1.  Spain is a decentralized, parliamentary constitutional monarchy, with the Spanish Constitution of 1978 as the supreme norm of its legal order. The Spanish Parliament (Cortes Generales) is bicameral. It is made up of the Congress of Deputies, elected by universal suffrage, and the Senate, elected partly by universal suffrage and partly by the legislative chambers of the regions, whose official name is Autonomous Communities (Comunidades Autónomas) (‘ACs’). The Congress of Deputies prevails over the Senate in nearly all areas of policy and legislation, except for some very specific issues related to the functioning of the regions and their budgeting.

2.  According to the Constitution, the Monarch appoints as the President of the Spanish Government the person who can command the confidence of the Congress after a general election. Cabinet Ministers are appointed and dismissed by the Monarch on the advice of the President. Traditionally, Parliament was composed mainly of two political groups, resulting in relatively wide majorities for electing the Government—with an important role for nationalist parties, especially during the 1990s—which therefore used to enjoy a dominant position in both the executive and the legislative branch. The 2009 financial crisis fostered the rise of new political parties and increased fragmentation in Parliament. After the general election of November 2019, the Government is at time of writing made up of a coalition between two (left-wing) political parties, which, however, do not jointly attain majority in the Congress. They obtained the confidence of the Chamber with the support of other minoritarian political groups.

3.  Below the Constitution, an Act of Parliament is the highest form of law, subject to the primacy of European Union (EU) law, of which Spain is a Member State since 1986. Exceptionally, the Government can also pass Acts, which are different from governmental and administrative regulations, ranking above these and having the same legal value as Acts of Parliament. International agreements ratified by Spain are subordinate to the Constitution and they rank hierarchically as Acts of Parliament. Law-making is divided between Acts of Parliament, Acts of Government—which require either a previous delegation of legislative powers by the Parliament or an occurrence of extraordinary and urgent need—and regulations issued by the executive. Therefore, the executive has the power to pass two different kinds of legal rules: Acts and regulations. Acts (either parliamentary or governmental) are subject to the exclusive review of the Spanish Constitutional Court (SCC), which is not part of the judiciary but a differentiated constitutional body. Governmental and administrative regulations rank below Acts and they are amenable to judicial review—typically, of the so-called ‘contentious-administrative courts’ (Jurisdicción Contencioso-Administrativa). The Monarch has no relevant prerogative powers, but mostly formal ones, such as the sanction and promulgation of State legislation. The executive has no consistent practice of issuing ‘guidance’ or soft law measures to the public, but normally uses them only for internal organizational purposes.

4.  As a quasi-federal state, Spain has a unique model of decentralization known as ‘Autonomic State’ (Estado Autonómico). It is composed of 17 ACs, plus two autonomous cities: Ceuta and Melilla. Each AC has its own legislature, executive, and electoral arrangements, which reflect those at the State level. The judiciary is not decentralized. The structure of executive powers and sources of law resemble those of the State too. In this report, the ACs of Madrid and Castilla-La Mancha will be used as exemplars, since they are representative of the regional diversity in Spain: these two ACs differ substantially in terms of territorial structure and scope, population density, economic and political strength within the State as a whole, and political alignment with the Spanish Government. Below ACs, local authorities (provinces and municipalities) also enjoy political and administrative autonomy, although at a lower level—they lack a legislature and can issue only regulations (but not Acts).

5.  Health legislation and enforcement are in large measure transferred to the ACs. The State retains a basic legislative competence—enabling it to set a minimum level of rules for the whole country—as well as the responsibility for certain strategic areas and the overall coordination of the health system. Local authorities have very limited health competences, generally consisting of the delegated competence to manage the health care centres belonging to their respective ACs.¹ Criminal legislation is reserved to the Spanish Parliament, while legislation on administrative penalties can be enacted by both the State and the ACs within their respective fields of substantive competence. There are police forces at the State, regional, and local level.

6.  Emergency powers are reserved for the Spanish Government and/or the Spanish Parliament, depending on the type of emergency (see Part II.A below).

7.  The response to the pandemic has not changed the basic constitutional structure of the State, but it has caused tensions in various areas explored below.

8.  Article 116 of the Constitution enshrines a formal constitutional procedure for declaring a state of emergency, distinguishing among three types of them: a state of alarm, for catastrophes and other crises such as epidemicsl; a state of exception, for severe and extraordinary alterations of public order; and a state of siege, for attacks against Spanish sovereignty. This provision is further elaborated in the Organic Law on the states of alarm, exception, and siege.² The power to declare a state of alarm, which is the least restrictive of the three states of emergency, vests solely in the Spanish Government. It enables the Spanish Government to temporarily and partially centralize competences which are otherwise assigned to the ACs, as well as to adopt extraordinary restrictive measures to fight the crisis at hand. The declaration, which takes the form of a royal decree of the Spanish Government, can have a maximum duration of 15 days and must specify the territorial area to which it applies—the State as a whole, or only a part thereof. Congress shall be informed of the declaration and must meet immediately for this purpose. Congress’s powers are exclusive when it comes to the authorization of an extension of a state of alarm beyond the period of the initial declaration, when it can also set the effects and scope of the declaration, therefore not being restricted to simply casting a yes or no vote. Despite being adopted by the Government as royal decrees—which are normally governmental regulations—, royal decrees declaring—and, where appropriate, extending—a state of alarm are considered to have the nature of an Act of Government; therefore, they cannot be scrutinized by the judiciary, but only by the SCC.³ However, all measures adopted by the Government under a state of alarm, either in the form of regulations or as single-case decisions, are subject to review by the judiciary .⁴

9.  During the first wave of the pandemic, the Spanish Government declared a nationwide state of alarm for a total period of three months, from 14 March until 21 June 2020. It declared it for an initial period of 15 days,⁵ and subsequently extended every fortnight, six times, with the approval of the Congress.⁶ Under this state of alarm, the Spanish Government temporarily took over the exercise of certain health-related competences from the ACs in order to quarantine citizens nationwide and to adopt other restrictive measures based on public health concerns (see Part IV below). Any matter of regional competence not expressly exercised by the State remained under the regulatory competences of the ACs.

10.  During the second wave of the pandemic from September 2020 onwards, the need for a new state of alarm started to be discussed. In view of the worrying situation in the AC of Madrid, on 9 October 2020 the Spanish Government declared a state of alarm in nine municipalities of Madrid,⁷ against the will of the Government of the AC of Madrid. The state of alarm lasted for 15 days and no extension was requested from Congress. In contrast to the approach of Madrid, in late October 2020 some ACs, including Castilla-La Mancha, officially requested the Spanish Government to declare a new nationwide state of alarm.⁸ This was declared on 25 October 2020.⁹ In contrast to the first nationwide state of alarm, the second one enabled the ACs to adapt the application of the concrete extraordinary measures to their territories. The declaration was made for an initial period of 15 days, and on 29 October 2020 the Congress authorized its extension for a further period of six months, until 9 May 2021.¹⁰ There is a debate as to whether the constitutional principle of proportionality allows for such a prolonged extension of a state of alarm.¹¹ Only one precedent exists in which an extension for longer than 15 days was approved: in 2010—when the only declaration of a state of alarm prior to the Covid-19 pandemic took place in order to address the disruptions caused by a strike of air traffic controllers—an extension of 27 days was approved by Congress¹² and ruled constitutional by the SCC.¹³

11.  A state of alarm cannot be invoked to justify the suspension of fundamental rights (Article 55(1) Constitution). There has been discussion of whether lockdowns and other restrictive measures adopted under the states of alarm so far amounted to mere restrictions of the rights to freedom of movement and residence (Article 19 Constitution), assembly and demonstration (Article 21 Constitution), and religion (Article 16 Constitution),¹⁴ or rather to unconstitutional suspensions thereof.¹⁵

12.  EU law has been very relevant to the Spanish response to the pandemic so far, mainly through coordination and support measures, in accordance with the limited public health competences of the EU (see Part IV below).¹⁶ Moreover, the European Convention on Human Rights (ECHR), directly incorporated into Spanish law according to a monist approach, remained applicable to any public executive action, subject to the control of the judiciary.

13.  There has been no decision to derogate from the ECHR or any other international human rights convention. There has however been a temporary derogation from 17 March–11 April 2020 from the Schengen internal border controls-free area and the consequent reintroduction of border checks on persons.¹⁷

14.  There was a strong tendency to directly quote standards developed by the World Health Organization (WHO), as well as by the EU, in the legal instruments or official guidance promulgated to address Covid-19, including in the declarations of a state of alarm. Such mentions were used mainly to justify the adoption of restrictive measures by all three levels of Spanish administration. In March 2020 alone, the State adopted nine health measures invoking international and EU standards.¹⁸

15.  During the Covid-19 crisis, three pieces of pre-existing state-wide legislation have been relied upon as main instruments to adopt extraordinary public health measures. These are the Public Health Special Measures Act,¹⁹ Article 26 of the General Healthcare Act,²⁰ and Article 54 of the General Public Health Act.²¹ These provisions, which are very broad and generic, authorize health authorities to take ‘any necessary measure’ to combat health emergencies, subject to the principle of proportionality. For example, Article 26 of Law 14/1986 states that ‘(i)n the event that an imminent and extraordinary health risk exists or is reasonably suspected, the health authorities shall take the preventive measures they deem appropriate, such as the seizure or immobilization of products, the suspension of the exercise of activities, the closure of companies or their facilities, the intervention of material and personal means and any other measures considered to be justified in terms of health. The duration of these measures, which shall be fixed for each case, without prejudice to the successive extensions agreed by reasoned resolutions, shall not exceed that required by the situation of imminent and extraordinary risk which justified them’. Despite the theoretical discussion about the exact content of the aforementioned provisions,²² in practice, this legal framework empowers the public administration to adopt not only single-case decisions but also general measures, addressed to a wide number of people, either with or without regulatory nature.²³ These measures are subject to the scrutiny of ordinary (contentious-administrative) courts. More precisely, the role of the judiciary in this regard is not only to scrutinize the measures after their adoption, but also to pre-authorize them in case they consist of binding provisions and include restrictions of fundamental rights.²⁴ There was discussion as to whether judicial pre-authorization is required only for single-case decisions or also for general measures restricting fundamental rights.²⁵ In any case, it must be noted that this regime of judicial pre-authorization is applicable to extraordinary measures adopted on the basis of the health legislation described above, but not to extraordinary measures adopted on the basis of a state of alarm.²⁶

16.  No new general law was introduced providing emergency powers to respond to Covid-19. However, the general framework described above has been subject to a relevant amendment through Law 3/2020,²⁷ an ordinary Act of Parliament which modified several provisions of the Act on Contentious-Administrative Courts. This amendment, which is not subject to any sunset clause, clarifies that extraordinary public health measures adopted on the basis of health legislation are subject to judicial authorization both when they are single-case decisions with individual addresses and when they are general measures. Moreover, this amendment states that single-judge courts only have jurisdiction to authorize single-case measures, while general measures must be authorized by higher (collegiate) courts, namely the High Courts of Justice of the ACs (Tribunales Superiores de Justicia) and by the National High Court (Audiencia Nacional) for regional and state measures respectively.

17.  Apart from Law 3/2020, as of 1 November 2020 no other Act of Parliament has been passed to provide assistance in managing the pandemic

18.  The prominence of executive rule-making powers in dealing with the pandemic is overwhelming, both at the State and at the regional level. By 1 November 2020, a total of 256 coronavirus-related norms had been approved by the executive at the State level, mostly by the Government or its Ministries.²⁸ The vast majority of these rules (up to 227) are regulations ranking below parliamentary (and governmental) Acts. However, a significant number of coronavirus-related norms (a total of 22) were passed as Acts of Government, namely as royal decree-laws (decretos-leyes), which have the same rank of Acts of Parliament and can be adopted in situations of ‘extraordinary and urgent need’ (Article 86 Constitution).²⁹ Under Articles 82–84 of the Constitution the Spanish Government can also adopt another type of Act, the so-called ‘legislative decrees’ (decretos legislativos), which are delegated legislation based on parliamentary authorization. However, this mechanism has not been used to fight the pandemic so far.

19.  Royal decree-laws produce effects from enactment but must subsequently be ratified by the Congress within 30 days to become permanent—ratification that usually takes place because ordinarily the Government enjoys the support of the majority of Members of Parliament (MPs). Regulations on the contrary do not need ratification by Congress, as they rank below Acts (either parliamentary or governmental); however, both Congress and the Senate can pose questions and interpellations regarding governmental regulations, which are therefore subject to a soft form of parliamentary review. Regulations adopted to fight the pandemic were not generally subjected to sunset clauses, with the exception of those adopted on the basis of a state of alarm—which are applicable as long as the declaration remains in force.³⁰ In some cases, however, royal decree-laws and regulations adopted to fight the crisis expressly set out that some of their provisions shall cease to have effect after a specific date.³¹

20.  In addition to parliamentary review, norms approved by the Government are subject to review by courts. As norms having the rank of Acts, royal decree-laws, which cannot regulate certain issues (such as fundamental rights), are subject to the scrutiny only of the Spanish Constitutional Court and not of the judiciary as a whole, and broadly considered to be very deferential concerning the justification of the ‘extraordinary urgent need’ to use this exceptional legislative instrument.³² Regulations in turn are subject to judicial review by the judiciary, and more specifically by contentious-administrative courts.

21.  The ACs have the power to pass regulations and Acts (decree-laws and legislative decrees) in accordance with their Statutes of Autonomy (Estatutos de Autonomía).³³ In all ACs the executive played a predominant role in responding to the pandemic.³⁴ The Statutes of Autonomy of Madrid³⁵ and Castilla-La Mancha³⁶ empower the regional government to pass regulations and legislative decrees, but not to enact decree-laws. By 1 November 2020, a total of 42 coronavirus-related regulations had been adopted in Madrid and 74 in Castilla-La Mancha. Regional parliaments in turn passed only one coronavirus-related Act in Castilla-La Mancha,³⁷ and not even one in Madrid.

22.  In addition to the power to make regulations, the public administration in Spain has direction-giving powers, which allow public authorities to issue instructions (instrucciones) and service orders (órdenes de servicio) to their hierarchically subordinate bodies.³⁸ These are flexible measures that can be adopted without conducting any administrative procedure and they have legal effects only within the administration itself. However, they must be officially published whenever ‘deemed appropriate by reason of their addressees or their potential effects’,³⁹ which reveals that they can have some legal effects vis-à-vis third parties. This fact, which blurs the distinction between directions and regulations, has been the subject of long-standing criticism in Spain.⁴⁰ Broadly considered as a form of soft law,⁴¹ directions have been issued in a relatively small number of cases by Spanish authorities during the Covid-19 crisis—seven measures at the State level, three in Castilla-La Mancha, and one in Madrid. Some of these directions are discussed further in Part IV.A below.

23.  In addition to the aforementioned directions, national and regional authorities made extensive use of other non-binding advice and guidance measures to fight the crisis. More than 200 guidance measures were adopted by the national State and by the ACs between early March and late July 2020 alone. Most of them concern measures to prevent the transmission of the virus, as well as for the treatment and pharmacological care of Covid-19 patients.⁴²

24.  Guidance measures were mostly used for prescriptive (rather than merely interpretative) purposes, aiming to guide and influence the conduct of either civil servants and other public employees providing essential public services or citizens and businesses in general. The constitutional distribution of competences was respected in the enactment of these measures, which therefore were not generally used by the authorities that authored them to overcome their lack of competence to adopt binding rules. The frequent use of guidance is explained by the fact that their adoption is not contingent on any procedural rules, as opposed to the highly formalized administrative procedures for the enactment of hard law measures.⁴³ Moreover, soft law proved to be effective in enhancing the implementation of certain principles governing the relations between the different levels of territorial administration, such as the principles of cooperation and coordination (Articles 2 and 103(1) Constitution).

25.  There has been a substantial degree of confusion as to whether certain measures constituted (hard) law or non-legally binding guidances.⁴⁴ There are several reasons for this. Firstly, guidance was presented in a variety of forms—from posters and audio-visual elements, to detailed written guides—that were frequently amended and in many cases were included in specific chapters or provisions of binding regulations and were subject to frequent updates. Secondly, most soft law measures were not subject to official publication in official journals, but only published on the websites of the administrations that created them. They were also not accessible through a dedicated and unified web page, either at the State or regional level. Thirdly, many of these measures were no longer available online after a certain period, making it difficult to identify and quantify them accurately. Lastly, non-binding guidance sometimes reproduced (at least partially) the content of hard rules in force, or could be found in informative documents that reproduced or explained the content of binding provisions, without clearly distinguishing between them.⁴⁵ These elements are problematic from the standpoint of the constitutional principles of legal certainty (Article 9(3) Constitution) and transparency of administrative actions as an implicit requirement in the principle of democracy (Article 1(1) Constitution).⁴⁶

26.  Even though no comprehensive empirical assessment on compliance rates has been published thus far, the coronavirus-related guidance seems to have been moderately effective in steering the conduct of the public amid the pandemic. Furthermore, research into judicial decisions delivered between March and August 2020 shows that courts indirectly enforced public health guidance by using it as an interpretative parameter of hard law rules.⁴⁷

27.  This section focuses on the Spanish Parliament—mostly, but not only, on the Congress of Deputies, as it has the more relevant powers to supervise the executive—as no relevant particularities arise from the way in which Parliaments of the ACs supervise the executive of ACs. As stated above, the Congress of Deputies has the exclusive power to extend states of alarm beyond their maximum initial period of 15 days and to set the content and scope of such extensions.⁴⁸ As regards royal decree-laws, Congress decides whether they should be confirmed through a yes or no vote which does not allow for amendments. However, if it confirms a royal decree-law, it can decide to process it as a draft bill under the urgent legislative procedure, where amendments are possible.⁴⁹ On the other hand, public health regulations, directions, and guidance are not subject to a formal procedure of confirmation/rejection by Parliament. However, both the Congress of Deputies and Senate control all actions of Government in weekly control sessions,⁵⁰ mainly through questions and interpellations,⁵¹ requests for information,⁵² and parliamentary commissions of investigation.⁵³

28.  The legislature can at any time terminate the executive’s rule-making powers if they stem from a prior Act of Parliament empowering the executive to pass regulations that develop or implement legislative provisions in certain areas of law, by means of a new Act of Parliament—adopted on the initiative of any group of MPs—withdrawing such rulemaking powers. Such empowerments are necessary for the executive to enact regulations in areas constitutionally subject to a statutory reservation (reserva de ley). Statutory reservations are constitutional clauses according to which certain subject-matters must be regulated primarily by an Act of Parliament, which can nonetheless authorize the Government to issue regulations that implement rules in that area.⁵⁴ Even in matters not subject to a statutory reservation, Parliament can at any time decide to pass an Act that regulates a given area of law and that repeals pre-existing executive rule-making in that area, making that subject-matter inaccessible to regulations as a consequence of the principle of hierarchy:⁵⁵ here, executive rulemaking powers still exist, but they are constrained by the fact that the relevant subject-matter is now regulated by an Act and therefore cannot be changed through a regulation.⁵⁶ The legislature cannot terminate executive rulemaking powers stemming directly from Article 97 of the Constitution, which says that the Government has the power to enact regulations, and which covers regulations in any area of law not subject to a statutory reservation. . Neither can Parliament terminate the Government’s power to pass royal decree-laws made under Article 86 of the Constitution and decrees declaring a state of alarm under Article 116 of the Constitution . As these powers are granted and limited by the Constitution itself, their exercise does not require any kind of legislative pre-authorization or renewal, and they cannot be extended by the executive.

29.  Parliament is engaged in the regular scrutiny of the exercise of executive powers in respect of the Covid-19 crisis. As mentioned above, all required extensions of states of alarm have been approved by the Congress of Deputies. Likewise, Congress has confirmed all 22 coronavirus-related royal decree-laws adopted by Government. In accordance with the legal framework outlined, no other regulations were subject to formal parliamentary approval before or after taking effect, although regulations and all other governmental measures were subject to parliamentary scrutiny as explained below.

30.  As will be explained in Part III.B below, all measures of the Government have been subject to parliamentary scrutiny during the Covid-19 crisis.⁵⁷ Such scrutiny took place chiefly through questions to and interpellations of Government members in plenary sessions in Congress and the Senate. There was also control through parliamentary committees in place in each Chamber of Parliament for each government department, which held hearings with the participation of the corresponding Ministers—most prominently the Minister of Health—and reported to the plenary regularly. Moreover, a special Parliamentary Committee for the Social and Economic Reconstruction was created in the Congress of Deputies on 7 May 2020 in order to assess the consequences of the crisis and to try to reach a consensus on the legislative and governmental action necessary to overcome it. The Final Report of the Committee was approved by the Plenary of Congress on 29 July 2020, thereby expressing its political commitment to undertake a series of strategic actions in the following months and years in the areas of health preparedness and resilience, and of economic investment and recovery.⁵⁸

31.  Both Chambers of Parliament are entitled to pass resolutions expressing their position in respect of governmental actions.⁵⁹ Moreover, the Congress of Deputies may challenge Government policy and thereby withdraw parliamentary confidence from it by passing a motion of censure (moción de censura) by an absolute majority of its members,⁶⁰ which involves a significant political control whenever there is a minority Government. On 22 October 2020, a motion of censure was voted in Congress on the initiative of the right-wing party Vox, but it was defeated by a vote of 52 to 298.⁶¹

32.  Ordinary periods of sessions of the Parliament are held between February and June and between September and December. Extraordinary plenary sessions can be called in January, July, and August. This calendar was not significantly modified during the pandemic; both Chambers of Parliament were able to meet and to perform their functions.⁶² However, during the first months of the crisis their work did suffer certain disruptions. Neither the Constitution nor the Rules of Procedure of Congress of Deputies and of the Senate provide for adapting the functioning of Parliament in response to either a pandemic or a state of alarm. Alterations to the normal operation of the Chambers were decided by their respective Bureaus (Mesas de las Cámaras) following the adoption of ad-hoc cross-party agreements by each Chamber’s Board of Spokespersons (Junta de Portavoces).⁶³

33.  On 12 March 2020, as the first cases of contagion among MPs were confirmed, the Bureaus of Congress and Senate decided to suspend the sessions of all parliamentary bodies for a period of 15 days, except for a scheduled appearance of the Minister of Health before the Congress’ Committee for Health and for plenary sessions devoted to validation of royal decree-laws and extensions of the state of alarm.⁶⁴ On 21 April, sessions resumed but the Bureaus of both Chambers decided to suspend deadlines for parliamentary initiatives underway in accordance with the general suspension of administrative deadlines imposed by the royal decree declaring the state of alarm.⁶⁵ The suspension of deadlines was lifted from 13 April 2020 in Congress and from 15 April 2020 in the Senate. This moment marked the resumption of the ordinary function of control of both Chambers over governmental action through questions, interpellations, and appearances of Government members before the plenary and before parliamentary committees. It must be noted that the Minister of Health appeared before parliamentary committees throughout the period of disruption, and that parliamentary hearings put on hold at the beginning of the pandemic were subsequently scheduled and conducted. Both Chambers also set out internal rules to enable remote working of their administrative staff and the processing of parliamentary initiatives by electronic means.

34.  After the initial period of disruption, parliamentary committees began to meet and to conduct their business without significant alterations. Upon resumption, temporary arrangements were implemented for hybrid proceedings by the Bureaus of the Chambers, which entailed a flexible interpretation of the Rules of Procedure of Congress of Deputies and Senate in order to allow MPs to vote by telematic procedure at their request. Plenary sessions continued to be in-person, but with the attendance of a reduced number of MPs—of up to 50% of the size of their respective political groups—agreed between the political parties. The passage of legislation was not suspended despite constraints on the number of persons permitted to attend plenary sessions in person. The conduct of plenary sessions by fully remote means was rejected by the Bureaus of Congress and Senate. This was based on Article 79(1) of the Constitution, which requires that the Chambers must meet with a majority of their members present in order to adopt decisions. The SCC has stressed that this provision, which is also enshrined in the Rules of Procedure of both Chambers, requires as a general rule that MPs attend in person.⁶⁶ In spite of this, several proposals for the amendment of the Rules of Procedure of Congress and of the Senate have been submitted, calling for the possibility of online functioning of the Chambers in extremely exceptional circumstances. Most of these proposals were either withdrawn by their authors or rejected by the plenary. By 1 November 2019, a proposal made by the Parliamentary Groups of Vox and Plural is pending in Congress, and proposals by the Parliamentary Groups Esquerra Republicana/Bildu and Junts per Catalunya/Coalición Canaria/Partido Nacionalista Canario are pending in Senate.⁶⁷

35.  There have been complaints by opposition parties regarding the disproportionate political constraints imposed on parliamentary scrutiny during the pandemic, mainly due to the refusal by the Bureaus of both Chambers to allow for fully telematic plenary sessions under the current legal framework. With the exception of the proposals for the amendment of procedural rules of the Congress of Deputies and of the Senate referred to above—which call for a flexible interpretation of the SCC’s case law, insofar as this was issued in view of completely different circumstances—most of these complaints were made through political statements and mentioned no legal grounds on which full telematic functioning of the Parliament could be based. ⁶⁸

36.  Article 116 of the Spanish Constitution prohibits the declaration of a state of alarm from interrupting the functioning of any constitutional State authorities. Both the SCC and the Spanish judiciary—which is organized into four branches, namely civil, criminal, contentious-administrative, and social courts—continued their operations throughout the pandemic, although with certain disruptions during the first weeks. On 14 March 2020, Royal Decree 463/2020, which declared the state of alarm, suspended all limitation periods provided for in procedural laws for all jurisdictional branches. On the same day, the General Council of the Judiciary (Consejo General del Poder Judicial) suspended all scheduled legal proceedings and all procedural deadlines. However, this did not interrupt the delivery of judicial decisions on ongoing cases. The suspension of procedural deadlines and proceedings, which lasted until 4 May 2020, did not apply to certain proceedings, including habeas corpus proceedings, proceedings with detainees, protection orders, urgent prison surveillance proceedings, interim measures proceedings regarding violence against women or minors, proceedings for the authorization of administrative measures restricting fundamental rights, collective conflict proceedings in the area of labour law, or procedures for the protection of human rights, among others.⁶⁹ There is some discussion as to whether this disruption breached Article 116 of the Constitution.⁷⁰ The suspension of time limits and procedures provoked a significant slowdown in the functioning of justice and led to the adoption of several organizational and procedural amendments through Royal Decree-law 16/2020 of 28 April, later refined and replaced by Law 3/2020 of 18 September, which introduced several temporary measures applicable until 20 June 2021 in respect of the functioning and use of technological tools in courts. This also included the creation of new judicial units for the processing of coronavirus-related cases and the suspension of the judicial recess in August. These norms aimed at speeding-up the processing of cases that accumulated during the state of alarm and improving the efficiency of the judiciary ahead of the envisaged increase in litigation resulting from Covid-19 restrictive measures.

37.  Royal Decree-law 16/2020 of 28 April and Law 3/2020 of 18 September introduced a preference for telematic means in almost all judicial proceedings (including electronic submission of documents, electronic communications and notifications, and remote celebration of hearings), except for some criminal proceedings—namely in cases of serious crime, requests for provisional detention, or when a prison sentence of more than two years is requested: in these situations, the physical presence of the accused person is necessary. Likewise, they established that all judicial rulings and notifications should be published electronically in the Single Judicial Edictal Board, managed by the Spanish Official Journal. On 27 May 2020, the General Council of the Judiciary published a Guide for the conduct of telematic court proceedings, and on 19 June 2020 a similar Guide was issued by the Minister of Justice.

38.  To date, there is neither official assessment nor comprehensive research on whether and to what extent the introduction of remote proceedings is creating a digital divide between users who have digital skills and access to technology and those who do not.

39.  Taking legal action was not considered a risk to public health and, therefore, no barriers were created to access to justice. However, courts adapted their processes in response to the pandemic. In the interests of legal certainty, Royal Decree-law 16/2020 of 28 April laid down general rules for the calculation of time limits suspended under the state of alarm. It opted for the resumption of their calculation and thus not taking into account the time which had elapsed before 14 March 2020. Likewise, it extended the deadlines for lodging appeals against judgments and other resolutions issued and notified during the suspension of deadlines and within 20 working days following the lifting of the suspension. Courtroom practice was also modified to accommodate Covid-19 disruption. Royal Decree-law 16/2020 of 28 April and Law 3/2020 of 18 September prohibited attendance of oral proceedings by members of the public until 20 June 2021, and they further introduced measures to ensure the safety of all those working in and attending courts. Furthermore, during the pandemic the General Council of the Judiciary has adopted several practice directions applicable in court proceedings to avoid contagion and safeguard the normal functioning of the justice system.⁷¹

40.  The review of both the declaration of a state of alarm and of royal decree-laws is exercised by the SCC (not by the judiciary), which usually takes a deferential approach to the Government’s assessment (see Parts II.A, para 8, and II.C, para 20 above). This is so for royal decree-laws, while no established practice exists regarding states of alarm—in respect of which the SCC has ruled on the merits just once.⁷² In turn, the judiciary reviews any other executive action, including extraordinary health measures adopted on the basis of health legislation. Courts also have to authorize these health measures ex ante whenever they restrict fundamental rights (see Part II.B, paras 15 and 16 above). Ordinary (contentious-administrative) courts ordinarily conduct a much stricter control than the SCC. Review procedures before the SCC and before ordinary courts are contingent upon cases being initiated by parties—or, in the case of ex ante authorization of public health measures, upon request of the administrative authority intending to adopt such measures. At the time of writing, one constitutional appeal was pending before the SCC in respect of the state of alarm declared by Royal Decree 463/2020 and the royal decrees extending it.⁷³ Two coronavirus royal decree-laws have been challenged before the SCC and the cases are still pending⁷⁴. Regulations and single-case administrative measures have been reviewed by the courts in a higher number of cases, some of which are detailed in Part IV below.

41.  The pandemic provoked the postponement of the autonomic elections in Galicia and the Basque Country which had been initially scheduled for 5 April 2020 but took place on 12 July 2020. In person voting at polling booths was permitted. The independent Spanish Electoral Commission (Junta Electoral Central) decided to extend the deadlines that ordinarily apply to postal voting.⁷⁵ In addition to these procedural adaptations, both elections were subjected to additional protective measures implemented by the health authorities of the respective ACs.⁷⁶ Infected persons and/or individuals in quarantine were prevented from in-person voting.⁷⁷

42.  Election turnout increased in Galicia and decreased in the Basque Country compared to the previous autonomic elections in these ACs.⁷⁸ The turnout decreased in municipalities that experienced positive cases of Covid-19, but there is no evidence of change in the vote shares of the incumbent parties at the regional level.⁷⁹

43.  Spanish law does not specifically require that scientific advice must be followed in health legislation or rule making. However, several provisions of the General Public Health Act mention that public health policy must be shaped in conformity with scientific criteria.⁸⁰ Article 11 of Law 33/2011 provides that if committees or public bodies assessing actions or making recommendations concerning public health are created, both their composition and their relevant opinions and documents must be made public. Moreover, this provision requires that such committees should be transparent and impartial.

44.  There has been a strong discussion at the national level concerning the alleged lack of transparency regarding the composition and operation of committees of experts advising the Government in the management of the crisis. On 21 March 2020, the Spanish Government announced the creation of a Covid-19 Scientific Committee led by the Director of the National Centre for Coordination of Health Emergencies, which would advise the Government in the management of the crisis.⁸¹ On 28 April 2020, as the epidemiological situation improved, the Government approved a National Plan for the Transition to a New Normal (Plan de Transición hacia una Nueva Normalidad), also known as the ‘De-escalation Plan’, mentioning that it had been drafted with the assistance of a ‘working group of experts’. From that moment onwards, a high degree of public confusion emerged as to how many committees were created and who sat on them as members. Opposition parties demanded that the membership should be identified and their preparatory reports must be published.⁸² The Spanish Ministry of Health refused to publish this information to ‘avoid pressure from society’.⁸³ In late July 2020, the press reported that the Ministry of Health explained to the Spanish Transparency Council that ‘no formal group of experts’ assisted the Government in drafting the Plan for the Transition to the New Normal, but that the executive had merely consulted its own staff and in particular the National Centre for Coordination of Health Emergencies.⁸⁴ No technical preparatory reports of any of these ‘groups of experts’ have been made public. Overall, these facts point to an low level of institutionalization and transparency of scientific advice over the pandemic.⁸⁵

45.  The Spanish scientific community has pointed to a low level of reliance on scientific advice as one of the reasons explaining the severe impact of the pandemic in Spain and has repeatedly urged the Spanish Government as well as regional governments to independently evaluate their Covid-19 response.⁸⁶ However, no independent committee of experts has been appointed so far.

46.  Under Article 20(1) of the Spanish Constitution the right to freely communicate and receive accurate information is a fundamental right. There is some controversy as to whether this right was restricted disproportionately during the first nationwide state of alarm (March to June 2020) in respect of the press conferences of the Spanish Government. Over this period, such press conferences were held with the remote attendance of journalists using online platforms, but questions had to be submitted in advance and were reportedly filtered by the Government.⁸⁷ On 6 April 2020, around 550 journalists from different Spanish media signed a protest letter entitled ‘The freedom to ask’, denouncing the policy and claiming that it had unjustifiably and disproportionately restricted the freedom of the press.⁸⁸ A new system was then introduced which allowed questions to be put to members of Government in live communication and without intermediaries. When the epidemiological situation improved, physical attendance by a limited number of journalists of these press conferences was allowed from 28 May 2020.⁸⁹ On 3 April 2020, the opposition party ‘Partido Popular’ launched an initiative in Congress to pass a resolution urging the Government to ensure that all media can put questions directly to members of Government during press conferences.⁹⁰ On 7 July 2020, the same party launched another initiative in Congress to pass a resolution calling on the Government to commission an independent report on potential restrictions imposed on press freedom through the system of press conferences implemented during the first weeks of the state of alarm.⁹¹ As of 1 November 2020, both initiatives are still pending.

47.  The general framework on transparency and access to public information is contained in the so-called Transparency Act,⁹² which is primarily enforced by the Spanish Transparency Council (Consejo de Transparencia y Buen Gobierno). Even though it was neither suspended nor modified, compliance of public authorities with this framework was obstructed by disruptions arising during the pandemic. In particular, publication of information on the Spanish Transparency website has been considerably delayed and requests for public information were temporarily put on hold due to the suspension of administrative deadlines imposed by Royal Decree 463/2020 declaring the state of alarm. On 27 April 2020, several Spanish associations promoting transparency issued a statement calling on the Government to safeguard the right of access to information amidst the suspension of administrative deadlines.⁹³ After expiration of the first state-wide state of alarm on 21 June 2020, the Transparency Council resumed processing requests for public information and returned to normal functioning, although reply to citizens’ requests is carried out preferably by telematic and telephone means. For in-person service, an appointment is required.⁹⁴

48.  The Spanish Ombudsman (Defensor del Pueblo) investigates and reports on maladministration in local government. There are regional Ombudsmen in some ACs with similar functions in respect of regional governments⁹⁵—there is no regional Ombudsman in Madrid, and in Castilla-La Mancha it existed between 2001 and 2011, when it was abolished because of the 2008 financial crisis.⁹⁶ Neither of them undertook any general investigations of pandemic-related policy, although executive actions in this field were included within their remit and have given rise to certain investigations and recommendations. The Spanish Ombudsman addressed several recommendations to the Government regarding restrictions of fundamental rights under the state of alarm,⁹⁷ and it is now looking into protective measures taken by the State and the ACs in respect of migrants,⁹⁸ as well as in respect of facilities for the elderly and hospitals,⁹⁹ among other issues.¹⁰⁰ In September 2020, the Ombudsman dismissed several applications to bring a constitutional appeal before the SCC against Royal Decree 463/2020 of 14 March declaring the state of alarm.¹⁰¹ A hearing of the Spanish Ombudsman before Congress reporting on Covid-19 is scheduled for 26 November 2020.

49.  No special independent reviewer of Covid-19 legislation or policy was appointed. As stated above, general and thematic scrutiny were carried out by standing parliamentary committees in the Congress of Deputies and in the Senate.

50.  Public health measures covered in this Part have been enacted by the State and by the ACs. The role of each varied over the pandemic. During the first nationwide state of alarm, most health competences were temporarily assumed by the Spanish Government (Article 4 of Royal Decree 463/2020 of 14 March). Upon termination of this period on 21 June 2020, the ACs played the most prominent role, adopting extraordinary health measures under the health legislation referred to in Part II.B, paragraph 15 above. Upon declaration of the second nationwide state of alarm, some health competences have been temporarily assumed by the Spanish Government, while others remain in the hands of ACs, but subject to the specific rules stated in Royal Decree 926/2020 of 25 October. This norm allows ACs to adopt certain extraordinary health measures beyond the limits established by health legislation—most prominently, without the need for judicial authorization thereof.

51.  There has been substantive variation in the timing and the content of regional measures, especially during the second wave of the pandemic (from September 2020). The lack of effective coordination between the State and ACs led to the adoption of Royal Decree-law 21/2020 of 9 June amending Article 65 of Law 16/2003 of 28 May on the Cohesion and Quality of the National Health System. This meant the so-called ‘coordination measures’ could be used in the context of the pandemic. ‘Coordination measures’ are a mechanism of coordination between State and ACs which binds them both when adopting extraordinary measures covered by health legislation described in Part II.B, paragraph 15 above. They are adopted by the Spanish Minister for Health, but subject to the prior ‘consent’ of the National Health System’s Interterritorial Council, in which all ACs are represented, save for a case of urgency. Once adopted by the Minister, coordinated measures are implemented by ACs through regulatory and single-case measures. However, there has been a controversy as to whether ‘consent’ means ‘unanimity’ in the Interterritorial Council, with some ACs—those governed by the main opposition party at the national level, and in particular Madrid—refusing to comply with the ‘coordinated measures’ they had voted against.¹⁰² Moreover, the interpretation of the scope of powers available for regional and local authorities under health legislation differed among ACs and also among courts, which led to a serious situation of legal uncertainty.¹⁰³

52.  Part IV.A below concentrates on the main rules applicable in Spain, which largely correspond to those adopted in Castilla-La Mancha. Each category draws attention to major variations between the measures adopted in these two jurisdictions and Madrid, where appropriate.

53.  An updated list of all public health regulations adopted by the State, as well as by the ACs, is available at the website of the Spanish Official Journal.¹⁰⁴

54.  During the first state of alarm (14 March to 21 June 2020), a general stay-at-home order was imposed by the Spanish Government nationwide through Royal Decree 463/2020. Persons could leave their home only if they had a ‘reasonable excuse’, such as the need to provide care or assistance, to travel for the purposes of work, or to access critical public services (Article 7). As mentioned in Part III.C, paragraph 40 above, a constitutional appeal is pending before the SCC in respect of the lockdowns and other restrictive measures imposed by Royal Decree 463/2020 and the royal decrees extending it.

55.  As the epidemiological situation improved, this general lockdown was gradually relaxed in three phases of approximately 15 days each—the ‘De-escalation Plan’ referred to in Part III.D, paragraph 44 above.¹⁰⁵ Outdoor exercise for individuals and members of the same household was permitted from 4 May 2020 onwards. Deconfinement began on 4 May for smaller islands and on 11 May for mainland Spain, according to a flexible schedule adapted to local circumstances.

56.  Upon termination of the general lockdown on 21 June 2020, there was a gradual switch to localized lockdowns and other restrictive measures, which were highly variable. These measures were adopted by regional authorities based on health legislation described in Part II.B, paragraph 15 above. While some ACs, such as Castilla-La Mancha, enacted a high amount of protective measures of limited scope targeted at localized, nascent outbreaks, others, such as Madrid, were much less active in this regard. Moreover, the substance of these regional lockdowns was variable. In general, they were not ‘stay-at-home’ orders but rather a mixture of restrictions relating to gatherings, household mixing, business closures and limitations on the hours of operation for businesses.¹⁰⁶ Some of these variations are discussed further below.

57.  During the second wave of the pandemic, geographically limited lockdowns—preventing citizens from leaving a certain neighbourhood, city, or region—were occasionally imposed by regional authorities under health legislation (Part II.B, para 15 above). However, in Madrid, the AC with the worst epidemiological situation during that period, the regional Government explicitly refused to implement this kind of lockdown.¹⁰⁷ The Spanish Minister of Health then imposed its adoption for certain areas of Madrid through a ‘coordinated measure’, but judicial authorization of this geographically limited lockdown was denied by the High Court of Justice of Madrid, which considered that it lacked legal basis.¹⁰⁸ In response to this, the Spanish Government introduced geographically limited lockdowns for some areas of Madrid through a state of alarm for this region that lasted 15 days (Royal Decree 900/2020 of 9 October) despite the strong opposition of the regional Government of Madrid. Soon afterwards, a second nationwide state of alarm was declared by Royal Decree 926/2020 of 25 October. It did not include a general stay-at-home order, only restrictions to free movement across ACs together with general home confinement at night (Article 5). Presidents of the ACs were empowered to order geographically limited lockdowns inside the regions without any prior administrative procedure and without judicial authorization (Articles 2 and 6). This second state of alarm does not contain any provisions on other forms of ‘lockdowns’, such as stay-at-home orders or home confinements at night, which nevertheless can be imposed by the competent regional authorities based on health legislation.

58.  As of 1 November 2020, the Spanish Government’s official position is that it will not return to another general (home) lockdown arrangement as was imposed in March 2020.¹⁰⁹ However, some ACs, such as Castilla y León, have already announced—through statements of high public officials—their willingness to impose a new general lockdown and are trying to advance that such a measure must be adopted in the whole country.¹¹⁰

59.  From 23 March 2020, entry into Spain was banned for third country nationals through several regulations approved by the Spanish Minister of the Interior, with some exceptions, such as for people resident in the EU or in countries within the Schengen area or Andorra and who are in transit to their place of residence, cross-border workers, or personnel engaged in the carriage of goods in the course of their work, including ships’ crew, and flight crew necessary for carrying out commercial air transport activities.¹¹¹ These restrictions started to be lifted, particularly for EU residents, from 2 July 2020 onwards.¹¹²

60.  Upon termination of the first nationwide lockdown, which involved a general restriction on the free movement of persons within the national territory from 14 March to 21 June 2020,¹¹³ no general restrictions existed on the free movement of persons within the national territory. However, this was subject to targeted exceptions imposed by regional authorities on the basis of health legislation (see Part II.B, para 15 and Part IV.A.1, para 56 above). By October 2020, additional restrictions to free movement inside Spain were introduced by the state of alarm declared for Madrid and by the second nationwide state of alarm declared for the whole country (see Part IV.A.1, para 56 and 57 above).

61.  Public gatherings were restricted by the general provisions under the successive states of alarm, as well as by the targeted measures adopted by the ACs under health legislation referred to in Part II.B, paragraph 15 above. The strictest restrictions so far took place under the first nationwide state of alarm, which implicitly prohibited gatherings of people from different households as a consequence of the general stay-at-home order contained therein. These restrictions were relaxed on 3 May and on 16 May 2020 to permit gatherings of up to 10 and 15 people from different households, respectively.¹¹⁴ On 9 June, Royal Decree-law 21/2020—which remains in force as of 1 November 2020—introduced a generic obligation to ‘avoid any crowding in all types of establishments open to the public’.

62.  Upon declaration of the second nationwide state of alarm on 25 October 2020, public and private gatherings were limited to a maximum of six people, unless they belong to the same household or they are meeting for work or institutional purposes. Regional authorities can impose stricter rules and set the maximum number of people allowed to gather for religious purposes.¹¹⁵

63.  Upon declaration of the first nationwide state of alarm on 14 March 2020, retail premises and establishments were ordered to close to the public with some exceptions for retail establishments selling food, beverages, and basic necessities, pharmaceutical establishments, health facilities, veterinary centres or clinics, opticians and orthopaedic products, hygiene products, press and stationery, motor fuel, tobacco shops, technological and telecommunications equipment, pet food, internet commerce, telephone or mail order business, dry cleaning, laundry, and professional hairdressing at home. Mandatory closure applied also to museums, libraries, monuments, hotels, restaurants, sport and leisure facilities, as well as to parks, including playgrounds for children.¹¹⁶

64.  These restrictions were gradually eased in early May 2020, according to the phases established in the De-escalation Plan (see Part III.E, para 44 above). On 4 May 2020, some local shops reopened on an appointment basis and restaurants and bars were allowed to reopen exclusively for takeaway meals. On 11 May, shops and food markets reopened with social distancing measures and restrictions on capacity. Restaurants and bars reopened their terraces at 30 per cent capacity, and hotels reopened without communal spaces. Public transport reopened with full service but reduced passenger capacity. In late May, cinemas and theatres were allowed to reopen at 30 per cent capacity, and restaurants and bars could offer table service at 30 per cent capacity. In mid-June, large shopping centres also reopened with reduced capacity, and bars and nightclubs reopened at 30 per cent capacity.¹¹⁷

65.  From 21 June 2020 onwards, these restrictions have been removed but more targeted restrictive measures have been imposed where necessary by regional authorities based on health legislation (Part II.B, para 15 above). Moreover, all establishments open to the public are subject to the obligation to ensure physical distancing of 1.5 metres and prevent crowding (Royal Decree-law 21/2020 of 9 May, which remains applicable as of 1 November 2020). Additionally, under the 15-day state of alarm for Madrid and the second nationwide state of alarm declared on 25 October 2020, public and private premises (including religious premises) are subject to the gathering restrictions described in Part IV.A.3, paragraph 62 above.

66.  Educational centres of all levels, including universities, were temporarily closed by regional authorities following the Spanish Government recommendation of 12 March 2020.¹¹⁸ On 14 March, closure was imposed on all educational premises by Article 9 of Royal Decree 463/2020 declaring the state of alarm, although most of them continued to operate through telematic means. Gradual reopening was allowed from 9 May 2020,¹¹⁹ and increased from 5 June 2020.¹²⁰ From 9 June 2020 onwards, all educational centres are subject to general obligations regarding disinfection, mandatory physical distancing of 1.5 metres, and crowding prohibitions.¹²¹ Full reopening of educational centres occurred from early September 2020, with social distancing rules in place.¹²² By the end of that month, all educational centres in Spain remained opened but 1% of primary school classes throughout the country had been forced to temporarily quarantine due to the infection of some of the students.¹²³ As of 1 November 2020, educational centres remain open.

67.  Until May 2020 there was no legally mandatory physical distancing requirement between members of the public, only official guidance in this regard. General rules imposing a minimum physical distance of two metres were implemented from 9 May onwards.¹²⁴ On 9 June 2020, Royal Decree-law 21/2020 (which remains applicable as of 1 November 2020) introduced a generic obligation to maintain a minimum physical distance of 1.5 metres in all types of establishments open to the public, including on public transport. Royal Decree-law 21/2020 does not contain any specific explanation for adopting the 1.5 metre rule instead of the preceding 2 metres rule, apart from referring in its preamble to the overall goal to ‘foster economic recovery’.

68.  During the first weeks of the pandemic, no legal obligation existed regarding the use of facemasks. On 3 May 2020, face masks were ‘highly recommended’ on public transport and outside the home.¹²⁵ Their use became mandatory for the entire Spanish territory from 21 June onwards through Royal Decree-law 21/2020, which remains applicable as of 1 November 2020. This obligation applies to all persons over six years of age: (i) on streets, in open air spaces, and in any closed space for public use or that is open to the public, provided that it is not possible to maintain a physical safety distance of at least 1.5 metres,¹²⁶ and (ii) in means of transport by air, sea, bus, or rail, as well as in complementary public and private transport vehicles of up to nine seats, including the driver, if the occupants of the passenger vehicles do not live in the same household. This obligation does not apply to people with certain respiratory conditions, in a situation of disability or dependence, ie people who cannot lead independent lives for reasons of illness, disability, or age, during the practice of individual sports, or the performance of activities incompatible with the use of the facemask.¹²⁷

69.  During the pandemic, Spanish authorities have imposed isolation, testing, and quarantine on individuals and groups under health legislation, specifically under Organic Law 3/1986 of 14 April. Most of these measures were adopted by administrative health authorities of the ACs, ie public health officials, as they have the most competences to enforce public health legislation.¹²⁸ The adoption of any such measure must be authorized by the contentious administrative courts according to the criteria of necessity and proportionality (see Part II.B, para 15 and 16 above). No general rules have been passed at the State level on how the concepts of necessity and proportionality must be interpreted when adopting these restrictive measures. In some cases, courts refused to authorize these kinds of restrictive measures because they lacked legal basis or were found to be disproportionate.¹²⁹

70.  From March 2020 onwards, non-binding surveillance protocols were approved by the Minister of Health and updated on a constant basis, providing guidance on the steps to be taken by public administrations, undertakings, and individuals in case of infection.¹³⁰ In general, contacts of infected persons were not actively followed up or tested, but they were instructed to quarantine at home for 14 days, and if they developed symptoms during this period, they were required to self-isolate and contact health authorities. Binding rules for early detection, surveillance, and control were adopted on 25 September 2020 by a decision of the National Health System’s Interterritorial Council, in which all ACs as well as the Spanish Ministry of Health are represented.¹³¹ Specifically, these binding rules set out that asymptomatic individuals have to self-isolate for 10 days from the day they were tested, and they are monitored according to the rules of each region. It is also established that symptomatic individuals who do not require hospitalization must self-isolate at home for at least 10 days from the beginning of their symptoms, and after the symptoms disappear for at least three more days. Once the quarantine period is over, infected persons do not need to be tested again in order to get back to normal life, except for health or social care workers. There is no obligation to report contacts, but health authorities can look for them. If identified, they must be informed that a person close to them has tested positive. Close contacts of confirmed cases must be quarantined for 10 days from the date of their last contact with the infected person. If possible, they should be tested 10 days after the contact, but regions can follow their own guidelines on this matter. In addition to these 10-day quarantine periods, these rules recommend maintaining close observance of potential symptoms for four more days. The combination of these two timeframes amount to the 14-day standard incubation period for Covid-19. ¹³²

71.  Regarding testing, and as explained in Part IV.A.7, paragraphs 69 and 70 above, firstly non-binding and then (from 25 September 2020 onwards) binding protocols existed regarding who should be tested and how. No general obligation to be tested against Covid-19 existed, though such an obligation was imposed for certain individuals (close contacts of infected persons) and groups (whenever regarded at high risk of having being infected) on a case-by-case basis through administrative measures adopted on the basis of health legislation (Organic Law 3/1986 of 14 April). Beyond this, Royal Decree-law 23/2020 of 23 June enabled the Government to impose a general obligation to be tested on those travellers entering Spain by air or sea. By 1 November 2021, this possibility had not yet been used. Massive testing campaigns, which were voluntary for their addressees, were launched by the different levels of administration ever since April 2020, and by early May 2020 Spain was ranked 17th among OECD countries for Covid-19 tests carried out.¹³³

72.  No rules were passed regarding medical procedures for treatment of Covid-19 patients, and only non-binding recommendations, protocols, and other soft law technical documents were adopted in respect of medical assistance to patients¹³⁴ and of Covid-19 testing procedures.¹³⁵ As noted in Part II.D, paragraphs 23–25 above, the way in which these soft law instruments were used made it difficult to ascertain which recommendations were in place at any given place and time.

73.  In the area of vaccination, it must be noted that under current Spanish legislation vaccines are voluntary for their addressees as a general rule, although in exceptional situations they can be made compulsory for certain persons or groups on the basis of health legislation and subject to prior judicial authorization,¹³⁶ in the terms explained in Part II.B, paragraphs 15 and 16 above—a possibility that has not been used so far in respect of Covid-19. On 27 August 2020, the Interterritorial Council of the National Health System decided to anticipate the annual influenza vaccination campaign and to prioritise vaccination of groups particularly exposed to Covid-19, such as the elderly or healthcare professionals.¹³⁷ By 1 November 2020, the Spanish Ministry for Health was working on a draft National Vaccination Strategy against COVID-19, finalization of which was expected for December 2020.

74.  From 14 March 2020 onwards, contact tracing procedures were established by nonbinding protocols approved by the Minister of Health and updated on a constant basis.¹³⁸ On 27 March 2020, binding rules were passed through an Order of the Minister of Health regarding the utilization of anonymized and aggregated data derived from mobile operators for analyzing the population movements prior and during the lockdown, with a view to identifying hotspots and improving the management and coordination of health care resources.¹³⁹ On 11 May, another Order of the Minister of Health imposed on all public and private health centres and health workers an obligation to report all confirmed and suspected cases of Covid-19 to the Ministry of Health.¹⁴⁰ Later on, Royal Decree-law 21/2020 of 9 June imposed on all establishments, means of transport, or any other public or private entities in which health authorities identified the need for contact tracing, the obligation to provide health authorities with information concerning the identification and contact details of persons potentially infected by Covid-19.¹⁴¹ Moreover, from this date onwards the surveillance protocols agreed in the National Health System’s Interterritorial Council were made mandatory all over the country.¹⁴² These protocols are further explored in Part IV.A.7, paragraph 70 above.

75.  On 27 March 2020, the Secretary of Digitalization and Artificial Intelligence, a body of the Ministry of Economic Affairs, was ordered to develop a contact-tracing app to support the management of the pandemic.¹⁴³ This app, called ‘Radar Covid’, enables citizens to self-assess their health status, receive advice and recommendations, and trace their contacts through a system of anonymous identifiers. Download and use of the app is voluntary, but strongly recommended, as explained in its official website.¹⁴⁴ Users who test positive for Covid-19 can decide whether they consent to the regional health system notifying all their contacts—that is, those picked up by the app by virtue of spending at least 15 minutes within two metres of the infected person. The contact should receive a warning on their mobile phone about a potential infection and how to proceed. No user can be identified or located as the data are not registered anywhere. The app has been available since 7 April 2020 and covers the population living in those ACs that have not developed their own information and monitoring applications, such as Castilla-La Mancha.¹⁴⁵ Contact-tracing procedures have been updated at a regional level to guide decisions about those contacts identified by the app. On August 27, the Ministry of Defence made available to ACs up to 2,000 Armed Forces personnel to reinforce their contact tracing capabilities. These soldiers received special training in carrying out effective contact tracing, obtaining information to discriminate potential contacts of risk, calculating the quarantine time depending on the epidemiological survey, and providing support to traced individuals.¹⁴⁶ On 1 October 2020, the Ministry of Defence announced that many ACs, including Madrid, had resorted to the Armed Forces personnel offered by the Spanish Government to reinforce their contact tracing capabilities.¹⁴⁷

76.  In Spain, residential centres for the elderly are under the responsibility of the ACs in accordance with their Statutes of Autonomy. They can provide their services either for free or upon payment from the users whenever they are indirectly managed by private companies by virtue of a public contract agreed with the AC. These centres have been hit particularly hard by the virus, most prominently in the region of Madrid. There is no complete official data available on the number of deaths in these centres. In a report issued in late August 2020, the international on-governmental organization Doctors Without Borders estimated that the elderly who have died in these centres—27,359 persons between 6 April and 20 June 2020, according to an unpublished document of the Ministry of Health of 7 July 2020, which reportedly states that the available data was incomplete at that time¹⁴⁸—represent 69 per cent of the total coronavirus victims nationwide by that date.¹⁴⁹

77.  Several measures were adopted to try to address this situation. On 19 March 2020, the AC’s Governments were empowered to intervene in the management of all public or private residential centres for the elderly and other care homes, and to adopt all necessary measures for the provision of medical, nursing, and other health services in these centres.¹⁵⁰ On 16 April 2020, an Order of the Minister of Health was adopted requiring all ACs to submit a form reporting the number of deaths that took place in residential centres for the elderly and other care homes.¹⁵¹ On 23 April, the Spanish Ombudsman issued recommendations to all ACs on actions to improve the provision of care to persons in residences for the elderly.¹⁵² Measures adopted by the ACs to address the worrying situation in these centres varied in severity and scope.¹⁵³ In Madrid, ordinary (administrative) courts granted interim measures in support of the residential homes for the elderly ordering the regional Government to immediately provide them with the necessary health personnel, as well as with the necessary means to develop diagnostic tests and to comply with the measures adopted by the Minister of Health.¹⁵⁴ In June 2020, the press reported that officials from the regional Government of Madrid had issued internal protocols setting out criteria to exclude some residents of these centres from being transferred to hospitals at the peak of the pandemic.¹⁵⁵ Several (still ongoing) criminal investigations were opened on coronavirus-related deaths in residential centres for the elderly.¹⁵⁶

78.  The authorities responsible for the enforcement of public health measures are primarily the State Security Forces and Corps (National Police and Civil Guard), as well as the Police of the ACs and of local entities. During the first nationwide state of alarm, Royal Decree 463/2020 placed them all under the direct orders of the Spanish Minister of the Interior ‘insofar as this is necessary for the protection of persons, goods and places’ (Article 21). The Spanish Government was also allowed to request the action of the Armed Forces, if necessary (Article 5(6)). All these agents of the authority were authorized to carry out checks on persons, goods, vehicles, premises, and establishments which were necessary to verify compliance with the general lockdown and other restrictive measures imposed under the state of alarm (Article 5(2)). A regulation setting out standards for police and security forces in the enforcement of the state of alarm was adopted by the Minister of the Interior on 15 March 2020.¹⁵⁷ It is uncertain to what extent beyond its contribution to reinforce contact-tracing of the ACs (see Part IV.A.9, paragraph 75 above) the military has played a role in enforcing public health regulations. Upon termination of the first nationwide state of alarm on 21 June 2020, Security Forces and Corps remain competent to enforce public health regulations, but they respond to the body of the Spanish government from which they ordinarily depend—ie the Delegated of the Spanish Government in each AC (Delegados del Gobierno) and no longer to the Minister of the Interior.

79.  Implementation of health regulations through administrative penalties has been accomplished mainly by the national government under the first nationwide state of alarm, and mainly by the governments of the ACs from 21 June 2020 onwards. There was some confusion as to which level of Spanish administration was competent to impose administrative penalties under the first nationwide state of alarm, which prompted the publication of a legal opinion by the State General Legal Counsel (Abogacía General del Estado) which states that enforcement through administrative penalties corresponds to those administrative authorities which have competence over the subject-matter to which the infringement refers—meaning that for offences related to public health the competence to impose administrative penalties rests with the ACs as a general rule.¹⁵⁸ No clarification on this issue has been provided through binding rules. In addition, the health measures have been enforced through penalties imposed by criminal courts,¹⁵⁹ although no official statistics exist in this regard.

80.  No specific legal framework exists for administrative and criminal penalties arising from non-compliance with Covid-19 health measures, with only one exception explained in the table below. Under the states of alarm declared so far in Spain, applicable sanctions were expressly referred to the ordinary legal framework in place (see for example Article 20 of Royal Decree 463/2020), which however does not contain specific provisions applicable to situations of health emergency. This led the Spanish Minister of the Interior to issue directions to Security Forces and Corps on how to apply these rules to breaches of the health measures imposed under the state of alarm.¹⁶⁰ There is a heated debate on whether using these general provisions (complemented by directions) to enforce the Covid-19 health regulations is consistent with legal certainty, legality, and other principles governing administrative and criminal sanctions under Article 25 of the Constitution.¹⁶¹ This general framework, which applies also in the absence of a declaration of a state of alarm, is presented in Table 1 below.

81.  As a reaction to this situation, during the past months most ACs passed specific rules typifying specific administrative infractions and penalties applicable to those breaching certain Covid-19 health measures. In Castilla-La Mancha, a coronavirus-tailored legal framework was introduced through Law 8/2020 of 16 October (see Table 2 below), concerning very specific infringements of obligations related to the establishment of a strategic stockpile of health products. No rules of this kind have been approved by the region of Madrid as of 1 November 2020.

82.  There are no comprehensive statistics on sanctions imposed for violations of public health regulations. According to the press, more than 9,000 persons were detained and 1.2 million penalties were imposed in Spain for breaches of public health measures under the first nationwide state of alarm.¹⁶² There is no official data on the number of prosecutions under the general provisions contained in Tables 1 and 2 above at the moment.

83.  No comprehensive data is available so far regarding general compliance with the public health measures reported in Part IV.A above, although opinion surveys conducted by the Spanish Centre for Sociological Research (Centro de Investigaciones Sociológicas) might be useful in this regard. According to the October 2020 Barometer, more than 62% of the population considered that more restrictive control and isolation measures should be adopted by the Government in view of the epidemiological situation; 27% were staying at home on a voluntary basis, even when no home lockdown existed; almost 50% found that Spaniards complied with health measures in a civic and solidary way; and almost 44% of the population stated that they would not be willing to be vaccinated against Covid-19.¹⁶³

Dolores Utrilla, Associate Professor, University of Castilla-La Mancha

Manuel Antonio García-Muñoz, Postdoctoral Researcher, University of Luxembourg

Teresa Pareja Sánchez, Research Assistant, University of Castilla-La Mancha