COVID-19: Legal basis of the lockdown and sanctions imposed by the state of alarm
In the first place, given its special gravity – in relation to the very serious health crisis suffered in our country as a result of COVID-19; and the consequences derived from the imposition of the alarm state, – we would like, – if we may, – to take this opportunity to give you a complete legal Report prepared by our team of Ph.D. Jurists, hoping they will be of your interest:
LINK 1: ARTICLE OF THE PUBLIC PROSECUTOR Mrs CONSUELO MADRIGAL: “CAPTIVE SOCIETY” (Spanish version)
The prosecutor of the Chamber of the Supreme Court Mrs Consuelo Madrigal published on Monday, May 4 in “El Mundo” newspaper, an article entitled “Captive society“, in which she denounces that «it is an undemocratic exercise of power, the undercover imposition, (without any internal and European control), of a true state of emergency, in which constitutional rights are severely restricted, under the pretence of the undue prolongation of the state of alarm, which guarantees the Government the sole command in the acute phase of exceptionality and in the return to the already impossible normality ».
LINK 2: LEGAL REPORT ABOUT THE STATE OF ALARM COVID-19: “ON THE LEGALITY OF THE LOCKDOWN AND THE FINES IMPOSED DURING THE STATE OF ALARM”
Many lay people, even professionals are not fully familiar with states of alarm, due to their rare and exceptional nature, which makes it even more difficult to totally comprehend its legal implications.
The majority of citizens might assume that our Governments will always respect and abide by the laws and consequently they will have our best interest at heart. However, in the harsh world we live in, that assumption might not always be true, (at least not in Spain), and consequently, we must always be alert and vigilant, unless we wish that our confidence to be turned into a “reckless optimism”. This rings particularly true when we analyse (strictly from a legal point of view), the serious implications to our constitutional rights, of the severe lockdown associated with the state of alarm, as well as the gargantuan sanctions regime imposed for its infringement.
Our comprehensive LEGAL REPORT ( for the moment spanish version only), shows that behind such extreme coercive dubious measures, what is really at stake is the destruction of our system of individual rights and liberties, which are sacrificed on the altar of the so called “security and the common good”; using in reality the COVID-19 pandemic as an excuse.
Finally, please see below an extract summary of the Report, which mainly focuses in the feasible legal ways to get redress, either through the criminal, civil or administrative courts; depending on each specific case:
LEGAL CLAIMS AS A CONSEQUENCE OF THE STATE OF ALARM IN SPAIN. COVID-19 CRISIS
First of all, from BZN LEX, we must clarify that this Report intends to be a comprehensive legal study for those nationals or expats who reside in our country and consequently, that they might have been equally affected by this crisis.
I. CIVIL AND CRIMINAL ACTIONS: “THE RIGHT TO HEALTH AND LIFE OF THE ELDERLY IN A HEALTH PANDEMIC”
In this unfortunate current health emergency crisis that we are still suffering in Spain and worldwide, these are testing times for all of us.
However, when it comes to law, ignorance is not bliss and we will be ultimately defined by our decisions and actions towards others. More now than ever, many people – the majority in fact – tend to forget that everything we do in life, – and how we do it, – is in fact pure Law, and depending on our actions, we could face serious legal responsibilities in the future, as explained below.
- THE STATE OF ALARM DOES NOT LIMIT THE RIGHT TO LIFE AND HEALTH
In Spain, the State of Alarm declared under Royal Decree 463/2020, of March 14 by the Government, has come to severely limit and restrict the specific constitutional rights (see article 7) such as the freedom of movement of persons (protected in article 19 CE) around the national territory.
In addition, severe penalties are imposed in cases of non-compliance, as will be explained later on.
However, the aforementioned Royal Decree does not restrict or limit the right to life and health of people, much less, deprives our elderly (according to the Government those people of 60 years and older), from their inherent basic human rights.
YAnd, certainly, the Government cannot do so because the Alarm State does not grant them with that power. In fact, not even in a State of Siege, such power could be recognized to the Government. If in such extraordinary state, even the “habeas corpus” is respected, with more reason, human life must be respected and protected as well at all costs.
In Spain, fortunately, the vast majority of all medical centers and hospitals, Doctors, nurses, etc, have carried out an exemplary work in the brave and huge task of assisting and protecting our elders. Without a doubt they are one of the true heroes in this crisis.
However, the lack of humanity and ignorance of the Law has led to some hospitals to take wrongful decisions in the opposite sense. Consequently, many of our elders have been denied “de facto” in many hospitals, their right to receive the necessary medical assistance; medicines, respirators, masks, etc. Furthermore, many cases have been reported that they are even denied the right of entry into hospital and emergency services.
- WRONGFUL EUGENICS PRACTICES
The inexcusable ignorance of the law has led to the effective denial of health care and assistance to the elderly, perpetrated by some individuals in the hospital environment, under the pretext of some kind of exculpatory state of necessity or emergency. In other words, they wrongly consider that in light of the insufficient medical means and available resources, these resources should be limited for younger people, that is those with a greater span of future life.
This horrible practice has been regrettably carried out with impunity by certain EU countries, mostly the Netherlands and Belgium.
However, we must not forget that this is in reality, is a hideous eugenic practice, because eugenics consists precisely of the elimination of those people that conventional science considers to be carriers of defective genes, or those who do not comply with the established genetic and biological standards.
Therefore, the right to life can never be jeopardized in order to safeguard other inferior rights, such as preserving the stock of medicines and materials for the youngest, because the right to life, the dignity and the protection of the most needy and vulnerable are sacred natural rights.
The “right to life and health”, set out in art.15 of our Magna Carta – (“everyone has the right to life and physical integrity”) – is a fundamental, essential and core right of our Spanish Constitutional legal system, because “human life constitutes the fundamental and essential fundamental right insofar as without it, the other rights would have no possible existence”. (Judgment Constitutional Court Nº.53 / 1985).
Furthermore, the Supreme Court in its landmark Judgment Nº 120/1990, confirms that “the fundamental right to life, as a subjective right, gives their holders the possibility of seeking judicial protection against any action perpetrated by public powers or entities that might threaten the life or integrity of individuals”.
In conclusion, the superior or highest primacy recognized to the “right to life”, prevents and prohibits that public authorities might try to restrict it, under the false pretext of lack of means or resources or any other State of necessity, or even under the State of Exception.
- REFUSAL OF MEDICAL ASSISTANCE: AVAILABLE LEGAL REMEDIES.
What can it be done if a family relative might have been refused medical assistance, resulting in death?
The answer is clear. Both the hospital and the Doctors in charge, would incur in serious criminal liability, as a result of the unlawful death inflicted on a person, even if committed without possible intent. In other words, they will be responsibility even if there wasn’t any intention of killing or injuring. In other words, it would suffice knowing that the hospital’s refusal to provide healthcare might result in a fatal death. This is defined in Spanish as “Delito de homicidio preternintencional, cometido por dolo eventual.
For example, this behaviour would happen if the Doctors might refuse entrance or admission to the Hospital, or alternatively by denying respiratory life support assistance to the elderly, leaving them alone and suffocating in the corridor of a hospital.
As indicated before, we must stress the point that when the inviolable human right to life and dignity is at stake, criminal and civil liability cannot be excluded by arguing that the hospital lacked the means to attend the ill people with COVID-19.
Finally, in relation to the possible civil and / or criminal liability of public administrations for the negligent management of the health crisis; we refer to our LEGAL REPORT; which deals in depth on this topic.
II. ADMINISTRATIVE CLAIMS: ON THE ILLEGALITY OF THE SANCTIONS IMPOSED DURING THE STATE OF ALARM
- SPAIN’S CORONAVIRUS LOCKDOWN AND THEIR ASSOCIATED FINES ARE UNCONSTITUTIONAL AND UNLAWFUL
More than 15,000 people have been fined so far by the National Police and Guardia Civil for non-compliance with the coronavirus lockdown rules. However, our courts are already at saturation point, and there is a growing concern about their legality. Consequently, the government risks several years of appeals and legal chaos.
The necessary question that we need to ask ourselves is this; Are the lockdown and the fines for its infringement lawful?
In order to answer this question, we need to analyse if the regulation of the state of alarm implemented by the Spanish government complies with the Rule of Law.
In the first place, the Spanish Constitution stipulates that restrictions on individual rights and freedoms must always be proportional to the threat.
We all agree at this point that a virus epidemic is a threat that is difficult to control and thus justifies use of extraordinary constitutional measures and introduction of additional restrictions on human rights and freedoms.
Therefore, these additional restrictions resulting from an extraordinary situation, – as the COVID-19 epidemic, – can be authorised expressly in the constitution, by way of declaring the state of alarm.
However, due to the fact that this extraordinary situation gives the government greater “liberties” – the restrictions imposed by the state of alarm must always be within the confines of the rule of law – in order to achieve its sole objective and seek to bring the epidemic under control. In other words, the state of alarm can never be used as an excuse in order to implement a dubious political agenda.
In the second place, the Royal Decree establishing the State of alarm does not set a table of sanctions, but refers (art. 20) to the Organic Law governing the lockdown and hence, in a generic way to “the laws.”
The consequence as we will see are gargantuan.
According to the doctrine of the “Everything which is not forbidden is allowed” is a constitutional principle found in the English common law. (In international law, it is known as the Lotus principle).
This principle has always acted as a safeguard against totalitarian regimes, for the actions of the public authorities are limited to the powers explicitly granted to them by the Law and the Constitution.
In other words, one of the obligations of public authorities is to protect the safety of citizens. However, the actions of all institutions of a democratic state should be founded on and limited by the law. This principle is clearly set out by the Spanish constitution.
The converse principle—”everything which is not allowed is forbidden” is exactly the opposite, that is a totalitarian principle devised by the infamous so-called jurist Kelsen, who, – inspired by this principle, – gave the perfect justification and the legal frame to the Nazi regime, as to commit all the atrocities.
By applying this analogy to the situation in Spain, we can immediately detect how the Royal Decree of state of alarm 463/2020 precisely applies this evil principle, as it does not contain a table or list of types of offences, but a general prohibition, with some permissions allowed.
In other words; “everything which is not allowed by the Decree nº 463/2020 is forbidden”.
The decree is deficiently drafted and exceptions to confinement are very vague, poorly defined, and force members of the Security Forces to set subjective criteria for gargantuan sanctions, which are often confused with the obligations that correspond to citizens.
The result is that public authorities have therefore taken “liberties” in an unconstitutional, and thus unlawful manner, which creates the risk of abuses from the police.
Our Fundamental civil rights have been significantly restricted: the possibility of leaving home, an unjustified ban on religious gatherings, a prohibition on entering forests, parks, etc despite the lack of legal foundations for their implementation.
Leading jurists have pointed to evident violations of the constitution regarding freedom of movement, freedom of assembly, the inviolability of the home, freedom to conduct business, and personal property and security.
One example of this dysfunctional law-making is that person for example, who wanders alone onto a green space may be even denounced for resistance and disobedience, -which is a criminal offence, – and be put in jail.
Or for example, the case of a person fined 600 euros for buying in a supermarket, which location wasn’t the nearest to his place, or the other case of a man fined for buying an “inessential” product will go down in history.
This situation is totally outrageous and it does not comply with the standards of a democratic state.
This far- reaching and non-justified restriction of all the civil liberties and human rights is mandatory not only for people who are ill or suspected to be infected, but to the entire population, who are being subjected to such a disproportionate and gargantuan sanctioning regime.
The anti-coronavirus restrictions are not just prohibitions and limitations, but also significant punishments for breaking the regulations. There is no legal basis for repressing citizens with such extraordinary sanctions. For this reason, too, the currently binding financial and criminal penalties are neither proportional, nor rational, and not necessary in the light of the standards of the constitution, and the Rule of Law.
2. ILLEGAL ENFORCEMENT OF THE SANTIONS
The unlawful procedure followed for imposing the sanctions administered during the state of epidemic makes them also unconstitutional.
Those who drew up the regulations chose not to sanction violations of the lockdown using the classical path foreseen by administrative law, which gives citizens the right to a fair trial.
The fines are imposed by an official, often without evidence proceedings. Although citizens have the right to an appeal, this does not delay the punishment – fines are immediately enforceable.
3. IS IT POSSIBLE TO APPEAL THE FINES IN COURT?
The imposition of fines does not prevent citizens from exercising their rights before a court, so anyone who feels they have been fined unfairly, can go to the administrative court to contest it.
It is to be hoped that in prevision of the avalanche of thousands of claims, all this will be decided by an impartial and independent court, and the “floodgates principle” will not be applied. But this is not certain, considering that the actions of the political authorities in Spain,- before and during,- the coronavirus epidemic have sought to bring independent judges and courts under their control.
Therefore, it is not unlikely to think that some of these lawsuits and 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.
From this long exegesis of the Decree of Alarm, we can draw the following conclusions:
1º) Spanish citizens live in a democracy, and not in an authoritarian regime. We cannot be coerced, harassed, or intimidated, with the excuse of a health crisis, no matter how serious this threat can be.
2º) Sanctions imposed during the State of Alarm are null and void; as they contravene the following laws and principles of law:
a. Art.47.2 of Law 39/2015, of October 1; “Of the common administrative procedure of the Public Administrations“, “the acts of the Public Administrations that violate the Laws, or the Constitution …”
b. Art. 17 Spanish Constitution (CE); “everyone has the right to liberty and security”; and article 103.1 CE (“The Public Administration objectively serves the general interests and acts with full submission to the Law”).
c. The principles of legal certainty, legality, and typicity.
3º) Consequently, sanctions can be appealed through the administrative Courts in Spain and before the European Courts.
To sum up, it is a fact that the coronavirus restrictions have seriously destabilised our legal system. We sincerely hope that once that the virus threat is defeated, we will not have to face a much more serious threat, this time to the rule of law. Otherwise, the risk of legal chaos that awaits us will be difficult to fathom.
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