Ditch that only a state of exception allows the suspension of fundamental rights and opens the door to annul 1.2 million sanctions
The home confinement of the state of alarm decreed by the Government of Pedro Sánchez between March 14 and June 21, 2020 to stop the first wave of the coronavirus was illegal. A Constitutional Court divided almost in half ditches that the confinement established in article 7 of the alarm decree did not have the protection of the Magna Carta. And this, because it meant a suspension of fundamental rights and not a simple limitation of them, as the central Executive argued in the legal argumentation of the decree, which the court of guarantees says violated the Constitution.
The historic ruling opens the door to the annulment of many of the 1.2 million sanctions imposed during the 98 days that that regulation lasted (of course those that are not yet final), but it remains to be seen if it would also allow the presentation of a cascade of lawsuits against the State for the economic damages caused by the total confinement of companies and individuals. During the first state of alarm, in the Region of Murcia, the State Security Forces and Forces and the Local Police registered more than 41,504 fines, according to the Ministry of the Interior, and most of them were for not respecting home confinement.
In February of this year, the Government Delegation informed LA TRUTH that most of these fines -92%, specifically-, were still not processed due to the volume of sanctions and the arduous administrative process established by law for these cases. If the nullity of all these fines is confirmed, it would no longer make sense to continue with their processing.
Regarding those already collected and other economic damages derived from the confinement, the new sentence presentation, which is still being drafted and could change, aims to exonerate the Administration from civil liability under the idea that citizens have a “legal duty” to withstand the damage in an emergency situation such as a pandemic.
Suspending rights such as free movement – the Chamber understands – is something that Sánchez’s Cabinet could only have done under the umbrella of the state of exception, the most severe of those provided for in the Constitution and that would have required the prior permission of Congress. of the Deputies.
The vote of the vice president of the court, Encarnación Roca, in favor of decreeing unconstitutional the mass confinement during the hardest moments of the 2020 pandemic, was the one that ended up tilting the balance in an issue that has split the court in two halves irreconcilable despite the lengthy debate. Five magistrates (three progressives and two conservatives, including the president, Juan José González Rivas) maintained until the end that the state of alarm was sufficient, while another five (all conservatives) remained immovable in that the Executive violated the Magna Carta .
López Miras does not rule out the curfew: “It’s on the table”
President López Miras said yesterday that the curfew is a measure that “is on the table” in the Region if this “exponential increase in infections continues.” He answered in this way in an interview with Tele 5. “Now, we return to legal uncertainty,” because in some communities the Justice approves that curfew and in others it does not, he said. For this reason, he believes that the Government of Spain “must manage the pandemic at once and must exercise its responsibility in the management and control of infections.”
The plenary session of the court, after three weeks of deliberations, since it began to discuss the ruling on June 22, decided to endorse the presentation of the conservative Pedro González-Trevijano, who had proposed, as has been done, to provide protection to the appeal of Vox, which argued that the “state of alarm does not allow the suspension of the rights of Title I” of the Constitution, on the fundamental rights and duties of Spaniards.
In essence, the Constitutional resolution declares invalid article 7 of Royal Decree 463/2020, which is the one that gave the green light to what the text itself defined as the “limitation of the freedom of movement of persons”, but that the The court now understands that it was actually a full-blown suspension of fundamental rights. That precept was the one that, in addition to empowering the Ministry of the Interior to “agree to close the circulation of roads or sections of them”, limited the exit from homes to activities such as shopping, essential travel to work, assistance to centers health or “force majeure or need” reasons.
According to sources from the court explained yesterday, the TC decided that the Executive of Sánchez made a “cessation” or “emptying” of the fundamental right to free movement, which could not be done with the sole support of the state of alarm because it lacks coverage in Organic Law 4/1981. This precept, which is the one that regulates states of alarm, exception and siege, empowers the Government with the protection of the state of alarm to “limit” the movement or stay of people or vehicles “at certain times and places”, but not a A general ban on all citizens and on all public roads such as the one established by the Sánchez Government in March 2020. A measure of such significance, according to the Court, is a full-blown suspension of fundamental rights.
The strict home confinement that the TC considers to be illegal was in force for fifty days, specifically between March 14 and May 4, 2020.
This ruling will have a great depth. Not because of the legal consequences, since that state of alarm ended more than a year ago, but because this sentence will mark the limits for future states of alarm, since never before has the generalized application of this extraordinary legislation throughout the country reached to the court of guarantees.
The court wants to veto a barrage of lawsuits against the Administration
The draft sentence tries to safeguard the Administration from a flood of lawsuits for the economic damages caused. The presentation points out that this sentence will not be, by itself, a “sufficient title” to present claims, because citizens, in extreme cases such as this pandemic, have a “legal duty” to bear the damage. This is not the case with fines because – the ruling will explain – the Constitution prohibits sanction for acts that were not illegal at the time of their commission.