Rapport définitif - Rapport No. 236, Novembre 1984

1. 48. The complaint of the Committee for the establishment of a state security police trade union association is contained in three communications dated 30 December 1983, 21 February and 20 June 1984, respectively. The Government of Portugal supplied its observations in communications dated 17 May and 4 October 1984.
2. 49. Portugal 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. The complainant's allegations

1. 50. The complainant Committee states that it was established on 6 February 1982 for the purpose of founding a state security police trade union association in accordance with the legislation in force (Legislative Decree No. 215-B/75 of 30 April 1975, to regulate trade unions). The Committee adds that it is composed of detached army officers, police officers and administrative officers. It alleges that the Governor of the Lisbon District and the security police administration prevented the holding of the association's constituent assembly, which had been lawfully convened, as well as voting operations between 8 and 26 November 1983, by confiscating ballot boxes, ransacking temporary offices, seizing documents and taking members of the polling booths to police stations for identity checks. In addition, certain members of the founding committee were subjected to intimidation and repression, including fines, transfers and compulsory retirement, for having organised banquets for police officers or collection of funds for the association. Disciplinary penalties were imposed upon some officers for having taken part in the vote. Furthermore, the Ministry of Labour refused to register and publish the constitution and rules of the State Security Police Trade Union Association which had been established in Madeira, where voting had been able to take place normally.
2. 51. The complainant Committee alleges that the constituent assembly of November 1983 was lawful as it had been convened more than six months after the entry into force of Act No. 29/82 of 11 December 1982 respecting national defence and the armed forces, which in section 69(2) contained restrictive provisions that were, however, of a temporary nature (for a period of six months) regarding the establishment of an association of members of the armed forces. The Committee points out that it lodged appeals challenging the constitutionality of Legislative Decree No. 440 of 4 November 1982 to approve the disciplinary regulations of the state security police and Act No. 41/83 of 20 December 1983 which amended section 69(2) of the Act respecting national defence and the armed forces. The complainant is of the view that the legislator has given retroactive effect to the latter text by extending the restrictive provisions regarding the establishment of a trade union applicable to the state security police until the publication of new legislation to come into force on 15 June 1984, in order to penalise those who had participated in the vote on the establishment of the trade union association, since section 69(2) of the Act respecting national defence and the armed forces ceased to apply to the state security police on 16 June 1983.

B. The Government's reply

1. 52. For its part, the Government explains that state security police officers are included in the militarised personnel and security forces personnel referred to in articles 270 and 272 of the Portuguese Constitution, to whom restrictions on the exercise of the rights of expression, assembly, demonstration and association may be applicable, strictly within the limits of the requirements of their duties. In support of its assertion regarding the legal status of this category of employees, the Government communicates various legislative decrees specifically dealing with the state security police, in particular the texts of 1978 and 1980 on the introduction of an identity card for "militarised personnel" in the state security police, texts of 1976, 1977, 1978 and 1980 on adjustments in salaries and additional remuneration applicable to military personnel and militarised personnel in the security police, and texts of 1977 and 1979 on the establishment, within the state security police, of an intervention force and a special operations group for which recruitment and training are of an eminently military nature. The Government adds that Legislative Decree No. 440/82, to enact state security police disciplinary regulations, makes provision in its preamble for the hybrid form of this body, which acts as a civil authority and has a militarised structure, and that Act No. 29/82 of 11 December 1982 respecting national defence and the armed forces expressly reaffirms that state security police officers are and remain subject to the special regulations applicable to military personnel. Moreover, the Supreme Court of Justice refers to the police as a "militarised force" (judgments of 23 June 1982 and 22 February 1983). On this last point the Government explains in its communication of 4 October 1984 that the Supreme Court decision of 29 July 1983 which indicates that "state security police officers are not members of the military and that the state security police is a civil body" related to a dispute over jurisdiction between the civil judicial authorities and the military judicial authorities. The Supreme Court held in that case that a criminal trial against a state security police officer for action taken in the exercise of his functions fell within the jurisdiction of the civil courts and not the military courts. The scope of the Supreme Court decision was therefore limited and did not contradict its earlier jurisprudence.
2. 53. The Government maintains that trade union rights are among the rights which may be subject to restrictions. It explains that in order to clarify the situation of the state security police, the legislator adopted Legislative Decree No. 440/83 of 4 November 1982, to enact state security police disciplinary regulations. In addition, pending specific legislation on the police, the Government has made provision, on a transitional basis, for applying to the police the regulations laid down in Act No. 29/82 of 11 December 1982 respecting national defence and the armed forces, which in section 69(2) provides in substance that the regulations applicable to military personnel regarding restrictions on the rights of expression, assembly, demonstration and association also apply on a transitional basis to the state security police until the publication of new legislation, which the Government must submit to the National Assembly within six months.
3. 54. The Government goes on to explain that the specific legislation referred to in section 69 of the Act respecting national defence and the armed forces has not yet been adopted on account of the fall of the Government and the dissolution of the Assembly, the new Government only having come to power on 6 June 1983, following a general election. The validity of the transitional regulations was in fact extended by Act No. 41/83 of 21 December 1983, which reaffirmed that the regulations applicable to the state security police were those applicable to military personnel and to permanent and contractual militarised personnel in active service, pending the publication of specific legislation for which a time-limit is established. In its communication of 4 October 1984, the Government states that it has introduced in Parliament a Bill concerning internal security and civil defence which has been generally discussed and approved. However, under national legislation, proposed laws and Bills must be submitted for two parliamentary debates; a general one on its timeliness - which has taken place - and a specific debate with a vote, section by section, which is yet to take place and which will require a majority of two thirds of the members of Parliament present. According to the Government, it cannot indicate what the Bill will contain at the end of the discussion since two proposed laws differing from the Government's Bill on substantive issues will be concurrently presented to the Assembly.
4. 55. The Government justifies the restrictions introduced by the law regarding the exercise by the police of the right to organise by invoking Article 9 of Convention No. 87, which lays down that the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police shall be determined by national laws or regulations, and it recalls that both the Committee of Experts on the Application of Conventions and Recommendations and; the Committee on Freedom of Association have always confined themselves to a merely literal interpretation of this provision.
5. 56. With regard to the refusal to register the by-laws of the, state security police trade union association, the Government acknowledges that a request was submitted on 2 December 1983 but retorts that the Ministry of Labour and Social Security had no legal basis for complying with the request, in view of section 69(2) of Act No. 29/82, confirmed by Act No. 41/83, prohibiting on a transitional basis the exercise by the state security police of the rights of assembly, affiliation and association. The Government is in fact of the view that the appeal referred to by the complainants concerning the unconstitutionality of Act No. 41/83 is inadmissible until the, constitutional court has given a decision on the matter.
6. 57. As regards the disciplinary action taken against the officers who attempted to establish the association, the Government recalls that the law prohibits military personnel and permanent and contractual militarised personnel in service in the state security police from making public statements, convening meetings and joining associations of a trade union character. In these circumstances, the commander-general of the body drew the attention of those concerned to these prohibitions, and penalties were imposed upon the persons who engaged in such activities at disciplinary proceedings where the rights of defence were respected. Those concerned lodged appeals with the Minister of the Interior, who upheld the penalties. They appealed against the ministerial decision at the supreme administrative tribunal, which has not yet given a decision.

C. The Committee's conclusions

1. 58. The Committee notes the allegations made by the committee as well as the Government's observations on them. It observes, however, that the complaint is presented by a committee whose purpose was to establish a state security police trade union association and whose members were state security police officers. In this connection, the Committee is compelled to point out that paragraph 1 of Article 9 of Convention No. 87 lays down that "the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations".
2. 59. The Committee observes that under the temporary legislation in force in Portugal members of the state security police do not enjoy the right of association and that the legislative process to regulate this right is continuing. The Committee trusts that the process will lead to the adoption of provisions defining precisely the scope of the trade union rights of the category of workers in question. Meanwhile, the Committee considers that in view of the current legislation it should not express an opinion concerning the allegations contained in this complaint.
3. 60. The Committee observes moreover that appeals concerning the question of unconstitutionality are being considered by the courts and that Portuguese legislation makes provision for appeals in regard to disciplinary sanctions.