Informe provisional - Informe núm. 70, 1963

Caso núm. 294 (España) - Fecha de presentación de la queja:: 27-AGO-62 - Cerrado

1. 285. This case was examined earlier by the Committee at its 32nd Session (October 1962), when it submitted an interim report in paragraphs 472 to 495 of its 66th Report, which was approved by the Governing Body at its 153rd Session (November 1962), and at its 33rd Session (February 1963), when it submitted another interim report in paragraphs 126 to 152 of its 68th Report, which was approved by the Governing Body at its 154th Session (March 1963). This latter report contains the Committee's final conclusions regarding some of the allegations and in it the Committee also asks the Government for certain additional information.
2. 286. The Committee's conclusions and recommendations in paragraph 152 of its were worded as follows:
3. 152. As regards the case as a whole, the Committee, having regard to the fact that it has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights, recommends the Governing Body:
   • (a) to observe that, while Decree No. 2354/1962 concerning procedure, conciliation and arbitration in collective employment relations contains certain guarantees for the protection of workers' rights in the event of collective disputes designed to give effect to the recommendation of the Committee that the restriction of strikes should be accompanied by adequate impartial and speedy conciliation and arbitration procedures, this has not changed the situation with regard to the fact that the present Spanish legislation on strikes-the Penal Code, the Labour Charter and the State Security Act, examined in paragraphs 81 to 88 of the 41st Report of the Committee-can be interpreted as providing for their absolute prohibition, in the case of all workers and not only in the case of workers engaged in essential services, and, accordingly, to draw the attention of the Government once again, as it did in paragraph 495 (b) of the 66th Report of the Committee, to the principle enunciated in paragraph 481 of that report that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised;
   • (b) to request the Government, having regard to the importance which the Governing Body has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers have no relation to their trade union functions, to forward the decisions handed down by the national courts in proceedings instituted against the 47 persons stated by the Government, in its communication dated 14 January 1963, still to be detained and, in particular, the texts of the judgments and the legal reasons cited as their basis, and meanwhile to adjourn the examination of this aspect of the case.
4. 287. The Committee's 68th Report, as approved by the Governing Body, was forwarded to the Government by the Director-General, with a covering letter dated 13 March 1963.
5. 288. The W.F.T.U, in a communication dated 27 March 1963, also submitted a complaint connected with this case.
6. 289. The W.F.T.U, in its communication dated 27 March 1963, declares in the first place that it is certain that the Spanish Government will again appoint the Workers' delegate and advisers to the 47th Session of the Conference in violation of the provisions of the Constitution of the I.L.O and reserves the right to object to such appointments. The W.F.T.U claims that the appointment of the Workers' delegate cannot be effected in agreement with the most representative occupational associations, because no such organisations have existed in Spain since the promulgation of the Charter and of the Act of 6 December 1940 " respecting the formation of a so-called national trade union organisation ". Again, according to the W.F.T.U, the delegates appointed in agreement with the vertical organisations cannot be regarded as genuinely representative of the workers, because these organisations " are merely an instrument in the service of the Fascist State ", which controls them through the intermediary of leaders appointed by the Falange itself. The W.F.T.U alleges that recent events in Spain " have fully confirmed the non-representative, Fascist character of the Falangist trade unions " and that in the struggle in support of the demands of the Spanish workers these " trade unions " have hindered " these great mass movements and openly support the policy and measures of repression and terror of the employers and of the Fascist Government ". Further, according to the W.F.T.U, during the struggles in support of demands, the workers have been unable to depend on these " pseudo-trade unions ", but have had to fight alone and talk directly with the employers. The W.F.T.U declares that the decision has been taken to set up a large committee of solidarity with the Spanish workers and people and that an appeal has been made to the workers and trade unions of the world to organise an International Day of Solidarity during the week of 7 to 15 June 1963. The W.F.T.U, which states that it has urged in its numerous complaints and interventions with the I.L.O that measures be taken " of a nature to contribute effectively to the re-establishment of trade union rights and freedoms in Spain and the termination of the arbitrary rule and contempt for human life and human beings which characterise the Fascist régime of Franco ", considers that the I.L.O should intervene energetically with the Spanish Government to secure (a) the abrogation of the Falangist law respecting trade unions; (b) the restoration of democratic and trade union freedoms and the right to strike; (c) the satisfaction of economic demands; (d) the liberation of detained persons imprisoned in consequence of strikes; (e) the return and reintegration in employment of workers deported in consequence of strikes; (f) a general amnesty for persons imprisoned on political grounds; and (g) the cessation of torture, repression and recourse to military tribunals for offences of opinion and strike offences. Finally, the W.F.T.U considers that the I.L.O should set up a commission of inquiry, to investigate the situation with regard to trade union rights in Spain, in which the W.F.T.U is ready to take part.
7. 290. This communication from the W.F.T.U was forwarded to the Spanish Government for any comments it might care to make, with a covering letter from the Director-General dated 10 April 1963.
8. 291. In a communication dated 3 May 1963 the Spanish Government supplied certain additional facts in answer to the request contained in paragraph 152 (b) of the Committee's 58th Report, which was forwarded to the Government with a covering letter from the Director-General dated 13 March 1963.
9. 292. In a communication dated 30 April 1963, which was received in Geneva on 14 May 1963, the Government returned the W.F.T.U's communication to the Director-General of the I.L.O stating that " apart from the fact that it contains no definite accusation, it is worded in a manner which is unacceptable in an official document ", and adding that " accordingly, the Spanish Government cannot regard this communication as ever having been received ".
10. 293. Spain has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
11. 294. The Committee does not accept the contention of the Spanish Government that it regards the W.F.T.U's complaint as never having been received by it. This was not a complaint addressed directly by the W.F.T.U to the Spanish Government and the question whether that Government might be entitled to return to the sender a communication the terms of which it thought discourteous or improper accordingly does not arise. The communication was one received by the International Labour Organisation in accordance with the procedure established by the Governing Body of the I.L.O for the examination of allegations of infringements of trade union rights, which was communicated to the Government for its observations by the Director-General of the I.L.O, as he was bound to do in accordance with that procedure. The Committee pointed out in paragraph 31 of its First Report that:
    • the purpose of the whole procedure is to promote respect for trade union rights in law and in fact,
    • and expressed its confidence that:
    • if it protects governments against unreasonable accusations, governments on their side will recognise the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward.
    • In replying to a request for observations on a complaint, a government is not acknowledging the propriety, still less the validity, of the complaint, but is simply co-operating with the Committee and the Governing Body in making possible an impartial examination of the matter.
12. 295. While the Committee, which can assume no responsibility for the terms in which complaints are presented to it, considers that respect for itself and the judicial nature of the task entrusted to it calls for the observance of the normal proprieties of judicial examination by both complainants and governments and that the use of language calculated to embitter rather than to elucidate controversy should be avoided, it cannot regard itself as being precluded from examining the substance of an alleged grievance because a government takes exception to the manner in which the grievance has been expressed.
13. 296. These various circumstances do not, therefore, preclude the Committee from examining the present complaint on its merits. As was indicated in paragraph 25 of the Committee's First Report, the Governing Body, when defining the mandate of the Committee, specified, inter alia, that:
    • The Committee (after preliminary examination, including the consideration of any observations made by the Governments concerned, if received within a reasonable period of time) would be expected to report to the next session of the Governing Body...
    • on the cases which might come before it. As it must be assumed from the Government's attitude in the matter not merely that its observations will not be received within a reasonable time but that they will not be received at all, the Committee considers it necessary to proceed forthwith to examine the complaint of the W.F.T.U on its merits.
14. 297. In doing so the Committee observes that the complaint of the W.F.T.U, in addition to raising a number of political issues on which the Committee is not called upon to pronounce, contains certain allegations with respect to the manner in which the W.F.T.U anticipates that the Spanish Workers' delegate and advisers to the 47th Session of the International Labour Conference (June 1963) will be appointed. As the Committee has previously pointed out, it is not competent to examine matters relating to the credentials of delegates and advisers to the International Labour Conference. Nor is it competent to consider allegations that a government has not treated an occupational organisation in accordance with the Constitution of the I.L.O when designating delegates to the Conference. These are questions which fall solely within the competence of the Credentials Committee of the Conference.
15. 298. The complaint also contains a reference to a public manifestation which the complainants propose to organise in support of their views. The Committee, which is called upon to examine judicially the merits of the issues submitted for its consideration, cannot be influenced in any way by any such manifestation.
16. 299. The Committee therefore proposes to limit its further consideration of the W.F.T.U's complaint to the specific allegations contained therein relating to matters still pending before it, in particular the allegations relating to the arrests and deportations arising out of the strikes of 1962. In respect of these allegations the Committee has had the benefit of the observations made by the Spanish Government in respect of similar allegations by the I.C.F.T.U and the I.F.C.T.U.

A. A. The complainants' allegations

• Allegations relating to Arrests and Deportations Arising out of the Strikes of 1962
  300. 300 The I.C.F.T.U and the I.F.C.T.U stated in their joint complaint that the Government had arrested and deported to other parts of the country about 1,000 workers and imposed fines on the strikers as well as taking other threatening and violent measures. The Government denied that fines had been imposed or individuals arrested solely on the ground of participation in the strikes, and added that, in the case of those arrests in which no evidence of an offence was found, the individuals concerned were immediately released, and that the 94 persons committed for trial and the six who were subject to compulsory residence orders were punished because of their activities on behalf of the Communist Party or the People's Liberation Front.
  301. 301 At its 32nd Session (October 1962) the Committee stated that, in the past, where allegations that trade union leaders or workers had been arrested or detained for trade union activities, or that their arrest or detention had restricted the exercise of trade union rights, had been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, it had followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests or detentions and that if, in certain cases, the Committee had concluded that allegations relating to the arrests or detentions of trade union militants did not call for further examination, this had been after it had received information from the governments showing sufficiently precisely and with sufficient detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere, which were either prejudicial to public order or of a political nature a
  302. 302 The Committee observed at its meeting in October 1962 that in the present case the Government confined itself to stating that the reason why the individuals concerned had been arrested or subjected to compulsory residence was that they had been guilty of political subversion on account of their Communist or pro-Communist activities.
  303. 303 The Committee considered at its meeting in October 1962 that if it were to have a full picture of the case and decide whether the allegations were justified or not, it would need more precise information from the Government about the grounds for the arrest of 94 persons and the deportation of six more to other parts of the country, especially as regards the specific actions or exact activities for which they were alleged to be responsible. It accordingly recommended the Governing Body to ask the Government for this information and in the meantime decided to postpone its examination of this aspect of the case.
  304. 304 In its communication dated 14 January 1963 the Government stated that, as its earlier communication dated 23 May 1962 had been sent before the end of the labour disputes in question, the figure of 94 persons arrested and six deported to other parts of the country should be amended, since the total number of arrests now amounted to 119. The Government added that of these 119 persons, 72 had been released, a further 47 were awaiting trial and the six persons sentenced to be deported to other parts of the country had also been set free. The Government stated that of the 119 persons arrested, 68 were in Asturias, 15 in Vizcaya, 15 in Guipúzcoa and 21 in Barcelona. The Government repeated in its latest communication that no one had been arrested simply for reasons of an industrial character and it added that the grounds for the arrests had nothing whatever to do with the industrial disputes, which extremist agitators tried to exploit for the purpose of undermining law and order and solely as a means of attacking the Government politically. The Government added that members of these groups engaging in subversive agitation were arrested and committed on concrete charges, the offences being specified and punishable in accordance with Spanish law, and that all concerned were brought before the appropriate judicial authority within the periods prescribed by law. To prove that the authorities had no intention of taking reprisals, the Government stated that three of those committed in Asturias Province, viz. Bernardo Arranz Ramos and Ernesto Losa Fernández from Cuenca de Mieres, and Florentino Lafuente Cuesta from Gijón, applied for and obtained passports to go abroad; the first two went to France and the third to Belgium. The Government added that the 47 who bad been committed for trial would be dealt with in accordance with the normal procedure under the relevant Spanish legislation and would have all the safeguards and facilities for defence which the law allows.
  305. 305 At its meeting in February 1963 the Committee recalled that in the past it had followed the practice of not proceeding to examine matters which were the subject of pending national judicial proceedings, where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.,
  306. 306 Following these precedents, the Committee at its session in February 1963 recommended the Governing Body to ask the Government to be good enough to notify it of the results of the proceedings in the Spanish courts against the 47 persons who were still in custody and to supply it with the full texts of the verdicts, together with the grounds for them, and, pending this, to postpone examination of this aspect of the case.
  307. 307 In its communication of 3 May 1963 the Government states that the principle that every citizen accused of an offence shall enjoy prompt and fair trial by an independent and impartial judiciary in all cases is traditional in Spanish legislation, which continues to maintain it in full force; that accordingly trade unionists, like any other Spanish citizens, all of whom are equal before the law, are judged by the competent judicial authorities in independent courts of law when charged with offences for which provision is made by current legislation; and that a rapid procedure is applied. The Government adds that it has recently submitted to Parliament a Bill which, first of all, makes an exception to certain penal provisions, and secondly transfers to the ordinary courts of law competence in respect of certain offences for which a special judicial authority has hitherto been competent.
  308. 308 The Government also states in its communication of 3 May 1963 that as it has already explained in previous informatory statements, no charge of any kind has been brought nor any proceedings instituted against trade unionists as such for their participation in labour disputes and the only action taken was against persons who committed acts defined as subversive under the legislation in force and punishable thereunder. The Government concludes by stating that in these circumstances and having regard to the fact that none of the judgments in these cases affected trade unionists " there is no reason to forward the texts of the judgments in question because these texts do not affect and have no connection whatever with trade unionists or workers as such and by reason of their participation in labour disputes, which is the only presumption that could give relevance to the request of the Committee on Freedom of Association for such information ".
  309. 309 The Committee has noted the statement of the Government of Spain to the effect that there has recently been submitted to Parliament a Bill which, first of all, makes an exception to certain penal provisions, and secondly transfers to the ordinary courts of law competence in respect of certain offences for which a special judicial authority has hitherto been competent.
  310. 310 In a series of earlier cases the Committee has pointed out that even if the object of such measures is not to restrict trade union rights as such, the application of certain measures of a political character may involve a limitation of the exercise of those rights. In addition, as the Committee has pointed out on other occasions, the question whether the reasons for taking such measures are based on activities unconnected with the exercise of trade union rights is an issue which cannot be decided unilaterally by the government concerned.
  311. 311 For the reasons given in the previous paragraph the Committee requested the Spanish Government, in its 68th Report, to forward the decisions handed down by the national courts in proceedings instituted against the 47 persons stated by the Government in its communication of 14 January 1963 to be still detained. The Committee cannot accept the Government's contention that there is no reason to forward the texts of the judgments in question because, in the Government's view, they do not affect and have no connection with trade unionists or workers as such or by reason of their participation in labour disputes. It is fundamental to the work of the Committee, as to all proceedings which are judicial in nature, that no one can be judge in his own cause and the Committee cannot therefore advise the Governing Body that a conviction is not connected with trade union activities, on the basis of a statement to this effect by the Government concerned, unless it first has the opportunity to examine the text of the judgment and satisfy itself, from the judgment, that there is no such connection.
  312. 312 In these circumstances the Committee has decided to postpone until its next session further consideration of the contention of the Spanish Government that the decisions taken, which appear to relate to persons who are alleged by it to have committed criminal acts on the occasion of a labour dispute, were not in fact based on their participation in that dispute, in order to give the Spanish Government a further opportunity of furnishing the judgments of the judicial authority concerned, which would be necessary to establish this contention, stating clearly whether the judicial authority which rendered those judgments was the special judicial authority from whom the Spanish Government has now announced its intention of withdrawing jurisdiction in respect of certain offences and, if so, indicating what arrangements are now envisaged to permit of the revision of sentences imposed by the special judicial authority from whom jurisdiction is to be withdrawn or the release of the persons concerned.
  313. 313 The Committee therefore recommends the Governing Body to reaffirm the importance, in cases in which the crux of the matter is whether or not the offences alleged to have been committed were related to the exercise of freedom of association, of this question being determined by an independent and impartial judicial authority affording all the normal guarantees of due process and fair trial; to note the statement of the Spanish Government that there has recently been submitted to Parliament a Bill which, firstly, makes an exception to certain penal provisions, and, secondly, transfers to the ordinary courts of law competence in respect of certain offences for which a special judicial authority has hitherto been competent; to note that the Committee has postponed until its next session further consideration of the allegations relating to arrests and deportations arising out of the strikes of 1962, in order to give the Spanish Government an opportunity of furnishing the judgments handed down in the proceedings instituted against the 47 persons referred to in the communication from the Spanish Government dated 14 January 1963, stating clearly whether the judicial authority which rendered those judgments was the special judicial authority from whom the Spanish Government has now announced its intention of withdrawing jurisdiction in respect of certain offences and, if so, indicating what arrangements are now envisaged to permit of the revision of sentences imposed by the special judicial authority from whom jurisdiction is to be withdrawn or the release of the persons concerned; and to request the Spanish Government to furnish further observations on this question as a matter of urgency.
  314. 314 In a joint communication dated 27 February 1963 the I.C.F.T.U and the I.F.C.T.U supplied additional information connected with this allegation.
  315. 315 The I.C.F.T.U and the I.F.C.T.U allege in the communication of 27 February 1963 that of the many workers who were detained or deported to economically less-developed areas of Spain during or after the strikes of April-May 1962 some are still imprisoned or in forced residence while others were able to return home after a certain time had elapsed, and that upon their return a considerable number of workers were informed that they were dismissed from their employment for participation in the strikes or for having made common cause with the strikers. The I.C.F.T.U and the I.F.C.T.U add that other workers were also dismissed for trade union activities though neither imprisoned nor placed in forced residence and that yet others were dismissed because they had protested against certain provisions of the collective agreements that had recently come into force. These complainants add that most of the dismissed workers appealed to the labour courts, which declared in every case, with only one exception, that they were not competent to deal with the matter, which they regarded as constituting an industrial dispute. The only exception was in the case of two workers employed by the firm of Echevarria S.A. in the province of Vizcaya, whose appeal was disallowed by the courts, which supported the management of the undertaking. The I.C.F.T.U and the I.F.C.T.U append to their communication a copy of the decision and a list of the names of 80 workers who were dismissed after internal deportation or imprisonment a list of 35 workers who were not subjected to either internal deportation or imprisonment but were dismissed on account of their trade union activities, and a list of three workers dismissed for having protested against the consequences of the application of collective agreements.
  316. 316 In its communication dated 27 March 1963 the W.F.T.U asks for I.L.O intervention to secure, among other things, the liberation of persons imprisoned in consequence of strikes, the cessation of repression and recourse to military tribunals in respect of offences connected with strikes and the return and reintegration in employment of workers who have been deported.
  317. 317 In its communication of 3 May 1963 the Government states that the joint communication of 27 February 1963 from the I.C.F.T.U and the I.F.C.T.U relates to events which have already been examined on several occasions by the Committee on Freedom of Association and the Governing Body. The Government therefore refers to the information it had previously supplied and states that it would be idle to reproduce it. However, the Government deems it advisable to explain that it must insist on making a clear distinction between labour disputes, which relate exclusively to economic and industrial matters, and certain other disputes which in their origin, development and purpose provide cover for political subversion or violent attacks on public order and institutions, even when those concerned rely on labour legislation. The Government adds that there is a form of legal process under Spanish law for individual or collective labour disputes, and that such disputes are handled and settled by specialised and independent judicial authorities through impartial and rapid proceedings of conciliation, negotiation or arbitration. The Government adds that it has seen fit, at the request of the Trade Union Organisation, to stop the measures taken following the use which certain subversive groups had made of the labour disputes that occurred in Spain in the spring of 1962, and that this decision is now in course of application. The Government also adds that the competent bodies and the Trade Union Organisation have been urging employers to reinstate the persons affected by the measures in question.
  318. 318 In its 66th and 68th Reports the Committee already examined in connection with this case the allegations relating to the imposition of collective agreements and action to repress strikes, and it made recommendations to the Governing Body with regard to the guarantees which the Committee considers that the workers concerned should have. To go into the substance of the allegations concerning the dismissal of workers on the ground that they have taken part in strikes or protested against the consequences of the application of collective agreements would be tantamount to examining once again the question of the imposition of collective agreements and of measures to repress strikes. The Committee therefore considers that the principles brought into question in the present context have already been covered by the recommendations previously made.
• Despatch of a Commission of Inquiry
  319. 319 In their communication of 27 April 1962 the I.C.F.T.U and the I.F.C.T.U urgently requested the despatch of a commission of inquiry to Spain to investigate repressive measures allegedly taken by the Spanish Government during the strike. This request was reiterated in the second communication, dated 23 May 1962, from the I.C.F.T.U and the I.F.C.T.U. In its reply of 31 July 1962 the Government declared that this demand, " made in such categorical and vexatious terms ", was " unacceptable ", and added that reference should be made in this connection to the very different tone of the draft resolution submitted to the last session of the International Labour Conference, in which it was suggested to the Governing Body that it should consider the desirability of amending the existing procedure of the Committee on Freedom of Association and of authorising the Committee, in certain conditions, to " ask the Government concerned to invite representatives of the Committee to make an investigation ". This draft resolution, the Government added, " on which the Conference took no decision, is drawn up in terms which show much more respect for national sovereignty, and makes a significant contrast to the recommendation in the complaint".
  320. 320 At its 32nd Session (October 1962) the Committee deferred examination of the desirability of an inquiry in either form pending receipt of the additional information for which it had recommended the Governing Body to ask the Government.
  321. 321 During the discussion on the 66th Report of the Committee at the 153rd Session of the Governing Body (November 1962), it was suggested on behalf of the Workers' group that, in view of the Spanish Government's statement referred to in paragraph 319 above, it might accept an on-the-spot inquiry, not by a mission representing the Committee on Freedom of Association, but by the Fact-Finding and Conciliation Commission, which would be composed of jurists of unquestionable impartiality.
  322. 322 The Government forwarded certain information in its communication of 14 January 1963.
  323. 323 Having recommended the Governing Body to request the Government to forward other additional information, the Committee at its 33rd Session (February 1963) again deferred examination of this question pending receipt of the said information.
  324. 324 In its communication dated 27 March 1963 the W.F.T.U also requests the I.L.O to set up a commission of inquiry and states that it is ready to participate in it.
  325. 325 Since the Committee has once again recommended the Governing Body to request the Government to forward further additional information, it has once again deferred examination of this question pending receipt of the said information.

The Committee's recommendations

1. 326. As regards the case as a whole the Committee recommends the Governing Body:
   • (a) to reaffirm the importance, in cases in which the crux of the matter is whether or not the offences alleged to have been committed were related to the exercise of freedom of association, of this question being determined by an independent and impartial judicial authority affording all the normal guarantees of due process and fair trial;
   • (b) to note the statement of the Spanish Government that there has recently been submitted to Parliament a Bill which, firstly, makes an exception to certain penal provisions, and, secondly, transfers to the ordinary courts of law competence in respect of certain offences for which a special judicial authority has hitherto been competent;
   • (c) to note that the Committee has postponed until its next session further consideration of the allegations relating to arrests and deportations arising out of the strikes of 1962, in order to give the Spanish Government an opportunity of furnishing the judgments handed down in the proceedings instituted against the 47 persons referred to in the communication from the Spanish Government dated 14 January 1963, stating clearly whether the judicial authority which rendered those judgments was the special judicial authority from whom the Spanish Government has now announced its intention of withdrawing jurisdiction in respect of certain offences and, if so, indicating what arrangements are now envisaged which would permit of the revision of sentences imposed by the special judicial authority or the release of the persons concerned;
   • (d) to request the Spanish Government to furnish further observations on this question as a matter of urgency.