Interim Report - Report No 74, 1964

Case No 294 (Spain) - Complaint date: 27-AUG-62 - Closed

1. 169. The Committee has already reported on this case to the Governing Body in its 66th, 68th, 70th and 72nd Reports. The matters still outstanding, concerning which the Committee has not submitted definitive recommendations to the Governing Body, are the allegations relating to arrests and deportations as a result of the strikes of 1962, to measures of compulsory residence on account of trade union activities, to matters arising out of the strikes of 1963 and to the national legislation concerning strikes and the demand for the sending of a Commission of Inquiry to Spain. These outstanding matters are dealt with in the present report.

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

1. 170. These allegations and the previous examination thereof by the Committee were analysed in paragraphs 96 to 115 of the 72nd Report of the Committee. In particular, the Committee had before it at its meeting in November 1963 a communication from the Government, dated 3 May 1963, in which the Government gave its reasons for not furnishing, as requested by the Governing Body, the texts of the judgments handed down by the national courts in the cases of 47 persons charged with offences connected with the strikes of 1962 and stated by the Government, in its earlier communication dated 14 January 1963, still to have been in prison at that time. In the same communication dated 3 May 1963, the Government informed the Committee that it had recently submitted to Parliament a Bill which, first of all, made an exception to certain penal provisions and, secondly, transferred to the ordinary courts of law competence in respect of certain offences for which a special judicial authority had hitherto been competent. In a communication dated 29 July 1963, the Government reaffirmed the foregoing points and added that a Decree of 24 June and an Order of 19 July 1963 had amnestied a number of the 47 persons concerned and reduced the sentences passed on some of the others.
2. 171. In these circumstances, the Committee recommended the Governing Body, in paragraph 138 of its 72nd Report:
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4. (b) to ask the Government to give its full co-operation in the examination of this case, and to request the Government once again to furnish the texts of the judgments handed down in the proceedings instituted against the 47 persons referred to in the communication from the Spanish Government dated 14 January 1963;
5. (c) to take note of the fact that, as regards the Bill submitted to Parliament, in the first place there does not appear to be any possibility of review of the sentences in question, and that in the second place it is proposed to set up a special judicial authority, the Public Order Court and Tribunal, which instead of the ordinary courts of law, would be given exclusive jurisdiction to try a series of offences, and to request the Government to keep it informed as to the text as finally passed by the legislature;
6. (d) to take note of the measures of clemency decreed by the Government and affecting the 47 persons on whom the sentences in question were imposed, and to request the Government to be good enough to inform it as to the present position of the persons in question as a result of such measures.
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8. 172. These conclusions and requests for information, having been approved by the Governing Body at its 157th Session (November 1963), were brought to the notice of the Government by a letter dated 27 November 1963.
9. 173. In a communication dated 10 February 1964, the Spanish Government has forwarded a number of comments or details in reply to the request made in paragraph 138 of the Committee's 72nd Report. The Government maintains its standpoint with regard to supplying copies of the judgments, and refers to its previous arguments on this point. It contends that this case involved a matter of principle because the said judgments did not concern workers or trade unionists as such, or because of their participation in industrial disputes. According to the Government, these judgments were not based on section 222 of the Penal Code, which deals with strikes called for the purpose of causing social subversion. Referring to the Committee's statement of its views, the Government asserts that the decisions of courts of law forming part of a completely independent branch of the State cannot be described as "measures of a political nature". Accordingly, the argument that "no one can be a judge in his own case" is hardly applicable, because the judicial function was discharged by a branch which was fully independent of the Executive.
10. 174. However, the Government declares that 37 of the persons concerned have been released as a result of clemency measures. The remaining ten are still in prison, but their sentences have been reduced and it is anticipated that six of these may be released between March 1964 and the beginning of 1965. In the case of the said ten persons the Government furnishes information as to the nature of the offences in respect of which they were convicted. Ramón Ormazábal Tife was found to have entered Spain with false papers under an assumed name, and admitted being a member of the executive of the clandestine Spanish Communist Party and responsible for organising its activities in - Spain for subversive purposes. Gregorio Rodriguez Gordon was found to be an agitator belonging to the Spanish Communist Party in exile who accompanied Ramón Ormazábal Tife and entered Spain in the same way and for similar purposes. Agustin Ibarrola Goicoechea was found to be local director of the Spanish Communist Party in close touch with the foregoing persons and carrying on similar activities. José Jiménez Pencás, Gonzalo Josh Villate Fernández, Vidal Nicolás Moreno, Enrique Mugica Herzog, Andrós Pérez Salazar and José Maria Ibarrola Goicoechea were found to have engaged, together with the persons referred to above, in the drafting and distribution of subversive propaganda for the forcible overthrow of the Government and for the interests of their party. Angel Abad Silvestre was found to be an organiser of the Catalan Workers' Front, a local subsidiary of the Communist Party, one of whose declared aims, according to the pamphlets he distributed, is "to take advantage of any demands by the workers to foment struggle, even by use of violence, for subversion aimed at the overthrow of the present Spanish régime".
11. 175. The Committee, while regretting that the Government maintains its decision not to furnish the texts of the judgments rendered in the cases of the 47 persons referred to above and emphasising that the actual texts of judicial decisions afford much clearer evidence of the fact that the proceedings taken have no relation to trade union activities, recommends the Governing Body to note the Government's statement, in its communication dated 10 February 1964, that 37 of the said persons have now been liberated as the 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.
12. 176. The Government, with its letter dated 10 February 1964, forwards also a copy of Act No. 154/1963 dated 2 December 1963, establishing a court and tribunal of public order. The Committee notes that this Act establishes 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). The Act also provides for the possibility of review in cases instituted before the special judicial authority to which such cases were previously referred in which a final decision has not been given. The Committee understands that the decisions against the 47 persons in question were final and under the new Act cannot be referred to the new tribunal for review. It accordingly recommends the Governing Body to take note of the foregoing.
13. Allegations relating to Measures of Compulsory Residence on Account of Trade Union Activities
14. 177. At its meeting in November 1963, the Committee, in paragraphs 116 to 120 of its 72nd Report, examined 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 continued subjection of certain of the participants in the Asturian strikes of 1962 to compulsory residence orders and the dismissal of many other strikers, with loss of their acquired rights and benefits when they were re-engaged. The Committee had before it the observations furnished by the Government in its communication dated 16 October 1963.
15. 178. In these circumstances, in paragraph 138 of its 72nd Report, the Committee recommended the Governing Body:
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17. (f) to recommend the Government, with regard to the compulsory residence orders imposed on various workers mentioned by the complainants in connection with the 1962 strikes, to indicate the specific acts of which these persons were held to be guilty and what procedure was applied in issuing the compulsory residence orders;
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19. 179. This conclusion, having been approved by the Governing Body at its 157th Session (November 1963), was brought to the notice of the Government by a letter dated 27 November 1963. The Government replied by a communication dated 10 February 1964.
20. 180. In its communication dated 10 February 1964, the Government states that all the compulsory residence orders referred to in previous communications were due to activities involving the organisation of, or incitement to, subversion in an attempt to seize control of a peaceful industrial dispute for political purposes of patently seditious intent. These measures were taken by the appropriate authorities by virtue of the powers vested in them by the Legislative Decree of 8 June 1962 which, as permitted by article 35 of the Spaniards' Charter, temporarily suspended some of the guarantees of the said fundamental law. The Government adds that such temporary suspensions had only taken place on three occasions since the Charter came into force. With the passing of the circumstances which made them necessary, the 48 compulsory residence orders were rescinded and, at the present time, no person is subject to them.
21. 181. Legislative Decree No. 17/1962, dated 8 June 1962, suspended article 14 of the Spaniards' Charter throughout the whole country for a period of two years. The Minister of the Interior was instructed to take such measures as might be necessary in each case to implement the said provision. Article 14 of the Charter states that Spaniards are entitled to choose their own place of residence within the country. The Committee notes that the persons who until a short time ago were subject to compulsory residence orders were punished in connection with a strike and that the Government only refers in general terms to the subversive activities which lead to the measures taken against them. The Government does not give details of the procedure employed in issuing these compulsory residence orders.
22. 182. In similar situations in which it has had to examine the problem of the deportation of persons who have committed acts contrary to law and order or the security of the State, the Committee had considered that it had no competence to pass judgment on the procedure followed in such cases, while emphasising, however, the importance of ensuring that such procedures should be accompanied by all necessary safeguards so that they could not be used as a means of impairing the free exercise of trade union rights.
23. 183. Accordingly, the Committee recommends the Governing Body to take note of the fact that, at the present time, none of the persons in question is subject to a compulsory residence order, but 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; to draw the Government's attention to the importance it has always attached to ensuring due process of law whenever trade unionists are charged with offences of a political character or ordinary crimes; and to express 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.
24. Allegations relating to the National Legislation concerning Strikes
25. 184. In their aforesaid complaints relating to the strikes of 1963, the complainants also requested that the Government should be asked to restore freedom of association and to ensure the free exercise of the right to strike.
26. 185. Examining this aspect of the matter at its meeting in November 1963, the Committee, in paragraph 138 of its 72nd Report, recommended the Governing Body:
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28. (e) to point out once again to the Government, as it has already done on previous occasions, that in its present form the Spanish legislation on strikes can be interpreted as providing for their absolute prohibition, which would not be in harmony with generally accepted principles concerning freedom of association; and to suggest that in these circumstances the Government may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendment to this legislation;
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30. 186. This recommendation, having been approved by the Governing Body at its 157th Session (November 1963), was brought to the notice of the Government by a letter dated 27 November 1963.
31. 187. As regards the right to strike, the Government in its letter dated 10 February 1964 repeats its former contention that current Spanish legislation is in accordance with the recommendations of the Committee on Freedom of Association. The Government states that collective stoppages have occurred on several occasions without being considered to be illegal because they were voluntary stoppages of a wholly or predominantly industrial character. There is no ground in the Government's view for any interpretation of existing Spanish legislation as meaning that there is an absolute ban on strike action. The possibility of disputes of an industrial character is specifically recognised in Decree No. 2354/62, dated 20 September 1962, laying down rules for procedure, conciliation and arbitration in collective labour disputes. The Government adds that section 222 of the Penal Code had constantly been interpreted as meaning that only strikes which were intended to cause subversion or sedition could be considered to be illegal. Furthermore, Decree No. 2354/62 recognises that collective disputes of an industrial character are lawful and not punishable.
32. 188. In these circumstances, the Committee recommends the Governing Body 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 not punishable 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; to reaffirm the views expressed in paragraphs 137 and 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.
33. Allegations relating to the Strikes of 1963
34. 189. These allegations, made by the I.C.F.T.U and 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, were examined by the Committee at its meeting in November 1963, and were dealt with in paragraphs 121 to 130 of its 72nd Report. The Committee also noted that the Government had not furnished its observations on a further communication from these complainants, dated 8 October 1963, containing additional and specific information on the allegations made in their earlier communications, and decided to request the Government to furnish its observations thereon.
35. 190. Inter alia, the complainants gave the names and places of residence of eight persons-Messrs. Pedro León Alvarez, Leonardo Velasco Garcia, Gerardo Alvarez Garcia, Josh fiesta Garcia, Antonio Paredes Fernández, Francisco Rubio Casa, César Fernández Fernández and Faustino Rodriguez Garcia-alleged to have been accused of being ringleaders in the Asturian strikes of 1963 and of engaging in subversive propaganda activities (see paragraph 122 of the 72nd Report of the Committee).
36. 191. The Committee, in dealing with the allegations relating to the strikes of 1962, had already recalled in paragraph 97 of its 72nd Report, that in the past, where allegations that trade union leaders or workers had been arrested or detained for trade union activities, or that their arrest or detention had restricted the exercise of trade union rights, had been met by governments with statements that arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, it had followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions, and that if, in certain cases, the Committee had concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this had been after it had received information showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere, which were either prejudicial to public order or of a political nature.
37. 192. In these circumstances the Committee, in paragraph 138 of its 72nd Report, recommended the Governing Body:
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39. (g) to request the Government, in connection with the detention of the persons named by the complainants in connection with the 1963 strikes, having regard to the principles consistently applied by the Committee in similar cases which are set forth in paragraph 97 above, to furnish information as to the outcome of the proceedings instituted against the eight persons referred to in paragraph 122 above and, in particular, to forward the texts of the judgments that have been or may be handed down, and to postpone examination of this aspect of the case pending receipt of the said information;
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41. 193. This recommendation, having been approved by the Governing Body at its 157th Session (November 1963), was brought to the notice of the Government by a letter dated 27 November 1963.
42. 194. In its communication dated 10 February 1964, the Government states that, of the eight persons arrested, Mr. Pedro León Alvarez has now been released. The remainder are still at the disposal of the appropriate judicial authorities and no decisions have been given in their case. The Government does not refer in its letter to the additional information supplied by the complainants on 8 October 1963.
43. 195. In this 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 Braha 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.
44. 196. In these circumstances the Committee recommends the Governing Body 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.
45. Despatch of a Commission of Inquiry
46. 197. At its meeting in November 1963 the Committee reviewed, in paragraphs 131 to 137 of its 72nd Report, the various requests put forward by the complainants for the sending of a commission of inquiry to Spain, the observations made by the Government on this aspect of the case in its communication dated 31 July 1962 and the references made to this matter at the 153rd Session of the Governing Body.
47. 198. The Committee observes that the first of such requests were 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 is 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 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 I.F.C.T.U dated 8 October 1963, on which the Government has furnished no observations. This question, therefore, is still pending before the Committee.
48. 199. The Committee proposes to examine this question further at its next meeting (3-4 June 1964), prior to the 159th Session of the Governing Body with a view to deciding whether, in the light of whatever evidence may have been submitted to it by that time, 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.

The Committee's recommendations

1. 200. With regard to the case as a whole, the Committee recommends the Governing Body:
   • (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;
   • (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 111), and that the Act also provides for the possibility of review in cases where a final decision has not been given;
   • (c) with respect to the allegations relating to measures of compulsory residence on account of trade union activities:
   • (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;
   • (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;
   • (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;
   • (d) with respect to the allegations relating to the national legislation concerning strikes:
   • (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;
   • (ii) to reaffirm the views expressed in paragraphs 137 and 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;
   • (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;
   • (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.