Rapport intérimaire - Rapport No. 116, 1970

331. The Committee examined these cases at its session in November 1969, when it submitted an interim report (paragraphs 163 to 236 of its 114th Report) which was approved by the Governing Body at its 177th Session (18-21 November 1969).

1. 331. The Committee examined these cases at its session in November 1969, when it submitted an interim report (paragraphs 163 to 236 of its 114th Report) which was approved by the Governing Body at its 177th Session (18-21 November 1969).
2. 332. In paragraph 236 of its 114th Report, the Committee submitted to the Governing Body a number of recommendations, some for the purpose of inviting the Argentine Government to send certain information in order that consideration of the corresponding allegations might be pursued. The Government sent further information in its communication dated 20 November 1969, and the World Confederation of Labour submitted further allegations in a communication dated 27 November 1969, relating to one of the aspects of the case, which were communicated to the Government. The recommendations formulated by the Committee were communicated to the Government, which replied in communications dated 23 December 1969.
3. 333. 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).

Allegations relating to the Conviction of Mr. Elpidio Torres and Other Trade Unionists by Military Tribunals, and the Imprisonment, of Mr. Raimundo Ongaro and Other Trade Unionists

1. 334. In a telegram dated 5 June 1969, the International Metalworkers' Federation (IMF) expressed its deep concern over the arrest and immediate sentencing by a special military court to four years and eight months' imprisonment in a military establishment of Mr. Elpidio Torres, secretary of the Córdoba Section of the Motor Mechanics and Allied Workers' Union. In this communication, the complaining organisation also referred, without giving any further details, to the arrest of the following leaders of the same union: Mr. González, Mr. Méndez, Mr. Rosales and Mr. Juárez. According to the complainants, a demonstration by strikers calling for better wages and working conditions was broken up and a number of demonstrators were injured, two of them fatally, which led to a number of violent incidents in which trade unionists did not take a leading part. According to a further communication from the IMF dated 18 July 1969, these incidents took place on 29 and 30 May 1969 in the city of Córdoba. On 30 May army troops violently broke into the headquarters of the trade union and arrested all the members of the Management Committee who were present, without having the appropriate judicial warrant. Mr. Torres was handed over to a military tribunal and after a summary trial convicted of the offence of rebellion and public incitement to rebellion, in violation of all guarantees of correct legal procedure.
2. 335. The World Confederation of Labour and the World Federation of Trade Unions, in their communications dated 4 and 18 August 1969, stated that military courts had also sentenced Mr. Agustin Tosco, Secretary-General of the Córdoba Power and Light Trade Union, Mr. Jorge Alberto Canelles, a leader of the building workers' trade union, and Mr. Felipe Alberti and Mr. Mario Sorezi, both of them union officials.
3. 336. The Government replied to these allegations in its communication dated 29 September 1969, stating that Mr. Torres had been sentenced to four years and eight months' imprisonment on 31 May 1969 after being tried by special military court No. 4, set up in Córdoba pursuant to Act No. 18232 and Decrees Nos. 2736/69 and 2851/69. Mr. Torres was sentenced on being found guilty of offences under sections 209 and 226 of the Criminal Code, having regard also to section 54 of the same Code. Under section 209, any person who publicly incites others to commit an offence or to engage in collective violence against particular groups of persons or institutions is punishable, in respect of the incitement of others, to a term of imprisonment ranging from six months to four years. Under section 226, any persons who attempt by armed force to change the Constitution, overthrow any of the public authorities of the national Government, extort any measure or concession from it or obstruct (even only temporarily) the free exercise of its Constitutional powers or its formation or renewal in accordance with the law are liable to a term of imprisonment of from two to ten years. Section 54 states that if an individual is liable to more than one penalty, only the heavier shall be imposed.
4. 337. In its communication dated 14 September 1969, the Government stated that Mr. Jorge A. Canelles was sentenced by a military court to ten years' imprisonment for the offences of public intimidation and advocacy thereof. During the events which took place in Córdoba on 29 and 30 May 1969, Mr. Agustin Tosco was sentenced to eight years and three months' imprisonment by the special military court for the same offences.
5. 338. When it considered this aspect of the case at its November 1969 meeting, the Committee noted that the verdicts were imposed by military courts after a summary trial and in exceptional circumstances. The Committee recalled that in all cases in which it had been alleged that trade unionists had been subjected to measures or decisions by bodies of an emergency character, it had always emphasised the importance it attached to the principle that trade unionists, like all other persons, are entitled to the safeguards of a regular judicial procedure. In order to ensure that these safeguards are provided, the Committee has specifically referred on a number of occasions to the need for trial by an impartial and independent judicial authority.
6. 339. In these circumstances, the Committee recommended the Governing Body:
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8. concerning the conviction of Mr. Elpidio Torres and other trade unionists by military courts, to suggest to the Argentine Government, in view of the fact that the verdicts were imposed after summary trials and the safeguards of a regular judicial procedure were not therefore provided in full, that it should consider the possibility of examining these cases again, with a view to ensuring that no person should be deprived of his liberty without benefiting from due process of law before an impartial independent judicial authority;
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10. 340. In a telegram dated 5 May 1969, the. World Confederation of Labour stated that Mr. Raimundo Ongaro had been arrested. On 7 July 1969 the WCL forwarded further information, in which it referred to the arrest of a large number of trade unionists and union leaders, among whom Mr. Ongaro was mentioned as having been rearrested. Similarly, Argentine Trade Union Action (ASA) stated in a communication dated 18 July 1969 that Mr. Ongaro had been arrested on 30 June 1969 in the province of Córdoba by members of the federal police. He was later taken to Buenos Aires and held incommunicado at the disposal of the Government. In two subsequent communications dated 15 July and 4 August 1969, the WCL once again referred to the detention of Mr. Ongaro, stating that no specific charge had been brought against him and that his arrest had been ordered by the Government under its special powers during the state of emergency.
11. 341. The Government replied to these allegations in a communication dated 16 September 1969, in which it declared that Mr. Ongaro was detained not as a trade unionist but in his capacity as an ordinary citizen on a charge of disturbing public order and safety.
12. 342. When it examined these allegations at its meeting in November 1969, the Committee pointed out that it had always refrained from expressing an opinion on the political aspect of a state of emergency, but since its earliest cases it had also maintained that in such circumstances, measures of detention, which might involve a serious interference with the exercise of trade union rights, must be justified by the existence of a serious emergency and would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period. The Committee had always emphasised the importance of due process of law in cases in which trade unionists were charged with offences of a political character or offences under the ordinary law; in this connection, it had, for example, taken the view that the requirement of due process would not appear to have been fulfilled if under the national law the effect of a state of siege was that a court to which application was made for habeas corpus could not examine the merits of the case. That safeguard, in the Committee's opinion, would be achieved if the arrested person were brought before an impartial and independent judicial authority.
13. 343. In the circumstances, the Committee recommended the Governing Body:
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15. concerning the allegations relating to the arrest of Mr. Raimundo Ongaro, to draw the Government's attention to the importance which it has always attached to the need for persons under arrest to be rapidly and properly tried before an impartial and independent judicial authority, and to request the Government urgently to supply information regarding the legal proceedings instituted or, if no such proceedings have been instituted, information regarding Mr. Ongaro's present situation;
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17. 344. In its communication dated 15 July 1969, the WCL specifically complained of the arrest of twenty-two trade union leaders. The WCL referred to Alicia Fondecilla, José R. Villaflor, Francisco Calipo, Federico Correa and Hugo Russo, " all officers of the Buenos Aires Printing Workers' Federation, who are imprisoned at Córdoba and Buenos Aires, in solitary confinement, subject to trial and awaiting sentence ". In the same communication the WCL adds that other leaders are held " at the disposal of the Executive ": Hugo Ferraro, Enrique Coronet, Alfredo Forraresa, Jorge Di Pasquale, José Pedraza, José Curiel, Carlos Cabrera, Pablo Gutman, Luis Miletto, Boris Groman, Luis Trenti, Julián Montoya, Juan Carlos Lorenzo, Hugo Fornies, Francisco Gentile, Alfredo Carbolleda and Ricardo Cano.
18. 345. With regard to these allegations, the Government stated in its communication dated 16 September 1969 that the events which had occurred in the country, with the direct and active participation of a number of trade union leaders, came under the heading of ordinary offences. Consequently, the Government was obliged to treat those responsible as the law required, since the fact that they were trade union leaders could hardly confer immunity on citizens, as this would be tantamount to claiming the existence of class privileges or special exemptions for which the National Constitution made no provision. An absurd situation would be reached in which persons guilty of certain alleged acts could not be tried or sentenced if they were citizens engaged in trade union activities.
19. 346. When it examined this case at its meeting in November 1969, the Committee pointed out that on many occasions, in connection with the detention of trade unionists, where governments had replied to allegations that trade union leaders or workers had been detained on account of trade union activities with statements that the persons in question had been detained for subversive activities, reasons of internal security or for crimes under the ordinary law, the Committee had always followed the rule that the government concerned should be requested to supply further information, which should be as precise as possible, concerning the arrests and the exact reasons therefor, adding that if in certain cases the Committee had concluded that the allegations relating to the arrest or detention of trade union militants did not call for further examination, this had been after it had received from the government concerned information showing sufficiently precisely and in sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political character.
20. 347. In these circumstances, the Committee recommended the Governing Body:
21. ... to request the Government to provide precise information regarding the twenty-two trade union leaders alleged to be under arrest ...
22. 348. Subsequent to the meeting of the Committee in November 1969, the Argentine Government in a communication dated 20 November 1969 provided information concerning twenty of the persons mentioned in paragraph 14, indicating the reasons for their detention (public agitation, disturbance of public order, subversive acts, etc.). Many of these persons had regained their liberty in July and August 1969; others were still held at the disposal of the Executive. The Government also referred to Mr. Ongaro, stating that Mr. Ongaro had gone to the province of Córdoba on the eve of a general strike planned for 1 July 1969, where he was manifestly and deliberately stirring up a climate of agitation. According to the Government, these acts amounted to the offences of " public incitement and rebellion, referred to in the National Criminal Code ".
23. 349. The World Confederation of Labour in a further communication dated 27 November 1969 denounced the imprisonment of trade unionists, in particular Mr. Miguel Angel Guzmán and Mr. Cucco, who were detained in prison in the southern part of the country.
24. 350. The Argentine Government has now sent, with a communication dated 23 December 1969, a series of documents relating to these various allegations. The Government states that it has ordered the release of all those who had been kept in custody at the disposal of the Executive and that it has also promulgated an Act of Amnesty for persons serving sentences imposed by military courts. The Government states that the measures adopted " make it quite certain that there are no trade union leaders deprived of their freedom anywhere in the country ". The reasons given for Act No. 18463, promulgated on 28 November 1969, the text of which has been transmitted by the Government, state that in pursuance of the government policy of restoring peace and concord among all Argentinians, the Government deems it appropriate to enact the necessary statutory provisions to set at liberty the persons held at its disposal by virtue of powers exercised in relation to the state of siege as well as those who have been tried by military courts or placed at the disposal of the ordinary courts in connection with the events taking place in May 1969.
25. 351. The Committee notes that Act No. 18463 states:
26. Section 1. An amnesty is hereby granted with respect to all acts and situations involving an offence which have been the subject of proceedings before the military tribunals in pursuance of Act No. 18232, or in respect of which proceedings are now pending before the ordinary courts owing to the fact that the cases have been referred to them and the persons charged placed at their disposal by order of the military authorities, in pursuance of the decrees issued in accordance with the provisions of the said Act.
27. Section 2. This Act shall also cover the acts and situations involving an offence which have been the subject of proceedings in pursuance of the edicts issued with a view to the declaration of emergency areas.
28. 352. Among the documents sent by the Government there is also a series of decrees ordering the release of several persons, among them Mr. Raimundo Ongaro.
29. 353. Although the Government communication does not refer expressly to every one of the trade unionists mentioned in the allegations under consideration who have been detained, it would appear from the government statement and the documents submitted that all these persons have now been set at liberty.
30. 354. In these circumstances, the Committee recommends the Governing Body to take note of the fact that the detainees have been released under the Act of Amnesty and other measures taken in this connection, and to express its satisfaction that, according to the Government's statement, these measures make it quite certain that there are no trade union leaders deprived of their freedom anywhere in the country.
31. Appointment of a Government Representative to the General Confederation of Labour
32. 355. The WCL and the WFTU have alleged that the Government has ordered the headquarters of the General Confederation of Labour (CGT) to be occupied, and the WFTU states that on 15 July 1969 a government representative was appointed to reorganise this Confederation. In this way the CGT's premises and property passed under government control. Replying to these allegations, the Government denied that the CGT's premises were occupied, stating that the representative appointed in accordance with the law had the task of regularising the Confederation's institutional situation through direct discussion with its leaders.
33. 356. When it examined these allegations at its meeting in November 1969, the Committee noted that the information supplied by the complainants and the Government respectively was at variance regarding the occupation of the CGT's headquarters and the Government's control over the Confederation and its property. The Committee considered that the powers conferred on a person to regularise the situation of a trade union organisation ought not to be such as to lead to limitation of the right of trade union organisations to draw up their own rules and regulations, to elect their representatives, to organise their administration and to formulate their programmes. Consequently, and in order to be able to evaluate the situation with full knowledge of the facts, the Committee recommended the Governing Body, while bringing the opinion expressed in the preceding paragraph to the Government's attention, to request it to provide the text of the law under which the representative was appointed to the CGT, together with the fullest possible information on the performance of his functions.
34. 357. With its communication dated 23 December 1969 the Government supplied various documents relating to this aspect of the case, among them the text of Act No. 18281 of 14 July 1969 relating to the appointment of a delegate of the National Executive Power with a view to the normalisation of the CGT. The Committee observes that according to section 2 of the Act the delegate was responsible for the carrying out of the process of placing the affairs of the CGT upon a regular footing. According to section 3, the delegate had vested in him the powers and faculties accorded by the rules and by-laws of the CGT to its management and administrative bodies.
35. 358. The Government also supplied the text of Act No. 18472 of 4 December 1969 recognising the " National Reorganising and Normalising Committee of the General Confederation of Labour of the Argentine Republic ". The process which led to the setting up and recognition of this Committee is described in the considerations accompanying the Act, according to which the delegate of the Executive Power had been responsible for normalising the affairs of the CGT and " providing the means of enabling order to be restored in the trade union hierarchy within the shortest possible time without any official interference other than what was strictly necessary in order to establish a minimum basis for providing the workers, through the action of their own organisations, with the legitimate representation to which they are entitled in the affairs of the country ". The considerations go on to say that the delegate has carried out his mandate in accordance with those guidelines and that a National Committee has been constituted, made up of representatives of industrial associations of workers which have assumed the task of representing wide sectors of the trade union movement and which together sum up the views of the trade union movement as a whole.
36. 359. The considerations go on to say that this National Committee has set forth, in a public declaration agreed upon by the industrial associations of workers represented upon it, the purposes for which it was formed and the rules it intends to observe in its operation. The text of this declaration has also been communicated by the Government; among other points, it states that the Committee will convene a Congress for the normalisation of the CGT within 120 days of the date upon which it takes office. The text of the Act by which the Government recognises the National Committee states that it is the body provisionally competent to carry on the affairs of the CGT for the purpose of completing the process of setting its affairs on a regular footing. The Committee must act in conformity with the rules of conduct laid down in its Declaration and is empowered, during its term of office, to represent the CGT and made responsible for administering its property.
37. 360. The Act also provides that the delegate of the Executive Power appointed by Act No. 18281 is to hand over the property and documents belonging to the CGT to the National Committee.
38. 361. On the basis of the information submitted by the Government, the Committee observes, in the first place, that the delegate of the Executive Power was vested with the powers and faculties of the management and administrative bodies of the CGT. Following upon his administration, a Reorganising Committee was formed, made up entirely of representatives of trade union organisations, which was recognised by the Government as provisionally competent to carry on the affairs of the CGT. At the same time the Government brought to an end the functions of the delegate appointed by Act No. 18281. The Reorganising Committee proposes to convene a congress for the normalisation of the CGT within 120 days of the date on which it takes office.
39. 362. In these circumstances, the Committee recommends the Governing Body to take note of the formation of the National Reorganising and Normalising Committee of the CGT, made up exclusively of trade union representatives, and to note that the functions of the Government delegate have been brought to an end; and to express the hope that trade union elections will be held as soon as possible in conformity with the principle contained in Article 3 of Convention No. 87 which recognises the right of workers' organisations to elect their representatives freely without interference from the public authorities.
40. Remaining Allegations
41. 363. The Committee has examined certain allegations according to which Mr. Ongaro, on his way to take part in a public meeting in Tucumán province in January 1969, was kidnapped by naval and police personnel and taken some 1,500 kilometres away from the place where he was arrested and then released. In reply to these allegations, the Government denied the alleged kidnapping, stating that Mr. Ongaro had been invited by the police authorities not to continue his journey to Tucumán as it was thought that extremist elements would make use of his presence to cause disturbances and that Mr. Ongaro himself asked to be taken back.
42. 364. In view of the discrepancy between the two versions, the Committee recommended the Governing Body to request the Government to supply further information in order to be able to make a recommendation on the substance of the matter (paragraph 236(d) of the 114th Report). The Committee observes that this information has not yet been supplied by the Government.
43. 365. The Committee also had before it an allegation that the trade unionist Emilio Jáuregui had been murdered by the police in a public street on 26 June 1969. As the Government had not presented its observations on that allegation, the Committee recommended the Governing Body to ask for information from the Government on what action had been taken in order to clarify the matter and any results of such investigations (paragraph 236(f) (ii), 114th Report). This information has not yet been supplied by the Government.
44. 366. In a communication dated 27 November 1969 the WCL submitted a n allegation that Mr. Carlos Bongiovani, shop steward for the " Consumer Routes " (Rutas de Consumidores) section, had been suspended from his employment on account of his trade union activities. The Government has not sent its observations on this matter.
45. 367. In these circumstances, the Committee recommends the Governing Body once more to ask the Government to send, as soon as possible, the information which was previously requested regarding the allegations concerning the kidnapping of Mr. Ongaro and the death of Mr. Emilio Jáuregui, and to be good enough also to formulate its observations on the allegation regarding action discriminating against trade union activities taken with respect to Mr. Carlos Bongiovani.