On April 14 of this 12 months, the Cortes Generales have Article 315.three of the Penal Code repealed, by advantage of Natural Regulation 5/2021, reforming Natural Regulation 10/1995, of the Penal Code. Mentioned principle got here in sanctioning those that, appearing in a bunch or individually, however in settlement with others, coerced different folks to begin or proceed a strike.
With a press release of causes extra political than technical, it establishes the reform that in 2011 with the Authorities of the Well-liked Occasion “sand commenced a continuing and systematic strategy of dismantling freedoms and particularly people who have an effect on the general public manifestation of disagreement with the federal government’s financial insurance policies”. Properly, it’s one thing clearly unprecedented to justify a legislative reform with arguments of such a marked political nature.
Bear in mind, on the one hand, that The Official State Gazette is nothing however an instrument of publicity of the norms of our system (artwork. 91 EC and artwork. 2 CC), and that making use of it for partisan functions is inadmissible. Alternatively, governments, by way of their constitutional prerogative to current payments, and political teams by way of payments, are entitled to induce the legislative modifications they deem acceptable, however with out perverting the establishments and devices of the State of Proper within the course of. The Penal Code, as a technical norm that it’s, deserves consideration in relation to being handled by the Legislature.
Likewise, citing an extra-criminal rule such because the 2012 labor reform to justify a change doesn’t appear to agree with the aforementioned.
Nor can we lose sight of a curious reality: Article 315.three CP was launched by LO 10/1995, in the course of the mandate of the socialist authorities of Felipe González, and modified by LO 1/2015 in its present wording (till LO 5/2021).
The already repealed principle had a function of defending a basic proper (the strike) for particular legal conditions that under no circumstances eroded the liberty regime, in a extra concrete approach than generic coercion. The man required the next objects:
- A coercion, understood within the sense of article 172.1 CP as the very fact of stopping somebody illegitimately, with out authorization and with violence from doing what the regulation doesn’t prohibit him or doing what he doesn’t need, be it truthful and unfair (on this sense the STS Second Chamber of March 11, 1999). Violence will embody each acts of bodily assault and acts of private intimidation, together with acts on property belonging to the offended individual.
- Mentioned coercion should have the adequate entity as to find out the capability to behave of the taxpayer of the crime, forcing him to hold out the described reality.
- The subjective aspect of the unjust, consists of the intention of the energetic topic to make use of violence with the intention to prohibit freedom.
- The protected authorized asset is the free train of the proper to strike. Though Article 28.2 EC doesn’t delimit its content material, it’s outlined by STC 11/81 by stating that it covers each i) the cessation of the availability of providers to which the employee is obliged and ii) the free determination of not stop in such provision. Due to this fact, the coercion typified within the previous article 315.three impacts the unfavorable sphere of the proper to strike, that’s, on the employee who doesn’t need to begin or proceed a strike.
The punishment for this conduct was between one 12 months and 9 months to 3 years in jail, or a fantastic of between eighteen to twenty-four months.
LO 5/2021 considers the crucial must decriminalize the conducts that happen when it comes to the train of the elemental proper to strike, offering higher safety to staff. Nonetheless, although the reform goals to appropriate a non-existent reduce in freedoms for them, the sensible results of this repeal are null..
Now, the repression of the coercions which are meant to impede the professional train of the elemental proper to strike will probably be redirected by the aggravated sort of coercion of article 172.1.2 ° CP, punishing the details with the penalty of the primary paragraph in its higher half. Consequently, the penalty could be as follows: it will be 1 12 months, 9 months and at some point in jail to 3 years, or a fantastic of 18 months and at some point to 24 months. It may be seen that for penological functions, if the 2 precepts are in contrast, it’s virtually the identical penalty. And naturally, coercion is not going to go unpunished. Beforehand, a contest of guidelines between article 315.three CP and 172.1.2 ° was resolved in favor of the previous in accordance with the provisions of article 8.1 CP (precept of specialty).
Lastly, by advantage of the precept of retroactivity of the legal regulation favorable to the defendant supplied for in article 2.1 CP, and within the 2nd, fifth, sixth and ninth transitional provisions, evaluate of judgments could also be doable agency or last, through which the custodial sentence is imposed, relying on the length of the sentence, or whether it is suspended or not.