Rapport définitif - Rapport No. 401, Mars 2023

Cas no 3225 (Argentine) - Date de la plainte: 11-AVR. -16 - Clos

Allegations: The complainant organizations allege that, in the context of a collective dispute, the constitutional rights of worker members of cooperatives were undermined, and the unlawful detention was ordered of Ms Milagro Sala, head of the Civil, Social, Cultural and Sporting Association of Túpac Amaru

1. 98. The complaint is contained in communications from the Civil, Social, Cultural and Sporting Association of Túpac Amaru, the Association of State Workers (ATE) and the Confederation of Workers of Argentina (CTA Workers) dated 11 April, 16 August and 10 November 2016.
2. 99. The Government provided its observations in the communications dated 8 March and 23 October 2017, and 22 March 2018.
3. 100. 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).

A. The complainants’ allegations

1. 101. In their communications dated 11 April, 16 August and 10 November 2016, the complainant organizations allege that, in the context of a strike and a collective dispute that occurred in Jujuy province in December 2015, the constitutional rights of worker members of cooperatives were undermined, and the unlawful detention was ordered of Ms Milagro Sala, head of the Civil, Social, Cultural and Sporting Association of Túpac Amaru, a civil association affiliated to CTA Workers.
2. 102. Information in the documents annexed to the complaints indicates that Túpac Amaru is a grassroots and indigenous political group founded in the late nineties in the province of Jujuy that aims at revitalizing the most underprivileged sectors of the province through the management of housing, health, employment and education programmes by local cooperatives run by the residents. The documents also indicate that Ms Sala is an indigenous social activist with a strong commitment to human rights, indigenous peoples and the neglected and excluded. She has contributed to rebuilding the civil society of the province by creating decent work and providing free, high-quality education and health services, thus weaving a new social fabric.
3. 103. The complainant organizations indicate that, after taking office as provincial governor on 10 December 2015, Mr Gerardo Morales suspended the payments made to the cooperatives, thus failing to comply with the agreements and commitments for public works entered into by the provincial state and, in response to this situation, the members of the cooperatives decided to peacefully occupy the Belgrano square from 14 December in search of a forum to negotiate with the provincial executive branch. The complainant organizations state that the Túpac Amaru organization sent three communications requesting an audience with the Governor but did not receive a response. They also state that, while the Governor officially remained silent, he communicated via the media that he would not meet with the organization and merely insulted and stigmatized Ms Sala, making groundless accusations of inexistant crimes against her.
4. 104. The complainant organizations state that, on 13 January 2016, the provincial executive branch issued Decree No. 403/G-2016, which launched an alleged regularization of the cooperatives, called the “plan for the regularization and transparency of cooperatives and social benefits”, providing for the re-registration and coercion of individuals and social organizations. The complainant organizations cite various articles of the Decree which, in addition to establishing a plan for regularizing and re-registering cooperatives and social benefits, instructed the Public Prosecutor’s Office to initiate the process of stripping civil associations of their legal status for crimes committed during the occupation of the square and ordered the exclusion from housing plans, benefits and programmes of individuals and organizations that continued to participate in the occupation. The complainant organizations allege that, under the provisions of the Decree, Ms Sala was detained on 16 January 2016 on the charges of “instigating crimes and unrest” in the context of a collective labour dispute with the cooperatives of the organization she represented and the peaceful occupation of the square. The complainant organizations indicate that Ms Sala was detained at the police station until 21 January when she was transferred to a women’s prison.
5. 105. The complainant organizations consider the above-mentioned Decree to be unconstitutional as it infringes on the protection of cooperatives and demonstrates the executive branch’s extorsion of individuals and civil associations exercising the right to protest and strike. They also consider that the measures applied by the judiciary of the province of Jujuy, and the public statements made by the provincial Governor (newspaper articles are attached) constitute ideological and political persecution, making the detention of Ms Sala the unlawful detention of a trade union leader in the context of a collective dispute. The complainant organizations understand that the measures taken supressed the right to peaceful protest of the worker members of the cooperatives and the intervention of the police authorities at the location of the protest restricted a form of protest, in violation of Convention No. 87. The complainant organizations add that, in an opinion issued in 2016, the United Nations Working Group on Arbitrary Detention stated that the deprivation of liberty of Ms Sala was arbitrary and requested the Government to release her immediately.

B. The Government’s reply

1. 106. In its communications dated 8 March and 23 October 2017, and 22 March 2018, the Government indicates that the Túpac Amaru organization is a civil association and not a trade union, established for social, cultural and sports purposes, which is not registered in the registry of trade unions and does not meet the requirements to be considered a trade union and therefore falls outside of the remit of the ILO supervisory system. The Government stresses that it is a neighbourhood grassroots organization that does not have the objective of protecting workers’ rights. The Government also states that the fact that Túpac Amaru is affiliated to CTA Workers, which is a trade union and accepts the affiliation of social organizations, does not mean that the purpose that the interested parties themselves had in mind upon its establishment can be changed.
2. 107. The Government adds that Ms Sala is not a trade union leader and has not been elected or appointed as such by a trade union organization and that, according to information provided to the Government, Ms Sala ceased to belong to the Túpac Amaru association in April 2015, as shown in the association’s file in the legal persons department of the State Prosecutor’s Office of the province of Jujuy. The Government also indicates that the complaint does not indicate the scope of Ms Sala’s participation in the organization or the defence of the rights of workers and/or cooperative members who were allegedly at the Belgrano square, nor does it indicate whether she participated in the representation of any specific trade union organization. The Government considers that the complaint is essentially flawed since there is an absence of a trade union association of which Ms Sala could be considered a representative or leader.
3. 108. The Government also states that it cannot be concluded from the complaint that there was a collective labour dispute arising from a negotiation between workers and employers and that it is incorrect to speak of a collective dispute as this is a phenomenon originating in the world of work that is referred to a resolution mechanism involving employers and workers in which workers are represented by delegates and/or leaders of a representative trade union organization covering specific personnel and a specific territory. According to the Government, none of these elements is demonstrated in the matters raised in the complaint.
4. 109. The Government indicates that: (i) characterizing the peaceful occupation as a strike undertaken by workers and linked to the right to organize that is protected under Conventions Nos 87 and 98 is clearly unjustified since the circumstances referred to in the complaint do not reflect collective bargaining and a collective labour dispute in the sense protected under the Conventions; (ii) the occupation took place four days after the Governor took office and Decree No. 403/G-2016 aimed to regularize social organizations and cooperatives, therefore the activities carried out during the occupation represented action of a political nature; and (iii) there had been no collective dispute and no union leader is identified who has experienced the deprivation, limitation and/or curtailment of any right or of freedom of association. The above-mentioned Decree indicates that the methods of assistance and state aid that had been implemented until 10 December 2015 had failed because they had been devoid of any type of state control and there were certain organizations that exercised a discretionary and quasi-governmental control over these public funds, so the Decree intended to register and regularize cooperatives and people benefiting from housing programmes, social plans and food and other benefits, in rejection of the violent methods of protest such as occupations, road blocks, and destruction of public and private property, and, among other acts of violence, the forceful action undertaken by the social organizations led by Ms Sala.
5. 110. The Government states that the Governor had no option but to clear the occupation from the square since there was a huge mass of tents and gazebos that covered not only the square but also the main thoroughfares of the city, meaning that it was not only an occupation of a park but an abrupt traffic disruption that particularly affected public passenger transport and had a direct impact on the businesses in the surrounding area, amounting to a siege of the city. The Government adds that the “occupation” began to unfold on the second working day of the Government’s administration, with obvious acts of intimidation against the democratically elected Government, before the Government could have issued any administrative act.
6. 111. The Government indicates that: (i) on 11 January 2016, Ms Sala was summoned to a hearing to inform her of the charges brought against her and she undertook to identify herself to the Personal Records Department, an obligation with which she failed to comply, she also undertook to abstain from any act that could hinder the discovery of the truth and the application of criminal law, which she also failed to do; and (ii) on 16 January, based on her procedural conduct and personal stance taken following the hearing, the judge ordered her detention, which was extended until 28 January when her mandated period of detention ended and a secured bail bond was imposed. Notwithstanding, Ms Sala continued to be held in pretrial detention by court order due to her alleged crimes of unlawful association, defrauding the public administration and extortion.
7. 112. The Government provides information in relation to the status of the various court cases in which Ms Sala is being investigated and for which she has been deprived of her liberty. According to the documentation provided by the Government, these include the following court cases:
8. 113. The Government stresses that Ms Sala’s right to individual freedom has not been restricted in any way for trade union reasons and that she is being detained as a result of standard judicial proceedings with full guarantees of due process. The Government annexed a copy of a judgment of the Supreme Court of Justice (CSJ/2017/CS1) from 2017, handed down in the case of “Sala, Milagro Amalia Angela and others accused of unlawful association, defrauding the State and extortion”, in which it ordered compliance with the request of the Inter-American Court of Human Rights of 23 November 2017 to immediately adopt the necessary measures to safeguard effectively the life, personal integrity and health of Ms Sala, in particular by replacing her pretrial detention with house arrest and providing her with the medical and psychological care that she required and agreed to.

C. The Committee’s conclusions

1. 114. The Committee notes that the present case concerns the alleged unlawful detention of Ms Milagro Sala, leader of the Túpac Amaru Civil Association, who has been detained since the beginning of 2016, and the alleged undermining of the constitutional rights of worker members of cooperatives. The Committee notes that, according to the complaint and its annexes, Túpac Amaru is a grassroots and indigenous political group founded in the late nineties in the province of Jujuy which aims at revitalizing the most underprivileged sectors of the province through the management of housing, health, employment and education programmes by cooperatives.
2. 115. The Committee notes the complainant organizations’ allegations that: (i) four days after taking office, the Governor of the province of Jujuy suspended payments to the cooperatives and the cooperatives decided to undertake a peaceful occupation of a public square in search of a forum to negotiate with the provincial executive branch; (ii) not only did the Governor not meet with the cooperatives, but he threatened and stigmatized Ms Sala, making baseless accusations of inexistant crimes against her; (iii) one month later, Decree No. 403/G-2016 was issued, which launched an alleged regularization of cooperatives and social benefits, instructed the Public Prosecutor’s Office to initiate the process of withdrawing the legal status of civil associations for crimes committed during the occupation of the square and provided for the exclusion from plans and programmes of those who continued the occupation (the complainant organizations consider that the Decree infringes on the protection of cooperatives and demonstrates the extortion of the executive branch of individuals and civil associations exercising the right to protest and strike); and (iv) three days after the Decree was issued, Ms Sala was detained on the alleged charges of “instigating crimes and unrest”, which is evidence of the ideological and political persecution of the leader. The Committee notes that, according to the complainant organizations, in 2016 the United Nations Working Group on Arbitrary Detention concluded that the deprivation of liberty of Ms Sala was arbitrary and requested her immediate release.
3. 116. The Committee notes in this respect the Government’s indications that: (i) Túpac Amaru is a civil association rather than a trade union, Ms Sala is not a trade union leader, there was no collective dispute arising from a negotiation between workers and employers and the characterization of the peaceful occupation as a strike is unfounded; (ii) according to Decree No. 403/G-2016, certain organizations exercised discretionary and quasi-governmental control over public funds and it was necessary to register and regularize the cooperatives, in rejection of the violent methods of protest such as occupations, road blocks and destruction of public and private property; (iii) Ms Sala was detained by court order owing to her suspected involvement in crimes for which she had been charged in various cases, including unlawful association, defrauding the public administration and extortion in a case that is currently before the Supreme Court of Justice; and (iv) the Supreme Court of Justice ordered compliance with the request of the Inter-American Court of Human Rights to adopt protective measures to safeguard the life, personal integrity and health of Ms Sala, particularly by placing her under house arrest as an alternative to pretrial detention.
4. 117. The Committee observes that, from the documentation provided by the complainant organizations and the Government it is apparent that the occupation, in which mainly social organizations and cooperative members participated, was undertaken in protest of the action taken by the new Governor to suspend payments to cooperatives. The Committee takes note of the Resolution adopted by the 110th Conference defining the Social and Solidarity Economy (SSE), which includes cooperatives, and calls on members to ensure that “workers in the SSE benefit from freedom of association and the effective recognition of the right to collective bargaining.” The Committee also recalls its previous conclusion that the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 399]. However, the Committee notes that in this particular case it does not seem to be apparent from the information and documents provided that the protest action taken by the members of the cooperative arose from a labour dispute or that the measures taken by the regional Governor of Jujuy had repercussions on the exercise of trade union rights. In the light of the foregoing, the Committee will not pursue its examination of the allegations related to the violation of the constitutional rights of the worker members of the cooperatives.
5. 118. With regard to Ms Sala, the Committee notes that, according to publicly available information, she remains under house arrest. It also notes that in a judgment issued on 15 December 2022 the Supreme Court of Justice upheld the Jujuy court’s 2019 decision sentencing Ms Sala to 13 years’ imprisonment for unlawful association, defrauding the public administration and extortion. According to this decision, the Supreme Court of Justice understood that the sentence had already been reviewed by the Superior Court of Jujuy and the defence had not been able to demonstrate that there had been a violation of a right enshrined in federal law or that it was an arbitrary judgment, which would enable the federal Supreme Court to intervene.
6. 119. The Committee notes that the documentation provided does not show that the court cases for which Ms Sala was sentenced to imprisonment were related to the exercise of trade union activities or to the exercise of activities of another nature that could have affected the exercise of trade union rights insofar as Ms Sala was convicted of the crimes of unlawful association as a leader, defrauding the public administration and extortion. According to the documentation provided, such acts were allegedly carried out in the context of the activity of an organization that presented as characteristic features a high degree of coordination, with a modus operandi that involved intimidation and top-down management by the defendant of a political and social organization set up to receive public funds for social purposes and divert them for the benefit of the unlawful association under investigation. The Committee recalls that it has considered that when it appeared from the information available that the persons concerned had been judged by the competent judicial authorities, with the safeguards of normal procedure, and sentenced on account of actions which were not connected with normal trade union activities or which went beyond the scope of such activities, the Committee has considered that the case called for no further examination [see Compilation, para. 183]. The Committee therefore considers that this case does not call for further examination and is closed.

The Committee’s recommendation

1. 120. In the light of its foregoing conclusions and taking into account that the issues examined in this case do not concern trade union rights, the Committee invites the Governing Body to decide that this case does not require any further examination.