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Coronavirus in Spain: Madrid investigation closed

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.
Published: Jun 12, 2020, 11:50 am | On Twitter
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.
Published: Jun 12, 2020, 11:56 am | On Twitter
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.
Published: Jun 12, 2020, 12:01 pm | On Twitter
4. The investigation period was from March 5 to March 14. Three days after the ECDC report was issued through to the state of alarm, “whose Article 7 restricted the freedom of movement of persons”.
Published: Jun 12, 2020, 12:09 pm | On Twitter
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.
Published: Jun 12, 2020, 12:12 pm | On Twitter
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.
Published: Jun 12, 2020, 12:21 pm | On Twitter
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.
Published: Jun 12, 2020, 12:26 pm | On Twitter
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”.
Published: Jun 12, 2020, 12:30 pm | On Twitter
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.
Published: Jun 12, 2020, 12:37 pm | On Twitter
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.
Published: Jun 12, 2020, 12:40 pm | On Twitter
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.
Published: Jun 12, 2020, 12:43 pm | On Twitter
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.”
Published: Jun 12, 2020, 12:51 pm | On Twitter
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.
Published: Jun 12, 2020, 12:55 pm | On Twitter
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.
Published: Jun 12, 2020, 1:02 pm | On Twitter
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?
Published: Jun 12, 2020, 1:09 pm | On Twitter
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.
Published: Jun 12, 2020, 1:16 pm | On Twitter
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?
Published: Jun 12, 2020, 1:18 pm | On Twitter
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...”
Published: Jun 12, 2020, 1:25 pm | On Twitter
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".
Published: Jun 12, 2020, 1:28 pm | On Twitter
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...”
Published: Jun 12, 2020, 1:34 pm | On Twitter
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”.
Published: Jun 12, 2020, 1:38 pm | On Twitter
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”.
Published: Jun 12, 2020, 1:41 pm | On Twitter
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”.
Published: Jun 12, 2020, 1:45 pm | On Twitter
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".
Published: Jun 12, 2020, 1:49 pm | On Twitter
25. Just a few days later and by then with Spain in its coronavirus state of alarm, look at that, Franco includes Covid as a reason to ban a demonstration in Madrid.
Published: Jun 12, 2020, 1:52 pm | On Twitter
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.
Published: Jun 12, 2020, 1:56 pm | On Twitter
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.
Published: Jun 12, 2020, 2:01 pm | On Twitter
28. Nevertheless, “it is true and certain that if such rallies had been avoided, it would have prevented the wide spread of the disease,” writes the judge, citing the forensic examiner.
Published: Jun 12, 2020, 2:04 pm | On Twitter
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.
Published: Jun 12, 2020, 2:09 pm | On Twitter
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”.
Published: Jun 12, 2020, 2:13 pm | On Twitter
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.
Published: Jun 12, 2020, 2:18 pm | On Twitter
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".
Published: Jun 12, 2020, 2:27 pm | On Twitter
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.
Published: Jun 12, 2020, 2:29 pm | On Twitter
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”.
Published: Jun 12, 2020, 2:39 pm | On Twitter
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.
Published: Jun 12, 2020, 2:43 pm | On Twitter
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.”
Published: Jun 12, 2020, 2:49 pm | On Twitter
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”.
Published: Jun 12, 2020, 2:54 pm | On Twitter
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.
Published: Jun 12, 2020, 3:00 pm | On Twitter
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.
Published: Jun 12, 2020, 3:02 pm | On Twitter
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.
Published: Jun 12, 2020, 3:06 pm | On Twitter
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.
Published: Jun 12, 2020, 3:12 pm | On Twitter
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.
Published: Jun 12, 2020, 3:15 pm | On Twitter
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.
Published: Jun 12, 2020, 3:30 pm | On Twitter
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.
Published: Jun 12, 2020, 3:36 pm | On Twitter
45. You can read the whole ruling on the following page:
Published: Jun 12, 2020, 3:38 pm | On Twitter
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