Informe provisional - Informe núm. 95, 1967

1. 303. The complaint is contained in a communication dated 24 August 1966 sent directly to the I.L.O by the International Confederation of Free Trade Unions. It was communicated to the Government, which submitted its observations in a communication dated 30 January 1967 from the Permanent Delegation of Spain to the international organisations in Geneva.
2. 304. 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).

A. A. The complainants' allegations

1. 305. The complainants state that in spite of the recommendations made in the past to the Government by the Governing Body of the I.L.O and the statements of the Government concerning the trend towards liberalism in connection with freedom of association, trade union rights and freedoms are still being violated in Spain and their exercise by the workers makes the latter liable to prosecution and prison sentences pronounced under the current penal laws. Specific reference is made to three trials reported to have been held on 3 and 5 August 1966, before the Court of Public Order of Madrid, involving Spanish trade unionists accused of unlawful association, demonstrating in a disorderly manner, and unlawful propaganda.
2. 306. Mr. Mariano Nuero, Mr. Jesús González Quesada, Mr. Manuel Fernández Montesinos and Mr. Antonio Nogués, members of the Workers' Trade Union Alliance (A.S.O.), are said to have been detained because, according to a statement attributed to the police, " for some time past the activities of a clandestine organisation under the name of A.S.O have been observed; this organisation acts upon the working population of the major cities of Spain, particularly the more industrialised ones and especially Madrid and the surrounding industrial areas... A few days ago a bulletin was being disseminated under the title A.S.O, which reported that an A.S.O delegation had travelled to Amsterdam to contact delegates attending the I.C.F.T.U. Congress in order to communicate to them a list of imprisoned persons, expose the trade union situation [in Spain] and ask the foreign trade unions to help the clandestine organisation they represented. Considering, as is natural, that all this is detrimental to the international prestige of our country, the necessary investigations are being made to identify and detain the persons who attended the Amsterdam Congress and who claimed to represent A.S.O.".
3. 307. Still according to the complainants, the Court of Public Order issued an indictment which called for the trial of the persons concerned on the grounds that they were members of the organisation known as A.S.O whose aim was the establishment of free trade unions alongside the existing organisation or in substitution thereof. The Public Prosecutor also requested that three members of the Co-ordination Committee of A.S.O, having its headquarters at Perpignan (France), be brought to trial on a charge of being leaders of the A.S.O and being in contact with the persons mentioned above. It appears that this accusation against the said persons resident outside the country was later withdrawn, but the court verdict-the text of which is submitted by the complainants-sentenced Messrs. Mariano Nuero Diaz, Jesús González Quesada, Manuel Fernández Montesinos and Antonio Nogués Diaz to four months' imprisonment with accessory penalties of suspension from holding public office, exercising a profession or trade or voting for the whole duration of the sentence, on the grounds that they had committed the offence of unlawful association under sections 173, paragraph 3, and 174, paragraph 1, subparagraph 3, of the Penal Code.
4. 308. Furthermore, on 26 April 1966, Mr. Pablo Crespo Soto, Mr. Luis Arrieta de las Heras and Mr. José González León were arrested in Bilbao on a charge of belonging to an association known as the Euzkadi Trade Union Alliance (A.S.E.) and distributing leaflets inviting workers to demonstrate on 1 May in Bilbao, San Sebastian and other cities. The accused were apparently kept in preventive detention from 26 April to 24 May 1966 and then provisionally released. The complainants add that A.S.E consists of a Basque country organisation, the General Union of Workers (U.G.T.), which is a member of I.C.F.T.U, groups of the National Confederation of Labour (C.N.T.) and the Basque Workers' Solidarity Movement (S.T.V.), which is a member of both I.F.C.T.U and I.C.F.T.U. The Public Prosecutor apparently referred to the acts committed as offences of unlawful association and demonstrating in a disorderly manner, covered respectively by sections 173, 174 (1 and 3) and by sections 166, 167 (2) and 168 of the Penal Code. In the verdict (the text of which is submitted by the complainants) the acts committed are described as an offence of unlawful association and another offence of demonstrating in a disorderly manner covered by various provisions of the Penal Code. A.S.E, being constituted by factions of U.G.T, C.N.T and S.T.V, is described as having similar tendencies to those organisations which were outlawed by the Act of 9 February 1939. A.S.E is also accused of " seeking to destroy the social organisation of the State through the substitution by violence of the present system of trade union organisation by a trade union movement which it calls free ". The accused, Mr. Pablo Crespo Soto and Mr. Luis Arrieta de las Heras, were sentenced to three months' imprisonment (arresto mayor) for unlawful association and three months' imprisonment and a fine of 5,000 pesetas for unlawful demonstration, the same sentence being imposed on José González León for the latter offence.
5. 309. Lastly, the complainants state that on 5 August 1966 the Court of Public Order sentenced Mr. Arcadio González to two years' imprisonment and a fine of 10,000 pesetas for the offence of illegal propaganda which, according to the Public Prosecutor, he committed by distributing propaganda material printed by A.S.O at Ponferrada in April 1966.
6. 310. I.C.F.T.U concludes its complaint by stating that the Act of 9 February 1939 which is still in force, outlawed the trade union organisations U.G.T, C.N.T and S.T.V on the grounds that they were subversive and violent organisations. By extension (according to subsequent rulings handed down by the Supreme Court), these organisations, re-established either in their original form or under new names and a different form, and any new organisations outside the official trade union organisation, are considered as having similar subversive tendencies and their members are arrested, tried and sentenced under the provisions of the Penal Code now in force. Consequently, according to the complainants, any trade union organisation set up by the workers outside the authorised trade union organisation is condemned to clandestine operation because the law expressly prohibits its legal existence. The legislation now in force in Spain, according to the complainants, views as offences free association as a means of improving working conditions, the right of workers to form organisations of their own choosing, to formulate their programmes, etc.; likewise, it is an offence for such organisations and their members to exercise their right of maintaining contacts or relations with international organisations or to issue propaganda in favour of free trade unionism or support workers' claims. The complainants state that all this antitrade union legislation is applied regularly and effectively, as shown by the numerous trials held by the Court of Public Order, including the three mentioned in the complaint. In the complainants' view the legislation in force in Spain is basically in contradiction with International Labour Conventions Nos. 87 and 98.
7. 311. I.C.F.T.U asks the Governing Body to make representations to the Spanish Government, exhorting it to amend, as a matter of urgency, the existing legislation and enact laws that will fully guarantee freedom of association, and to release immediately the workers sentenced for having exercised their trade union rights and immediately suspend all measures of persecution against the members of the trade union organisations which the legislation in force renders illegal.
8. 312. In its reply, the Government states that the members of A.S.O were tried on grounds of belonging to an unlawful clandestine organisation with subversive political aims. The Government stresses the fact that the communication from I.C.F.T.U fails to quote all the grounds adduced for the judgment, since the verdict states that the organisation " is now operating clandestinely on Spanish territory " and aims at " undermining the régime in force in the country, campaigning for the revolutionary orientation of class struggle and the establishment of free trade unions ". In the Government's view it is clear that in any country where there is a lawfully established régime which seeks to maintain public order provision must be made for punishing such activities as those mentioned above. Hence there is nothing abnormal in the fact that persons who are members of organisations operating outside the law respecting the right to organise, and whose aims are clearly revolutionary and totally unconnected with freedom of association, should be punished for such offences.
9. 313. Such are the grounds on which the competent courts handed down their verdict of 5 August 1966, sentencing the persons brought to trial for the offence of unlawful association, with the aggravating circumstance of repetition of the offence in the case of Mr. Fernández Montesinos. The sentence pronounced was six months in this last case and four months for Mr. Nuero, Mr. Nogués and Mr. González Quesada. Mr. González Quesada and Mr. Nuero, however, were held in preventive detention only from 10 to 15 September 1965, while Mr. Nogués and Mr. Fernández Montesinos were held from 11 to 15 September. On that date they were provisionally released, as an appeal has been entered and the sentence cannot be applied pending consideration of the appeal.
10. 314. As regards the trial of the three members of A.S.E the Government emphasises that the verdicts of the courts, whose independence is above question, establish that the persons brought to trial were accused, not of exercising trade union rights, but of the offences of unlawful association, demonstrating in a disorderly manner and unlawful propaganda, which are penal offences under every code in the world. In fact, José González León was detained for having incited the working population of San Salvador del Valle to demonstrate. Together with the other two accused, he distributed leaflets inviting working men and women to manifest " against the despotic and tyrannical State whose overthrow cannot be delayed ". In the Government's opinion, the subversive nature of this action is clear. The accused were sentenced, by verdict of 6 August 1966, to the following penalties: three months' imprisonment in the case of Mr. Arrieta de las Heras and Mr. Crespo Soto, guilty of the offence of unlawful association; and three months' imprisonment and a 5,000-peseta fine for all three (or replacement of the fine by one month's detention). All three were released on bail on 24 May 1966, and on 11 November 1966 all the benefits of conditional remission were conferred on them.
11. 315. With regard to Mr. Arcadio González Alonso the Government states that he was surprised in flagrante delicto while pasting up a propaganda poster of the illicit organisation known as the Workers' Trade Union Alliance. He was arraigned before the judicial authority within the statutory time limit, tried, and sentenced on 6 August 1966 to two years' imprisonment and a 10,000-peseta fine for the offence of unlawful propaganda. The accused appealed to the Supreme Court, which quashed the verdict in January 1967. Mr. González Alonso is now free. As proof of the normalcy of the proceedings, the Government points out that Mr. González Alonso was defended by Mr. Fernández Montesinos, to whom reference is made elsewhere in the complaint.
12. 316. In connection with the trial of Mr. Fernández Montesinos, Mr. Nogués, Mr. Nuero and Mr. González Quesada, the Committee points out that, according to the complainants, the acts for which these persons were sentenced were activities of a trade union nature, while the Government, in quoting the grounds for the verdict, stresses the fact that the organisation known as the Workers' Trade Union Alliance, to which the accused belong, is a clandestine organisation which seeks " to undermine the régime in force in the country, campaigning for the revolutionary orientation of class struggle and the establishment of free trade unions ". The Committee also notes from the text of the verdict, which was supplied by the complainants, that the Court seems to have considered it one of the grounds for the accusation that the accused travelled to Amsterdam in July 1965 to attend a Congress of the International Confederation of Free Trade Unions, the expenses of the trip being paid out of the funds of A.S.O.
13. 317. Consequently, as it appears from the verdict that one of the aims of A.S.O is " the establishment of free trade unions " and that the purpose of the trip made by the trade unionists in question was to attend an international trade union congress, the Committee feels compelled to point out, on the one hand, as it has already done in a previous case concerning Spain, that in its opinion any measures taken against workers on grounds of their having attempted to constitute or reconstitute workers' organisations are incompatible with the almost universally recognised principle that workers are entitled to establish and join organisations of their own choosing without previous authorisation and, on the other hand, that in various previous cases the Committee and subsequently the Governing Body stressed the right of national trade unions to send representatives to international trade union congresses as a normal corollary of the right of those national organisations to join international workers' organisations.
14. 318. However, it appears from the information supplied by the Government that the four accused persons were merely held in preventive detention for a few days and then released, and that they are at present at liberty until such time as a ruling shall have been given on the appeal made against the verdict of the Court of Public Order. For this reason, before continuing its consideration of this aspect of the case, the Committee recommends the Governing Body to decide to request the Government to keep it informed of the result of that appeal and to be so good as to send, in due course, the text of the final verdict with the grounds adduced for it.
15. 319. According to the complainants, Mr. González León, Mr. Crespo Soto and Mr. Arrieta de las Heras, members of a trade union organisation formed by groups that are members of international trade union organisations, were brought to trial for their membership in that organisation and more specifically for having called a demonstration meeting which was to have been held on 1 May. The Government, however, stresses the unlawful nature of the Euzkadi Trade Union Alliance and the fact that the leaflets convening the meeting contained expressions of a political and subversive nature, since they referred to the overthrow of the Government.
16. 320. The Committee has considered on several occasions that the right to organise public meetings, particularly on 1 May, is an important aspect of trade union rights.
17. 321. In the present case the Committee points out that the propaganda distributed to the workers to invite them to demonstrate contained, at least in part, sentences indicating aims that were not purely of a trade union nature.
18. 322. In these circumstances the Committee recommends the Governing Body to take note of the fact that Mr. González León, Mr. Crespo Soto and Mr. Arrieta de las Heras are now free and that their sentences have been suspended.
19. 323. From the information supplied by the complainants and the Government it appears that Mr. González Alonso was sentenced to two years' imprisonment and a 10,000-peseta fine for the offence of unlawful propaganda. However, the Government states that the accused appealed against the sentence, the Supreme Court quashed it and Mr. González Alonso is now free.
20. 324. In these circumstances the Committee recommends the Governing Body to take note of the information supplied by the Government contained in paragraph 323 above.
21. 325. Finally, the Committee observes that, in their general allegations concerning the exercise of the right to organise in Spain, the complainants contend that any trade union organisation formed by workers outside the existing trade union organisation must, of necessity, operate clandestinely since the legislation expressly prohibits its legal existence. They refer in this respect to the position of the General Union of Workers, the National Confederation of Labour and the Basque Workers' Solidarity Movement which, they state, continue to be considered as unlawful organisations under the Act of 9 February 1939.
22. 326. The Government does not refer to these allegations in its reply. The Committee recalls, however, that on an earlier occasion, when it examined Case No. 143 relating to Spain and, in particular, certain allegations concerning the imposition of penal sanctions in respect of attempts to organise trade union associations outside the official organisation, it took note of information furnished by the Government from which it appeared that the Constitution of organisations outside the official organisation was unlawful and, therefore, subject to penal sanctions. On that occasion the Committee considered that such a situation was not compatible with the generally accepted principle that workers and employers should have the right to establish organisations of their own choosing without previous authorisation.

B. B. The Committee's conclusions

1. 327. Consequently, having already submitted conclusions to the Governing Body on the essential issues raised in allegations relating to the same facts as are now cited by the complaining organisation in this part of its present complaint, the Committee, while recommending the Governing Body to draw the attention of the Government once again to the importance it attaches to the principle referred to in paragraph 326 above, considers that it would be purposeless to pursue further the examination of these allegations in the context of the present case.