Informe provisional - Informe núm. 56, 1961

1. 87. At its 27th Session (February 1961) the Committee continued its examination of this case and submitted an interim report, contained in paragraphs 43 to 54 of its 52nd Report which was approved by the Governing Body at its 148th Session (7-10 March 1961). Only the allegations still pending are dealt with below.

A. A. The complainants' allegations

• 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 Came to Power
  88. 88 In a communication dated 13 December 1960 the General Union of Spanish Workers in Exile presented 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 on charges of having attempted to reconstitute in 1947 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, and the procedure followed to date and of the legislation on the basis of which the proceedings were instituted. The acts of which the persons concerned are accused include the reconstitution of an outlawed association, unlawful propaganda, the distribution of illicit pamphlets and the possession of forbidden arms.
  89. 89 At its sessions of November 1960 and February 1961 the Committee, in the absence of observations from the Government on these allegations, adjourned its examination of this aspect of the case and asked the Government for a reply on the matter. This reply was sent in the Government's communication of 23 February 1961.
  90. 90 In this communication the Government states that the conclusions of the proceedings instituted in Barcelona in 1947 showed that the persons in question had admitted to constituting a secret movement with a view to overthrowing the régime by force, thus endangering public order and the safety of citizens. The reconstitution of a dissolved trade union organisation is not included amongst the charges mentioned. The documentation seized showed that the conspirators had succeeded in organising guerilla groups under military command and directed by a general staff. The documents had also shown that a " national plenary of regional committees " had met secretly on 25 to 27 February 1947, and that the work on the agenda of this plenary included the Constitution of a " coalition government of the political parties opposed to the régime ", the establishment and use of a code for ciphered messages and precise instructions given to delegates of the frontier zones to facilitate the supply of information regarding fortifications, and to establish the necessary organisation to ensure the passing of material and officers from France to Barcelona.
  91. 91 The Government continued by stating that the terrorist methods which the conspirators intended to use could be implied from the documents seized in the offices of the organisation. It cites the following amongst the documents assembled: a list of public officials holding offices which are qualified as repressive, including information as to their addresses-this 20-page document includes both the highest authorities and the lowest categories of officials; a communication addressed to the foreign subcommittee requesting urgently war material and means to ensure the reorganisation of the " defence ", as well as another communication addressed to the same body stressing the need for specified material, including in particular explosives, hand grenades and machine-guns; instructions regarding the organisation and working of information and counter-inquiry sections in all the defence secretariats or defence sections in Catalonia, as well as a plan indicating what objectives would be the first attacked; a list of the names of all chiefs and officers employed in the various military tribunals in Barcelona and the provinces, together with their addresses; information supplied by the regional federation of Ripoll on the state of the forces and of the frontiers, and regarding the armed police units established in various parts of the town, together with a budgetary plan for the acquisition of a transmitter.
  92. 92 The Government concludes by stating that in 1948 the military authorities decided not to proceed with the question and referred it to the ordinary courts, which decided that all the persons implicated should be released provisionally; the situation of these persons has remained unchanged.
  93. 93 It would appear from the detailed information supplied by the Government in its reply that the persons implicated in the matter in question had been proceeded against for having participated in activities which were eminently political and distinct from trade union activities. In these circumstances the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Arrest of Trade Unionists in February 1960
  94. 94 The Committee examined the allegations made and the observations sent by the Government in this connection. While agreeing that the measures in question might have been occasioned by political and not trade union activities, the Committee considered that before formulating further recommendations to the Governing Body, and having regard to the importance which it has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers to have no relation to their trade union functions, the Government should be requested to furnish information as to the legal or judicial proceedings taken in the case of the persons referred to by the complainants, and as to the results of such proceedings.
  95. 95 In its communication of 23 February 1961 the Government refers in this connection to the observations made in its communication of 3 December 1960, that is, the communication on the basis of which the Committee had reached the conclusions mentioned in the preceding paragraph. Thus, the said governmental communication of 3 December 1960 supplied information on the reasons for which measures had been taken against the trade unionists in question, but contained no information on the proceedings instituted in this connection. It was for this reason that the Committee had asked the Government for further information.
  96. 96 In these circumstances the Committee recommends the Governing Body to request the Government once again to be good enough to supply information regarding the legal or judicial proceedings taken in the case of the persons referred to by the complainants and as to the results of such proceedings.
• Allegations relating to the Act Defining the New Powers of the Minister of the Interior as Regards Maintenance of Public Order and the Decree Defining the Term "Crime of Military Rebellion "
  97. 97 The Committee examined these allegations in detail in paragraphs 103 to 117 of its 49th Report, submitted to the Governing Body in November 1960. However, it decided at the time that before making final recommendations to the Governing Body it would wait for the Government's observations on two new complaints, the subject of which is closely related to the allegations examined in its 49th Report.
  98. 98 Thus, a complaint by the I.C.F.T.U dated 21 October 1960, accompanied by a complaint by the W.F.T.U on the same subject which was transmitted by the United Nations, alleges that a Decree of 21 September 1960 defines and extends the meaning to be attached to the term " crime of military rebellion ". The complainants indicate that, 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 assist with a view to conspiring or who take part in meetings, conferences and manifestations with the same objectives. Thus, section 2 of the decree provides 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.
  99. 99 In its reply of 23 February 1961 the Government refutes the complainants' affirmation that, in virtue of this decree, strikes and other similar acts are considered as military offences, not only when they are of a political nature, but also when they cause serious disturbances of the public order. " This affirmation ", declares the Government, " is tendentious and is due to the fact that section 2 has not been correctly read or interpreted." It applies to acts relating to penal law which are specified in paragraphs 1 and 2 of this section. Thus a separate paragraph specifies, not that they " shall be considered as acts of rebellion ", but that they " might also have this character "; this shows that this is merely a possibility and not a concrete assertion, and that it applies only when it may be claimed that this possible qualification is appropriate, that is when the strikes are made for political reasons or when they are liable to cause serious disturbances of the public order.
  100. 100 In issuing the Decree of 21 September 1960 the Spanish State had taken as a criterion the fact that a strike which is not purely of an occupational, social or trade union character, but in which there is a political element, may result in serious public disturbances. " In such cases ", indicates the Government, " it is logical to adopt any preventive measures which might prevent such disorders, which are always contrary to the true interests of the community. Nevertheless, it should be stressed that these preventive measures would only be applied if the strike were made for political rather than occupational or trade union reasons."
  101. 101 It is not exact, therefore, to claim-adds the Government-that any strike resulting in serious public disorders falls within military jurisdiction and that all strikes have been deemed acts of military rebellion. Section 8 of the decree in question specifies that military jurisdiction shall be competent " solely as regards offences covered by this provision "; thus it does not cover all strikes but only those which present the characteristics provided for by section 2, in other words those which, because they are carried out for political reasons or because they are liable to disturb the public order, are not aimed at the normal objectives of social strikes. Section 8 also provides that if the acts are not serious, or if they cannot be considered as a crime of military rebellion, they must also be tried in accordance with the ordinary legislation; in this case the military courts refer them back to the ordinary courts.
  102. 102 It appears from the various replies communicated by the Government as regards this aspect of the case that, as already noted, only stoppages of work and illegal lockouts are contrary to public order, in accordance with the Act of 30 July 1959 respecting public order. Moreover, it seems that 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. In addition it seems to be 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 the small fines mentioned above 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.
  103. 103 As regards the definition of the term " crime " in this connection, the explanations supplied by the Government in respect of the complaints concerning the Decree of 21 September 1960 show-and this seems to be confirmed by the text of the decree in question that the strikes which are considered as crimes of military rebellion and which, as such, fall within military jurisdiction, are those which are not social or occupational in character but which are carried out for political reasons or which are liable to cause serious disturbances of public order. It should be noted in particular that section 2 of the decree enumerates restrictively it would appear-the acts to be considered as crimes falling within military jurisdiction. It would appear from this enumeration that the acts covered by this provision are quite different in character from normal trade union activities, even in the wide sense of this term.
  104. 104 The fact remains however that strikes " liable to cause serious disturbance of public order " constitute, or may constitute, a crime which, according to the decree, falls within military jurisdiction. It is true that section 8 of the decree specifies that the acts (including strikes) which are not as serious as those which the decree purports to cover, shall be referred to the ordinary courts. However, in the absence of any clear criteria in the matter, the fact remains that the idea of possible disturbance of public order, unless it is otherwise qualified, is so vague that improper recourse may be had to it and that this may result, in extreme cases, in the prohibition of all strikes.
  105. 105 In its reply the Government implies on several occasions that strikes which are concerned solely with labour claims cannot be considered as strikes liable to disturb public order and that consequently they are excluded from the scope of the decree under discussion. However, as the Government's explanations on this point are not quite clear, the Committee considers it important that it should know whether strikes relating solely to labour claims are to be considered as automatically excluded from the scope of the decree, and, therefore, recommends the Governing Body to request the Government to furnish a reply on this matter, and to adjourn meanwhile the examination of this aspect of the case.