Article 7 of the Real Decree 463/2020, of March 14, which declares the state of alarm for the management of the situation of health crisis caused by COVID-19, limits freedom of movement of the majority of Spanish citizens, which has been restricted even more by the Real Decree-Law 10/2020, of March 29, which regulates a paid recoverable leave for employees who do not provide essential services, in order to reduce population mobility in the context of the fight against COVID-19.
Article 20 of the Real Decree 463/2020 indicates that resisting or failing to comply with the orders of authorised officers during the state of alarm will be penalised according to the terms set forth in article 10 of the Organic Law 4/1981.
The first paragraph of article 10 of the mentioned Organic Law, which regulates the state of alarm, makes a simple reference to the laws in the case of non-compliance or resistance to the orders of authorised officers during the state of alarm.
What happens when a citizen resists or disobeys orders of an authorised officer (policeman) making such citizen, who has breached the obligation of confinement, go home?
In such case, the applicable law would be the Criminal Code which among the crimes against public order regulates an assault, resistance and disobedience in articles 550 to 556.
According to article 550 of the Criminal Code, a conduct can be considered an assault when there is aggression, serious intimidation or violence as well as active resistance to the authority or its agents when they are carrying out their duties of office.
Such assaults are punished with imprisonment of 1 to 4 years and a fine of 3 to 6 months if they are against an authority and with imprisonment of 6 months to 3 years if they are against its agent.
In its turn, article 556 of the Criminal Code provides for a lack of respect, resistance and disobedience which do not constitute an assault, defining it as an act of resistance or serious disobedience of the authority or its agents while carrying out their duties of office.
In this case the punishment of imprisonment is of 3 months to 1 year or a fine of 6 to 18 months. The same article 556 of the Criminal Code punishes all those who disrespect or show lack of due regard towards the authority while carrying out its duties with a fine of 1 to 3 months.
Therefore, the Criminal Code classifies as a crime only those conducts that consist in resistance or serious disobedience of the authorised officers while carrying out their duties.
Minor disobedience is considered a crime solely if is targeted at the authority while carrying out its duties of office.
Consequently, if a conduct is minor and is directed against an authorised officer, it will be punished only with administrative penalties. Thus, the Organic Law 4/2015, of March 30, of public security (article 36.6) establishes that disobedience or resistance to the authority or its agents while carrying out their duties of office, when it does not constitute a crime, as well as a refusal to identify oneself on the requirement of the authority or its agents or allegation of false or inexact data in the identification procedures is considered a serious penalty and is punished with a fine of 601 to 30.000 euros.
The problem arises when determining whether a conduct is minor. The regulations shall be interpreted in the historic context within which they are approved and it could allow, given the exceptional nature of the moment we are leaving in, to extend the concept of a minor conduct to those certain conducts which under ordinary non-exceptional circumstances would not be considered criminal.
As usual, it will be the courts which will dispel the doubts and will indicate the way of interpretation of such conducts and regulations, when we get back to normal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.