The suppression of the coercion to strike and some related problems –

By Gonzalo Quintero Olivares

The repeal of artwork.315-3º of the Penal Code, promoted by the PSOE, had been introduced for a very long time, and the approval of the measure on the 16th has solely confirmed it. Article 315-Three CP allowed to punish those that, appearing in a gaggle or individually, however in settlement with others, coerce different individuals a begin or proceed a strike, and, because the promoters of the reform identified, they usually had been proper, that meant making use of an aggravated type of the crime of coercion when it occurred within the context of a strike state of affairs, and, evidently, he was going to the pickets that attempted to power the incorporation to the strike.

To that argument was added one other: that this risk was pursuing an goal incompatible with the duties {that a} State has when it respects the proper to strike, since that purpose was clearly discourage residents from exercising their proper to strike and, consequently, their freedom of affiliation.

The final two respectable arguments are already inanity. The truth that prohibiting coercion in opposition to those that don’t need to strike is a risk to the proper to strike is already gratuitous, however it’s much more so to take care of that the penalty entailed by the lacking crime of coercion to strike in Article 315 CP restricted that proper, however that , as an alternative, the penalty, undoubtedly much less, of the widespread crime of coercion doesn’t produce that dangerous impact for the proper to strike.

An identical reflection will be made in relation to the, it’s assumed, “clear relationship” between the punishment of the coercion to strike with the syndical freedom, acknowledged in article 28 of the Structure and developed via the Freedom of Affiliation Legislation, whose article 2-2 successfully acknowledges, and naturally, the proper to strike, which has nothing to do with the problem of coercion. The aforementioned article 315 of the CP punishes, adequately, the obstacle of the train of the basic proper to freedom of affiliation, however the shocking factor is that along with that safety of the liberty of affiliation within the so-called coercion of pickets it was punished and with the identical penalty, for true, the coercion on who doesn’t need train the basic proper to strike.

Earlier than continuing, I need to warn you that one of many traditions of Spanish leftist orthodoxy is to anatemize anybody who dares to query the noble process of any form of picket line, no matter they do. I’m conscious of this, in addition to of the necessity for commerce union organizations to have the ability to deliver details about the explanations and want for a strike wherever they deem it needed and apply all persuasive arguments, aside from violence or intimidation.

When, a few years in the past, this crime entered our legal regulation, it obtained justified extreme criticism, which has continued to this present day. The legal legal professionals who handled the issue identified early that the legislator of the time (the equal of Article 496 of the earlier Code was launched by the reform of the Legal Code of July 1976), justified the creation of this crime by saying that it was essential to cease the aggressiveness of “organized teams calling themselves strike extension pickets”. Saying that, he forgot one thing as evident as {that a} battle context equivalent to a strike makes the existence of media or channels of data comprehensible, however, above all, that intra-group relations develop in a tense state of affairs that makes it troublesome to evaluate coercion with the identical tips as could be executed in a peaceable context.

It was not lengthy earlier than the Constitutional Court docket, indicating a needed interpretation of the Penal Code appropriate with the basic nature of the proper to strike, established that this crime needs to be interpreted in a really restrictive manner, since any extension in its utility would have penalties. inadmissible.

As anticipated, this interpretive “stability” was not the standard factor, and each commerce union and employer organizations have denounced the uselessness of the norm, some for abuse of repression, others, for conventional impunity of the pickets. It’s evident, then, that there was a very good motive to suppress a rule: no person preferred it, and that, moreover, it was redundant as a result of there was already against the law of coercion. Nevertheless it was quickly realized that with the now repealed determine of coercion to strike, it was meant to broaden the idea of intimidation together with the presential that might generate the “Intimidating look”Of the picket, though there was neither violence nor intimidation really utilized.

It’s extremely possible that this was the legislator’s goal on the time, and, after all, that declare was and could be unacceptable right now, because it quantities to punishing as coercion what just isn’t legally coercion. Now, it should even be stated that the Supreme Court docket, in relation to crimes by which coercion performs a figuring out function (using bodily violence or intimidating) as is the case of the crime of theft or rape, he has lengthy admitted the sufficiency of “stage” or “face-to-face” bullying, so it could not be appropriate to discard the “intimidating power of the group”, Which can not require the efficient use of bodily power.

At this level, I consider {that a} clear and easy evaluation is critical: ​​the reform doesn’t suppose a carte blanche to the pickets as has already been heard or learn in some media. The crimes of coercion and threats stay the relevant norms within the occasion of the looks of violence within the context of a strike and carried out by those that need to power others. For the reverse state of affairs (trying to stop with violence or risk the train of the proper to strike) the applicability of article 315 nums stays. 1 and a pair of of the CP.

A very completely different matter and to which we’re very accustomed is the usurpation of the proper to strike. It’s essential to specify who’re the recipients of those constitutional, legal and non-criminal laws, that are the employees and employers, with out these private situations permitting extensions or analogies. From the Structure and home regulation to supranational resolutions, particularly these of the ILO, there is no such thing as a doubt on this regard, and additionally it is that laws that regulates, in international locations configured as States of Legislation, the train of the proper to freedom. strike.

The identical laws might, finally, prohibit strikes by all or a part of public officers or prohibit any strike if a state of exception or alarm is asserted. It must also be remembered that the ILO doesn’t admit as “strike that essentially it needs to be reveredone that features violence.

To finish these notes, I’m going to consult with sure associated phenomena, which don’t have anything to do with staff’ strikes (the one conceivable strikes). In our each day lives there are, within the first place, the so-called pupil strikes, throughout which some campuses or educational facilities are remodeled into territories exempt from the validity of regulation, because of the impotence or worry of the educational authorities. Most pupil associations (and I cannot go into an evaluation of their genesis and targets) take as a right the existence of this proper to strike, and there has even been some wild try and discover a normative foundation via the proper to meeting. , acknowledged in article 46 g) of Legislation 6/2001, of December 21, on Universities, with out its train having the ability to entail sanctioning penalties. Deriving from there a proper to strike requires a capability for demagogy corresponding to the stupidity of the interpreter.

However the actuality (confirmed) is that the interpretation, shamefully accepted, of what are the coed “rights” entails accepting generally the coercive management of the monitoring of a “strike”, or bodily obstacle, with using chains in the event that they please to the kids, of the passage to the academics who need to entry the educational items. In fact that’s constitutive of against the law, each on the a part of the scholars and on the a part of the educational authorities that tolerate it. However it’s higher to not enter the miserable forest of the true validity of the regulation.

If, as well as, one has the misfortune of dwelling in a territory sick with independence, it isn’t shocking that the label “strike” is run profusely to justify “in execution of the strike settlement” the reducing of roads or highways, with out that so far there was any consequence, besides, after all, the rain of insults and threats which were downloaded (within the Catalan case, with the standard omissionate approval of the Generalitat) on the educational authority that blanket of his duties requested police help.

Briefly, the modification of the Penal Code is welcome, so long as it isn’t taken as limitless freedom of strain for the pickets, and, because it worries a lot, and it needs to be, to make sure the proper to strike, act accordingly. in opposition to those that invade it.

Photograph: Miguel Rodrigo

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