On March 14, which already seems a long time ago, the Council of Ministers approved the Royal Decree 463/2020, by which they declared a state of alarm. During this exceptional situation the executive power can limit, to some extent, our fundamental rights, but never suspend them. This is the second time that a state of alarm has been declared in Spain. The first time was during an air traffic controllers strike in 2010 when the army took control of their work.

This decree regulates a series of logistical issues, such as the closing of shops, the prohibition of going out onto the street without a justified reason and the mobilization of the army, among other things. However, the most relevant part for lawyers who are constantly in and out of court is without doubt, the Second Additional Provision, which establishes the following: "Terms are suspended and the time limits provided for the procedural laws for all jurisdictional orders are suspended and interrupted". In other words, all judicial activity is completely paralyzed.

The next paragraph mentions a number of exceptions to this shutting down of the criminal justice system: "the suspension and interruption shall not apply in habeas corpus proceedings, proceedings regarding duty services or with detainees, restraining orders, urgent prison surveillance proceedings and any precautionary measures regarding violence against women or minors."

In other words, the Decree clearly states that duty services must be maintained. However, even though crime is down by 50%, the police continue to detain people and arrests for disobeying the state of alarm are increasing. It is intolerable, in a state that respects the rule of law, that such deprivations of liberty are not subject to jurisdictional control. Consequently, all detainees have the right to appeal the legality of their detention before a judicial authority and to declare before a judge and defend their rights.

The Decree also stipulates that "in the investigation phase, the judge or court may agree to conduct proceedings which, due to their urgent nature, cannot be postponed". Therefore, both the duty services and the freedom given to the judge to carry out urgent investigation proceedings, safeguard the right of defence.

However, theory and practice do not always line up, and sometimes we encounter obstacles to the exercise of an adequate defence. There are four main reasons for this: (1) lack of resources, (2) failure to process urgent procedures (3) legal uncertainty and (4) the culture of punishment or the criminal law of the enemy that is emerging.

1. A lack of resources

A lack of resources has been one of our Administration of Justice’s biggest problems for years now. There is a lack of staff, new facilities, up-to-date computer equipment, specific training for judges and prosecutors and a long list of other shortcomings. And now, in the midst of this pandemic, basic individual and collective protection is also lacking.

Lawyers are being asked to help detainees at police stations and in courts, which are – by their nature – closed places, without providing us with gloves or masks. If we want to preserve our health, we must avoid getting close to our defendants – not to mention physical contact – and spend as little time as possible with them (making it hard to create a climate of trust with our clients so that they feel comfortable enough to tell us their version of the events in detail).

This generates a sense of unease and distrust among detainees, who are not only deprived of their liberty, but also realise that their defence may suffer.

For their part, some judges and prosecutors (who themselves often keep a certain distance from detainees when they testify before them), will seek to dispatch detainees more quickly, which may result in less willingness to hear the full version of the defence.

For these reasons, a few days ago, three of the four main judges' associations sent an urgent letter to the Permanent Commission of the General Council of the Judiciary warning that they will not provide the duty services that remain open if they are not provided with real means of health protection.

2. Failure to process urgent procedures

As I have already pointed out, the decree allows judges to agree on the practice of any urgent procedure that cannot be postponed. On paper this is irreproachable. But in practice it is not easy to achieve, bearing in mind that the courts are only maintaining minimum services and that the definition of "urgent" may vary from one judge to another.

Let me give a real example that happened to me recently. The police arrested a client of mine. They accused her of assaulting an officer, which she firmly denies. She was brought before a magistrate and then released. We explored the place of her arrest and discovered the existence of video surveillance cameras. In other words, the police intervention might have been recorded and there may be evidence to prove her innocence. Two weeks ago, I asked the Investigating Court to request the recordings from the City Council, but my letter is not being processed. This is undoubtedly urgent, since, according to our legislation, the images have to be deleted no later than one month after being recorded if no judge requests them first. That is why, a few days ago, I asked a court on duty to request them, but they denied the request, alleging they have no competence. This means I will have to repeat the request ad nauseam or risk losing evidence that is vital to the interests of my client.

The paralysis of the courts is having undeniable consequences on the right to defence. Evidence can disappear, or lose quality. And I am not just referring to recordings. As time goes by witnesses may gradually forget details they perceived at the time of the events, to the point of losing credibility or effectiveness.

Certainly, the accumulation of cases that we will find ourselves with once we return to normal will cause a greater delay than that which, unfortunately, we are already suffering in our judicial system, with the consequent degradation of the value of the body of evidence.

3. Legal uncertainty

Although the cause I referred to in the previous section is not attributable to the state of alarm decree, this third reason is: my office is receiving multiple cases of citizens who the police want to sanction on subjective and arbitrary grounds, that is, not provided for by the Law, due to the great confusion that exists both amongst citizens and law enforcement, about what is legally enforceable and what is not.

For example, we have received calls from citizens who have been stopped by the police on their way to work and were asked to show a certificate from the company that confirms their functions and working times, but they didn't have one. When they explained this to the police, the officers opened sanctions. It is certainly desirable to carry a certificate, as it can make life easier for all of us, but there is no obligation to do so.

The Royal Decree of 14 March established a general prohibition on going out onto the street, except in certain exceptional cases (such going to work, to buy food or pharmaceutical products, among others), but it does not impose the obligation to carry a company certificate, thus, it cannot be required at a police stop.

Likewise, it states that "when moving in public spaces the recommendations and obligations dictated by the health authorities must be respected", but these have not been determined and we are not obliged to know. More legal insecurity is bound to ensue, fuelled by the lack of concrete protocols in the state of alarm, the spread of rumours, fake news and hoaxes on the Internet and a general the state of nervousness. Nervousness, by the way, which brings me to my fourth and final point.

4. The culture of punishment

Finally, I would like to mention the dangerous culture of revenge and punishment that is flourishing in our society.

A few days ago, a video of a young man arrested by the police in Valladolid circulated on social media. Apparently he was on the street without justification, which denotes a lack of solidarity on his part. However, this was not the most worrying aspect of the images: after arresting the young man, who's attitude is absolutely peaceful, an officer slaps him several times in the face and calls him an asshole.

Far from denouncing this intolerable behaviour by a law enforcement officer, social media got heated with messages supporting the officer. "Good job", "those are the slaps his parents should've given him", "that's how you educate scum", "if I was there I'd give him two more" and "some people don't understand other language" are a small sample of the tweets that followed the video. No one denies the police abuse, instead it is celebrated, because it is directed towards a "son of a bitch", an "irresponsible" who "puts us all in danger" and "does not respect us" (sic).

A lot of hate is being generated. In the midst of the pandemic, society doesn't perceive the offender as a fellow citizen who has made a mistake that must be corrected, but as an enemy, a subject who must be neutralised by any means possible. And this leads to police and judicial excesses which certainly threat the right of defence that make us forget the axiological horizon of punitive law, which is the social reintegration of those who have not respected the law.

The right of defence is the opportunity we have to defend ourselves before the courts from the charges against us, with full guarantees of equality and independence (as long as other rights are respected, such as effective judicial protection, judicial impartiality and the presumption of innocence). If the defence has been effective, the sanction will be proportionate to the harm caused. Without defence there is no fair trial. By exercising this right, we are not only defending a specific person, we are simultaneously defending the rights of all citizens. But if our neighbours support the excesses, we are opening the door to ending all the judicial guarantees to which we are entitled.

Let us hope that this fear, insecurity and nervousness is temporary. Otherwise, we are heading towards an authoritarianism that may end up undermining all the social and procedural rights that we have worked so hard to conquer.

This article was published originally on Rights International Spain's blog