Interim Report - Report No 90, 1966

Case No 400 (Spain) - Complaint date: 28-APR-64 - Closed

166. The Committee last examined these cases, in consolidated form, at its meeting in November 1965, when it submitted the interim report contained in paragraphs 366 to 416 of its 85th Report, as approved by the Governing Body at its 163rd Session (November 1965).

1. 166. The Committee last examined these cases, in consolidated form, at its meeting in November 1965, when it submitted the interim report contained in paragraphs 366 to 416 of its 85th Report, as approved by the Governing Body at its 163rd Session (November 1965).
2. 167. In the above-mentioned report the Committee submitted its final conclusions and recommendations regarding a certain number of allegations, and with regard to some other allegations recommended the Governing Body to request the Government to supply certain additional information as described in paragraph 416 of that report. In this connection the only observations received from the Government relate to the amendment of section 222 of the Penal Code, these observations being examined in the present report. The Committee therefore recommends the Governing Body to repeat its request to the Government for additional information relating to the other points, examination of which has been suspended.

168. In a communication of 28 December 1965 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.) jointly presented new allegations relating to the amended provisions of section 222 of the Spanish Penal Code and to the sentence imposed on four workers on 24 November 1965 for propaganda activities in support of the Basque Workers' Solidarity Movement (S.T.V.).

1. 169. In a communication dated 4 February 1966 the Government of Spain sent its observations regarding the new allegations referred to in paragraph 168 above.
2. Amendment of Section 222 of the Penal Code
3. 170. The Committee submitted certain conclusions and recommendations on this question in paragraphs 374 to 376 and 416 (1) (b) of its 85th Report. The relevant part of paragraph 416 reads as follows:
4. With regard to the case as a whole the Committee recommends the Governing Body:
5. (1) as regards the information furnished by the Government on various questions relating to trade union rights in Spain:
6. ......................................................................................................................................................
7. (b) (i) to take note of the proposed amendment to section 222 of the. Penal Code, according to which strikes and lockouts are no longer included amongst the acts which constitute offences of sedition;
8. (ii) to point out the danger of the wording employed in clause 2 of the proposed amendment being interpreted in broad terms as prohibiting all types of strike, and to suggest that due regard be paid to this fact in the formulation by the Cortes of the final text, so as to exclude, without any doubt whatever, from the acts considered as offences of sedition, any strikes which might be promoted by workers with a view to furthering and defending their occupational interests.
9. ......................................................................................................................................................
10. 171. In their communication of 28 December 1965 the I.C.F.T.U and the I.F.C.T.U state that the amendment of section 222 of the Penal Code, as approved by the Cortes on 21 December 1965, the text of which they reproduce, does not in any way represent a true amendment of previous legislation which they allege to have treated all strikes as constituting the offence of sedition. The complainants further state that the new text clearly allows the authorities ample scope to describe any sort of workers' strike as an offence. They point out that the preamble to the Act of the Chief of State, as published in the Official Bulletin of the State, refers to the need " to remove employment disputes arising only out of labour questions from the scope of penal provisions ", but that 35 deputies voted against the new text, stating that the section, as amended, did not respect the aims set out in the preamble and did not guarantee genuine liberalisation of the right to strike.
11. 172. In its communication dated 4 February 1966 the Government refers to the conclusions and recommendations previously adopted by the Committee on this question in its 72nd, 74th and 85th Reports and recalls that, at the 49th Session of the International Labour Conference, the Spanish Minister of Labour announced his Government's intention of revising section 222 in order to eliminate any confusion; this was to be done by means of a formal legal provision embodying a principle regularly applied for a long time, according to which only strikes aimed at promoting subversion or sedition were punishable. When the Bill was brought before the Cortes it was discussed in accordance with Constitutional legislative procedure, first by the Legal Committee of the Cortes and then in plenary sitting. During the debate in the Legal Committee various amendments were discussed and voted upon; all of the proceedings received full publicity, and the normal parliamentary guarantees were observed. Together with the amendments introduced in committee, the Bill was adopted in plenary sitting by 535 votes in favour to 35 against.
12. 173. The Government repeats that its primary object in submitting the amending legislation was to give legislative form to a de facto situation and thus to recognise a principle constantly applied in the past whereby workers striking solely in order to obtain improved economic or occupational conditions should not be held guilty of the offence of sedition. It states that the new text establishes a binding distinction between, on the one hand, strikes aimed at undermining the security of the State, disturbing its normal activity or seriously disrupting national production, these being punishable offences and, on the other hand, other collective labour disputes, which are clearly and unequivocally excluded from the scope of the Penal Code. The Government believes that the new text constitutes a " genuine amendment of previous legislation ". With regard to the complainants' assertion that the new text gives the authorities ample scope to describe any form of workers' strike as an offence, the Government states that the power to determine whether an act constitutes an offence lies not with the government or administrative authorities but exclusively with the courts of ordinary jurisdiction, whose magistrates and judges are wholly independent of the Government within the framework of the Criminal Proceedings Act, all hearings and judgments being public. It is the courts which decide whether a given act should be held to constitute an offence, having regard to specific intent, in the particular instance that of " undermining the security of the State, disturbing its activity or disrupting, etc. .".
13. 174. In conclusion the Government states that it has acted in accordance with the spirit of the Committee's recommendations concerning the former wording of section 222 of the Penal Code. It further states that present Spanish legislation is also in conformity with the spirit of other recommendations by the Committee, according to which any restriction of the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration procedure, since Decree No. 2354/62 of 20 September 1962 lays down rules for procedure, conciliation and arbitration in the case of collective labour disputes.
14. 175. The Committee has always applied the principle that allegations relating to the right to strike do not fall outside its competence in so far as they affect the exercise of trade union rights, although it has held that it is not within its competence to examine allegations relating to strikes of a non-occupational character, to strikes aimed at coercing the government in a political matter, or to strikes directed against the policy of the government and not " in furtherance of a trade dispute ". The Committee has also pointed out in several cases that it is normal to recognise the right of workers and their organisations to strike as a legitimate means whereby they may defend their occupational interests.
15. 176. According to the text of section 222 of the Penal Code prior to amendment, " combinations of employers for the purpose of paralysing work " and " strikes by workers " constituted the offence of sedition.
16. 177. The Committee observes that, according to the text published in the Official Bulletin of the State, section 222 of the Penal Code has been amended, by Act No. 104 of 21 December 1965, to read as follows:
17. Section 222
18. The following shall be punished as guilty of sedition:
19. (1) officials, employees and individuals responsible for rendering any kind of public services recognised as essential and incapable of postponement who cease their activities or in any way impair the regularity of the service;
20. 2) employers and workers who, with the object of making an attempt against the security of the State, of upsetting its normal activity, or of prejudicing its authority or reputation, cease or change the regularity of the work.
21. 178. While recognising that the new wording of section 222 constitutes an important step forward, the Committee wishes to place on record the importance it attaches to the need for the new text to be interpreted so that strikes aimed at promoting and defending the workers' occupational interests cannot in any circumstances be considered as constituting the offence of sedition.
22. 179. In these circumstances the Committee recommends the Governing Body:
23. (a) to take note of the adoption of the new text of section 222 of the Penal Code by Act) dated 21 December 1965;
24. (b) to take note of the statement by the Government in its communication of 4 February 1966, according to which strikes not aimed at undermining the security of the State, disturbing its normal activity or seriously disrupting national production are excluded from the scope of section 222 of the Penal Code following the amendment of that section, and according to which the courts of ordinary jurisdiction have exclusive competence to decide whether the provisions of the section may or may not be applied to a specific case;
25. (c) to stress the importance it attaches to the need for the new text to be interpreted so that strikes aimed at promoting and defending the workers' occupational interests cannot in any circumstances be considered as constituting the offence of sedition;
26. (d) to request the Government to keep the Governing Body informed of any specific cases of strikes in respect of which the courts may decide whether or no section 222 of the Penal Code is applicable.
27. Allegations relating to the Conviction of Four Workers in November 1965
28. 180. In their communication of 28 December 1965 the complainants state that on 24 November 1965 the case against the workers Sabino Urrutia Ureta, Ambrosio Ibargüen Ereno, Luis Maria Echave Orobengoa and Jesús Otaduy Belastegui was heard by the Court of Public Order in Madrid. It is alleged that the accused had been arrested when they were carrying copies of the periodical Lan Deya, published by the Basque Workers' Solidarity Movement (S.T.V), a clandestine trade union organisation affiliated to one of the complainant organisations. The four workers are stated to have been found guilty of the offence of engaging in illegal propaganda and to have been sentenced as follows: Mr. Urrutia Ureta to four years and two months' imprisonment and a fine of 20,000 pesetas; Mr. Ibargüen Ereno and Mr. Echave Orobengoa to one year's imprisonment and a fine of 10,000 pesetas; and Mr. Otaduy Belastegui to two years' imprisonment and a fine of 15,000 pesetas.
29. 181. In its observations the Government states that " the Basque agitators " mentioned in the complaint were sentenced for engaging in illegal propaganda on behalf of a clandestine organisation, the S.T.V, which had been declared an unlawful association by legal order, and that this matter has no connection with labour disputes, the right to strike or trade union interests.
30. 182. A copy of the verdict sent by the complainants states that on 8 May 1965 the accused Urrutia Ureta and Ibargüen Ereno collected some packets in Mondragón (Guipúzcoa) containing copies of the periodical Lan Deya published by the S.T.V, " an organisation whose aim is to overthrow the present structure of the Spanish State by force "; that the accused Echave Orobengoa, who works in a café in Mondragón, handed copies of Lan Deya to the accused Otaduy Belastegui; and that Otaduy Belastegui on several occasions distributed copies of Lan Deya in the neighbourhood of the Mondragón factories. The Court found that these charges were proven, constituting the offence of illegal propaganda as covered by the Penal Code, but that Mr. Urrutia Ureta's membership of the S.T.V was not proven, such membership constituting the offence of unlawful association of which he was also accused.
31. 183. The Committee recalls that, when examining another aspect of the complaints relating to Spain at its meeting in November 1965, namely the allegations referring to the arrest of Mr. Rodriguez Manzano, it had before it certain information submitted by the Government concerning the S.T.V and Lan Deya. The Government stated that the S.T.V was political in character, since the Basque nationalist party itself, through its publication Euzko Gaztedi, confirmed the claim that the S.T.V was a group belonging to the Basque nationalist party. The Government added that proof of the political character of the S.T.V could be found in several statements drawn from different numbers of Lan Deya (a clandestine news sheet). The extracts communicated by the Government were as follows: " It is not necessary to recall that the régime is unlawful as to its origin and, accordingly, in its working " (Lan Deya, No. 9); " S.T.V understands the situation and its line is firmly established; it is only by clandestine measures that our objectives can be achieved.... Nevertheless, participation in this revolutionary work does not imply necessarily that the Basque brotherhood renounces all lawful opportunities of finding a solution for the worker " (ibid, No. 11); " The Basque country is subject to nationalist domination. The economic policy, demography, class organisation, racial, linguistic and cultural discrimination, and the exploitation of the Basque workers prevent the development and even the mere survival of Basque civilisation, and hence any truly original, free and individual contribution of the Basque genius to universal society and culture. French and Spanish nationalism, the enemy of separatism, divides a single nation made up of 2 million persons by a frontier whose only raison d'être lies in arbitrary colonialism " (ibid, No. 21).
32. 184. In the case of Mr. Rodriguez Manzano the Committee observed that the offences of unlawful association and illegal propaganda in respect of which he was convicted might be related to the exercise of trade union rights, although it appeared that Mr. Rodriguez Manzano's acts had in some ways gone outside the normal framework of trade union activities as such. In the present case the four persons concerned were tried and convicted, according to the complainants, for trade union activities and, according to the Government, for acts coming within the terms of the offence of illegal propaganda. To judge from the text of the verdict as transmitted by the complainants, these acts appeared somewhat similar to those which had led to the conviction of Mr. Rodriguez Manzano, in respect of whom reference was made to the same offence, and the Committee believes that it is impossible in this case also to conclude categorically, on the basis of the evidence provided, that the acts concerned are unrelated to the exercise of trade union rights, although they may have gone outside the framework of normal trade union activities.
33. 185. With regard to the Court of Public Order which sentenced the four accused, the Committee has already observed, in paragraph 381 of its 85th Report, that it consists of a president and two magistrates who are career judges, that with regard to procedure the Court must conform strictly to the provisions of the Act respecting ordinary criminal proceedings, that the representatives of and counsel for the defence are also governed by the rules of ordinary jurisdiction and that appeals against the judgments given by the Court may be lodged with the Second Chamber of the Supreme Court of Justice.
34. 186. In the circumstances the Committee recommends the Governing Body to take note of the fact that the persons mentioned were convicted for the offence of illegal propaganda defined in the Penal Code, and to request the Government to inform it if an appeal has been lodged with the Supreme Court of Justice against the verdict and, if so, to communicate the verdict together with the grounds stated therein as well as to inform the Governing Body of any changes in the legal situation of the four workers to whom the complaint refers.

The Committee's recommendations

1. 187. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) as regards the allegations relating to the amended text of section 222 of the Penal Code, having regard to the fact that allegations relating to the right to strike do not fall outside the competence of the Committee in so far as they affect the exercise of trade union rights:
   • (i) to take note of the adoption of the new text of section 222 of the Penal Code by Act dated 21 December 1965;
   • (ii) to take note of the statement by the Government, in its communication of 4 February 1966, according to which strikes not aimed at undermining the security of the State, disturbing its normal activity or seriously disrupting national production are excluded from the scope of section 222 of the Penal Code following the amendment of that section, and according to which the courts of ordinary jurisdiction have exclusive competence to decide whether the provisions of the section may or may not be applied to a specific case;
   • (iii) to stress the importance it attaches to the need for the new text to be interpreted so that strikes aimed at promoting and defending the workers' occupational interests cannot in any circumstances be considered as constituting the offence of sedition;
   • (iv) to request the Government to keep the Governing Body informed of any specific cases of strikes in respect of which the courts may decide whether or not section 222 of the Penal Code is applicable;
   • (b) as regards the allegations relating to the conviction of four workers in November 1965:
   • (i) to take note of the fact that Mr. Sabino Urrutia Ureta, Mr. Ambrosio Ibargüen Freno, Mr. Luis Maria Echave Orobengoa and Mr. Jesús Otaduy Belastegui were convicted by the Court of Public Order for committing the offence of engaging in illegal propaganda as described in the Penal Code;
   • (ii) nevertheless to request the Government to inform the Governing Body whether any appeal has been made to the Supreme Court and, if so, to communicate the text of the verdict, together with the grounds stated, as well as to communicate any changes in the legal situation of the workers concerned;
   • (c) to repeat the request to the Government for additional information on the other points referred to in paragraph 416 of the Committee's 85th Report, examination of which has been suspended;
   • (d) to take note of this interim report, it being understood that the Committee will report further to the Governing Body when the additional information described in subparagraphs (a) (iv), (b) (ü) and (c) of this paragraph has been received.