The Supreme Court will decide this same month of May or at the latest at the beginning of June whether or not it is legal for the autonomous communities to restrict the fundamental rights of citizens to contain the pandemic and that they do so without the protection of a state of alarm. The decree published this Wednesday in the BOE – and with which the Government wants to force the high court to create doctrine on this legal situation that had never occurred before in Spain – includes extremely tight deadlines, to the point that the magistrates of the Third Chamber will have to resolve any appeal in about two weeks, a record time for a court that moves in rhythms of months, if not years.
The decree that reforms Law 29/1998 ‘regulating the Contentious-Administrative Jurisdiction’ will effectively make the Supreme Court resolve in “record time”, as Vice President Carmen Calvo promised on Tuesday, any veto of the higher courts of justice at its orders of the autonomous governments that restrict fundamental rights such as curfews; municipal, provincial or autonomous perimeter confinements; caps on meetings or limitations on places of worship.
The first acceleration in this process to expressly resolve the resources is based on the fact that the regional administrations directly You may skip the so far essential requirement to formulate an appeal for reversal, an optional appeal for review that is imposed against acts that exhaust the administrative route. This process, which can take months to resolve, usually ends with the confirmation of the resolution and would have postponed a ruling from the Supreme Court, probably until the pandemic is over, according to judicial sources.
After this procedural shortcut, the decree obliges the communities to present their brief to the Third Chamber on the same day that they lodge the appeal. There is no prior announcement as in the ordinary procedure. The next day, the magistrates will have to notify the rest of the parties about the start of the procedure and three days later those same parties must appear in person.
The resource – the text insists – will be “Immediately turned over” to the competent section that must process it in a “preferential”, while giving three days for the Office of the Prosecutor and the parties “to formulate allegations.” With all the documentation on the table, the magistrates will have only five more days to decide “Set doctrine and resolve on the issues and claims raised.”
But not only the shortening of the deadlines will speed up the process. Any party to this issue – as long as the “circumstances of the case make it necessary and, in any case, when the delay in resolution may cause irreversible damage” – may claim that “Non-working days are enabled for the processing and resolution of the appeal for cassation”. In the event that the Supreme Court refuses to work on holidays, the reform does not provide an appeal so that the procedure does not get bogged down in these minor issues.
Beyond forcing the Supreme Court to create a doctrine against the clock, the reform approved by decree by the Pedro Sánchez Government reserves an important role for the Central Executive itself and the body with which Moncloa intends to continue controlling the fight against the pandemic: the Interterritorial Council of the National Health System. The decree establishes that the General Administration of the state will have “active standing” to appeal the possible vetoes of the higher courts of justice if the restrictions had been agreed as “coordinated actions” within that Interterritorial.
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