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16Sep20

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Open letter to the State Attorney General, Dolores Delgado, on the responsibility to investigate in the case of the coronavirus epidemic

We have taken note of your decision not to investigate the possible responsibility for the consequences of the coronavirus epidemic, which we consider unacceptable from the point of view of the guarantees that a state governed by the rule of law must provide.

The main problem is to consider that it is not possible to delimit as individual violations the deaths that occurred during the pandemic since it is not evident a violation of the individual rights contained in the Universal Declaration of Human Rights.

Article 1 of the Universal Declaration of Human Rights states that: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood", and article 3 reads "Everyone has the right to life, liberty and the security of person. ".

Alleged offences arising from an epidemic are covered by the International Covenant on Economic, Social and Cultural Rights, and more specifically by Article 12, which states

    "1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

    2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: [...]

    (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

    (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness."

In turn, Article 10.2 of the Spanish Constitution in force provides:

    "2. The principles relating to the fundamental rights and liberties recognised by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain."

And Article 96.1 of the same text:

    "1. Validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order. Their provisions may only be repealed, amended or suspended in the manner provided in the treaties themselves or in accordance with the general rules of international law."

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. Spain must comply with these aspects of international law originating in the work of the United Nations as it is a member of this organisation and has ratified the International Covenant on Economic, Social and Cultural Rights.

However, the European Center for Disease Prevention and Control concludes in a report on deaths in nursing homes that, until 11 May 2020, deaths of elderly people in these centres alone represented 66% of all deaths by Covid-19 in Spain and there is no justification for this percentage. It seems obvious that the Coronavirus SARS-CoV-2 does not distinguish between age groups, or at least there is no scientific document that supports this possibility.

It is easy to deduce, then, that there have been causes that incur state responsibility in combating the epidemic within the public health system and in relation to the preventive and/or organisational measures that were adopted and which would have to be consistent with the obligation to devote the maximum of available resources to protecting life in cases of epidemics.

The nature of epidemics and their prevention in terms of determining potential state responsibility has been studied in the cases of cholera in Haiti and Ebola in the Democratic Republic of the Congo, although in those cases it was clear that there was a lack of sufficient resources due to the endemic poverty in those countries.

In the case of Spain, it is obvious that no causality can be claimed from structural failures arising from poverty, lack of health structure and/or clinical and pharmaceutical infrastructure to deal with the Covid-19 epidemic.

It is well known that the cause of the high mortality rate in the elderly is linked to the refusal of hospitalisation or to the fact of taking them out of hospital, without any scientific or medical explanation to justify these actions.

In the framework of the Council of Europe, Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Spanish Official Gazette "BOE" No. 108 of 6 May 1999, pp. 16808-16816) and Protocol No. 12 to that Convention (Rome, 4.XI.2000) (Spanish Official Gazette "BOE" No. 64, 14 March 2008, pp. 15299-15304) prohibits discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". Other status includes discrimination on the basis of age.

At European Union level, Article 21(1) of the Charter of Fundamental Rights of the European Union (2010/C 83/02), also binding on Spain, prohibits "[A]ny discrimination based on any ground such as [...], age [...]."

According to Article 6 of the Treaty on European Union, "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties."

It is not our role to determine the cause of these facts, but we believe that there is a clear violation of the right to life in the case of deaths that are not clinically justified, as is the case with nursing homes.

Whatever the cause, it is clear that it falls under the framework of state responsibility and we recall that there is a document dated 27 June 1999 on impunity in economic and social rights, published by the Economic and Social Council of the United Nations, which is very clear in this regard and whose para. 133 reads:

    "133. The responsibility of the State is entire when the violations result from the malfunctioning of the civil service, whatever be the cause. The State cannot invoke either its own legislation or the incompetence or disobedience of its agents to exonerate it from its responsibility, whether the actions in question are government ones or purely managerial. In connection with the behaviour of State agents, abundant case-law from the Nürnberg International Tribunal that neither disobedience to or the execution of a clearly unlawful order reduces in any way the responsibility of the State."

For all these reasons, we consider that the Lieutenant Attorney General of the Supreme Court, as well as the Board of Chamber Prosecutors and, broadly speaking, the Attorney General's Office, are obliged to open investigations to clarify the facts and determine responsibilities.

[Source: Grupo de Estudios de Derecho Internacional (International Law Study Group) and Equipo Nizkor, Madrid and Charleroi, 16Ssep20]
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