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 state 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

Constitutional Provisions

The Spanish Constitution of 1978 explicitly protects fundamental rights and duties, including the right to peaceful assembly (without prior authorisation).

National Legislation

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.

National Legislation

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. 

National Legislation

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.

Regional Jurisprudence

The European Court of Human Rights has not found a violation by Spain of the right of peaceful assembly in recent years.

Views of Civil Society

According to Freedom House's 2019 report on Spain:

The constitution provides for freedom of assembly, and the authorities typically respect this right in practice. However, the public safety act that took effect in 2015 imposed a number of restrictions, including fines of up to €600,000 ($680,000) 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.

Separately, two prominent Catalan independence activists, Jordi Cuixart and Jordi Sànchez, were charged with sedition in 2017 for leading protests aimed at preventing police from halting the banned referendum. They were also charged with rebellion in March 2018, and at year’s end they remained in pretrial detention.

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.

Downloads

Spanish Constitution of 1978 - Download (320 KB)
1983 Law on the Right of Assembly - Download (232 KB)
2015 Public Security Act (Spanish original) - Download (387 KB)
Human Rights Committee Concluding Observations on Spain (2015) - Download (260 KB)