Spain

Freedom of Assembly

International Law and its connection with the national legislation

Spain´s legislation consists, in hierarchical order, of the Constitution, international treaties, primary legislation (Organic Laws, ordinary laws, and regulatory laws, such as Royal Decrees of Law and Legislative Royal Decrees), and secondary legislation (Royal Decrees, Decrees, Ministerial Orders, etc.). Validly concluded international treaties thus form an essential part of the internal legal order (Article 96, Constitution).
Article 10(1) of the Constitution requires that “the norms relative to basic rights and liberties which are recognized by the Constitution [...] be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements on those matters ratified by Spain.” The conclusion of an international treaty that contains provisions contradicting the Constitution requires a prior constitutional revision (Article 95, Constitution).
Spain is a State Party to the key international treaties pertaining to freedom of assembly, i.e. the International Covenant on Civil and Political Rights (ratified on April 27, 1977) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ratified on October 4, 1979).

FREEDOM OF ASSEMBLIES:

Legal framework
The 1978 Constitution of Spain in its Article 21 enshrines the right “to assemble peaceably and without arms,” while expressly recognizing that the exercise of this right shall not require prior authorization. This constitutional provision notably does not restrict the right to Spanish citizens only, thus implying that foreign nationals and stateless persons shall be accorded it as well.
Spain belongs to the states that have opted for enacting specific legislation dealing with public assemblies. Until the 1978 Constitution came into effect, freedom of assembly was regulated by Law 17/1976 of May 2, 1976. Once the Constitution became effective, however, a new act was drafted with the status of an organic law. It was adopted on July 15, 1983, as Organic Law 9/1983. Other key acts of relevance to freedom of assembly are the Organic Law 1/1992 of February 21, 1992, on the Protection of Public Safety, and the Organic Law 4/1997 of August 4, 1997, Regulating the Use of Video Cameras by Security Forces and Units in Public Spaces.

Types of assemblies defined and protected in domestic law
Article 1 of the Organic Law 9/1983 provides for the scope of application of the law and the definition of a public assembly, which is defined as “an agreed upon and temporary convention of more than 20 persons for a specific purpose” (Article 1(2)). The Organic Law is thus applicable to both assemblies held in open spaces and those convened in buildings or structures. Importantly, the Organic Law expressly excludes from its ambit (a) meetings at private homes; (b) meetings of families or friends held at publicly or privately owned facilities; (c) meetings held by political parties, labor unions, professional associations or other legal entities in closed spaces and attendance at which is restricted to members of the said entities or invited persons; (d) professional meetings with clients in closed spaces; (e) meetings of military units (Article 2, Organic Law 9/1983).

Possible limitations/restrictions/conditions, including requirements for notification
Article 3(1) of the Organic Law 9/1983 lays down the key guarantee of the presumption in favor of holding assemblies. Specifically, it provides that no prior authorization shall be required to hold an assembly under any circumstances. Pursuant to Article 5, an assembly may be suspended or dispersed only if it violates the criminal law, constitutes a serious disturbance of public peace presenting a danger for persons or property, or the participants in the assembly are wearing paramilitary uniforms. Assemblies in closed spaces do not require a notification, while street rallies, processions and other meetings in areas of public passage are subject to the advance notification regime, with the requirement that the notification be submitted not later than 10, but not earlier than 30, days prior to the planned event (Article 8, Organic Law 9/1983). In exceptional cases, when giving a notification within the prescribed time limit is altogether impracticable, the law permits filing the notification 24 hours in advance of the planned event (Article 8, Organic Law 9/1983). The notification shall include the name(s) and ID number(s) of the organizer(s) or, if the organizer is a legal entity, of their representative(s); venue, date, time and estimated duration of the event; objective of the event; security measures to be provided by the organizer(s) or the authorized state body; and, if the planned assembly is a procession, its planned route (Article 9(1), Organic Law 9/1983).

Place, route and time of assemblies
The law imposes no restrictions on assembly venues, routes, or times. In particular, assemblies may be held in open as well as in closed spaces (the latter being exempt from the notification requirement). However, obstruction of public passage may result in an order to remove assembly vehicles from the affected area (Article 16(2), Organic Law 1/1992).

Power to ban assemblies
Should justified serious concerns arise that the assembly may result in mass disorderly conduct and violence towards persons or property, the body receiving the notice may issue a ban or propose changing the assembly date, venue, duration or route (Article 10, Organic Law 9/1983). The decision must be substantiated and the authorities are required to inform the organizers of the decision within 72 hours from the filing of the notification.

Requirements for organizers, their rights and duties (including liability and penalties)
According to the law, the natural person(s) or legal entity in whose name the advance notification is submitted is deemed the organizer of the assembly. Where no advance notification has been submitted, the identity of the organizer(s) is determined based on the identity of person(s) holding and supervising the event, the speeches made, and flags and other insignia used (Article 23, Organic Law 1/1992). The assembly organizers bear the responsibility to maintain public order at the event (Article 4(2), Organic Law 1/1992). Non-compliance with this requirement, as well as with the notification procedure results in administrative liability for the organizers (Article 23, Organic Law 1/1992), and is punishable by a fine in the amount of EUR 300.52 – 30,050.61 in the absence of aggravating circumstances, or of EUR 30,050.62 a 601,012.1, if aggravating circumstances are present (Article 28, Organic Law 1/1992).

Requirements for participants, their rights and duties (including liability and penalties)
Non-compliance on the part of the assembly participants with a lawful order to disperse results in administrative liability (Article 23, Organic Law 1/1992), and is punishable by a fine in the amount of EUR 300.52 – 30,050.61 in the absence of aggravating circumstances, or of EUR 30,050.62 a 601,012.1, if aggravating circumstances are present (Article 28, Organic Law 1/1992).

State and police powers and responsibilities (including liability and penalties)
The law imposes on the State an obligation to protect peaceful assemblies against unlawful interference (Article 3(2), Organic Law 9/1983). The Organic Law 1/1992 further details the responsibilities of the State in protecting public assemblies as well as its powers in responding to unlawful assemblies. In particular, the law allows to disperse an assembly if it violates the criminal law, constitutes a serious disturbance of public peace presenting a danger for persons or property, or the participants in the assembly are wearing paramilitary uniforms (Article 5, Organic Law 9/1983; see also Article 16(2), Organic Law 1/1992). In addition, in the event that vehicles used by the assembly participants obstruct public passage or present a safety risk, these vehicle may be ordered out of the area (Article 16(2), Organic Law 1/1992).
The law requires that the authorities´ response be proportionate (Article 16(2), Organic Law 1/1992). Should dispersal be deemed necessary, the authorities must inform the participants to this effect prior to taking any action. (Article 17(1), Organic Law 1/1992). However, the requirement to inform is waived where the assembly is violent, especially if arms are used (Article 17(2), Organic Law 1/1992). The law also mandates cooperation of private security services (for instance, security guards of businesses located near the assembly venue) with the police to protect public safety (Article 17(3), Organic Law 1/1992).
Organizers of assemblies in closed spaces may invite State representatives to the event (Article 6, Organic Law 9/1983). The State representatives, however, are expressly banned from intervening in the discussions or debates, or otherwise interfering with the assembly (Article 7, Organic Law 9/1983).
In the event that video recording devices are used, the authorities are required to inform the participants to this effect (Article 9(1), Organic Law 4/1997). The recordings made shall be destroyed within 1 month, except where these present evidence of committal of a criminal or grave administrative offense (Article 8(1), Organic Law 4/1997).
Rights of appeal
In the event that the organizers disagree with the assembly ban or proposed changes of the date, venue, duration or route of the assembly, they shall have recourse to the judicial administrative review procedure within 48 hours following the receipt of the proposal (Article 11, Organic Law 9/1983).

Prepared in December 2010

Hide