The Constitutional Court has given protection to the Workers' Commissions in the appeal that the union presented against the ban on demonstrating on March 8, Women's Day, 2021, the second year of the covid-19 pandemic. A year earlier, complaints had been filed against the then Government delegate in Madrid, José Manuel Franco, for having allowed similar concentrations, which led to the suspension of union meetings when the serious risks of the first months of the covid-19 pandemic. The criminal investigation ended up being archived.
CC OO, in turn, then filed an appeal for alleged violation of fundamental rights, specifically those of assembly and demonstration, and the Constitutional Court ended up agreeing with it two and a half years later, considering that when the concentrations were called they were no longer There were reasons to maintain restrictions as important as those of the first state of alarm.
Union sources highlight the importance of this ruling, due to the protection it implies for the right to demonstrate. The same sources add that the interest of this resolution is not limited to the specific case resolved, but that the doctrine approved by the guarantee body will make it possible to defend the prevalence of this right in other situations that, whether related or not to a health risk, propose administrative decisions limiting the right to peacefully gather or demonstrate for any plausible reason.
The ruling reasons that to determine the seriousness of the danger, it is necessary to look in each case at the circumstances that occurred at the time of the decision being questioned, which in 2021 were already very different from those that gave rise to the declaration of the first state of alarm, a year earlier. In this sense, the ruling considers that in 2021 the population “had become accustomed to living with the pandemic and had learned to protect itself, with masks and interpersonal distance, wherever its practice was feasible.” It is added that “people had masks, which were also mandatory in closed spaces and in open spaces when the distance could not be maintained” and that “the complete vaccine schedule had been implemented for those over 80 years of age, which “They were the sector of the population most affected by the high mortality that the pandemic caused in the first moment.” And the resolution also highlights that “there were contagion detection mechanisms that allowed those who had contracted the virus to adopt the precautionary measures recommended by the health authorities.” Therefore, the ruling states, all of this “made it possible for those who attended the demonstration to be healthy.”
The court, however, has debated intensely on the issue because there have been frontally opposed positions within it, as already happened when last November a similar appeal by the UGT for the prohibition of demonstrations was resolved, and whose challenge was also upheld. by the court. Faced with the majority of the magistrates of the progressive group, who have defended the prevalence of the right to demonstrate in the face of a pandemic that was no longer combated with confinement, two of the magistrates of this bloc—Laura Díaz and María Luisa Segoviano—have presented a dissenting vote against the ruling, considering that preference had to be given to the best guarantee of the right to health.
In turn, three judges from the conservative sector – Enrique Arnaldo, Concepción Espejel and Ricardo Enríquez – have defended a concurrent vote – in accordance with the ruling, but with other arguments – in which they disagree with the significance that the resolution grants to the improvement of the health situation derived from the evolution of the covid-19 pandemic itself in 2021, “to the point of elevating it to the true reason for deciding to the detriment of the application of the consolidated constitutional doctrine on the matter” in defense of the right to health. And they also believe that the administration's decision was not disproportionate, but that there were “options for the development of the act that were less harmful or intrusive to the fundamental right of assembly and demonstration.”
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