Rapport définitif - Rapport No. 197, Novembre 1979

1. 49. Complaints of violation of freedom of association and additional information have been presented by the following organisations: Bank and Savings Federation of the Workers' Commissions (FEBA, communication of 12 February 1979); International Federation of Commercial, Clerical and Technical Employees (FIET, communications of 12 February and 21 March 1979); international Confederation of Free Trade Unions (ICFTU, communications of 13 and 21 February 1979). The Government sent its observations in a letter of 27 September 1979.
2. 50. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 51. In its communication of 12 February 1979 FEBA demands that trade unions should enjoy entire freedom of action and that private bank workers who have gone on strike should no longer be punished by sanctions and arrested. ICFTU and FIET protest in their respective communications against the anti-trade union measures said to have been taken by the Spanish Government against workers who have gone on strike in defence of their economic interests; the authorities are said to have used the recently adopted antiterrorist legislation against the striking bank workers and their trade unions, who were acting lawfully.
2. 52. In a subsequent communication the ICFTU sends a copy of the Legislative Decree on "the safety of citizens", in pursuance of which the authorities are alleged to have arrested the strikers. Since the adoption of this Decree, continues the complainant, there has been a wave of arrests throughout the territory of Spain, in particular in Madrid; the arrested trade unionists and workers are usually held for one day and then released upon payment of a fine of about 25,000 pesetas. Thus, continues the complainant, on 13 February 1979, 14 bank workers were arrested before 9 o'clock in the morning and detained until the evening. Over 200 metalworkers, about 100 bank workers, about 100 insurance workers and about 20 teachers are said to have been arrested; 40 per cent of them are members of the General Union of Workers (UGT). The complainants also communicate a series of documents in support of their allegation. FIET mentions the names of a number of workers said to have been punished by sanctions for having taken part in a strike (during the negotiation of a collective agreement) in the banking sector they are said to have been arrested at the doors of their respective workplaces on 8 and 14 February 1979 and subsequently released on bail (25,000 to 35,000 pesetas); other workers are said to have been arrested on 15 February and released on bail of 35,000 pesetas in addition, two UGT militants, members of the Simeón Bank strike Committee, were laid off by the management for 15 days as a result of the strikes.
3. 53. In its reply the Government first points out that the number of persons arrested - because of the behaviour of the strike pickets in the disputes in the metal industry, insurance and teaching sectors in February 1979 - was 118 for the whole of the territory of Spain, a figure considerably less than those alleged. Forty-six of these persons were arrested for flagrant acts of coercion, such as brandishing insulting slogans, uttering threats, throwing stones, displaying dangerous objects and using other forms of physical and moral violence against those who remained at their posts; there was a presumption that these facts constituted the offence of threats and coercion as defined by section 496 of the Penal Code. The persons concerned were arrested, according to the Government, by officers of the judicial police in pursuance of section 492 of the Act respecting criminal procedure, and were brought before the competent examining magistrate for the purpose of determining their criminal liability.
4. 54. The arrests made in 71 other cases, continues the Government, were also made in virtue of section 496 of the Penal Code. According to subsection 2 of this section anyone using violence or means of intimidation, whether collectively or as an individual but in concert with others, to oblige a third party to begin or continue a strike, work stoppage or lockout, is guilty of the offence of coercion and liable to a prison sentence and a fine of between 20,000 and 200,000 pesetas. The police officers considered that the behaviour of these persons constituted intimidation: many groups of them exerted pressure on the workers to abandon their posts; moreover, there were a series of objective circumstances which could not but influence those who refused to support the strike, such as earlier reprisals against workers who had refused to obey strike orders and similar exhortations on other occasions, or the terrorist activities which had shortly beforehand caused panic among the workers at the centres where the strikes took place (5 bomb explosions in January 1979 and over 40 threats of bombing in various centres where strikes were already in preparation).
5. 55. Thus, concludes the Government, the arrests were made on the basis of the penal and procedural regulations in force, and the Royal Legislative Decree of 26 January 1979 affecting the safety of citizens was not applied: the latter provides for no police measures against strike pickets or groups of strikers.

B. B. The Committee's conclusions

1. 56. As the Committee has already pointed out in another case relating to Spain, the arrest of a large number of trade union leaders and active unionists creates a grave risk of abuse and is a danger to freedom of association.
2. 57. In the present case, however, a number of the trade unionists who were arrested were released shortly after, and it appeared from the information communicated by the complainants and by the Government that the other persons arrested were also released after a judicial investigation which had been made because they were suspected of having committed acts of violence or intimidation on the occasion of strikes, particularly during picketing.
3. 58. In the latter connection the Committee considers that the mere fact of picketing and firmly but peaceably inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries. The Committee considers that prosecution in these circumstances does not constitute violation of freedom of association, particularly as the accused were brought before the competent judicial authority in conformity with the rules of ordinary penal procedure.