Rapport intérimaire - Rapport No. 238, Mars 1985

1. 330. These complaints and the supplementary information presented by the complainants are contained in the following communications: International federation of Free Trade Unions (ICFTU): 3, 10 and 16 October 1984; 9, 13, 16 and 30 November 1984; National Confederation of Peasants and Indigenous Persons El Surco (jointly with four other Chilean trade union organisations): 12 November and 6 December 1984; World Federation of Trade Unions (WFTU): 13 November 1984; the Permanent Congress of Trade Union Unity of Latin American Workers (CPUSTAL): 14 November 1984; Trade Unions International of Miners and Workers in Energy: 15 November 1984; National Trade Union Co-ordinating Body (CNS) (jointly with ten other Chilean trade union organisations): 15 and 29 November 1984. The Government supplied its observations in communications dated 26 November 1984 and 4 January 1985.
2. 331. Chile has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 332. In its initial complaint the ICFTU explains that the National Group of Workers, together with other organisations, had called on the Chilean people to assemble on 4 September 1984 at the Plaza de Armas in Santiago. Thousands of persons gathered on the square and when they sang the national anthem the carabineers of the special forces armed with bludgeons burst into the square to disperse the demonstrators. When the latter closed ranks, the police used dogs and tear-gas. During the course of this police action, the President of the National Group of Workers, Rodolfo Seguel, was beaten in the lower part of the abdomen and the testicles.
2. 333. The ICFTU adds that the police forces also acted with brutality in the working class suburbs and in the various cities of the country. According to the ICFTU these operations resulted in ten deaths, with 248 persons injured and 1,754 arrests. The complainant organisation includes in the annex to its communication the names of the persons killed and gives details on the number and circumstances of the arrests in the various provinces of the country. The ICFTU also alleges that at the request of the Ministry of the Interior, the following persons were indicted for having organised peaceful protest days of action: the trade union leaders Manuel Bustos, President of the National Trade Union Co-ordinating Body (CNS), José Ruiz Di Giorgio, President of the petroleum workers and Raúl Montecinos, national leader of the copperworkers.
3. 334. Subsequently, in its communication of 10 October 1984, the ICFTU points out that Manuel Bustos and José Ruiz Di Giorgio were arrested and are being held at the Santiago prison. The order for their arrest was allegedly made immediately after the National Group of Workers had called for a national strike to be held on 30 October 1984. The ICFTU points out that the situation of some trade unionists is even more serious since they are not entitled to bail because of their previous convictions.
4. 335. In its communication of 16 October 1984, the ICFTU refers to the situation of Juan Antonio Aguirre Ballesteros, a baker's assistant, who was allegedly arrested on 4 September 1984 by the central carabineer station of Pudahuel and who has since disappeared. The ICFTU points out that Antonio Aguirre Ballesteros was arrested early on the day of the national protest along with Elias Huaquimil Catril as they were going to their places of work. They were beaten in the police van and then taken to the Pudahuel central police station where they were tortured and interrogated about the protest day of action. Other persons were also taken to this place. They were all released unconditionally on 10 September 1984, on the orders of the military prosecutor with the exception of Antonio Aguirre Ballesteros. On 5 September 1984 "an appeal for protection" was made to the courts. Both the carabineers and the National Central of Information Agency denied his arrest and, on two occasions, the Seventh Chamber of the Appeal Court refused to send a magistrate to the Pudahuel police station to verify if the person in question was detained there. However several witnesses have been able to confirm his presence in this police station.
5. 336. In the same communication, the ICFTU also mentions the case of Darío Ibanez Díaz, a trade unionist in the building sector who was arrested on 4 September 1984 along with his two sons following a search of his home without warrant by carabineers and civilians armed with sub-machine guns. Darío Ibanez Díaz was taken to the Pudahuel police station and then put into solitary confinement and tortured. On 7 September 1984 he was abandoned in the street. The carabineers do not officially recognise his arrest. The ICFTU also refers to the case of Sergio Tapia Contreras, a carpenter's assistant, who was also arrested at his home and then tortured in the Pudahuel police station. He was released on 10 September 1984.
6. 337. According to information supplied by the ICFTU in its communication of 9 November 1984, the legal adviser of the National Trade Union Co-ordinating Body (CNS) and of the National Group of Workers, Jorge Donoso, was allegedly arrested on 7 November 1984 by the security services in the presence of various witnesses. The Government allegedly denies his arrest.
7. 338. The complaints of the National Confederation of Peasants and Indigenous Workers El Surco, the World Federation of Trade Unions and CPUSTAL, the Trade Unions International of Miners and Workers in Energy and the National Trade Union Co-ordinating Body (CNS), as well as the communications from the ICFTU dated 13 and 16 November 1984 refer to the storming of certain trade union premises by the security forces on 9, 12 and 13 November 1984 and the alleged arrests of trade union leaders during these police operations. The complainants point out that the organisations affected by these measures were the National Confederation of Peasants and Indigenous Workers El Surco, the Chilean Mining Federation, the National Confederation of Building Workers, the "Peasant Triumph' Confederation, the Nehuen Peasant Confederation and the Federation of Agricultural Workers Trade Unions of Santiago. According to the complainants, the searches were carried out without a warrant and the police officials seized material, documents and money and destroyed furniture and property.
8. 339. The National Confederation of Peasants and Indigenous Workers El Surco, in its communication dated 6 December 1984, gives details concerning the search made of its headquarters. It points out, in particular, that the operation was led by ten armed persons in civilian clothing and that all its documents were examined. The persons present, totalling 14, were searched and individually interrogated and files were established on them. Some were beaten during the course of the interrogations and seven were taken away blindfolded in police vans, and one of them was handcuffed. All the documents of the Confederation as well as miscellaneous items of property were transported in another vehicle. The arrested leaders were taken to a station of the National Central Information Agency where they were once again beaten and subjected to psychological pressure and interrogation. The complainant confederation mentions the case of its Secretary-General, Luis Peña Robles, who had to receive medical assistance during the course of his detention. Following the release of these leaders, the members of their families had to sign a document certifying that they had returned home in good physical condition.
9. 340. The complainants have communicated a list of trade union leaders arrested during the searches (see annex to the present case). They are members of the El Surco Confederation, the Confederation of Metallurgical Workers, the Confederation of Building Workers, the Chilean Mining Federation as well as the National Association of Retired Workers. The ICFTU adds that 375 workers were held in a prison camp in the far north of the country at Pisagua and that an unspecified number of trade unionists were taken to the San Eugenio football stadium following police operations carried out in the La Victoria suburb of Santiago.
10. 341. The National Trade Union Co-ordinating Body (CNS) and the ICFTU, in their communications of 29 and 30 November 1984, have also denounced the banishment to the Pisagua camp of Ernesto Vasquez, Victor Meneses and Pablo Poblete, trade union leaders of the city of Arica.
11. 342. The complaint of the National Trade Union Co-ordinating Body (CNS) and the letter of the ICFTU of 30 November 1984 also refer to the proclamation on 5 November 1984 by the Government of the state of siege throughout the national territory for a period of three months. This period may, under the provisions of the national Constitution, be prolonged indefinitely. As a result of the state of siege, the Government adopted Decree No. 1216 of 7 November 1984 which restricted the right of assembly. On 8 November 1984, the Labour Directorate issued Circular No. 0083 which covers trade union assemblies, meetings and elections and the establishment of organisations during the period of the state of siege.
12. 343. Decree No. 1216 stipulates in sections 1 and 4 that all meetings must be authorised in advance by the regional administrator. For such an authorisation to be granted, the written request must stipulate the object or agenda of the meeting, the list of possible participants and the place and date of the meeting. This request must be signed by at least two persons who guarantee the satisfactory conduct of the meeting. Furthermore, section 5 of the Decree stipulates that meetings which, because of their nature, object or participants, cover the entire country or concern more than one region must be authorised by the Ministry of the Interior. Under section 3, derogations from this provision are granted to organisations enjoying legal personality, Provided that the meetings are held in the premises or headquarters of the organisations and are exclusively devoted to matters considered by the law to be consistent with their proper objectives. Even in these cases, an advance notice of five days must be given to the provincial governor's office. According to the complainants, these provisions imply in practice that trade unions, federations and confederations must, in addition to the legislation currently in force, conform to standards which seriously hinder their activities.
13. 344. As regards the freedom of persons, the state of siege implies that the authorities may detain persons without giving reasons during the entire period of the state of siege. The persons concerned may not be detained in the prisons used for common-law prisoners but are placed under house arrest or held in special places. The National Central Information Agency may make arrests and detain the persons concerned in its public places of detention. It is also possible to banish persons for the duration of the state of siege, which may be prolonged indefinitely. The authorities may restrict freedom of movement from one point to another within the national territory. The "appeals for protection" (amparo) which may be made to the courts are also subject to restrictions during the state of siege as regards rights and guarantees, which may be limited or suspended during the period of emergency.

B. The Government s reply

1. 345. In its communication of 26 November 1984, the Government states that the allegations made in the present case consist of a lengthy account of events and situations which have occurred in Chile and which have nothing to do with freedom of association. It adds that this account is drawn from periodical reports made by de facto organisations existing in the country and sent to the bodies of the United Nations system to justify their illegal existence and to receive the financial aid which enables them to continue their action. The Government believes that the present case does not concern matters of freedom of association and does not therefore fall within the competence of the Committee. It therefore notes with concern that this kind of allegation is being treated as a case. The Government also observes that it is increasingly difficult to give replies to accusations which are vague, imprecise and repetitive and which have nothing to do with freedom of association.
2. 346. However, the Government states that it is providing certain information in the spirit of co-operation which it has always maintained with the ILO. Thus the Government refers to the indictment of Messrs. Bustos, Ruiz Di Giorgio and Montecinos. The examining magistrate in this case has opened an inquiry into the alleged infractions of the Act respecting the security of the State during the events which occurred on 4 and 5 September 1984 which resulted in serious damage to private property and during which several persons were killed. In addition to the three persons mentioned, charges were brought against principal leaders of the political parties. These persons were considered guilty since it was proven that the offence had been committed and that they had participated in it. However the Government has halted the proceedings and the inquiry is therefore closed. All the persons concerned were released without being tried.
3. 347. As regards the allegations concerning Mr. Juan Antonio Aguirre Ballesteros, the Government points out that he has not been arrested by the police. The "appeals for protection" made on his behalf were rejected by the Appeals Court and he was given legal advice at every moment. He was subsequently found dead for reasons which have not yet been established.
4. 348. As regards the alleged physical mistreatment of Mr. Rodolfo Seguel, the Government points out that he has not undertaken any criminal proceedings against those responsible for his mistreatment and points out that Mr. Seguel constantly seeks publicity.
5. 349. In its communication of 4 January 1985, the Government states that as a result of the troubled internal situation existing in the country which was basically due to repeated terrorist attacks against carabineer stations, and which resulted in the death of several carabineers, the President of the Republic, with the agreement of the Junta, and in accordance with section 40.2 of the Constitution, declared the state of siege throughout the national territory on 7 November 1984 up to 4 February 1985.
6. 350. The Government explains that the state of siege is a constitutional state of emergency which affects certain constitutional rights and guarantees when the internal situation of the country is disrupted. The state of siege can be proclaimed for only a period of 90 days. The President of the Republic is then invested with the following rights: transfer of persons from one point of the national territory to another; their detention in their own homes or in places which are not prisons or places which are not used for the detention of common prisoners; their expulsion from the national territory. He may also restrict freedom of movement and prohibit entry into or departure from the national territory, suspend or restrict the right of assembly and freedom of information and opinion, restrict the exercise of the right of association and trade unions rights and censure correspondence and communications. All these measures apply, under the provisions of the Constitution, in so far as they are necessary.
7. 351. As regards the right to assembly, Supreme Decree No. 1216 of the Ministry of the Interior published in the Official Gazette on 8 November 1984, stipulates that meetings must, during the period of the state of siege, be authorised in advance by the administrator of the region. However, this prior authorisation is not required for meetings of organisations enjoying legal personality and which are held in their premises or headquarters and which deal with matters which are proper to their objectives. In this case, only an advance notice of five days to the provincial government is required. The Government adds that this is the case of trade unions, federations and confederations of workers and employers.
8. 352. Furthermore, the Department of trade union organisations of the Labour Directorate, in Circular No. 83 of 8 November 1984, issued instructions concerning the holding of trade union assemblies, meetings and votes as well as the establishment of trade union organisations during the period of the state of siege. This circular stipulates that the assemblies of trade union organisations enjoying legal personality are subject only to the advanced notice of five days provided that the conditions set forth in the previous paragraph are respected. As regards assemblies for the establishment of trade union organisations, the inspection authorities verify, before appointing a ministerial officer to attend the meeting, that authorisation has been given by the regional governor. The authorisation is granted following receipt of a written request, signed by at least two persons who guarantee that the meeting will take place in normal conditions of order. Furthermore, the document must also stipulate the object of the meeting, the list of possible participants and the date and time of the meeting. As regards meetings which concern more than one region, it is the Ministry of the Interior which is responsible for giving authorisation.
9. 353. The Legal department of the Labour Directorate, in Circular No. 19 of 22 November 1984, also issued instructions concerning the meetings, assemblies and votes of trade unions and workers' groups during the collective bargaining negociations. As regards negotiations held by a trade union, the meetings and votes are subject to an advance notice of five days and must be held in the trade union premises (trade union premises are understood in this connection to mean any place in the undertaking where the union usually meets). When negotiations are held by a group of workers which is not endowed with legal personality, prior authorisation must be requested from the regional administrator's office or, if the negotiations concern workers from more than one region, from the Ministry of the Interior.
10. 354. As regards the persons mentioned in the complaints, the Government points out that under Decree No. 4918 of 13 November 1984, the Minister of the Interior ordered the house arrest of the following persons for a period of 90 days: Messrs. Humberto Arcos Vera, Heriaís Castaneda Moreno and Segundo Cancino Fernández at Quenchi; Messrs. Luis Peña Robles, Carlos Opazo Bascuñan and Valentín Osorno Badilla at Achao; Messrs. Luis Avendaño Atenas, Enrique Bucherenich Canales and Sergio Dastres González at Curaco de Vélez, Messrs. Ariel Urrutia Villalobos and Carlos Araya Velasco at Dalcahue and Messrs. Juan Valencia Vera, Luis Suarez Zegarra and Moisés Labraña Mena at Puqueldón. These persons were arrested during the search carried out of the premises of the "Popular Democratic Movement" (MDP) and the "Socialist Bloc", extreme left organisations, which are sympathetic to terrorist activities and which do not carry on any trade union activity. The Government adds that Messrs. Rigoberto Lillo Torres, Juan Antinas Antinao, Alamiro Guzmán Ordenes, Lucía Morales Alvarez and Esperanza Guerrero Ceballos are not being detained. As regards Mr. Jorge Donoso, the Government points out that he was arrested in the premises of the "Socialist Bloc" and released the same day. The Government adds that it is not true that he was the legal adviser of trade unions. He is the director of a newspaper called Fortín Mapocho and has not disappeared since he is free.

C. The Committee's conclusions

1. 355. The Committee notes that the present case concerns various events which have occurred in Chile since September 1984. Before examining each of the questions raised by the complainants, the Committee considers it must express its concern at the serious nature of the allegations made by the numerous complainant organisations, both national and international, and which concern important aspects of freedom of association and human rights and their relation to trade union rights. The Committee notes in particular that according to the complainants extremely serious measures have been taken in recent months by the authorities against some trade union organisations and their leaders and active members: the death of workers during clashes with the police forces, the arrest and banishment of trade unionists and their ill-treatment, the assault of trade union premises, restrictions on the right of assembly.
2. 356. The Committee must first of all stress in this connection that, as stated in the Resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970, the absence of civil liberties removes all meaning from the concept of trade union rights and that the rights conferred upon workers' and employers' organisations must be based on respect for these civil liberties.
3. 357. The allegations refer to the intervention of the police during the day of protest organised on 4 September 1984 and which allegedly resulted in the death of ten persons, with many injured and more than 1,000 arrests. The complainants mention in particular the case of Juan Antonio Aguirre Ballesteros who was allegedly arrested and tortured and whose body was later found abandoned.
4. 358. Although it recognises that the trade union organisations have not given any details on the nature and objectives of the day of protest of 4 September 1984, the Committee must note with regret that the Government has furnished no information on the circumstances of the deaths of the ten persons killed during this day. The Committee believes that such serious events should lead the authorities to take effective measures to establish the facts and punish those responsible. The Committee therefore requests the Government to indicate whether an impartial and in-depth inquiry has been carried out into these events and, if so, to inform it of the outcome.
5. 359. As regards the case of Mr. Juan Antonio Aguirre Ballesteros, the Committee notes that the complainants have given very detailed information on the circumstances in which he was allegedly arrested and have specified the place of his detention. The Committee cannot, therefore, accept the general statement of the Government which simply indicates that Mr. Aguirre was not arrested by the police and that he was found dead from causes not yet established. Given the extremely serious nature of these allegations, the Committee requests the Government to take all the necessary measures to clarify the circumstances of his death and to determine responsibilities. It requests the Government to furnish information on any inquiry taken in this matter and to inform it of the outcome.
6. 360. As regards the arrest of Messrs. Bustos, Ruiz Di Giorgio and Montecinos and the action taken against them, the Committee notes that although they were found guilty by the examining magistrate, the Government has halted the proceedings and the judicial proceedings are therefore closed and the persons concerned are now free. The Committee notes, however, that the Government has not indicated what charges were brought against these trade union leaders. The complainants, for their part, had indicated that the charges were related to the call for a general strike on 30 October 1984. The Committee considers it useful to recall that trade union organisations should have the opportunity to call for protest strikes particularly with a view to exercising criticism of the social and economic policy of governments.
7. 361. It appears, in the light of the allegations made, that the headquarters of certain trade union organisations were attacked by the police and that material was allegedly destroyed and documentation confiscated. The Government does not furnish any information in its reply on the reasons for these searches. In this respect the Committee calls to the attention of the Government that the protection of trade union property is one of the basic civil liberties required for the normal exercise of trade union rights. Whilst trade unions cannot claim immunity from a search of their premises, such a search should only be made following the issue of a warrant by the ordinary judicial authority, after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that the search be restricted to the purposes in respect of which the warrant was issued. The Committee therefore requests the Government to furnish information on the circumstances of the operations carried out against the trade union premises and in particular to indicate their purpose and reason.
8. 362. According to the complainants, arrests were allegedly made during these operations and the persons concerned were allegedly mistreated during their detention. It is alleged that they were subsequently banished. In this connection the Government has provided information on some of the persons mentioned by the complainants and pointed out that some of them were free or that others had been arrested during searches made of the premises of extreme left political organisations (see annex to the present report). The Committee must note on this point that there is an obvious contradiction between this statement and that of the complainants since the latter stated that arrests had been made during the attacks on the trade union premises of the El Surco Confederation and the Chilean Mining Federation and furnished written testimony in support of their complaint from the persons arrested. The Committee considers it necessary to stress in this connection that the banishment of trade union leaders or trade unionists because of their trade union activities is incompatible with the principles of freedom of association. The Committee must furthermore note that the Government has supplied no information on certain persons allegedly arrested according to the complaints (see annex to the present report) or on the allegations made concerning the ill-treatment of the persons arrested. The Committee therefore requests the Government to furnish its observations in this respect.
9. 363. As regards the allegations concerning the state of siege and its resulting consequences on the exercise of trade union rights, the Committee notes the information supplied by the Government. It notes in particular that, according to the Government, the state of siege was declared because of terrorist attacks which have been committed in the country. Whether the declaration of this exceptional state was justified or not, the Committee's must note that it results in extremely serious consequences for the operation of trade union organisations, in particular as regards their right to hold meetings. In the circumstances, the Committee must therefore stress the importance of the right for trade unions to hold meetings freely without control by the public authorities. The Committee thus expresses the firm hope that the restrictions concerning the right of trade union organisations to hold meetings will be lifted in the very near future and it requests the Government to inform it of any measures taken to this end.

Z. ANNEX

• List of persons mentioned by the complainants as having been arrested and the Government's replies to the complaints
• AGUIRRE BALLESTEROS Juan Antonio: Not arrested by the police. Deceased. ANTINAO Juan Antonio: Free ARAYA Carlos: Banished ARCOS Humberto: Banished AVENDAÑO Atenas: Luis Enrique: Banished BUCHERENICK Enrique Humberto: Banished BUSTOS Manuel: Free CANCINO FERNANDEZ Segundo: Banished CASTAÑEDA Hernán Fernando: Banished DASTRE Sergio Alberto: Banished DONOSO Jorge: Free GUERRERO Esperanza de la Luz: Free GUZMAN Alamiro: Free LABRAÑA Moisés: Banished ILLO Rigoberto: Free MONTECINOS Raúl: Free MORALES Lucïa: Free OPAZO Carlos: Banished OSORNO Valentín: Banished PEÑA Luis: Banished RUIZ DI GIORGIO José: Free SILVA Luis: Banished SUAREZ ZEGARRA Luis: Banished URRUTIA Ariel: Banished VALENCIA Juan: Banished
• List of persons mentioned by the complainants as having been arrested and allegations made upon which the Government has given no information
• CATRIL Alejo: Textile leader arrested 15.11
• COLUMBANO Renato: Arrested (CPUSTAL allegation)
• FERNANDEZ Humberto: Concepción trade unionist arrested 28.11
• FUENTES Adrían: Concepción trade unionist arrested 28.11
• LACAMBRETT Marta: Arrested (CPUSTAL allegation)
• MENESES Victor: Arica trade union leader banished 28.11
• NUÑEZ Enrique: Trade unionist of the Metallurgy Confederation arrested 7.11
• PEDRIN Jorge: Concepción trade unionist arrested 28.11
• POBLETE Pablo: Arica trade union leader banished 28.11
• RODRIGUEZ Jorge: Mining Federation trade unionist banished to Dalcahue
• SALFATE Boris: Arrested (ICFTU allegation)
• SANTIBAÑEZ Hector: Leader of the National Association of Retired Workers, arrested 9.11
• SOTO Hernán: Arrested (CPUSTAL allegation)
• VASQUEZ Ernesto: Arica trade union leader banished 28.11
• VIDAL Raúl: Concepción trade unionist arrested 28.11