Before theabsence of a specific provision in the aforementioned Decree establishing the state of alarm, the breach of said limitation - breach of confinement -is being the subject of complaints under the provisions of article 36.6 of the Organic Law for the Protection of Citizen Security(commonly known as Gag Law)

However, said article 36 classifies, as a serious offense, the following conduct:

"Disobedience or resistance to authority or its agentsin the exercise of their functions, when they do not constitute a crime, as well as the refusal to identify themselves at the request of the authority or its agents or the allegation of false or inaccurate data in the identification processes ”.

Let us therefore observe thatThe Citizen Security Law does not provide any sanction specifically applicable to breaking the confinement decreed by the state of alarmRather, it regulates, in a general way, disobedience or resistance to authority and refusal to identify oneself.

If we now observe what is happening from the validity of the alarm state, we will easily verify thatMost of the sanctions that are being imposed lack the slightest legal coverage. Like we have already said,Skipping confinement is not punishable for the simple - and powerful - reason that the law does not provide it.

Breaking the confinement is a civilly reprehensible behavior, but it is not legally punishable because the legislator - surely due to haste or legislative lack of authority - did not foresee it. Let us remember the classic principle nulla poena sine llege praevia. No sanction can be imposed without a prior written rule that expressly provides for it. It is an elementary legal principle, expressly proclaimed in article 25.1 of the Constitution:

"No one can be convicted or punished for actions or omissions that at the time of their occurrence do not constitute a crime, misdemeanor or administrative offense, according to the legislation in force at that time ”.

Let us also remember that, technically speaking, police officers do not impose fines. The agents file complaints, which, after following the corresponding administrative procedure, may lead to the imposition of a fine.

When the notifications of the complaints begin to arrive to the citizens, we will verify which is the infraction in which they are based. If they do so in the breach of confinement, as we have already said, there is no place for the imposition of any sanction because, we repeat, said sanction is not provided for in the legal system.

But if, as it seems, these alleged infractions are intended to be covered by article 36 of the Citizen Security Law, as provided in the aforementioned precept, it will be a legal requirement that there has been a disobedience or refusal to identify.

However, as we know,in most cases there has not been a prior express request from the agent, which could therefore be classified as disobedience, but the police officers have limited themselves to denouncing the breach of the confinement.

That is, it is intended to sanctionnon-compliance with the provisions of Royal Decree 463/2020, when, as we have repeated, –incomprehensibly– said non-compliance does not entail any sanction.

As has been previously undisputed interpretation of the current state of alarm, the offense typified in article 36 of the LSC wasdisobedience to orders of "the authority or its agents". Not disobedience to the generic orders established in the legal system. The opposite would be to understand that any breach of the provisions of the laws or regulations could be capable of integrating, by itself, the administrative infraction described.

So I had even understood–At least, until now–the Ministry of the Interior itself, in whose Instruction 13/2018, of October 17, went even further, establishing the following criteria:

"THIRD.- Disobedience or resistance to the authority or its agents (article 36.6).

1.- The concepts of disobedience and resistance to the authority or its agents in the exercise of their functions, when they do not constitute a crime, must be interpreted in accordance with the existing jurisprudence to that effect, which, in summary, defines them as an action or omission that constitutes an implicit or express refusal to comply with a legitimate order,using bodily opposition or physical forcebefore the development of the powers of the authority or its agents.

2.- Therefore,It must be understood that a slight or first refusal to comply with the orders or instructions given by the agents cannot constitute an infraction of article 36.6, if it is not a conduct that finally breaks the action or omission ordered by the acting agents or prevents them the development of their functions”.

The criterion was therefore clear and forceful. But nevertheless,the Interior Ministry seems to have now changed its criteria.

Indeed, in the document entitled "Communication from the Minister of the Interior to Government Delegates on the initiation of sanctioning procedures for alleged infringement of art. 36.6 of Organic Law 4/2015, of March 30, on the protection of citizen security, and criteria for sanction proposals "The Ministry now understands that the mere breach of the orders issued by the Government can be subsumed in the administrative infraction typified in article 36.6 of the LSC. Interpretation that, as we have been explaining, in our opinion islegally unsustainable.

Similar conclusions ¬ –of which are exposed in this brief article– comes the State Bar, which expressly chooses to maintain the same interpretative criterion to date. This is how the State Attorney General has ruled in the document called "Consultation on classification and administrative competence to process and resolve sanctioning procedures for breach of the limitations imposed during the state of alarm":

"Article 36.6 of Organic Law 4/2015 typifies an administrative offense derived not from the mere violation of a legal norm(conduct that, as indicated, is reprehensible and carries its own legal consequences in law),but of the ignorance of the principle of authority, which entails a reproach or additional devaluation. When whoever acts legally invested with the status of authority is not obeyed by an individual, that conduct deserves an additional reproach to that of the prior breach of current regulations. Due to the above, the violation of disobedience necessarily requires an express and individualized request by the agent of the authority, which is not attended to by the addressee of said request ”.

Recapitulating, according to the interpretation that we have developed, which also coincides with that of the General State Attorney,the mere breach of the provisions of Royal Decree 463/2020–Generic confinement order–It is not, by itself, constitutive of an administrative offense of any kind. The infraction provided for in article 36.6 of the Citizen Security Law requires a stubborn refusal to comply with the orders or express requirements of the agents of the authority, in the terms in which said precept has been interpreted prior to the state of alarm, which nothing has changed about it.

Let us also remember thatpolice officers do not impose fines, but only file complaints. The sanctions, if any,will be imposed after monitoring the corresponding administrative procedurein which, mandatory, must be givenhearing procedure for the interested party, which may formulate allegations, both in fact and in law.

If the description of the facts contained in the complaint does not include actions or omissions that could be classified as disobedience to the agents of the authority, that simple legal allegation should be enough for the file to end without imposition of sanction.

In the event that the complaint contains a description of the facts that does not correspond to the reality of what happened, the interested party should discuss that factual account and may also provide the evidence at his disposal - witnesses, recordings, etc. -.

If, despite this, a sanction is finally imposed, it should be remembered that, as administrative acts that they are, all sanctions can be judicially appealed before the courts of the contentious-administrative jurisdictional order.

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