&htab;39.&htab;On 2 September 1983 the BOGL Employees' Unity Centre, the MAMC Employees' Unity Centre and the Small Industries Workers' Union presented a complaint of infringements of trade union rights against the Government of India. The Government replied in a communication dated 27 October 1984.

&htab;40.&htab;India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;41.&htab;The complainants allege that the management of Bharat Ophthalmic Glass Ltd. - a government undertaking - refuses to negotiate with its employees' registered representative, the BOGL Employees' Unity Centre. They also allege that the management of the Mining and Allied Machinery Corp. - another government undertaking - refuses to negotiate with the four registered unions which represent its employees. Lastly, they state that the Durgapur Small Industries Association - made up of small industry employers - is acting in the same manner.

&htab;42.&htab;According to the complainants, the statutory conciliation authority of West Bengal favours employers and does not take the initiative to redress workers' grievances although it is authorised to do so under the Industrial Disputes Act of 1947. The complainants add that this state of affairs was brought to the attention of the various ministers of West Bengal concerned and the central Government, but no favourable action has yet been taken.

&htab;43.&htab;In its communication of 27 October 1984, the Government states that the joint complaint is vague and too general. According to the State Government of West Bengal, the allegation has been denied by the two public sector managements as well as by the employers' associations. In addition, it appears that none of the complainant unions has taken its grievance to the appropriate industrial relations authority under the Industrial Disputes Act before approaching the ILO. The Government points out that the state Labour Directorates have not been approached by the unions, and that no specific instances of denial of trade union rights by the managements have been cited by the complainant unions.

&htab;44.&htab;The Government concludes that, given the lack of factual evidence and given that the available machinery for settlement of grievances has not been utilised, no worth while purpose would be served by pursuing the case further.

&htab;45.&htab;The Committee regrets that it has not received from the complainants the detailed and precise information that was requested from them in support of their complaint. It has also taken note of the Government's reply to the complaint that was transmitted to it.

&htab;46.&htab;The Committee would recall in general terms, as it has done in past cases concerning the alleged refusal of an employer to bargain collectively with particular recognised workers' organisations, that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining. [See, for example, 211th Report, Cases Nos. 1035 and 1050 (India), paragraph 110.] It accordingly considers that this aspect of the case does not call for further examination.

&htab;47.&htab;As regards the allegations that the statutory conciliation authority of West Bengal has not taken initiatives to settle workers' grievances, the Committee can only conclude that, in the absence of detailed information on this aspect of the case, it is not in a position to pursue its examination thereof.

&htab;49.&htab;The complaint is contained in a communication from the Federation of Associations of Senior Public Servants' Bodies (FEDECA) dated 18 November 1983. FEDECA sent additional information in a communication dated 2 January 1984. The Government supplied its observations in a communication dated 6 April 1984.

&htab;50.&htab;Spain 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).

&htab;51.&htab;The Federation of Associations of Senior Public Servants' Bodies (FEDECA) alleges that in January 1983 the Ministry of the Presidency of the Government (which is responsible for matters relating to the public service) opened a round of negotiations on public servants' hours of work and wages to which were invited the trade union organisations FSP (UGT), CCOO and CSIF, but not FEDECA. At this stage a written request was made for FEDECA to attend. The executive committee of FEDECA was summoned several times to the Ministry of the Presidency of the Government (on one occasion for an informal audience with the Minister, at other times for conversations with the Secretary of State for the Public Service or with the Director-General of the Public Service) to try to resolve the matter of FEDECA's participation in the round of negotiations. Finally, at the end of January FEDECA was verbally informed of the refusal of the Ministry of the Presidency of the Government to allow it to participate in the negotiations, which alleged that "the other three trade union organisations with which the Ministry of the Presidency of the Government has been negotiating were opposed to its presence".

&htab;52.&htab;According to the complainant, in June 1983, the Minister of the Presidency of the Government who still refused to negotiate with FEDECA, provided the Federation with a copy of the preliminary draft of a bill to reform the public service and a copy of the bill regulating trade union membership and the right of officials to strike and requested the organisation "as early as possible" to report on the texts, stating verbally that this should be done within a period of five days. FEDECA points out that it has not received any reply to the report which it transmitted within the required time limit or had any conversation on this matter. It is clear that the fact of requesting a report without following up the matter once it had been received cannot be considered a genuine negotiation process.

&htab;53.&htab;The complainant also alleges that the Minister of the Presidency of the Government and the Secretary of State for the Public Service summoned the executive committee of FEDECA to an audience on 6 October 1983, during the course of which it was promised that FEDECA would be allowed to participate in the negotiations because they concerned matters relating to the reform of the public administration. The complainant points out that it discovered to its surprise, and without it having been so far invited to any kind of negotiation, that some of the items for discussion such as the application of specific wage concepts, the new preliminary draft of a bill to reform the public service and the bill regulating trade union membership and the right of officials to strike had been resolved and that the first of these had already been sent by the Government to Parliament. Since these matters - as well as that respecting the incompatibility of interests of public officials (upon which FEDECA was not even consulted) - are matters normally covered by collective bargaining (Article 2 of ILO Convention No. 154), the complainant considers that it is clear that the line of action followed by the Minister of the Presidency of the Government and the Secretary of State for the Public Service is a continued infringement of Articles 5, 7 and 8 of Convention No. 154.

&htab;54.&htab;Furthermore, the complainant alleges that the official information media (official press, radio, television, etc.) distorted reality by depicting the trade union which supports the Government, and is an offshoot of its political party (FSP-UGT), as a "protagonist and champion of benefits" gained for officials during the course of the negotiations which the complainant was not permitted to attend. In addition, the complainant alleges that although the number of public servants who are members of the FSP-UGT is very small, a very high proportion of them have been granted leave of absence for trade union duties. This means that they receive their emoluments as officials and provide their services to the above-mentioned trade union and not to the State which constitute "measures which tend to strengthen workers' organisations dominated by an employer". In the case of public officials the employer is the State, which is directed by the Government. Hence the circumstances denounced above may be considered as an infringement of Article 2 of ILO Convention No. 98.

&htab;55.&htab;The complainant also alleges that the participation framework to be established under the "preliminary draft of a bill to reform the public service" clearly contradicts the spirit and letter of Article 5 of Convention No. 151 by prescribing, in section 6, that the participation of staff employed of the public administration must be channelled through an institutional body (the Superior Council of the Public Service), in which the representatives of the employers (Government, autonomous regional and local authorities) are three times as numerous as workers' representatives and which, moreover, lacks any real decision making powers. The complainant adds that this situation must be taken in conjunction with section 6 of the bill regulating freedom of association which reads as follows:

&htab;"Section 6.

&htab;1.&htab;The most representative status recognised to specific trade unions confers upon them a unique legal position with regard to both institutional participation and trade union action.

&htab;2.&htab;The most representative trade unions at the national level shall be:

&htab;(a) Those which cater to a special audience, as expressed through the attainment at the national level of 10 per cent or more of the total number of staff delegates, of the members of the works' councils or the corresponding bodies of the public administration. &htab;(b) Trade unions or trade union bodies which are affiliated to or are a federation or confederation of a national trade union organisation enjoying the most representative status as defined in paragraph (a). &htab;3.&htab;Organisations enjoying the most representative status as defined above shall enjoy this status at all territorial and functional levels as regards:

&htab;(a) Institutional representation before public administration bodies or other bodies and agencies of the State or autonomous regional authorities endowed with such representation.

&htab;(b) Collective bargaining in the terms provided by the Worker's Statute through their participation in the committees which negotiate the agreements.

&htab;(c) Participation in the determination of conditions of employment in the public administration through the appropriate consultation or negotiation procedures.

&htab;(d) The establishment of trade union branches and the development of trade union action in the work centres in the framework of and with the guarantees provided by this Act and the Workers' Statute, without prejudice to the provisions contained in collective agreements.

&htab;(e) The collective exercise of the right to strike as well as the adoption of collective dispute measures within the legally established framework.

&htab;(f) Participation in the non-juridictional machinery for the settlement of labour disputes.

&htab;(g) The holding of elections for staff delegates and works councils and the corresponding bodies of the public administration.

&htab;(h) Any other representative function as may be established."

The complainant organisation believes that both these provisions will result in the representation of public officials on the Superior Council of the Public Service being systematically denied to the democratically elected representatives of the officials and being assumed by persons appointed by trade union organisations which had obtained practically no votes from the workers concerned. This situation is particularly serious when the State is the employer and where there exists, as is the case in Spain, a powerful trade union which maintains political links with the party in power.

&htab;56.&htab;Finally, the complainant points out that the bill regulating freedom of association excludes the establishment of trade unions for workers employed on their own account who do not have other workers in their service.

&htab;67.&htab;As regards the exclusion of FEDECA from the negotiations on the reform of the public service (dealing, inter alia, with hours of work and remuneration of officials; the preliminary draft of a bill to reform the public service; bill regulating trade union membership and the right of officials to strike; and incompatibility of interests of officials), the Committee notes that according to the Government, since March 1982 the principal central trade union organisations which cover public servants (CSIF, FSP-UGT and CCOO), have been representing officials vis-à-vis the executive bodies of the state administration. These organisations always appear well placed, with relatively homogenous and significant results in various sectoral elections held in the public administration and have clearly global and widespread capacities as compared with the other associations of officials which figure prominently in electoral results for specific administrative bodies, which shows once again their sectoral and specific character. The Committee also notes that in the 1983 trade union elections in the public administration, 45.4 per cent of the 3,537 staff representatives elected came from the UGT, whereas 31 per cent came from the CCOO.

&htab;68.&htab;On previous occasions, the Committee has stated that the mere fact that legislation or practice in a country draws a distinction between the most representative trade union organisations and other organisations for the purposes of granting certain privileges or advantages to the former, for example, regarding representation or consultation, is not in itself a matter for criticism, nor does it give rise to objections from the viewpoint of the principles of freedom of association, provided that such a distinction is based on objective criteria, such as majority of members, and that the fundamental rights and guarantees of the less representative organisations are not brought into question [see 217th Report, Case No. 1061 (Spain), para. 133]. In this respect, the Committee notes that according to the annexes sent by the complainant organisation (FEDECA), this organisation represents approximately 7,500 of the almost 12,000 public servants employed in 26 senior administrative bodies (state lawyers, career diplomats, highway engineers, technicians of the state civil administration, etc.). The Government has pointed out moreover that the scope of FEDECA, as defined by its own statutes, covers those public servants who must hold advanced university qualifications.

&htab;69.&htab;In these circumstances, in view of the number of public servants affiliated to the member associations of FEDECA (7,500, a very small number when compared with the total number of Spanish public servants), and since the organisation, apart from stating without further detail that FSP-UGT has a very small number of public servant members, has not produced any proof to contradict the Government's statement that the three organisations invited to participate in the negotiations on matters relating to the public service (CSIF, FSP-UGT and CCOO) are the principal central trade union organisations covering public servants and which have, in comparison with the other public servants' associations, clearly global and widespread capacities, the Committee considers that the non-participation of FEDECA in the above-mentioned negotiations does not appear to infringe the principle in question.

&htab;70.&htab;With regard to the complainant's allegation that the official information media presented the FSP-UGT as a "protagonist and champion of benefits" gained for officials during the negotiations, the Committee observes that the complainant has not supplied examples of the information which it criticises and that the trade union organisation to which it refers was in fact one of the negotiating organisations. In these circumstances, and noting the information supplied by the Government, the Committee concludes that there are no grounds enabling it to conclude that there has been any infringement of the principles of freedom of association.

&htab;71.&htab;As regards the allegation that despite the small number of officials who are members of FSP, a very high proportion of them have been granted leave of absence for trade union duties, the Committee notes that the Government has not replied to this. However, since the complainant has not indicated what proportion of members and trade union leaders enjoy such leave of absence within FSP-UGT and other organisations, the Committee is not in a position to come to any conclusion on this allegation.

&htab;72.&htab;Finally, as regards the provisions of the bills referred to by the complainant, the Committee notes that according to the Government, the Superior Council of the Public Service, provision for which is made in section 6 of the bill to reform the public service, is a deliberative and advisory body without decision-making powers responsible for co-ordination between the public administration, and that it is not a body empowered to negotiate in the sense used in Article 7 of Convention No. 151. The Committee also notes that the Government states that the legislation to implement the bill regulating freedom of association will establish the representative bodies of the public administration and that this legislation will take into account the provisions of Convention No. 151. In the light of the explanations given by the Government, the Committee considers that the fact that under section 6 of the bill to reform the public service, the representatives of the Government, the autonomous regional and local authorities are several times more numerous than the representatives of the workers does not bring into question the principles of freedom of association. In the same way the Committee considers that the text of section 6 of the bill regulating freedom of association does not infringe the above-mentioned principle as regards the privileges or advantages concerning representation or consultation.

&htab;73.&htab;As regards section 3(1) of the bill regulating freedom of association ("persons employed for their own account who do not have workers in their service may become members of trade union organisations established in accordance with the provisions of the present Act, but may not establish trade unions which are specifically designed to protect their individual interests"), the Committee notes that this section recognises in any case the right of this category of workers "to establish associations under this specific legislation". In these circumstances, the Committee considers that this provision does not infringe the principles contained in Convention No. 87.

&htab;74.&htab;In the circumtances, the Committee recommends the Governing Body to decide that this case does not call for further examination.

&htab;75.&htab;The complaint is contained in a communication from the Committee of Trade Union Unity of El Salvador, dated 11 June 1984. The Government replied in a communication of 4 December 1984.

&htab;76.&htab;El Salvador has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;77.&htab;In its communication of 11 June 1984, the complainant alleges that the Judge of the Court of the First Instance in the district of Metapán (Department of Santa Ana) had declared illegal the strike carried out by the workers of the "Cemento de El Salvador, S.A." undertaking (CESSA), ordering an end to the strike by 10 June and the massive dismissal of workers.

&htab;78.&htab;In its communication of 4 December 1984, the Government transmits a copy of a full and detailed report drawn up by the General Director of Labour of the Ministry of Labour and Social Affairs on the collective dispute which had arisen in the undertaking "Cemento de El Salvador, S.A." (CESSA). The following information is contained in this report:

- On 21 May 1984, the workers in the undertaking "Cemento de El Salvador, S.A." decided to down tools as from seven o'clock because of the various labour problems existing in the undertaking; at a meeting between the representatives of the Trade Union of the El Salvador Cement Industry and the legal representative of the undertaking "Cemento de El Salvador, S.A.", held on the same day at 2 p.m. at the General Labour Directorate, the workers referred to these problems and requested the following: (a) the reinstatement of the worker Santos Humberto Aldana; (b) negotiations on wage increases; (c) the dismissal of the plant Superintendent, the engineer Miguel Peralta, and the Head of the Administration, David Pérez Vanegas; (d) strike pay; and (e) that there should be no reprisals for having taken part in the present strike. At this same meeting, the undertaking's legal adviser explained that the decision to dismiss the worker Santos Humberto Aldana was being upheld, as he had infringed the relevant provisions by not obeying orders to carry out a job; furthermore, in accordance with agreements signed by the undertaking and trade union on 11 April of the current year, the former is entitled to dismiss persons for infringing the legal provisions laid down in the Labour Code, in the internal regulations or in the collective labour agreement; this is a right conferred by law upon the undertaking that may not be waived.

- On 5 June 1984, the Judge of the First Instance of Metapán declared that the strike was illegal because the trade union had not brought the "collective dispute of an economic nature" before the General Labour Directorate, as laid down in the Labour Code, to request that the collective labour agreement between the trade union and the CESSA undertaking should be reviewed.

- After several meetings between representatives of the Trade Union of the El Salvador Cement Industry and the CESSA undertaking (which, on 30 May 1984, had guaranteed that no reprisals would be taken against the workers on strike), a meeting was held on 8 June 1984 in the office of the Ministry of Labour, attended by members of the Union's bargaining committee, members of the undertaking's Board of Management and - representing the Secretary of State of Labour - the Minister and Vice-Minister of Labour, the General Director of Labour and the General Labour Inspector; this meeting gave the following results: "both parties agreed to come to a total and final agreement on the present dispute, on the following terms: first, David Pérez Vanegas, Head of the Administration, would be temporarily transferred to the plant in Metapán and a tripartite committee (undertaking, workers and Ministry of Labour) would carry out an inquiry into his conduct and submit its conclusions at a later date. Second, with respect to strike pay, the undertaking offered to pay each worker an incentive equivalent to five days' wages. It will also, if the worker wishes, grant a loan up to a maximum of 14 days' wages, which is interest-free and repayable every 14 days up to a maximum period of three months. Third, the undertaking formally agreed not to take any reprisals, either de facto or de jure , against the workers who had taken part in the present dispute. Fourth, both parties agreed to meet on 15 June, to discuss the case of the worker José Santos Aldana and to continue wage negotiations in accordance with the schedule of meetings already agreed upon. Similarly, on the eleventh of this month, they agreed to inform the Ministry of Labour of the persons who will make up the committee of inquiry, to which the first point of the agreement refers. Fifth, the trade union representatives undertook to call off the strike immediately and inform all those workers outside the plant, so that work would be normally resumed at seven o'clock on 9 June of the current year. At 11.30 on 11 June 1984, the trade union appeared before the court to fulfil the first part of the agreement; on 12 June 1984, the undertaking did the same, by means of a statement it submitted."

&htab;79.&htab;The Committee notes that in the present case, the complainant alleges that, on 21 May 1984, the legal authorities declared illegal the strike called by the workers in the undertaking "Cemento de El Salvador, S.A." (CESSA) and ordered the massive dismissal of the workers.

&htab;80.&htab;The Committee notes that, according to the Government, the strike was declared illegal because the trade union had not brought what it calls a "collective dispute of an economic nature" before the General Labour Director, thus failing to comply with the provisions contained in the Labour Code. The Committee also notes that on 8 June 1984, thanks to the intervention of the authorities of the Ministry of Labour and Social Affairs, the parties to the dispute reached an agreement putting an end to the dispute and that, in particular, the undertaking agreed not to take reprisals against the workers who had taken part in the strike and the trade union undertook to call off the strike. The Committee also notes from the Government's account of these events that it appears that the undertaking did not dismiss any workers during the strike.

&htab;81.&htab;In these circumstances, since the collective dispute has been settled in a manner satisfactory to both parties, the Committee considers that this case does not call for further examination.

&htab;82.&htab;In these circumstances, the Committee recommends the Governing Body to decide that this case does not call for further examination.

&htab;83.&htab;The complaint from the International Transport Workers' Federation against the Government of Greece is contained in a communication dated 17 October 1984. The Government replied in a communication of 1 December 1984.

&htab;84.&htab;Greece has ratified both 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).

&htab;87.&htab;The Government explains that the trade union in question had failed to abide by the legal procedure with respect to the renewal of collective agreements; requisitioning had taken place following the said federation's decision not to respect the legal procedure and to refuse to comply with the procedure for settling collective agreements laid down in Act No. 3239 of 1955.

&htab;88.&htab;The Government explains that, under this legislation, the parties (employers and workers) may settle labour disputes themselves but, if it proves impossible to reach an understanding, they may apply to the Ministry of Labour for its mediation (section 2(4) of Act No. 3239 of 1955).

&htab;89.&htab;It adds that, in this case, the Minister's role is restricted to finding a solution of conciliation and, if this fails, the parties are bound to submit the matter for arbitration. If the dispute is referred to the arbitration tribunal, any attempt by the parties to force a settlement of the dispute in their favour by a stoppage or evident slow-down of work is prohibited for a period of 45 days, or 60 days where an appeal has been made (section 18(2)).

&htab;90.&htab;Not only had the trade union in question (OSPA) failed to respect the procedure, it also stated that it would not abide by the law. The Government therefore states that, at the initial stage, the workers' contracts were terminated as they had infringed the law (section 18(3), subparagraph 1) and penal actions were brought against the authors of the strike (section 18(2), (3) and (4)). However, the Government states that, at a later stage, it acted with leniency and did not impose penalties. It even ruled that strikes of this nature should no longer be subject to penalties, by repealing the provisions contained in section 18(3), subparagraphs 2, 3 and 4 of Act No. 3239 of 1955. Furthermore, the dialogue between Olympic Airways and the OSPA has been resumed and a collective agreement has been signed and promulgated by the Order YPA 49 527/1699 of the Minister of Transport, putting an end to the requisitioning.

&htab;91.&htab;The Committee notes that this case concerns a labour dispute which occurred between the management of Olympic Airways and the Association of Flight Engineers (OSPA) concerning the renewal of the collective agreement in this sector for 1984 and that, according to the Government, a collective agreement has now been signed, thereby putting an end to the dispute. The Committee also notes with interest that the provisions of Act No. 3239 of 1955, which enabled penal action to be brought against workers who went on strike while conciliation and arbitration procedures were in process, have been repealed by Act No. 1483 of 1984 (section 21).

&htab;92.&htab;In view of the above and especially taking into account that this labour dispute has been settled by the signing of a collective agreement for this occupational category and that the striking workers have not been penalised, the Committee considers that this case does not call for further examination.

&htab;93.&htab;In these circumstances, the Committee recommends the Governing Body to decide that this case does not call for further examination.

&htab;94.&htab;The Committee has examined this case on various occasions [see 208th Report of the Committee, paras. 371 to 391; 218th Report, paras. 437 to 466; and 233rd Report, paras. 214 to 317, approved by the Governing Body at its 216th, 221st and 225th Sessions in May-June 1981, November 1982 and February-March 1984 respectively], most recently at its May 1984 meeting [see 234th Report of the Committee, paras. 418 to 431, approved by the Governing Body at its 226th Session in May-June 1984], when it presented an interim report. The Government sent certain information by a communication of January 1985.

&htab;95.&htab;Nicaragua has ratified both 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).

&htab;96.&htab;When the Committee examined the case at its May 1984 meeting it made the following recommendations in respect of the allegation that remained pending (relating to the death of Mr. Jorge Salazar Argüello, Vice-President of the Managing Board of Private Enterprises (COSEP)):

(a) The Committee expresses its surprise at the contradiction between the judgement of 1 March 1982 (according to which the Vice-President of COSEP, Mr. Jorge Salazar, fired first against the state security patrol and died in the ensuing exchange of fire) and the Government's two communications, dated respectively before and after this judgement (in which it is explicitly and implicitly recognised that Mr. Salazar was unarmed at the time of the events); this all the more so since the judgement was only transmitted by the Government nearly two years after being handed down. It urges the Government to explain this contradiction and this delay.

(b) The Committee requests the Government to indicate whether the judgement of 1 March 1982 is considered final and whether there was a possibility to appeal this decision or whether it was subject to automatic review.

&htab;97.&htab;As regards the contradiction referred to by the Committee in paragraph (a) of the recommendations which it made at its May 1984 meeting, the Government states that the remarks of a government official, even of a minister, cannot be regarded as incontrovertible evidence; still less can they be compared with the legal force of a judgement handed down by a court containing a statement made by one of the principal protagonists in the events concerned. Only those who were present at the place at which the facts occurred can attest to what took place there. According to the Government, Mr. Moncada Lau, Mr. Salazar's chief accomplice, clearly establishes in his statement that the latter was armed and that, out of an instinct of self-preservation (according to the words used by Mr. Moncada Lau himself) he opened fire on the patrol under the impression that it belonged to the State Security Services, undoubtedly motivated by the full knowledge of the offence which he was committing at that moment, namely the illicit transport of arms.

&htab;98.&htab;The Government nevertheless observes that the fact of Mr. Salazar's being armed or unarmed is a detail which it is not for the Committee to examine; this is a penal matter whose constituent elements have to be analysed by the courts of law of the land for the purpose of passing judgement.

&htab;99.&htab;The Government also states that the judgement passed in the case of Mr. Salazar clearly proves that the case involves problems of the country's internal policy, and that a group of individuals led by Jorge Salazar were organising a conspiracy against the Government and its authorities. In no country could Mr. Salazar's activities at that time have been described as activities in defence of occupational interests. To admit that the illicit transport of arms and conspiring against the Government are aims of either workers' or employers' organisations would lead one onto very dangerous ground, would totally vitiate the spirit of Convention No. 87 and would consequently enable organisations to depart from their basic aims. The Government considers that the facts referred to in no way constitute a violation of its undertakings regarding freedom of association.

&htab;100.&htab;Lastly, in response to the Committee's request for information, the Government states that the possibility of an appeal existed, as was established in the judgement of 1 March 1984. Nevertheless, since the defendant did not have recourse to this means of redress within the legal time-limit, the judicial authority ruled that the judgement was final; it thus had the authority of a decided case. In any case, the Nicaraguan system does not provide for automatic review before a higher instance.

&htab;101.&htab;The Committee notes that the Government, in its reply of January 1985, fully endorses the version of the circumstances surrounding the death of Mr. Jorge Salazar Argüello, Vice-President of COSEP, accepted by the judicial authority in its judgement of 1 March 1982, namely that Mr. Salazar was the first to fire against the state security patrol following which he lost his life. The Committee also observes that the Government gives a contradictory version of the facts originally given by it, according to which Mr. Salazar was unarmed at the time the events took place, stating that the comments of a government official, even a minister, cannot be regarded as incontrovertible evidence, still less be compared with the legal force of a judgement handed down by a court.

&htab;102.&htab;As regards the Government's statement that it is not for the Committee to examine whether Mr. Salazar was armed or unarmed, the Committee must stress that an examination of the circumstances surrounding this death is, on the contrary, essential in determining the facts with precision and in reaching a fully informed decision on the allegations made.

&htab;103.&htab;The Committee notes and expresses its surprise that the Government has retracted its statements which had been previously made by the Minister of the Interior, regarding the circumstances surrounding the death of Mr. Salazar Argüello. At the same time it deplores that the Government has not given any reasons for the long delay in sending the judgement of 1 March 1982 concerning the death of Mr. Salazar, which the Government only transmitted almost two years after it was handed down. In these circumstances the Committee considers that the continuing climate of uncertainty and doubt regarding the circumstances surrounding the death of Mr. Salazar cannot but have a detrimental influence on labour relations and on the trust which must prevail in occupational organisations if freedom of association is to be exercised.

&htab;104.&htab;Lastly, the Committee notes that the possibility of appealing against the judgement of 1 March 1982 existed, but that since the defendant made no use of this possibility the judgement remained final.

&htab;106.&htab;The complaint is contained in a communication from the World Federation of Trade Unions dated 20 April 1984. The Government replied in a communication of 7 November 1984.

&htab;107.&htab;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).

&htab;108.&htab;The complainant alleges that the Chilean regime declared a state of emergency on 24 March 1984, a few days before the massive mobilisation of the people which had been called by the National Command of Workers in the form of a national day of protest which was held on Tuesday, 27 March, and the meeting of a National Assembly of Leaders of first-level trade unions on Saturday, 14 April, which was to fix a date for a national strike.

&htab;109.&htab;The complainant alleges that, as a preventive measure, their comrades Benedicto Altamirano Flores, Pedro Ahumada Pizarro, Mauricio Arriagada Figuroa, Luis Gatica Hernández, Macimiliano Guriérrez Ponce, José Rodríguez Vidal, Javier Zúñiga Seguel, Mauricio Candia Yáñez, Pablo Candia Yáñez, Pedro Gutiérrez Reyes, Gustavo Meneses Seguel, José Rivera Carrión, Javier Rodríguez Irabuco, Alejo Catril and Dimas Galaz Segovia were arrested by the security services on Friday, 23 March, at 12.30 a.m. and banished on Thursday, 29 March, having been accused by the Ministry of the Interior of participating in the protest of 27 March.

&htab;110.&htab;Furthermore, the complainant alleges that, since 24 March 1984, the security services have been looking for José Figueroa, head of the International Relations Department of the National Federation of Workers of the Building, Timber, Building Materials and Related Activities, who has been obliged to go into hiding. Other trade union leaders are in a similar situation.

&htab;111.&htab;The Government states that in pursuance of Extraordinary Decree No. 4514 dated 29 March 1984 of the Ministry of the Interior, the persons mentioned by the complainant were banished for 90 days to various regions in the northern zone of the country. The measure was made in pursuance of the extraordinary powers granted under Article 24 (transitory provision) of the Political Constitution of the Republic in the event of a disturbance of the public order and peace. The Government adds that under Extraordinary Decrees Nos. 4566 dated 18 April 1984, 4571 dated 24 April 1984 and 4615 dated 31 May 1984, the measures which had been imposed on Messrs. Mauricio Candia Yáñez, Pablo Candia Yáñez, Alejo Catril Licanqueo and Dimas Galaz Segovia were lifted before the end of 90 days. As regards the other persons concerned, the period of 90 days has long since elapsed and they are now once again in full possession of their freedom of movement.

&htab;112.&htab;The Government also states that the measure adopted was not designed to restrict freedom of association and was in no way related to trade union activities.

&htab;113.&htab;Finally, as regards the clandestine activities allegedly pursued by Mr. José Figueroa, the Government states that it has no information on this matter precisely because of the clandestine nature of these activities.

&htab;114.&htab;As regards the alleged detention and subsequent banishment of 15 persons, the Committee observes that, according to the complainant, these persons were temporarily arrested as a preventive measure on 23 March 1984 and were subsequently banished (29 March) having been accused of participating in the national day of protest held on 27 March 1984. The Government, however, makes no reference to the arrest and points out that the measure of banishment to various regions in the north of the country (under a Decree dated 29 March 1984) was based on Article 24 (transitional provision) of the Constitution following the disturbance of public order and peace and was in no way related to trade union activities.

&htab;115.&htab;In this respect, the Committee notes that the complainant has given no details concerning the nature and purpose of the national day of protest of 27 March 1984 called by the National Command of Workers or concerning the manner in which the 15 banished persons participated in the protest (in particular, whether they acted peacefully or not). It also observes that the complainant, in its reference to these persons, does not use the term trade union leader or trade unionist but "comrades". It must nevertheless regret the fact that the Government has not indicated the specific acts which led to the banishment of these persons and that it has simply confined itself to stating generally that this measure was in no way related to trade union activities and that it was taken because of a disturbance of public order and peace.

&htab;116.&htab;In these circumstances, in the absence of any detailed information from the complainant and the Government as to the circumstances which resulted in 15 persons being banished, and having regard to the fact that several months have now elapsed since the measures in question ceased to apply, the Committee would point out that the banishment of trade union leaders or trade unionists on account of their trade union activities is incompatible with the principles of freedom of association.

&htab;117.&htab;As regards the allegation that the security services have been looking for the trade union leader José Figueroa since 24 March 1984 and that as a result he has been obliged to go into hiding, the Committee notes the Government's statement that it has no information on this matter because of the clandestine nature of the activities of the leader in question. In these circumstances, since the complainant has given no information on the reasons why a search is being made for this trade union leader, the Committee considers that this allegation does not require further examination.

&htab;118.&htab;In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusions:

(a) The Committee notes that the Government makes no reference to the alleged temporary arrest of 15 persons who were subsequently banished.

(b) The Committee draws the Government's attention to the fact that the banishment of trade union leaders or trade unionists on account of their trade union activities is incompatible with the principles of freedom of association.

&htab;119.&htab;By a communication dated 2 May 1984, the Union of Workers in the Manufacturing Establishments of the Armed Forces presented a complaint of violation of trade union rights in Portugal. On 8 June 1984 the complainant organisation transmitted certain additional information. The Government sent its observations in a communication of 19 October 1984.

&htab;120.&htab;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).

&htab;126.&htab;In its reply, the Government confirms that a procedure to register the Union of Workers in the Manufacturing Establishments of the Armed Forces was initiated with the Ministry of Labour and Social Security on 24 June 1983. After verification of the formal legality of the by-laws, the latter were registered and sent for publication.

&htab;127.&htab;Subsequently, on 8 November 1983, the Vice Prime Minister and the Minister of National Defence notified the Minister of Labour that, following a more detailed analysis of the procedure, the establishment of this union was to be deemed unlawful.

&htab;128.&htab;On 4 November 1983 the Secretary of State for Labour requested an opinion of the Public Prosecutor of the Republic on the legality of a trade union association of this nature and on the procedure followed by the Ministry of Labour. This opinion, which was sent to the Secretariat of State for approval on 14 June 1984, concludes that "neither the Constitution nor the legislation place any obstacles in the way of establishing trade union associations representing exclusively the civilian workers in the manufacturing establishments of the armed forces".

&htab;129.&htab;By an Order of 7 July 1984 the Secretariat of State for Labour decided that the analysis of the Public Prosecutor's opinion by the Ministry of National Defence should be awaited before a ruling was made. Finally, the Vice Prime Minister and the Minister of National Defence, by Order No. 62/MDN/84, refused to endorse the opinion of the Public Prosecutor of the Republic and confirmed the illegality of the establishment of the Union of Workers in the Manufacturing Establishments of the Armed Forces. The act of registration was accordingly annulled.

&htab;130.&htab;The Government explained its decision by stating that the exercise of the right of association in the armed forces is necessarily subject to special regulations which ensue from the organisation and operation of an institution whose mission is the military defence of the Republic. It points out that civilian personnel, although different from military personnel, are quite obviously concerned in the accomplishment of the specific missions of the armed forces, of which they are an integral part. Civilian personnel are therefore subjected to military organisation, in particular to lines of command, cohesion and discipline.

&htab;131.&htab;The establishment of a trade union of such personnel, therefore, requires a legal basis, both from the point of view of ordinary legislation and from that of the direct application of the constitutional provisions. The latter should not be considered separately, but should be read in conjunction with the provisions concerning national defence and the armed forces. In particular, the establishment of such an organisation cannot be subject to the general principles governing trade unionism. It should therefore not be registered, and its by-laws should not be published, since Legislative Decree No. 215-B/75 does not apply to it; even if it did apply, registry and publication could not be granted since the administration cannot commit illegal acts.

&htab;132.&htab;In fact, continues the Government, any vertical trade union structure of the civilian personnel of the armed forces is inadmissible, since it would conflict with the unified command which is inherent in the function of the armed forces, whose task is to ensure the military defence of the Republic (article 275 of the Constitution). The establishment of a trade union of this type would therefore be unlawful, and its consequences might even be very serious.

&htab;133.&htab;Furthermore, states the Government, under the Regulations Governing the Organisation and Operation of Workers' Committees of Manufacturing Establishments in the Armed Forces, trade union activities which might compete with the functions of workers' committees, and activities which might be prejudicial to military organisation or to the preservation of the values of which the latter is the embodiment, are not authorised within the armed forces.

&htab;134.&htab;In conclusion, the Government considers that its attitude in this case violates neither Convention No. 87, nor the Constitution, nor Portuguese legislation.

&htab;140.&htab;In these circumstances, the Committee recommends the Governing Body to approve the present report, and in particular the following conclusions:

(a) the Committee considers that the civilian workers in the manufacturing establishments of the armed forces should have the right to establish organisations of their own choosing without previous authorisation, in conformity with Convention No. 87 ratified by Portugal;

(b) the Committee accordingly requests the Government to take steps as early as possible to enable the complainant union to be duly registered thereby enabling it to perform in a normal and lawful manner its activities for the defence and promotion of the interests of its members.

&htab;152.&htab;The complaint of the Monserrat Allied Workers' Union (MAWU) is contained in a communication dated 18 July 1984; the complainant supplied additional information in a communication dated 17 August 1984. The Government supplied its observations in a letter dated 4 January 1985.

&htab;153.&htab;The United Kingdom 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) and has declared them applicable without modifications to Montserrat.

&htab;154.&htab;In its communication of 18 July 1984 the MAWU states that, on 25 June 1984, during a strike by water and electricity authority employees over pay increases to be included in a new collective agreement, the Governor declared a state of emergency and, on 29 June 1984, convened a special emergency session of the Legislative Council to pass strike-breaking legislation. The complainant provides a copy of the Bill, the Essential Services Ordinance, the pertinent sections of which read as follows:

&htab;Section 2.

&htab;(1) Every person employed in an essential service who wilfully breaks or terminates his contract of service, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to deprive the public, wholly or to a great extent of that service, shall be guilty of an offence and on summary conviction thereof be liable to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and imprisonment: provided that where any collective withdrawal of labour from an essential service is contemplated, whether in pursuance of a trade dispute or otherwise, and notice in writing of their intended participation in such withdrawal is given either individually by persons employed in that service or on their behalf by a registered trade union or registered trade union of which such persons are members, any such person shall not be liable under this subsection unless he breaks or terminates his contract of service before the expiration of the period of twenty-eight days next following delivery of that notice, or otherwise than strictly in accordance with the valid terms of that notice. [...]

&htab;(3) Every person who incites or instigates or in any way encourages, persuades or influences a person employed in an essential service to break or terminate his contract of service, ... shall if breach or termination of contract has taken place: &htab;&htab;(a) without notice having been given as provided in the proviso to subsection (1) of this section; or &htab;&htab;(b) such notice having been given, and remaining valid otherwise than on the expiration of that notice not being earlier than twenty-eight days after delivery thereof; be guilty of an offence and shall, on summary conviction thereof, be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

Under section 2(7) "essential services" are listed as including air traffic (including meteorology, telecommunications, security, fire and crash services connected with airports), electricity, fire, medical and health, telecommunications, water and ports. Under section 2(8) the Governor in Council may amend this list of essential services.

&htab;155.&htab;In addition, the complainant alleges that it was the Government's intention to cripple the general workers' unions by restricting through legislation the categories of workers which any single union could represent.

&htab;156.&htab;Lastly, the MAWU states that Government's proposals put to the legislature included: breaking the current strike by compelling the workers to return to work on pain of dismissal without compensation; striking workers were to be asked to sign a document saying they would not abide by their own work-to-rule vote on pain of dismissal without compensation; any person found damaging water mains should be shot on sight; workers were to be forced back to work under the supervision of the police and defence forces; the state of emergency would remain in force until electricity and water supplies were back to normal.

&htab;157.&htab;In its communication of 17 August 1984, the MAWU alleges that on 25 June 1984 the Executive Council invoked section 16 of the Water Authority Ordinance, 1972, to direct all employees of the authority to return to their normal work by the next day. Section 16 reads as follows:

In the exercise of its powers and the discharge of its functions under this Ordinance, the authority shall conform with any general or special directions given to it by the Governor in Council.

It states that the Essential Services Bill had passed its first reading and may be finalised shortly against strong protest from all workers and the local Council of Churches.

&htab;158.&htab;In documentation attached to its letters the MAWU challenges the reasons given by the Government for introducing the Bill: it admits that there were water shortages, that some pipes - installed before 1920 - burst under the build-up of pressure in the water system and there were signs of vandalism. It denies, however, that there was a national crisis or violence which might justify such action. In the documentation it is even suggested that other persons having an intimate knowledge of the water system could have been responsible for the damage to water installations. The water authority and electricity authority finally negotiated agreements with their employees and on 29 June 1984 the MAWU ended the strikes; according to the documentation, workers continued to work to rule for some days while a final agreement was reached.

&htab;165.&htab;This case concerns the introduction of an Essential Services Bill during a strike by water and electricity workers in June 1984, as well as allegations that proposals were made to limit union membership and striking workers were compelled to return to work on pain of dismissal without compensation.

&htab;166.&htab;The Committee notes that the Government's proposal to discuss limiting secondary action by restricting union membership was not pursued and therefore considers that no purpose would be served in examining this aspect of the case.

&htab;167.&htab;The Committee would recall that recourse to strike action is a legitimate means available to workers and their organisations for the promotion and protection of their economic and social interests. However, as regards the Essential Services Bill referred to in the complaint, and which, the Committee notes, was introduced in the legislature on 18 July 1984, the Committee observes, first, that the Bill does not ban strikes but imposes a cooling-off period of 28 days. This in itself is not in conflict with the principles of freedom of association in so far as the procedure is not so cumbersome as to render the lawful strike impossible in practice [see General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations , ILC, 1983, Report III (Part 4B), para. 219].

&htab;168.&htab;As regards the nature of the services to which the Bill applies, the Committee would point out that it has, in the past, considered that strikes can be limited - or even prohibited - in essential services in the strict sense of the term, for example, air traffic control [see 211th Report, Case No. 1074 (USA), para. 365], medical and health [see 199th Report, Case No. 910 (Greece), para. 117] and water [see 234th Report, Case No. 1179 (Dominican Republic), para. 299] that is to say where the interruption of these services would endanger the life, personal safety or health of the whole or part of the population. Restrictions in such services should be offset by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.

&htab;169.&htab;In the past, the Committee has expressed the opinion that services such as ports (118th Report, Case No. 589 (India), para. 90) and telecommunications (218th Report, Case No. 1131 (Upper Volta), para. 779) were not essential in the strict sense of the term and accordingly strike restrictions should not apply to them. Given that the Essential Services Bill in the present case lists these latter services as essential and empowers the Governor in Council to amend the list, the Committee would request the Government to consider the possibility of removing the authority of the Governor in Council to amend the list at his discretion and of removing from the Bill those services that are not strictly essential, having regard to the above definition. The Committee refers this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.

&htab;170.&htab;As regards the role of the police and defence forces during the industrial dispute, the Committee notes the Government's explanation that police officers only were used during the nine-day long emergency to protect water and electricity installations. In this connection, the Committee also notes that the complainant acknowledged that there had been signs of vandalism but challenged that this was attributable to the striking workers. In the past the Committee has recommended the dismissal of allegations concerning intervention by security forces when the facts show that such intervention was limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike [see 197th Report, Case No. 915 (Spain), para. 473]. In the present case the Committee notes that the information supplied by the complainants is insufficient to show that the role of the police in the present dispute exceeded that of maintaining order and protecting installations.

&htab;171.&htab;Lastly, and in general, regarding the declaration of a state of emergency during the strike, the Committee has stressed that special measures restricting the free exercise of trade union rights should be limited in time and scope to the immediate period of emergency [see 214th Report, Cases Nos. 997, 999 and 1029 (Turkey), para. 571]. In the present case, the Committee notes that the strike was called off by the water authority workers on 26 June 1984 in accordance with the special direction made under the Water Authority Ordinance and the electricity workers returned to normal work on 29 June 1984, the state of emergency being lifted on 3 July. In view of the fact that the emergency measures were limited to the duration of the dispute, and in view of the nature of the services to which the dispute related, the Committee considers that the allegations that trade union rights were infringed have not been substantiated.

&htab;172.&htab;In these circumstances, the Committee recommends the Governing Body to approve this report, and, in particular, the following conclusions:

(a) The Committee considers that the allegations concerning a proposal to limit secondary strike action and the circumstances surrounding the declaration of a state of emergency during the June 1984 strike by water and electricity workers do not call for further examination.

(b) The Committee recalls that recourse to strike action is a legitimate means available to workers and their organisations for the promotion and protection of their economic and social interests.

(c) As regards the introduction of an Essential Services Bill, the Committee requests the Government to consider removing the authority of the Governor in Council to amend the list of essential services at his discretion and to amend the list of essential services contained therein so as to ensure that the strike restrictions apply only to those services which are essential in the strict sense of the term, that is those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

(d) The Committee refers the above aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.

&htab;205.&htab;The Committee has examined this case on several occasions, the most recent being at its February 1984 meeting, when it presented an interim report to the Governing Body. [See 233rd Report, paras. 318 to 337, approved by the Governing Body at its 225th Session (February-March 1984).]

&htab;206.&htab;Since that time, the Government has submitted its observations in a communication received in the ILO on 18 January 1985.

&htab;207.&htab;Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;208.&htab;The complaints related to the death and injuries suffered by several hundred persons during demonstrations surrounding the 24-hour general strike called by the Democratic Confederation of Labour (CDT) on 20 June 1981; the arrest of trade unionists and in particular of national trade union leaders belonging to the CDT; the closure of the CDT premises; and dismissals in various sectors after the strike.

&htab;209.&htab;At its February-March 1984 Session, the Governing Body approved the following conclusions drawn up by the Committee:

- The Committee noted that all the trade union leaders referred to in the complaints had been released and that the country was preparing for legislative elections in early 1984 with, according to the Government, the full participation of trade unionists; the Committee requested the Government to confirm whether all the trade unionists who had been released had been able to resume their trade union activities.

- The Committee once again noted with profound regret that the Government had supplied no further information on the alleged death of numerous persons during the demonstrations that had taken place on the occasion of the 20 June 1981 general strike. The Committee again urged the Government to state whether a judicial inquiry had been held into the circumstances of these deaths and, if so, to inform it of the outcome of this inquiry. - As regards the allegations that two trade union headquarters remained closed under the 1981 decrees, the Committee recalled that the right to protection of trade union property was one of those civil liberties which are essential for the normal exercise of trade union rights; it requested the Government to take the necessary measures for the reopening of these premises and to keep it informed of developments in this regard.

- As regards the trade unionists who had participated in the 1981 strike, and who were still refused reinstatement in their jobs, the Committee recalled that when trade unionists and trade union leaders are dismissed for striking there are grounds for concluding that they have been penalised for their legitimate exercise of trade union activities and that they are subject to anti-union discrimination contrary to the principles of freedom of association; the Committee requested the Government to inform it of any measures that might be taken towards their reinstatement.

&htab;210.&htab;In its reply the Government states that the trade unionists who have been released are carrying on their trade union activities without restriction. It adds that the royal pardon decided with regard to the trade unionists enabled them to exercise their economic and political rights during the communal, municipal and trade union elections that were held in June 1983. Moreover, the General Secretary of the Democratic Confederation of Labour had the opportunity to take part in the work of the 70th Session of the International Labour Conference, and on 14 September 1984 all trade union groups were able to take part in the legislative elections in which all political and social tendencies are represented.

&htab;211.&htab;As regards the circumstances of the deaths which occurred during the demonstrations organised on the occasion of the general strike called by the CDT on 20 June 1981, the Government is of the opinion that the unfortunate consequences of these events have been adequately commented on at length in the replies previously sent to the Committee. It adds that there is no need to recall the tragic outcome of these demonstrations, since the situation has now become fully normal.

&htab;212.&htab;As regards the other conclusions of the Committee, the Government states that it has noted them and that measures have been taken to enable trade unions to exercise their trade union rights fully and in complete independence. It points out that the trade unionists who had participated in the demonstrations of 20 June 1981 and who were legally dismissed or suspended have now been reinstated in their jobs and that certain of them are at present sitting in Parliament following the most recent legislative elections.

&htab;213.&htab;The Committee notes the observations made by the Government in its latest reply. In particular, it notes that the trade unionists released following a royal pardon have been able to resume their trade union activities, and that those who were dismissed following the demonstrations of June 1981 have been reinstated in their jobs.

&htab;214.&htab;The Committee must, however, observe with regret that, despite its repeated requests, the Government has not indicated whether a judicial inquiry was made into the many deaths of workers that took place on the occasion of the general strike called by the CDT in June 1981. In these circumstances the Committee can only recall that it considers that events of such gravity should have led the authorities to take effective measures to elucidate the facts and determine responsibilities. It, accordingly, again requests the Government to state whether an inquiry has been carried out and, if so, to give information on the outcome.

&htab;215.&htab;The Committee also notes that the Government has confined itself to stating in general terms that measures have been taken to enable trade unions to exercise their trade union rights freely and in full independence, without stating specifically whether the two trade union offices closed under decrees adopted in 1981, have been reopened. The Committee must, therefore, recall the importance it attaches to the protection of trade union property. It expresses the hope that the two trade unions affected by this measure have now fully recovered the use of their premises, and requests the Government to supply information in this regard.

&htab;216.&htab;In these circumstances the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions:

(a) The Committee notes that the released trade unionists have been able to resume their trade union activities and that those who were dismissed have been reinstated in their jobs.

(b) The Committee observes with regret that the Government has not indicated whether a judicial inquiry had been made into the many deaths that occurred during the June 1981 demonstrations. It considers that events of such gravity should have led the authorities to take effective measures to elucidate the facts and determine responsibilities. It again requests the Government to indicate whether an inquiry has been carried out and, if so, to communicate the results thereof.

(c) The Committee recalls the importance it attaches to the protection of trade union property. It expresses the hope that the two trade unions affected by the closure of their headquarters have now fully recovered the use of their premises, and requests the Government to supply information in this regard.

&htab;217.&htab;The Committee has examined this case on three occasions [see 222nd Report, paras. 317 to 329, 233rd Report, paras. 214 to 317, and 234th Report, paras. 432 to 444, approved by the Governing Body at its 222nd, 225th and 226th Sessions in March 1983, February-March and May-June 1984 respectively]; on the last occasion it submitted an interim report to the Governing Body. The Government has sent certain information in a communication received in the Office in January 1985.

&htab;218.&htab;Nicaragua 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).

&htab;219.&htab;When the Committee examined the case at its May 1984 meeting it made the following recommendations on the allegations still pending [see 234th Report, paras. 443 and 444]:

The Committee again requests the Government to send its observations on the information given by the Central of Nicaraguan Workers (CTN) to the Director-General's representative on seven trade unionists (Mónico Fuentes, Nicolás González, Santos Ponce Santacruz, Victoriano Ramos, Agustín Canales, Saturnino López Centeno and Santos Larios Cornejo) who, contrary to what the Government maintains, are in prison [see 233rd Report, para. 287]. The Committee also requests the Government to send its observations on the other allegations of arrest to which it has not replied, involving the following 18 trade union leaders or members: Crescencio Carranza, Guillermo Salmerón Jiménez, Fidel López Martínez, Rito Rivas Amador, José Angel Altamirano, Mercedes Hernández, Reynaldo Blandón, Iván Blandón, Víctor Ríos, Erik Luna, José Angel Peñalosa, Napoleón Aragón, Eleázar Marenco, Juan Ramón Duarte and his brother, Maximino Flores Obando, Anastasio Jiménez Maldonado and Gabriel Jiménez Maldonado. The Committee again requests the Government to send its observations on the allegation that the Ministry of Labour has been recommending trade union organisations to join the Sandinista Central of Workers (CST) and that copies of by-laws of trade union organisations, on paper bearing the Ministry of Labour letterhead, have been deposited at the headquarters of the CST so that it can register the recently constituted organisations among its members.

The Committee observes that the Government has not replied to the allegation that the leader of the Trade Union of Dockers, Employees and Office Staff of Corinto Docks (SEEOMC), Mr. Alejandro Arnuero, who was to have taken part in a congress of the International Transport Workers' Federation in Brazil, had his passport withdrawn without any valid reason. The Committee requests the Government to send its observations on the matter.

The Committee again requests the Government to send the text of the final decision handed down in the matter of the alleged embezzlement of SEEOMC funds.

The Committee again requests the Government to send its observations on the allegations concerning the searching of the headquarters of the Federation of Workers of Chinandega (FETRACHI) and the use of aggression against its leaders. The Committee observes that the Government has not replied to the allegations that rural workers of Wasaca affiliated to the CTN have been interrogated and threatened with imprisonment and that Eugenio Membreño and other members of the CTN Executive Committee have been threatened and intimidated in their homes. The Committee requests the Government to send its observations on the matter.

&htab;220.&htab;The Government states that the Ministry of Labour is the prime guarantor of freedom of association in Nicaragua, which is enshrined in the Fundamental Statute of Rights and Guarantees of Nicaraguan citizens. This being so, it is logical that a policy of impartiality should be maintained towards the activities of trade unions and the various federations or confederations of workers existing in the country. Copies of by-laws or statutes have never been printed on paper bearing the Ministry of Labour letterhead for purposes of discrimination or selective registration. The workers' federations prepare the individual provisions best suited to their own interests within the spirit of the relevant legislation. If the allegation relating to the by-laws had any real foundation, it would be expected that the complainant party would have sent copies of the paper bearing the letterheads as evidence; if it did not do so it was because this allegation is genuinely unfounded and aims at diminishing the prestige of the Nicaraguan Government.

&htab;221.&htab;The Government also states that it will transmit the results of the embezzlement proceedings against SEEOMC as soon as the judgement is handed down; the passport of Mr. Alejandro Arnuero was not withdrawn, as is shown by the fact that he is at present living in Costa Rica.

&htab;222.&htab;The Government adds that on 23 September 1982, the State Security Service of the Second Region arrested Messrs. Javier Altamirano and Rosendo Solórzano, both of whom were engaged in acts against public order. The arrest was made at the headquarters of FETRACHI, where the said individuals had managed to conceal themselves after committing the offences mentioned. The Government stresses that their status as trade union leaders does not place them above the law or confer upon them immunity from penal sanctions; nor can the headquarters of a trade union organisation become a place of asylum from pursuit by the law. According to the Government, both these individuals were released after being held for a few days.

&htab;223.&htab;The Government points out that Messrs. Agustín Canales, Mónico Fuentes, Nicolás González, Santos Ponce, Victoriano Ramos, Saturnino López and Santos Larios Cornejo are neither trade unionists nor are they imprisoned. The first does not appear in the prison records, the second was released in February 1983 and the others in December 1983.

&htab;224.&htab;As regards the allegation relating to the imprisonment of the remaining 18 trade unionists, the Government states that it needs additional information in order to be able to reply (workplace and present whereabouts, office held and union to which they belong, place and date of the arrest and the grounds for it). In general, the Government affirms that the persons referred to by the complainants are not trade union leaders, nor are they registered as such with the Ministry of Labour. The Government expresses its concern at the fact that allegedly "persecuted trade union leaders" are often individuals whose links with counter-revolutionary movements and political activities in this connection (in some cases taking the form of armed attacks and crimes against the civilian population) have been fully demonstrated. The Government expresses its concern at the fact that the forces which are leaving no stone unturned to destroy freedom and the recent conquests of the people are attempting to use the authority and prestige of the ILO to slander and denigrate the duly constituted revolutionary authorities.

&htab;225.&htab;The Government also states that the policy of the armed forces is not to arouse the enmity of peaceful peasants such as those in the Wasaca area (where counter-revolutionary forces are operating). What is happening is that, when a member of the counter-revolutionary forces is captured, the CTN at once alleges that he is a member or leader of its organisation and that he was captured solely because he belonged to that organisation. The local peasants are aware of the atrocious crimes committed by these forces, which are trying to take cover behind the shield of trade unionism. Nor is it correct, continues the Government, that Eugenio Membreño or any other members of the CTN Executive Committee are being threatened or intimidated. In this connection the Government reiterates its concern, expressed earlier, at the true nature of the criminal acts perpetrated by so-called trade union leaders, allegedly persecuted by the Government.

&htab;226.&htab;The Committee notes that the Government denies that copies of by-laws were printed on paper bearing the Ministry of Labour letterhead and deposited at the headquarters of the Sandinista Central of Workers for the purpose of facilitating the registration of the recently constituted organisations among the Central's members. In support of this statement the Government adduces the fact that the complainants have not sent copies of the paper allegedly bearing the letterhead. The Committee notes that the Government also denies that the passport of the trade union leader, Alejandro Arnuero, was withdrawn and points out that he is at present living in Costa Rica. The Government also denies that Eugenio Membreño or other members of the CTN executive committee are being threatened or intimidated. The Committee also notes that the Government will transmit the results of the embezzlement proceedings against the trade union organisation SEEOMC as soon as the judgement is handed down.

&htab;227.&htab;As regards the allegations relating to the search of the headquarters of FETRACHI and the alleged attacks on the leaders of this organisation, the Committee notes that, according to the Government's statements, two trade union leaders hid in the headquarters of FETRACHI after engaging in acts against public order (which the Government describes as offences), were arrested there by the state security forces and released a few days afterwards. The Committee notes that the Government has not indicated specifically what the acts against public order alleged to have been engaged in by these leaders consisted of or whether the state security forces had a judicial warrant to enter the premises. In these circumstances the Committee wishes to recall generally the principle that the right of inviolability of union premises also necessarily implies that the public authorities should not enter such premises without having obtained a judicial warrant to do so. [See, for example, 230th Report, Case No. 1200 (Chile), para. 610.]

&htab;228.&htab;As regards the allegations that rural workers of Wasaca affiliated to the CTN have been interrogated and threatened with imprisonment, the Committee notes that, according to the Government, when a member of the counter-revolutionary forces is captured, the CTN at once alleges that he is a member or a leader of its organisation. Concerning this allegation, the Committee wishes to point out that the complainants did not give the names of the persons who were allegedly interrogated and threatened, nor the period during which these events are alleged to have occurred, and accordingly considers that this aspect of the case calls for no further examination.

&htab;229.&htab;As regards the alleged imprisonment of trade unionists, the Committee notes that, according to the Government, Messrs. Agustín Canales, Mónico Fuentes, Nicolás González, Santos Ponce, Victoriano Ramos, Saturnino López and Santos Larios Cornejo are neither trade unionists nor in prison; the first does not appear on the prison records, the second was released in February 1983 and the others in December 1983. Since the Government has not indicated the concrete facts warranting the arrest of the six persons whose subsequent release was confirmed, the Committee wishes to draw the Government's attention to the principle that measures designed to deprive trade union leaders and members of their freedom constitute a serious risk of interference in union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association. [See 233rd Report, Case No. 1169 (Nicaragua), para. 292.] The Committee requests the Government to indicate the concrete acts which gave rise to the arrest of these persons.

&htab;230.&htab;Lastly, in connection with the imprisonment of 18 trade union leaders or members (whose names are listed in Annex II), the Committee notes that the Government states that it needs additional information in order to be able to reply (workplace and present whereabouts, office held and union to which they belong, place and date of the arrest and the grounds for it). The Committee requests the complainants to provide as many details as they can obtain about these persons in the sense indicated by the Government. The Committee nevertheless wishes to point out to the Government that the complainants had already provided a number of elements of information regarding the arrests concerned, in particular their date and place [see 233rd Report, paras. 255 and 256], for which reason the Committee considers that the Government should be in a position to reply to these allegations at an early date.

&htab;231.&htab;In these circumstances the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions:

(a) Regarding the search of the headquarters of FETRACHI, the Committee wishes to recall generally the principle that the right of inviolability of union premises also necessarily implies that the public authorities should not enter such premises without having obtained a judicial warrant to do so.

(b) Bearing in mind that the Government has not indicated the precise facts warranting the arrest of six persons (mentioned in Annex I) whose subsequent release it confirms, the Committee wishes to draw the attention of the Government to the principle that measures designed to deprive trade union leaders and members of their freedom constitute a serious risk of interference in union activities and that, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association. The Committee requests the Government to indicate the concrete acts which gave rise to the arrest of these six persons. (c) Regarding the imprisonment of 18 trade union leaders and members (mentioned in Annex II), the Committee notes that the Government states that it needs additional information in order to be able to reply (workplace and present whereabouts, office held and union to which they belong, place and date of the arrest and grounds for it). The Committee requests the complainants to provide as many details about these persons as they can obtain in the sense indicated by the Government. The Committee nevertheless wishes to point out to the Government that the complainants have already provided a number of elements of information regarding the arrests concerned, in particular their date and place [see 233rd Report, paras. 255 and 256], for which reason the Committee considers that the Government should be in a position to reply to these allegations at an early date.

(d) The Committee notes that the Government will transmit the results of the embezzlement proceedings against the trade union organisation SEEOMC as soon as the judgement is handed down.

&htab;248.&htab;The Committee examined this case at its November 1983 meeting when it presented an interim report to the Governing Body. [See 230th Report, paras. 679 to 688, adopted by the Governing Body at its 224th Session, November 1983.] At its February 1984 meeting the Committee noted that the Government, in a communication dated 14 February 1984, had transmitted certain information on this case and requested it to send all the information previously requested. [See 233rd Report, para. 12, adopted by the Governing Body at its 225th Session, February-March 1984.] On 20 December 1984 the Government transmitted its further observations on this case.

&htab;249.&htab;Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Labour Relations (Public Service) Convention, 1978 (No. 151); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

&htab;250.&htab;When it last examined the present complaints, the Committee noted that the issues involved were similar to a previous complaint concerning Kenya [Case No. 984, examined by the Committee in its 208th and 214th Reports], namely the de-registration in July 1980 of the Union of Kenya Civil Servants and the freeze and seizure of its assets. In the context of the present case, the Committee noted that although a new body to represent the interests of Kenyan civil servants had been registered under the Societies' Act (as the Kenya Civil Servants' Association), this body was de-registered on 17 February 1983, no official reason being given in the Government Gazette notification dated 8 March 1983. The Government stated that there was a favourable prospect for the re-registration of the Association, subject to minor modifications to its constitution.

&htab;251.&htab;In November 1983 the Governing Body approved the following recommendations of the Committee:

- The Committee considers that the cancellation by the Registrar - in this case the Registrar of Societies - of the registration of an organisation is tantamount to suspension or dissolution of an organisation by administrative action, a measure that is incompatible with the principle that the workers' and employers' organisations shall not be liable to be dissolved by administrative authority;

- The Committee expresses the hope that the efforts mentioned by the Government in its reply on this case will result in the free establishment by the workers concerned as soon as possible of an organisation to represent their interests; it requests the Government to transmit precise information concerning the re-establishment of the organisation of civil servants;

- As regards the question of the assets of the de-registered organisation, the Committee requests the Government to supply information on any measures taken to distribute these assets to a newly created organisation which pursues in the same spirit the aims of the dissolved organisation.

&htab;252.&htab;In a communication of 14 February 1984 the Government stated that an application had been made to the Registrar of Trade Unions for registration of the Kenya Civil Servants Association. According to the Government, the application was being examined by the Registrar and it would further inform the Committee once the Registrar had completed his examination of the proposed constitution of the Association.

&htab;253.&htab;In a further letter dated 20 December 1984, the Government states that the President of Kenya has publicly announced that a welfare association for civil servants should be established in the near future and gave authority for this to proceed. The Government is currently looking into the mechanism to implement this directive and it undertakes to keep the Committee informed of progress in the matter.

&htab;254.&htab;The Committee would express its regret that, since the de-registration of the Kenya Civil Servants' Association in February 1983 and the various complaints which the Committee has been called upon to examine, the Government has supplied no information to indicate any willingness on its part to permit the re-establishment of an organisation for the promotion and defence of the occupational interests of the civil servants it would represent. Despite previous indications that there were favourable prospects for the re-registration of the Association and a statement to the effect that an application for registration was being examined by the Registrar no positive action has been taken to ensure the functioning of the organisation. The Committee notes that the Government's latest communication states that the President of Kenya has now announced that a welfare association for civil servants is to be established in the near future.

&htab;255.&htab;In addition, the Committee regrets that the Government has supplied no information on the question of the assets of the de-registered organisation or as regards the eventual distribution of these assets.

&htab;256.&htab;The Committee has already pointed out that the cancellation by the Registrar of the registration of an organisation is tantamount to suspension or dissolution of an organisation by administrative action and constitutes a measure that is incompatible with the principle that workers' and employers' organisations shall not be liable to be suspended or dissolved by administrative authority.

&htab;257.&htab;The Committee would point out that the right to form and to join organisations for the promotion and defence of workers' interests without previous authorisation is a fundamental right which should be enjoyed by public servants, like all other workers, without distinction whatsoever. The Committee considers that the type of welfare association that is envisaged would not fully afford to the civil servants concerned an adequate means to protect and defend their occupational interests.

&htab;258.&htab;In the absence of more detailed information concerning this case the Committee would draw the attention of the Government to the foregoing considerations and request it to supply full and detailed information on the measures that have been taken or are envisaged to permit the establishment of an organisation through which the workers concerned may pursue their normal trade union activities.

&htab;259.&htab;The Committee also requests the Government to transmit information on the question of the assets that were seized on the de-registration of the organisation and on the Government's intention as to the manner in which it is proposed to distribute these assets.

&htab;261.&htab;The Committee examined this case at its February 1984 meeting, when it submitted an interim report to the Governing Body. [See 233rd Report, paras. 565 to 579, approved by the Governing Body at its 225th Session (February-March 1984).]

&htab;262.&htab;Since the Government had not replied to the allegations which remained pending, the Committee addressed an urgent appeal to it at its November 1984 meeting [see 236th Report, para. ll], drawing the Government's attention to the fact that, in conformity with the current procedure, it would present a report at its next meeting on the substance of the case even if the Government's observations had not been received by that date. Since then no reply has been received from the Government.

&htab;263.&htab;Peru 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).

&htab;266.&htab;The Committee regrets that the Government has not sent the information requested by it when it examined the case at its February 1984 meeting, the more so since some of the allegations are of an extremely serious nature and since at its November 1984 meeting it had addressed an urgent appeal to the Government requesting it to transmit its observations without delay. [See 236th Report, para. 11.] Given the fact that the Government has not replied since the Committee's February 1984 meeting, the Committee is obliged to present a report to the Governing Body even in the absence of observations on the allegations.

&htab;267.&htab;In these circumstances the Committee repeats the conclusions which it reached at its February 1984 meeting, and urges the Government to send it the information which it requested on that occasion regarding the death of the miner Gelacio Bernardo Mendoza and the assaults made on other workers. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.

&htab;268.&htab;In these circumstances the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions: (a) The Committee regrets that the Government has not sent the information requested by it at its February 1984 meeting regarding the allegations which remained pending.

(b) The Committee urges the Government to inform it of the results of the penal proceedings taken in respect of the death of the miner Gelacio Bernardo Mendoza and the assaults made on other workers of the Santa Luisa Mining Company. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.

(c) The Committee urges the Government to send its observations on the dismissal of Exhaltacion Raymundez Valverde and Ceferino Santos Blas.

&htab;269.&htab;The complaints are contained in communications from the World Federation of Trade Unions, the National Committee on Trade Union Unity of Guatemala (CNUS) and the Automomous Trade Union Federation of Guatemala (FASGUA), dated respectively 6 February, 23 May and 16 October 1984. The WFTU made new allegations in communications dated 14 and 28 February, 19 March and 13 June 1984, the CNUS in a communication dated 6 June 1984 and FASGUA in a communication dated 24 January 1985. The Government furnished some information concerning one aspect of the case in a communication dated 22 March 1984.

&htab;270.&htab;Given the failure of the Government to reply to the allegations since the receipt of the above-mentioned partial communication dated 22 March 1984, the Committee made an urgent appeal to the Government at its meeting of November 1984 [see 236th Report, paragraph 11], and pointed out that in accordance with the procedural rules in force, it would present a report on the substance of the case at its next meeting even if the Government's observations had not been received at that date. Since then no reply has been received from the Government.

&htab;271.&htab;Parallel to the presentation of the complaints, various trade union organisations requested the Director-General of the ILO to intervene with the Government on matters similar or identical to those contained in the allegations made in the present case. The Director-General immediately requested the Government to send its observations in this connection.

&htab;272.&htab;Guatemala 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).

&htab;277.&htab;First, the Committee must deplore the fact that, despite the extremely serious nature of the allegations concerning the kidnapping and disappearance or the attempted kidnapping of 18 trade union leaders or trade unionists (whose whereabouts in most cases are unknown), as well as serious physical assault against them, the Government has not sent its observations on these allegations except as regards one person mentioned by the complainants. The Committee deplores this attitude all the more so since it had made an urgent appeal to the Government in November 1984 requesting it to transmit its observations as a matter of the greatest urgency. In the circumstances, the Committee is obliged to examine the case even though a complete statement has not been received from the Government.

&htab;278.&htab;As regards the attempted kidnapping of the trade union leader Alvaro René Sosa, concerning whom the Government has supplied some information, and the serious physical assault of which he was the victim, the Committee notes that, according to the Government, on 13 March 1984 this trade union leader, chased by unidentified persons, entered the residence of the Belgian Ambassador after being hit by gunshot. The Government states that Mr. Sosa then underwent a surgical operation in a hospital and that on 22 March 1984, well on the way to recovery, he took a flight to Canada. The Committee urges the Government to carry out a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties for the attempted kidnapping and serious physical assault of Mr. Sosa. The Committee requests the Government to supply information on any such inquiry into this matter and on its outcome.

&htab;279.&htab;With regard to the kidnapping and disappearance or attempted kidnapping of the other trade union leaders or trade unionists mentioned by the complainants (one case concerns the kidnapping of the brother of a trade union leader who had escaped various attempts at capture), the Committee expresses its deep concern at the serious nature of the allegations and urges the Government to carry out the necessary investigations to determine the whereabouts of the persons who have disappeared and to initiate a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties for the kidnappings or attempted kidnappings. The Committee requests the Government to supply information on any such inquiry and on its outcome.

&htab;280.&htab;In general, the Committee draws to the Government's attention the principle that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see, for example, 233rd Report, Case No. 1233 (El Salvador), para. 682].

&htab;281.&htab;In these circumstances, the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions:

(a) The Committee expresses its deep concern at the serious nature of the allegations which refer, in particular, to many cases of kidnapping and disappearance or attempted kidnapping, as well as the serious physical assault of trade union leaders or trade unionists, and deplores the fact that the Government has not sent detailed information in this respect except as regards one person mentioned by the complainants.

(b) As regards the attempted kidnapping of the trade union leader Alvaro René Sosa and the physical assault of which he was the victim, the Committee urges the Government to carry out a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties. The Committee requests the Government to supply information on any such inquiry and on its outcome.

(c) As regards the kidnapping and disappearance or attempted kidnapping of the other trade union leaders or trade unionists mentioned by the complainants (in one case the allegation concerns the kidnapping of the brother of a trade union leader who had escaped various attempts at capture), the Committee urgently requests the Government to carry out the necessary investigations to determine the whereabouts of the persons who have allegedly disappeared and to initiate a judicial inquiry with a view to elucidating the facts in full, determining responsibilities and punishing the guilty parties for the kidnappings or attempted kidnappings. The Committee requests the Government to supply information on any such inquiry and on its outcome.

(d) In general, the Committee draws to the Government's attention the principle that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.

&htab;282.&htab;The complaint is contained in a communication from the World Federation of Trade Unions dated 24 August 1984. The Government replied by a letter of 15 November 1984.

&htab;283.&htab;Costa Rica 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).

&htab;284.&htab;The complainant alleges that the Government brutally repressed the strike that was started on 10 July 1984 by over 3,000 workers of the banana plantations belonging to the Banana Company of Costa Rica (most of which are owned by United Brands and the Standard Fruit Company") who were claiming wage increases and the negotiation of a new collective agreement.

&htab;285.&htab;The complainant states that United Brands and the Standard Fruit Company secured from the Government a declaration that the strike was illegal. On the strength of this, on 24 July 1984 the police took action against the strikers, killing Franklin Guzman and injuring an unspecified number of strikers. After 38 days' strike, the police opened fire, causing the death of strikers Luis Rosales and Jesus Rosales and wounding ten other persons.

&htab;286.&htab;The Government disputes the allegation that it took repressive action against the Costa Rican trade union movement either before or on the occasion of the strike held by the banana workers in July 1984. Nor is it true to say that the Government granted United Brands and the Standard Fruit Company a declaration that the strike was illegal since such a declaration lies within the sole jurisdiction of the judicial authorities. The Government goes on to say that the illegality of the strike movement in question was declared by decisions of the Labour Court of Golfito (10 July 1984) and of the Labour Court of Osa-Ciudad Cortés (11 July 1984), confirmed by decisions of the Higher Labour Court dated 12 and 17 July 1984 respectively. The Government encloses a copy of the court decisions in question which indicate, as grounds for declaring the strike unlawful, the fact that the union had not started the conciliation and arbitration procedure provided for by law and that the trade unionists had barred the access of workers who wished to enter the plantations. In accordance with the provisions in force, the court authorities ordered the police to "guarantee the continuation of work by all possible means, ensuring the safety of those workers who did not wish to join in the illegal movement but wanted to carry on with their work and providing protection for the assets of the Banana Company of Costa Rica". The Government refers in this connection to section 381 of the Labour Code which provides that "in the event of a legally declared strike or work stoppage, the labour courts shall immediately give orders to the police authorities for the establishments or businesses affected by the dispute to be kept closed and for due protection to be given to people and property. In the event of an illegal strike or work stoppage, the labour courts shall order the police authorities to guarantee the continuation of activities by all means within their power ...".

&htab;287.&htab;With regard to the strike and its consequences, the Government makes the following statements:

- In July a strike broke out on the banana and palm oil plantations of the Banana Company of Costa Rica, in the area of Coto y Palmar Sur, which unexpectedly took on a violent character.

- From the beginning the strike movement was unusually violent, involving a number of confrontations between the participants and the authorities of the civil guard who were trying to ensure access to the plantations for those workers who wanted to get on with their work.

- It was regrettably in one of these confrontations, on 24 July 1984, that Mr. Franklin Guzman lost his life and on 15 August 1984 Mr. Luis Rosales Villegas, these deaths coming as a complete surprise to the civil guards who were in no way responsible for causing them apart from being obliged to deal with the strikers' violent action.

- In the days preceding the incident, members of the civil guard had been in the area in which the events took place, passing in front of strikers organised into groups of regular size, without there having been any sort of harrassment or violence. During these days, the strikers' attitude was one of open dialogue and co-operation.

- On the day of the events which led up to the death of Franklin Guzman an unusual number of strikers had gathered together from early in the day in the place where the event took place - some 200 at the time of the confrontation.

- Only 20 civil guards, compared with a massive number of strikers, took part in the attack. The few civil guards who were attacked exhausted the means at their disposal for dissuading the strikers from continuing, as they had with them only a small number of tear-gas bombs. In the final resort, finding themselves practically surrounded by hostile workers and with several of their companions injured by stones thrown from various parts of the undergrowth, the civil guards used their regulation weapons, shooting into the air to intimidate the strikers and get them to disperse, which is what eventually happened.

- At no time during these disturbances did the officers or privates who were present see any worker fall after being shot. It was only an hour after the confrontation had ended that a bus arrived on the scene carrying Mr. Guzman who was injured but still alive, and who died shortly after entering the Ciudad Neilly hospital to which he was taken by police car. - The worker who died had been obliged to join the strike movement in the early hours of the morning, when he was practically dragged from his house, despite his wife's protests, to join the strike.

- According to a verbal statement from the doctor at the Ciudad Neilly hospital, who is a specialist in injuries of this kind, the wounded man's death was in fact due to the delay in taking him to the health centre since his life could have been saved by timely medical intervention and he could then have been sent to a hospital with a specialised medical and surgical team in San José.

- In the confrontation Mr. Freddy Bustamante Mata, Mr. José Pérez Pérez, Mr. Lorenzo Muñoz Esquivel and Mr. Eusebio Ruiz Noguera were also injured. Nevertheless in no case were the injuries caused by shots fired by the police.

- With regard to the events of 15 August 1984, which ended with the death of Mr. Luis Rosales Villegas, the facts were as follows: a noisy group of workers were on the Palmar banana plantations Nos. 2 and 4, seeking to bar the way of the civil guard authorities and throwing stones and sticks at them and at some houses, presumably those of the workers who had not joined the strike. In these circumstances and in order to safeguard private property, individuals and themselves, the civil guards after exhausting the possibilities of dialogue and persuasion had no alternative but to use tear gas. As this did not have the desired effect, they resorted to firing shots in the air. - In all the cases of confrontation the civil guard were undertaking routine duties at the time of the attack and there was no question of any operation prepared with the deliberate intention of repressing the strike movement. The injuries that occurred were all caused by the confusion arising out of the said confrontation and never as a result of isolated or deliberate action by the civil guard.

&htab;288.&htab;The Government states that different offices of the judicial authorities (examining magistrates) are dealing with various cases to investigate all the events surrounding the deaths or injury of the strikers and to decide whether criminal liability can be attributed. According to the Government, so far nothing definite is known of the manner or circumstances in which the deaths occurred.

&htab;289.&htab;The Government concludes by stating that the purposes of the strike movement had ceased to concern economic and social claims and had taken on a purely political character, as can readily be seen by the fact there are even workers who were forced to strike who are taking proceedings against communist leaders and representatives for payment of the wages they lost as a result of the strike movement.

&htab;290.&htab;The Committee notes that the complainant alleges that, on the basis of a declaration that the strike started on 10 July 1984 by workers of the Banana Company of Costa Rica was illegal, the police intervened on a number of occasions against strikers, causing the death of three strikers and injuring an unspecified number of others. According to the complainant, it was the employers who had secured from the Government the declaration that the strike was illegal.

&htab;291.&htab;With regard to this declaration of illegality, the Committee notes the Government's statement that such declarations are a matter for the judicial authorities and not for the Government. The Committee observes in this connection that the Government has furnished the text of court decisions declaring the illegality of the strike started by banana workers on 10 July 1984 for failing to meet the legal requirements: in particular because the trade union had not followed the conciliation and arbitration procedure provided for by law and because trade unionists had prevented workers who wished to continue working from having access to their workplaces. The Committee notes that, according to the court decisions referred to and the Labour Code, the workers of the Banana Company of Costa Rica may exercise the right to strike and the arbitration procedure takes place only by agreement between the parties.

&htab;292.&htab;In this respect the Committee has stated on previous occasions [see, for example, 134th Report, Case No. 702 (Costa Rica), para. 36] that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association. In these circumstances the Committee considers that the declaration that the strike started on 10 July 1984 by the banana workers was illegal cannot be objected to from the point of view of the principles of freedom of association.

&htab;293.&htab;As regards the intervention of the civil guard during the strike,the Committee notes that, as stated in the court decisions provided by the Government, the judicial authorities, in accordance with the law in force in respect of illegal strikes, gave orders to the police to guarantee the continuation of work, ensuring the safety of workers who did not wish to join the strike and protecting the property of the Banana Company of Costa Rica.

&htab;294.&htab;With regard to the alleged consequences of the intervention of the civil guard during the strike which, according to the complainant, caused death and injuries among the strikers, the Committee notes that the Government only supplies information on two of the three workers who, according to the complainant, died (Mr. Franklin Guzman and Mr. Luis Rosales). The Committee also notes that, according to the Government, the exact form or circumstances of these two deaths have not been established and that the civil guards played no part in these deaths. The Committee requests the Government to send its observations on the alleged death of the striking worker, Jesús Rosales, to which it makes no reference in its reply.

&htab;295.&htab;The Committee also observes that the Government recognises the fact that on the days when the two workers died the police fired shots in the air after having been attacked and having used tear gas. Nevertheless it cannot be established from the Government's statements that there was any connection between the shots fired and the deaths. In the case of Mr. Franklin Guzman, the Government states that he was brought by bus, injured but still alive, to the place where the confrontation had taken place between the strikers and the police on 10 July 1984, an hour after the confrontation had ceased. In the case of Mr. Luis Rosales, who died on the same day as the confrontation between the strikers and police of 15 August 1984, the Government has no concrete information to provide on the death of this worker.

&htab;296.&htab;In the circumstances, the Committee deeply regrets the death of the workers Franklin Guzman and Luis Rosales, as well as the attacks which took place during the strike of the banana workers in July and August 1984. It requests the Government to supply information on the outcome of the judicial investigations being carried out into the deaths and injuries which occurred.

&htab;298.&htab;By a communication of 20 September 1984, the International Confederation of Arab Trade Unions (ICATU) presented a complaint of violation of trade union rights in Mauritania. The Government sent certain observations in a letter of 10 November 1984.

&htab;299.&htab;Mauritania 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).

&htab;300.&htab;The International Confederation of Arab Trade Unions refers in its complaint to the acts of repression committed by the authorities of Mauritania against the trade unionists of that country. It states that the authorities have conducted a large-scale campaign of arrests of officials and trade union activists of the Union of Mauritanian Workers (UTM) which is one of its affiliates.

&htab;301.&htab;The ICATU lists 17 UTM officials who are alleged to have been arrested, including: El Kouri Ould Hameti, general secretary; Mohamed Ben Djadou, secretary for external relations; Sidi Habib Allah and Abdellah Benchamad, members of the National Bureau. The ICATU also alleges that the general secretary of UTM, El Kouri Ould Hameti, has been taken to the hospital in a very serious condition as a result of the tortures he has said to have suffered. It also fears for the lives of the other imprisoned trade unionists which, it says, have been subjected to torture and other forms of ill-treatment. Finally, the ICATU alleges that a trade unionist, Sidi Mohamed Ben Aiat, who held the post of director of the commercial department of the Fuel Company, died as a result of the tortures he is said to have suffered in prison.

&htab;302.&htab;The ICATU considers that these actions and measures constitute a violation of Convention No. 87 ratified by Mauritania.

&htab;303.&htab;In its letter of 10 November 1984, the Government states that the trade unionists mentioned in the complaint of the ICATU were imprisoned on charges of attacks against the security of the State.

&htab;304.&htab;Like other citizens, says the Government, these trade unionists were found guilty of collusion with a foreign diplomatic mission for the purpose of fomenting disorder of a nature to destabilise the Mauritanian State. The persons concerned have made confessions and incriminating evidence has been found in their possessions.

&htab;305.&htab;The Government adds that the charges and all the documents seized have been posted up in a public place and disseminated by the press. The trade union confederation has, moreover, been fully informed of the situation.

&htab;306.&htab;In conclusion, the Government states that these leaders were arrested in their capacity as citizens, even though they used their trade union office to achieve their ends.

&htab;307.&htab;The Committee notes that the present case concerns the arrests of officials from the Union of Mauritanian Workers. The complainant also mentions the ill-treatment to which these detained persons were subjected. One is alleged to have died as a result of the tortures he received in prison.

&htab;308.&htab;The Committee notes that, in its reply, the Government merely points out that the union officials mentioned in the complaint were accused of an offence against the security of the State by having acted in collusion with a foreign diplomatic mission; however, it fails to specify the precise acts which they are said to have committed, or to provide information on their present situation.

&htab;309.&htab;The Committee has examined many cases in which it has been alleged that trade unionists have been arrested for their trade union activities, and in which the governments have merely stated that the arrests were made on account of subversive activities or for reasons of internal security; it has therefore made it a rule, in these cases, to request the governments concerned to submit as precise information as possible on the arrests in question, especially on the legal action taken and the results thereof, to enable it to examine the allegations in full knowledge of the facts.

&htab;310.&htab;In view of the fact that, in the present case, the Government's observations are worded in such a vague way that it is unable to pronounce on the substance of the case, the Committee requests the Government to provide detailed information on the specific facts which led to the arrest of the UTM officials, to state whether legal proceedings are being taken against them, and to clarify their present situation. The Committee also requests the Government to reply to the allegations concerning the ill-treatment to which the detained trade unionists were allegedly subjected, and especially on the death of Mr. Sidi Mohamed Ben Aiat.

&htab;311.&htab;In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:

(a) The Committee requests the Government to submit detailed information on the specific facts which led to the arrest of the UTN officials, to state if legal proceedings are being taken against them, and to clarify their present situation.

(b) The Committee also requests the Government to reply to the allegations concerning the ill-treatment to which the detained trade unionists were allegedly subjected, and especially on the death of Mr. Sidi Mohamed Ben Aiat.

&htab;312.&htab;The complaint is contained in a communication from the World Federation of Trade Unions dated 27 September 1984. The Government replied in communications of 22 October and 22 November 1984.

&htab;313.&htab;Honduras 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).

&htab;314.&htab;The complainant alleges that on 19 September 1984, 2,500 workers of the National Power and Electricity Undertaking (ENEE) went on strike, demanding a 10 per cent wage increase; they also demanded to know the whereabouts of their leaders and called for the latter's release.

&htab;315.&htab;The complainant adds that on 20 September 1984, the Minister of Labour declared that the strike was illegal and that all the strikers were dismissed. This meant that the undertaking was not obliged to pay the strikers any seniority-related severance allowance. At the same time, the undertaking decreed the mobilisation by the military of all its employees.

&htab;316.&htab;The complainant further alleges that the strike was put down by military and para-military units, resulting in the disappearance of a number of trade union officials, including the President of STENEE (Mr. Rolando Vindel) and another trade union official (Mr. Gustavo Morales). [The Committee has already examined the allegation relating to the disappearance of Mr. Vindel under Case No. 1268: see 234th Report, paragraphs 372-384.] According to the complainant, the number of trade union leaders and activists in the country who have disappeared or been murdered as a result of the intervention of the government forces against the workers is 100.

&htab;317.&htab;The Government states that on 10 June 1981 the National Electricity Undertaking and its Union of Workers signed a collective labour agreement which was to run for a period of three years. Accordingly, both parties, making use of their rights and in accordance with sections 69 and 70 of the Labour Code, denounced the collective agreement before the corresponding authority of the Ministry of Labour with the objective of negotiating a new collective agreement. For this purpose the parties opened discussions with a view to a direct settlement; these discussions ended on 6 December 1983 without a solution to the dispute having been found.

&htab;318.&htab;The Government adds that the Union of Workers of the National Electricity Undertaking asked the Ministry of Labour to open mediation proceedings, and the Ministry accordingly declared closed the discussions aimed at direct settlement and open the mediation proceedings, appointing mediators in accordance with the provisions of sections 796 and 797 of the Labour Code. During the mediation proceedings, the parties were unable to reconcile their views in order to arrive at a satisfactory agreement, and the Board declared the mediation proceedings closed on 3 September 1984.

&htab;319.&htab;The Government further states that, in the light of the report presented by the Mediation Commission to the Ministry pronouncing the closure of the mediation proceedings in connection with the negotiation of the new collective labour contract to be signed between the National Electricity Undertaking and its Union of Workers, the Ministry was concerned at the outcome of this disagreement, and attempted to find a point of convergence between the parties so as to enable the dispute to be settled peacefully. Accordingly, by official decision of 6 September 1984 the Ministry ordered the opening of conciliation proceedings and for this purpose required the undertaking and the trade union each to present a list of three candidates to form a Special Conciliation Board, with the proviso that if the parties failed to execute its order the Ministry would appoint the Board itself. The undertaking and the union presented their lists in conformity with the above-mentioned decision. The Ministry of Labour, by a decision dated 13 September 1984, declared the conciliation proceedings open, designating the members of the Special Conciliation Board which was officially established on 14 September 1984. In conformity with the procedure laid down in section 804 of the Labour Code the Special Conciliation Board called a hearing of both parties on 17 September at 4 p.m. Both parties appeared at the hearing, which took place in accordance with the established public order, and agreement was reached on four out of the five clauses in dispute that had remained pending from the mediation proceedings. The clause on which no agreement was reached was the wage clause. The hearing was suspended at 6.30 a.m. on 18 September 1984 and was resumed at the appointed time on the same day, namely 4 p.m. The hearing began with an exchange of views, but no agreement was reached on the disputed clause. The hearing lasted until 3.30 a.m. on 19 September 1984, and it was agreed to resume it at 4 p.m. on the same day, when it was decided that the Special Conciliation Board would present a final proposal to help the parties reach an agreement which would put an end to the dispute. This proposal could not be formulated because at 12 p.m., before the appointed time of 4 p.m., the union issued a call to strike, and the discussions thus remained at the conciliation stage.

&htab;320.&htab;The Government claims that, in calling the strike, the union was contravening the provisions of section 569 of the Labour Code, which provides that a collective stoppage of work shall be unlawful "when the preliminary procedure for a direct settlement or for mediation, conciliation and arbitration has not been followed as laid down by law". An aggravating factor in this case was that the undertaking was a state undertaking providing public or essential services, in which case the parties are obliged, under section 820 of the Labour Code, to submit the dispute for compulsory arbitration if no agreement can be reached through conciliation proceedings. In virtue of the infringement of the law by the trade union in failing to exhaust the procedures provided for thereunder, the undertaking applied to the Ministry of Labour to have the strike declared illegal, and the Ministry granted this application. In pursuance of section 571 of the Labour Code, as amended by Decree No. 760 of 25 May 1979, the undertaking further applied to the competent court for suspension of the legal personality of the trade union organisation; this application was granted by the court and the suspension of the legal personality of the trade union was ordered for a period of six months. According to the Government it is nevertheless false that the military mobilised the employees of the undertaking and that military groups had repressed the strike movement.

&htab;321.&htab;According to the Government, notwithstanding the facts related above and the efforts which it had had to make to find a just and definitive solution which would satisfy both parties and at the same time be in the national interest, it decided to appoint a high-level commission composed of the Minister of Labour and Social Welfare, the Minister of the Cabinet, the Director of the National Electricity Undertaking, two representatives of the General Central of Workers (CGT), the General Secretary of the Confederation of Workers of Honduras (CTH) and the President of the Federation of Workers of Honduras (FESITRANH); this commission reached the following conclusions, which are regarded as having provided a definitive solution to the problem in question: "1. Once all acts of work stoppage have ceased and work has resumed normally, the National Electricity Undertaking shall honour each and every one of the clauses negotiated up to the date on which the negotiation proceedings were interrupted. 2. In connection with clause 55-33, the undertaking shall grant a 6 per cent wage increase every year in the manner proposed by the undertaking on the date on which the conciliation proceedings were interrupted. 3. Notwithstanding the declaration of illegality of the strike adopted by the Ministry of Labour, the undertaking shall undertake to refrain from reprisals or dismissals of workers who have given their moral or material support to the strike. 4. The time lost during the strike shall be made up in a manner to be agreed on between the parties, which shall endeavour to find a just solution. 5. The suspension of the legal personality of STENEE is the responsibility of the competent courts, which have the sole power to apply the law, passing and executing judgements in concrete cases. In order to reach a definitive solution to the dispute, the commissions shall undertake to expedite the relevant procedure. 6. At the suggestion of the legally organised trade union committee, the ENEE shall allow the legal representative of the STENEE provisionally to represent the trade union for the signing of the present document and the collective labour agreement and in other relevant matters. 7. The undertaking shall allow the sectoral and subsectoral managing committees to continue to represent the workers in all internal labour questions arising in the undertaking. 8. Once the present document has been signed by the parties, the work stoppage called by the Union of Workers of the National Electricity Undertaking shall be deemed to be terminated. Tegucigalpa, DC, 26 September 1984. (Signed) Government Commission: Ubodoro Arriaga Iraheta. Amado H. Núnez V. Raúl Flores Guillén. Trade Union Commission: Francisco Guerrero. Andrés Víctor Artiles. Felícito Avila. Marco Tulio Cruz. Elpidio Duarte Herrera. Legal representative of STENEE: Germán Leitzelar Vidaurreta."

&htab;322.&htab;In addition, the Government states that the disappearance of the PANI trade union leader, Mr. Gustavo Morales, occurred many months prior to the strike which commenced on 19 September 1984 and that the competent authorities are investigating the matter.

&htab;323.&htab;The Committee notes that in the present complaint the complainant alleges that the strike of the workers of the National Power and Electricity Undertaking (ENEE), called on 19 September 1984 to demand wage increases, was declared illegal and that, as a consequence, the dismissal of all the strikers was announced, the military mobilisation of the employees of the undertaking was decreed and the strike was put down by military and para-military units, as a result of which the trade union leader, Gustavo Morales, disappeared.

&htab;324.&htab;As regards the declaration of illegality of the strike, the Committee notes that Honduran legislation recognises the right to strike for workers in the electricity sector (section 555 of the Labour Code), although its exercise is subject to the fulfilment of certain requirements; in particular, the obligation to make available the necessary personnel to ensure that a suspension of the services provided does not result in serious and immediate danger to public health or safety or to the economy in general (section 555 of the Labour Code) and to exhaust the possibilities offered for the direct settlement of disputes and for mediation, conciliation and arbitration (section 553 of the Labour Code), such arbitration being compulsory in the case of the electricity sector as in other public services (section 820 of the Labour Code).

&htab;325.&htab;In this connection the Committee wishes to recall that a strike may be subject to major restrictions such as compulsory arbitration in essential services in the strict sense of the term (i.e. those whose interruption might endanger the lives, safety or health of all or part of the population). [See, for example, 208th Report of the Committee, Case No. 958 (Brazil), paragraph 305.] The Committee considers that the services rendered throughout the country by the National Electricity Undertaking would appear to fall within the concept of essential services.

&htab;326.&htab;In these circumstances, and noting that the Union of Workers of the National Electricity Undertaking called the strike on 19 September 1984 four hours before the appointed time for the final meeting under the statutory conciliation procedure and without submitting to the compulsory arbitration procedure (a restriction which, as has been seen, is admissible in the case of essential services in the strict sense, as is the case of the electricity services), the Committee concludes that the declaration of illegality of the strike begun on 19 September 1984 by the trade union does not infringe the principles of freedom of association.

&htab;327.&htab;As regards the alleged consequences of the declaration of illegality of the strike in question (repression of the strike, dismissals of strikers and military mobilisation of workers), the Committee notes that the Government denies any repression of the strike or mobilisation by the military of the workers. It also notes that a high-level tripartite commission, including representatives of the central Honduran confederations, reached definitive conclusions in which the undertaking undertakes to refrain from dismissals of workers who took part in the strike. The Committee also notes that, according to the Government, the National Electricity Undertaking obtained the suspension of the legal personality of the union for six months from the judicial authority by virtue of section 571 of the Labour Code, amended by Decree No. 760 of 25 May 1979. The Committee requests the Government to provide detailed information on the conclusions reached by the said commission on this last point.

&htab;328.&htab;Lastly, as regards the the allegation concerning the disappearance of the trade union leader, Gustavo Morales, the Committee notes that this disappearance had nothing to do with the strike which took place in the ENEE undertaking on 19 September 1984 since it occurred many months prior to the events. It expresses its serious concern over this allegation and requests the Government to send the results of the investigation which is being carried out by the authorities as a matter of urgency.

&htab;329.&htab;In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:

(a) The Committee notes that a high-level tripartite commission, including representatives of the central Honduran confederations, reached definitive conclusions when examining the dispute in question in which the National Electricity Undertaking undertakes to refrain from dismissals of workers who took part in the strike.

(b) The Committee requests the Government to supply detailed information on the conclusions reached by the above-mentioned commission as regards the decision taken by the judicial authority to suspend the legal personality of the trade union for six months in consequence of the illegality of the strike called by the union.

(c) The Committee expresses its serious concern over the allegation concerning the disappearance of the trade union leader, Gustavo Morales, and requests the Government to communicate the results of the investigation being carried out by the authorities as a matter of urgency.

&htab;330.&htab;These complaints and the supplementary information presented by the complainants are contained in the following communications: International Confederation 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.

&htab;331.&htab;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).

&htab;332.&htab;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.

&htab;333.&htab;The ICFTU adds that 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.

&htab;334.&htab;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.

&htab;335.&htab;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.

&htab;336.&htab;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.

&htab;337.&htab;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.

&htab;338.&htab;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.

&htab;339.&htab;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 pschyological 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.

&htab;340.&htab;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.

&htab;341.&htab;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.

&htab;342.&htab;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.

&htab;343.&htab;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.

&htab;344.&htab;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.

&htab;355.&htab;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.

&htab;356.&htab;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.

&htab;357.&htab;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.

&htab;358.&htab;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.

&htab;359.&htab;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.

&htab;360.&htab;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.

&htab;361.&htab;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.

&htab;362.&htab;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.

&htab;363.&htab;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 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.

&htab;364.&htab;In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:

(a) The Committee expresses its concern at the serious nature of the allegations made by the complainants. It stresses that the absence of civil liberties removes all meaning from the concept of trade union rights and that the rights conferred on workers' and employers' organisations must be based on respect of these civil liberties.

(b) As regards the deaths which occurred during the protest day of 4 September 1984, the Committee believes that such serious events should lead the authorities to take effective measures with a view to establishing the facts and punishing the guilty parties. It 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.

(c) As regards the death of Mr. Juan Antonio Aguirre Ballesteros which allegedly occurred following his arrest, 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 and to inform it of the outcome.

(d) As regards the action taken against Messrs. Bustos, Ruiz Di Giorgio and Montecinos, the Committee notes that the proceedings having now been halted by the Government and that the persons concerned are free. Since however the complainants have linked this action to the holding of a general strike, the Committee recalls that the trade union organisations should be able to have recourse to protest strikes, particularly with a view to criticising the social and economic policy of governments.

(e) As regards the attack by the police on certain trade union premises, the Committee draws 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. It recalls that the search by the police of trade union premises should only be made following the issue of a warrant by the ordinary judicial authority. The Committee 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.

(f) As regards the arrests and banishment of trade union leaders, the Committee notes that some of the persons mentioned in the complaints are free but that others have been banished. It stresses 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 notes furthermore that the Government has not furnished any information on some of the persons mentioned in the complaints as having been arrested (see annex to the present case) or on the allegations made concerning the ill-treatment of the persons arrested. It requests the Government to furnish its observations on these matters.

(g) The Committee 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.