Case Summary and Outcome

The Constitutional Court of Spain ruled that Resolution No. 217-2020 issued by the Government of Seville, which banned a demonstration organized by Fernández Villa on 30 April 2020 to protest the public authorities’ handling of the Covid-19 pandemic, did not violate Article 21 of the Spanish Constitution, which enshrines the right to assembly. Mr Fernández Villa notified his intention to organize a peaceful protest on 30 April 2020 to criticize the public policy adopted by the Government of Seville in relation to the Covid-19 pandemic—in particular the adoption of compulsory confinement. The Government of Seville banned the protest by issuing Resolution No. 217-2020, because the protest did not guarantee the security and hygiene measures necessary to prevent the spread of Covid-19 in the context of the health crisis caused by the outbreak of the virus. The Spanish Constitutional Court ruled that Resolution No. 217-2020 complied with the constitutional requirement of sound justification, as the government had justified the temporary ban on the protest until the necessary protective measures were in place to prevent the spread of the virus and to protect the population’s right to health. The Court also found that Resolution No. 217-2020 did not violate the right to assembly under Article 21 of the Spanish Constitution because it pursued a legitimate aim, was necessary and proportionate in the context of the public health emergency of April 2020, in which there was evidence of a serious increase in Covid-19 cases and the government was trying to prevent a worsening of the health crisis and the collapse of the healthcare system.

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Facts

On 19 April 2020, Mr José Fernández Villa sent an email to the Government of Andalusia communicating his intent to hold a peaceful protest on 30 April 2020 against the government’s policy of compulsory confinement during the Covid-19 pandemic. Mr Fernández Villa stated that the main purpose of the protest was to criticize the government’s management of the Covid-19 pandemic, the widespread confinement of the population, and the violation of fundamental rights. Fernández Villa also stated in his email that the protest would take place in a location in the center of Seville and would last two hours and that they would take various security measures to prevent the spread of Covid-19. Further, he clarified that the security measures included social distancing (two-meter separation between protesters), and the use of masks and gloves. At the same time, the email requested the assistance of the national police force to ensure that demonstrators complied with the security measures.

Since the authorities did not issue an answer, Mr José Fernández Villa reiterated his request in a letter sent to the Government of Seville on 20 April 2020.

On 22 April 2020, the Government of Seville replied by e-mail to Mr Fernández Villa’s communication. In its reply, the Government asked for further information on the health security measures and, in particular, for proof of the purchase of personal protective equipment (PPE) for the demonstrators—and a detailed description of the device that would be used to guarantee the distance between demonstrators in order to prevent the spread of the Covid-19 virus.

On the same day, Mr José Fernández Villa replied, via letter to the Government of Seville, stating that the security measures had already been explained in the first communication sent to the authorities, in accordance with Organic Law 9/1983 on the Right to Assembly. Mr Fernandez Villa also reiterated that he would take the aforementioned security measures and again requested the assistance of the national police force to maintain the two-meter distance between the demonstrators. He also argued that, according to the Organic Law, the “governmental authority can only either prohibit the protest or propose—not demand—the modification of the date, place, duration or itinerary of the protest, but it cannot demand the fulfillment of a series of conditions so that the protest can take place.” [p. 2]

On the same day, 22 April 2020, the Government issued Resolution No. 217-2020 prohibiting the protest requested by Mr José Fernández Villa. In this resolution, the Government of Seville argued that the health and security measures offered by Fernández Villa were not sufficient to prevent the spread of the Covid-19 virus. The resolution stated that in the context of the severe Covid-19 pandemic, the right to assembly should be restricted in order to combat the spread of the virus and mitigate the health crisis. The resolution also mentioned that the health consequences of protesting, even with security measures in place, could affect not only the protesters but also their families, friends, and co-workers.

On 24 April 2020, Mr Fernández Villa filed an administrative appeal against Resolution No. 217-2020 issued by the Government of Seville, claiming that his right to assembly had been violated.

On 29 April 2020, the First Section of the Contentious-Administrative Chamber of the High Court of Justice of Andalusia rejected Fernández Villa’s claim. The Court found that Royal Decree 463/2020 restricted the right to assembly because of the worsening of the Covid-19 health crisis due to the virus outbreak. On these grounds, the court found that banning the protest requested by Fernández Villa was reasonable and proportionate to the objective of preventing the spread of the virus. At the same time, the court noted that the purpose of prohibiting the protest served to protect the right to life and health of both the protesters and any citizen present in the place where the protest was to take place.

Subsequently, on 11 May 2020, Mr José Fernández Villa filed a writ of amparo before the Constitutional Court of Spain, seeking the annulment of Seville Government’s Resolution No. 217-2020—arguing that it violated the right to assembly as set in Article 21 of the Spanish Constitution. Fernández Villa held that Resolution No. 217-2020 lacked sufficient justification. In this regard, he stated that in order for the Seville government to restrict the right to assembly, it must provide stronger reasons. Furthermore, Fernández Villa argued that if there had been any doubts about the effectiveness of the health and hygiene measures proposed for the peaceful protest, the government should have allowed it, as it was a fundamental right. He stated that the mere suspicion that there might be an outbreak of the Covid-19 virus was not a reasonable argument to prohibit the right to peaceful assembly, aimed at criticizing the government’s public policy. Moreover, Fernández Villa noted that the government should have only banned people carrying the Covid-19 virus from participating in the protest, instead of banning any citizen from demonstrating. Fernández Villa also argued that Royal Decree 463/2020 allows other types of activities that could also increase Covid-19 infections, such as going to and from work, walking pets, going to the vet, or the dry cleaner, among others.

On 28 January 2021, the Government of Seville responded to the amparo filed by Fernández Villa, requesting the Constitutional Court to reject it. The government argued that Resolution No. 217-2020 was reasonable and proportionate because it limited the protest requested by Fernández Villa, with the aim of preserving the health of the protesters and any other person who might be infected in the context of a sharp increase in Covid-19 cases. The government also explained that the healthcare system could collapse if the number of people infected with Covid-19 increased. The government also clarified that the public health crisis that resulted from the increase in Covid-19 cases is not a mere suspicion or conjecture, but rather an objective fact of public knowledge. In light of this, the government noted that on the date requested for the protest, there was an increase in Covid-19 infections and deaths.

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Decision Overview

The Constitutional Court of Spain had to decide whether Resolution No. 217-2020 issued by the Government of Seville—banning the social protest organized by a citizen on 30 April 2020— violated the right to assembly as enshrined in Article 21 of the Spanish Constitution. Furthermore, the Court had to examine whether the context of the public health crisis caused by Covid-19 justified the prohibition of a social protest critical of the government’s public policy on the management of the pandemic.

Mr Fernández Villa argued that the Seville City Council had failed to provide convincing and compelling arguments to restrict his right to assembly in relation to a protest aimed at criticizing the public policy of compulsory confinement imposed by the authorities.

On the other hand, the Government of Seville argued that Mr Fernández Villa had not provided sufficient health and safety measures to prevent the spread of Covid-19 during his proposed protest. The government also argued that the health crisis caused by Covid-19 justified restricting the right to assembly in order to protect the right to health and the right to life of the general population, and to ensure the proper functioning of health services.

The Spanish Constitutional Court began its analysis by examining the regulation of freedom of movement as laid out in Article 7 of Royal Decree 463/2020. The Court clarified that Resolution No. 217-2020, issued by the Government of Seville, was not based on the special regime established by Royal Decree 463/2020, but on the “ordinary” regime of the right to assembly. In this regard, the Court explained that the Royal Decree was mentioned in the Resolution only to place Mr Fernández Villa’s request in the context of the serious health crisis that existed at the time caused by Covid-19.

The Court found that although Royal Decree 463/2020 restricted freedom of movement, it did not entail a restriction on the right to protest. In this regard, the Court held that Royal Decree 463/2020 did not suspend the right to peaceful assembly or protest.

The Court considered that the petitioner was wrong to argue that Resolution No. 217-2020 prohibited the right to assembly. In this regard, the Court noted that the Government of Seville, upon receiving Mr Fernández Villa’s request, “did not prohibit it unconditionally and automatically, but, in order to allow the exercise of the right to assembly, asked the organizer of the protest, by letter of 22 April 2020, to specify the security measures envisaged.” [p. 2] On this point, the Court reiterated that the rejection of Mr Fernández Villa’s request was not due to the provisions of Royal Decree 463/2020.  Other reasons, the Court said, played a key role such as the failure of the organizers of the protest to provide effective and sufficient measures to prevent the spread of Covid-19 in the context of the health crisis.

Subsequently, the Spanish Constitutional Court explained the scope of the right to assembly, provided in Article 21 of the Spanish Constitution, and its legal limits. On this point, the Court explained that Article 21 of the Spanish Constitution establishes that administrative authorities may only prohibit assemblies in public spaces if there are well-founded reasons to think they may entail disturbing public order and/or danger to persons or property. The Court also added that in its own decision (STC 14/2003), it was established that the exercise of fundamental rights may be limited by the need to safeguard other constitutional rights.

In this sense, the Court referred to its own judgment in STC 195/2003. There it was recognized the possibility of adopting measures to restrict the right to assembly to protect national security, public safety, public order and the prevention of crime, health or public morals, or other rights and freedoms—as long as such measures are necessary.

On this point, the Constitutional Court referred to the case of Cisse v. France, in which the European Court of Human Rights ruled that a government order to evacuate participants in a peaceful assembly in a church was proportionate because the health of the participants had deteriorated, and sanitary measures were inadequate.

Following this reasoning, the Constitutional Court stated that “it can be concluded that the legal interests involved in a health crisis, such as the protection of public health and the right to life, constitute values of constitutional relevance that may, in a given case, justify the government authority to order the restriction of the exercise of the right to assembly.” [p. 8]

The Court then went on to analyze if the government’s decision to restrict the right to assembly was proportional in the case at hand, under Article 21 of the Spanish Constitution. The Court recalled that in its judgment STC 163/2006 of 22 May 2006, it held that any restriction on a fundamental right, including the right to assembly, required a sound justification. In this sense, the Court considered that the mere suspicion or possibility of affecting public order, or the property or rights of others, was not sufficient to meet this requirement.

The Court then quoted decision STC 193/2011 to underline the idea that restrictions to the right to assembly require a specific justification in accordance with Spanish constitutional jurisprudence. Likewise, the Court referred to decision STC 301/2006 to reiterate that the justification to restrict the right to assembly must be made taking into account the objective data on the concrete circumstances of the case in question. In this sense, the Court stated that general formulas cannot be used to justify restrictions on the right to assembly, rather administrative authorities must justify the measures with reference to the specific case.

The Constitutional Court argued that the exercise of the right to assembly in public spaces, per Article 21 of the Spanish Constitution, requires prior notification by the organizers to the authorities. On this point, the Court referred to judgement STC 66/1995, in which the Court established that the purpose of the notification was to inform the authorities so that they could take the necessary measures to enable the demonstrators the exercise of their rights and to protect the rights and property of third parties. Similarly, in the aforementioned case, the Constitutional Court held that public authorities must justify the impossibility of adopting necessary preventive measures to avoid such dangers and allow the effective exercise of the fundamental right to assembly.

Then, the Court explained the regulation of the right to assembly as established by Organic Law 9/1983. The Court stated that this law orders organizers of assemblies to take measures to ensure that they are conducted properly. The Court also stated that Organic Law 9/1983 requires organizers of public protests to explain how they would implement “the security measures planned or requested by the government authority.” [p. 8]

Taking this into consideration, the Spanish Constitutional Court examined the legal provisions outlined above, in the specific case of Resolution No. 217-2020, to decide whether this resolution had been adopted in accordance with the constitutional requirements and whether it had been properly justified.

The Court held that Resolution No. 217-2020 complied with the specificity and soundness requirements when justifying the restriction to the right to assembly, given the circumstances of the case. The Court considered that the Government of Seville had sufficiently justified the prohibition of the protest requested by Mr Fernández Villa on the grounds of protecting the health of the population; the concern about the spread of Covid-19 among the demonstrators and their friends, relatives, and colleagues, which could aggravate the health crisis; and the lack of certainty about the security measures mentioned by the applicant to protect the health of the demonstrators and the lack of sufficient information about the estimated number of demonstrators, and the potential risks to bystanders.

Accordingly, the Spanish Constitutional Court concluded that “in light of these reasons, it must be concluded that the decision complies with the obligation to state specific and sound reasons, imposed by the constitutional standard, and provides convincing reasons that can justify the restriction of the appellant’s right to assembly. In a situation of a serious pandemic that put people’s lives in concrete danger (at the time dozens of people were dying from the infection and there was no vaccine against Covid-19), contrary to what the appellant claims, the government authority’s statement of reasons cannot be described as fallacious.” [p. 11]

Regarding the proportionality of Resolution No. 217-2020, the Court argued that three requirements had to be examined: (i) the measure must be proportionate to the legitimate aim pursued; (ii) the measure must be necessary since there is no other less restrictive and equally effective measure; (iii) once the measure meets the first two requirements, it must be established whether the limitation of the rights concerned is more beneficial to the general interest than detrimental to the rights at stake in each case.

Under these premises, the Constitutional Court found that the objective pursued by Resolution No. 217-2020 was the protection of health. In this sense, the Court held that “the contested resolution, in so far as it banned the demonstration, avoided the concentration of people and their proximity to each other, resulting in an appropriate measure to prevent the spread of Covid-19, and thus to protect the health of the population.” [p. 12]

Upon analyzing the “necessity” of the measure, the Court held that the measure was necessary because Mr Fernández Villa had not provided “approximate data on the number of people expected to attend the protest and because he was uncertain about the personal distance necessary to prevent contagion among demonstrators.” [p. 12] The Court took account of the fact that, at the time of the applicant’s communication, the mode of transmission of the virus was unknown and the availability of protective masks was very limited.

Hence, the Court concluded that “the government authority could not have taken a decision less restrictive of the fundamental right and less effective, particularly in view of the fact that the organizer of the meeting did not offer any response to the shortcomings identified in the administrative file, noted by the government authority, following the request to which he was subjected.” [p. 12]

The Constitutional Court then had to examine the proportionality of the prohibition of the protest requested by Mr Fernández Villa. On this point, the Court concluded that “the prohibition, aimed at preventing the spread of a serious disease (the Covid-19 infection), was more beneficial to the general interest than it was detrimental to the right in question.” [p. 12] The Court referred to its previous decision in ATC 40/2020, in which the Court stated that the prohibition of protests was logically linked to the prevention of the spread of the virus, which could lead to the collapse of public healthcare services.

Considering the reasons mentioned above, the Spanish Constitutional Court concluded that Resolution No. 217-2020 was adopted in accordance with constitutional requirements and did not violate Article 21 of the Constitution. Hence, it dismissed the amparo filed by the petitioner.

Dissenting Opinions

Judges Ricardo Enríquez Sancho, Enrique Arnaldo Alcubilla, and Concepción Espejel Jorquera filed a dissenting vote and opinion. The judges considered that the judgment of the majority of the Court was not in accordance with the jurisprudence laid out in decision STC 148/2021, which held that the state of emergency declared by Royal Decree 463/2020 did not prohibit the right to assembly and the right to protest. The judges, in their dissenting vote, noted that the majority judgment assumed this reasoning, but that the arguments used to dismiss the amparo did not follow it.

The judges also considered that the right to assembly is not subject to authorization and that the measures that limit such right must fulfill the three-fold exam of proportionality. The judges considered in the dissenting opinion that the authorities opted for the more restrictive measure when prohibiting the protest and did not provide reasons sound enough.

The judges also held that the measure established by the contested resolution only referred to the state of emergency to justify prohibiting of the protest. They also highlighted that the grounds for the prohibition provided by the government were two: (i) that Covid-19 may be spread among the protesters and their friends, family, and colleagues; (ii) that no additional information was provided by Mr. José Fernández Villa regarding the security measures for the protest. The judges considered that these reasons did not pass the necessity test, and therefore did not fulfill the proportionality test.

The judges considered that the right to protest is not subject to any requirement but the mere notification to the authorities and noted that the authorities could have proposed a modification of the conditions of the protest regarding its location, time, and amount of people, instead of just prohibiting it. Thus, the judges noted that the authorities opted for the most restrictive solution and did not respect the constitutional provisions established in Article 21 of the Constitution.

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