Judiciary casts doubt over lockdown fines. | A. Sepulveda


More than 13,000 people have been fined by the National Police and Guardia Civil for breaching the coronavirus State of Emergency, but there are growing doubts amongst the judiciary about their legality.

Most of the sanctions are still pending because the Government Delegation has only processed around 500 of the most serious ones, such as disobeying a direct order from an Officer. 350 of those are in Majorca.

There is real fear in judicial circles that these cases will end up in a jurisdiction that is already at saturation point and that the fines were imposed for non-compliance with the coronavirus lockdown rules, without there having been a previous order from the Security Forces.

Felio Bauzá, Professor of Administrative Law at the UIB and a Member of the Consell Consultiu, points out that the Royal Decree establishing the State of Emergency does not set a table of sanctions, but refers to the Organic Law governing the lockdown and hence, in a generic way to "the laws."

"According to the doctrine of the Constitution, the declaration of the State of Emergency has the force of law because it restricts freedom, so it could and should have created the table of types of offences and did not," said Professor Bauzá.

What does apply is the Law of Citizen Security which he says is the norm, therefore wandering on the public road is not an infraction, but resisting authority is.

“That means that a person who wanders onto a public road cannot be denounced for this single action. The Officers may ask them to leave the public road and if they refuse to do so, they may be denounced for resistance and disobedience.

"The conclusion is that the legal basis for sanctions for walking on public roads during the State of Emergency is scarce,” says Professor Bauzá. “It is the first time since the Constitution came into force that a State of Emergency has limited the freedom of movement of the entire population and subjected it to a sanctioning regime, but it refers to General Laws that do not provide for such an exceptional measure. These sanctions will end up being discussed not only in the contentious jurisdiction and the Constitutional Court in Spain, but possibly in the European Court of Human Rights,” he said.

The Law of Citizen Security states that the disobedience of a Police request during the State of Emergency is punishable with fines of between 600 and 3,000 euros.

Professor Bauzá says the only possible precedent for this situation is the State of Emergency decreed when drivers left their jobs.

“The decree is very lax and exceptions to confinement are very vague, poorly defined and oblige members of the Security Forces to set criteria for sanctions, which are often confused with the obligations that correspond to citizens,” said Carlos Portalo, Criminalist and Professor at the UIB.