100
authorising them to do so, since otherwise there is the risk of a serious interference
of the authorities in trade union activities.”
On the other hand, in its
recommendations, it urged the State to ensure “that the principle of inviolability of
trade union premises be fully respected in the future.”63
166. The Court makes the observation that in contemplating the possibility for the
dismissal of workers who held “positions on the boards of directors of trade union
organisations, and of public servant associations[,] their delegates and trade union
or sectoral representatives, directors of public servant associations regardless of
whether or not they enjoy trade union powers” and in derogating Section Two of
Chapter VI, Title I, Book III of the Labour Code, as well as Article 137 of Law 8 of
February 25, 1975, Law 25, in its Article 1, was not only permitting the separation
from their jobs of trade union leaders, but abrogating the rights that these latter
rules granted them in regulating the process for the
dismissal of workers protected by trade union rights. The provisions contained in
Articles 1 and 4 of Law 25 were put into practice with retroactive effects, which
permitted to ignore the procedures that had to be applied according to the legislation
in force at the time of the events, and which resulted in the dismissal of a large
number of trade union leaders; this affected seriously the organisation and the
activity of the labour unions that held the workers together, and violated the
freedom of trade union association.
167. The Court must analyse whether or not the dismissal sanctions based on Law
25 in the instant case were legitimate measures adopted with the purpose of
maintaining the public order, the common good, or the independence and security of
the State.
168. The American Convention is very clear in pointing out, in Article 16, that the
freedom of association “shall be subject only to such restrictions established by law
as may be necessary in a democratic society, in the interest of national security,
public safety or public order, or to protect public health or morals or the rights and
freedoms of others.”
169. It is important to keep in mind that the expression “law” pointed out in Article
16 of the Convention must be interpreted in accordance with criteria previously
established by this Tribunal, to wit:
[…] one cannot interpret the word laws, used in Article 30 [of the Convention], as a
synonym for just any legal norm, since that would be tantamount to admitting that
fundamental rights can be restricted at the sole discretion of governmental authorities
with no other formal limitation than that such restrictions be set out in provisions of a
general nature. Such an interpretation would lead to disregarding the limits that
democratic constitutional law has established from the time that the guarantee of basic
human rights was proclaimed under domestic law. Nor would it be consistent with the
Preamble to the American Convention, according to which " the essential rights of man
are... based upon attributes of the human personality and... they therefore justify
international protection in the form of a convention reinforcing or complementing the
protection provided by the domestic law of the American states. "
63
cfr. ILO. Resolution of the Labour Union Freedom Committee in Case N° 1569, supra note 60,
para. 144 and 146.c.
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