Current health laws do not allow communities to enact a general curfew or limit social gatherings for their entire population to combat covid. This has been decreed by the Supreme Court, which has annulled the night confinement and the maximum limit of six people in social gatherings decreed by the Government of the Balearic Islands after lifting the state of alarm. The high court considers that the 1986 Law on Special Measures in Public Health Matters allows restricting fundamental rights to fight the pandemic, but not in a generalized way for the entire population, unless it is proven that it is “indispensable”, something that does not happen with the curfew and the limits to the meetings decreed in the Balearic Islands. “It would be little questionable that in order to combat a small infectious outbreak located in a town, the health administration could force the neighbors to confine themselves to their homes; and surely something similar could be said about the limitation of meetings. The problem is not, thus, the intensity: the problem is, rather, the extension “, indicates the order agreed by the fourth section of the Contentious-Administrative Chamber.
The Government of Francina Armengol established that, once the state of alarm was lifted on May 9, the curfew should remain in force throughout the Community between 00:00 and 6:00. The Superior Court of Justice endorsed the measure, but the Prosecutor’s Office appealed to the Supreme Court in application of the Government decree that gives the high court the last word on the restrictions of fundamental rights decreed by the communities to combat the virus.
The Supreme Court’s decision on the curfew will already have limited effect in the case of the Balearic Islands because the regional government has announced that the night confinement ends next Sunday. However, the resolution does establish jurisprudence on one of the measures that have generated the most doubts once the Government announced the end of the state of alarm. Until now, the courts had supported the curfew in the Balearic Islands, the Valencian Community and in some municipalities in Galicia that are at extreme risk due to their high incidence of the virus. In the Canary Islands and the Basque Country, however, the judges did not authorize the measure.
The Supreme Court’s resolution settles the debate. The court established two weeks ago that health laws allow communities to decree “specific limitations on freedom of movement”, but provided that this restriction is “essential” to stop communicable diseases and is limited territorially and temporarily based on the number of patients. The Litigation Chamber issued that first ruling after studying the case of the Canary Islands, which appealed to the Supreme Court the refusal of its regional court to limit the entry and exit of the Islands at alert levels 3 and 4. The court maintained that prohibition because the regional government did not sufficiently justify the measure, but left the door open to limit mobility in “essential” and “temporary” cases. The curfew decreed by the Balearic Islands, a measure that also restricts the right to free movement, does not, however, meet these requirements, according to the court, which does not endorse, for the same reasons, the veto of meetings of more than six people imposed by the Government of Armengol.
The Supreme Court agrees with the Prosecutor’s Office and annuls the measure, although its thesis does not fully coincide with that of the Public Ministry. The Supreme Prosecutor’s Office alleged in its brief that the Law of Special Measures in Public Health does not allow the imposition of restrictive measures of fundamental rights as intense as the curfew or the limit to social gatherings. The court admits that article 3 of that rule is “undeniably short and generic.” “Of course, it was not intended for a calamity of the magnitude of the Covid-19 pandemic, but for the isolated infectious outbreaks that regularly arise,” says the court, which once again regrets the lack of clear legislation on how and when they can restrict communities fundamental rights during a pandemic like the current one. “The legal difficulties would be much less, both for the Health Administration and for the Contentious-Administrative Chambers, if there were a sufficiently articulated regulation of the conditions and limits in which fundamental rights can be restricted or limited in emergencies and catastrophes such as the current one. “But the fact is that such articulated regulation does not exist and, therefore, the question is to what extent art. 3 of Organic Law 3/1986 is sufficient ”, assumes the court.
And the conclusion reached by the Supreme Court is that the current regulations do cover these restrictions, although not to impose restrictions “as intense and extensive” as night confinement or the limit to social gatherings for an entire autonomous community, unless they are show that they are indispensable. “East [precepto] it can be used as a normative basis provided that the substantive justification of the sanitary measures – in view of the specific circumstances of the case – is commensurate with the intensity and extent of the restriction of fundamental rights in question. And it goes without saying that, when one is in the presence of such severe and generalized restrictions such as the prohibition to leave one’s home during certain hours of the day or to meet with more than six people, the justification is to prove that such measures are essential to safeguard public health. Mere considerations of convenience, prudence or precaution are not enough “, warns the court.
The magistrates thus reject one of the reasons alleged by the Prosecutor’s Office (that the sanitary measures decreed by the Balearic Islands could only be taken under the protection of the state of alarm, but they accept the other reason for the appeal: that these measures do not exceed the proportionality judgment. The Governing Council of the Autonomous Community of the Balearic Islands nor the Court of Instance have justified that the aforementioned sanitary measures restricting freedom of movement and the right to family privacy were indispensable in light of the epidemiological situation then existing in the autonomous territory, but are based only on considerations of prudence, “says the court.
The Supreme Court does support the other two measures decreed by the Armengol Government that required judicial authorization: access control to enter the Islands and the limitation of capacity in places of worship. It is the first time that the high court has authorized both measures, since in the case of the Canary Islands, which also requested the endorsement to control the entry and exit of the community, the magistrates denied the authorization, considering that the measure was not sufficiently motivated by the regional Executive. The court establishes a differentiation between the controls of access to a certain territory and the curfew, although both restrict the right to free movement. In the night confinement, warns the room, “probably something more than freedom of movement is at stake, since it is not the same to prohibit movement between two specific places than to force everyone to stay at home during certain hours: the latter prevents movement anywhere ”. “With all this, it wants to highlight”, adds the court, “that the intensity (the force with which the fundamental rights are affected) and the extension (the number of people affected by their fundamental rights) are not comparable in a limitation of trips between islands and in the ‘curfew’, not to mention the maximum number of people in family and social gatherings: these last restrictions are considerably more intense and extensive ”.
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Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.