A judge in Madrid has opened an investigation against the Madrid Government delegate, José Manuel Franco, for allowing a series of massive concentrations between March 5 and 14 when the risk of coronavirus infection was already known. Among the acts are the demonstration of the 8-M, the act of Vox in Vistalegre and soccer games.
The head of the 51st Instruction Court of Madrid has agreed to open proceedings for the alleged crimes of prevarication and professional negligence injuries after receiving a complaint from an individual. However, he refuses to initiate an investigation against the rest of the accused, such as the Prime Minister, Pedro Sánchez, and against all the government delegates from the different autonomous communities, as well as Ceuta and Melilla, considering that they are not competent to do so.
Hence urge the complainant to transfer the complaint to the competent bodies, if he deems it appropriate: the President of the Government, before the Second Chamber of the Supreme Court, and the rest of the Government delegates, before the judicial bodies of their autonomous communities.
The complaint considers that a series of crimes have been committed by the political leaders for not prohibiting a series of mass gatherings “Despite, says the complaint, the recommendation issued by the European Center for the control and prevention of diseases, from March 2 ”.
In the framework of the procedure, the judge orders a battery of investigative measures for the Civil Guard and the forensic doctor, with express warning that they are not urgent and that they should, therefore, be practiced when their availability allows it in view of the evolution of the alarm state.
In the complaint it is reported that in the Community of Madrid there were 77 mass meetings since the Covid report of March 2, 2020 was issued by the European Center for disease control and prevention.
Franco, not measured
The judge begins proceedings against Franco, about whom he clarifies that he is not found. He understands that a priori it cannot be concluded that these events are not criminal. “The answer to this question is not easy because the absolutely exceptional nature of the facts denounced means that it is not feasible to seek jurisprudential precedents that shed some light on whether they deserve criminal reproach ”.
In his opinion, the direct filing of the complaint would only proceed if it were evident that the facts do not have a criminal nature or if, even if the facts were classified as criminal, there was no indication of the defendant’s participation in them. “This evidence is not appreciated in this initial phase of the procedure,” he adds.
Limits to the right to demonstrate
In the car, the magistrate Carmen Rodríguez-Medel, who once investigated the case of the Rey Juan Carlos University master’s degree by some leaders such as Cristina Cifuentes or Pablo Casado, recalls that the right to demonstrate has limitations.
“For this reason, the Constitution requires that in these cases the meeting” be communicated “to the competent authority, which, in turn, can lead to a ban on the rally when there are well-founded reasons to presume the alteration of public order, which must be understood in a restrictive manner and in accordance with the provisions of the law and in accordance with the jurisprudence of the Constitutional Court, ”he points out.
So remember that the constitutional precept adds ‘With danger to people or property’ Therefore, it should be interpreted that the risk of other types of disorders that do not imply danger for people or property could not lead to the prohibition of a demonstration.
The complainant typifies the facts as an offense of administrative trespass, in his case, committed by omission, since the demonstrations are not prohibited. “Serious doubts pose to this instructor that this is the appropriate qualification, without ruling it out either. The legal qualification may be this or it may be in competition with others, such as, for example, the crime of injuries due to professional recklessness“
On the participation of the Government delegate in Madrid, the judge asks several questions: Does the report issued on March 2, 2020, by the European Center for disease control and prevention Was it officially sent to Spain on what date? To which authorities? Was it officially received by the Madrid Government Delegation? – Was the Madrid Government Delegation officially urged that based on the same or on the basis of another official document – to alert about the dangers to public health due to the coronavirus – the manifestations foreseen on days 7 or 8 of March 2020? Conversely Was an express order given to the Delegate of the Government of Madrid not to prohibit the demonstrations apart from any health consideration? Was any preventive measure adopted by the Madrid Government Delegation? ”
“Everything is a question”
On these questions, “everything is a question”, says Rodríguez-Medel. “We have exposed that the jurisprudence of the TC requires to prohibit the exercise of the fundamental right to the demonstration that the governmental authority has sufficient objective data derived from the concrete circumstances of each case and that the prohibition has as its purpose the disproportionate disturbance of other assets or rights protected by our Constitution ”.
For this reason, it considers that whether or not such objective data were available at the time of decision-making by the government authority, and even whether the demonstrations that took place on March 7 and 8, 2020 were susceptible to disturb another good or right protected by the Constitution, such as life, “These are issues that must be proven in your case”.
“But in the opinion of this instructor, and with all the precautions typical of this initial phase of the investigation, it is essential to initiate preliminary proceedings and to carry out proceedings in order to clarify these and all other extremes to clarify whether or not we are dealing with criminal acts. ”
The ordered proceedings
To clarify the facts, the magistrate asks the forensic doctor to expose whether the Madrid protests were likely to cause a “Evident risk” for the life and physical integrity of people. If so, it claims that it explain whether such circumstance was scientifically notorious prior to its celebration or, where appropriate, when it became notorious.
Likewise, it asks if there are data that show that such damage to people’s lives or integrity “materialized (for example, from a statistical probability point of view, in view of the index of relevant personalities who attended any of these manifestations and that they have been infected by the covid-19 virus) ”.
To issue this report, the judge states that the forensic doctor may urge this judicial body to collect the health documentation required by the health authorities or managers that it understands appropriate, and must always ensure the protection of personal data of special relevance, such as personal data of a sanitary nature.
Analysis of health consequences
Of the Civil Guard to obtain the report of the European Center for Disease Control and Prevention as regards Spain, dissemination that it made among the authorities and, specifically, if it was sent to the Government Delegation in Madrid (dates, literal text sent and how much relevant to this investigation).
It also demands that they obtain if, by the Spanish competent authorities, health recommendations were sent to the Government Delegation in Madrid in relation to the demonstrations scheduled from March 5 onwards “or if, on the contrary, some type of written instruction or indication was given that the demonstrations should take place in any case without any restriction ”.
He also wants the meetings that were held on the protests and the administrative files processed in the Madrid Government Delegation regarding these. Thus, it asks the agents to analyze it and assess whether the health consequences were evaluated. “Or if, on the contrary, there is no documentary or testimonial evidence whatsoever that health information was collected or opinions of health experts to assess the risk involved in not prohibiting protests. “
Finally, the magistrate wants to know if any of the promoters or competent authorities made any warning about health risks; and whether preventive measures were provided to the attendees of these meetings or demonstrations held after March 5, such as gloves, masks or others, indicating what measures they were, to whom they were provided and by order of which authorities. “