New Amnesty International investigation as debate on the Gagging

Amnesty International is calling on the government to guarantee the right to peaceful demonstration and on parliamentary groups to make legislative changes to facilitate this by amending the Gagging Law and the Penal Code.

Amnesty International presents a comprehensive overview of the various gags and obstacles that the right to peaceful protest faces in Spain after seven years of undue restrictions just as a debate on freedom of expression, assembly and demonstration opens in Congress with the proposed amendment of the Law on Citizen Security (LOSC).

“This new investigation shows the need to change the legislative, police and judicial course to facilitate and guarantee, in accordance with international standards, the human right to protest in Spain,” said Esteban Beltrán, Amnesty International’s Director in Spain.

For at least the last seven years, Amnesty International and other organizations have documented a serious setback in the exercise of the right to protest as a result of several factors: the reform of the Penal Code, the passing of the Organic Law on Citizen Security (known as the Gagging Law), the wide margin of discretion and arbitrariness granted to security forces in their actions during peaceful demonstrations, the abusive use of less lethal weapons such as rubber bullets or “foam” bullets, the frequent interpretation of the courts in favour of the police version of events, counter-accusations by police against demonstrators or journalists who report abuses, including the allegation of untruthful facts in the police report itself, and the lack of effective accountability mechanisms for the security forces.

“This combination of laws and practices that do not comply with international standards of freedom of peaceful assembly or expression has resulted in arbitrary sanctions, the criminalisation of peaceful protesters and journalists who were carrying out their work, and of social movements, such as the Platform of People Affected by the Mortgage or Extinction Rebellion, as well as a non-proportional use of force against peaceful protesters and a preoccupying demobilising effect on peaceful protest”, according to Beltrán.

Seven gagging tactics consolidated bit by bit over seven years

1. The Law on Citizen Security, the epicentre of gagging

In 2015, Parliament reformed the Gagging Law, increasing the list of administrative sanctions for those participating in public gatherings, many of them vaguely defined and others in direct contravention of international standards on freedom of assembly, information or expression.

The organisation has identified at least four articles that, in recent years, have had a decisive impact on the right to peaceful protest, weakening it to an extreme degree. They are 36.6 (resistance, disobedience and refusal to identify oneself), 37.1 (spontaneous demonstrations), 37.4 (disrespect) and 36.23 (use of images of security forces). Since 2015, the authorities have condemned 250,300 of these same articles, accounting for 78% of all public security sanctions, which to a large extent have had a negative impact on the exercise of the human rights of demonstrators, human rights defenders and journalists for conduct protected by the rights to freedom of expression and peaceful assembly, something that Amnesty International has been able to confirm in successive investigations and reports.

The organization is concerned about the increase in the application of sanctions in relation to disrespect for authority. In 2021, 26,254 were applied when the average, between 2016 and 2021, was 20,713, i.e., there have been, according to the latest data provided by the Ministry of the Interior, 27% more than the average.

“Concepts such as: “lack of respect for authority”, “restoration of citizen security”, “alteration of citizen security” or “resistance to authority” are applied by the security forces with a high margin of discretion that would require having adequate control, supervision and accountability mechanisms, but they do not exist,” confirms Beltrán.

2. The Penal Code Reform, a step in the wrong direction

Also in 2015, a reform of the Penal Code was carried out which affected, among others, the crimes of public disorder and attacks against authority, for example, by introducing more severe penalties for public disorder when it occurs in the context of demonstrations.

At the time, Amnesty International warned that this reform of the Penal Code could lead to the criminal condemnation of peaceful resistance to authority, such as a sit-in, or also the occupation of offices, offices, establishments or premises, even if they are open to the public, if the normal functioning of the activity is disrupted.

The Attorney General’s Office explained in its latest report that the offences of assault and resistance continue to be the main offences responsible for the total number of offences against public order. In relation to the crime of attack against authority, the State Attorney General’s Office states that there has been an increase in the number of proceedings, as from 15,992 proceedings initiated in 2020, this rose to a total of 18,512 in 2021, which represents an increase of 15.75%. He has also stated that public disorder offences have seen a 48% rise from 2020 to 2021. In 2020, a total of 10,617 sentences were handed down for public disorder offences, while in 2021 there were 14,360, an increase of 35%.

This reform also added in one of its articles an aggravated type that condemns with a higher penalty, from one to six years of imprisonment, public disorder, when these acts are carried out in a demonstration or large gathering, or on the occasion of one of them. The mere fact that the behaviour takes place in the context of meetings or demonstrations can lead to a condemnation, without any explanation or clarification of the risks or dangers, or the legal good to be protected. In the organisation’s view, mere attendance at a meeting or demonstration should not lead to an aggravation of the penalty, as it is a question of the exercise of human rights.

3. Police arbitrariness in condemning protesters and/or journalists

The gagging law has increased the discretionary power granted to police forces to assess what conduct can be considered as disobedience, disrespect or resistance to authority without establishing adequate control and accountability mechanisms. This measure has led to greater police arbitrariness and defencelessness of citizens due to the prevalence of the administration’s position in the ambit of condemnation, thus facilitating arbitrary actions that violate the exercise of freedom of expression and peaceful assembly.

4. Presumption of truth on the part of law enforcement agents

Many of those interviewed by the organization alluded to the concept of “presumption of truth” in relation to police testimonies, whereby the word of a police officer is taken a priori as truth. Amnesty International’s research has confirmed that police testimonies are taken as truth when they are counter-stated by protesters or journalists, not only in the absence of other evidence, but even when the evidence directly contradicts them. It is clear that the application of the “presumption of truth” contravenes the obligation to ensure impartial investigation of crimes.

5. Counter-denunciations against protesters or journalists denouncing abusive actions

The organisation notes its preoccupation with the investigation of counter complaints made by officers against demonstrators or journalists who report abusive actions. This is nothing new. This phenomenon was reported by Amnesty International to the Committee against Torture in a 2015 report, a concern raised by the organisation as far back as 2007. This practice has since been acknowledged by members of various police forces interviewed by Amnesty International, who admitted the existence of an automatic habit of bringing such charges as a self-defence tactic to protect against accusations of assault or unlawful detention. This situation continues today and is experienced by protesters reporting abuses as well as by journalists and citizens trying to document them.

6. Restricted freedom of information

Amnesty International has documented how security forces have unduly interfered with the exercise of the right to freedom of information by threatening journalists or people recording images during demonstrations with the seizure of their recording equipment and the application of the Gagging Law which protects this action by the police. In addition, data has been taken from the person who has recorded in anticipation that they could publicly disseminate these images, or finally they have been condemned under other articles of the law.

7. Excessive use of force through the use of rubber bullets or “foam” bullets

Amnesty International has documented how the current use of rubber bullets by the National Police and the Guardia Civil and of “foam” bullets by the various regional police forces have caused serious injury and even death to demonstrators.

The organisation considers that rubber bullets should be banned because they are inherently inaccurate, and because of the high risk of serious injury that their use entails. As for ‘foam’ projectiles, international standards state that their use should be reserved exclusively against individuals who are acting violently and pose an imminent risk to the life or physical integrity of police officers or third parties. Amnesty International has documented how foam projectiles have caused serious injuries, including the loss of two people’s eyes, and have been used to disperse crowds, which is prohibited by international standards. Therefore, the organisation believes that its use should be suspended in order to evaluate it, its protocols and technical specifications, in order to detect possible deficiencies and assess whether it can be used in accordance with international human rights standards.

A cloak of impunity: no accountability for abuses committed

The lack of guarantees and mechanisms of control and accountability increases the possibility of arbitrary and abusive behaviour by members of the security forces, whose impunity can be reinforced by the prevalence of the administration’s position vis-à-vis citizens in open judicial proceedings.

This is all the more so when the powers granted by the Gagging Law to the security forces imply wide powers of prevention and investigation, as well as a high degree of discretion when applying and interpreting provisions that leave a wide margin of appreciation, and which can also be applied in a way that condemns behaviour protected by international human rights standards, or that interferes, in a disproportionate and arbitrary manner, with the right to privacy, freedom or freedom of movement.

Amnesty International’s main recommendations

Legislative changes are needed to both the Gagging Law and the Penal Code.

With regard to the Gagging Law, it is necessary to modify the sanction for calling demonstrations without prior notification, to define precisely how resistance, disobedience or refusal to identify oneself is sanctioned, strictly respecting the principle of legality, and adjusting to criteria of necessity and proportionality, and to eliminate the sanction of disseminating images of the security forces, as it is an unnecessary limitation and constitutes a risk to the right to freedom of information.

In relation to the Penal Code, the article defining what is considered to be an attack on authority should be modified, in accordance with the principle of proportionality, and a clear distinction should be made between acts of passive resistance and acts of serious intimidation and aggression, as well as their different criminal reproach. The aggravated offence of public disorder, which condemns “acts carried out at, or on the occasion of, a demonstration or large gathering”, should also be removed.

The exercise of the right to peaceful demonstration must be guaranteed.

To this end, restrictions on acts of civil disobedience must be assessed in accordance with international law and standards and steps must be taken to ensure that law enforcement officials are able to consider the particular elements of an act of civil disobedience, including its intent and overall impact, in order to ensure that undue restrictions are not imposed on the right to freedom of conscience, expression and peaceful assembly.

Similarly, kinetic impact projectiles, such as rubber bullets, which are inherently inaccurate and have a high risk of causing serious injury and lack the characteristics to be used in accordance with international standards, should not be used. In the case of the Autonomous Communities that use foam bullets, the organisation considers that their use should be suspended in order to evaluate them, as well as their protocols and technical specifications, in order to detect possible deficiencies and take all necessary measures to ensure that they are used in accordance with international human rights standards.

Accountability for police actions is essential to guarantee people’s rights.

Therefore, police officers should wear their identification number in a fully visible manner, so that they can be clearly identified at all times.

An independent police oversight mechanism must also be established, with the capacity to hear individual complaints, investigate ex officio, and analyse and evaluate legislation, regulations and operational procedures of police actions.

In addition, those who monitor and report abuses and rights violations committed by others and by law enforcement officials in the context of peaceful assemblies, including members of the press, legal professionals and human rights defenders, must be protected, and a strong message must be conveyed to agents involved in the management of assemblies that illegitimate use of force against observers and members of the press and obstruction of such monitoring and reporting will not be tolerated.

Finally, an external audit of the functioning of internal investigative mechanisms is necessary to ensure that investigations into allegations of serious human rights violations are conducted in accordance with international standards.