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Spain

Have any emergency powers been enacted in response to the covid-19 pandemic in your country? How long do they last, what are the provisions for extension/prolongation, what are the provisions for review?

The State of Alarm (Art. 116 Constitution: States of Alarm, Exception and Siege) was declared on 14-02-2020 (Royal Decree 463/2020, 14 March, declaring the State of Alarm in order to manage the health crisis caused by COVID-19). Constitutionally limited to 15-day periods, progressively extended up to 6 weeks and revised every 7 or 14 days. Last extension (until mid-June and progressively “relaxing” some restrictions as stages 0-1-2 are officially declared for every province is being proposed by the government and being approved by the Parliament.

Link: https://www.boe.es/biblioteca_juridica/codigos/codigo.php?id=355

Full list of legal enactments under Covid-19 crisis: https://www.boe.es/biblioteca_juridica/codigos/codigo.php?id=355&modo=2&nota=0&tab=2

Have any restrictions on public gatherings been imposed? How are they enforced?

All public gatherings were prohibited [see next item below] since March-14th. On May-11^th, bars/restaurants (only terraces/ outdoor tables) and shops/stores were allowed to re-open with practical preventive measures and restrictions on distances (2 meters between tables), numbers (4 customers per table/ one by one in shops), cleaning protocols, etc.

Have restrictions on leaving home been imposed? How are they enforced?

Strict orders were imposed regarding home confinement (14 March), although they have been implemented in a totally contradictory way, since confinement was declared at a general level and teleworking replaced face-to-face tasks in many economic sectors, while overcrowding was not prevented in public transports and a number of industries.

This conflict of priorities/interests between public health and businesses has been the underlying, implicit, and non-resolved key element of the management of the Covid-19 pandemic.

The structural dimension of this contradiction between the reasons for the emergency and the massive violation of public health restrictions can only be analysed in terms of social harm and state-corporate crime.

Children have been allowed to leave their homes and stay outside (1 hour a day) since April 27^th. In the current stage of the State of Alarm, a multilateral argument between state administrations and local governments raises regarding decisions on how to recover some activities and when to re-open schools, universities, etc.

Enforcement:

Art. 20: Failure to comply or resistance to orders from the authorities imply a sanction in the terms of:

- Organic Law 4/1981, 1 June, of the States of Alarm, Exception and Siege, whose Article 10 refers to:

• Gag Rule (Organic Law 4/2015, 30 March, to Protect Public Security)
• Law 17/2015, 9 July, on the National Service for Civil Protection
• Law 33/2011, 4 October, of Public Health
• Penal Code.

This implies a wide "menu" of possible sanctions (thus a high level of arbitrariness for security officers): police agents can qualify the same action or conflict as administrative or criminal. Administrative sanctions (minor, serious or severe) involve 100 to 600,000 euro fines. Criminal sanctions can imply 6 months to 4 years in prison + pecuniary sanctions (Penal Code, Articles 550 & 554: attack on authority); 3 months to 1 year imprisonment or fine (Arts. 556-1: disobedience and resistance to authority); or lower fines (Art. 556-2 CP: minor crime for lack of respect and due consideration to authority).

Exceptions to restrictions on leaving home are listed in article 7 (Limitation of freedom of movement for individuals):

1. During the term of the state of alarm, individuals can only use public areas in the following cases:
2. a) Buying food, pharmacy or basic goods.
3. b) Attending health centres, services, and establishments.
4. c) Attending workplaces for labour, professional or business activities.
5. d) Returning to habitual place of residence.
6. e) Assisting and caring elderly, minors, dependents, people with disabilities or especially vulnerable.
7. f) Attending financial and insurance entities.
8. g) Due to force majeure or a need situation.
9. h) Any other activity of a similar nature that must be done individually, unless assisting people with disabilities or other justified causes.

Likewise, the circulation of private vehicles on public roads will be allowed to carry out the activities referred to in the previous section or to refuel at gas stations or service stations.

Have any other new powers been granted to law enforcement authorities? (e.g. in the UK, to detain potentially infectious persons)

No specifically “new” powers are granted. Organic Law 4/1981, 1 June, of the States of Alarm, Exception and Siege (Art.11.a) establishes "limitations to the movement or permanence of people or vehicles at certain times and places, conditioned to the fulfilment of certain requirements", and that the Police can "practice temporary searches of all kinds of goods and impose mandatory personal provisions". Art.11.c invokes article 11 of Law 4/1981 on the possibility of "intervening and temporarily occupying industries, factories, workshops, farms or premises of any nature, with the exception of private homes, giving account of them to the ministries concerned”. Art 11.d empower the authorities to "limit or ration the use of services or the consumption of basic necessities". The Police Directorate orders its agents to "issue the necessary orders to ensure the supply of markets and the operation of services and production centres".

A police protocol issued on 16 March 2020 includes the steps that police agents must take in order to arrest an offender who may show symptoms of the disease, say that he/she has it or have been in "close contact with infected people" or in areas of "special incidence of the virus".

On 12-04-2020, the Ministry of Home Affairs informed the Congress about a project to provide National Police and Guardia Civil agents with 1.200 electric guns “so they do not have to use their firearms in certain situations.

Are the authorities making new use of telecommunications or other data?

The Spanish government will implement DataCOVID, a mobility study through anonymous data recorded by 40 million cellphones, and AsistenciaCovid19, an auto-diagnose app to geo-locate users and provide them with information on their local department (Spain is administratively divided in 17 “Autonomous Communities”).

In the Official State Gazette (BOE) of March 28, the Government reported on the launch of a user mobility study, to be carried out together with the National Statistics Institute (INE) and the main mobile phone operators in Spain. The objective is to analyze the effect of confinement measures during the covid-19 pandemic.

DataCOVID will try to identify if displacements between territories increase or decrease or if there are areas with a higher concentration of population in order to improve decision-making based on data. The agency in charge of carrying it out is the Secretary of State for Digitization and Artificial Intelligence (SEDIA).

Telefónica, Vodafone and Orange corporations will join DataCOVID project, which has already been tested in the Autonomous Community of Valencia and will use positioning data from the mobile devices that these companies will provide based on the coverage of their antennas and not with GPS.

The plan of the current SEDIA study is to cover the entire national territory, dividing it into 3,200 mobility areas, which will identify population groups of between 5,000 and 50,000 inhabitants. Position data analyzed will provide a sample of more than 40 million mobile phones throughout Spain.

On 13 April, minister of Home Affairs Fernando Grande-Marlaska declared that the government is discussing the possibility to use geo-location of private cellphones for law enforcement purposes and check compliance with the orders involving the state of alarm.

On 10 May, Spanish Health Minister stated that Spain is currently working with the EU in the development of geo-location applications “to combat Covid-19”.

Are there instances of law enforcement authorities exceeding powers? Can you provide a summary/ summaries?

In 2 months between 14 March (first day under State of Alarm) and 12 May, 8,003 people have been arrested and enforcement actions by police agents amount to 944,665 – which means around 50% more than all fines imposed in the previous 4 years under the Gag Rule of 2015.

During the first ten days under the State of Alarm (14-24 March), the amount of fines in Spain tripled those imposed in Italy in a month.

Anti Racist and HR organisations have raised the alarm about the rocketing of ethnic profiling, stop-and-search procedures and racist aggressions by police agents.

http://www.sosracisme.org/comunicat-control-i-abus-policial-en-ple-estat-dalarma-pel-covid-19

On 16 April, the Ministry of Home affairs sent a communication to all departmental delegations of the government (Delegaciones del Gobierno) in order to ‘guide and adjust’ the application of fines with regard to police interventions on those who disobey the order of general confinement. Fines amount to 601 - 10,400 euro as stablished by Organic Law to Protect Public Safety – also known as Gag Rule. The Ministry "finds convenient to provide its delegations with a template to impose sanction proceedures for offences of disobedience to authority – Art. 36.6 of OL 4/2015, i.e. Gag Rule, which was approved in 2015 and the current government promised to repeal.

Have any restrictions been placed on the media, or instructions handed down to media organisations, regarding reporting on the pandemic?

A government campaign (“We’ll stop this virus together”) to recall the basic preventive measures all individuals must take and practice is being broadcasted in all media, along with the campaign “I stay home”, promoted by show business celebrities and sportsmen/women.

The campaign “We’ll stop this virus together” (Este virus lo paramos unidos) is publicly funded and amounts to 4,5 million euro.

In the midst of the financial crisis (2011), the campaign “We can only fix this together” (Esto solo lo arreglamos entre todos) was funded by Seopan (the Spanish large-construction companies' organization) and the major IBEX35 (Spanish stock market) corporations, also supported by the Chambers of Commerce.

What (if any) role has been given to the military?

Art. 5. Collaboration with competent delegated authorities

6: For the effective compliance of the measures included in this royal decree, the competent delegated authorities may require the action of the Armed Forces, in accordance with the provisions of article 15.3 of Organic Law 5/2005, of November 17, of National Defence.

Art.15. Measures to guarantee food supply.

2. Likewise, the competent authorities may agree on the intervention of companies or services, as well as the mobilization of the State Security Forces and the Armed Forces in order to ensure the proper functioning of the provisions of this article.

Fifth additional provision. Character of agent of the authority of the members of the Armed Forces.

In accordance with the third additional provision of Law 39/2007, of November 19, on the Military Career, in relation to articles 15.3 and 16 e) of Organic Law 5/2005, of November 17, on National Defence, the members of the Armed Forces in the exercise of the functions provided for in this royal decree shall be agents of the authority.

The Army tried to impose 23 fines in Fuerteventura - which implies violating its powers under the state of alarm. The Government Delegation in the Canary Islands has not processed those sanction proposals raised by the military:

https://www.eldiario.es/politica/Ejercito-intento-Fuerteventura-vulnerando-competencias_0_1014898940.html

The warlike narrative permanently developed by the state authorities depicts the virus as an “enemy” who threatens “the nation”. General Villarroya stated that "we are all soldiers" at a press conference with the representatives of other Ministries. The official leader of the Spanish Army, king Felipe VI (who in turn has to deal with a recent scandal involving the prosecution by Switzerland Attorney against his father Juan Carlos I for money laundering and tax evasion), has joined some official acts and attended some civil facilities in his military uniform, while General Villarroya publicly emphasized that “our King is the first Spanish soldier”.  

Postscript on prisons 

“Prisoners from Nelson Mandela Unit in Teixeiro Prison are manufacturing face shields to protect firemen and police officers in A Coruña province. 2,000 masks have been assembled with materials donated by a company to the city of A Coruña”.

(Published by Spanish Ministry of Interior)

On 13 May, the Spanish Government answered a parliamentary inquiry submitted on 24 February regarding the cases of torture in Spanish prisons. According to state official records, 950 cases took place between 2010 and 2019. According to the Coordination for Torture Prevention and Denouncement (civil society network), 3,602 cases of aggressions, tortures or mistreating affected 9,085 people between 2004 and 2017.

Legal – and illegal - judicial and disciplinary measures taken in prisons under the current Covid-19 pandemic have extended the structural dimension of harm to an even broader level, which makes almost impossible to describe their consequences on the fundamental rights of the prison population – https://www.apdha.org/iipp-no-adoptado-recomendaciones-oms-y-consejo-europa/ (dozens of organisations denounce that Penitentiary Institutions has not adopted the recommendations made by WHO and European Council); https://www.who.int/news-room/detail/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings

Information on this contribution

Contributors: Iván Montemayor (EG Spain/Catalonia nat. rep.) (ivan_md4 [at] hotmail.com), Alejandro Forero (EG Fear & Looting in the Periphery WG) (aleforero [at] ub.edu), Daniel Jiménez (EG co-coordinator) (djf [at] unizar.es)

Date: Received on 18 May 2020