The TC now endorses mobility restrictions under the state of alarm three years after invalidating the confinement

The progressive majority of Constitutional Court (TC) has made a 180-degree turn to the doctrine that this same body established three years ago on the application of states of alarm and exception. If in July 2021, the guarantee court, which then had a conservative majority, ruled that confinement during the coronavirus pandemic was unconstitutional under the state of alarmhas now reversed this position by a very slim majority and determines that strong restrictions on mobility are possible under the umbrella of this legal figure.

In a ruling for which the former Minister of Justice Juan Carlos Campo was the speaker, the Constitutional Court has taken this turn in its doctrine on the suspension and restriction of fundamental rights by partially upholding an appeal by Vox against the Public Health Law of Galicia, which endorsed the adoption of “preventive measures” to face health crises, such as the isolation of sick people, home isolation, confinement in hospital centers or mandatory vaccination. Precisely It was also a Vox resource the one that led the previous majority of the TC to declare the confinement of the first phase of the pandemic unconstitutional, since it considered that it should have been declared under the state of exception.

Now, the guarantee court, chaired by Cándido Conde-Pumpido, rules that “the intensity of the interference in the field of fundamental rights is not a determining criterion of the constitutional differentiation between the suspension and restriction of fundamental rights, so a restriction law, including (when appropriate) the state of alarm decree itself, can establish high intensity limitations on fundamental rights as long as it conforms to the necessary constitutional requirements and, in particular, as long as it respects the principle of proportionality.”

“The possibility of suspension of fundamental rights does not depend on the intensity of the measures adopted, but on the concurrence of their particular presupposition of enabling fact (the declaration of a state of exception or state of siege), since what occurs in such case is the temporary and exceptional suspension of the effectiveness of the right itself with the specific legal regime” established in the Constitution and in the 1981 law that regulates the states of alarm, exception and siege, the court adds.

All this does not mean that the July 2021 ruling on the first state of alarm is invalidated, but rather that the Constitutional Court establishes a new criteria to follow in future disputes in this regard. Of course, the sentence has passed only by one vote difference, since they have announced that judges Ricardo Enríquez, Concepción Espejel, Enrique Arnaldo, César Tolosa and José María Macías, all of them from the so-called conservative sector, will formulate a concurrent dissenting vote.