The Constitutional Court (TC) has partially upheld the appeal presented by Vox and has annulled the preventive measures introduced by the Galician health law for contexts of health crises indicating that, by restricting fundamental rights, They can only be regulated by the Cortes Generales through organic law.
Vox challenged the sole article, section 5, of Law 8/2021, of February 25, which modifies article 38 of Law 8/2008, of July 10, on community health, which establishes the possibility of adopting a list of “preventive measures” for contexts of health crises.
It referred to alleged cases such as the isolation of sick people, home isolation, confinement in a hospital or mandatory vaccination.
In this way, the Plenary of the TC has agreed, with a presentation written by the progressive magistrate Juan Carlos Campo, to declare “the unconstitutionality and nullity of the list of measures established by the autonomous legislator, and by connection or consequence, of its specific sanctioning regime,” it reads.
The court of guarantees has explained that the problem is not the content of these measures, but that “one of the essential requirements of the constitutional system of sources” has been violated, and that is that “a regulation of this type must be approved by the Cortes Generales.” , through organic law”.
Consequently, the Constitutional Court has left safe the fragments of the Galician health law that are limited to reproducingwith slight variations, the measures provided for in Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters.
Five of the twelve magistrates that make up the TC -Ricardo Enríquez, Enrique Arnaldo, César Tolosa, José María Macías and Concepción Espejel– have announced a concurrent private vote.
Doctrine Clarification
The TC has taken advantage of this case to clarify its doctrine on the suspension and restriction of fundamental rightsbased on the two complaints made by Santiago Abascal in their appeal. Thus, he has ruled out that “the measures introduced by the Galician legislator constitute cases of suspension of the fundamental rights reserved to the declaration of the state of exception or the state of siegeas the appellants maintained”.
And it does so by rectifying its previous doctrine, established in ruling 148/2021, of July 14, where it said that “The intensity of interference in the field of fundamental rights is not a determining criterion of the constitutional differentiation between the suspension and restriction of fundamental rights, Therefore, a restriction law (…) 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.”
Now, the TC points out at this point that the possibility of suspension of fundamental rights does not depend on the intensity of the measures adopted but rather the concurrence of its particular presupposition of enabling fact (the declaration of a state of exception or state of siege), since what occurs in such a case is the temporary and exceptional suspension of the effectiveness of the right itself with the specific legal regime. established.
For its part, The Xunta considers that the ruling of the TC “proves it right”, because the Galician Government “defended from the beginning” that Organic Law 3/1986 had to be modified to be able to implement restrictions on fundamental rights in contexts of health crises.
Since this reform has not been carried out, the Ministry argues that was forced to change the regional regulations in order to offer “legal guarantees” to the limitations that should be adopted in the face of a new pandemic such as covid-19.
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