The health, stupid. Thoughts on Spain in state of alarm and the limitation of fundamental rights.
Joaquín Sarrión Esteve
Ramón y Cajal Senior Research Fellow.
On 14 March 2020 Spain entered in the constitutional state of alarm (Estado de Alarma), according to the article 116(2) of the Spanish Constitution for the second time in the recent Spanish democratic history (there was another state of alarm declared on 4th December 2010, as a result of the so called air traffic controllers strike crisis).
The Spanish Government approved the Royal Decree 463/2020, of 14 March, declaring the state of alarm for the management of the health crisis situation caused by COVID-19 (hereinafter RD 463/2020, later modified by Royal Decree 465/2020, of 18 March, hereinafter RD 465/2020), after the insufficient first measures taken by Autonomous Communities Health Authorities under the provisions of Organic Law 3/1986, of 14 April, on Special Measures in the field of Public Health.
The Government declaration of the state of emergency was for 15 days, until the 28 March 2020. The Congress of Deputies approved on 25 of March, to extend the period other 15 days, until 12 April of 2020. Moreover, on 29 March 2020, the Spanish Government approved additional urgent measures to lockdown of all non-essential activities in Spain with the Royal Decree 10/2020, of 29 March, which regulates a recoverable remuneration permission for employed persons who do not provide essential services, in order to reduce the mobility of the population in the context of the fight against COVID-19.
It is well known the health situation of emergency that the breakdown of the novel SARS-CoV-2 or COVID-19 virus has caused at the international level, and in several countries in Europe. The World Health Organization declared the health emergency as a pandemic on 11 March 2020, and some days after, the Spanish Government declared the state of alarm in Spain on 14 March 2020, certainly after a majority social and academic demand in social media.
The Spanish Constitution contemplates the exceptional states: state of alarm, state of exception and the state of siege (martial law) in art. 116 to deal with exceptional situations which, on a temporary basis, enable the adoption of measures to limit (in all three cases) or suspend (in the cases of the states of exception and the state of siege) fundamental rights[i]. According to the Spanish Constitution the state of alarm[ii] is declared by the Spanish Government, certainly subject to the control of the Spanish Congress of Deputies, which must also approve the extension of the state of alarm, while the declaration of the states of exception and siege is a power reserved to the Congress of Deputies.
Therefore, the state of alarm doesn’t provide constitutional cover to suspend rights, only to adopt limitative or restrictive measures to them. The legal regime is developed in the Organic Law 4/1981, of 1st June , of the states of alarm, emergence and siege (hereinafter OL 4/1981), proceeding to declare it when extraordinary circumstances “make it impossible to maintain the normality through the ordinary powers of the competent Authorities ”(art. 1.1 LO 4/1981).
Until the declaration of the state of alarm, the health authorities, particularly the autonomous ones, adopted restrictive measures on rights, based on the ordinary powers attributed in article 3 of the Organic Law 3/1986. This sparked a discussion in the doctrine on the scope and limits of these ordinary powers to adopt rather extraordinary restrictive measures (see Doménech Pascual, 2020; Nogueira López, A. and Doménech Pascual, 2020).
The state of alarm[iii] is foreseen for a situation of “social abnormality” (Gómez Sánchez, 2018: 267), including precisely the “health crises, such as epidemics and serious contamination situations” (art. 4.b of OL. 4/1981), as we the situation we are liven. The Government can declare the state of alarm in part or in all the national territory (article 4 OL 4/1981), with a Decree approved in the Council of Ministers, which will determine the territorial scope, duration and effects of the state of alarm, not exceeding fifteen days, and may be extended with the express authorization of the Congress of Deputies, which could establish the scope and conditions in force during the extension (article 6 OL 4/1981).
Extension, territorial scope and competent authorities.
The RD 563/2020 has effects from the moment of its publication, that is, from 14 March until 28 March, i.e., for fifteen calendar days (article 3), and extends the effects to the entire national territory (article 2) “in order to face the health emergency situation caused by the coronavirus COVID-19” (article 1). It is important to note that the Congress of Deputies has approved and extension of 15 days, on 25 March 2020, so the extension is until 12 April 2020.
The Government is the competent authority in Spain after the declaration of the state of alarm(art. 4.1 RD 463/2020; in accordance with art. 7 of OL 4/1981, although in an eventual case of a limited territorial situation of state of emergency the competence can be attributed to the President of the corresponding Autonomous Community). Within the Government the RD 463/2020 on the declaration of the state of emergency stipulates that the competent authorities are, under the “superior direction” of the President of the Government, and in the respective areas of responsibility a) The Minister of Defense, b) the Minister of the Interior, c) the Minister of Transport, Mobility and Urban Agenda, and d) the Minister of Health; assuming residual powers the Minister of Health. These ministers are empowered to issue orders, resolutions, provisions and interpretive instructions, by adopting the measures provided for in art. 11 of OL. 4/1981, being able to be adopted ex officio or at the motivated request of regional and local authorities (art. 4.3 RD 463/2020).
In addition, a special supervision committee, provided for in the First Additional Provision of Law 36/2015, of September 28, on National Security, is activated as an organ in support of the Government.
Certainly, one can guess if an equal answer for the whole Spanish territory is adequate to fight against COVID-19, or the measures could be, or better say must be, different attending to the differences in the situation of the expansion of the virus pandemic between Spanish regions, and in metropolitan and rural areas. But the political response to the COVID-19 in Spain has follow the principle of an unitary and equivalent response in the whole territory, most times following the urgent demands of additional and stronger measures asked by the regions with biggest problems (particularly Madrid and Catalonia), instead of adopting a more miscellaneous approach. It is interesting, in fact, that the declaration of the state of alarm come after the adoption of strong measures taken by some regions as La Rioja, Catalonia, Extremadura or Murcia, which confined populations (see Nogueira López, A. and Doménech Pascual, 2020).
Moreover, although Spain is a decentralized country and the health powers (with the exception of basic and coordination measures) correspond to regions, after the declaration of the state of emergency the power is centralized in the Spanish Government, and therefore, the regions can only adopt measures with the approval of the Spanish Government. Nevertheless, it is true that the declaration of the state of alarm ratified the previous regional measures, and there have been at least until today, some diversity in the developing and execution of the measures by regional authorities, particularly in the application of the health protocols.
Measures adopted within the declaration of the State of Alarm
The declaration of the state of alarm allows, in accordance with the provisions of art. 11 OL 4/1981, the following measures: a) to limit the movement or permanence of people or vehicles at specific times and places, or conditioning them on compliance with certain requirements; b) the practice of temporary requisitions of all kinds of goods and impose compulsory personal services; c) to intervene and occupy -temporarily- occupy industries, factories, workshops, farms or premises of any nature, with the exception of private homes, reporting to the ministries concerned; d) to limit or ration the use of services or the consumption of basic necessities; and finally e) to issue the necessary orders to ensure the supply of the markets and the operation of the services of the production centers affected by shortages of basic necessity products.
The declaration contains different measures from those provided in art. 11 of LO 4/1981, including the limitation of the freedom of movement of people (art. 7 RD 463/2020), temporary searches and mandatory personal benefits (art. 8 RD 463/2020), measures of containment in the field of education and training (art. 9 RD 463/2020), containment measures in the field of commercial activity, cultural facilities, recreational establishments and activities, hospitality and restaurant activities, and other additional (art . 10 RD 463/2020), containment measures in relation to places of worship and with civil and religious ceremonies (art. 11 RD 463/2020), measures aimed at strengthening the National Health System throughout the national territory ( art. 12 RD 463/2020), measures to ensure the supply of goods and services necessary for the protection of public health (art. 13 RD 463/2020), transport measures (art. 14 RD 463/2020 ), measures to guarantee the supp food foundation (art. 15 RD 463/2020), customs transit (art. 16 RD 463/2020), guarantee of electricity supply, products derived from oil and natural gas (art. 17 RD 463/2020), critical operators of essential services (art . 18 RD 463/2020), media of public and private ownership (art. 19 RD 463/2020); establishing also a provision of sanctioning regime that refers to the current legislation and in accordance with LO 4/1981.
Measures complemented, in addition, with the important suspension of procedural terms (second additional provision RD 463/2020), suspension of administrative terms (third additional provision RD 463/2020), and the suspension of statutes of limitations and expiration of actions and rights (fourth additional provision RD 463/2020).
Nevertheless, the measures adopted allowed to continue with activities which can be developed by telematic ways (as education, Universities), but only in these ways. And allowed some industrial non-essential activities, as for example, construction. Some Regions as Catalonia or Murcia asked for strength the measures and close all non-essential activities, a lock down or shutdown all any activity which is not essential (health, food, etc.), at least in their territories, as Catalonia and Murcia, but the reality is that after the declaration of the state of alarm the regions governments can’t use the powers of the Organic Law 3/1986, of 14 April, on Special Measures in the field of Public Health, to close more activities, precisely due to the state of alarm and the centralization of emergency or extraordinary powers at the national level. But finally, and after the pression of the opposition and regional demands, the Spanish Government approved a shutdown of all non-essential activities, using the RD 10/2020.
We are facing a strong health global crisis and we need to take strong measures to fight the epidemic. I really think that any citizen understands that the priority, today, is health. We can say: The health, stupid. I mean that the health is more important than the Economy, without the protection of (Public) health it is impossible to hold and support our occidental economies. However, it is important to guarantee the Rule of law and legal security in times of crisis, also in health and pandemic crisis like this one we live today. This is also applicable to an emergency state situation, covered but also limited by constitutional rules. Particularly, it is very important to overview and control, from the perspective of constitutional guarantees and fundamental rights protection, any limit to fundamental rights developed by the competent authorities.
I want to collect the most part of legal scholars contributions on COVID-19 Spanish respond (Sarrión Esteve, 2020), because I think that it is very important to study, from a legal perspective, the legal response to the crisis.
I am sure that we, as a society, will overcome the COVID-19 crisis, I hope we will also look to a mirror to see our better selves.
Doménech Pascual, G. (2020), Competencia autonómica para adoptar medidas de contención, Derecho público del coronavirus (i), Almacén del Derecho, 14/03/2020, https://almacendederecho.org/derecho-publico-del-coronavirus-i-competencia-autonomica-para-adoptar-medidas-de-contencion/
Gómez Sánchez, Y. (2018), Constitucionalismo Multinivel. Derechos Fundamentales, Sanz y Torres, 3ª edición.
Nogueira López, A., y Doménech Pascual G. (2020), Fighting COVID 19 – Legal Powers and Risks: Spain, Verfassunglblog on Matters Constitutional, 30/03/2020, https://verfassungsblog.de/fighting-covid-19-legal-powers-and-risks-spain/
Sarrión Esteve, J. (2020), Coronavirus & Law, https://iurisprudentia.net/coronavirus-law/
[i] Article 55 provides the possible suspension of several fundamental rights in the cases of a declaration of the state of exception and the state of siege (martial law): rights to freedom and security, the maximum detention period of 72 hours, the habeas corpus (article 17 (1,2, 4), the inviolability of home and the secrecy of communications (article 18(1,2), the right to free movement and to choose the place of residence freely within the national territory (article 19) and the right to freely express and disseminate thoughts, ideas and opinions (article 20(1a)) and the right to freely communicate or receive accurate information (press freedom, article 20(1d)), the guarantee that requires a court order to the confiscations of publications and recordings (article 20(5)), the right to peaceful unarmed assembly (article 21), the right of workers to strike (art. 28(2)), the right of workers and employers to adopt collective labour dispute measures (article 37(2)); and the possible suspension of the rights of a person arrested (including information rights and the assistance of a lawyer) only in the case of the declaration of siege.
[ii] The state of alarm is regulated in the paragraph two of article 116. Article 116.2 of the Spanish Constitution, available in English here: https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf
A state of alarm shall be declared by the Government, by means of a decree decided upon by the Council of Ministers, for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately for this purpose. Without their authorisation the said period my not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply.
[iii] The state of alarm is regulated in the paragraph two of article 116.
Article 116.2 of the Spanish Constitution, available in English here: https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf
A state of alarm shall be declared by the Government, by means of a decree decided upon by the Council of Ministers, for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately for this purpose. Without their authorisation the said period my not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply.COMMENT