Informe provisional - Informe núm. 76, 1964

1. 272. The Committee has already reported to the Governing Body on this case in its 66th, 68th, 70th, 72nd and 74th Reports. In paragraph 200 of its 74th Report, the Committee made a series of recommendations to the Governing Body. By letter dated 19 April 1964 the Government has now sent its observations with regard to a number of those recommendations, which relate to the various allegations previously examined by the Committee.

Allegations relating to Arrests and Deportations as a Result of the Strikes of 1962

1. 273. In Paragraphs 170 to 176 of its 74th Report the Committee examined the situation in regard to these allegations. The Government had persisted in its refusal to make available the texts of the judgments concerning the 47 persons convicted in connection with the strikes of 1962 ; however, the Government stated that 37 of those persons had been released and that ten were still in prison, although their sentences had been reduced. It was stated that six of these ten persons would probably be released before the beginning of 1965. The Government also reported on the nature of the offences of which these ten persons had been convicted. The Government had also sent the text of Act No. 154/1963 to establish public order courts and a corresponding examining magistrate's office.
2. 274. In the circumstances the Committee made the following recommendation to the Governing Body in paragraph 200 (a) and (b) of its 74th Report:
3. ......................................................................................................................................................
4. (a) to note, with regard to the allegations relating to arrests and deportations as a result of the strikes of 1962, the Government's statement, in its communication dated 10 February 1964, that 37 of the 47 persons stated to be still in prison in January 1963 have now been liberated as a result of clemency measures, that the ten persons still in prison were sentenced for having committed acts designed to bring about the forcible overthrow of the Government, and that six of these ten persons are likely to be released by the beginning of 1965 ;
5. (b) to note that Act No. 154/1963 establishing a court and tribunal of public order sets up a tribunal and a court within the ordinary judicial system with sole power to deal with a series of offences, usually under the shortened emergency procedure provided for by the Criminal Indictment Act (Book IV, Title III), and that the Act also provides for the possibility of review in cases where the final decision has not been given;
6. ......................................................................................................................................................
7. 275. In its communication of 29 April 1964, the Government stated that by Decree No. 786/1964 (the text of which was enclosed) a general amnesty had been granted to supplement the eight previous general amnesties granted over the last 25 years. The Committee notes that sections 4 and 5 of the decree seem to be applicable to the ten convicted persons. Under section 4 an amnesty is granted amounting to one-sixth of the sentences imposed for crimes or misdemeanours committed prior to 1 April 1964. Section 5 provides that if a partial reduction provided for in the last preceding section coincides with reductions under other general amnesties, the total reduction shall not exceed one-half of the duration of the sentence or sentences of imprisonment that have been or may be imposed. The Committee therefore recommends the Governing Body to take note of this further amnesty decreed by the Spanish Government and to request the Government to report how the ten convicted persons have been affected by this decree.
8. 276. The Government also reports that the provisions establishing the Special Military Court and defining its powers were abrogated by Decree No. 712/1964, a copy of which is also enclosed with the letter. Under the decree cases that were pending before the said Court are to be tried by the ordinary courts. The Committee recommends the Governing Body to take note of this measure.
9. Allegations relating to Measures of Compulsory Residence on Account of Trade Union Activities
10. 277. In its 74th Report the Committee re-examined, in the light of the Government's comments in its communication dated 10 February 1964, the position in relation to the allegations submitted by the International Confederation of Free Trade Unions (I.C.F.T.U.) and the International Federation of Christian Trade Unions (I.F.C.T.U.) in their joint communication dated 21 August 1963 concerning the compulsory residence orders issued in respect of certain of the participants in the Asturian strikes of 1962.
11. 278. The Committee consequently recommended the Governing Body in paragraph 200 (c) of its 74th Report:
12. ......................................................................................................................................................
13. (c) with respect to the allegations relating to measures of compulsory residence on account of trade union activities:
14. (i) to take note of the fact that, at the present time, none of the persons in question is subject to a compulsory residence order;
15. (ii) to take note of the fact that the Government refers only in general terms to the activities of a subversive character which are stated to have been the reason for the measures taken against them, and that it supplies no details concerning the procedure employed in taking such measures ;
16. (iii) to draw the Government's attention to the importance which the Governing Body has always attached to ensuring due process of law whenever trade unionists are charged with offences of a political character or ordinary crimes, expressing the hope, as it did in a previous case concerning Spain, that governments desiring to see labour relations develop in an atmosphere of mutual confidence will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights ;
17. ......................................................................................................................................................
18. 279. In its communication dated 29 April 1964 the Government refers particularly to subparagraph (ii) above and states once again as it had already done in its previous communication that these measures were taken by the competent authorities in accordance with the Legislative Decree of 8 June 1962 and with article 35 of the Spaniards' Charter. The Government states that these provisions determine what legal procedure would be followed. Moreover, the judiciary power, acting through the administrative courts, is responsible for supervising all the activities of the administration and the public authorities. The administrative courts, which are governed by an Act of 26, December 1956, are competent to consider the substance of measures taken under government powers with regard to public order, and the courts have accordingly annulled a number of measures and penalties imposed.
19. 280. The Committee regrets that the Government should not have specified, on this occasion either, the particular acts alleged to have been committed by the persons in respect of whom compulsory residence orders were issued. Similarly the Committee must regret that the Government should have made no specific reference to the procedure followed in issuing such orders; the information the Government supplies refers solely to legal provisions that empowered the authorities to issue such orders, and not to the procedure as such.
20. 281. On the other hand the Committee notes that according to the information supplied by the Government the orders issued by the authorities under their powers with regard to public order-and therefore also forced residence measures-are subject to review by the administrative courts, which may consider the substance of the case. The Committee considers that, even though this possibility of appeal to the courts can afford a remedy for injustices, it does not prevent unjust measures from being imposed which could as an immediate consequence affect workers in their trade union activities. In this connection the Committee recalls that according to the Government's communication of 10 February 1964 none of the forced residence measures was any longer in effect once the circumstances that had given rise to them no longer existed. However, in the same communication the Government also stated that these measures were taken on account of activities of subversive intent, or of the organisation of subversion or incitement to subversion. It would seem, therefore, that the Government issued compulsory residence orders in respect of the persons concerned-who were accused of having committed certain offences-without any form of trial, and that once "the circumstances" that called for these measures no longer existed the orders were no longer applied. This means, in other words, that the persons in question can be sentenced to compulsory residence without any decisions being taken as to whether they are really guilty, and that they later recover their freedom of action not because they have served a sentence but because the situation which gave rise to the measure has altered.
21. 282. The Committee cannot refrain from emphasising the possibilities of abuse that can arise from such a situation, especially with regard to trade union activities, and recommends the Governing Body to urge the Government, when it draws the Government's attention to the contents of the last two paragraphs, to have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under ordinary law rather than to emergency measures.
22. Allegations relating to the Spanish Legislation concerning Strikes
23. 283. When it analysed this aspect of the case in its 74th Report, the Committee had before it the Government's communication dated 10 February 1964. On the basis of its examination of that communication the Committee recommended the Governing Body, in paragraph 200 (d):
24. ......................................................................................................................................................
25. (d) with respect to the allegations relating to the national legislation concerning strikes:
26. (i) to take due note of the Government's statement, in its communication dated 10 February 1964, that there is no ground for any interpretation of existing Spanish legislation as meaning that there is an absolute ban on strike action, that Decree No. 2354/62 recognises that collective disputes of an industrial character are lawful and that section 222 of the Penal Code has constantly been interpreted as meaning that only strikes which were intended to cause subversion or sedition could be considered to be illegal;
27. (ii) to reaffirm the views expressed in paragraphs 137 to 138 of the 68th Report of the Committee that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised and that restrictions imposed on strikes should be accompanied by adequate, impartial and speedy conciliation and arbitration procedure;
28. ......................................................................................................................................................
29. 284. In its further communication dated 29 April 1964 the Government refers to previous reports supplied with regard to the conciliation and arbitration procedures provided for under Spanish law, and states that these procedures are in conformity with the recommendation of the Committee on Freedom of Association. The Government refers to paragraph 152 of the 68th Report, which mentions the recommendation of the Committee that the restriction of strikes should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures.
30. 285. The Committee must explain in this respect that the recommendation in question refers not to the restriction of the right to strike as such but to the restriction of that right in essential services or in the public service, in relation to which the Committee has stated that adequate guarantees should be provided to safeguard the workers' interests.
31. 286. The Committee therefore recommends the Governing Body to draw the Government's attention to the contents of the last paragraph and to repeat that, when strikes are prohibited or restricted in essential services and in the public service, the Committee has always attached importance to the provision of adequate guarantees to safeguard the interests of the workers who through such prohibition or restriction are deprived of an essential means of defending their occupational interests.
32. Allegations relating to the Strikes of 1963
33. 287. In its 74th Report the Committee continued its examination of these allegations made by the I.C.F.T.U and the I.F.C.T.U in their communications dated 16 August, 21 August and 24 September 1963, concerning which the Government furnished observations in two communications dated 16 and 19 October 1963. The complainants had given the names of eight persons, Messrs. Pedro León Alvarez, Leonardo Velasco Garcia, Gerardo Alvarez Garcia, José Cuesta Garcia, Antonio Paredes Fernández, Francisco Rubio Casa, César Fernández Fernández and Faustino Rodriguez Garcia, who had been arrested on the grounds that they had been ringleaders in the Asturian strikes of 1963 and had engaged in subversive propaganda activities. In its communication of 10 February 1964 the Government stated that of the eight persons arrested Mr. Pedro León Alvarez had already been released.
34. 288. On that occasion the Committee analysed the joint complaint of the I.C.F.T.U and the LF.C.T.U contained in a communication dated 8 October 1963 in relation to which the Government had made no observations. In that communication, the I.C.F.T.U and the I.F.C.T.U gave details of the ill-treatment and tortures alleged to have been inflicted on Rafael González, Silvino Zapico and his wife, Vicente Marañaga, Alfonso Braña and his wife, Antonio Zapico, Jerónimo Fernández Terente, Jesús Ramos Talavera, Everardo Castro, Tina Martinez, Juan Alberdi and others. The first of those named was stated to have died as a result of his tortures. It was also alleged that firms not affected by the strikes which took on workers who had taken part in them were made to pay a fine of 1,000 pesetas the first time and 6,000 pesetas the second time, while if they did so a third time, they were closed down. According to the complainants this information was obtained from a letter to the Minister of Information and Tourism signed by over 100 intellectuals ; a copy of this letter was attached to the complainants' communication.
35. 289. With regard to these allegations the Committee recommended the Governing Body in paragraph 200 (e) of its 74th Report:
36. ......................................................................................................................................................
37. (e) with respect to the allegations relating to the strikes of 1963, to take note that Mr. Pedro León Alvarez has been released ; that the seven other persons mentioned by the complainants are still at the disposal of the authorities without having been sentenced; and that the Government has not yet furnished observations on the detailed allegations made in the complainants' communication dated 8 October 1963 ;
38. ......................................................................................................................................................
39. 290. In its communication of 29 April 1964 the Government reported that Pedro León Alvarez and the other seven persons referred to in subparagraph (e) quoted above had been tried by the provincial court of Oviedo, that is to say by the ordinary court. All these persons have now been released. The Government does not refer to the allegations contained in the letter of 8 October 1963.
40. 291. The Committee observes that the eight persons mentioned in the original complaint have now been released but that the Government has not sent in the copies of the judgments that were previously requested. In the circumstances the Committee cannot properly weigh the statements made by the complainants, nor give an opinion on the allegations themselves. The Committee therefore recommends the Governing Body to express its regret that the Government should have failed to send in the texts of the judgments it had been requested to supply, and to note that the persons mentioned by the complainants have now been released after trial by an ordinary court.
41. 292. As regards the complaint contained in the complainants' communication dated 8 October 1963 the Committee recommends the Governing Body to also express its regret that the Government has not replied, and to urge the Government to do so with the shortest possible delay.
42. Despatch of a Commission of Inquiry
43. 293. In paragraphs 197 to 199 of its 74th Report, the Committee reconsidered the question of the requests made by various trade union organisations for the sending of a commission of inquiry.
44. 294. On that occasion the Committee stated
45. 198. The Committee observes that the first of such requests was made in 1962, in connection with matters arising out of the strikes of 1962, when the immediate question before the Committee was to determine whether the persons arrested at that time had engaged in the lawful exercise of the right to strike-which the Government had said [was] not per se unlawful-or in subversive activity, a matter in the determination of which the Committee has pointed out that it cannot assess the relative weight of the assertions of the complainants and the denial by the Government in the absence of corroboration by satisfactory evidence. While certain information has since then been furnished by the Government with regard to the cases of 47 persons arrested in connection with the strikes of 1962, the Committee notes that further requests for an inquiry have been related to the arrests and other matters arising out of the strikes of 1963, on which the Government has not furnished further information requested of it, and the matters raised in the complaint of the I.C.F.T.U and LF.C.T.U dated 8 October 1963, on which the Government has furnished no observations. This question, therefore, is still pending before the Committee.
46. In paragraph 200 (f) of its report the Committee recommended the Governing Body:
47. ......................................................................................................................................................
48. (f) to note that the Committee proposes to examine further at its next meeting (3-4 June 1964), prior to the 159th Session of the Governing Body, in the light of whatever evidence may have been submitted to it by that time, the question as to whether it should recommend the Governing Body to request the Government to give its consent to a fuller investigation of such of the matters which have been in issue before the Committee as then remain pending.
49. 295. With regard to the matters mentioned in paragraph 198 of the Committee's 74th Report, the position is now as follows: with regard to the ten persons who were still imprisoned (out of the 47 who had originally been convicted) on account of the strikes of 1962 the Government has stated that a new general amnesty, which seems to cover these persons also, was decreed on 1 April 1964, and the Committee has recommended the Governing Body to ask for particulars of the manner in which the amnesty affects the said persons. With regard to the allegations concerning the arrest of ten persons on account of the strikes that occurred in 1963, the Committee already noted in its 74th Report that one of these persons had been released, and the Government now reports that the other nine were tried by the ordinary courts and have now been released. Finally, with regard to other allegations connected with the strikes of 1963 and contained in the complaint of the I.C.F.T.U and the I.F.C.T.U dated 8 October 1963, the Government has not yet furnished its observations.
50. 296. The Committee observes that though the Government has refused to furnish the texts of the judgments handed down with regard to the persons convicted in respect of the strikes that occurred in 1962 and 1963-a refusal in regard to which the Committee must express its deep disappointment-most of the persons concerned have now been released and the remainder seem to have recently benefited by a further amnesty. However, the Committee still has before it the question of the despatch of the Government's observations on the complaint dated 8 October 1963.
51. 297. The Committee considers that the information supplied by the Government reveals that there has been some improvement in the situation referred to in the complaints, especially with regard to the release of the persons who had been arrested on account of the strikes. The Committee accordingly considers that on this occasion it should not recommend the Governing Body to carry out a fuller investigation of the case.
52. 298. Certain of the allegations examined above relate to the exercise of the right to strike. As the Committee has observed in its previous reports on this case as well as in reports dealing with other cases, allegations relating to strikes are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights.