Interim Report - Report No 159, November 1976

Case No 823 (Chile) - Complaint date: 12-AUG-75 - Closed

1. 61. The Committee has already examined this case in February 1976, when it submitted an interim report contained in paragraphs 181 to 203 of its 157th Report. This report was approved by the Governing Body at its 199th Session (March 1976).
2. 62. 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. A. The complainants' allegations

• Examination of This Case by the Committee in February 1976
  63. 63 The complainants had supplied the names of numerous trade union officials and workers who had been arrested, and even of several persons who had been killed. The allegations also referred to the annulment of the legal personality of several teachers' associations.
  64. 64 The Government had furnished some information with respect to several of the persons mentioned by the complainants. The Government had repeated that the detention or sentencing of trade unionists had arisen out of acts of a political nature or offences against national security, but never out of acts which were essentially of a trade union nature.
  65. 65 In paragraph 203 of its 157th Report, the Committee recommended the Governing Body, inter alia, (a) to note that some of the trade unionists concerned had been released, and, in this connection, to draw the attention of the Government, in particular, to the danger involved for trade union rights by arrests of trade unionists against whom no grounds for conviction were subsequently found; (b) to emphasise the importance of certain recommendations made by the Fact-Finding and Conciliation Commission, and to recall, in particular, that trade unionists who were detained should either be liberated or tried in accordance with procedures which provided full safeguards of defence and impartial judgment; (c) to request the Government to supply detailed information concerning the other trade unionists mentioned in the complaints, especially as regards the specific acts of which they were accused if they were in detention, and concerning the annulment of the legal personality of the associations [ mentioned in paragraph 63].
• Latest Developments
  66. 66 Since the Committee's last session, the Government has supplied, in two letters dated 12 and 22 April 1976, the following information concerning a number of the persons named by the complainants:
      • - Andrés Gómez Toledo, who is not a trade union official, was sentenced by the competent court for smuggling arms into the country; Edgardo Vargas Alvarez was sentenced to three years' penal servitude for breaches of Act No. 129271; Armando Ulloa U. is at the disposal of the criminal court of Santiago on a charge of forgery; Pablo Jeria Rios, who is not a trade union official, was sentenced by the competent court for breaches of the aforementioned Act No. 12927. These four persons applied to the Special Pardons Commission for their sentences to be commuted to exile, and their request was granted. A decree to this effect is in preparation.
      • - Oscar de la Fuente is in prison for a breach of Act No. 12927, mentioned above.
      • - Luis Nibaldo Retamales Ortubia is in prison for the same reason.
      • - José David Gómez Montoya, who is not a trade union official, has obtained the commutation of his sentence to exile; he left for Amsterdam on 29 December 1975.
      • - Manuel Ponce Hermosilla, who is not a trade union official, was given a short sentence and has now been released on parole.
      • - Luis Humberto Contreras Aravena, who is not a trade union official, was sentenced by the competent court, as stated in Annex I, paragraph B 2, of the Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning the case of Chile. He applied for his sentence to be commuted to exile, but his application was rejected by the Special Pardons Commission in view of the seriousness of his offence (attack on a police barracks).
      • - Ariel Muñoz Seguel, who is not a trade union official, was obliged to leave the country, and went to Panama on 7 September 1975.
      • - Carlos Villalobos, who is not a trade union official, was sentenced for breaches of Act No. 12927, mentioned earlier.
      • - Iván Gordillo Hitschfeld obtained the commutation of his sentence to exile by the Special Pardons commission, and left for Germany on 6 January 1976.
      • - Bernardo Vargas Fernández was sentenced by the competent court for attempted murder to 541 days' penal servitude. There is no record of any application by him for his sentence to be commuted to exile.
      • - Hernán Alvarez Navarro obtained the commutation of his sentence to exile by the Special Pardons Commission, and left for Frankfurt on 11 December 1975.
      • - Aldo Mayor Olivos, who is not a trade union official, was sentenced by the competent court for breaches of the aforementioned Act No. 12927. However, he has obtained the commutation of his sentence to exile, and will shortly be leaving the country.
      • - Gullermo Sáez Aravena, who is not a trade union official, obtained the commutation of his sentence to exile, and left for Holland on 3 March 1976.
      • - Luis Valencia Ferguson, who is not a trade union official, was sentenced by the competent court for breaches of Act No. 12927. He has applied for his sentence to be commuted to exile. The Special Pardons Commission, bearing in mind the proportion of the sentence already served and the short time which remains, has deemed it appropriate to refer the matter for decision to the Permanent Pardons Commission.
      • - Fernando Salazar Salazar was released by Decree No. 1562 of 23 September 1975, and is working as a porter for a state undertaking.
      • - Eliecer Valencia Oyarco, who is not a trade union official, was sentenced by the competent court to ten years and one day's imprisonment for breaches of Act No. 12927. There is no record of any application by him for his sentence to be commuted to exile.
      • - Hernán Diott Vidal, who is not a trade union official, was sentenced by the competent court to 20 years' penal servitude for breaches of Act No. 12927. There is no record of any application by him for his sentence to be commuted to exile.
      • - Francisco Gómez, Carlos Moral Avendaño, Pedro Edgardo González Rojas and Nicolás López are now at liberty.
  67. 67 As concerns the persons alleged in one of the complaints to have been killed, the Government states that these persons mentioned by the WCL in its communication of 21 January 1976 - are not trade unionists, but a dangerous group of extremists who clashed with the forces of law and order during serious incidents which took place in November 1975. The Government appends a press cutting giving a detailed account of these incidents. It is clear from this account, according to the Government, that Roberto Gallardo Moreno, an active member of the Revolutionary Left-Wing Movement (MIR), met his death in the skirmish which took place at School No. 51 in Bio-Bio Street on the night of 17 November 1975. This skirmish broke out as a result of inquiries being made by security forces investigating the murder of a conscript at that spot by a group of extremists (two women and six men). The Government adds that Mónica del Carmen Pancheco Sánchez, Catalina Ester Gallardo Moreno, Manuel Lautaro Reyes Garrido and Luis Andrés Gangas Torres, all members of the MIR, and Alberto Gallardo Pacheco and Pedro Blas Cortes Jeldres, both members of the banned Communist Party, met their death in the hills of Rinconada de Maipu, whither the security forces bad followed them from the school. The clash took place on 19 November 1975 and lasted half an hour, as the group of assailants had entrenched themselves on a hill and were heavily armed. The Government concludes by stating that members of the security forces were seriously wounded.
  68. 68 In its communication of 22 April 1976, the Government repeats that nobody is being or has been kept in custody on account of his trade union status or activities, and that those who are in custody are accused of specific breaches of the legal provisions in force, which are applied in a strictly impartial manner to both trade unionists and non-trade unionists. The Government adds that the readiness of Chile to co-operate with the Organisation has been amply demonstrated over 57 years of joint effort, and that for proof of this one need look no further than the consent it gave to the visit of the Fact-Finding and Conciliation Commission, to which it offered extensive facilities and full freedom to carry out its mission, and its acceptance of the Commission's recommendations, even though it had pointed out inaccuracies in the Commission's report. The Government accordingly regrets all the more the deliberate multiplication of complaints, submitted with the obvious political motive of ensuring that the organs of the ILO are constantly faced with a "Chilean problem".
  69. 69 The Government states that it has repeatedly made it clear how much importance it attaches to the recommendations of the Fact-Finding and Conciliation Commission by sending detailed reports to the ILO at regular intervals. As concerns the criminal procedure applicable in cases of detention, the Government states that since there is now a state of emergency the provisions in force, "to the degree necessary for internal security", are those of the Code of Military Justice of 1925 relating to ordinary military courts and the criminal procedure to be followed in peace time; in consequence, continues the Government, the military courts have ceased to be competent to deal with any but a small number of cases provided for in the Act of 1958 respecting the internal security of the State. Cases go before military and naval judges in the first instance, and are then referred in the second instance to courts-martial consisting of two appeal court judges and assessors from the armed forces and the police. An appeal may be made to the Supreme Court of Justice, whose independence constitutes a full guarantee of its impartiality. This procedure, continues the Government, is applicable to the whole population, whether trade unionists or not.
  70. 70 As concerns the annulment of the legal personality of the associations mentioned in paragraph 63, the Government supplied certain information. The Committee decided to adjourn its examination of this aspect of the case.

B. B. The Committee's conclusions

• Conclusions of the Committee
  71. 71 With regard to the allegations relating to persons in detention, the Committee notes, first of all, that several of the persons stated by the Government in its replies not to be trade union officials had been named by the complainants as being officials of the CUT. The Committee also notes that other persons mentioned in the complaints do not appear to have engaged in trade union activities or performed trade union functions.
  72. 72 Next, the Committee notes that a number of the trade unionists or former trade unionists in custody have been released. As concerns those sent into exile, the Committee points out that offering a trade unionist his freedom on condition that he leaves the country cannot be deemed to be compatible with the free exercise of trade union rights.
  73. 73 Lastly, it emerges from the information supplied by the Government and by the complainants that some of the trade unionists or former trade unionists mentioned in the present case are still in prison. It appears that a number of them have not appeared before any court. The Committee notes that, according to the Government, nobody is being or has been kept in custody on account of his trade union status or activities. However, the Government has not, as requested by the Governing Body, supplied particulars as to the specific acts which led to their detention.

The Committee's recommendations

1. 74. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to note that a number of the arrested trade unionists have been released;
   • (b) to request the Government to supply detailed information as to the specific acts serving as grounds for the continued detention, or sentencing, of the trade unionists or former trade unionists mentioned in the complaints;
   • (c) to emphasise that, if the Government considers that the trade unionists in custody are guilty of offences, they should be brought before the courts for trial, and to request the Government to supply information in this respect; and
   • (d) to take note of the present interim report, it being understood that the Committee will submit a further report to the Governing Body at its next session.
     • Geneva, 27 May 1976 (Signed) Roberto Ago, Chairman.