Informe provisional - Informe núm. 116, 1970

194. The Committee thought it would be well to consider these two cases, both involving Spain, together, having decided at its sessions in May and November 1969 to postpone their consideration. On the first of these occasions, the Committee had decided on postponement until such time as it could acquaint itself with the final report by the Study Group appointed by the Governing Body to consider the labour and trade union situation in Spain. The Study Group's final report, dated 31 July 1969, was submitted to the Governing Body at the latter's 177th Session in November 1969.

1. 194. The Committee thought it would be well to consider these two cases, both involving Spain, together, having decided at its sessions in May and November 1969 to postpone their consideration. On the first of these occasions, the Committee had decided on postponement until such time as it could acquaint itself with the final report by the Study Group appointed by the Governing Body to consider the labour and trade union situation in Spain. The Study Group's final report, dated 31 July 1969, was submitted to the Governing Body at the latter's 177th Session in November 1969.
2. 195. As regards Case No. 520, the Committee had already (in February 1968) considered one of the points made in the allegations, namely that relating to the expulsion from Spain of the representative of an international trade union organisation. The Committee's conclusions on this matter appear in paragraphs 228 to 249 of its 103rd Report, which was approved by the Governing Body at its 171st Session (February-March 1968).
3. 196. Various other allegations involved in Case No. 520, and the allegations made in Case No. 540, have still to be examined. These allegations were made in sundry communications from the International Confederation of Free Trade Unions (ICFTU) (dated 24 April, 5 and 29 May, 15 June, 31 October and 27 November 1967, 12 and 24 December 1968 and 11 April 1969) and from the World Confederation of Labour (WCL) (dated 9, 16 and 31 May, 6 June, 23 October and 7 November 1967 and 12, 26 and 27 August 1968).
4. 197. In communications dated 29 May, 20 September and 9 December 1968 and 14 November 1969, the Government of Spain sent in its observations on various aspects of the matters pending.
5. 198. In the following analysis of the allegations and of the Government's comments thereon, the Committee has made due allowance for what the Study Group said in its report about relevant matters.
6. 199. 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).

Allegations concerning the Condemnation of Evaristo Martinez for Illegal Propaganda and Illicit Association

1. 200. In its communication dated 29 May 1967, the ICFTU provided fairly detailed information about the arrest of one Evaristo Martinez, a retired miner, in September 1966 at Cenera (Oviedo), for affixing posters of the Unión General de Trabajadores (UGT) which called on workers to refrain from voting in trade union elections. According to the complainants, the Court of Public Order had in January 1967 sentenced the accused to one year's imprisonment and to a fine of 10,000 pesetas for illegal propaganda, and to four months' imprisonment for unlawful association. " In the grounds of the sentence-again according to the complainants-it was stated that Mr. Martinez was a member of the UGT, an organisation declared to be outside the law, and to which the court attributed, without any justification according to the complainants, the character of a political party and the aims of subversion by violence." According to the complainants, the Court " stated that the offences of illegal propaganda (section 251 (1) and (4) of the Penal Code) and unlawful association (sections 172 (3) and 174 (3) and (4) of the Penal Code) had been legally proved ".
2. 201. The Government, in a communication dated 30 May 1968, observed that the person concerned had been released.
3. 202. In its report (paragraph 765), the Study Group, alluding to those provisions of the Penal Code which deal with illegal propaganda, observed that on many occasions, and in recent cases, the possession or distribution of manifestoes or broadsheets distributed by various workers' movements illegal under current Spanish legislation-literature in which the organisations concerned called for strikes or demonstrations, or put forward labour claims (not always exempt from allusions to the economic or political situation)-was considered to be covered by these clauses of the Penal Code. The Study Group likewise observed (paragraph 767) that as regards propaganda of the trade union type, the Study Group was told that the relevant legislation was sometimes very strictly applied, as was the case, for example, when a candidate in the elections organised by the Trade Union Organisation in 1966 was arrested and tried for preparing, and arranging for the printing and distribution of, broadsheets setting forth his programme, without first having complied with the formalities laid down by the Printing Act (which Act lays down, inter alia, that copies of all printed matter must be lodged with the authorities before distribution).
4. 203. As regards the case involving Evaristo Martinez, examined by the Committee, the complainants say that the sentence (as far as " illegal propaganda " was concerned) invoked the fact that Martinez had displayed UGT posters calling on the workers to take no part in trade union elections; several months later, the Government informed the Committee that the person concerned was already at liberty.
5. Allegations concerning the Prosecution, for Illicit Association, of Eight Members of the Unión Sindical Obrera
6. 204. The ICFTU alleged " that in December 1966 hundreds of workers had been arrested throughout Spain on account of a nation-wide series of disputes and strikes ". It added that " the official figures had announced the arrest of fifty-eight workers, including elected workers' delegates and members of works councils ". According to the complainants " these elected representatives of the workers formed part of the official trade union organisation at its most basic level, and included numerous active members of the trade union organisations and workers' groups set up by the workers themselves in view of the ineffectiveness of the official trade union organisation ". The ICFTU alleged that " Eugenio Royo Errazquin and seven other workers named in the complaint had been arrested, and that on 3 January 1967 the Court of Public Order had decided to prosecute them ". It further alleged that " the decision of the judge stated that the accused were members of the clandestine organisation known as the Union Sindical Obrera under the Constitution of which it is stated to be a free and sovereign trade union organisation ". The complainants went on to say that " in the committal proceedings the judge considered that there existed an offence of unlawful association under sections 172 (3) and 175 (4) of the Penal Code ". The accused were said to have been released on bail for 5,000 pesetas.
7. 205. In its reply, the Government said that the persons named by the plaintiffs had been released as a result of the trial referred to.
8. 206. In its report (paragraphs 739 to 762), the Study Group describes those workers' movements which in Spain exist outside the official Trade Union Organisation. These movements, the Study Group writes, are illegal under Spanish law, but to some extent they have the character of trade unions. After referring to those clauses in the Penal Code which relate to illicit association, and remarking that they are frequently invoked against the members of such movements, the report (paragraph 762) goes on to say that the conclusion generally accepted is that no matter what may be the principles of a trade union movement organised, or claiming the right to organise, outside the official trade union movement, its members are subject to imprisonment and to such subordinate penalties as are provided for in the Penal Code. The point should be made that although the sentences passed sometimes invoke failure to abide by the formalities, it would seem that the movements in question could not be created under current legislation governing associations, due account being taken also of the trade union legislation in force.
9. Allegations concerning the Arrest and Imprisonment, in 1967, of Asturian Workers for Unlawful Assembly and Illicit Association
10. 207. In paragraph 5 of its communication dated 29 May 1967, the ICFTU referred to a case being brought before the Court of Public Order against various persons, and to the imprisonment and banishment of workers. The ICFTU stated that " ten persons had been prosecuted for unlawful assembly (sections 166 (1) and 167 of the Penal Code) for having organised a meeting of 1,500 retired miners near Mieres (Oviedo). The retired miners had appointed a committee and submitted certain claims to the authorities. The meeting in question was convened-according to the complainants-in order to give an account of the work done by the committee. In May 1967 the prosecutor asked for sentences of from four months to four years of imprisonment for the accused, namely Aurelio González López and nine other workers named in the complaint."
11. 208. In paragraph 6 of the same communication, the ICFTU " alleged that the Spanish press had reported the arrest of thirty-eight trade unionists between December 1966 and February 1967. After a strike in the Pozo Llamas, in Asturias, Manuel Alvarez Arin and seven other miners named in the complaint had been arrested and later banished to the south of Spain. The complainants asserted that Angel Rojas Serrano and twelve other workers, whose names they supplied, had been arrested in Barcelona on a charge of unlawful association, as well as Angel Garcia in Bilbao and Roberto Muñoz Jabonero in Guadalajara, " and many others in Seville, Madrid and the province of Guipúzcoa ".
12. 209. In a communication dated 30 May 1968 the Government announced that all those named in paragraphs 5 and 6 of the ICFTU complaint had been released.
13. 210. In its report, the Study Group deals with the question of assembly and demonstration in Spain (paragraphs 400 to 403 and 768 to 770), and says that the right of peaceful assembly is governed by the Act of 15 June 1880, still in force. This right may be exercised by all, provided (in the event of a public meeting) advance notice is given to the authorities. A public assembly means any assembly which is to be attended by more than twenty persons and which is to be held in premises other than the domicile of those who convene it. Public assemblies, civic processions and similar ceremonies to be held in the streets, squares or any other thoroughfare, require previous authorisation in writing from the authorities. The Act provides that the authorities shall order the immediate suspension or dissolution of any public assembly which is held otherwise than in the conditions mentioned above, or deals with purposes not referred to in the notice given, or is held at a place other than that mentioned, or encumbers a public thoroughfare, or is prohibited by the Penal Code. Under section 166 of the Penal Code, meetings or demonstrations are not considered peaceful if they are attended by numerous armed persons (whatever their weapons), if they are held counter to general police regulations applicable to the place where the meeting or demonstration is to take effect, if they are held with intent to commit some crime or offence, or if in the course thereof the provisions of the Penal Code relating to the internal security of the State (including those relating to illicit association and propaganda) are infringed. The Study Group mentions some cases in which these provisions have been applied in connection with meetings and demonstrations, of a trade union kind, which were considered to be illegal.
14. Allegations relating to Action Taken in Vizcaya by Virtue of a State of Emergency (1967)
15. 211. In its communications dated 9 and 16 May 1967 the ICFTU " complained of the - suspension of certain guarantees in Vizcaya and the measures of arrest and banishment adopted by the authorities ".
16. 212. In its communication dated 29 May 1967, the ICFTU alleged that: " the workers of Vizcaya, answering the call of their free trade union organisations, considered as illegal by the Government and the legislation, had carried out stoppages of work in solidarity with the workers of the Laminación de Bandas undertaking, who had been on strike since November 1966." According to the complainants, " the peaceful demonstrations were brutally broken up by the police, and many workers were arrested and tortured. In April 1967 a group of Bilbao priests addressed a statement to the religious and civil authorities, which included a denunciation of the arbitrary persecution, arrests, tortures and fines of which the workers' leaders were victims". The ICFTU added that on 13, 14 and 15 April 1967 stoppages of one hour were carried out in the chief industrial establishments of Vizcaya. On 21 April the Government decided to suspend the guarantees of freedom of residence, inviolability of domicile and protection against arbitrary arrest, for three months in this region. About 300 workers, "mostly belonging to the free trade union organisation, the Unión General de Trabajadores, the Unión Sindical Obrera, and the Solidaridad de Trabajadores Vascos" were arrested. It was stated in the complaint that many of those arrested had been elected to office in the legally recognised trade union organisation. The ICFTU alleged that Ramón Rubial was banished to Cáceres and that fifteen other persons, whose names it supplied, were banished to other parts of Spain. This complaint also gave the names of numerous workers who were stated to be in the Larrinaga prison in Bilbao. The communications of the ICFTU of 31 May and 6 June also gave a list of the persons who had been imprisoned or banished.
17. 213. The Government in its reply stated that " the suspension of Constitutional guarantees in a province or region is an established prerogative of governments in almost all Constitutional systems and may be exercised in the cases laid down by law. The Decree of 21 April 1967 was issued because it was necessary to defend public order, and it cannot be regarded as a measure taken exclusively against the workers or as being based on reasons connected with trade unionism. The state of emergency was terminated before the end of the three-month period provided for. As a result, all the persons referred to as banished have been able to return home, and those alleged to have been imprisoned in the Larrinaga prison, Bilbao, have been released."
18. 214. The Study Group in its report (paragraphs 1144 and 1145) refers to the " state of exception " proclaimed in Spain in January 1969 (it actually lasted two months). The Study Group was in Spain at that time. It was represented to the Group that the proclamation of a state of exception has been all too characteristic of the history of Spain at certain periods, and was therefore less significant than it may have appeared to world opinion. The Study Group took note of this view, but refrained from comment thereon. It does, however, say that the state of exception would nevertheless, had it continued, inevitably have had a profound bearing on the prospects for a peaceful development of the labour and trade union situation in Spain. It also considers that only if the normal rule of law applies, ensuring the full enjoyment of rights and guarantees, can the labour and trade union situation evolve smoothly and satisfactorily.
19. Allegations concerning Action to Break Up Demonstrations on 1 May 1967
20. 215. The ICFTU (or WCL, as it now is), in its complaint dated 9 May 1967 (supplemented by a letter dated 16 May), made allegations concerning the action taken by the authorities to prevent or break up workers' demonstrations on 1 May 1967 in various Spanish cities. " When certain guarantees had been suspended in Vizcaya in April, the Civil Governor had declared that this measure would be enforced rigorously. After the decree had been promulgated, the Alianza Sindical de Euzkadi (which brings together the Solidaridad de Trabajadores Vascos, the Unión General de Trabajadores, and the Confederación National del Trabajo) called on the workers to demonstrate at a certain place in Bilbao on l May. Between 22 April and 1 May there were numerous arrests. On 26 April the radio began to broadcast the statement in which the Civil Governor gave notice that the demonstration was strictly forbidden, that it was illegal, and that it would be broken up by all the means available to the public forces."
21. 216. The complainants go on to say that " on 1 May the authorities deployed forces on a large scale in Bilbao to prevent the workers' demonstration. In San Sebastián, those attempting to demonstrate had been threatened with severe punishment. At noon on 1 May, when groups of workers endeavoured to converge towards the place chosen for the demonstration in San Sebastián, the forces of order launched their first charges against the workers taking part in the demonstration, who responded by throwing stones. The incidents went on till nightfall in various parts of the city, and there were many arrests."
22. 217. The ICFTU also alleged that other demonstrations had been forcibly broken up in Eibar, Vitoria, Pamplona, Villafranca de Oria and Barcelona. In Barcelona fourteen persons had been arrested and turned over to the military courts.
23. 218. The ICFTU alleged that " the breaking-up of the demonstrations by the police had led to injuries, particularly in San Sebastián and Valencia ". It gave the names of many people arrested in Sabadell, Torre Baro and Madrid (in this latter city, those arrested had included Luis Royo, Juan Bautista Goicoechea, Manuel Traba, Victor Martinez Conde, Julián Ariza and Marcelino Camacho). In Pamplona those arrested had included Francisco Vitas, president of the social section of the Provincial Chemical Industries Union, Vice-President of the Provincial Workers' Council and committee member of the National Council of Workers. The ICFTU also gave the names of thirteen members of " workers' committees " arrested in the course of a meeting at Zarauz, the names of twelve people arrested in Asturias on a charge of belonging to the Unión General de Trabajadores (they had been fined and thrown into prison at Oviedo) and the names of two persons, Basilio Rodriguez and Avelino Ceballos, arrested on a charge of distributing propaganda for the UGT.
24. 219. The Government, referring to these incidents "arising from attempts to hold public meetings and demonstrations", indicates that the right to hold public meetings and demonstrations is governed in Spain by the Act of 15 June 1880, which was adopted in accordance with article 13 of the Constitution of 1876, in force at the time. Article 16 of the Spaniards' Charter or Fuero de los Españoles (the Constitutional text now in force) " governs the rights referred to and follows the above-mentioned Act ".
25. 220. Under section 3 of the Act, the Government goes on, " the holding of public meetings and civic processions, and any other such marches and parades in streets, squares or avenues is subject to the previous written permission of the authorities referred to in section 1 of the Act. Since the persons wishing to demonstrate in various places had not obtained the permission of the authorities, the latter acted in accordance with section 5 of the Act, which states:
26. The authorities shall order the immediate suspension or dissolution of:
27. (1) Any public meeting held in disregard of the conditions laid down in this Act.
28. (2) Any other public meeting which, having been convened in conformity with this Act, deals with matters not mentioned in the application or is held in a place other than that indicated.
29. (3) Any public meeting that in any way obstructs a public thoroughfare.
30. (4) Any public meeting defined and listed in section 189 of the Penal Code.
31. (5) Any other public meeting at which there is committed or there is an attempt to commit any of the offences specified in Title 111, Book 11, of the Penal Code.
32. ......................................................................................................................................................
33. 221. As to the way in which demonstrations are broken up, the Government points out that Spanish security forces do not make use of dogs, gas, liquids, and so on, considered normal in other countries. Only in very exceptional cases do they make use of their arms, as is shown by the fact that cases of injury attributable to the suppression of demonstrations or disorders are very rare indeed. The authorities proceed in accordance with an Act which has been in force for nearly ninety years. " The fact that the demonstrations were started by workers on 1 May does not imply any discrimination or any connection with trade union rights, since the same method has been followed on all dates in dealing with all classes of citizens." The Government expressly adds that all those mentioned in the ICFTU complaint have been released.
34. 222. With regard to this latter point, the Committee observes that two of the people mentioned in paragraph 218 above, that is to say Julián Ariza and Marcelino Camacho, were interviewed by the Study Group in Carabanchel Prison, Madrid, when the Group was in Spain in March 1969 (see paragraph 59 of the Study Group's report). Julián Ariza appears as the accused in connection with another allegation considered hereinafter (see, especially, paragraph 230).
35. 223. The Committee likewise observes that the Study Group refers to the demonstrations which took place on 1 May 1967. In paragraph 770 of its report the Study Group states that it had gathered information from various sources about the trial (under the Penal Code) of persons accused of having organised meetings in Guipúzcoa.
36. 224. As regards the way in which such demonstrations were broken up, the Committee observes that the Government defends the calling-in of the police; the organisers had not, it claims, first obtained the written permission mandatory under the 1880 Act dealing with public assembly. From neither the complaints made nor the information supplied by the Government is it clear whether the organisers had in fact failed to apply for permission, or whether any such application would, in any case, have been refused. It does, however, seem unlikely, in view of the kind of organisation the Alianza Sindical de Euzkadi is (an organisation with no official recognition) that the demonstration convened in Bilbao (about which the Committee possesses more detailed information) could possibly have been held under current legislation governing assembly. As far as freedom of association is concerned, the principle at stake goes beyond the right to convene trade union meetings, and involves the legal status of workers' organisations outside the official Trade Union Organisation.
37. (Allegations to the Effect that in October 1967 Workers Were Arrested in Large Numbers in Various Parts of Spain for Acts of Protest
38. 225. In a telegram dated 31 October 1967 the ICFTU asserted that beginning on the fifteenth of that month the Spanish authorities had arbitrarily arrested and detained some hundreds of workers in Seville, Madrid, Catalonia and Asturias, so as to nip in the bud the trade union campaign organised by the " workers' committees " and other trade union entities outside the official trade union movement, as a protest against repression, rising prices, inadequate minimum wages, and the suspension of basic trade union rights, including the right of free association and the right to strike. The complainants further alleged that the Court of Public Order was continually sentencing workers to stiff prison sentences for trade union activities regarded, in the eyes of the law, as equivalent to unlawful association and illicit propaganda.
39. 226. In its communication dated 27 November 1967 the ICFTU provides the information summarised hereinafter. In September 1967 the Cabinet had decided that the minimum wage should be raised from 84 to 96 pesetas. That had been considered quite inadequate, and there had been much discontent among the workers. In the light of calculations made by a group of employers, to the effect that the minimum wage would have to be at least 225 pesetas to meet the basic needs of a married man with two children, the underground trade union organisations had demanded a 250-peseta minimum. The National Workers' Council and the workers' provincial councils of the official Trade Union Organisation had themselves called for a substantial increase. The official trade union leaders had made public mention of 125 pesetas a day as the minimum. The increase decreed by the Government had been criticised in resolutions passed by various workers' provincial councils. At the same time, the free trade union organisations had called for effective action to stem the increasing number of dismissals, the rise of prices and the closing of factories; they had protested against the fact that, within a few months, more than 500 trade union leaders, elected to office in the official Trade Union Organisation, had been relieved of their posts.
40. 227. Early in October-the ICFTU continued-various free, underground trade union organisations had announced a series of stoppages, factory meetings, and transport boycotts as a sign of protest. Those peaceful protests had taken place during the week from 20 to 27 October. From the fifteenth of that month, the authorities in the various parts of the country began the process of arrest, which had continued after the twenty-seventh. According to estimates appearing in the international press, and even in Spanish newspapers, some 1,500 people had been detained during that period. Many of them were waiting to appear before the Court of Public Order. It was impossible to provide a full list of those detained or to say what proportion were being tried.
41. 228. As examples the ICFTU gave the names of Antonio Briones and of another fifteen persons detained in Madrid; of Antonio Marti Benasanch and another nine persons, in Mataró; of Luis Maria Igartúa Dominguez and another eleven people, in Vitoria; of David Morin Salgado and another sixteen persons, in Bilbao. Furthermore, while giving no names, the ICFTU reported that twenty-six persons had been arrested in Tarrasa, some of whom would be tried by military courts; that four persons had been arrested in Seville, and a dozen persons (workers) in Asturias, among them three who had been accused of illegal propaganda and illicit association because they belonged to the Unión General de Trabajadores.
42. 229. With regard to these allegations, the Government offers the following comments: the following have been released-Antonio Briones, Manuel Traba, Luis Royo, Antonio Milar, Antonio Gallifa (alleged in the complaint to be detained in Madrid); José Riera Porta, Antonio Marti Benasanch, José Luis López Bulla (said to have been detained in Mataró); Luis Maria Igartúa Dominguez, Joaquin Ramos Valerio, Miguel Castillo López, Pablo Alda Fernández, José Ignacio Urtarán, Julio Arbosa Salazar, Luis Martinez Mendiluce (said by the complainants to have been detained in Vitoria); José Maria Cayuso Bermejo, Victor Suso Uribarri, Juan Antonio Zamora, Alberto Barcala, Emilio Méndez Ortiz, Félix Rojo de Celis, Teodoro Martin Muro and Dagoberto Sinal Barrero (said to have been detained in Bilbao).
43. 230. Furthermore, the Government announced that Nicolás Sartorius and Julián Ariza (appearing in the list of persons imprisoned in Madrid, supplied by the complainants), together with David Morin Salgado (Bilbao) had been brought to trial. The Government gives no indication of the charges brought against them, or of the outcome of the trials.
44. 231. As regards the other persons named, the Government reported that it lacked information about them; the data given in the list did not suffice for identification. It might well be, the Government wrote, that some of the names had been misspelt.
45. Allegations concerning the Condemnation of Several Workers for Unlawful Propaganda, Association and Assembly
46. 232. The ICFTU alleged that the Court of Public Order was sentencing workers for trade union activities almost every day. In Renteria (province of Guipúzcoa), José Maria Arafia Mendinueta and ten other persons mentioned by name in the complaint had been arrested in January 1967 and sentenced in November for unlawful propaganda; Araña Mendinueta had been sentenced to 6 months' imprisonment and the other ten to penalties varying between a 5,000 peseta fine (in one instance) and imprisonment for 3 months, 6 months, and 1 year and 3 months. The following workers from Eibar had been sentenced: José Luis López de la Calle to 2 years' imprisonment and to a fine of 20,000 pesetas for illegal propaganda, and to 4 months for illicit association; Sabino Baztarrica Aréizaga, Manuel Calvo Gutiérrez, Juan Franco Bermejo and Claudio Plaza Morales to between 4 and 6 months for illicit association; Julio Eyara Balmaseda to 8 years and 6 months for unlawful association and propaganda; and Napoleón Olasola Tabares to 14 years' imprisonment and a fine of 20,000 pesetas, also for unlawful association and propaganda.
47. 233. The Asturian workers sentenced on 11 November 1967 for demonstrating in front of the Casa Sindical at Mieres (province of Oviedo) on 28 June of that year, and all sentenced to between 3 and 6 months' imprisonment for disorderly assembly, were, according to the ICFTU: Manuel Fernández, Constantino Alonso, José Celestino González, Manuel Garcia, Manuel Alvarez, José Pérez, José Antonio González, Higinio González, and Luis Bernaldo de Quirós.
48. 234. On 24 October 1967 Enrique Alonso Iglesias had been condemned to 6 months' imprisonment and to a fine of 10,000 pesetas for distributing propaganda on behalf of the Unión General de Trabajadores in Algeciras, and for having called on the workers to demonstrate on 1 May 1967.
49. 235. In its observations dated 30 May 1968 the Government writes that the data given by the complainants are correct. The persons sentenced by the competent courts had been sentenced for offences which could not be regarded as having anything to do with trade union activities; in their verdicts the courts had taken the view that the offences were of a kind for which the Penal Code made definite provision.
50. 236. It would thus appear, from what the Government says, that all the persons mentioned in these allegations were sentenced by the Court of Public Order, which would seem to have condemned them to the penalties mentioned in the allegations.
51. 237. The Government denies that there is any connection between these sentences and trade union activities. The complainants, on the other hand, maintain in general terms that the reason why the penalties provided by law for unlawful association, illicit propaganda and violent assembly were applied in these cases is that the persons concerned had been engaged in trade union activities. More definitely, as regards the nine Asturians sentenced on 11 November 1967, the complainants explain that the offence with which they were charged was having held a meeting outside trade union premises. They say that one worker sentenced on 24 October 1967 was condemned because he had distributed propaganda for a workers' organisation, calling on the workers to demonstrate on the First of May.
52. Allegations concerning the Trial of Eleven Basque Trade Unionists
53. 238. In a communication dated 23 October 1967 the ICFTU (or World Confederation of Labour, as it now is) said that there had been another blow against freedom of association by the Spanish authorities. On 14 October the case had been heard in Madrid against eleven Basque trade unionists of Christian persuasion: against José Maria Lasagabaster, the prosecutor was asking for five years' imprisonment and a fine of 50,000 pesetas; against Antonio Garmendia and Segundo Iturralde, four years' imprisonment and a fine of 30,000 pesetas; against José Ormaechea, three years' imprisonment and a fine of 20,000 pesetas; against Francisco Iceta, Manuel Ormaechea, and Manuel Lamariano, two years' imprisonment and a fine of 15,000 pesetas; against Saturnino Olariaga, Sabino Jáuregui and Eusebio Arriolabengoa, one year's imprisonment and a fine of 10,000 pesetas; against José Muñoz three years' imprisonment. In another communication, dated 7 November 1967, the ICFTU specified that the judgment had acquitted Muñoz, Lamariano and Arriolabengoa, but that Lasagabaster had been sentenced to four years and two months' imprisonment and to a fine of 30,000 pesetas. Garmendia and Iturralde had been sentenced to two years' imprisonment and to a fine of 20,000 pesetas, José Maria Ormaechea to one year's imprisonment and to a fine of 15,000 pesetas, and Iceta, Manuel Ormaechea, Olariaga and Jáuregui to six months' imprisonment and to a fine of 10,000 pesetas.
54. 239. To these allegations the Government replies that " of those named by the ICFTU, the only persons still in prison are Lasagabaster, Garmendia, Iturralde, and José Maria Ormaechea. The reasons adduced by the court for the sentences are of a purely political character and have no connection with trade union matters. It has been shown ... that the persons concerned had introduced into Spain and distributed clandestine propaganda against the national referendum for the approval or rejection of the Organic Law of the State, which is the basic Constitutional text in Spain." The accused, according to the Government, had also carried out "'subversive separatist activities as members of or sympathisers with the Basque nationalist party, which is an illegal party and which in no way whatever has a specifically labour character ".
55. 240. The Committee observes that although the complainants say that the eleven people named by them were trade unionists, they do not make it clear why, in their view, the trials had a connection with the accused's trade union activities. The Government provides fairly detailed information about the offences for which those sentenced were condemned. In the light of the information provided, it would seem that the activities in question went a good deal further than trade union activities as normally defined.
56. Allegations relating to the Imprisonment of Persons Belonging to a " Works Committee ", on a Charge of Illicit Association
57. 241. In a telegram dated 9 August 1968, confirmed by a letter dated 12 August, the ICFTU (the WCL, as it now is) alleged that fifteen workers of the Sestao Shipyard were arrested on 22 July 1968. The grounds for the arrest are stated to have been the holding by the workers of meetings, deemed to be unlawful, at which they had appointed a " works committee ".
58. 242. The Government sent its observations on this question by a communication of 9 December 1968, in which it states that on 27 July 1968 the Court of Public Order opened Case No. 569. On 9 August the following persons were brought to trial: Dionisio Allende Alcedo, Luis Obregón Adrián, Prudencio Pastor Castaños, Eduardo López Albizu, Julián Arribas Herrero, Antonio Velazco Arenaza, Constantino Andrés Martinez, Adolfo Saenz, Marcelino Campos Blanco, José Maria Lizarraga Fernández, Justiniano Barando Oteo, Jesús Echevarria Arenzana, Jaime San Sebastián López, Ignacio Goyoaga Sierra, and Nicolás Redondo Urbieta. According to the Government, the charge is that of unlawful association, all the accused have been provisionally released and the trial is proceeding.
59. 243. The Committee observes that the Study Group in its report (paragraphs 744 and 747) refers to " works committees ". In this respect, the Study Group reports that the Unión General de Trabajadores (UGT) has encouraged the setting-up of such bodies by direct election among the workers in works or factories. " It seems ", the Study Group comments, " that at certain times and in certain circumstances they have managed to negotiate with managements." The Solidaridad de Trabajadores Vascos (STV) also favours the creation of works or factory committees outside the official Trade Union Organisation.
60. Allegations concerning the Legislative Decree on Banditry and Terrorism
61. 244. In a communication dated 26 August 1968 the ICFTU made allegations concerning a government measure to bring into force again certain provisions on the trial of offences of banditry and terrorism. The complainants also allege that they have received news that a number of citizens have been deported from Guipúzcoa to Córdoba and Cádiz. In another letter, dated 27 August 1968, the ICFTU sent a first list of seventy-eight citizens who were imprisoned in the prison of San Sebastián on 17 August 1968, with details of the places to which some of them were later banished. The ICFTU stated that these and other cases of imprisonment had been due to the death of a police superintendent, but that the activities of the police or the orders received by the police had been entirely arbitrary, since those imprisoned included persons of irreproachable character.
62. 245. The Government's comments on this aspect of the matter appear in a communication dated 20 September 1968. In the opinion of the Government, the complainant organisation in its communications of 26 and 27 August 1968 has raised two entirely new questions that cannot be regarded in any way as coming within the competence of the Committee on Freedom of Association. In the first of these communications, the Government states, there are comments on the possible effects that the application of the legislative decree on military rebellion, banditry and terrorism may have on Spanish workers, but no complaint is made concerning any specific case in which these possibilities have materialised. The Government expresses the hope that the Committee on Freedom of Association will understand that " the Spanish Government is not prepared to discuss claims based on hypotheses that merely reflect opinions of the ICFTU on legislation adopted by our Government in the exercise of its Constitutional power ".
63. 246. With regard to the allegations made in the complaint dated 27 August 1967, the Government states that the question refers to cases of imprisonment that have occurred in Guipúzcoa in connection with the activities of the ETA, a terrorist separatist organisation completely political in nature. As is shown by the list of imprisoned persons supplied by the complainants-the Government adds-the majority of these persons are not workers, and it is easy to draw the conclusion that the reason for their imprisonment has nothing to do with labour matters. " The ICFTU may hold whatever opinion it likes on Spanish politics ", the Government continues, " but our Government considers that it is in no way obliged to give explanations to this trade union organisation on matters lying quite outside its competence and concerning offences entirely within ordinary criminal law."
64. 247. In view of the Government's comments on the allegations relating to the legislative decree on military rebellion, banditry and terrorism, and on what the complainants alleged concerning sentences of imprisonment and banishment passed in Guipúzcoa in August 1968, it should be pointed out, in connection with this particular legislative decree, that in a previous case involving Spain, the Committee considered certain allegations concerning various specific clauses of this decree which might have a certain incidence on the exercise of the right of free association. On that occasion the Committee took due account of the allegations made and of the Government's observations, and the question receives special attention in its 56th and 60th Reports. The Committee recalls that according to the Government: " the Decree ... will not be applicable to strikes relating purely to labour claims involving no element of armed rebellion." In this particular instance the complainants' very brief allegation is not supported by specific information which would justify reconsideration of this legislative decree with an eye to the exercise of trade union rights. As regards allegedly arbitrary action by the police, the very general information supplied, while it does seem to raise problems of human rights, was again unaccompanied by anything more specifically relating to the connection between the action taken and trade union rights properly so called.
65. 248. The Study Group refers in paragraphs 771 to 775 of its report to the decree dated 21 September 1960. Section 2 of this decree (suspended in 1963 but again brought into force in 1968) lays down that " a series of activities, such as the spread of false or tendentious rumours to cause disturbance of the peace, international conflict, loss of prestige by the State ... conspiracy or demonstrations of a conspiratorial kind ... strikes, go-slows, acts of sabotage and similar acts when undertaken for political reasons or when they cause grave disturbance of the peace ... shall be considered equivalent to armed rebellion ". The Study Group says that from the information available it appears that this piece of legislation has only once been applied in connection with labour and trade union matters, and then in connection with a collective dispute.
66. Allegations concerning the Arrest of Various Members of the UGT in 1968 and 1969
67. 249. In a telegram dated 12 December 1968, and a letter dated 24 December of that year, the ICFTU reported that the following had been arrested and detained in Bilbao: Ramón Rubial, Eduardo López Albizu, José Agustin Serrano, Salustiano Sola, Agustin Alday, Aurelio Revilla, Pablo Chueca, Luis Tellaeche, Eusebio Virto, Enrique Alonso Iglesias, José Luis Echave Asensio and Pablo Iglesias. The ICFTU expressed its deep dismay at continued anti-trade-union actions.
68. 250. In a communication dated 11 April 1969, the ICFTU claimed that during the state of emergency hundreds of trade unionists were arrested, and the Spanish authorities seized the opportunity to initiate court proceedings against innumerable trade unionists for belonging to free and democratic trade union organisations and for being members of works committees elected by the workers, outside the trade union movement, to defend their interest. To back up these claims the ICFTU sent a photographic copy of a judgment rendered on 17 February 1969 on " emergency indictment No. 148/69 ". The judgment was to the effect that the following persons, members of the Unión General de Trabajadores (UGT), itself affiliated to the International Confederation of Free Trade Unions, should be remanded in custody: Santiago Tapia Hernando, Juan José Berrocal Uribeechevarria, Adolfo Jiménez Garay Gordobil, José Luis Echave Asensio, Eduardo López Albizu, Gregorio Illoro Ruiz, Nicolás Martinez Esturo, Arturo Aguero Piaño and Ignacio Muhoz Merino. It would seem from the document that these people had been accused of unlawful association (sections 172, 173 and 174 of the Penal Code) on the grounds of their membership of the UGT. Four of these persons had also been charged with membership of the " Young Socialists " movement.
69. 251. In its communication dated 14 November 1969 the Government states that the persons said by the complainants to have been arrested in Bilbao in December 1968 had been arrested for involvement in activities contrary to public order. The Government indicates that the Court of Public Order had decreed their provisional release, but says that Eduardo López Albizu had been prosecuted on another charge (that of unlawful association), and imprisoned on 17 February 1969.
70. 252. From all this, it would appear that Ramón Rubial and other trade unionists arrested in Bilbao in December 1968 were released while their trial was still continuing. However, to judge from the information supplied by complainants and Government alike, it seems that two of these persons - José Luis Echave Asensio and Eduardo López Albizu, with other members of the UGT-were remanded in custody in February 1969.
71. Allegations concerning the Dismissal of Arrested Trade Unionists
72. 253. In its communication dated 11 April 1969, the ICFTU says that " many undertakings, in connivance with the authorities, are dismissing democratic trade unionists on account of their absence from their jobs, in accordance with the provisions of the Contracts of Employment Act, such absences being due, however, to the fact that they are in custody and facing proceedings charged with offences under the Public Order Act presently in force ". It enclosed a photographic copy of a communication " sent to one of the persons involved in the trial ... José Luis Echave Asensio, by the undertaking employing him, the Bilbao Branch of the Central Bank ". The ICFTU likewise affirms that a certain firm in Madrid, after procuring the arrest of four of their employees, Juan Rodriguez Matobella, Antonio Ariza Sobrino, and two others, named Echaniz and Lomichar, sent a letter to these workers threatening them with dismissal if they did not present themselves at their workplaces within forty-eight hours. One of them, J. Rodriguez Matobella, managed to secure his release within the time limit and presented himself at the undertaking, accompanied by a notary. Nevertheless, he was also dismissed.
73. 254. The Government has not yet commented on the allegations referred to in the above paragraph.
74. 255. The Committee observes that the Study Group, in paragraph 181 of its report, refers to the question of dismissal in circumstances when a worker, held in custody, fails to turn up for work. The report says that in such circumstances the sanction generally provided for in the works rules for absence exceeding three days is applied. A well-established jurisprudence exists to the effect that dismissal can be pronounced even if the worker is released, the prosecution having declined to bring an action against him. Various people interviewed by the Group were critical of this state of affairs; if it turned out that no valid motive existed for keeping a person detained, how then-they asked-could that person be justifiably dismissed? These people gave it as their view that the procedure was on occasion used to get rid of workers whom their employer, for quite arbitrary reasons, wished to dismiss. The report also refers to a judgment (apparently rendered in July 1969), when a magistrate ruled differently. He declared that a trade union delegate, arrested and then released without proceedings being taken against him, could not legally be dismissed. The magistrate's finding was that it would be exceedingly unjust if a worker were held responsible for a state of affairs which he did not deliberately bring about.

General Considerations

1. 256. In the light of the allegations made and of the Government's answers, the Committee observes that the questions of principle in connection with freedom of association, as raised in the various complaints made, have already been considered in relation to previous cases involving Spain, on which occasions the Committee was able to express its views on these matters, in the light of the principles it has always applied in analogous cases.
2. 257. The Committee also observes that the Study Group has given general consideration, in a broader context, to problems of this kind and in its report has set down its findings with regard to such problems.
3. 258. From all the information available, it seems apparent to the Committee that these problems have one element in common-namely the fact that certain workers' activities having a trade union character are offences under the law. The offences most commonly invoked in this connection are those of illicit or unlawful association, propaganda, and assembly.
4. 259. The Committee cannot but express its deep misgivings when confronted with this state of affairs. It is not irrelevant to quote what the Study Group has to say in paragraph 1151 of its report, namely:
5. The Study Group is not commenting on any cases in which few or many have been found guilty by an independent and impartial tribunal of offences which are clearly criminal in nature according to the general principles of law recognised by civilised nations or of participation in separatist movements directed against the political unity or territorial integrity of the Spanish State, but imprisonment as a penalty for what would be regarded in other countries as legitimate trade union activities because such activities are at present regarded as illegal under Spanish law raises questions of a wholly different character. They are questions which have been of such vital importance in the history of the trade union movement in many countries that many of those with whom the Group has had private interviews during its visit to Spain and all sections of the international trade union movement regard them as fundamental for the development of a genuinely representative trade union movement.
6. ......................................................................................................................................................
7. 260. The Committee recalls that at its session in May 1967 it considered the Spanish Government's suggestion that a Study Group be set up, and took the view that an investigation by such a group of the labour and trade union situation in Spain could well make a useful contribution to the fulfilment, in that country, of the aims pursued by the ILO. The Committee would reiterate its wish expressed on that occasion, in the hope that practical effect be given thereto without delay.