Madrid Region Admits There Are No Rules Allowing Councils to Fine Drug Use or Possession in Public

The Madrid Region admits that it never transferred the powers under the ‘Gag Law’ to local councils. Moreover, according to several rulings of the administrative courts, no national law gives local councils powers for this purpose.

Possession and consumption of drugs in public places is classified as a serious offence under the ‘Gag Law’ (Organic Law 4/2015), with fines of between 601 and 30,000 euros. Since the law was passed in 2015, local councils have had no power to fine people for drug use or possession in public, because to do so they would have to be authorised by a specific rule, as Article 32.3 of the law itself states.

The Madrid Region never transferred the powers under the Gag Law to local councils, as the regional administration has confirmed to Soriano & Fernández Abogados.

At the end of September 2022, the Directorate General for Security, Protection and Training confirmed to us in an official document that:

 ” There is no regional law or regulation governing the penalty procedure for possession of drugs in public places in the municipalities of Madrid and Leganés; the power to impose penalties is laid down in Organic Law 4/2015 of 30 March on the protection of public security, a provision that does not give this administration the power to impose penalties for possession of drugs in public places.

There is no specific regional legislation giving the local authorities of the Madrid Region powers in the matter referred to in Article 32.3 of Law 4/2015 on the protection of public security “

Our firm had been studying the powers of local police forces over this type of fine since the Gag Law came into force. This followed several cases involving Yecla Town Council in Murcia, where various rulings of the Murcia administrative courts had held that Yecla Town Council had no substantive power to investigate and decide penalty proceedings for possession or use of toxic drugs, narcotics or psychotropic substances, because no regional or national rule gave it that power.

Previously, the 1992 Organic Law on the Protection of Public Security (Law 1/1992), known as the Corcuera Law, gave mayors direct power to penalise “unlawful possession and public use of drugs”. But in 2015 the new Public Security Act established that councils may impose penalties “provided they have competence in the matter under the specific legislation”. In other words, “the Gag Law does not grant this power automatically; councils would have to be authorised by a specific rule, and this has not been done, so they have kept on issuing fines believing they had the power, as under the previous law, thereby acting unlawfully.” 

Our investigation is based on the case of the Madrid Region, but this does not mean that the same failure to transfer powers does not also affect councils in other regions; we are still investigating this.

Which councils are affected?

This situation would affect all fines imposed under the Gag Law by councils in the Madrid Region, possibly with the exception of Madrid City Council, whose competence we have doubts about. This is because there is a national law that applies only to Madrid City Council, Law 22/2006 of 4 July on the Capital Status and Special Regime of Madrid. This law gives the capital certain powers over public security and, although we believe it does not do so for this specific matter, the ambiguous wording means we cannot say so categorically. We are still requesting information on this.

How to appeal the fines

Anyone fined unlawfully by a local police officer in a municipality of the Madrid Region (with the city of Madrid still in doubt) can request that the decision be declared null and void and the fine refunded. If the request is refused, they will have to go to the administrative courts.

The fairest solution, however, would be for mayors to acknowledge that they had no power to impose these fines and, in the interests of justice, refund all the money collected from people fined unfairly and without any competence to do so. This political solution would be much fairer, as all those fined could recover the money charged to them through an unlawful penalty, not just those who find out and are able to request that their fine be annulled.

The implications of this nullity can also go far beyond the fine itself, since repeat fines for drug possession increase the amount of the fine, and such penalties may have had other consequences beyond the amount of the fine. If a fine is null and void, but the same person was later fined again and was included in the register of offenders created when the Gag Law was passed, that second fine is higher because they are a repeat offender, and that higher amount should not apply. Exactly the same applies to seizures of bank accounts or wages, or even enforcement against property for unpaid fines.

If you think you may be affected or need more information, contact us.