Government has collected only 5% fines for breaking restrictions between March and June
Just over half of the sanctions have been processed so far, and it is doubtful that all of them have been applied
BarcelonaThe Catalan government has only collected 8,000 fines - 4.7% - out of the 170,000 that the police handed out during the first state of alarm between 14 March and 21 June. Despite the fact that half a year has passed since the end of that period, just over half of the fines, some 90,000, have been processed so far. The Department of Home Affairs claims there are still a few months before the bulk of the offences prescribe, but there are doubts that they will all be punished. Since June the management of the fines for breaking the restrictions against covid-19 has been taken over by the Department of Health, which, consulted by the ARA, has not given any balance of how many have been processed and collected in the second and third wave.
What about the 80,000 penalties still pending from the first state of alarm? The response from Home Affairs is that despite the fact that the staff has been strengthened due to this sudden rise in cases - in a typical year 35,000 complaints were handled - it takes time to open each file. As most of the fines processed by Home Affairs are considered minor and are covered by the public health law, they would prescribe after one year, but the state of alarm stopped the administrative deadlines for two months and therefore, at the earliest, they may prescribe at the end of May this year.
However, Jordi Nieva-Fenoll, professor of procedural law at the University of Barcelona, attributes the slowness to the fact that the legal basis for the complaints "is weak". He criticises the fact that the principle of typicality has not been respected: "The sanctions must be pre-established. You can't depend on every police officer in every case. You can't leave so much room for the authority's judgement". Josep Maria Aguirre, professor of administrative law at the University of Girona, adds that "more generic" fines have been imposed. According to the two experts, this has led to "arbitrariness" when it comes to filing complaints.
In fact, during the first state of alarm, restrictions were based on public safety laws. However, the reality is that later, when they have been dealt with, Home Affairs has mostly used public health law: it tends to impose light fines of €300 which, if paid in a few days, are reduced to €180. Despite the fact that some autonomous communities have opted for the gag rule -then the slight complaints go up to €601 but it must be proved that they have disobeyed-, the Government has not used it so much. "To impose a fine for disobedience -explains Nieva-Fenoll-, first there has to be a requirement; that is, an officer has to ask someone to put on a mask, and if he does not listen to him, he can then be fined".
The change from August
"Enforcing public safety laws is an aberration. The public health law is less outrageous, but it still doesn't fit because there was no specific sanctioning regime," says administrative law attorney Maria Vila. The first state of alarm did not include any sanctioning regime, and it was not until after the first wave, in August, that the Generalitat fixed the mess with decree law 30/2020, which regulates covid fines. This regulation specifies the infringements, such as the obligation to wear a mask, even though it cannot be used retroactively.
The Department of Home Affairs admits that not all of the 80,000 sanctions that are still pending will go ahead because some are not "sufficiently accredited", but for now they do not specify what percentage they represent. They also admit that not all the 90,000 fines that have already been processed will be collected because the people who receive them can make allegations and prove that they did not commit any infringement. In spite of this, Vila appreciates that the Department has been skilful to impose small fines - the great part of the 8,000 that have been collected - because "most people will say that it is not worth appealing against a €300 fine". If allegations are made against the sanctions, the reduction to €180 no longer applies. Furthermore, lawyers are required to complete the appeal process.
While Home Affairs is trying to deal with fines pending from the first wave, it is the Health Department that has been ensuring that the restrictions are complied with since the summer - it should have done so from the outset since the violations are due to a health crisis. Aguirre claims this transfer shows the weak legal basis the original infractions had. The government opted for public safety laws in order to take advantage of police machinery, but then noticed the cases would be hard to hold up in court. However, the Health Department does not have the same administrative capacity, with only a hundred lawyers to process all the fines. The thousands of complaints that continue to be filed have caused a collapse and, to unblock it, at the end of December the Generalitat approved the incorporation of 300 more civil servants, including administrative staff and lawyers, dedicated to this process.
The Catalan government has kept the money from the 8,000 fines collected despite the fact that some of the 170,000 sanctions were handed out by local police. This does not include the 30,000 fines imposed by the Barcelona City Police, since they are being processed by the City Council -which does not specify how many it has collected. The then Minister of the Interior, Miquel Buch, promised to return to the city councils a part of the collection of the complaints made by their police officers, but the department admits that it remains to be seen if it is legally possible. This, added to the Government's collection collapse, has meant that some city and town councils have taken over. These include are Sant Boi de Llobregat, Olot, Sant Joan Despí, Viladecans, Lleida, Montcada i Reixac, Lloret de Mar, Granollers and Manresa, among others.