Effect given to the recommendations of the committee and the Governing Body - Report No 400, October 2022

Effect given to the recommendations of the committee and the Governing Body

1. 28. The Committee examined this case, concerning allegations of suppression of the right to strike through the application of article 315.3 of the Criminal Code (CC), at its meeting in June 2016 [see 380th Report, October 2016, paras 445–511]. On that occasion, the Committee made 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.
2. 29. The complainant organizations provided additional information by communications dated 11 April and 23 May 2022. The Government, for its part, submitted further observations in communications dated 10 May and 26 July 2021.
3. 30. The Committee notes that, by communications sent on 11 April and 23 May 2022, the complainant organizations report on the adoption of Organic Law 5/2021 of 22 April 2021, which repeals article 315.3 of the CC and whose sole transitory provision provides that “judges and courts shall proceed to review final judgments handed down in accordance with the repealed legislation”.
4. 31. In its communication of 11 April 2022, the Trade Union Confederation of Workers’ Commissions (CC.OO.) additionally refers to the situation of several persons mentioned in the conclusions and recommendations issued by the Committee in the framework of the present case. The complainant organization indicates that, by means of decisions adopted by the Council of Ministers (Royal Decrees 55/2019 and 56/2019 of 8 February 2019 and Royal Decrees 137/2019 and 138/2019 of 8 March 2019), a pardon was granted to Mr and Mrs Carlos Rivas Martínez, Serafín Rodríguez, Carmen Bajo and Carlos Cano. The trade union confederation further states that, by virtue of the single transitory provision of the aforementioned Organic Law 5/2021, the judicial review of the above cases is appropriate, given that the conducts for which the convictions of the persons subsequently pardoned were issued were decriminalized.
5. 32. In its communication of 23 May 2022, the General Union of Workers (UGT) further states that its work has been aimed not only at the repeal of article 315.3 of the CC but also at the exoneration of the offences and proceedings that all workers prosecuted and convicted for participating in a strike have seen initiated and that the trade union centre has taken the necessary legal measures, including pardons, to close such proceedings. The complainant organization then refers to particular cases, indicating specifically that: (i) the offence for which Ms María Jesús Cedrún, a worker and trade union leader, was convicted under article 315.3 of the CC, was reduced to a misdemeanour of coercion, which was time-barred; (ii) the sentence imposed on Mr Ruben Ranz Martín under article 315.3 of the CC was reduced from an offence to a misdemeanour of injury; (iii) the sentence imposed on Mr Ruben Ranz Martín under article 315.3 of the CC; the worker finally had to pay a fine of €1,200 for damages to a policeman and a waiter; and (iv) the sentence imposed on Mr José Manuel Nogales Barroso on the basis of article 315.3 of the CC was reduced from a crime to a misdemeanour of injury; the worker finally had to pay a fine of approximately €500 for damages to a policeman and a waiter. After stating that it considered that the fine imposed on Mr Ranz Martín was still excessive in the light of the facts (having hit a riot policeman with a small plastic flag), the complainant organization states that all the cases are closed.
6. 33. The Committee also takes note of the communications from the Government dated 10 May and 26 July 2021 by means of which it: (i) reports on the repeal of article 315.3 of the CC following the adoption of Organic Law 5/2021; (ii) stresses the importance of the single transitory provision of the aforementioned law, which provides that judges and courts will proceed to review final judgments handed down in accordance with the repealed legislation, a review which will be carried out by the Criminal Chamber of the Supreme Court; and (iii) states that the Ministry of Justice does not have information on specific judicial proceedings that could be provided in this regard.
7. 34. The Committee takes note of the various elements provided by the complainant organizations and by the Government. The Committee takes particular note of the repeal of article 315.3 of the CC concerning the offence of coercion to initiate or continue a strike, which provided that “those who, acting as a group or individually, but in agreement with others, coerce other persons to initiate or continue a strike, shall be punished by imprisonment for a term of one year and nine months to three years or by a fine of eighteen months to twenty-four months”. In the light of its findings and recommendation (a) in the present case and recalling that it has considered 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 and that 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 Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 966], the Committee notes with satisfaction the repeal of article 315.3 of the CC.
8. 35. With regard to recommendations (b), (c) and (d) of the present case, the Committee takes due note of the information provided by the complainant organizations concerning the specific situation of seven persons who had been convicted on the basis of article 315.3 of the CC. The Committee notes that, according to this information: (i) four of these persons, in particular Ms Bajo and Mr Cano, who had received sentences of three years and one day in prison, were pardoned by the Executive; (ii) on the basis of the repeal of article 315.3 of the CC, the courts redefined the criminal offences on the basis of which three other persons had been convicted, the conducts which were the subject of the criminal proceedings being finally qualified as misdemeanours (less serious criminal offences) instead of crimes; (iii) as a result of the foregoing, the sentence applicable to one person was time-barred, while in the other two cases, the sentences were reduced to fines of €500 and €1,200 respectively; and (iv) on the basis of the single transitional provision of the above-mentioned Organic Law, the sentences of the four persons subsequently pardoned could be subject to review by the competent courts. Finally, the Committee notes that the two individual cases about which it has not received specific information (Juan Carlos Martínez Barros and Rosario María Alonso Rodríguez) had resulted in the imposition of a fine for the commission of a misdemeanour.