Informe provisional - Informe núm. 151, Noviembre 1975

Caso núm. 704 (España) - Fecha de presentación de la queja:: 27-JUN-72 - Cerrado

1. 108. The Committee examined this case in May 1973 and in November 1973 and submitted, at both of these sessions, an interim report to the Governing Body. These reports appear in paragraphs 97-101 and 117-121 of its 137th Report and in paragraphs 375-384 of its 139th Report.
2. 109. Spain has not ratified either 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).

A. A. The complainants' allegations

1. 110. The World Federation of Trade Unions and the Trade Unions International of Workers in the Metal Industry alleged that Marcelino Camacho and nine of his companions had been arrested. The Trade Unions International of Workers in the Metal Industry added that the charges brought against these persons were characteristic of the way in which trade union rights are being infringed in Spain.
2. 111. The Government had stated that these persons had been arrested on account of their repeated subversive activities and had been placed at the disposal of the competent judicial authority. According to the Government, one of the accused had, in addition, been charged with the offence of forging an official document, having been found in possession of a forged national identity document bearing his photograph.
3. 112. In its 137th Report, the Committee had recommended the Governing Body to request the Government to supply information as to the exact grounds for the arrest of the persons referred to in the complaint and, in particular, as to the acts which were deemed to have justified the taking of such action, as well as the text of the judgment in the case, as soon as it was pronounced, together with the grounds adduced therefor.
4. 113. In a later communication the Government stated that the reason for the arrest of these persons was that the police knew of the holding of a secret meeting by a group calling themselves the "National Co-ordinating Committee", whose aims were subversive; this group, which was Communist-led, claimed to be the head of a subversive organisation that had been declared illegal by the Supreme Court. Knowing the purpose of the meeting, the police had requested and obtained the necessary warrant to enter the premises in which the meeting was being held and in which they found 10 persons, some trying to escape and others trying to hide in various parts of the building. All were immediately placed at the disposal of the judicial authorities, as were the material evidence found during the search and the dossier on the case, from which it transpired that all had police records, that some were recidivists, that one had false papers and, altogether, that they were the leaders of a clandestine organisation of a subversive character. The Government stated that these acts - with the exception of what is contained in the record of the preliminary investigations (which is secret) - constituted the grounds for the indictment and detention ordered by the judge. Finally, the Government referred to certain matters which had caused a delay in the trial.
5. 114. In its 139th Report the Committee had taken note of this information and, in particular, had recalled the importance it 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. The Committee had recommended the Governing Body to request the Government to supply the text of the judgment delivered together with the grounds adduced therefor.
6. 115. In a letter dated 6 February 1974 the Government stated that the judgment was handed down by the appropriate court on 29 December 1973 but that counsel for the accused had entered a notice of appeal to the Supreme Court on the grounds of alleged errors in procedure and breaches of the law. The Government added that the question remained therefore sub judice since no final decision had been rendered. In paragraph 8 of its 142nd Report, the Committee had requested the Government to be good enough to forward to it the text of the judgment of 29 December 1973, together with the grounds adduced therefor, as well as the decision in the appeal to the Supreme Court when these became available.
7. 116. In a communication dated 24 February 1975, the Government states that the Supreme Court heard the appeal in public session on 15 February 1975, the accused being represented by the same counsel they had had throughout the proceedings. The Supreme Court admitted in part the appeal lodged on the grounds of a breach of the law against the judgment rendered by the Tribunal of Public Order for offences of illicit association, the public use of a false name and the use of false identity documents. The Supreme Court's verdict, the Government adds, will appear in the Colección legislativa.
8. 117. The Government adds that the Supreme Court considered that:
   • - associations set up without meeting the conditions set forth by law (section 172(4), Criminal Code) are illicit;
   • - under the Code, it is an aggravating factor to have been a member of associations pursuing the violent subversion or the destruction of the political, social, economic or legal institutions of the State (section 174(1)(3)), there being a difference between the penalties applied to the founders, organisers and directors of such associations and those applied to mere members;
   • - the Communist Party has been declared illegal by law; thus any organisation or group dependant on the party, no matter under what name it may act, is also illegal, and it is illegal to re-establish a communist organisation in any form or under any name, as has been repeatedly pointed out in the case-law established by the Supreme Court itself;
   • - the so-called "Workers' Committees" exist and act under the auspices of the "Spanish Communist Party" which is formally and expressly banned by law. This was established once again in the hearing before the lower court. Similarly, it was proved - and the documents to have been considered by the accused at their meeting bear this out - that these "Committees" are subversive in character;
   • - this evidence leads to the conclusion that the "workers' Committees" are merely a cover for the Communist Party in its attempts to promote political subversion on the basis and under the guise of working-class claims. If these bodies limited themselves to labour matters, even though their methods of action were irregular, they would not be liable to the penalties prescribed by criminal law. Nevertheless, it is clear from the evidence that they are no more than instruments of subversion in the hands of the Communist Party, as is borne out by the case-law of the Supreme Court;
   • - the so-called "workers' Committees" hypocritically claiming to serve the cause of democracy, the free settlement of labour disputes and even trade union or political pluralism, are seeking to bring about, by violence, the destruction of the Constitutional institutions of the State (considerations qualified as exceedingly grave in paragraph 3 of the Criminal Code section 174), and urging agitation among the masses, not as a means of promoting the aspirations of the masses but as a political weapon to be used to overthrow the State;
   • - the Court which first tried the case had ruled that the accused were ringleaders and hence liable to the appropriate penalties. This point was reconsidered by the Court of Cassation which came to the conclusion that the accused were indeed parties to the association as active members, but could not conclude beyond reasonable doubt that the meeting they had attended was a meeting of top leaders or a meeting of the supreme executive organ of the association or that each and every one of the accused exercised executive authority, individually or collectively. Being thus in doubt, the Court decided to annul the relevant part of the sentence passed and to punish the accused as mere participants (although responsible ones) in the subversive organisation known as "workers' Committees".
9. 118. The Government adds that the Supreme Court considered that proof had been adduced that all the accused had been guilty of illicit association, as punishable under sections 172(3), 173(3), and 174(1)(3), their participation having been direct and deliberate, and that the guilt of six of them was aggravated by the fact that they had previously committed the same offence. The Government states that the Court pronounced the following sentences:
   • Marcelino Camacho, six years' ordinary imprisonment (prisión menor);
   • Nicholás Sartorius, Eduardo Saborido and Francisco Garcia Salve, five years' ordinary imprisonment (prisión menor);
   • Fernando Soto Martin and Juan Muñiz Zapico, four years, two months and one day of the same penalty (prisión menor);
   • Luis Fernández Costilla, Francisco Acosta Orge, Miguel Angel Zamora and Pedro Santiesteban, two years, four months and one day of the same penalty (prisión menor);
   • (Those sentenced to more than two years' imprisonment were recidivists.)
10. 119. The Government states finally that for all the accused, the time spent in preventive custody was deducted from their sentences. This being the case, Fernando Acosta, Luis Fernández Costilla, Pedro Santiesteban and Miguel Angel Zamora were released at once.

B. B. The Committee's conclusions

1. 120. The Committee notes that the Government has communicated some details of the Supreme Court's decision but regrets that it has not complied with the request of the Governing Body that it supply the text itself of the judgment rendered on these persons, which is, moreover, to be published in an official collection. Except for the above details the Government has not submitted any other evidence that these Committees were attempting to promote political subversion under the guise of working-class claims. The Committee expresses its concern regarding the absence of sufficient information and the severity of the sentences passed.

The Committee's recommendations

1. 121. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note that the Government has communicated certain details on the decision of the Supreme Court but that it has not supplied the text itself of the judgment rendered in respect of the persons referred to in paragraph 120 above or other evidence to show that these Committees were attempting to promote subversion under the guise of working-class claims, thus preventing the Committee from reaching conclusions in full knowledge of the facts;
   • (b) to request the Government once again to communicate the text of the judgment of the Supreme Court and the grounds adduced therefor; and
   • (c) to request the Government to keep it informed of any further developments affecting the persons still in prison and, in particular, of any measures of clemency which might be taken as regards these persons.