By Defender a quien Defiende

On 13 March, the Spanish President Pedro Sánchez declared the state of alarm which lasted until 24 June after three extensions approved by the Congress of Deputies. Any activity not related with the food supply chain, transportation, or critical infrastructures, such as power plants, was ceased and freedom of movement was restricted.

This state of alarm brought plenty of uncertainties to the citizenship in many different areas and the government was unable to provide satisfactory answers. Citizens know that freedom of movement has been temporarily restricted but were not provided with the proper information to know whether specific activities were permitted or not. For example, the state’s framework was rather discriminatory because it did not take into account the situation of more than 500,000 people with non-regularized administrative situation and those affected by the Immigration Law. These people, among others who work in essential services such as care work, domestic work and agriculture were not able to objectively prove the need to displace or commute. Therefore, the citizenry remained in a situation of legal insecurity resulting from ambiguous regulations, extensive powers for police authority, a history of impunity for human rights violations and a discriminatory framework.

One million sanctions

Since the very beginning, the health crisis has been framed in a securitarian way, encouraging the application of punitivism and repression as the main solution. Differently from other countries, Spain did not develop an ad hoc legislation to enforce the restrictive measures during this state of alarm: the legislative framework introduced in 2015, through the amendments to the Penal Code and the Citizen Security Law (known as “Ley Mordaza”, “Gag Law”) was already restrictive enough. For example, police agents used the article 36.6 of Ley Mordaza to sanction people who breached some kind of restriction under the State of Alarm with fees ranging between 601 and 30,000€ for “disobedience or resistance to the authority or its agents in the exercise of their functions”. As a result of the unclear instructions to the population, the ambiguous and restrictive law, and the lack of clear, unequivocal protocols for the law-enforcement authorities, 1,013,000 fines were issued and 8,500 people arrested as of 15 June.

In addition, different organizations have been compiling visual evidence of different police actions against people on the street, which have proved repeated arbitrariness on the sanctions and excessive use of force during identifications and arrests.

Since the very beginning of the state of alarm, Defender a quien Defiende has been working to denounce any kind of malpractice and to ensure rights are preserved.  As of 12 June, the organization has registered 237 different incidents concerning police actions, more than 100 being directly reported through the organization’s own communication channels. Of these registered cases, 61 featured ill-treatments, 50 sanctions with the corresponding written statement. More than 100 cases involved identification with a possible sanction but without the written statement as required by the law. Such cases have been majorly proven thanks to visual recordings by citizens showing clear abuses and violations of rights, ranging from random identifications, detentions, and arrests; ill-treatment, threats to shoving, beatings, slaps, kicking; and irregular immobilizations. In general, these were disproportionated actions.

Defender a quien Defiende condemned and denounced the situation and sent several complaints exposing the situation and the irregularities in different police actions to the Interior Ministry demanding further investigation. The Interior’s Ministry responded that the demands would be studied by the General Police Direction to “adopt the appropriate measures” in relation to these recordings. However, the Interior Ministry published a unifying guide for the sanctions during this state of alarm indicating to start the sanction’s proceedings even without an explicit order by the agent prompting an explicit disobedience act. In other words, the guide is to sanction mere conduct instead of actual disobedience.

The right to peaceful assembly and protest

With the declaration of the state of alarm the right of assembly and demonstration recognized in Article 21 of the Constitution had not been suspended. The state of emergency does not allow for the suspension of any fundamental rights, but it allows to adopt some limitations or restrictions to its exercise. It was therefore possible to call for a demonstration within the legislative framework previously in force.

In occasion of the celebration of 1 May, several trade unions requested to be able to hold rallies or demonstrations following the sanitary requirements, such as by car,  ensure the use of masks, limit the number of demonstrators, etc.

In some areas, the demonstration was banned, leading to a court ruling, while in others, it was not, with the possibility of celebrating the May Day commemoration, as it was the case in the Basque Country, with several protest caravans.

As a result, there were pronouncements by various High Courts of Justice on the subject, including the Constitutional Court. Specifically, the following:

  • In Galicia, the Court considered that the ban was legitimate for health reasons and the risk of contagion;
  • In Catalonia, the Court did rule whether the prohibition was legitimate, it only established that the communication should have been done by the central Government delegation, not the Autonomous Government of Catalonia.
  • In Aragon, the Court found that the ban was not legitimate because the right of assembly and demonstration is not suspended, and there are less restrictive measures (such as obliging the use of closed vehicles, the use of masks, etc.) that ensure the right to assembly is compatible with the health measures.

Faced with the ban in Galicia, the trade union took the matter to the Constitutional Court. The Constitutional Court confirmed the concrete prohibition of such a gathering because of the risk of contagion (Order of 30 April 2020, Appeal for protection 2023-2020). This does not mean a general ban on rallies and demonstrations, but it does mean that the position of the Constitutional Court is especially restrictive.

The High Court of Justice of Aragon ruled that ” (…) Thus, it shall be possible to limit citizens’ movements to a greater or lesser extent, but never to prevent the right to demonstrate freely. As we said, if the state of emergency contemplates the possibility of suspending the free movement of the citizen, while leaving the right of assembly untouched, it is clear that an exceptional state of much lesser intensity such as this one cannot justify any restriction of this right” (Sentence 151/2020, 30 April). Although not under the same circumstances as in Spain, the German Federal Constitutional Court has ruled in a similar way. Specifically, in the decision of 15 April 2020 on the banning of demonstrations in the city of Giessen, it recalled that restrictions on mobility cannot lead to a general ban on assemblies.

Knowing your rights to avoid their violation

In view of this situation, different materials have been developed for self-protection and the safeguard of civil and political rights. The context of the health crisis posed significant challenges when talking about the protection of human rights. However, it is fundamental for people to know their rights and why they have them. This raises awareness on when to demand their compliance and on the importance of a human rights framework in the implementation of public policies or security measures.

Defender a quien Defiende has created several tools to confront different ways human rights are violated during the state of alarm:

Along with all this, a network of different human rights and anti-repressive organizations has been fostered. An e-mail address was set up for people who had been identified by the police or who had received a proposal for administrative sanctions in order to offer legal support and to facilitate legal channels for reporting ill-treatment by the police. All this was accompanied by different media campaigns with great impact on mass media such as digital newspapers and television channels, even reaching the Spanish public television.

In times of fear, community is safety

Social movements have been essential during the most critical moments of the health crisis. Those who have been working on the right to housing have focused their efforts on organizing a rent strike: “If we don’t get paid, we don’t pay”, taking into account the job losses and the reductions in working hours that have been generated, affecting people’s purchasing power. On the other hand, a whole movement has been generated demanding urgent measures to alleviate the economic and social crisis that will come and that will affect those people who were already living in precariousness and had been made vulnerable much more: Social Shock Plan was the campaign that is still working.

Finally, it was the social movements that put their infrastructures, knowledge and contacts into the creation of support networks in different neighborhoods of the most overcrowded cities in Spain, covering the deficiencies of the public aid networks. Thanks to the self-managed networks, families who were left with nothing after the lockdown were able to access food, children have been provided with school materials to follow their classes and help and attention has been promoted for the elderly by doing their shopping and not leaving them alone.

Some demonstrations have taken place despite the restrictions. Movements against male violence, environmental movements and rallies for public health, basic income and anti-fascism. All of them following the security measures that were reported when people started to be allowed to go out on the streets with time restrictions.