Definitive Report - Report No 127, 1972

Case No 540 (Spain) - Complaint date: 31-OCT-67 - Closed

107. The Committee examined in detail the various aspects of these cases at its session in February 1970, when it reached a series of conclusions which are set forth in its 116th Report, approved by the Governing Body during its 178th Session (March 1970). In paragraph 261 of its 116th Report the Committee requested additional information from the Government-a request which the Committee repeated at its session in February 1971, when it submitted a further report on these cases. The latter report is contained in paragraphs 97-105 of the Committee's 122nd Report, approved by the Governing Body at its 182nd Session (March 1971).

1. 107. The Committee examined in detail the various aspects of these cases at its session in February 1970, when it reached a series of conclusions which are set forth in its 116th Report, approved by the Governing Body during its 178th Session (March 1970). In paragraph 261 of its 116th Report the Committee requested additional information from the Government-a request which the Committee repeated at its session in February 1971, when it submitted a further report on these cases. The latter report is contained in paragraphs 97-105 of the Committee's 122nd Report, approved by the Governing Body at its 182nd Session (March 1971).
2. 108. The Government sent a communication dated 4 May 1971 in reply to the request for information which had been made to it. At its May 1971 Session the Committee adjourned its examination of the case because the Government's observations had been received too late, as stated in paragraph 5 of the Committee's 124th Report.
3. 109. The information requested from the Government concerned certain trade unionists who had been tried or detained, in respect of whom the Committee had asked the Government to specify the exact nature of the facts on which the charges were based, the outcome of the proceedings and the present situation of these people under the law. The Committee had also requested the Government to send its observations on the allegations relating to the dismissal of arrested trade unionists.

A. A. The complainants' allegations

• Allegations concerning the Dismissal of Arrested Trade Unionists
  110. 110 These allegations were contained in a communication from the ICFTU dated 11 April 1969, in which it was stated that " many undertakings, in connivance with the authorities, are dismissing democratic trade unionists on account of their absence from their jobs, in accordance with the provisions of the Contracts of Employment Act, such absences being due, however, to the fact that they are in custody and facing proceedings having been charged with offences under the Public Order Act presently in force ". The ICFTU enclosed a photocopy of a communication said by it to have been sent to Mr. José Luis Echave Asensio, who was awaiting trial, in which the Bilbao branch of the Central Bank notified him of his dismissal. The ICFTU further alleged that the management of a certain firm in Madrid, " after procuring the arrest of four of its employees, Juan Rodriguez Matobella, Antonio Ariza Sobrino and two others, named Echaniz and Lomichar, sent a letter to these workers threatening them with dismissal if they did not present themselves at their workplaces within 48 hours." Mr. Rodriguez Matobella managed to secure his release within the time-limit and presented himself at the undertaking, but he was nevertheless dismissed.
  111. 111 In its reply the Government refers to the attitude taken by the Supreme Court, as explained in two judgements, the text of which it appends. These judgements declare it to be lawful to dismiss a worker if he has been arrested and sentenced to a term of imprisonment for an offence, since these circumstances have resulted in his absence from work, which in its turn is deemed to be a just cause for dismissal under Spanish law. Although the legislation does allow in some cases for an attenuation of the right to dismiss a worker where his absence was justified, the arrest of a worker and his subsequent trial and imprisonment are not included among the grounds for absence acceptable under the law.
  112. 112 The Committee observes that the jurisprudence to which the Government refers concerns cases where workers had been tried and sentenced and not cases where workers had been released without being brought to trial because no charges were laid against them.
  113. 113 With regard to cases of the latter kind, the Committee has already observed in its 116th Report that jurisprudence exists in Spain to the effect that dismissal can be pronounced even in such circumstances, it being rather exceptional to adopt an attitude such as was adopted by one magistrate when he ruled that it would be exceedingly unjust if a worker were held responsible for a state of affairs which he did not deliberately bring about.
  114. 114 The Committee considers that this situation raises a problem in view of the fact that, under Spanish law, certain activities which, in accordance with generally recognised principles, should be looked upon as normal and lawful trade union activities are deemed to be offences. Later in this report the Committee makes certain general remarks on this subject, on which it has repeatedly had occasion to comment in earlier cases concerning Spain. As regards the specific point at issue here, the Committee cannot do other than express its concern at the fact that workers can lose their employment on account of absence from their jobs as a result of their having been arrested or sentenced because they were presumed or proved to have been engaging in trade union activities of this kind. In such circumstances, not only do workers lack protection against acts of anti-union discrimination in respect of their employment but the law of the land itself impairs the essential guarantees in respect of freedom of association.
• Allegations concerning the Detention of Trade Unionists
  • (a) Allegations concerning the Detention of Marcelino Camacho, Nicolás Sartorius, Julián Ariza and David Morin Salgado.
    115. 115 The Committee had requested information from the Government with respect to Mr. Marcelino Camacho, arrested in Madrid in connection with the demonstrations of 1 May 1967, and Messrs. Nicolás Sartorius, Julián Ariza and David Morin Salgado, arrested in connection with the direct action which took place in different parts of Spain in October 1967 with regard to matters pertaining to wages, trade union affairs, etc.
    116. 116 As far as Mr. Marcelino Camacho is concerned, the Government states that, by a judgement rendered on 5 April 1968 by the Court of Public Order, he was sentenced, for the offence of organising a non-peaceful demonstration, to one year's imprisonment (prisión menor) and a fine of 15,000 pesetas. This sentence was served. Subsequently, by a judgement rendered on 6 February 1970, he was sentenced, for the offences of disturbing the public order and defying the authorities, to four months' imprisonment (arresto mayor) on the first charge and three years and six months' imprisonment (prisión menor) on the second charge. He is at present serving this sentence.
    117. 117 Mr. Nicolás Sartorius was sentenced on 23 May 1969 by the Court of Public Order, for being the perpetrator and instigator of the offence of unlawful association, to two years and six months' imprisonment (prisión menor) and a fine of 5,000 pesetas. He is also to appear on a separate charge of non-peaceful assembly, but the date for the hearing has not yet been set. Mr. Julián Ariza was sentenced on 5 April 1968, for being the instigator of an unlawful non-peaceful demonstration, to one year's imprisonment (prisión menor) and a fine of 15,000 pesetas. On 12 January he was sentenced to four months' imprisonment (arresto mayor) for organising a non-peaceful assembly. Both these sentences were served. On 23 May 1969 he was sentenced to five years' imprisonment (prisión menor) for unlawful association and to three years' imprisonment (prisión menor) and a fine of 5,000 pesetas for being the instigator of such an offence. Lastly, Mr. David Morin Salgado was sentenced on 26 March 1968, for the offence of organising a non-peaceful demonstration, to one year's imprisonment (prisión menor) and a fine of 10,000 pesetas. This sentence was served. Subsequently, on 15 October 1969, he was sentenced to five years' imprisonment (prisión menor) as a recidivist organising an unlawful association and a non-peaceful demonstration.
  • (b) Allegations concerning the Imprisonment of Persons Belonging to a " Works Committee " on a Charge of Unlawful Association.
    118. 118 The Committee had requested information from the Government with respect to 15 workers at the Sestao Shipyard who had been arrested on 22 July 1968 for holding meetings, deemed to be unlawful, and for appointing a " Works Committee " outside the official Trade Union Organisation. The workers in question were Dionisio Allende Alcedo, Luis Obregón, Prudencio Pastor Castahos, Eduardo López Albizu, Julián Arribas Herrero, Antonio Velazco Arenaza, Constantino Andrés Martinez, Adolfo Sáenz, Marcelino Campos Blanco, José Maria Lizarraga Fernández, Justiniano Barando Oteo, Jesús Echevarria Arenzana, Jaime San Sebastián López, Ignacio Goyoaga Sierra and Nicolás Redondo Urbieta. The Government had already informed the Committee that these workers had been
    119. 119 In its latest communication the Government states that a date has still to be set for the hearing and that the Public Prosecutor has asked that these persons be sentenced to three months' imprisonment (arresto mayor). They have been charged with unlawful association and constituting a Committee, also unlawful. They are still provisionally at liberty.
  • (c) Allegations concerning the Arrest of Various Members of the UGT in 1968 and 1969.
    120. 120 The Committee had requested information from the Government concerning a number of trade unionists arrested in Bilbao in December 1968, who were stated by the Government to have been arrested for involvement in activities contrary to public order, and to have been provisionally released. The trade unionists in question were Ramón Rubial, Eduardo López Albizu, José Agustin Serrano, Salustiano Sold, Agustin Alday, Aurelio Revilla, Pablo Chueca, Luis Tellaeche, Eusebio Virto, Enrique Alonso Iglesias, José Luis Echave Asensio and Pablo Iglesias.
    121. 121 The Committee had also requested information with regard to the detention of Santiago Tapia, Juan José Berrocal, Adolfo Jiménez, José Luis Echave Asensio, Eduardo López Albizu, Gregorio Illoro, Nicolás Martinez, Arturo Agüero and Ignacio Muñoz. On 17 February 1969 these persons had been remanded in custody, charged with unlawful association because of their membership of the UGT, and in the case of four of them also because of their membership of the " Young Socialists " movement.
    122. 122 With regard to the first-named group of trade unionists, the Government now states that in a judgement rendered on 20 April 1970, sentence was passed as follows: for the offence of unlawful association, José Agustin Serrano and Salustiano Sold, six months' imprisonment (arresto mayor), and Pablo Iglesias, Eusebio Virto, Luis Tellaeche, Pablo Chueca and Agustin Alday, three months, for the offence of illegal propaganda, José Agustin Serrano, four years, two months and one day and a fine of 10,000 pesetas, Salustiano Sold, two years and a fine of 10,000 pesetas, and Pablo Iglesias, Eusebio Virto Luis Tellaeche and Agustin Alday, one year and a fine of 10,000 pesetas. Eduardo López Albizu, Enrique Alonso Iglesias, Amalio [sic] Revilla and Ramón Rubial were acquitted. Pablo Chueca was acquitted of unlawful propaganda. The case against José Luis Echave Asensio was dismissed.
    123. 123 As concerns the persons on the second list, the Government states that they are all free with the exception of Gregorio Illoro and Nicolás Martinez, who were sentenced to four years, two months and one day's imprisonment and are now serving this sentence.

B. B. The Committee's conclusions

• General Considerations
  124. 124 The Committee takes note of the information supplied by the Government with respect to the persons arrested, but at the same time observes that no explanation is given as to the exact nature of the facts on which the charges laid against these persons were based, as had been requested by the Committee. Nor does the Government comment upon the account of the facts given in the various allegations. In this respect, as already pointed out by the Committee in its last two reports on the cases under examination, it seems apparent from all the information available that the problems raised have one element in common-namely the fact that certain workers' activities having a trade union character are deemed to be offences under Spanish law. The offences most commonly invoked in this connection are those of illicit or unlawful association, propaganda and assembly.
  125. 125 The Committee accordingly recommended the Governing Body to point out to the Government:
       • (a) that any action taken against the workers on the grounds that they have tried to set up, or reconstitute, occupational organisations outside the Trade Union Organisation is incompatible with the principle that workers shall have the right to establish organisations of their own choosing without previous authorisation;
       • (b) that an essential aspect of trade union rights is the right to hold meetings and demonstrations for trade union purposes, and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
       • (c) that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and that to this end employers, workers, and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of other trade union activities.
  126. 126 In its communication of 4 May 1971 the Government makes some observations on these points. As regards the first, the Government states that within the framework of the law no previous authorisation of an administrative nature is required to set up groups, associations or trade unions. The Government adds that since Article 8 of Convention No. 87, " which Spain has not ratified ", lays down the obligation that workers must respect the law of the land, the reference to " occupational organisations " outside the Trade Union Organisation is inconsistent.
  127. 127 As concerns the second point, the Government declares that the right of assembly for trade union purposes is recognised in Spanish law, inter alia, in section 3 of the Trade Union Act, which provides that " freedom of association, of expression and action shall be recognised, within the limits laid down by laws and regulations ", and in section 8, which refers to the right to " hold meetings to deal with matters in which the trade unionist entity to which they belong has a direct interest in the appropriate union premises, or in the undertaking, observing the rules governing the exercise of this right ". The Government appends the text of the Decree governing the exercise of the right of assembly for trade union purposes.
  128. 128 Lastly as concerns the third point, the Government states that section 3 of the Trade Union Act confirms the freedom of action and expression of occupational organisations, as does section 8, which stipulates that trade union members shall have the right to " give information concerning and be informed of, at the appropriate time, the activities and work of the trade unionist entity or entities to which they belong and concerning questions affecting them " and to " express freely their opinions concerning matters and subjects of trade unionist interest, and make proposals and present petitions to their representatives, in accordance with the rules made for this purpose by the Trade Union Organisation ".
  129. 129 The Committee must point out that the various allegations under consideration refer to the application of Spanish criminal law to activities of a trade union character. Of the greatest importance, in this connection, is the fact that any association or group formed by the workers for the defence of their occupational interests outside the officially recognised Trade Union Organisation is illegal. A specific example of this is the case analysed in paragraphs 118 and 119 above, where proceedings have been taken against workers because they formed a " works Committee ". Reference was also made to this point by the Study Group appointed to examine the labour and trade union situation in Spain, which cited the case of the members of a " works Committee " who were convicted by the Public Order Tribunal, it being stated in the judgement that, without being entered in the official register or recognised by the Trade Union Organisation, the persons concerned had sent letters and petitions to persons of note, ministers and provincial authorities in Spain, and to foreigners, that they had held meetings to add to their following, obtain contributions for their future activities, boycott trade union elections, obtain the re-employment of dismissed workers and advise them in their claims. The Study Group also cited case law to the effect that such " workers' Committees " are illegal associations or gatherings of persons who have joined together with the aim of taking over the representation of the workers, with a view to organising and directing the struggle for their economic, social and political claims, outside the official trade union movement as by law established.
  130. 130 The Committee observes that the Government refers to the provisions of Article 8 of Convention No. 87, according to which " in exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land ". Nevertheless, the Committee is bound to point out that the same Article lays down that " the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention ". The Committee is accordingly of the opinion that legislation declaring to be unlawful-and, therefore, punishable-the Constitution of organisations outside the official organisation is obviously contrary to the principles set forth in this Convention to the effect that workers and employers have the right to establish organisations of their own choosing without previous authorisation.
  131. 131 As concerns the right of assembly and of expression, the Committee observes that, here too, the allegations refer to the application of the criminal law to activities related to the establishment or functioning of occupational associations or groups outside the Trade Union Organisation, demonstrations to celebrate the First of May or to protest against working conditions, etc., while the Government, for its part, quotes the provisions of the Trade Union Act (promulgated in January 1971) concerning the right of assembly and of expression of trade unions within the framework of the Trade Union Organisation. Notwithstanding the Government's earlier statement with regard to meetings and demonstrations, to the effect that if the organisers do not obtain permission in advance to hold these, they lay themselves open to the appropriate penalties under the law, the Committee considers that it is inconceivable that such permission should be granted in the case of activities undertaken by occupational groups deemed to be unlawful because they are outside the official organisation. The same applies to the printing and distribution of any type of manifesto or other handout emanating from a similar source and likely, in consequence, to be deemed to be unlawful propaganda.
  132. 132 In view of the foregoing considerations the Committee cannot do other than reaffirm the principles stated above in paragraph 125.

The Committee's recommendations

1. 133. In these circumstances, with regard to these cases as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations concerning the dismissal of trade unionists, to express its concern at the fact that, since certain activities which, according to the generally recognised principles of freedom of association, should be considered normal and lawful trade union activities are in Spain subject to the criminal law, workers may lose their employment if they are absent from their jobs as a result of having been sentenced for pursuing such activities, or simply having been arrested and not sentenced;
   • (b) as regards the allegations concerning the detention of trade unionists;
   • (i) to take note of the information supplied by the Government with respect to the outcome of the proceedings taken and the present situation of the trade unionists concerned under the law;
   • (ii) to draw the attention of the Government to the general considerations set forth by the Committee in regard to certain workers' activities having a trade union character which are still deemed to be offences under Spanish law;
   • (iii) to reaffirm the principles set forth in paragraph 125 above with respect to the right to set up, or reconstitute, occupational organisations, the right to hold meetings and demonstrations for trade union purposes and freedom of opinion and expression in relation to meetings, publications and other trade union activities.