2020_03_27_DCHO_preguntas_respuestas_articulo_116

On March 14, the second state of alarm in the recent history of Spain came into force to deal with the COVID-19 pandemic. After the extension was approved for fifteen more days, we asked ourselves -and the students of the School have asked us on social networks- what is the state of alarm, how long can it be extended, and how does it differ from other states of emergency? These and other questions have been answered by Asunción de la Iglesia, professor of Constitutional Law at the University of Navarra.

What is the state of alarm?

It is a constitutional state of emergency that allows an extraordinary intervention of the public authorities to guarantee public order and the protection of citizens' rights. It is regulated in the article 116 of the Spanish Constitution together with the state of exception and siege, developed in the Organic Law 4/1981. Of the three envisaged, it is understood to be the mildest, following a criterion of gradualness in the restrictive measures.

In which cases can it be issued?

It is decreed in situations where normality is seriously disrupted. The causes foreseen are catastrophes, public calamities (earthquakes, floods, fires, accidents of great magnitude), health crises (epidemics or serious pollution situations), shortages of basic necessities and the paralysis of essential public services (the latter in concurrence with one of the three previous ones). It may affect part or all of the national territory, as in this case.

By what principles is the state of alarm governed?

The three states of emergency stipulated in article 116 are subject to four principles:

- The principle of necessity implies that the circumstances giving rise to the declaration must be correctly weighed and that the appropriate measures must be adopted to resolve the crisis.

- The principle of proportionality is governed by the relationship between the risk or emergency and the measures adopted.

- The principle of temporariness requires that states of emergency be temporary and last as long as necessary to restore normality.

- The principle of accountability. In the case of a state of alarm, parliamentary authorization is subject to the control of the jurisdiction of the Constitutional Court.

The principle of advertising can be added, which requires not only the publication in the Official State Gazette bulletin , but also the dissemination in public and private media of the declaration of the state of alarm and the measures adopted.

How long can the state of alarm last?

The first declaration has a scope of 15 days, but there are no limits as to successive extensions. The criterion here is again necessity and proportionality. The extension must be authorized by the congress of Deputies before the expiration of the period during which the state of alarm is in force.

Who declares it?

In Spain, the declaration is attributed to the Government of the Nation as the constitutional body in charge of the function of political direction. It is declared by means of a Royal Decree, agreed in the committee of Ministers, which is immediately published in the bulletin Official State Gazette (BOE). The same applies to the extension. The Government must immediately inform congress of the declaration and of the measures adopted by subsequent decrees.

What can the government do if it does not reach the absolute majority to declare a state of alarm?

In a parliamentary system of government, the government would, in principle, have a parliamentary majority and would normally obtain the support of the chamber leave. The rules of procedure of congress require a simple majority. What is desirable in these cases of constitutional emergency is that there should be an understanding between the political forces. However, the proposals of the parliamentary groups are also put to a vote, which may help to adopt better measures.

What measures and limitations can the state of alarm contain?

They are broad and always subject to the principles of proportionality and necessity.

In relation to the functioning of the public administrations, the civil authorities, police and civil servants and workers may be subject to the direct orders of the authority designated in the Royal Decree declaring the state of alarm. In the case of the current state of alarm it is the Government of the Nation.

For their part, citizens may be restricted in the exercise of their rights. The article 11 of the LO 4/1981 establishes that the state of alarm may establish, depending on the seriousness of the status, the following restrictions:

- Free circulation or permanence of persons or vehicles at specific times and places.

- Temporary requisitions of all subject of goods.

- Imposition of mandatory personal benefits.

- Intervention of industries, factories, workshops, farms or premises of any nature, with the exception of private homes.

- Limitation or rationing of the use of services or the consumption of basic necessities.

It also allows the issuance of the necessary orders to ensure the supply of markets and the operation of the services of the production centers affected by the intervention in industries, factories, enterprises of any nature, except homes.
Constitutional reform is prohibited while a state of emergency, whether alarm, exception or siege, is in force.

During the state of alarm, how is the control of the government carried out?

During a state of alarm, political, parliamentary and media control are essential. Political control is exercised institutionally in parliament, but also through the public discussion .

It will have to be seen in a status as complex as the current one how the provision for liability and compensation for the application of the acts and provisions issued in the state of alarm is applied to those who suffer damage or harm, in their person, rights or property.

In a state of emergency, what happens with the competences transferred to the Autonomous Communities? Who assumes them?

The legislation of development of the state of alarm is from 1981, prior to the creation of some Autonomous Communities and the subsequent development of competences. There is no case law on this specific point either, but it could be understood that the seriousness of the status allows the National Government to take the necessary measures to guarantee the rights of citizens and this may affect the exercise of competences of the Autonomous Regions.

In my opinion, in view of the extraordinary nature of the status there may be a temporary and proportional affectation of the distribution of competences, just as citizens' rights are restricted. The most important thing in this status is the partnership and coordination that facilitates the most effective management of the crisis with proportionality in the adoption of decisions.

What are the differences between states of alarm, exception and siege?

Unlike our historical Constitutions or what happens in other countries, the exception Constitutional Law of the EC of 1978 is gradual and provides for different mechanisms depending on the causes that give rise to the activation of the state of emergency.

While states of siege and states of exception point to social crises or of a serious political nature (serious disturbance of public order, insurrection, threat to territorial integrity or to the constitutional order, etc.), the causes of the state of alarm are of a different, non-political nature.

Many of the measures taken by the government overlap between a state of alarm and a state of emergency. Could we move from a state of alarm to a state of emergency in the current COVID-19 crisis?

Gradualness and states are linked to the cause and the need for measures to be adopted. In principle, states of exception and siege are intended to contain situations of public order or of a political nature. Thus, if there were problems of public order threatening the free exercise of rights or the normal functioning of institutions or essential public services, the transition from one state to another could take place. 

The state of emergency allows a declaration for a longer period of time - 30 days - and requires the prior intervention of congress of Deputies. An extension is also possible. The current state of alarm, as specified in Royal Decree 463/2020, has already meant a high restriction of rights and government intervention in the management of the crisis and in the term, with the extension, we are already de facto in the 30 days of the state of emergency.

For its part, the state of siege is the most serious of the states of emergency established by the Constitution and the law of development. Its declaration proceeds when there is a threat against the sovereignty or independence of Spain, its territorial integrity or its constitutional order, provided that it cannot be resolved by other means.