Rapport définitif - Rapport No. 214, Mars 1982

1. 70. The Police Officers' Trade Union (USP) presented its complaint in a communication dated 17 September 1981. It sent supplementary information in a communication dated 23 October 1981. The Government replied by a communication dated 5 January 1982.
2. 71. Spain has ratified both 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. The complainant's allegations

1. 72. The USP claims that, on 14 September 1981, the Ministry of the Interior decided to institute administrative proceedings against the organisation's secretary-general, Modesto García Garcia, in connection with statements made during a press conference at which he criticised the utilisation of the police by the public authorities for political ends and, specifically, the substance of service orders that were contrary to the fundamental rights and public freedoms enshrined in the Constitution, which required police officers to identify all persons or groups of persons engaged in propaganda activities against the entry of Spain into NATO.
2. 73. The complainant adds that, in taking this action, the Ministry of the Interior is ignoring the fact that the person concerned is a trade unionist and the rights and freedoms inherent in the exercise of trade union activities, particularly as regards freedom of expression.

B. The Government's reply

1. 74. In its communication dated 5 January 1982, the Government states that the allegations are entirely politically motivated, both in their context and in the motivation behind them, and that in any case they relate to matters that are not concerned with the exercise of trade union rights. The Government adds that the purpose of the instructions contained in the internal service order circulated among the state police and security forces, to which the complainant refers, was to collect as much information as necessary to forestall any act that might be in violation of the peaceful exercise of Constitutional rights and freedoms or which might undermine public peace and order, on the occasion of demonstrations in favour of or against Spain's membership of NATO. In so far as such service orders came within the official function of police and security forces of guaranteeing the safety of citizens and defending the legitimate exercise of their rights and freedoms, they could not possibly be described as a means of using the police for political ends.
2. 75. The Government points out that, for the reasons given, the instructions contained in the internal service order concerned were restricted exclusively to members of the police and security forces and were not for disclosure to any outside bodies or social communication media. Consequently, continues the Government, it was only in his capacity as inspector of the Higher Police Force that Modesto Garcia Garcia was aware of the existence and contents of the service order, which he subsequently distorted in his statements to the media.
3. 76. The Government also states that it was decided to initiate disciplinary administrative proceedings against Modesto Garcia Garcia to determine the extent of his responsibility in the matter in the light of the Rules and Regulations of the Higher Police Corps, which define "violation of professional secrecy" (section 206) and "failure to maintain proper discretion regarding matters of which an officer can have knowledge only by virtue of his position" (section 207) as a very serious fault and serious fault, respectively. The Government goes on to say that the matter has been placed before the competent authority to determine whether the facts of the case constitute a criminal offence and, in that event, to take appropriate judicial action.

C. The Committee's conclusions

1. 77. The Committee notes the allegations of the complainant and the Government's reply. It observes that the complaint has been presented by the Police Officers' Trade Union - whose members, according to its title, are presumably public servants - and that the organisation raises the question of the legitimacy of instituting disciplinary administrative proceedings against Modesto Garcia Garcia, an inspector of the Higher Police Corps, in connection with certain statements which he made as secretary-general of the USP at a press conference where he revealed the contents of an internal service order which, according to the Government, was restricted to the persons to whom it was addressed and was therefore not for disclosure to outside bodies.
2. 78. The Committee draws attention to paragraph 1 of Article 9 of Convention No. 87, which states that "the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations". In this respect, the Committee considers that, in so far as sections 206 and 207 of the Rules and Regulations of the Higher Police Corps define "violation of professional secrecy" and "failure to maintain proper discretion regarding matters of which an officer can have knowledge only by virtue of his position" as a very serious fault and serious fault, respectively, they require a certain code of behaviour by members of the police force, thereby restricting in those areas the scope of the trade union rights and guarantees referred to in paragraph 1 of Article 9 of Convention No. 87. Consequently, the Committee does not exclude the possibility that the statements made by Modesto Garcia Garcia may have constituted a transgression of his authority in the exercise of his trade union activities, thereby justifying the institution of administrative proceedings on grounds of failure to comply with his professional duties.