WORKING DOCUMENT
____________________
Religious Freedom in Spain during
coronavirus pandemic:
On the Abuses Committed by Spanish
Public Authorities in the Implementation
of Emergency Legislation Against
COVID-19 that Undermine Religious
Freedom
José Luis Bazán, Ph. D. Law
Independent Researcher
14 May 2020
hispanialex@yahoo.es
https://independent.academia.edu/JLBAZAN
1
Executive Summary
The implementation by the Spanish authorities of the emergency legislation ("state of
alarm") against the COVID-19 pandemic creates problems of compatibility both with
the requirements of the Spanish Constitution and with international human rights
standards, in accordance with legal and human rights experts. Particularly noteworthy
is the fact that the authorities are undermining the legitimate exercise of freedom of
religion, including the right to public worship, when for example, police unduly
interrupt masses inside temples while they are taking place, or by disproportionately
restricting other acts of worship, despite all due sanitary measures are adopted (e.g.,
social distance, obligatory masks and use of hydro-alcoholic gel). Similarly, some
political parties, media and NGOs have denounced a more favourable treatment of
certain religious denominations that do not respect the principle of non-discrimination.
Content
1. Spanish Legal Framework
2. The case of the exhibition of Our Lady of the Forsaken in Valencia
3. Other recent cases of governmental abuses undermining religious
freedom
4. Reactions
5. Allegedly more favourable treatment to certain religious communities
_______________
1.- Spanish Legal Framework
Royal Decree 463/2020 of 14 March, establishing the state of alarm states, in its Article
11 entitled "Measures of containment in relation to places of worship and civil and
religious ceremonies", states the following:
"Attendance at places of worship and civil and religious ceremonies, including
funerals, is conditioned to the adoption of organizational measures consisting of
avoiding crowds of people, depending on the size and characteristics of the
places, in such a way as to ensure that those attending are able to respect the
distance between them of at least one meter".1
However, the Health Minister’s Order SND/298/2020 (May 9th, 2020), which allows
worship in the interior of temples, with certain limitations and restrictions (e.g., not
exceeding one third of their capacity), bans totally acts of worship in public spaces in
these terms:
“The exterior of the buildings and the public thoroughfare may not be used for
the celebration of acts of worship.”2
1
State
of
alarm
is
the
lowest
of
the
three
degrees
of
state
of
emergency
(states
of
alarm,
emergency
and
siege
or
martial
law)
that
allows
the
government
to
perform
actions
or
impose
policies
that
it
would
2
Article
9.2:
Ministerio
de
Sanidad:
Orden
SND/399/2020,
de
9
de
mayo
de
2020,
para
la
flexibilización
normally
not
be
permitted
to
undertake.
2
de
determinadas
restricciones
de
ámbito
nacional,
establecidas
tras
la
declaración
del
estado
de
alarma
Article
9.2:
Ministerio
de
Sanidad:
Orden
SND/399/2020,
de
9
de
mayo
de
2020,
para
la
flexibilización
2
This provision has been criticized by Constitutional and Human Rights Law experts,
arguing that the Organic Law 4/1981 -which regulates the states of alarm, emergency
and siege-3, does not allow the suspension of the right to freedom of religion and
worship during a state of alarm or even during a state of emergency or siege, as it is not
in the list of fundamental rights considered by Article 55 of the Constitution as
suspendable.4 In other words, the Minister of Health’s Order would grossly violate
constitutional provisions. 5 Actually, the High Court of Justice of the Aragon
Autonomous Community has recently issued the first judgment against the declaration
of the state of alarm, approved by the Government of Pedro Sanchez to control the
spread of the coronavirus in Spain and extended four times by Congress, expressing that
the state of alarm "does not contemplate any affectation, much less suspension, of the
right of assembly and demonstration."6
The legality of the fines and sanctions imposed by the police for non-compliance with
confinement and for disobedience (more than 869,000 sanctions already imposed, from
601 to 30,000 euros)7 has been put into question by State lawyers, jurists and NGOs.8
NGOs also denounce that arbitrary detentions are taking place: to the date, 6,776
persons have been detained.9 A recent ruling by a first instance criminal court in La
Coruña (Galicia, North West of Spain) last April 30th, 2020, acquitted a person who was
caught by police officers April 12 in the vicinity of a church. The detainee, according to
the ruling, told them that he was going to the church to practice acts of worship, so they
let him in. However, after a few minutes, the agents located him again and, when they
asked him about his presence on the street, he told them that he was going to a
en
aplicación
de
la
fase
1
del
Plan
para
la
transición
hacia
una
nueva
normalidad:
https://www.boe.es/buscar/doc.php?id=BOE-‐A-‐2020-‐4911
3
https://www.boe.es/buscar/act.php?id=BOE-‐A-‐1981-‐12774
4
Spanish
Constitution:
https://bit.ly/3fMPus8
5
https://www.eleconomista.es/legislacion/noticias/10524332/05/20/Los-‐juristas-‐temen-‐que-‐el-‐
Gobierno-‐camina-‐hacia-‐una-‐dictadura-‐constitucional.html
https://www.elindependiente.com/politica/2020/04/18/la-‐alarma-‐del-‐virus-‐lleva-‐al-‐gobierno-‐a-‐
recortar-‐el-‐estado-‐de-‐derecho/
https://www.iustel.com/diario_del_derecho/noticia.asp?ref_iustel=1197263
https://www.vozpopuli.com/economia-‐y-‐finanzas/tribunal-‐constitucional-‐recurso-‐legalidad-‐estado-‐
alarma_0_1347465817.html
http://noticias.juridicas.com/actualidad/el-‐sector-‐legal/15078-‐un-‐grupo-‐de-‐juristas-‐solicita-‐al-‐defensor-‐
del-‐pueblo-‐que-‐interponga-‐recurso-‐de-‐inconstitucionalidad-‐y-‐amparo-‐frente-‐a-‐la-‐normativa-‐del-‐estado-‐
de-‐alarma/
https://www.vozpopuli.com/espana/juristas-‐constitucionalistas-‐estado-‐alarma-‐sanchez-‐
coronavirus_0_1350766525.html
https://sevilla.abc.es/andalucia/cordoba/sevi-‐asistencia-‐cultos-‐religiosos-‐no-‐esta-‐prohibida-‐
202004160815_noticia.html
https://www.abc.es/espana/abci-‐estado-‐no-‐podra-‐cobrar-‐buena-‐parte-‐multas-‐no-‐tener-‐cobertura-‐
legal-‐202005122055_noticia.html
6
Text
of
the
judgment:
https://www.consalud.es/uploads/s1/13/26/35/3/sentencia-‐tsj-‐arago-‐n-‐
manifestacio-‐n-‐estado-‐alarma.pdf
https://www.consalud.es/pacientes/especial-‐coronavirus/sentencia-‐sanchez-‐exceder-‐limites-‐
alarma_79204_102.html
7
https://www.elindependiente.com/politica/2020/05/11/asi-‐se-‐recurriran-‐las-‐sanciones-‐por-‐saltarse-‐
el-‐confinamiento-‐durante-‐el-‐estado-‐de-‐alarma/
8
https://elpais.com/espana/2020-‐04-‐17/el-‐defensor-‐del-‐pueblo-‐investiga-‐la-‐politica-‐de-‐multas-‐de-‐
marlaska-‐por-‐el-‐coronavirus.html
9
https://www.elperiodico.com/es/politica/20200427/detenciones-‐multas-‐por-‐saltarse-‐el-‐
confinamiento-‐dificil-‐encaje-‐legal-‐7940163
3
supermarket, although he was going in the opposite direction to his home. The man was
eventually arrested and charged with the crime of disobedience (article 556 of the Penal
Code). In the ruling, the judge clearly express that the accused “could attend places of
worship, which in principle is not forbidden by the decree that established the state of
alarm.”10
Conclusion: The Royal Decree declaring a state of alarm, and the subsequent
exceptional regulations, has neither suspended the opening of religious temples, nor the
celebration of worship, nor the attendance at it. It has done so with funeral ceremonies
under the terms of Article 5 of Order SND/298/2020, of 29 March, which establishes
exceptional measures in relation to funeral wakes and ceremonies to limit the spread
and spread of COVID-19. The rest of the religious ceremonies are conditioned to the
adoption of the organizational measures provided for in Article 11 of the Royal Decree
on the declaration of a state of alarm.11
2.- The case of the exhibition of Our Lady of the Forsaken in Valencia
The Spanish city of Valencia (the third largest city in the country, after Madrid and
Barcelona), commemorated on Sunday, May 10th, 2020 its Patron Saint, Our Lady of the
Forsaken (“Nuestra Señora de los Desamparados”), with a solemn mass at 10:30 am
behind closed doors and without faithful, respecting the Government health regulations
for the coronavirus pandemic, an exceptional way of celebration, for the first time in the
600 years of history of the devotion to Our Lady.
Left: Image of Our Lady of the Forsaken (credit: A. Sáiz).
Right: Moment of the uncovering inside the church (credit: Alberto Sáiz)
In accordance with the statement by the Archdioceses of Valencia issued on Monday
11th May 202012, after the celebration of the mass, from the interior of the temple, the
image of Our Lady was oriented towards the Square in front of the church, without ever
10
https://bit.ly/2Z7fJmW
http://e-‐cristians.cat/wp-‐content/uploads/2020/04/Breve-‐informe-‐sobre-‐la-‐apertura-‐y-‐acceso-‐a-‐
lugares-‐de-‐culto-‐durante-‐la-‐epidemia-‐del-‐Covid19.pdf
12
http://www.archivalencia.org/contenido.php?a=6&pad=6&modulo=37&id=19775
11
4
leaving the interior of the temple, as pictures below show.13 The image was exposed
only during the time the regional hymn was played. There was no formal call from the
Archbishopric for the faithful to participate in an act of worship in the square, in front
of the image of Our Lady.
Exhibition of Our Lady of the Forsaken from the interior of the temple, May, 10th, 2020,
immediately after the mass (Credit: Manolo Guallart)
Only those who were spontaneously in the Square in front of the church at that time
were able to contemplate the image of Our Lady, keeping the indications of distance
required by the Government health regulations and in the presence of three local police
units and members of the Red Cross that were at that moment in the Square. The local
police reminded those present that they should keep the distance marked by the health
authorities, and these measures were scrupulously complied with without the local
police having to intervene.
Spontaneous congregation of people in the Square in front of the temple, after the closed
doors mass, May 10th, 2020. Credit: Gil María Campos
13
See
video
here
(03’02’’):
https://youtu.be/XEL6-‐cqCMNI
and
here:
https://www.dailymotion.com/video/x7tthu6
5
Once the regional hymn finished, the doors of the church were closed, and the church
reopened again in the usual hours from 11:00 to 13:00 and from 17:00 to 19:00, in strict
compliance with the measures authorized by the health authorities, as it has been the
case since last March 14. Spanish legislation allows temples to remain opened, under
certain conditions and restrictions.
However, local police in Valencia has proposed to impose the Archbishopric a fine for
presumably violating the legislation on health protection adopted due to coronavirus
pandemic. 14 The decision to impose the fine has not taken yet by the competent
authority.
3. Other recent cases of governmental abuses undermining religious freedom
•
03/22/2020 Police interrupts a mass in the Cathedral of Valladolid.15
•
04/02/2020 Local police decides the closure of the Catholic church of Santiago,
in Cádiz.16
•
04/04/2020 Fifteen Catholic faithful evicted from mass by the police in the
parish of St Servant and St Germain (capacity: 250 seats), in Cádiz (Video
included).17
Interior of the parish of St Servant and St Germain, in Cádiz, with a capacity
of 250 seats
•
04/05/2020 Police evict an evangelical church in Murcia where 30
worshippers celebrated Palm Sunday. The people, all denounced, were leaving
the place with palms and olive branches in their hands.18
14
https://www.elespanol.com/espana/20200510/policia-‐multa-‐arzobispo-‐valencia-‐basilica-‐denuncia-‐
manipulacion/488951572_0.html
https://www.20minutos.es/noticia/4253825/0/delegacion-‐de-‐gobierno-‐espera-‐el-‐informe-‐policial-‐
sobre-‐los-‐actos-‐en-‐la-‐basilica-‐de-‐valencia-‐y-‐apela-‐a-‐la-‐prudencia/
15
https://www.elnortedecastilla.es/valladolid/policia-‐valladolid-‐impide-‐20200322202540-‐
nt.html?ref=https:%2F%2Fwww.google.com%2F
16
https://www.diariodecadiz.es/cadiz/Coronavirus-‐Cadiz-‐Policia-‐Local-‐Santiago_0_1451855403.html
17
https://www.diariodecadiz.es/cadiz/Coronavirus-‐Cadiz-‐Policia-‐interrumpe-‐misa-‐
Laguna_0_1452454967.html
6
•
04/06/2020
Seville19
Police cancels a Catholic mass on the roof of a church in Triana,
Mass at the roof of a church in Triana, Seville
•
04/06/2020 Regional Catalan Police (”Mossos “) denounces a priest and 6
faithful (4 where inside the temple; 2 entering into it) during the celebration of a
Mass in the church of Valldoreix (Barcelona).20
•
04/07/2020 Local Police in Puente Genil (Córdoba) denounces 5 persons
attending the Penitents' Mass in the Catholic church.21
Catholic church in Puente Genil (Córdoba)
18
https://www.laopiniondemurcia.es/comunidad/2020/04/05/policia-‐desaloja-‐murcia-‐iglesia-‐
evangelica/1104931.html
19
https://sevilla.abc.es/sevilla/sevi-‐coronavirus-‐sevilla-‐policia-‐desmantela-‐misa-‐azotea-‐iglesia-‐triana-‐
202004051458_noticia.html
20
https://www.cugat.cat/noticies/societat/148514/els-‐mossos-‐denuncien-‐la-‐celebracio-‐d_una-‐missa-‐a-‐
l_esglesia-‐de-‐valldoreix-‐durant-‐el-‐confinament
21
https://bit.ly/3fJzcQF
7
•
04/10/2020 The National Police evacuate the Cathedral of Granada, where
the archbishop officiated at a ceremony attended by 20 people. 22 Video:
https://bit.ly/2YXEaTQ
Mass at the Cathedral of Granada
•
04/14/2020 The police disrupts a mass in the Church of Saint John and Saint
Paul, in San Fernando de Henares (Madrid) with 5 faithful: "They told me that if
I didn't suspend it, we would be sanctioned", said the priest.23
•
04/17/2020 The Government forbids a blessing without audience with its
century-old relic in Alicante.24
•
04/19/2020 Madrid parish priest fined for celebrating mass inside the church
facilities. Mass interrupted by the police.25 Video: https://bit.ly/2T1lCym
•
04/19/2020 Local police ordered the closure of the Catholic church and the
Perpetual Adoration in the parish of the Immaculate Heart of Mary, in Sabadell
(Barcelona).26
4. Reactions
The Catholic Church in Spain has claimed, through its Secretary General and
Spokesperson, Mgr Luis Argüello -referring to the interruption of the mass at the
Cathedral of Cordoba- that:
22
https://www.eldiario.es/sociedad/Ultima-‐hora-‐coronavirus-‐mundo-‐Espana-‐12-‐
mayo_13_1000679924_44386.html
23
https://www.larazon.es/madrid/20200414/dtnxokwl4na3vmeulxuicuuifu.html
24
https://www.lavozdigital.es/espana/comunidad-‐valenciana/abci-‐coronavirus-‐gobierno-‐prohibe-‐
alicante-‐bendicion-‐sin-‐publico-‐reliquia-‐centenaria-‐202004172235_noticia.html
25
https://www.religiondigital.org/diocesis/Denuncian-‐parroco-‐Madrid-‐celebrar-‐
puertas_0_2225777415.html
26
https://www.infocatolica.com/?t=noticia&cod=37466
8
"The police action, legitimate in the streets, from my point of view, has been
excessive in the temples, especially when a celebration that has already begun
has been interrupted, since it has not taken into account the aforementioned
article 11 of the Decree that established a 'state of alarm', not a state of
exception".27
The Spanish Conference of Catholic Bishops have requested the government to
celebrate masses "without giving rise to problematic situations, to interventions by the
police, to conflicts of interpretation of articles 7 and 11 of the Royal Decree", and
"clarify with the government the situation of worship so that masses can be resumed
without the police breaking in.” 28
On the other hand, and more generally, the Catholic Bishops Conference of the
European Union (COMECE) has recently denounced, in response to the abusive
restrictions to religious freedom in some parts of the European Union under the pretext
of the coronavirus pandemic, how “the aggressive approach of certain secularist actors
against the role of religion in the public square may have contributed to its
marginalisation in the context of the current crisis.” COMECE has also reminded the
Council of Europe document entitled ‘Respecting democracy, rule of law and human
rights in the framework of the Covid-19 sanitary crisis - A toolkit for member states’,
that opportunely underlines that the effective enjoyment of the fundamental right to
freedom of religion is "a benchmark of modern democratic societies” and calls on the
authorities to ensure that any restriction is "clearly established by law, in compliance
with relevant constitutional guarantees and proportionate to the aim it pursues".29
The Spanish Association of Christian Lawyers has filed a complaint before the Supreme
Court against the Minister of the Interior, Fernando Grande-Marlaska, for an alleged
"crime of prevarication" as well as for two alleged crimes against religious feelings,
"one of prohibition of worship and another of interruption of worship", for the eviction
of some temples while mass was being held.30 This Association has accused the police
of "religious persecution" for interrupting masses during the state of emergency.
The Spanish Observatory for Religious Freedom expressed its discontent with the
suspension of the masses in the course of their celebration that took place in different
parts of Spain during Lent and Holy Week in violation of the fundamental right to
religious freedom.31
The Spanish Ombudsman has issued a statement reminding that in these exceptional
circumstances, citizens’ “most fundamental rights continue to be equally guaranteed,
27
https://www.religiondigital.org/espana/Luis-‐Arguello-‐actuacion-‐policial-‐desmedida-‐granada-‐
portavoz-‐conferencia-‐episcopal-‐confinamiento-‐medios-‐comunicacion_0_2222177809.html
https://www.eldiario.es/sociedad/portavoz-‐desmedida-‐intervencion-‐policial-‐
Granada_0_1016648366.html
28
https://www.actuall.com/laicismo/los-‐obispos-‐plantearan-‐al-‐gobierno-‐retomar-‐las-‐misas-‐con-‐
mascarillas-‐y-‐manteniendo-‐la-‐distancia/
29
COMECE,
Webnews,
06/05/2020:
http://www.comece.eu/freedom-‐of-‐religion-‐at-‐stake-‐in-‐the-‐
context-‐of-‐fighting-‐against-‐covid-‐19
30
https://abogadoscristianos.es/abogados-‐cristianos-‐se-‐querella-‐contra-‐el-‐ministro-‐marlaska-‐por-‐las-‐
interrupciones-‐de-‐ceremonias-‐religiosas-‐realizadas-‐por-‐la-‐policia-‐durante-‐el-‐estado-‐de-‐alarma/
31
http://libertadreligiosa.es/2020/04/13/el-‐observatorio-‐para-‐la-‐libertad-‐religiosa-‐pide-‐explicaciones-‐
al-‐ministro-‐del-‐interior-‐ante-‐la-‐suspension-‐de-‐misas-‐mientras-‐se-‐celebraban/
9
because democracy is not suspended however difficult the challenge. The first is the
right to life and to health protection, for which all health and emergency service
personnel are fighting to the best of their abilities, in the front line. Behind it, our entire
catalogue of rights and freedoms which, if they are to be restricted, temporarily and in
a limited way, must not lose their essence.”32
The political party VOX filed a complaint before the Spanish Constitutional Court
against the Royal Decree declaring the state of alarm, grounded on the fundamental
rights’ abuses committed by the Government when disproportionally confining the
population. The Plenary Chamber of the Constitutional Court will decide about the
complaint.33
5.- Allegedly more favourable treatment to certain religious communities
The same political party, VOX, as well as some mass media and NGOs, have
denounced the allegedly double standards applied by Spanish authorities, arguing that
they easily disrupt Christians masses and celebrations, and seem to be more tolerant
with certain Muslim communities’ worship acts34: e.g., on Friday’s prayer (April, 17th),
around 50 Muslims prayed in the middle of the street, in front of a mosque in El
Vendrell (Tarragona, Catalonia) with no intervention during the prayer by the police
which was present.35 A week later 5 Muslims wearing masks and a PA system went up
to La Seu Vella, the Cathedral of Lérida (Catalonia) which dominates the city and part
of the region of Segrià, to announce from there the breaking of the fast on the first day
of Ramadan. It was clearly heard throughout the city. 36 Another denounced
concentration in front of a mosque took place in Seville.37 Moreover, the government
allowed two Muslim communities in Cáceres to go to other locations for food
authorized by the Islamic Commission of Spain, despite the general ban on
32
https://www.defensordelpueblo.es/noticias/comunicacion-‐del-‐defensor-‐del-‐pueblo-‐ante-‐la-‐
epidemia-‐coronavirus/
33
https://www.abc.es/espana/abci-‐tribunal-‐constitucional-‐hace-‐debate-‐juridico-‐y-‐lleva-‐decreto-‐alarma-‐
pleno-‐202005070208_noticia.html
https://www.elmundo.es/espana/2020/04/27/5ea6cb19fc6c835a0a8b45e3.html
https://www.elconfidencial.com/espana/2020-‐05-‐06/tribunal-‐constitucional-‐revisara-‐decreto-‐estado-‐
alarma-‐coronavirus_2582536/
34
https://okdiario.com/espana/vista-‐gorda-‐ramadan-‐calle-‐contrasta-‐celo-‐policial-‐misa-‐madrid-‐5508987
https://www.elconfidencial.com/espana/2020-‐05-‐02/primer-‐ramadan-‐estado-‐alarma-‐aumenta-‐tension-‐
entre-‐vox-‐musulmanes_2576279/
https://www.hispanidad.com/argumentos/gobierno-‐no-‐permite-‐bendicion-‐santa-‐faz-‐alicante-‐rezo-‐
musulman-‐vendrell-‐confinamiento_12017863_102.html
https://okdiario.com/espana/gobierno-‐dejara-‐musulmanes-‐finalizar-‐rezo-‐via-‐publica-‐evitar-‐
alteraciones-‐del-‐orden-‐5515608
https://www.elespanol.com/espana/20200412/prohibidos-‐semana-‐santa-‐autorizan-‐desplazamientos-‐
preparar-‐ramadan/481702420_0.html
35
Video
1:
https://www.youtube.com/watch?v=gZxi9nwNvY4
Video
2:
https://www.youtube.com/watch?v=Z4Y2IE96QmE
https://www.hispanidad.com/confidencial/cataluna-‐musulmanes-‐rompen-‐cuarentena-‐llaman-‐oracion-‐
islamica-‐concejal-‐erc-‐lerida-‐emocionada_12018040_102.html
36
Video:
https://www.youtube.com/watch?v=kGbdT8W_T8I
37
https://www.niusdiario.es/sociedad/vox-‐denuncia-‐video-‐concentracion-‐mezquita-‐centro-‐
sevilla_18_2945520173.html
10
displacements.38 Special treatment by the public authorities of the city of Melilla has
also been pointed out when they granted one hour extra time for going out to meet the
demand of the Muslim community that fasts during Ramadan, so that after eating for
the first time all day, they can walk or do physical exercise.39
On the other hand, the Center of Intelligence against Terrorism and Organized Crime (a
body of the Spanish Home Affairs Ministry) advised on May, 5th, 2020 an "intensified
vigilance and observance of the rules of the state of alarm" in populations where there
are "radical Muslim communities" in the face of the possibility that they will not take up
the recommendations that the Islamic Commission of Spain (CIE, in Spanish) has put
forward in view of the de-escalation and call for gatherings of the faithful to celebrate
the end of Ramadan.40
38
https://www.elespanol.com/espana/20200412/prohibidos-‐semana-‐santa-‐autorizan-‐desplazamientos-‐
preparar-‐ramadan/481702420_0.html
39
https://mundoislam.com/actualidad/espana/2020/05/11/melilla-‐amplia-‐hora-‐franja-‐horaria-‐paseos-‐
atender-‐emanda-‐comunidad-‐musulmana/
40
https://www.elindependiente.com/politica/2020/05/09/el-‐fin-‐del-‐ramadan-‐en-‐plena-‐desescalada-‐
pone-‐en-‐guardia-‐a-‐interior/
http://comisionislamicadeespana.org/recomendaciones-‐generales-‐ante-‐el-‐nuevo-‐coronavirus
11
José Luis BAZAN