The International Human Rights Framework on the Right of Peaceful Assembly
Spain is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Spain is also a party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Spain is a State Party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
The Spanish Constitution of 1978 explicitly protects fundamental rights and duties, including the right to peaceful assembly (without prior authorisation).
The 1983 Law on the Right of Assembly is the primary legislation in Spain governing assemblies.
The right of peaceful assembly in Article 21 of the Constitution explicitly states that the exercise of the right does not require authorisation, but that the authorities should be notified in advance of assemblies taking place in public areas. Organic Act No. 9/1983 requires notification 10 days in advance, with a 24-hour notification only in exceptional circumstances.
The law does not explicitly allow spontaneous demonstrations but the 2015 Basic Law for the Protection of Public Security prohibits spontaneous demonstrations. The law also introduces new offences and penalties including fines of up to €600,000 for not declaring gatherings at facilities that provide basic community services.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The primary legal instrument regulating use of force by law enforcement agencies is the Organic Police Law 2 of 1986. The Preamble notes the duty of law enforcement officials to follow the 1979 Code of Conduct for Law Enforcement Officials. Police officers are also required to respect the honour and dignity of the person. Chapter 2 sets out four fundamental principles for police action, including the duty to use only necessary and proportionate force.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Under the 1986 Organic Police Law, the police may only use firearms where a serious risk to life or physical integrity exists or when those circumstances pose a serious risk to public safety. This is more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2015 Concluding Observations on Spain, the Human Rights Committee expressed its concern
about the deterrent effect that the recent adoption of the Public Security Act and subsequent amendments to the Criminal Code might have on freedom of expression, association and peaceful assembly.
In its 2015 Universal Periodic Review under the UN Human Rights Council, Spain claimed that:
The Protection of Public Safety Bill does not impair the ability to exercise the right to freedom of assembly and demonstration, as defined in the Constitution, and does not amend any articles of Organic Act No. 9/1983. The Bill merely sets forth a series of provisions on the punishment of violent, aggressive or coercive acts that arise from exercising the freedom to demonstrate or that affect public safety, such as holding unannounced or prohibited protests around vital infrastructure, participating in disruptions to public order in clothing that masks the face and hinders identification or assembling while carrying weapons or objects likely to cause injury.
The European Court of Human Rights found a violation by Spain of the right of peaceful assembly in 2020.
Laguna Guzman v. Spain (2020)
The case concerned the applicant’s complaint that she had been left permanently injured after the police forcefully dispersed a spontaneous gathering that had taken place after an official demonstration. The Court found in particular that the spontaneous protest had been peaceful up until its dispersal and that the applicant herself had not been arrested or prosecuted for any violent actions. The use of force deployed by the police had not therefore been justified and had amounted to a disproportionate interference with the applicant’s rights.
On 2 February 2014, the applicant took part in a demonstration in Valladolid against budgetary cuts and high unemployment rates. The authorities had been notified in advance of the demonstration as required by Spanish legislation and the necessary measures had been requested by the organisers to regulate road traffic. However, after the demonstration officially ended, a group of 50 to 60 protesters continued marching. They stopped at a square in front of a restaurant where some politicians were having lunch, and displayed a placard reading “stop the criminalisation of social protest”.
Ms Guzman, who was holding the placard, was injured when the police intervened to disperse the protest. She was struck with a truncheon, and taken to hospital to be treated for injuries to her mouth, hand and head. In 2016, the Institute of Legal Medicine of Valladolid concluded that she was “permanently incapacitated” as a consequence of her injuries. The courts subsequently dismissed criminal proceedings brought against the policemen for causing bodily harm, finding that they had had to use force in the face of a situation of violence and disorder.
The applicant’s amparo appeal against this decision was declared inadmissible by the Constitutional Court in 2017. Criminal proceedings were also brought against three of the protesters, but they were acquitted in 2018. The judge ruling on the case concluded that the protesters had been violently repressed without any prior warning, despite the fact that they had not blocked traffic or provoked the confrontation with the police.
The European Court found that although the spontaneous gathering had caused a certain amount of nuisance, it had been conducted in a peaceful manner up until its dispersal. Indeed, it had not been argued or demonstrated that it would have been difficult for the police to contain or redirect the protesters, or otherwise control the situation. Nor had it been shown that the demonstration had posed a high level of disruption to public order. The authorities had not therefore provided relevant and sufficient reasons justifying the dispersal of the demonstration.
Views of Civil Society
According to Freedom House's 2021 report on Spain:
The constitution provides for freedom of assembly, and the authorities typically respect this right. However, the public safety act that took effect in 2015 imposed a number of restrictions, including fines of up to €600,000 ($670,000) for participating in unauthorized protests near key buildings or infrastructure. Participants in protests on a variety of local concerns have faced smaller but still substantial fines under the law in practice.
Two of the Catalan independence leaders convicted of sedition in 2019, Jordi Cuixart and Jordi Sànchez, were prosecuted for leading protests aimed at preventing police from halting the banned 2017 referendum. Human rights groups have argued that the 2019 prison sentences were excessive and set a harmful example regarding freedom of assembly.
During 2020, many citizens protested against COVID-19 movement restrictions by demonstrating from their balconies or in the streets, and police generally did not intervene. However, Madrid authorities in September prohibited a planned gathering by pandemic deniers, citing the risk of contagion, and broader protests that accompanied the declaration of a second state of alarm in October featured clashes with police, leading to a number of arrests and injuries.
According to CIVICUS:
Since 2011, the number of protests has substantially increased in Spain due to a declining economy and regressive social measures. During those protests, the media and civil society organisations reported cases where excessive force and arrests were used by the police to quell demonstrations. Allegations were also made that police had ill-treated protestors while they were in detention.