The enormous shock caused by COVID-19 should lead us to assess its impact on our system of guarantees, rights and freedoms. It is a test of the strength of our institutions, the mechanisms to control power and the possible excesses of state actions.

Doubts surround the Spanish legal framework

The main legal framework in Spain raises a number of doubts. The decree on the state of alarm and the lockdown based on it has put huge restrictions of the fundamental right to freedom of movement. Legal experts have questioned whether it complies with article 11 of Organic Law 4/1981. The debate focused on whether this regulation of the state of alarm fits in with the idea of freedom with limits (in accordance with the organic law) or rather implies confinement with exceptions (contrary to legal regulation, as argued by the most critical jurists of the decree). We must not forget that the nature of the provisions of the state of alarm essentially remove the freedom of assembly and the right to protest.

State of alarm vs. state of emergency

The jurists who disagree with the regulation of the state of alarm argue that the limitation of fundamental rights it entails only fit in with a declaration of state of emergency. This is very debatable because in that case, the cure could be worse than the disease. A state of emergency is intended for cases of serious disturbance of public order and would allow the government to suspend fundamental rights. In the current crisis, the legal framework for the state of emergency would not be appropriate, since it would grant the executive branch disproportionate powers, without legal authorization, which would be clearly unconstitutional. On the other hand, the organic law does contain an express provision of the state of alarm for situations linked to epidemics. The conclusion would be that current legislation makes it possible to declare a state of alarm in the present case, but has not delimited precisely all the possible situations that affect freedom of movement in an epidemic, probably due to the lack of immediate precedents.

What is best for citizens?

In view of these doubts about delimitation, it is necessary to consider whether the content of the declaration on the state of alarm is essentially in line with the legislation and the existing health emergency. The question that needs to be asked is whether the measures are best for citizens, from a public health protection perspective. And the answer is that there is not much of an alternative to the lockdown. The measures are backed by extensive scientific advice and supported by the World Health Organisation and many other countries have approved similar measures.

Therefore, the existing doubts can be resolved because the measures essentially meet the criteria of justification, necessity and proportionality. If we consider full freedom of movement to be preferable, this would collide with the right to physical integrity and the right to life of other people, so the measures of the state of alarm have sufficient legal and constitutional background. In any case, we are faced with a dubious, legally controversial scenario, which requires a certain degree of restraint when implementing the state of alarm measures.

Military presence is a step too far

The official scenario adopted has not, however, taken the most appropriate direction to favour this recommendable containment. The presence of senior police and military officials during ministerial appearances, some of whom have made unfortunate statements, stimulates the perception of a general framework that prioritizes public order over freedoms. The widespread use of war metaphors, references to civic militarization or the active presence of the army in the cities is also lamentable.

The government has accompanied a militarized rhetoric with the defence of a single official truth and insufficient information. In addition, the suspension of the transparency website has emphasized these deficiencies. Even more disturbing are the warnings about police monitoring of social networks, which can lead to the classification of what usually is just harsh political criticisms into hate crimes. Of course, the right to disseminate information does not include the dissemination of toxic hoaxes, but the role of the executive branch is not to decide on the dissemination of content. Its role is to increase the flow of information.

Disproportionate use of force

In recent weeks numerous videos showing unnecessary or disproportionate use of police force against people in the street have been circulating in social media. Because protecting public order has been emphasised so highly, these inappropriate interventions by the security forces have been dangerously backed up by some citizens. Although police excesses have not been widespread, they should have been immediately condemned by the authorities, because silence may imply consent.

In this context, the Ministry of the Interior has allowed security forces to sanction people that violate confinement measures. These sanctions include issuing proposals of penalties for minor disobedience, even if officers have not issued a prior order to the person concerned. Such a wide interpretation does not seem to fit the provisions of Article 36-6 of the Public Safety Act. In fact, it contradicts a previous instruction by the Ministry of the Interior itself, issued before the state of alarm came into force. It is not surprising that the Solicitor General's Office has formulated solid legal objections to this interpretation by the Ministry of the Interior. The effect on freedoms are clear when we realise that law enforcement officers have imposed more than 600,000 proposals for sanctions, in addition to many arrests (which seem difficult to justify in the absence of a crime).

Another striking excess is the imposition of the products in the shopping basket, with curious lists in which ice cream is included as an "essential food product", but not chocolate. Other strange prohibitions enforced by the police include being on rooftops or in common areas of buildings, despite the fact that this restriction is not regulated in the decree. These decisions and similar ones demonstrate the high risks of aproving very open and poorly defined regulation. The result is that law enforcement forces may end up becoming a legislative power de facto, with all the breaches it entails for legal certainty.

In this same environment, in which some rights seem to become liquid, there have been several judicial rulings that agree on the conviction of the crime of grave disobedience without the prior requirement of the agent (despite the indicated jurisprudence). In another case, a court ruled the prohibition of entering a town for an individual that commited a hypothetical hate crime which consisted in publishing a video in which he claimed that he was going to travel to that town and infect its neighbours (despite the connection of the aforementioned criminal offence with specific vulnerable groups).

The catalogue of dubious actions can be completed with announcements of possible confinement of people infected in hotels or sports halls, even against their will (without clearly specifying which would be the judicial intervention in these cases). Or the adoption of certain measures of geolocalization of citizens intended to protect public health: although they are currently applying an anonymised processing of data, there is a relevant risk of a subsequent use that can violate the fundamental right to privacy, thus requiring special surveillance of these initiatives.

All this has an important impact on the freedoms. Although we cannot share the apocalyptic admonitions about the democratic system or the rule of law being at risk. Neither should we underestimate the serious regressions in terms of rights that are occuring, especially as the emergency situation may be prolonged. Even less should we ignore the fact that regressions often tend to become consolidated. Justifications arguing that we are in a situation of exception are not acceptable. Rights are constituted especifically to limit power in situations of exceptionality, as in ordinary circumstances there is less incentive for state excesses. We must continue to insist that it is absolutely possible to act against the pandemic with the utmost respect for our system of guarantees, rights and freedoms.

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