Informe provisional - Informe núm. 47, 1961

Caso núm. 143 (España) - Fecha de presentación de la queja:: 15-ABR-59 - Cerrado

1. 61. Continuing its examination of the complaints of infringements of freedom of association presented by the I.C.F.T.U, the General Union of Spanish Workers in Exile and the W.F.T.U against the Government of Spain, the Committee on Freedom of Association, at its 23rd Session (November 1959) submitted a further interim report, which was adopted by the Governing Body and which contained a number of conclusions, recommendations and requests for further information.
2. 62. The information awaited from the Government having been received too late for the Committee to be able to examine it at its 24th Session (February 1960), the Committee adjourned its examination of the case until its present session. The present report is confined to the allegations still outstanding.

Allegations relating to the Effects on Trade Union Freedom of the Prohibition of Strikes

1. 63. These allegations and the replies of the Government in respect thereof have already been analysed and examined in paragraphs 125 to 131 of the 30th Report and in paragraphs 81 to 88 of the 41st Report. At the conclusion of its examination of this aspect of the case at its November 1959 Session the Committee submitted the following recommendations to the Governing Body in paragraph 104 (b) of its 41st Report:
2. 104. In these circumstances, the Committee recommends the Governing Body:
3. ......................................................................................................................................................
4. (b) to decide, with respect to the allegations relating to the effects on trade union freedom of the prohibition of strikes:
5. (i) to take note once again of the Government's statement that workers cannot be punished under the provisions of the Penal Code merely on account of leaving their work;
6. (ii) to note that, in their application and as a result of the terms in which they are drafted, the legislative texts at present enforced appear to be susceptible of being interpreted in a manner incompatible with this principle;
7. (iii) for this reason, to ask the Government, admitting that the intention of the law is as stated above, whether it has taken the necessary measures to ensure that the authorities responsible for initiating legal proceedings are fully aware of this intention and of the exact scope of the texts which it is their duty to apply;
8. (iv) to observe that in its present form the Spanish legislation relating to strikes entails a danger of being interpreted as absolutely prohibiting strikes, which would not be in harmony with the generally accepted principles concerning freedom of association;
9. (v) to suggest to the Government that in these circumstances it may wish to consider the desirability of submitting to the competent national authorities proposals for appropriate amendments to this legislation;
10. ......................................................................................................................................................
11. These recommendations were approved by the Governing Body at its 144th Session (1-4 March 1960) and were communicated to the Government by a letter of the Director-General dated 14 March 1960. As the Government has not commented on this aspect of the case in its letter dated 15 February 1960 or subsequently, the Committee recommends the Governing Body to draw the Government's attention once again to the conclusions contained in paragraph 104 (b) of the Committee's 41st Report and to request the Government, in particular, to furnish the information requested in paragraph 104 (b) (iii).
12. Allegations relating to the Strikes of March 1958
13. 64. At its 20th Session the Committee, having noted the discrepancy between the very full information supplied by the complainants with a view to showing that the strikes in question were due to economic grievances and the Government's statements that the movement was a subversive plot, recommended the Governing Body to request the Government to supply more detailed information on this aspect of the case.
14. 65. At its November 1959 Session the Committee, after examining the Government's communications dated 22 May and 28 July 1959, noted that, apart from certain arguments to the effect that the fact that a citizen is a trade unionist cannot free him from penal responsibility in respect of offences committed by him, the only reply by the Government was a reference to the observations which it made in its communication dated 17 October 1958, in the light of which, precisely, the Committee and the Governing Body took the view that it was necessary to obtain more detailed information in order to be able to formulate decisions in full knowledge of all the circumstances.
15. 66. In these circumstances, considering, as it always has done $, that allegations relating to prohibitions of the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, the Committee recommended the Governing Body to affirm, as it has done on many occasions, that the right to strike of workers and workers' organisations constitutes an essential means of promoting and defending their occupational interests.
16. 67. With regard to the allegations relating to the ill-treatment of and other punitive measures against workers who took part in the strikes of March 1958, and also as regards the legal procedure referred to by the Government in its observations, the Committee, noting the Government's failure to furnish the information requested, repeated its previous a recommendation to the Governing Body to draw attention once again to the importance that it has always attached to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights and to request the Government to supply more detailed information on these aspects of the case.
17. 68. In view of the fact that, both in its communication dated 15 February 1960 and subsequently, the Government has refrained from making any reply in respect of the points mentioned above, the Committee considers that it should again make the same recommendations to the Governing Body as are referred to in the two preceding paragraphs.
18. Allegations relating to Measures Taken against Strikers and to Arrests of Trade Unionists and Workers
19. 69. In a communication dated 12 December 1957 the General Union of Spanish Workers in Exile refers to measures alleged to have been taken against workers at the Sestao shipyards and the miners at the Maria Luisa mine as a result of strikes.
20. 70. In a letter dated 15 May 1958 the W.F.T.U alleges that 44 Spanish citizens were arrested on 28 January 1958 under the pretext that they had attended the World Youth Festival. The persons arrested are alleged to have included six trade unionists, whose names are given by the complainant and who are stated to have been shop stewards in their local trade union organisations in Spain, who had taken no part whatever in the Festival.
21. 71. In a communication dated 31 December 1958, addressed to the Secretary-General of the United Nations and transmitted by him to the I.L.O, the General Union of Spanish Workers in Exile alleges that 34 workers were then still in prison after having been arrested for having participated in the strikes of Asturian miners in March 1958, while 17 had been exiled to Extremadura.
22. 72. Finally, in a letter dated 17 March 1959, the General Union of Spanish Workers in Exile alleges that 32 workers were arrested in Saragossa in 1948 for having attempted to reorganise the General Union of Workers in Saragossa, held in gaol for a year, then released on bail and finally, on 17 February 1959, 11 years later, sentenced to terms of imprisonment varying from three months to six years. The complainants give the names of the workers concerned.
23. 73. Not having received any observations on these matters from the Government, the Committee decided, at its meeting in November 1959, to ask the Director-General to request the Government to be good enough to forward its observations thereon before the Committee made its recommendations to the Governing Body. As the allegations in question fall within the category of those which are required to be treated as urgent, in view of the fact that they relate to matters involving " human life or personal freedom ", the Committee asked the Director-General to draw this fact to the attention of the Government and to request it to furnish a particularly speedy reply in regard to the matters raised.
24. 74. The Government's communication dated 15 February 1960 states that the activities for which the persons concerned were prosecuted and punished were not of an occupational nature but were definitely subversive and contrary to law and order, originating in the instructions and assistance given by the Fifth Congress of the Communist Party in Prague (November 1954). The Government declares that, at the homes of several of the detainees large quantities of Communist propaganda received from abroad were discovered, together with duplicating machines of foreign origin and large amounts of money which could not be accounted for. Those detained were brought before the competent examining magistrate within the statutory time limits, and some, states the Government, were released at the magistrate's order, while others were tried in conformity with the ordinary Penal Code.
25. 75. The Government comments on the allegation referred to in paragraph 70 above and declares that the persons concerned were arrested not for having attended the World Youth Festival, but for having organised in Saragossa a branch of the Communist Party, which is banned in Spain, " in accordance with the directives of the Fifth Congress of the Communist Party held in Prague in November 1954, which called for democratisation and coexistence by means of the infiltration of intellectual and working-class circles ".
26. 76. Concerning the six persons named by the W.F.T.U, the Government states that Rafael Tejero Sánchez was a member of the Saragossa secretariat of the Communist Party, that Manuel Gil Prieto was the friend and right-hand man of the general secretary of the Communist Party, that Antonio Rosel Martinez was the son of the general secretary of the Party and its organising secretary and treasurer, that Luis Zalaya Navarro was a member of the Communist Party secretariat and that Ramón Gorriz Espez (not " Ramón Gorri ") and Jesús Gamboa (Matute) were active members of the Communist Party. The arrests took place, declares the Government, because all these persons were active members of the prohibited Communist Party and were completely unrelated to any trade union or labour considerations.
27. 77. In view of the explanations given by the Government the Committee considers that the arrests of the trade unionists concerned in the complaint of the W.F.T.U appear to have been occasioned by unlawful political activities outside the scope of their duties as Spanish trade union shop stewards. The Committee, therefore, recommends the Governing Body to note that the complainants have not offered sufficient evidence to show that they were arrested because of their trade union functions or activities-a contention which is denied by the Government-and to decide that it is unnecessary to examine this aspect of the allegations further.
28. 78. The Government makes no reference to the measures alleged to have been taken against workers at the Sestao shipyards and miners at the Maria Luisa mine as a result of strikes (see paragraph 69 above), to the 34 workers named as having been arrested because they participated in strikes (see paragraph 71), or to the 32 workers named as having been sentenced for having attempted to reorganise the General Union of Workers (see paragraph 72).
29. 79. The Committee therefore recommends the Governing Body to request the Government to furnish its observations on these aspects of the case; to draw the attention of the Government to the fact that the allegations in question fall within the category of those which are required to be treated as urgent, in accordance with the decision of the Governing Body in November 1958, in view of the fact that they relate to matters involving " human life or personal freedom "; to request the Government accordingly to furnish a particularly speedy reply in regard to the matters raised.
30. Allegations relating to " Social Detainees " (Case of Mr. Félix Carrasquer)
31. 80. According to the allegations made on 6 May 1958 by the General Union of Spanish Workers in Exile, Mr. Félix Carrasquer, a trade union leader, was detained in 1946 on the pretext that he was the regional secretary for Catalonia of the National Federation of Labour, and was set free on probation in 1947. It is alleged that in the same year he was re-arrested, this time charged with being a member of the National Committee of the National Federation of Labour in Madrid, and was sentenced to 30 years' imprisonment, subsequently reduced to 20 years.
32. 81. At its meeting in November 1959, the Government not then having furnished any observations on this aspect of the case, the Committee decided to ask the Director-General to obtain the Government's comments on the matter before it made its recommendations, thereon to the Governing Body. As these allegations, moreover, also fall within the definition, of allegations to be treated as urgent, in view of the fact that they relate to matters involving human life or personal freedom ", the Committee asked the Director-General to draw the attention of the Government to this fact and to request it to furnish a particularly speedy reply in regard to the matters raised.
33. 82. In its communication dated 15 February 1960 the Government states that, when Félix Carrasquer was arrested in November 1947, two revolvers, a sub-machine gun, three hand grenades and a large supply of ammunition were found at his home, and that, on 21 January 1949, he was tried with others by the competent regular court on the charge of terrorist activities, including that of attempting to place explosives in the French Embassy in Madrid, and sentenced to 25 years' penal servitude. Since 7 February 1959, declares the Government, he has been free on parole.
34. 83. In this instance the Committee considers that it would appear from the details given by the Government that the person concerned was sentenced by the competent court in accordance with judicial procedure on 21 January 1949 and was liberated on parole on 2 February 1959, and recommends the Governing Body to decide that as he is now free on parole and the complainants have not furnished sufficient evidence to show that he was sentenced because of his trade union functions or activities, it is therefore unnecessary to examine these allegations further.
35. Allegations relating to a Draft Law Defining the New Powers of the Minister of the Interior as Regards Maintenance of Public Order
36. 84. By a communication dated 21 June 1959 the General Union of Spanish Workers in Exile declares that the official bulletin of the Cortes dated 12 June 1959 contains the text of a draft letter defining the new powers of the Minister of the Interior as regards maintenance of public order. According to this draft, it is alleged that the following acts would be punishable as contrary to public order: acts which may disturb public security; acts which may disturb regularity of supplies; acts which may disturb the normal operation of the public services; stoppages of work; strikes; and the closing down of establishments. The same draft law adds that, if disturbances of public order are considered serious, the Minister will proceed to declare a state of emergency throughout Spain. In such a case he will have the power to detain any person who in his opinion may prejudice public order, to search private homes by day or by night, to establish a censorship of all publications, broadcasts and public entertainments, and to set up emergency courts.
37. 85. The complainants declare that such a law, if it should come to be applied, would deprive the workers of essential means of defending and promoting their interests or of protesting against any injustice, every stoppage of work becoming, in fact, an offence resulting in trial by an emergency court.
38. 86. At its meeting in November 1959 the Committee, not then having received the Government's observations on this aspect of the case, decided to ask the Director-General to obtain the Government's observations before it made its recommendations to the Governing Body.
39. 87. In its communication dated 15 February 1960 the Government states that the Bill referred to in the allegations was enacted as the Public Order Act on 30 July 1959.
40. 88. The Government denies that the Act makes " stoppages of work, strikes and the closing down of establishments " punishable as being contrary to public order. Section 2 of the Act, declares the Government, in which ordinary strikes (huelgas) are not mentioned, provides that collective stoppages of work (paros colectivos) and illegal lockouts or closures of undertakings shall be deemed contrary to law and order.
41. 89. The Government repudiates the contention that the competent Minister is empowered to declare a state of emergency throughout Spain, stating that the Act lays down strict criteria for the proclamation of " emergency ordinances and suspension of guarantees ", for which provision is made in every country; under section 25 of the Act the Government (not the Minister) may declare a state of emergency by legislative decree, which must come immediately before the Cortes to be ratified or annulled (section 26) and, if ratified, must be reviewed by the Cortes after three months.
42. 90. With reference to the allegation that the declaration of a state of emergency authorises the competent Minister to effect arrests, order house searches and impose a censorship, the Government declares that such a situation subsists in the event of emergency in every country, but claims that provision is made to prevent abuses-thus, section 25 (2) of the Act provides that the Legislative Decree declaring a state of emergency must specify which legal guarantees are suspended, while section 30 provides that house searches and inspections shall be carried out m a proper and orderly manner and section 32 (2) provides for the payment of compensation in respect of damage caused in this connection.
43. 91. The Government denies that the Act authorises the Minister to set up emergency courts, stating that if a state of emergency is declared the ordinary courts automatically become emergency courts on the instructions of the Judiciary alone; thus, in preparing cases, the examining magistrates, in complete independence, abide by the rules laid down in the Criminal Procedure Act " without any alteration other than those necessitated by the urgency of the case ", persons prosecuted being afforded all the guarantees of due process, defence, proof and appeal laid down in sections 49, 50 and 51 of the Act.
44. 92. With reference to the allegation that " the right to strike is specified as an offence which will be judged by the emergency courts mentioned in the draft Bill ", the Government declares that the Act does not create new offences but merely lists acts which are contrary to law and order. Section 44 states that the courts " shall try exclusively those acts listed in section 2 ... which constitute a criminal offence ". Such acts do not always constitute such an offence.
45. 93. The essential point which requires to be accurately defined before the Committee can reach a conclusion is the meaning of the words " collective stoppages of work " in section 2 of the Act. It is alleged that the Act makes strikes illegal. The Government states that the word huelga-the ordinary word for " strike "-is not used but that section 2 of the Act renders " collective stoppages of work " (paros colectivos) contrary to public order and therefore punishable. The exact shade of meaning is not clear. Before examining this aspect of the matter further the Committee considers that it should ask the Government to explain the exact scope of the term " collective stoppages of work " (paros colectivos) and the circumstances in which cessations of work are regarded as strikes (huelgas) and not as collective stoppages of work (paros colectivos) punishable by virtue of the new Act.

The Committee's recommendations

1. 94. In all the circumstances, the Committee recommends the Governing Body
2. 1. to decide, with respect to the allegations relating to the effects on trade union freedom of the prohibition of strikes:
   • (a) to draw the Government's attention once again to the conclusions contained in paragraph 104 (b) of the Committee's 41st Report;
   • (b) to request the Government, in particular, to furnish the information asked for in paragraph 104 (b), subparagraph (iii), of that report;
3. 2. to decide:
   • (a) with respect to the allegations relating to the strikes of March 1958, to draw the attention of the Government to paragraph 104 (c) (i) of the Committee's 41st Report;
   • (b) with respect to the allegations relating to the ill-treatment of and other punitive measures against workers who took part in the strikes of March 1958, and with respect also to the legal procedure referred to by the Government in its observations, to reaffirm the decision contained in paragraph 104 (c) (ii) of the Committee's 41st Report, in which the Governing Body drew attention to the importance that it has always attached to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights;
4. 3. to decide, with respect to the allegations relating to measures taken against strikers and to arrests of trade unionists and workers:
   • (a) to request the Government to furnish observations:
   • (i) on the measures alleged to have been taken against workers at the Sestao shipyards and miners at the Maria Luisa mine as a result of strikes;
   • (ii) on the allegation that, since the strike of Asturian miners in March 1958, 34 workers have been held in prison and 17 exiled to Extremadura for having participated in the strikes;
   • (iii) on the allegation that 32 workers were prosecuted and sentenced on 17 February 1959 after being found guilty of having attempted to reorganise the General Union of Workers in Saragossa;
   • (b) to draw the Government's attention to the fact that the allegations in question fall within the category of those which are required to be treated as urgent, in accordance with the decision of the Governing Body in November 1958, in view of the fact that they relate to matters involving " human life or personal freedom ", and to request the Government accordingly to furnish a particularly speedy reply in respect to the matters raised;
5. 4. to note, with respect to the allegations that 44 citizens were arrested on the pretext of having attended the World Youth Festival, that the complainants have not offered sufficient evidence to show that they were arrested because of their trade union functions or activities-a contention which is denied by the Government-and to decide that it is unnecessary to examine these allegations further;
6. 5. to decide, with respect to the allegations relating to Mr. Félix Carrasquer, that, as he is now free on parole and the complainants have not furnished sufficient evidence to show that he was sentenced because of his trade union functions or activities, it is therefore unnecessary to examine these allegations further;
7. 6. to take note of the present interim report of the Committee with respect to the allegations relating to a draft law defining the new powers of the Minister of the Interior as regards maintenance of public order, it being understood that the Committee will report further on this aspect of the case when further information which it has requested the Government to furnish has been received.