It is not the plan B that the communities were demanding, but the Government will deal with an express decree to protect the autonomies and their restrictions when the current state of alarm subsides on May 9. The Council of Minister approved this Tuesday a decree, in which in addition to extending the measures of the so-called social shield as planned, it will establish an express reform in Law 29/1998, of 13 of ‘regulating the Contentious-administrative Jurisdiction ‘, which will allow the autonomies to appeal in cassation before the Supreme Court if the respective superior courts of justice overturn their restrictions, understanding that measures such as the curfew or the perimeter closures affect fundamental rights and cannot be done without the umbrella alarm status. These appeals – explain those responsible for the central government – will be immediate before the high court, so that the Supreme Court will be able to establish a doctrine much more quickly, thus avoiding the legal uncertainty that was suspected for the coming weeks and months, since until now Appeals to the Supreme Court for the restrictions were going to take months to arrive and perhaps years to resolve.
The Government, which reaffirms its willingness to definitively end the state of alarm at 11:59 p.m. next Saturday, believes that this reform will satisfy the communities that most vehemently, particularly Euskadi, Castilla y León and Galicia, had request that the exceptional legislation be maintained to continue imposing cuts in fundamental rights in order to contain the pandemic.
According to the new scenario designed by the Pedro Sánchez Executive, on May 10 Spain will return, but with nuances, to the legal situation that it was experiencing on October 24 before the entry into force, which was the third state of alarm since the beginning of the pandemic: the autonomies that wish to do so may impose restrictions that limit fundamental rights such as limits to meetings, curfews or municipal, provincial or regional perimeters, under the protection, as they did in 2020, in article 3 of Organic Law 3/1986 of Special Measures in Public Health Matters which literally states that «in order to control communicable diseases, the health authority, in addition to carrying out general preventive actions, may adopt the appropriate measures for the control of the sick, of the people who are or have been in contact with them and the immediate environment, as well as those deemed necessary in the event of a risk of nature t transmissible. “
These future movement restrictions, immediately and as happened last summer and autumn, will have to pass the filter of the respective superior courts of justice. This procedure is uncertain because already last year some courts, such as the superiors of Aragon, the Basque Country or Madrid, showed their reluctance to endorse this cut in freedoms through an autonomous decree. If, as is foreseeable, some superior overthrows these restrictions, the reform of the contentious that is approved today will allow regional governments to immediately appeal to the Supreme Court, which in a matter of days will have to decide on the first of the allegations and shortly thereafter probably on a second appeal. , thus creating a doctrine, which until now is non-existent because Spain had never before experienced in a democracy a similar situation of cutting freedoms through a state of alarm.
In the Government – contrary to what the vast majority of constitutionalists think who do not see it possible to restrict fundamental rights without an exceptional state – they remain convinced that the autonomies will have no problems to maintain the endorsement for the perimetrations and perhaps to limit the number of people gathered, but they do have doubts that without a state of alarm they have the power to maintain curfews. Be that as it may, in Moncloa they trust that by the time the Supreme Court has created doctrine, even rejecting the restrictions, they will no longer be necessary because the epidemiological situation has improved substantially.
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