Resisting the criminalization of protest may be the most pressing task facing the 15-M movement as it commemorates its 3rd Anniversary
As activists reflect on the third anniversary of the 15–M encampment in Madrid’s Puerta del Sol (which later spread to cities and plazas around Spain) they are taking stock of where the movement is today. While too often it seems that the mobilization of hundreds of thousands of people falls on deaf ears and has little impact, 15-M activists have launched a new initiative called the archives of achievements of 15-M (Archivo de Logros 15-M), which compiles news reports of movement successes and serves as a reminder that protest and social movement activism does produce positive results.
Despite these many achievements, one of the least desired and unintended consequences of the movement has been the relentless repression of the state over the course of the past three years. Amnesty International has documented the alarming incidences of police violence against protesters across Europe (2012). Excessive use of force, including use of clubs and rubber bullets, have been documented in Spain as well, but Spanish law does not specifically regulate the use of force by police (Amnesty International 2014: 36). In Spain, two women who have been seriously injured by rubber bullets during peaceful protest have been unable to get compensation because of the inability of identifying the police, who were not displaying their identification numbers (Amnesty International, 2014). While documented police brutality and the instigation of violence by police infiltrators is, of course, cause for extreme concern, less visible but even more damaging and insidious is the legal onslaught against the fundamental democratic right to protest and other legal reforms that criminalize forms of expression of political critique and solidarity.
Spain’s ruling party, the PP (Popular Party) has initiated the legal process of reform of the Penal Code and the reform of the Law for the Protection of Citizen Security (also known as the gag law, the anti-protest law, and the anti-15-M law) to make it even more restrictive than it is. Their absolute majority has meant that no amendments proposed by other parties have been passed as the proposed reform of the penal code makes its way through the parliamentary process (the modification to the Law for the Protection of Citizen Security is still being debated at ministerial level). Both the proposed reform of the penal code and the proposed law, as well as the increased and arbitrary use and misuse (Amnesty International 2014) of existing law, are already having chilling effects on activism and bode ill for critical organizing in the future, and are clearly designed to criminalize specific movement tactics, such as the escrache, a form of public bearing witness against politicians near their homes (Amnesty International 2014).
State backlash against the 15-M started soon after the first encampment in Sol, first when the electoral junta prohibited the camp, with the result that thousands more people decided to join the protest and refused to leave. The following year on the first anniversary, the Government Delegate of Madrid (Popular Party) banned permanent structures and tents in the Puerta del Sol and ordered the police to film the protesters (RTVE 2012). As mass citizen organizing through myriad groups, platforms and campaigns such as the Platform for those Affected by Mortgages (PAH), the many “citizen tides” (mareas ciudadanas) and the wider 15-M movement shows little sign of abating, the government has responded with a comprehensive set of measures to attempt to force them into silence. According to Amnesty International, the Spanish government is using every means at its disposal to limit freedom of expression and peaceful protest.
One such tactic is the increasing use of fines to punish and dissuade peaceful protest. Under the existing Law for the Protection of Citizen Security (1992), fines range from €100 to €1001 for lesser infractions and up to €600,000 for very serious infractions. Refusing to dissolve a protest, for example, is a ‘serious infraction’ (Amnesty International 2014). The use of administrative fines is increasing, and in a recent report (CommDH (2013)18), the Commissioner for Human Rights for the Council of Europe expressed concern at this increase, which could be considered to constitute a violation of freedom of expression and association. Clearly the prospects of huge and disproportionate fines is intended to dissuade protest and silence the voices of citizens outraged by the privatization of public services, the imposition of punitive austerity measures, and much more.
Amnesty International points out that this generates a “grotesque situation” where those most affected by the crisis are unable to exercise their democratic right to protest due to the inability to pay the fines they will get for doing so (2014: 24). Members of the Platform for those Affected by Mortgages, for example, who protest at having to keep paying their mortgage debt, despite losing their homes to foreclosure, (among other things) have accumulated at least 40.000 Euros in fines. Legal Sol, who offer support to 15-M activists in Madrid, registered 1.010 fines totalling over 320.000 Euros between May 2011 and November 2013. However, the increased and often arbitrary application of existing law is not sufficiently restrictive, according to the Popular Party (Amnesty International 2014), hence the reform of the penal code and modification of the Law of Protection of Citizen Security.
Under the new draft law, citizens could be charged for simply disseminating a message about a protest event or gathering (say via social media) that results in the commission of an alteration against the public order, even if that person never actually attends the event. Furthermore, the crime of “attempts against authority” or against the public order not only apply to individuals involved, but extends to any organizations they belong to, regardless of whether that organization was involved in planning the event or even were aware of the event.
The new draft law also redefines public space- and therefore of public order –which would now extend to private spaces such as bank branches, as a means of criminalizing the hundreds of occupations of banks by citizens protesting against bank fraud and abusive mortgages (such as the Right To Housing movement) (No Somos Delito Decálogo, 2014). Another aspect of the law is to transfer cases out of the courts (where activists were challenging the repression and sometimes winning, see Archivo de Logros 15-M) and to impose fines via an administrative rather than a judicial route, denying defendants a judge and jury and increasing the costs through the introduction of court fees (tasas judiciales), payable at the start of the process if defendants wish to contest the fines. In what is known colloquially as the anti-Greenpeace clause, any protest in the vicinity of a “critical infrastructure” (such as a nuclear power station), would automatically be subject to fines between 30.000 and 600.000 Euros. The proposed so-called anti-protest law characterizes passive resistance as an attempt against authority, an offense that will be sentenced more harshly if it arises in the context of a protest or large group setting (Greenpeace 2014, Amnesty International 2014).
Most disturbing of all, the new law stipulates the application of fines for a wide range of protest actions recognized by the courts as freedom of expression, including “any declaration in any medium or forum that has the intent of insulting or slandering public institutions, authorities, agents of authority or public employees, [or demonstrates] a lack of the necessary respect or consideration due these authorities or their agents, and offenses or outrages to the Spanish state, its autonomous communities, local entities or institutions, symbols, hymns or emblems” (cited in Amnesty International 2014: 61). According to Amnesty International the classification of these acts as offenses violates the international human rights laws Spain is a party to.
For its part, the proposed reform of the Penal Code converts former misdemeanors into criminal offences and deliberately targets vulnerable groups and social movements. The language used in specific articles of the reform of the penal code represent a crucial shift in logic from defining criminality based on actions to defining it based on who people are and what resources they have available. It toughens penalties for economic survival activities such as undocumented street vending (top manta or on the blanket selling) while reducing sanctions against economic white-collar crimes (No Somos Delito, Manifesto 2013). As such, it is a perfect corollary to austerity measures that punish the most vulnerable and reward those responsible for the “crisis”. Not only does the reform further criminalize and punish protest, but, in an ugly but coherent move, also criminalizes solidarity, making it a crime to offer aid or support to undocumented residents. This also fits the logic of the Spanish government’s austerity measures where the most vulnerable should be supported via charity (e.g. Caritas) and the family rather than via social welfare, social justice and solidarity.
The proposed reform also uses the language of “posing danger” (peligrosidad) to characterize the right for the police to detain people preventively, a chnage that would penalize not actual acts but potential threats, the latter described in extremely ambiguous language which leaves the door open to criminalize entire groups of people (migrants, migrant solidarity groups, activists, and the mentally ill).
In the face of these and many other measures that criminalize protest and solidarity, platforms such as No Somos Delito (We are not Crimes), and NGOs like Amnesty International and Greenpeace are raising the alarm about the threat to the fundamental right of freedom of association and expression and the criminalization of social movements in a context of mass citizen mobilization against austerity and restrictions to rights, such as the right to abortion.
Platforms like No Somos Delito are trying to challenge these reforms in a variety of ways. First, by making the issue visible within the movement networks themselves: 1) by reaching out to other social movement groups so that they incorporate the campaign into the actions and slogans of the wider movement (such as the 15-M anniversary events), 2) by networking with like-minded groups such as the Sin Papeles (Undocumented or Without Papers) movement, or SOS Racism, and concerned NGOs like Greenpeace or Amnesty International to exchange information and support each other’s actions, 3) by offering other groups a wealth of material and information in the form of workshops and workshop “kits”, that provide materials and resources so that groups can organize their own workshops, and by creating logos, slogans, documents, actions and campaigns.
Second, the platform collaborates with lawyers (some active in the platform), and the legal groups within the movement network, such as Legal Sol (who offer pro bono legal aid to activists and who provide legal analysis of current and proposed laws), to make sure they are accurately interpreting the laws and to develop campaign materials. Groups like Legal Sol, in turn, collaborate with Amnesty International, helping to monitor the imposition of fines for peaceful protest, for example. Legal Sol also offers thorough advice to activists on the exact legal consequences of proposed protest actions under existing law.
Third, by raising awareness among the public, through collaborating on direct action campaigns (such as the White Blanket where Spanish citizens sold items on white blankets on the street in solidarity with the undocumented migrants who will be criminalized by the new law); sticker, poster and social media campaigns, press releases, protests, street theatre, and performances.
One campaign, called for by Greenpeace, No Somos Delito and Real Democracy Now! called “They are gagging us” (#NosAmordazan) began with the gagging of Daoíz and Velarde, the two lions that guard the doors of parliament, and ended with over 150 gagged statues across Spain, accompanied by a media campaign. New ideas and initiatives for action are being debated and developed all the time. Perversely, some of the planned campaigns to raise awareness of the threats to protest have been suspended because of the possible legal consequences to some of the groups involved, or whose members are involved. Increasingly, organizations are deciding to support actions with resources but not to appear as organizers, which decreases the legitimacy such protest actions could have.
Amnesty International is worried that Spain will reach levels of repression on a par with Turkey, Ukraine and Russia (Villa 2014) and the current situation means that Spain is now increasingly from International and European guidelines and regulations governing human rights, in particular with regard to freedom of association and freedom of expression. Put simply, peaceful social movements are being criminalized. Despite the reports of the Human Rights Commissioner for the Council of Europe, other reports expressing concern over the repression of journalists covering protests, and the reports of Amnesty International on the abusive use of administration and penal sanctions against peaceful protesters and the excessive use of police force, in clear violation of existing European and International guidelines and Conventions (to which Spain is a signatory), the European Union institutions have not intervened. What this means is that, if the existing situation in Spain and the proposed reforms are allowed to go ahead, in a context of crisis and austerity in which mass demonstrations are calling politicians and governments to account for their actions, this restrictive legal framework could extend throughout Europe, as other governments can more easily choose to repress rather than listen to their citizens.
Many look to Spain for “people power” inspiration. As we pass the third anniversary of 15-M, activists in Spain are raising the alarm about the already palpable effects state repression is having on citizen protest, and even on our human desire to express solidarity, a threat that could be coming soon to a state near you. In a “crisis” scenario where many worthy protests compete for our attention, probably the most important thing to mobilize for right now is the right to protest.
* A shorter version of this article was published in Red Pepper magazine:http://www.redpepper.org.uk/
Photographs: Top Image: Greenpeace Activists gag one of the lions outside Spain’s Congress to protest the “Ley Mordaza” or “Gag Law”
Bottom Image: One of the many photos taken and submitted by activists around Spain who took part in the “Nos Amordazan”campaign to raise awareness about the reform of the Law for the Protection of Citizen Security.
15M Archivo de Logros (2014) Available: https://logros15m.crowdmap.com/reports
Amnesty International (2014) España: El Derecho a Protestar, Amenazado, available: http://www.amnistiacatalunya.org/uploads/media/Informe_Espanya_el_dret_a_protestar__amenacat.pdf
Amnesty International (2012) Actuación policial en las manifestaciones en la Unión Europea (Police behaviour during protests in Europe), AI: EUR 01/022/2012. Available: www.amnesty.org/es/library/asset/EUR01/022/2012/es/1ce3a468-55df-4e85-8200-7881076b5204/eur010222012es.pdf
Council of Europe (2013) Commissioner for Human Rights Report, available: https://wcd.coe.int/ViewDoc.jsp?Ref=CommDH(2013)18&Language=lanSpanish&Ver=original &Site=COE&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FF C679.
Flesher Fominaya, C. (2014) Social Movements and Globalization: How Protests, Occupations and Uprisings are Changing the World, London: Palgrave Macmillan.
Flesher Fominaya, C. and A. Montañés Jiménez, (forthcoming) “Transnational diffusion across time: The adoption of the Argentinian Dirty War “escrache” in the context of Spain’s housing crisis” in Donatella DellaPorta and Alice Mattoni (eds) Spreading ProtestSocial Movements in Times of Crisis, Colchester, UK: ECPR Press
Greenpeace (2014) No a la Ley Antiprotesta: Análisis de la reforma de la Ley deSeguridad Ciudadana, Febrero 2014, Available: http://www.greenpeace.org/espana/Global/espana/2014/Report/general/ley_antiprotesta_web.pdf
No Somos Delito (2013) Manifiesto, Available: nosomosdelito.net
No Somos Delito (2014) Decálogo: Puntos clave de la reforma del Código Penal
TRVE (2012) La Policía grabará las concentraciones del aniversario del 15-M e impedirá acampar en Sol, May 9 2012, Available: http://www.rtve.es/noticias/20120509/cifuentes-admite-gusta-reunion-del-15m-puede-prohibir/523583.shtml
Villa, L. (2014) Amnistía teme que España llegue a niveles de represión social de Rusia o Turquía, Público.es, 24 April, Available: http://www.publico.es/actualidad/516465/amnistia-teme-que-espana-llegue-a-niveles-de-represion-social-de-rusia-o-turquia
 For more on 15-M, see Flesher Fominaya 2014.
 For more on the escrache in Spain, see Flesher Fominaya and Montañés, forthcoming.