The right to assembly, enshrined in article 21 of the Spanish Constitution, constitutes one of the most important fundamental rights of a democratic State. Despite enjoying its own autonomy, it is attributed an undeniable instrumental character in relation to other fundamental rights, among others, that of freedom of expression and opinion. In this sense, the European Court of Human Rights highlights that the right to assembly and demonstration constitutes one of the fundamental rights in a democratic society and, like the right to freedom of expression, is one of the fundamental pillars of this society Therefore, in no case should it be interpreted restrictively. Despite all this, it is neither unlimited nor absolute in nature and its limit must be located in the fact that it does not prevent the exercise of other fundamental rights.
The so-called gag law is nothing more than a modification of the constitutional regulations in the matter of public security and which has existed in Spain since the beginning of democracy. Since 2015, this law has replaced the old Corcuera law of 1992, and it does so with ultra-conservative approaches that are already evident in its article 1.2, “the right to the tranquility of citizens”, a guiding principle more typical of a dictatorship than a democracy. The law is a clear reaction to the 15-M demonstrations, it increases the powers of the police and limits the exercise of fundamental rights, such as assembly, demonstration and, ultimately, the right to freedom of expression It basically does this through fines which are usually higher than 600 euros and which, given the administrative nature of the sanction, must be paid regardless of whether the sanctioned person initiates the administrative litigation process in application of the principle of forget it again. Behind the large demonstrations, but also police actions in evictions and similar social movements, there is always a string of fines with the clear intention of dissuading.
The reform of the gag law was part of the electoral commitments of PSOE and Unides Podemos in 2019, but it was also a demand of their partners in the legislature, the PNB and the Catalan and Basque independenceists, included in the investiture agreement of December 2019 and which included a point to replace the law with another guaranteeing the exercise of the right to freedom of expression and peaceful assembly. Last week we witnessed how a text agreed on by more than 90% was unable to succeed due to disagreement over rubber balls and hot refunds.
Any reform is perfectible, of course, but it is so obvious that the continuity of the law limits the exercise of protest in a very substantial way that the abolition of rubber balls and the regulation of hot refunds could have found a place in other legal texts; an example is that in Catalonia rubber balls are not used as a result of a parliamentary agreement, but without a law to develop it, and that it had been proposed to include in the Foreign Law the matter reserved for hot returns.
The result of the undesirable disagreement has been the survival of a retrograde law like few others, which resists in the hands of a progressive Government and where its two members and the partners of the legislature had pledged to repeal it.
A political failure that would require a law proposal that, if it can be entered in the Congress of Deputies tomorrow, is better than the day after tomorrow.
