A video of police officers breaking down the door of a home in Madrid on March 21 to stop an illegal party has sparked controversy over the use of the Citizen Safety Law, popularly known in Spain as the “gag law.” In the official report on the raid, police said the law, as well as an internal order issued days earlier by the Interior Ministry regarding the implementation of coronavirus safety measures, gave the officers the authority to enter the home without a court warrant. This was the same argument used to justify a second raid on an illegal party that took place the following day.
In the first case, six police officers arrived at the home on Lagasca street just before 1am after receiving a complaint from neighbors. In the video of the incident, which was shared on social media, a young woman is seen telling police that she will not open the door unless they have a warrant. After an exchange of words, the officers then break down the door with a battering ram. The 14 people inside the residence were reported for breaking the health rules aimed at preventing coronavirus contagions. Nine of them were arrested for alleged serious disobedience.
Police say that the individuals were “flagrantly” committing the crime of disobedience by failing to open the door and identify themselves
In the second case, the following day on March 22, there was a similar situation. In this instance, however, officers were able to open the door by sliding a plastic sheet between the doorframe and the latch to force it open. Several of the guests inside the home were accused of serious disobedience. A judge, however, threw out the case against the apartment lease holder on the basis that their actions did not constitute a crime but rather an administrative violation. Three of the six police officers who were involved with the raid had also taken part in the incident the previous day.
In the police reports of both cases, officers claimed that their actions were covered by articles 9.13 and 16.1 of the Citizen Safety Law, which authorizes police to identify people when there are indications they have committed an infraction and force these individuals to identify themselves to officers. Failure to do so could constitute a crime of serious disobedience under article 16.5 of this law, and result in an arrest. In both reports, police say that the individuals were “flagrantly” committing the crime of disobedience – in this case, failing to open the door to identify themselves. Both reports state – in nearly exactly the same words – that the officers did not request a warrant to enter the premises due to the “urgent need to intervene to arrest those responsible” and “protect public health.”
Police also said their actions were justified by an internal order from the Interior Ministry, which was sent on March 16. This document set out a series of measures to ensure adherence to the restrictions in place to curb contagions over Easter week, such as the curfew, perimetral lockdown of regions and limits on social gatherings.
The raids on illegal parties have raised questions about whether police have the legal grounds to enter a home without a warrant. Spain’s Interior Ministry said on Tuesday that the police were acting “within the legal framework” when they broke down the door to the apartment in Madrid, as the residence was not a private home but a tourist apartment.
“It has to be taken into account that the apartment the officers entered [on March 21] was not a dwelling, but rather a tourist property that was being used to hold a party in violation of the current health norms,” the Interior Ministry stated in a press release shared with the media via the messaging app WhatsApp.
The statement did not clarify whether police are only allowed to enter illegal parties if they are in tourist apartments, nor what criteria are to be used in these cases. In the police report, officers state that it was obvious “at a glance” that the residence on Lagasca street was a tourist apartment. But a copy of the lease obtained by the daily El Confidencial shows that the property was being used as a long-term rental and that the lease was signed two months ago.
Legal experts have criticized several aspects of this reasoning. Firstly, there is a dispute over whether a holiday rental lacks the legal protection of a dwelling. “Of course a tourist apartment is a home,” said Fernando Álvarez-Ossorio, a professor of constitutional law at Seville University. “A home is a physical space where we shelter ourselves and are allowed privacy away from the eyes of others.” Experts point out that the Constitutional Court ruled years ago that the inviolability of the home was a broad concept that not only includes the idea of a traditional residence, but also hotel rooms, motor homes and even tourist apartments.
The apartment the officers entered was not a dwelling, but rather a tourist property that was being used to hold a party in violation of the current health normsInterior Ministry
Legal experts also questioned whether the raid was of “urgent need,” suggesting that the officers could have waited until the guests left the apartment. They also objected to the fact that refusing to open a door to officers had been classified as a crime of disobedience. Javier Tajadura, professor of constitutional law at Basque Country University, explains that holding a party during the pandemic is not a crime; “it is an administrative infraction that is punished with a fine.” According to Tajadura, calling the act of not opening the door disobedience is an “absurd interpretation that would empty the fundamental right to the inviolability of the home of its content.” Judge María Jesús del Barco, the spokesperson of the Professional Judiciary Association (APM), agreed that this fundamental right cannot be “violated” for the sake of an administrative infraction.
English version by Melissa Kitson.