The Executive proposes to reform different aspects of this law approved in 2015, which, as European organizations and the Constitutional Court have been warning in ruling, violates freedom of expression and the right to peaceful assembly.
Already in 2018, the European Commissioner for Human Rights, Dunja Mijatovic, sent a letter to the presidents of the Congress and Senate in Spain, in which she denounced that the Gag Law contained provisions with the “potential to undermine the protection of human rights” in this country, and urged its elimination. It also warned about the “wide margin of discretion” that the law provided to the security forces, giving rise to “potentially disproportionate and arbitrary limitations on the exercise of freedom of expression and assembly.”
More recently, on March 19, the Venice commission, an advisory body of the Council of Europe, urged Spain to review the law. Among other points, he proposed lowering the high fines of up to 600,000 euros that in practice, he said, have a dissuasive effect on freedom of expression, and warned of the “repressive potential” of the legal text.
Avoid potential abuse
This advisory body of the Council of Europe also urged to tolerate spontaneous demonstrations, to eradicate indiscriminate searches and without cause, and asked, given the “broad powers” granted to the police, to reinforce the “internal monitoring mechanisms” of the agents, as well as like the judicial ones, to avoid “potential abuses”. And it concluded that “if a statutory norm leads, in practice, to abuses, this norm must be changed, delimited or accompanied by additional safeguards, even if in theory it is constitutionally acceptable.”
The main changes that the Government intends to introduce are adapted to these requirements and are as follows:
- Recording a police officer at his job will not constitute an offense unless it creates a “true danger” to his personal or family safety, puts operations in progress or facilities at risk. This modification is produced by the ruling of the Constitutional Court of last January, which declared the prohibition of the use of images and personal data of agents unconstitutional.
- The presumption of veracity of the agents is maintained as long as they expose in the acts of infringement an account of facts that is “coherent, logical and reasonable, unless there is evidence to the contrary.” Until now, they didn’t have to, being a breeding ground for potential abuse.
- Demonstrations without prior communication, although they may be punished as a minor offense, may be carried out because otherwise it would prevent the exercise of the rights to freedom of assembly and demonstration.
- Riot gear. The new norm establishes that “the competent authorities will elaborate specific protocols in accordance with international standards, to always use the least harmful means for people and avoiding those that cause irreparable injuries.” Does not prohibit rubber balls
- Reduction of detention time. People who refuse to identify themselves may be detained for up to two hours and only on an “exceptional” basis and when there are “justified and verified” reasons, that period may be extended to 6 hours today.
- Return of the offender to the place of his detention. The reform of the law establishes that the agents will have to act in this way when the detainee has been displaced to a different location and provided that this circumstance does not “seriously affect the functioning of the services” of the agents.
- Fines The fines for violating this law will be proportional to the individual economic capacity of each person. For example, reductions of 50% are contemplated for those who earn 1.5 times less than the minimum wage, and 25% for those who earn between 1.5 and 2.5 times less.
- Possession of narcotic substances for own consumption will only be considered a minor offense, when until now they were a serious offense.
- Searches. During a police action, the entire body will not be exposed, nor will each of the parts be shown successively.
- Regarding hot returns, the Government says that the reforms will be made through the Immigration Law.
Why do the policemen find the repeal of certain points of the Gag Law wrong? It is surprising because the Executive is practically limited to following the demands of Europe and the Constitutional, and because the law is still in the amendment phase. It has not even reached Congress for debate and final drafting.
The lowest crime rate in history
Also striking is the slogan of the demonstration called for this Saturday: “No to insecure Spain”, when according to data from the Ministry of the Interior, during the first half of this year 39.2 criminal offenses were committed per thousand inhabitants, the rate of lowest crime since there are historical records except for 2020, the year of confinement by COVID.
The mobilization has been called by Jusapol, the majority platform to which they make constant winks, especially Vox, but also the PP, and that in its messages about the law shows the usual methodology ultra used in social networks: deliberate omissions when not manipulations and falsehoods.
- The protesters say that with the new law “they lose the presumption of veracity”, passing to the “presumption of guilt” and generating “great legal uncertainty”. But the law maintains that presumption of veracity. Only they will have to reason their actions in writing.
- They criticize that recording the Security Forces and Bodies does not constitute an offense and affirm that their safety and that of their families are put at risk. The Court of Guarantees declared this prohibition unconstitutional and the new law will establish that if your security is at risk, no images may be disseminated.
- Regarding mobilizations without prior permission, for the agents it represents a risk because anyone from the anonymity of social networks can call a demonstration causing incidents or violent behavior, or two counter-demonstrations converge without time or planning to avoid disturbances.
- Riot gear. They say they are sent to “war” without deterrents and have been “sold”. The unions insist that they intend to coerce them and that rubber balls are an essential element in cases of serious disturbances of public order. And although it is true that the norm establishes that the least harmful means will be used, it does not prohibit rubber balls.
- “They claim that they make them” taxi drivers for criminals. ” First, they are not criminals, because criminal proceedings exceed the scope of the Citizen Security Law, which only deals with misdemeanors. And transfers are only contemplated for exceptional cases.
The mobilization has been called by Jusapol and its derivative unions, Jupol and Jucil, but the rest of traditional groups have joined, including those of a progressive nature. Members of these associations who prefer to remain anonymous recognize that to a large extent, they have joined the mobilization for fear of losing greater social representation. And it is that in the last union elections, Jusapol devastated and ate a large part of their historical territory.
With them, the agents have gone from their necessary image of neutrality and discretion for being a pillar of the rule of law, to starring in protests from social networks like the one that surrounded Congress a year ago dressed in ski masks, Anonymous masks and the war cry!”. And they are not just any civil servants. They are armed.
George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.