Without a state of alarm there is no curfew. The Supreme Court settles the controversy: without exceptional legislation it is not possible to limit fundamental rights at discretion and in a general way and to do so by means of autonomous decrees, based on health laws. In his first substantive decision on the limitations in the pandemic, he not only annulled the curfews in Balares and also the maximum limit in social gatherings, understanding that both measures, “due to their severity and because they affect the entire autonomous population”, they “restrictively affect basic elements of freedom of movement and the right to family privacy, as well as the right of assembly.”
The Supreme Court, therefore, certifies, contrary to what the Government had been holding, that only with organic laws can these fundamental freedoms be curtailed and that once the state of alarm has ended on May 9, the autonomies cannot limit movements to large populations and for an indefinite period of time, although the purpose is to stop the spread of the virus.
In its resolution, the Contentious-Administrative Chamber of the Supreme Court considers in part the appeal of the Prosecutor’s Office in the sense that a restriction of fundamental rights of this caliber does not exceed the “canon of proportionality”, although it is about fighting against the pandemic. That is why it insists on overturning the decision of the Government of Francina Armengol of May 5 to establish a curfew between 24 and 6 hours, with certain exceptions (health care, work trips, care for dependents, among others) and to set the maximum number of people in family and social gatherings indoors at six, and eight in open spaces.
The Prosecutor’s Office had appealed against the order of the Superior Court of Justice of the Balearic Islands (TSJIB) that authorized, for the second time, the curfew in the community and the limitations on social gatherings approved by the Government. Of course, with the private vote of two magistrates.
The only two points in which the Supreme Court does agree with the Armengol Executive are in the limitations imposed on travelers from other parts of Spain (PCR) and the restriction of capacity in places of worship. Both restrictions have been ratified by the high court, understanding that they do not concern fundamental rights.
The Supreme Court has manifested itself in record time on the restrictions in Balares forced by the express reform promoted by the Government at the beginning of May, which modified the law ‘regulating the Contentious-Administrative Jurisdiction’ to allow communities to appeal in cassation before the Supreme Court if the respective superior courts of justice overturned their restrictions, understanding that measures such as curfew, perimeter closures or perimeter limitations could not be done without the umbrella of the state of alarm.
The Supreme Court’s ruling, in practice, will have little impact on the islands, since the Government had already announced its intention to lift the curfew next Sunday. The regional administration had also revealed its intention to increase the number of participants in the meetings, something that must be reconsidered because the Supreme Court de facto prohibits establishing any maximum number regardless of how high it is.