional provisions. On the one hand questions of fact are involved on which the Committee lacks sufficient evidence to judge the full implications of the case, and, on the other hand, questions of national law, on which the Committee is not competent to express an opinion. As far as possible, such questions should be raised before the appropriate judicial authorities of the country, which in the present case the complainants have apparently not done.