Report in which the committee requests to be kept informed of development - Report No 380, October 2016

Case No 3093 (Spain) - Complaint date: 25-JUL-14 - Closed

Allegations: The complainant organizations allege that certain provisions of Spanish criminal law, and their application by the public authorities, give rise to excessive criminal sanction which violates the right to strike

1. 445. The complaint is contained in communications dated 25 July and 31 October 2014 from the Trade Union Confederation of Workers’ Commissions (CCOO) and the General Union of Workers (UGT).
2. 446. The Government sent its observations in communications dated 19 October 2015, 24 February 2016, and 9 and 24 May 2016.
3. 447. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 448. In a communication dated 25 July 2014, the complainants denounce a trend to repress the exercise of the right to strike, based on certain provisions of Spanish criminal law, and also the increasing use of those provisions by the Public Prosecutor’s Office and the criminal courts. The complainants allege, firstly, that article 315.3 of the Criminal Code (hereinafter: CC) provides for long prison sentences (from three years to four-and-a-half years) and heavy fines (from 12 months and one day to 18 months) for those who coerce other persons to begin or continue a strike. According to the complainants, this criminal definition is being applied across the board with the aim of criminalizing the exercise of the right to strike, specific cases having occurred in which trade unionists were handed long prison terms because they had taken part in strike picketing.
2. 449. The complainants add that a reading of article 315.3 CC together with other provisions of the Criminal Code reveals that trade union activity constitutes a specific factor which aggravates criminal liability inasmuch as: (i) under article 172.1 CC, any person who commits the basic offence of coercion (consisting of using violence to prevent another from doing something the law does not prohibit or forcing another to do something he/she does not want to do) shall be liable to imprisonment from six months to three years, whereas article 315.3 provides for prison sentences of three to four-and-a-half years for strikers who coerce other persons; (ii) punishment imposed under article 315.3 CC prevents the convicted person from enjoying the benefits provided for in articles 80 and 88 relating, respectively, to suspension or substitution, by alternative penalties, of custodial sentences not exceeding two years; and (iii) the sentence prescribed in article 315.3 CC is much heavier than that prescribed in article 315.1 CC, which stipulates imprisonment of six months to three years for any person who, by deceit or by abuse of a situation of need, obstructs or limits freedom of association or the exercise of the right to strike.
3. 450. The complainants also state that: (i) article 315.3 CC lacks clear criteria regarding the criminal conduct in question, its purpose and the persons who carry out such acts, with the result that application of this provision by the courts is highly inconsistent; and (ii) charges of committing a crime under article 315.3 have led to several prison sentences of longer than three years, despite the fact that in virtually all the cases no violence occurred. On the basis of the foregoing, the complainants state that the general definition of the crime of coercion would be sufficient to eradicate violent behaviour during the exercise of the right to strike, without the need to incorporate more severe penalties for exercising that right.
4. 451. The complainants also append a communication dated 23 July 2014 from “Judges for Democracy”, a professional association of the judiciary of Spain, in which the association: (i) criticizes the disproportionate nature of the punishment prescribed in article 315.3 CC, the existence and wording of which date back to the period before Spain’s transition to democracy, an era which saw repeated efforts to suppress the right to strike; (ii) calls for the abolition of this provision, arguing that the right not to strike is already sufficiently protected through the criminal offence of coercion; (iii) requests judges to give this provision an especially narrow interpretation which does not deter the exercise of the basic right to strike; and (iv) points out that in the context of the acute social conflict that has followed reform of the labour legislation, 260 trade unionists are now undergoing administrative or criminal proceedings and a number of trade unionists have gone to prison.
5. 452. The complainants allege, secondly, that over and above this deficiency of the criminal legal framework that they denounce, the manner in which the legislation is applied by the Public Prosecutor’s Office and the criminal courts is a factor in the violation of the right to strike. In this regard, the complainants state that: (i) many trade unionists are under threat of long prison terms simply because they take a leading role in labour disputes; (ii) the Public Prosecutor’s Office and the criminal courts do not apply consistent criteria in bringing charges for alleged criminal acts committed during collective disputes, which creates significant legal uncertainty; and (iii) the actions of the prosecuting authority and the judges frequently disregard the position of the Supreme Court and the Constitutional Court, according to which the application of criminal provisions must take account of the need to protect the fundamental right to freedom of association.
6. 453. The complainants further state that, amid increasing social unrest in the wake of the labour legislation reforms introduced in Spain since 2010, their legal departments have been informed of 81 penalty procedures or criminal prosecutions involving the exercise of the right to strike or collective rights. The complainants describe below a number of criminal or administrative proceedings under way in 12 of the Autonomous Communities of Spain.

Andalusia

1. 454. The trade union organizations state that 32 workers are affected by several criminal proceedings arising from their participation in the general strikes of September 2010 and November 2012 and in a company strike. The charges being brought in these proceedings include assault and battery, and coercion to go on strike, covered by article 315.3 CC. The Provincial Court of Granada upheld the sentencing of two persons to three years and one day of imprisonment for coercion to strike under article 315.3 CC. It was found that these two persons, during the general strike of 29 March 2012, had verbally abused the owner of premises in Granada and had defaced the premises with stickers and graffiti, causing damage amounting to €767. In San Fernando (Cadiz) the prosecution has called for prison sentences of nine months, 14 months and two years and three months for three workers from the Navantia enterprise for major offences of public disorder and dangerous assault and a minor offence of battery. The complainants allege that the violent acts giving rise to criminal proceedings in this case consisted in: (i) for the first worker, throwing a microphone at a police officer but not actually striking him; (ii) for the second worker, striking the forearm of a police officer with an umbrella; and (iii) for the third worker, breaking the shield of a police officer with blows from an umbrella. In Seville, a prison sentence of one year is being requested for a road safety offence.

Aragon

1. 455. The complainants refer to criminal proceedings brought in Zaragoza for assault and battery involving the alleged jostling of police officers during the general strike of 2012.

Asturias

1. 456. The complainants refer to 15 cases under way in various courts, in which prison sentences ranging from six months to four years are being called for in respect of 43 persons. Public disorder is alleged in ten cases, assault in six, criminal damage in five, and in only two cases the offence of battery, which would appear to illustrate that this social upheaval has resulted in very few cases of physical injury.

Balearic Islands

1. 457. In relation to the general strike of March 2012, the complainants state that criminal proceedings are under way against the General Secretary of the Union of Workers’ Commissions of the Balearic Islands, in which a prison sentence of more than four years is being requested.

Castile-La Mancha

1. 458. The complainants refer to: (i) the indictment, without any specific charge having been brought, of the General Secretary of the Provincial Union of Ciudad Real and another two trade union leaders for lighting a bonfire at a roundabout and organizing an informational picket during the general strike of 2010; and (ii) charges against four trade unionists from Albacete, who are still awaiting judgment, for causing damage (initially for the crime of coercion to strike); they are accused of throwing tacks and striking a vehicle.

Castile-Leon

1. 459. The complainants refer to six criminal proceedings involving charges of major and minor public order offences, and minor offences of threats and abuse. In Avila and Valladolid, criminal trials have ended in acquittals or the imposition of small fines.

Catalonia

1. 460. The complainants refer to: (i) the indictment, following the 2010 general strike, for a crime against workers’ rights, of four trade union officials from Terrassa, for each of whom a four-year prison term had initially been sought, with agreement finally being reached on a conditional six-month sentence; (ii) several proceedings relating to informational pickets formed during the 2012 general strike, without any charges being brought; (iii) the indictment in the Barcelona courts of a member of the Workers’ Committee of the Barcelona Metro for criminal damage, in relation to a strike on the Barcelona metropolitan transport system in November 2012; (iv) charges brought in the magistrates’ courts of Valls and Barcelona for coercion in connection with a sectoral strike which took place in Tarragona in May 2013; and (v) the launch of six criminal proceedings, still at the pre-trial stage, deriving from a strike at the Panrico enterprise.

Galicia

1. 461. The complainants refer to: (i) an acquittal by the Provincial Court of Pontevedra concerning an accusation made against three persons in relation to a dispute arising from a strike in November 2009; (ii) the sentencing of two workers, by the same provincial court, to imprisonment of three years and one day, for throwing paint into a swimming pool during a sectoral strike in 2012; and (iii) the imposition of a three-year prison term in connection with the general strike in September 2010.

Rioja

1. 462. The complainants refer to: (i) the acquittal of five workers, among them the General Secretary of the Rioja CCOO, who were accused initially of criminal damage and coercion to strike, and subsequently of the general offence of coercion; and (ii) the pending oral trial of a worker who is facing calls for five years’ imprisonment for taking part in the general strike of 29 March 2012.

Murcia

1. 463. The complainants refer to criminal proceedings in the magistrates’ courts in Murcia, in which three persons are accused of committing a public order offence after burning tyres and interrupting traffic during the general strike of March 2012.

Madrid

1. 464. The complainants refer, firstly, to proceedings brought before the courts in Getafe against eight trade unionists at the Airbus company, related to the conduct of informational pickets during the general strike of September 2010. They state that the Public Prosecutor’s Office called for eight-year prison terms for each of the accused, for offences against workers as well as assault and battery, and that the charge was brought by a group of national security force members who had intervened in the violent breakup of the picket. The complainants also refer to: (i) a call for seven years’ imprisonment for two trade unionists from the hotel sector for taking part in the general strike of 29 March 2012; (ii) calls for prison sentences ranging from two to four years for two workers from Alcalá de Henares, the proceedings still being at the pre-trial stage; (iii) criminal proceedings in Magistrates’ Court No. 5 in Getafe, involving four members of the strike committee and works council in connection with a strike held in June 2012 at John Deere Iberica SA, the workers being accused of denying senior company managers access to their posts; and (iv) the conviction of a worker by the Madrid Provincial Court (ruling of 31 March 2014) for the offence of coercion under article 620.2 CC, after he had asked the manager of a local branch of MacDonalds to close her premises during the general strike of 14 November 2012.

Valencia

1. 465. The complainants refer to: (i) six legal proceedings, two of which have been terminated, at Magistrates’ Court No. 4 in Liria, Criminal Court No. 8 in Alicante and Court No. 4 in Alicante; (ii) proceedings in Elche in which 19 persons are accused of coercion; and (iii) the situation of seven trade unionists awaiting interim assessment by the Public Prosecutor’s Office.
2. 466. The complainants add that the various cases described demonstrate patterns of investigation, prosecution and punishment which constitute an obstacle to the full exercise of the right to strike and union activities as a whole. In this regard, the complainants:
   • – allege that almost all the actions being prosecuted lack the element of violence or coercion, which is understood as implying a degree of risk to the integrity of persons, property or installations. They state that the demonstrations called by the most representative trade union organizations in Spain do not entail any violence. According to the complainants, in the Airbus case, where eight union leaders are accused of attacking members of the police forces, the acts of which they are accused resulted from a police charge on hundreds of workers, of whom several dozen sustained injuries. The police charge supposedly took place to protect a worker who did not require medical attention. Since those supposedly attacked were law enforcement officers, it is surprising that no attacker has been identified or detained, and this is why the accusation has targeted the trade union leaders. In the case of the conviction in Pontevedra, it is surprising that the staining of swimming pool water and of a company manager’s suit should be classed by the provincial court as acts of violence against persons and objects;
   • – denounce the generalized and unfounded accusations made in police statements of criminal conspiracy and unlawful informational picketing, which can significantly increase the criminal liability of the accused. The complainants assume that this practice reflects criteria established by government agencies or the Ministry of the Interior;
   • – denounce the consistent focus on bringing charges against trade union leaders whenever it proves impossible to identify the individual perpetrators of alleged acts, and point to the Airbus case and the case in the Balearic Islands as examples;
   • – emphasize the key role of the Public Prosecutor’s Office, whose position can vary significantly according to the local context, thus generating great legal uncertainty. While numerous disputes do not lead to criminal proceedings in many situations, in other cases a criminal charge is brought even though the seriousness of the acts does not account for the conduct of the Public Prosecutor’s Office. In this regard, the complainants point out that in only two cases is the charge of coercion to strike accompanied by the existence of any kind of injury. According to the complainants, the foregoing illustrates the lack of consistent criteria applied in prosecutions concerning the crime of coercion to strike, with insufficient consideration being given to the need to protect the legitimate exercise of the right to strike. At times, the Public Prosecutor’s Office initiates criminal proceedings merely on the grounds of words spoken, even when no threat is uttered, as in the case of the conviction in Pontevedra; and
   • – allege that the courts of first instance and, at times, the provincial (second-level) courts, attach insufficient weight to the legal rights in dispute, failing to safeguard the right to strike and freedom of association and setting aside the Supreme Court criteria which lead to a narrow interpretation of the crime of coercion to strike. Lastly, they state that, despite their restrictive nature, the Supreme Court criteria do not prevent article 315.3 CC from continuing to classify strike action as an aggravating factor in criminal liability.
3. 467. The UGT provided additional information in a communication dated 31 October 2014. The complainant firstly states in general that the practices used to criminalize trade union activity are not confined to the application of the Criminal Code provisions concerning the crime of coercion to strike, but include the crimes of assault, unruly behaviour and public disorder. It also alleges that the justice system frequently moves very slowly, with some cases still unresolved after more than four years. The complainant contends that the lengthy uncertainty of a case carrying the threat of imprisonment affects the exercise of freedom of association and the right to strike.
4. 468. Turning to the subject of article 315.3 CC, the complainant asserts that: (i) coercion to promote a strike was classified as a criminal offence in 1976 to intimidate the still clandestine trade union organizations and the workers more actively involved in organizing and carrying out strike picketing; (ii) this provision has remained unaltered despite the progress achieved in the fundamental freedoms and rights enshrined in the 1978 Constitution; (iii) for many years article 315.3 was not implemented; and (iv) nevertheless, in order to curb the protests expressing public discontent, the freedom of many trade unionists and union leaders is being endangered by the application of a definition of crime which infringes the actual exercise of the right to strike.
5. 469. The complainant then provides details of specific cases of criminal proceedings following on from strikes, in which article 315.3 CC was applied or where other offences were involved. The complainant refers, firstly, to the case of Mr Carlos Rivas Martínez and Mr Serafín Rodríguez Martínez, convicted for a crime against workers’ rights under article 315.3 CC, stating that: (i) the convicted workers took part in a transport sector strike held in Vigo in April 2008 together with 70 other workers; (ii) according to the indictment, the workers in question prevented the passage of several lorries driven by workers who did not support the strike and threw objects and stones which broke the window of one lorry; (iii) on the basis of article 315.3 CC both workers were sentenced to three years’ imprisonment and a 12-month fine of €5 per day, a sentence upheld by the Provincial Court of Pontevedra in a ruling of 4 December 2012; and (iv) following the filing of a petition for clemency, in 2014 the courts granted suspension of imprisonment pending decision on the petition.
6. 470. Secondly, the complainant refers to the case of a trade union leader, Ms María Jesús Cedrún Gutierrez, stating that: (i) during a strike called by national trade unions on 29 March 2012, the trade union leader took part in an informational picket at the entrance to the MercaSantander enterprise; (ii) according to the indictment, she threw nails on the ground in front of vehicles that had stopped at the informational picket; and (iii) she was sentenced on 27 March 2014 to a ten-day fine for coercion under article 620.2 CC.
7. 471. Thirdly, the complainant refers to the case of Mr José Manuel Nogales Barroso and Mr Rubén Sanz Martín, stating that: (i) during the general strike of 30 March 2012, the two trade union representatives took part in an informational picket; (ii) according to the charge, two members of the police verified that the members of the informational picket, who had approached a bar to ask it to close, began to attack and abuse workers in the bar, striking them with the banners they were carrying; (iii) two bar workers and a police officer sustained injuries, recovery from which took four, three and six days, respectively, although none of them was unable to carry out his usual activities; and (iv) the two strikers were charged with coercion against the rights of workers under article 315.3 CC, assault under articles 550, 551 and 552 CC, and battery under article 617.1 CC; and (v) in 2012, each worker was sentenced to three years and nine months’ imprisonment and a 15-month fine of €15 per day for coercion, three years and three months’ imprisonment for assault, and a 50-day fine of €15 per day for battery. In the light of the above factors, the complainant states that the report of the Public Prosecutor’s Office contained no examination of the circumstances in which the events took place and started from the preconception that the informational picket was an unruly group of people using force and intimidation to threaten others’ freedom to work, without taking into account the constitutional dimension of the picketing.
8. 472. Fourthly, the complainant refers to the case of Mr Juan Carlos Martínez Barros and Ms Rosario María Alonso Rodríguez, stating that: (i) during the general strike of 28 September 2012, the two workers formed part of an informational picket in the Cantabrian town of Reinosa; (ii) according to the wording of the judgment, the workers padlocked the tax office so that its glass door had to be broken to allow access, with services to the public interrupted for a whole morning; and (iii) the workers were handed a 15-day fine for coercion.

B. The Government’s reply

1. 473. The Government indicates in its communications that although the ILO Conventions referred to in the complaint - Conventions Nos 87, 98 and 154 - protect the right to strike, this right is not absolute and it cannot be interpreted without restrictions. The Government states that, in this respect, article 315.3 CC does not penalize the free exercise of the right to strike but punishes the use of force or violence to compel workers to take part in a strike. Thus this provision, which, as in other countries, penalizes the obstacles to the freedom to work arising from strike picketing, complies with the jurisprudence of the Spanish Constitutional Court and with the doctrine of the Committee on Freedom of Association, both of which recognize that the right to strike does not constitute an absolute right and that it should not give rise to acts of violence or intimidation.
2. 474. In this respect, the Government emphasizes that: (i) the Spanish legal system fully respects the right to strike, which the Spanish Constitution considers to be a fundamental human right (article 28); (ii) article 6 of Royal Decree-Law No. 17/1977 on labour relations provides that workers on strike may publicize it peacefully but that the freedom to work of those who do not wish to join the strike must be respected; (iii) the Constitutional Court recognizes that the right to strike involves requesting others to support it and to take part, within the legal framework, in joint activities to that end and that the activity of so-called picketing by strikers, entailing the provision of information and propaganda for other workers and persuading them to join a strike or dissuading those who have chosen to continue a strike, is an expression of the right recognized in article 28 of the Spanish Constitution; (iv) the Constitutional Court is, however, adamant in asserting that the right to strike and the activity of picketing have limits and that the abovementioned right does not include the possibility of exercising moral violence of an intimidating or coercive nature against others; and (v) the Constitutional Court has taken the opportunity to clarify that conduct such as aggression, verbal abuse and the obstruction of free access to an enterprise fall outside the scope of exercise of the right to strike.
3. 475. The Government states further that article 315.3 CC originates from Act No. 23/1976 of 19 July 1976 which introduced former article 496 CC. Although the Criminal Code underwent significant reform in 1995, the authors of the reform considered that the actions regulated by former article 496 CC were sufficiently serious to be retained in the Criminal Code. The intention of the legislature in 1995, reflected in the three paragraphs of article 315, was to ensure a balance between the protection provided for those opting to exercise their right to strike and that provided for those deciding not to do so or not to do so any longer, by imposing identical penalties in all cases involving coercion, whether aimed at preventing the exercise of the right to strike or at forcing participation in a strike. The Government also points out that the acts addressed by article 315.3 CC constitute a subtype of article 172 CC, which criminalizes acts of coercion, imposing penalties ranging from six months’ to three years’ imprisonment or a 12–24 month fine. In the Government’s view, the criminal subtype in article 315.3 CC is justified inasmuch as coercion aimed at forcing workers to go on strike jeopardizes the freedom to work, human dignity and the right to moral integrity, which are rights and values protected by the Spanish Constitution (articles 10, 15 and 35). The Government emphasizes, however, that since the right to strike is fundamental, a judge must, in line with the doctrine of the Constitutional Court, not only verify that all the factors described in article 315.3 CC are in place but also, if there is doubt as to the interpretation of that provision, give it a narrow interpretation to avoid unduly limiting the right to strike.
4. 476. The Government states further that Organic Act No. 1/2015 of 30 March 2015 has mitigated the sentences applicable to the offence described. Whereas the previous legislation prescribed a prison sentence of at least three years and a maximum of four-and-a-half years, the reform reduced these penalties to a minimum prison term of one year and nine months and a maximum of three years. In addition, as a result of the reform, the judicial authority has the possibility to replace custodial sentences with fines. The penalty for this offence is thus mitigated, while at the same time the judge can decide between imprisonment or a fine, depending on the gravity of the offences and, in particular, on whether or not violence was exercised in committing them.
5. 477. Concerning the specific criminal proceedings referred to in the complaint, after indicating that, owing to a lack of information from the complainants, it was unable to conduct a detailed analysis of police actions in respect of all the cases mentioned, the Government states that: (i) the armed forces and state security forces are required under the Spanish Constitution to protect the free exercise of rights and freedoms and guarantee public safety, a task assigned to them under Organic Act No. 2/1986; (ii) although the majority of labour demonstrations relating to the economic crisis that has affected the country in recent years have been peaceful, exceptions have occurred in which the armed forces and state security forces were obliged to intervene in order to eliminate violence and ensure the peaceful use of public roads and spaces; and (iii) in all the cases cited in the complaint, criminal proceedings were begun against specific individuals for failing to exercise the right to strike in a peaceful manner, thus necessitating intervention by the law enforcement bodies in order to protect, as appropriate, the right to free movement, the right to work, the moral or physical integrity of individuals, or property.
6. 478. With respect to the incidents that occurred at the Airbus company in Getafe during the general strike of 29 September 2010, the Government states that: (i) the national police force had to intervene to enable an employee to reach his place of work and 11 police officers were injured during the operation, three having to be taken to hospital; and (ii) the violence against the police reached such a pitch that two officers surrounded by strikers had to fire warning shots into the air to drive away their attackers.
7. 479. Concerning the events that occurred in San Fernando (Cadiz) in 2012 during a workers’ protest at the Navantia enterprise, the Government states that: (i) the demonstrators changed the itinerary provided to the authorities and headed off to the local headquarters of the People’s Party of Spain; (ii) the demonstrators then forced the entrance gate to the headquarters, making it necessary for the police to intervene to prevent further damage; and (iii) the demonstrators responded to that intervention with attacks on police officers and the chairman of the works committee threw a microphone at a police officer, which led to his arrest.
8. 480. The Government emphatically denies the existence of any criteria set by the executive bodies of the Interior Ministry for the purpose of incriminating workers and trade union representatives. The Government states that the trade union organizations are fully recognized under the Spanish Constitution, and that therefore the armed forces and state security forces are not governed by orders that a priori regard trade union activity or informational picketing as illegal; rather, they are merely performing their constitutional duties of defending the law and the rights and freedoms of the people.
9. 481. Likewise, the Government states that all the actions of the Public Prosecutor’s Office are subject to the principle of legality, that it is obliged to bring a criminal prosecution in all cases where it is established that criminal acts have been committed, and that it acts objectively and with impartiality, subject only to the rule of law.
10. 482. Concerning the allegation contained in the complaint that criminal proceedings target union officials on the sole grounds that they take the lead in labour disputes, the Government states that: (i) it is at times difficult to determine who is responsible for unlawful damage caused during a strike, and thus the trade union organization to which the strikers belong, through its leaders, is required to answer for the individual acts of its members, subject to the terms of article 5.2 of Organic Act No. 11/1985 on freedom of association, which provides that a trade union is not responsible for individual acts by its members, unless those acts are performed as a regular part of representative duties or if it is proved that the members were acting on behalf of the union; and (ii) trade union representatives are the persons who generally lead informational pickets or demonstrations, which at times can entail violence, and it is thus appropriate that those representatives are named in legal proceedings dealing with violence, without prejudice to any further liability for such acts, which is determined by judicial or administrative decision, as appropriate.
11. 483. The Government also states that the application of article 315.3 CC has not caused any problems for several decades and that the presentation of this complaint results from a specific personal situation involving the sentencing of Ms Carmen Bajo and Mr Carlos Cano to imprisonment of three years and one day, for ordering an owner to close her premises during the general strike of March 2012. The Government asserts that the two complainant organizations have made repeated efforts to prevent these two individuals from going to prison, which, in the opinion of the Government, limits the scope of the present complaint to a personal matter.
12. 484. The Government denies the allegation concerning the non-application of criminal legislation to strike movements prior to the current economic crisis and its supposed use on a greater scale in recent years. By way of illustration, the Government refers in its various communications to a non-exhaustive list of 11 judgments from 1997 (one), 1998 (one), 1999 (one), 2002 (one), 2004 (two), 2005 (one), 2006 (three) and 2009 (one) which involved the application of article 315.3 CC.
13. 485. The Government also refers, again by way of illustration, to seven judgments handed down between 2011 and 2015 in which the courts issued acquittals or at least showed leniency with regard to the acts judged under article 315.3 CC. The Government states that the examples both before and after 2010 demonstrate that the judicial bodies are applying a restrictive interpretation of article 315.3 CC and that that interpretation has not changed in recent years.
14. 486. Lastly, the Government states that Spanish criminal law complies fully with the Conventions and principles concerning freedom of association and that, under the existing legal system in Spain, the basic right to strike is protected by effective mechanisms, both in the regular courts and in the Constitutional Court through the remedy of amparo. On the basis of the above, and since all the facts set out by the complainants are awaiting judicial rulings, it is reasonable to request that the examination of the present complaint be deferred until those rulings are given.
15. 487. In its communications of 24 February and 9 May 2016, the Government provides a copy of Judgment No. 57/2016 of 16 February 2016 of the Getafe Criminal Court, concerning charges of offences against workers’ rights and offences of assault and battery, brought against eight trade union leaders following incidents at the Airbus company in Getafe during the general strike of 29 September 2010. The Government emphasizes that the judgment: (i) declared the existence of acts of coercion by the workers in support of the strike and the existence of acts of aggression to be proven; (ii) acquitted two of the union leaders after the Public Prosecutor’s Office withdrew the charges against them; and (iii) acquitted the other six on the grounds of presumption of innocence, since no accusation against any of them for committing specific acts was substantiated.
16. 488. In its communication of 24 May 2016, the Government transmits the position of the Spanish Confederation of Business Organizations (CEOE), the leading employers’ organization in the country, on the content of the complaint. In its communication, the CEOE relays a position similar to the one submitted by the Government in relation to article 315.3 CC and its application by the Spanish courts, noting that such provision is in full conformity with the comments of the Committee on Freedom of Association and with the international Conventions ratified by Spain on the matter. The CEOE states in particular that: (i) the revision of article 351.3 CC by Organic Act No. 1/2015, lowering the prison penalties applicable to those who coerce non-striking workers, ensures that the penalties imposed are proportionate to the gravity of the offences committed; (ii) it being a more favourable law, Organic Act No. 1/2015 is applied to pending judicial proceedings, even if the acts committed took place before its entry into force; (iii) the current regulation does not lead to any kind of legal uncertainty and, in case it was, it is the courts that should undertake such assessment; (iv) the number of sentences of the Spanish courts judging these matters are almost inexistent, which demonstrates that there is no legal problem in this regard; and (v) as to the alleged delay of the criminal proceedings concerning acts committed during strike action, the CEOE notes the adoption on 5 October 2015 of Act No. 41/2015 on Criminal Procedure to Streamline Criminal Justice and Strengthen Procedural Guarantees, which sets out time limits for the judicial enquiry phase, so that the enquiry will not lead to delays, contrary to what may have occurred in the past before the entry into force of such Act.
17. 489. The CEOE’s communication also contains information on the situation of four persons that had been convicted to a three-year prison sentence as well as a fine for the commission of a crime against the rights of workers pursuant to article 315.3 CC and who had requested a petition for clemency in 2014 (Ms María del Carmen Bajo Crémer and Mr Carlos Cano Navarro, on the one hand, sentenced on 24 May 2013, and Mr Carlos Rivas Martínez and Mr Serafín Rodríguez Martínez, on the other hand, sentenced on 9 May 2011). In this regard, the CEOE informs that: (i) the clemency petition files are complete and pending resolution; (ii) while awaiting the clemency decision the persons concerned are free; and (iii) in all cases, the convicted may request, in the execution phase, the application of the more favourable Act.

The Committee’s conclusions

1. 490. The Committee observes that the present case refers to allegations of the suppression of the right to strike through criminal legislation and its increasing use in recent years by the Spanish public authorities. In this regard, the Committee notes in particular that the complainant organizations firstly allege that: (i) article 315.3 CC provides for heavy prison sentences (from three years to four years and six months) for those who, acting in a group or individually but in collusion with others, coerce other persons to begin or continue a strike; (ii) given that there is a general offence of coercion in the Criminal Code (article 172.1 CC) imposing much lighter prison terms (six months to three years), Spanish criminal legislation, far from protecting the fundamental nature of the right to strike, considers its exercise as an aggravating factor in criminal liability; and (iii) the definition of the criminal offence in article 315.3 CC is imprecise, resulting in its highly inconsistent application and generating legal uncertainty.
2. 491. The Committee notes that the complainants also allege that: (i) recent years have seen a rise in labour and social movements opposing regressive labour reforms. Article 315.3 CC and other provisions of criminal law (concerning offences including assault, unruly behaviour and public disorder) are being used very broadly by the public authorities to criminalize the exercise of the right to strike; (ii) in 2014, a total of 81 penalty procedures or criminal prosecutions of this type had been identified, a number of them resulting in sentences of several years’ imprisonment; (iii) most of the strike movements that were, or are, the subject of criminal charges or proceedings lacked any element of violence, with the Public Prosecutor’s Office and the courts failing to attach sufficient weight to ensuring that the fundamental right to strike is safeguarded; (iv) in most cases, the criminal charges target trade union leaders, regardless of their actual conduct during the strike; and (v) many of the criminal investigations are characterized by long delays, which have a deterrent effect on the exercise of collective rights. Lastly, the Committee notes that, apart from the 81 cases reported in general, the complainants also refer in more detail to a series of specific cases that they claim are characterized by heavy and disproportionate sentences imposed by the courts or sought by the prosecution.
3. 492. The Committee also notes the observations of the Government, which state that: (i) although the ILO Conventions referred to in the complaint – Conventions Nos 87, 98 and 154 – protect the right to strike, this right is not absolute and it cannot be interpreted without restrictions; (ii) the Spanish legal system fully respects the right to strike, which the Spanish Constitution considers to be a fundamental human right; (iii) in line with the Committee on Freedom of Association’s positions, the recognition of the fundamental nature of the right to strike does not mean that it constitutes an absolute right, which is why protection of it does not extend to the use of violence or coercion, or to the violation of other fundamental rights; (iv) article 315.3 CC fully reflects this position because, far from restricting the exercise of the right to strike, it punishes the violation of highly important rights and freedoms, such as the freedom to work and human dignity, that results from coercion; (v) the Spanish courts interpret the provisions of article 315.3 CC in a restrictive manner; (vi) the legislative reform of 30 March 2015 has resulted in the reduction of prison sentences provided for in article 315.3 CC, from the pre-reform minimum of three years and maximum of four and a half years to the current minimum of one year and nine months and maximum of three years, with the alternative possibility of imposing a fine, thus preventing any risk of disproportionate penalties for the abovementioned offence; (vii) there is no widespread practice of criminalization of strike movements by the public authorities, whether these be the law enforcement bodies, the Ministry of the Interior or the Public Prosecutor’s Office; (viii) there are no grounds for stating that article 315.3 has not been applied for decades and that the decision to use it systematically was taken in recent years; (ix) in the specific cases highlighted in sufficient detail by the complainants, acts of violence clearly occurred; and (x) there are actually circumstantial and personal reasons behind the filing of the present complaint, namely to prevent Ms Bajo and Mr Cano from serving the prison sentences handed to them after they had ordered an owner to close her premises during the March 2012 general strike.
4. 493. In the light of the above factors, the Committee observes that the main object of the complaint is article 315.3 CC concerning the crime of coercion to begin or continue a strike. The Committee notes that, according to the complainants, this provision stipulates excessively harsh penalties and its definition of punishable conduct is imprecise, causing legal uncertainty and giving rise to disproportionate sentences that fail to take into account either the particular characteristics of the right to strike or the need to protect this fundamental right. The Committee also notes the Government’s statements that the Spanish legal system recognizes that the right to strike includes the possibility of organizing peaceful informational picketing, that article 315.3 CC merely prohibits unlawful acts that infringe highly important rights such as the freedom to work and human dignity, that the new version of the article following a reform in 2015 has significantly reduced applicable prison sentences and that, in compliance with the jurisprudence of the Constitutional Court concerning fundamental rights, the courts must interpret and apply article 315.3 CC restrictively in order to avoid undue limitations on the right to strike.
5. 494. The Committee observes that, in its revised version, article 315.3 CC provides that any persons who, acting in a group or individually but in collusion with others, coerce other persons to begin or continue a strike shall be liable to imprisonment of one year and nine months to three years, or to a fine of 18–24 months. The Committee also observes that the offence categorized under article 315.3 CC is a subtype of the generic offence of coercion provided for in article 172.1 CC, which states that any person who, without being lawfully authorized, uses violence to prevent another from doing something that the law does not prohibit or to force another to do something, whether just or unjust, that he/she does not want to do, shall be liable to imprisonment of six months to three years or to a fine of 12–24 months, according to the severity of the coercion or the means used.
6. 495. The Committee notes that article 315.3 CC is applied primarily in the case of picketing action. The Committee underlines that it is important for criminal provisions applicable to collective labour disputes to clearly define unlawful conduct so as to ensure the legal certainty needed for stable collective labour relations. In this regard, while noting the Government’s statement that the courts, in line with the jurisprudence of the Constitutional Court concerning fundamental rights, interpret and apply article 315.3 CC restrictively, the Committee observes that the amended version of article 315.3 CC, despite being applicable only in the case of a strike and apart from specific reference to the coordinated nature of the unlawful act, still fails to include elements to define conduct constituting coercion in that context. Noting that the complainants allege that the application of this provision is highly inconsistent, the Committee requests the Government to invite the competent authority to review the impact of the 2015 reform of article 315.3 of the CC and to inform the social partners of the outcome of the review. The Committee requests the Government to keep it informed in this respect.
7. 496. With regard to the allegedly disproportionate prison sentences stipulated in the abovementioned provision, the Committee recalls the principle that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 668].
8. 497. In this respect, the Committee notes, firstly, that a number of judgments handed down between 2011 and 2015 are communicated by the Government in order to demonstrate that the application of article 315.3 CC by the courts makes for an appropriate response to the aggression and unlawful acts classified by this provision. The Committee also observes that, since the submission of the complaint, a reform of article 315.3 in March 2015 has led to the prison sentences stipulated under the provision being reduced from a pre-reform minimum of three years and maximum of four years and six months to a current minimum of one year and nine months and maximum of three years. The Committee also notes that the fines provided for have also increased from a minimum of 12 months and maximum of 24 months to a minimum of 18 months and maximum of 24 months. The Committee takes special note of the Government’s assertion that the revised version of the provision allows the judge to decide between a sentence of a fine or imprisonment, depending on the seriousness of the offence and, in particular, whether or not violence was used in committing the offence.
9. 498. The Committee notes at the same time that: (i) the minimum prison sentences and fines provided for in article 315.3 CC for the offence of coercion during a strike (imprisonment of one year and nine months to three years or a fine of 18-24 months) remain heavier than the sentences imposed for the general offence of coercion under article 172.1 CC (imprisonment of six months to three years or a fine of 12–24 months) and also longer than the minimum sentences for the general offence of coercion when the exercise of a fundamental right is impeded (imprisonment of 18 months and one day to three years), despite the fact that the complainants emphasize that the Spanish Constitution does not include the freedom to work in the category of fundamental rights (article 35 of the Constitution); (ii) the text of the provision fails to provide criteria to distinguish offences punishable by imprisonment from those subject to a fine; and (iii) although the Committee notes, in most of the specific cases referred to by the complainants and the Government, that the prison sentences imposed by the courts were for acts of coercion accompanied by physical violence, it observes that in at least one case (the sentencing of Ms Carmen Bajo and Mr Carlos Cano to imprisonment of three years and one day) no mention is made of the convicted persons committing acts of physical violence.
10. 499. In the light of the above factors, the Committee requests the Government to invite the competent authority to also review these issues.
11. 500. With regard to the allegation that, in recent years, the public authorities have been making extensive use of criminal law to criminalize the exercise of the right to strike, the Committee notes the complainants’ statement that they have identified 81 penalty procedures or criminal prosecutions under way in 2014 which, in most cases, do not involve acts of violence. The Committee also notes that the Government, after referring to judgments predating 2010 that applied article 315.3 CC, denies that there is any widespread practice of criminalization of strike movements by the public authorities, whether these be the law enforcement bodies, the Ministry of the Interior or the Public Prosecutor’s Office. While emphasizing that it lacks the necessary information to be able to ascertain whether the alleged practice exists, the Committee notes that the Government does not deny the existence of a large number of prosecutions and criminal proceedings under way relating to the exercise of the right to strike. In this regard, the Committee, while recalling that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667], trusts that full consideration will be given to the fact that the frequent recourse to criminal proceedings in the area of collective labour relations does not help maintain a stable and harmonious system of labour relations.
12. 501. Concerning the allegation that neither the Public Prosecutor’s Office nor the courts are subject to binding criteria for taking account of the impact on freedom of association when formulating charges and prosecuting offences arising from informational picketing, the Committee observes that both the complainants and the Government recognize the contribution of the jurisprudence of the Constitutional Court and the Supreme Court in this regard. In the light of the numerous cases involving informational picketing pending in the courts, the Committee trusts that the position of both courts will be widely disseminated.
13. 502. With respect to the allegation of the arbitrary targeting of trade union representatives when formulating charges and issuing convictions for disputes arising from altercations or incidents during a strike, the Committee notes the Government’s statements that: (i) trade union representatives generally lead informational pickets or demonstrations, and it is thus appropriate that they are named in legal proceedings dealing with violence, without prejudice to any further liability for such acts; and (ii) it is at times difficult to determine who is responsible for unlawful damage caused during a strike, and thus the trade union organization is required to answer for the individual acts of its members, subject to the terms of Organic Act No. 11/1985 on freedom of association, which provides that a trade union is not responsible for individual acts by its members, unless those acts are performed as a regular part of representative duties or if it is proved that the members were acting on behalf of the union.
14. 503. In the light of the Government’s response, and since bringing charges for an offence solely on the basis of a person’s trade union office could result in a situation of anti-union discrimination, the Committee emphasizes that criminal charges brought against any worker, whether a union representative or not, for an offence committed during a strike, should be based on specific evidence pointing to the involvement of that person in the alleged offence. Noting that the complainants claim the existence of numerous cases of trade union leaders being charged for alleged offences committed during strike movements, the Committee trusts that the aforementioned principle will be fully respected.
15. 504. As regards the alleged delays in many ongoing criminal proceedings, which could have a deterrent effect on the exercise of freedom of association and the right to strike, while noting the absence of comments from the Government in this regard, the Committee takes note that the comments of the CEOE transmitted by the Government indicate that the adoption of Act No. 41/2015 on Criminal Procedure to Streamline Criminal Justice and Strengthen Procedural Guarantees, which sets out time limits for the judicial enquiry phase, will allow to avoid delays in the criminal proceedings relating to acts committed during strike actions. Recalling that respect for due process of law should not preclude the possibility of a fair and rapid trial and, on the contrary, an excessive delay may intimidate the employers’ leaders concerned, thus having repercussions on the exercise of their activities [see Digest, op. cit., para. 103], the Committee trusts that the criminal proceedings under way relating to the exercise of the right to strike and referred to in the present complaint will be settled as quickly as possible. The Committee requests the Government to keep it informed in this regard.
16. 505. As regards the allegations made in the complaint concerning specific cases of supposed criminalization of the right to strike, the Committee observes firstly that a significant number of cases referred to by the complainants did not contain sufficient detail to allow their individual identification and analysis. The Committee will therefore not pursue its examination of these allegations.
17. 506. With respect to the charges of offences against workers’ rights and offences of assault and battery brought against eight trade union leaders following incidents that occurred at the Airbus company in Getafe during the general strike of 29 September 2010, the Committee notes the Government’s statement that the Getafe Criminal Court, in its judgment of 16 February 2016, after establishing that acts of coercion and aggression had occurred, acquitted the accused on the grounds of presumption of innocence, since no accusation against any of them for committing specific acts had been substantiated.
18. 507. With regard to the call for prison sentences of nine months, 14 months and two years and three months for three workers from the Navantia enterprise for major offences of public disorder and dangerous assault and a minor offence of battery during a strike in San Fernando (Cadiz), the Committee notes the Government’s statement that the demonstrators forced the entrance gate to the headquarters of a political party, necessitating police intervention to prevent further damage, and that the demonstrators responded to that intervention with attacks on police officers, with the chairperson of the works committee throwing a microphone at one of the police officers, which led to his arrest.
19. 508. Regarding the sentencing of Ms Carmen Bajo and Mr Carlos Cano, on the basis of article 315.3 CC, to imprisonment of three years and one day for ordering an owner to close her premises during a general strike, the Committee notes the complainants’ claim that the two individuals did not commit any violent acts and that the courts merely found that they had verbally abused the owner of the premises and had defaced the premises with stickers and graffiti, causing damage amounting to €767. The Committee also notes that the Government merely states that the two complainant organizations have made repeated efforts to prevent these two individuals from going to prison, which, in the Government’s opinion, limits the scope of the present complaint to a personal matter. Observing that, unlike in previous cases, the Government does not refer to acts of physical violence committed by Ms Carmen Bajo and Mr Carlos Cano, and noting that both were sentenced to long prison terms, the Committee requests the Government to indicate the specific grounds that led to the imposition of the sentences concerned. Taking note of the CEOE’s communication, indicating that both persons are currently free as they await a decision on their clemency petition, the Committee requests the Government to keep it informed of the evolution of the situation of Ms Carmen Bajo and Mr Carlos Cano.
20. 509. As to the situation of Mr Carlos Rivas Martínez and Mr Serafín Rodríguez Martínez, the Committee takes note of the information provided in the CEOE’s communication, noting that both workers, sentenced to three years of prison in 2011 pursuant to article 315.3 CC, are currently free, awaiting a decision on their clemency petition. In these conditions, the Committee requests the Government to keep it informed of the evolution of the situation of Mr Carlos Rivas Martínez and Mr Serafín Rodríguez Martínez.
21. 510. The Committee notes that the Government has not provided observations on the situation of Ms María Jesús Cedrún Gutierrez, Mr José Manuel Nogales Barroso, Mr Rubén Sanz Martín, Mr Juan Carlos Martínez Barros, Ms Rosario María and Mr Alonso Rodríguez, referred to in the UGT communication of 31 October 2014, who received varying sentences under article 315.3 CC. The Committee requests the Government to send its observations on this matter as soon as possible.

The Committee’s recommendations

1. 511. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to invite the competent authority to review the impact of the 2015 reform of article 315.3 of the CC and to inform the social partners of the outcome of the review. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to indicate the specific grounds that led to the sentencing of Ms Bajo and Mr Cano to imprisonment of three years and one day and, noting that they are currently free, awaiting a decision on their petitions for clemency, the Committee requests the Government to keep it informed of the evolution of their situation.
   • (c) Noting that Mr Carlos Rivas Martínez and Mr Serafín Rodríguez Martínez are currently free, awaiting a decision on their petitions for clemency, the Committee requests the Government to keep it informed of the evolution of their situation.
   • (d) The Committee requests the Government to send its observations on the situation of Ms María Jesús Cedrún Gutierrez, Mr José Manuel Nogales Barroso, Mr Rubén Sanz Martín, Mr Juan Carlos Martínez Barros, Ms Rosario María and Mr Alonso Rodríguez. The Committee trusts that the ongoing criminal proceedings relating to the exercise of the right to strike referred to in the present complaint will be settled as quickly as possible. The Committee requests the Government to keep it informed in this regard.