By Juan Antonio Lascuraín
Sure, in fact, though the query is pertinent since a number of days in the past the abolition within the Penal Code of the precise crime of coercion to strike (article 315.3) got here into drive. I say “positive”, as a result of in our prison regulation, any coercion is prison. Besides in instances of “authentic authorization”, it’s not doable to “forestall one other with violence from doing what the regulation doesn’t prohibit”, nor compel him with violence “to do what he doesn’t need, be it truthful or unjust” (artwork. 172.1.1º CP ). If what’s prevented or compelled is the train of a basic proper, the penalty is elevated: what deserved a jail of six months to 3 years or a positive of twelve to twenty-four months (the months are a approach of quantifying the positive ) now deserves a considerably increased penal framework: imprisonment from eighteen months to 3 years or a positive of eighteen to twenty-four months (artwork. 172.1.1º CP). This final penalty is, by the best way, constantly the identical as that of the precise crime of coercion to not be a part of a strike (artwork. 315.2 CP).
The reader will then marvel what has modified now, the place was the issue, why there was this union demand for the suppression of article 315.Three that the legislator is now addressing. The reply, the injustice of the ex-precept, is that it offered for the precise crime of coercion to strike the identical penalty as for the aggravated crime of preventive coercion of the train of a basic proper and the identical penalty as the crime of coercion to not strike. And that injustice that’s now being remedied had two faces.
The primary was that the appropriate whose train is prevented, which It’s the proper to hold out your work, it’s a non-fundamental constitutional proper (artwork. 35 CE), not like the appropriate to strike (artwork. 28.2 CE), situated by the Constituent Meeting between “basic rights and public freedoms”. As this challenge of the labeling of constitutional rights as basic doesn’t stop to arouse controversy, and as some declare to grasp the appropriate to not be a part of a strike as a manifestation of the appropriate to strike, it’s value noting the second of the arguments that has ended. for overturning article 315.Three CP. It’s not a query of what sort of proper the coerced is making an attempt to train, however reasonably that the coercer commits the crime in extreme train, and subsequently illegitimate, of a basic proper, the appropriate to strike. And, because the European Courtroom of Human Rights and the Constitutional Courtroom have bored with saying in relation to freedom of expression, but additionally the appropriate to strike (STC 104/2011), the legislator mustn’t discourage the train of basic rights with severe penalties for his or her extreme train when the border between the heaven of regulation and the hell of jail is blurred. Residents won’t wish to stroll by the general public sq. if we all know that there are poorly marked banks of quicksand.
Briefly: the issue with the coercion to strike was that its penalty, as an alternative of maybe being attenuated for the explanations indicated, constituted an aggravated coercion. Maybe, with a little bit of political goodwill, the problem might have been resolved in a way more transversal approach than that expressed by the 189 votes that accredited it in Congress.
Coda. The reader won’t discover any of those explanations within the disturbing preamble to the regulation (Natural Regulation 5/2021). Go forward that I’m not positive that the legal guidelines should be preceded by earlier explanations that generally – bear in mind the preamble to the Statute of Catalonia – the satan takes them on and will get us into the difficulty of scrutinizing their normative worth. Maybe the most effective factor can be for the legislator, reminiscent of soccer judges and referees, to not make statements and communicate solely by the articles of their legal guidelines. What I’m positive of is that the preambles mustn’t do what this does, which is to cost, and in no much less refined phrases, in opposition to one other regulation in drive (the most recent labor reform), coming to model it as constitutional disloyalty, and in addition cost in opposition to an alleged approach that the judges must interpret the disappearing principle, which might have led to nothing lower than an utility of the regulation that “has tried to dissuade residents from exercising their proper to strike and, consequently, their freedom of affiliation.”
It’s not a query now of discussing the better or lesser reasonableness of each assertions. Solely to underline the novel inappropriateness of the talk discussion board and the institutional weakening that this entails: an pointless assault by the Legislative Energy on itself and on one other Energy, the Judiciary.
What a strategy to blur a vital regulation.
* Printed in Expansión on Could 10, 2021