Informe provisional - Informe núm. 49, 1961

1. 98. Continuing its examination of the complaints of violation of freedom of association presented by the I.C.F.T.U, the General Union of Spanish Workers in Exile and the W.F.T.U against the Government of Spain, the Committee, at its 25th Session (May 1960), submitted a further interim report which was adopted by the Governing Body and which contained a number of conclusions, recommendations and requests for further information.
2. 99. The conclusions of the Committee, as adopted by the Governing Body, were communicated to the Government by a letter of 6 June 1960. The Government sent its reply by a letter of 21 October 1960. The present document is confined to the allegations still outstanding.

Allegations relating to the Effects on Trade Union Freedom of the Prohibition of Strikes (Labour Charter, Read with the Act of 29 March 1941, Read with the Penal Code)

1. 100. These allegations, as well as the replies first sent by the Government in this connection, have already been analysed and examined in paragraphs 125 to 131 of the 30th Report and in paragraphs 81 to 88 of the 41st Report. After it had examined this aspect of the case at that meeting, the Committee, noting the Government's statement that, under the legislation in force, the penal provisions could be applied only when workers behaved seditiously and not on account of leaving their work, pointed out, nevertheless that section XI (2) of the Labour Charter stated that " individual or collective actions which in any way disturb the normal flow of production or threaten to do so shall be treated as offences against the State ". It also observed that section 44 of the State Security Act of 29 March 1941 provided that " lockouts by employers and strikes by workers shall be punishable by a period of imprisonment ranging from three to five years ", and that section 46 provided that " any persons who in any way cause the suspension or disruption of the public services ... or the lockout or strike referred to in section 44 shall be punished with a period of from one to three years' imprisonment ". Finally, the Committee noted that section 222 of the Penal Code declared " strikes by workers " to be seditious acts punishable by a term of imprisonment. The Committee took the view, therefore, that the legislative provisions relating to strikes and, especially, the penal provisions, appeared to be so broad in their terms as to be susceptible of application in a manner incompatible with freedom of association. For these reasons the Committee made the following recommendation to the Governing Body in paragraph 104 (b) of its 41st Report, subsequently reaffirmed in its 47th Report:
2. 104. In these circumstances the Committee recommends the Governing Body:
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4. b) to decide, with respect to the allegations relating to the effects on trade union freedom of the prohibition of strikes:
5. (i) to take note once again of the Government's statement that workers cannot be punished under the provisions of the Penal Code merely on account of leaving their work;
6. (ii) to note that, in their application and as a result of the terms in which they are drafted, the legislative texts at present enforced appear to be susceptible of being interpreted in a manner incompatible with this principle;
7. (iii) for this reason, to ask the Government, admitting that the intention of the law is - as stated above, whether it has taken the necessary measures to ensure that the authorities responsible for initiating legal proceedings are fully aware of this intention and of the exact scope of the texts which it is their duty to apply;
8. (iv) to observe that in its present form the Spanish legislation relating to strikes entails a danger of being interpreted as absolutely prohibiting strikes, which would not be in harmony with the generally accepted principles concerning freedom of association;
9. (v) to suggest to the Government that in these circumstances it may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendments to this legislation.
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11. 101. In its reply of 21 October 1960 the Government first states that it has taken note of the conclusions set out in paragraph 104 (b) of the 41st Report, quoted above. The Government then refers to the request made in subparagraph (iii) of the said paragraph; it states that the application of the principle of law is incumbent upon the judiciary power which is in this respect autonomous and independent and that the Government may not therefore intervene in the matter. The Government adds that if, in its application, the law proved to be unjust, it would have to be revised through the Cortes.
12. 102. In view of the explanations supplied by the Government, the Committee, recalling again the statement, already noted by the Governing Body, that workers cannot be punished merely on account of leaving their work, reaffirms the conclusions which it had already reached, to the effect that in its present form the Spanish legislation relating to strikes, including in particular the provisions of the Labour Charter, read with the State Security Act of 1941, and read with the Labour Code, entails a danger of being interpreted as absolutely prohibiting strikes, which would not be in harmony with the generally accepted principles concerning freedom of association; moreover, in view of the latest statement made by the Government according to which, in case of a misreading of the law, it would be incumbent upon the Cortes to proceed with the revision of the said law, the Committee recommends the Governing Body to decide, whilst taking due note of the Government's statement that it has noted the conclusions set out in paragraph 104 (b) of the 41st Report, to suggest again to the Government, as it had already done in the said paragraph, that it may wish to consider the desirability of submitting to the competent national authorities, that is, the Cortes, proposals for appropriate amendments to the above-mentioned legislative texts in so far as they affect the right to strike.
13. Allegations relating to the Draft Law Defining the New Powers of the Minister of the Interior as regards Maintenance of Public Order
14. 103. By a communication dated 21 June 1959 the General Union of Spanish Workers in Exile declares that the official bulletin of the Cortes dated 12 June 1959 contains the text of a draft law defining the new powers of the Minister of the Interior as regards maintenance of public order. According to this draft, it is alleged that the following acts would be punishable as contrary to public order: acts which may disturb public security, acts which may disturb regularity of supplies, acts which may disturb the normal operation of the public services, stoppages of work, strikes and the closing down of establishments. The same draft law adds that, if disturbances of public order are considered serious, the Minister will proceed to declare a state of emergency throughout Spain. In such a case, he will have the power to detain any person who in his opinion may prejudice public order, to search private homes by day or by night, to establish a censorship of all publications, broadcasts and public entertainments, and to set up emergency courts.
15. 104. The complainants declare that such a law, if it should come to be applied, would deprive the workers of essential means of defending and promoting their interests or of protesting against any injustice, every stoppage of work becoming, in fact, an offence resulting in trial by an emergency court.
16. 105. At its meeting in November 1959 the Committee, not then having received the Government's observations on this aspect of the case, decided to ask the Director-General to obtain the Government's observations before it made its recommendations to the Governing Body.
17. 106. The case having been submitted again to it at its May 1960 Session, the Committee noted that in a communication dated 15 February 1960 the Government stated that the Bill referred to in the allegations had been enacted as the Public Order Act on 30 July 1959.
18. 107. In the said communication of 15 February 1960 the Government denies that the Act makes " stoppages of work, strikes and the closing down of establishments " punishable as being contrary to public order. Section 2 of the Act, declares the Government, in which ordinary strikes (huelgas) are not mentioned, provides that collective stoppages of work (paros colectivos) and/or lockouts and illegal closures of undertakings shall be deemed contrary to law and order.
19. 108. The Government repudiates the contention that the competent Minister is empowered to declare a state of emergency throughout Spain, stating that the Act lays down strict criteria for the proclamation of " emergency ordinances and suspension of guarantees", for which provision is made in every country; under section 25 of the Act the Government (not the Minister) may declare a state of emergency by Legislative Decree, which must come immediately before the Cortes to be ratified or annulled (section 26) and, if ratified, must be reviewed by the Cortes after three months.
20. 109. With reference to the allegation that the declaration of a state of emergency authorises the competent Minister to effect arrests, order house searches and impose a censorship, the Government declares that such a situation subsists in the event of emergency in every country, but claims that provision is made to prevent abuses-thus, section 25 (2) of the Act provides that the Legislative Decree declaring a state of emergency must specify which legal guarantees are suspended, while section 30 provides that house searches and inspections shall be carried out in a proper and orderly manner and section 32 provides for the payment of compensation in respect of damage caused in this connection.
21. 110. The Government denies that the Act authorises the Minister to set up emergency courts, stating that if a state of emergency is declared the ordinary courts automatically become emergency courts on the instructions of the Judiciary alone; thus, in preparing cases, the examining magistrates, in complete independence, abide by the rules laid down in the Criminal Procedure Act " without any alteration other than those necessitated by the urgency of the case ", persons prosecuted being afforded all the guarantees of due process, defence, proof and appeal laid down in sections 49, 50 and 51 of the Act.
22. 111. With reference to the allegation that " the right to strike is specified as an offence which will be judged by the emergency courts mentioned in the draft Bill ", the Government declares that the Act does not create new offences but merely lists acts which are contrary to law and order. Section 44 states that the courts " shall try exclusively those acts listed in section 2 ... which constitute a criminal offence ". Such acts do not always constitute such an offence.
23. 112. In examining this aspect of the case at its May 1960 Session, the Committee considered that the essential point which required to be accurately defined before the Committee could reach a conclusion was the meaning of the words "collective stoppages of work" in section 2 of the Act. The Committee noted that it was alleged that the Act made strikes illegal; the Government stated that the word huelga-the ordinary word for " strike "-is not used but that section 2 of the Act renders " collective stoppage of work " (paros colectivos) contrary to public order and therefore punishable. As the exact shade of meaning was not clear, the Committee considered that before examining this aspect of the matter further it should ask the Government to explain the exact scope of the term " collective stoppages of work " (paros colectivos) and the circumstances in which cessations of work are regarded as strikes (huelgas) and not as " collective stoppages of work " (paros colectivos) punishable by virtue of the new Act.
24. 113. In its reply of 21 October 1960 the Government gives the following explanations in this respect. The Government considers that in the interpretation which it has given to the Act, and which is indicated in the preceding paragraph, the Committee does not attach sufficient importance to the terms of section 2 (c) which provides that: " collective stoppages of work, lockouts and the illegal closure of undertakings as well as any measure which may cause or give rise to one of these acts ... shall be deemed contrary to law and order ". The Government states that the term " illegal " used in the above-mentioned paragraph of the Act " is of major importance when it comes to interpreting the Act correctly; it should be stressed that this qualification applies to any possible act which might be committed on the fringe of the law and in violation thereof, whether it is carried out by the workers or the undertakings ".
25. 114. It appears from these explanations that, according to the Act, only stoppages of work and illegal lockouts are contrary to public order. The Government further states that contrary to the allegations of the complainants and the interpretation which seems to have been given to this by the Committee, such acts which are " contrary to law and order " are not punishable, as the only penalties which may be incurred are the small fines provided for in section 19 of the Act.
26. 115. The Government then indicates that the term " collective stoppages of work " has not been defined with greater precision by the Act in order that the text should be more flexible. According to the Government, it is up to the judge to decide in the first instance whether or not the act is a " collective stoppage of work ". In the affirmative, the act is in all cases " contrary to law and order ". The judge then decides whether the act is merely an act " contrary to law and order " which may entail nothing more than small fines mentioned in the previous paragraph, or whether in addition to being an act " contrary to law and order " the circumstances are such as to make it a crime which is then punishable by more severe penalties.
27. 116. As regards the definition of the term " crime " in this context, the complaint presented by the I.C.F.T.U dated 21 October 1960 and accompanied by a complaint presented by the W.F.T.U on the same subject, which was transmitted by the United Nations, alleges that a decree dated 21 September 1960 defines and extends the meaning to be attached to the term " crime of military rebellion ". According to this decree, the following shall be deemed guilty of military rebellion and punishable by the penalties prescribed in the Code of Military Justice: persons who broadcast false or tendentious news with a view to disturbing the public peace of the country, to provoking international conflict or to harming the prestige of the State, its institutions, the Government, the army or the Spanish authorities; those who in any manner whatsoever associate with a view to conspiring or who take part in meetings, conferences or manifestations with the same objectives. Thus, section 2 of the decree implies that strikes, sit-down strikes, acts of sabotage or other similar acts shall, when they are carried out for political reasons or when they are liable to disturb the public order, be considered as crimes of military rebellion punishable by the penalties prescribed in the Code of Military Justice.
28. 117. The complaint of the I.C.F.T.U dated 21 October 1960 has been transmitted to the Government by a letter dated 1 November 1960; the complaint of the W.F.T.U has also been transmitted to the Government. The latter has not yet had an opportunity of submitting its observations in regard to these complaints. In view of the fact that the questions raised in the latest complaints of the I.C.F.T.U and the W.F.T.U are closely connected with those considered in paragraphs 103 to 115 above, the Committee has postponed its examination of this aspect of the case until it has received the observations requested from the Government in regard to these two complaints.
29. Allegations relating to Measures Taken against Workers at the Shipyards of Sestao and Miners at the Maria Luisa Mines as a Result of Strikes
30. 118. In a communication of December 1957 the General Union of Spanish Workers in Exile alleges that several workers, a list of whom is supplied, have been punished as a result of a strike which took place in the shipyards of Sestao. The complainants do not, however, indicate what were the punishments incurred. They also indicate that the other workers having participated in the strike (the names of the workers are not supplied) were persecuted.
31. 119. At its May 1960 Session the Committee, in the absence of observations from the Government, decided to postpone its examination of this aspect of the case. In its communication dated 21 October 1960 the Government denies that there were any reprisals against the workers in the shipyards of Sestao. As regards the 11 persons specifically named, the Government supplies the following information. Mr. Restituto Pedro Marcos had been neither arrested nor sentenced; he was at present employed in the Metatal d'Echevarri Company of Biscay. Mr. Ignacio Sanz Larrea had had a previous conviction; he had been sentenced in 1939 for theft; he was imprisoned but released shortly afterwards; he was at present employed in the firm of Industrias Juste, S.A. Mr. Carlos Casaseca Casado had been neither arrested nor brought to trial; he was at present employed in the shipyards of Cadagua. Mr. Pablo Rodriguez de Castro had not been brought to trial; he was at present employed by the firm of Industrias Juste, S.A. Mr. Juan de la Fuente had been neither arrested nor brought to trial; he had emigrated to Australia. Mr. Gregorio Rocandio had been neither arrested nor brought to trial; he was employed by the IPSA factories of Bilbao. Mr. Ernesto Montalbán had been neither arrested nor brought to trial; he was at present employed by the Metallurgical Factory of Bucena. Mr. Juan José Galindo had been neither arrested nor brought to trial; he was at present working on the Somne dam. Mr. Roberto Hornes had been neither arrested nor brought to trial: he was at present employed in the Euskalduna shipyard and towing company of Bilbao. Mr. Antonio Narváez had been neither arrested nor brought to trial; he was at present employed in the same company as Mr. Hornes. Mr. Andrés González had been neither arrested nor brought to trial; he was at present employed in the apprenticeship school of Orcuella.
32. 120. The General Union of Spanish Workers in Exile alleges also that several workers in the Maria Luisa Mines-two of whom are specifically named-were sentenced by a military court for having participated in a strike.
33. 121. In its reply the Government states that in 1957 there were several acts of sabotage in the Maria Luisa Mines. The workers having taken part in these acts of sabotage included persons who were doing their military service, by special assignment. Following the sabotage, the mobilised workers were sent back to their regiment in Oviedo. The Government states that, in addition to the two persons mentioned by the complainants, six other workers had been arrested for sabotage and acts of violence and condemned to imprisonment in terms of six months and one day. Finally, the Government states that the persons concerned were all released a long time ago and had returned to work.
34. 122. It would appear from the detailed information supplied by the Government that the workers employed in the shipyards of Sestao, who were mentioned by the complainants, had not been seriously prejudiced because of their participation in the strike of 1957: none of them had been arrested, none had been brought to trial and all, with the exception of one who had emigrated to Australia, appeared to be normally employed in various undertakings. In these circumstances, and in view of the rather vague character of the allegations made, the Committee considers that the complainants have not offered sufficient evidence to show that there was any infringement, in this case, of freedom of association.
35. 123. As regards the measures taken against certain workers in the Maria Luisa Mines, these appear to have been the result of acts of sabotage and not due to trade union activities. Moreover, the workers affected by these measures appear to have been serving in the armed forces at the time when the events occurred. In these circumstances, and in view of the fact that the persons concerned all seem to have been released, the Committee considers that the complainants have not offered sufficient evidence to show that there was any violation of freedom of association in this case.
36. 124. Consequently, for the reasons indicated above in paragraphs 118 to 123, the Committee recommends the Governing Body to decide that the allegations relating to measures taken against workers at the Sestao shipyards and miners at the Maria Luisa Mines do not call for further examination.
37. Allegations relating to the Arrest of 34 Workers in Asturias and the Exile of 17 Others to Extremadura for Having Participated in Strikes
38. 125. In a communication dated 31 December 1958, addressed to the Secretary-General of the United Nations and transmitted by him to the I.L.O, the General Union of Spanish Workers in Exile alleges that 34 workers were then still imprisoned after having been arrested for having participated in the strikes of Asturian miners in March 1958, while 17 others had been exiled to Extremadura.
39. 126. At its May 1960 Session the Committee, in the absence of observations from the Government on this aspect of the case, decided to adjourn its examination of the matter to the present session.
40. 127. In its reply dated 21 October 1960 the Government states that 32 workers-and not 34 as claimed by the complainants-had been sentenced, not for having participated in a strike but for having secretly reconstituted the Communist Party of Asturias, this being a punishable crime in Spain in virtue of the national legislation. The trial took place on 22 December 1958, in the presence of Spanish and foreign journalists, and had been carried out in accordance with the guarantees of a normal judicial procedure. The Government states that Mr. Higinio Canda Diaz, who had been responsible for liaison with the French Communist Party, who had been on several trips to France, and who was the principal instigator of the movement for the reconstitution of the Asturian Communist Party, had received the most severe sentence, the other persons having received lighter convictions. The Government ends by stating that most of these had now served their sentence and been released.
41. 128. In the light of the explanations supplied by the Government, the Committee considers that the arrest of the persons mentioned in the complaint presented by the General Union of Spanish Workers in Exile appears to have been due to the unlawful political activities of the persons concerned and not to their trade union activities or their participation in a strike. Moreover, in view of the fact that the penalties incurred by the persons in question were imposed by a court, sitting in public, and in accordance with the normal judicial procedure which appears to afford the necessary guarantees, the Committee recommends the Governing Body to decide that it is unnecessary to examine further this aspect of the case.
42. Allegations relating to the Arrest of 32 Workers for Having Attempted to Reorganise the General Union of Workers in Saragossa
43. 129. In a letter dated 17 March 1959 the General Union of Spanish Workers in Exile alleges that 32 workers were arrested in Saragossa in 1948 for having attempted to reorganise the General Union of Workers, held in jail for a year, then released on bail and finally, on 17 February 1959, 11 years later, sentenced to terms of imprisonment varying from three months to six years. The complainants give the names of the workers concerned.
44. 130. At its session held in May 1960 the Committee, in the absence of observations from the Government, decided to adjourn the examination of this aspect of the case until its next session.
45. 131. In its reply, dated 21 October 1960, the Government confirms the fact that 32 persons were arrested in Saragossa in 1948. It states, however, that the reason for this measure lay in the fact that the persons concerned had engaged in unlawful propaganda, that they were unlawfully possessed of firearms and had attempted to establish a political party of Marxist tendencies-an act which was punishable under Spanish legislation. The reason for which the trial of the persons concerned had only taken place some years later lay in the fact that the matter was within the competence of the ordinary courts and not of the military courts. As the competent tribunal had had to consider a large number of earlier cases, the matter in question had only been brought before it in 1959. The Government states that in the interval the persons in question were free and could pursue their normal occupations. The sentences handed down by the competent tribunal, which had followed a procedure ensuring the respect of the appropriate guarantees, had not exceeded six months, except in the case of Mr. Bernardo Garcia Miguel and Mr. Donato Navarro Jaulin, both of whom had had previous convictions. All the other persons were at present free and had resumed their normal occupations.
46. 132. In view of the explanation supplied by the Government the Committee considers that, in this case also, the arrest of the persons mentioned by the complainants appears to have been due to the unlawful political activities of the persons in question and that since the sentences incurred by them had been handed down by an ordinary court, in accordance with a procedure which appeared to afford the necessary guarantees, it should recommend the Governing Body to decide that it is unnecessary to examine further this aspect of the case.
47. Allegations relating to the Arrest in February 1960 of Trade Unionists
48. 133. In a communication dated 18 August 1960 the W.F.T.U alleges that in February 1960, in the course of a large-scale police operation covering the principal cities of Spain, a considerable number of workers and trade union leaders were arrested, ill-treated and gaoled because of their trade union activities, having presented and defended economic and social claims with a view to obtaining improved conditions of living and of work. The complainants supplied a list with the names of 21 persons having thus been arrested.
49. 134. This complaint of the W.F.T.U was communicated to the Government by a letter dated 5 September 1960. The Government has not yet made any observations in this connection.
50. 135. In these circumstances the Committee recommends the Governing Body to request the Government to furnish its observations on this aspect of the case; to draw the attention of the Government to the fact that the allegations in question fall within the category of those which are required to be treated as urgent, in accordance with the decision taken by the Governing Body in November 1958, in view of the fact that they relate to matters involving human life or personal freedom; and to request the Government accordingly to furnish a particularly speedy reply in regard to the matters raised.
51. Allegations relating to Proceedings Instituted in Catalonia Against 99 Workers Accused of Having Attempted to Reconstitute the National Confederation of Labour, Which Was Outlawed When the Present Government Carne to Power
52. 136. In a communication dated 13 September 1960 the General Union of Spanish Workers in Exile presents a number of allegations relating to the situation of trade unionism in Spain in connection with the proceedings, not yet concluded, which were instituted against 99 workers accused of having attempted to reconstitute the National Confederation of Labour, which was outlawed when General Franco came to power. A memorandum attached to the complaint contains an analysis of the acts of which the prisoners are accused, of the procedure followed to date, and of the legislation on the basis of which the proceedings were instituted.
53. 137. The complaint and its appendix were transmitted to the Government by a letter dated 23 September 1960. The Government has not yet furnished its observations in this connection.
54. 138. In these circumstances the Committee recommends the Governing Body to request the Government to furnish its observations on this aspect of the case as soon as possible, and to decide meanwhile that the examination of the allegations in question should be postponed.