Notes: Investigating court nº51 in Madrid closes the probe into Women's Day marches and coronavirus.
By Matthew Bennett
Jun 12, 2020, 11:50 am
1. Let's look at the decision by investigating court nº51 in Madrid to CLOSE the investigation into the central government representative in the Spanish capital, José Manuel Franco, regarding the Women's Day marches and coronavirus.
2. The judge, Carmen Rodríguez-Medel, notes there were “a multitude of proceedings”, “abudnant documentary evidence”, statements, “more than a dozen witnesses” and two forensic reports. The Attorney General's Office called for it to be thrown out two days ago.
3. The object of the investigation was Franco's actions “between March 5-14, 2020". The judge weighed up the territorial aspect (Madrid) and a prudence standard: Women's Day marches in Zamora would not be the same as in the Spanish capital, because of the forecast numbers.
5. Franco was not responsible for other meetings that took place that weekend (auditoriums, football stadiums, etc.) because they took place in private venues. One of the forecasts for participation in the Women's Day marches was a million people.
6. Franco took up his post on February 17 and was aware of his responsibilitiers in terms of demonstrations. Between March 5-14, he did not prohibit any at all becuase of coronavirus, “permanent legal inactivity”, nor did he require any precautionary measures.
7. Franco did not ban anything before March 8, or after the suspension of educational activity in Madrid on 9th, nor on 11th when WHO declared pandemic. On 10th and 11th, he did not demand precautions in marches on 16 occasions. The only one he stopped was on March 14th.
8. “Between March 5-14, 130 rallies and demonstrations were held in Madrid”, 21 of which took place between the 11th (WHO, pandemic) and the 14th (state of alarm), “they initially suggested a risk to public health”.
9. The Public Security Unit of the central government office rang some of the organisers, “telling them about the risk to health”, following the WHO declaration, but nothing was in writing or an order. It was “a method that had not been used before” for that purpose.
10. “The suspect, Mr. Franco, between March 5 and 14, did not have true, objective and technical knowledge of the risk to people's health posed by demonstrations and rallies,” writes Judge Rodríguez-Medel.
11. In other words, with the summary, the judge concludes that Franco, at his level as the central govt representative, knew nothing and did nothing. The Public Security Unit knew something after the declaration of the pandemic but just rang people by phone. No one ordered bans.
12. As she said during the investigation, Judge Rodríguez-Medel writes that “the law gives him an absolutely important role in the event of public rallies and demonstrations: to protect ALL rights and freedoms that may be affected.”
13. The options a central government representative has regarding demonstrations are: to prohibit, not to prohibit or to modify the conditions of the demonstration. And he must decide, not merely receive the notice from the organisers.
14. Judge Rodríguez-Medel is very clear that the protection of public health is more than sufficient reason to ban a demonstration: there is legal precedent to that effect from Spain's Constitutional Court and the European Court of Human Rights.
15. “No individuals or legal persons, public or private, requested in writing [...] a ban or the impostion of conditions or precautions” because of Covid.
Question I: Are government representatives unable to act on their own?
Question II: Did the government not do anything?
16. What was the only demonstration that Franco did ban in Madrid, “ex officio, therefore without a request from anyone”, on March 14, with full knowledge of the clash of fundamental rights?
The one outside Pablo Iglesias's house in Galapagar.
17. Question: how could Franco discern with constitutional clarity the need to ban the demonstration in front of Pablo Iglesias's house in Galapagar without any formal notice from anyone including, it is understood, from Mr. Iglesias himself?
18. “Between March 5-14 there are no administrative resolutions from the central government representative arising from the Covid-19 healthcare crisis in terms of rallies/demonstrations: neither prohibiting them nor demanding measures...”
19. “There is no evidence, in short, that [Franco] oversaw the rights and freedoms of citizens by weighing up the public health risk associated with the gathering of persons in the face of the extremely serious COVID-19 health situation".
20. Of the 177 rallies convened and communicated to the Madrid central government office on those dates, “Mr. Franco's legal inactivity continues, however, whatever the crowd capacity envisaged, there is no consideration at all on account of COVID-19...”
21. The number of rallies dropped markedly after March 9, but “due to health risk, to protect public health [...] Franco neither prohibited any rally/demonstration nor took any measures to prevent contagion”.
22. Franco “did not adopt either one or the other in the 130 held that the central government office knew about, there is not even any indication he weighed up the risk. This inactivity is predictable for his decisions prior to March 8, but also between that date and March 14”.
23. The judge notes Franco's total inability to respond to new circumstances: “if between the decision and the holding of the rally/demonstration a significant new news event occurs, typical of a dynamic reality, he must certainly act”.
24. All demonstrations on March 10-11 in Madrid. Franco limited himself to acknowledging them, “without banning them and without adopting any preventive measures, such as social distance, because of COVID-19".
26. “It is not apparent public employees of the central government office were particularly careful when in terms of obtaining technical knowledge about the risks to public health arising from COVID-19...”. Nor was there “a clear and technical alert” to Franco on the subject.
27. “From a medical point of view, the cause-effect relationship cannot be established exclusively [...] in order to be able to prosecute reckless injury or manslaughter, it would be necessary for there to be no contagion alternative” apart from going to the demonstration.
29. Having ruled out reckless injury or manslaugter, judge describes requirements of abuse of authority: (i) a decision (ii) unlawful, (iii) without reasonable explanation, (iv) that causes injustice, and (v) that the perpetrator uses to his own benefit against the law.
30. The administrative decision in question with Franco, writes Rodríguez-Medel, would be both an action “and, on the other hand, an omission: the non-prohibition of the rally”. The Supreme Court has ruled on “administrative abuse of authority by omission”.
31. It would suffice, in case of wanting to prove abuse of authority by omission, writes Rodríguez-Medel, citing a Supreme Court judgement, “that the confidence of citizens has been diminished” as a result of non-action. No “effective damage to public goods” is required.
32. Abuse of authority requires “reinforced intent”. Franco must have known he was carrying out the action “in the knowledge of its injustice,” writes the judge. But, and here is the key of the ruling, it must be “technical and sufficient knowledge”, not a “common feeling".
33. So the question is, at the legal level, if Franco had that “technical and sufficient” knowledge that would prove an abuse of authority by omission: for not banning the March 8 demonstrations and so on in Madrid due to the risk of coronavirus infection.
34. The judge is not aware that Franco received any written or verbal orders or instructions to the effect that he had to allow the marches to go ahead no matter what. The central government representative “had full autonomy to exercise his legal responsibility”.
35. “It cannot be concluded that Mr Franco had, at that time, a certain, technical and well-founded knowledge of the fact that not maintaining social distance affected the risk of being infected with COVID-19". What others knew is not the responsibility of this judge.
36. Fernando Simón replied to the judge that the ECDC report of March 2 was not forwarded to Franco, “given the public nature of the document and that it was of general knowledge and access to all health authorities.”
37. With Simón having not sent him the March 2 ECDC report, Franco told the judge two days ago that no one warned him of the danger of Covid infection: not the regional government or the Health Ministry, “no health instruction or information was received”.
38. “We cannot fail to be surprised” Franco's actions, writes the judge, due to the media attention surrounding coronavirus “since at least March 3” and Fernando Simón's public statements. But there is no official document, report or instruction, written or verbal.
39. “What guarantee was there that there would be no people from northern Italy among the forecast one million attendees or among the hundreds of thousands who usually take part in this demonstration every year?”, the judge wonders.
40. The Madrid regional govt issued two Covid resolutions on 6 March, which reached the central government representative offices, but about the elderly and health centres. “This documentation is absolutely insufficient” to prove abuse of authority, says the judge.
41. There are several spontaneous rally cancellations on those dates in the documents, including one on March 6, but the number of cancellations did not seem relevant to the officials at the central govt offices and nor did they notify Franco of them.
42. No one in the central govt offices in Madrid found the danger of Covid contagion to be sufficiently relevant before March 8 to indicate it in any official document, or to alert anyone. Franco, the man in charge, did not act on his own initiative or out of a sense of duty.
43. Neither the calls made by the officials to the organisers in the days afterwards nor any of the other documents in the investigation prove, writes the judge, that Franco had this certain knowledge that a charge of administrative abuse of authority by omission requires.
44. Regarding the provisional, not full, closure of the case, “the facts are not non-criminal”, writes the judge. The facts themselves could fit the crime. The problem is the intent, in this particular case “the lack of documented prior knowledge of the risk” of Covid.
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written by Matthew Bennett, a British journalist who has been living and working in Spain for most of the past 20 years.