Tuesday, June 15

The Supreme Court supports the curfew without a state of alarm if there is proportionality


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The Supreme Court has the night curfew and the maximum limit of six people canceled in social gatherings decreed by the Balearic Government after lifting the state of alarm. It argues that these measures «because of their severity and because they affect the entire autonomous population, restrictively affect basic elements of the freedom of movement and the right to family privacy, as well as the right of assembly. In this way, the High Court pronounces for the first time on the restrictive measures promoted by the autonomous communities after the lifting of the state of alarm on May 9.

In what appears to be a criticism of the government’s inaction in recent months to promote legislative reforms, the Chamber notes that “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 (on sanitary measures) is sufficient “, argues the Supreme Court in its ruling, to which ABC has had access.

Having made this clarification, the magistrates disagree with the prosecutor and assure that without a state of alarm Yes, it is possible to regulate restrictions of rights as broad as a curfew if the circumstances exist for it. It is, therefore, that the measure is proportional, not that it cannot be done without the coverage of a state of alarm. It is enough that it is, yes, an organic law.

«The problem is not, thus, the intensity: the problem is, rather, the extension: In the fight against the Covid-19 pandemic, health measures have been adopted that severely restrict fundamental rights for the entire local, autonomous or national population. And it is precisely at this point where art. 3 of Organic Law 3/1986 raises doubts as a normative foundation or coverage standard. This finding, however, does not lead to the conclusion that restrictive measures as severe and extensive as the “curfew” or the maximum number of people in family and social gatherings cannot be adopted. under the protection of art. 3 of Organic Law 3/1986. This can be used as a normative basis as long as the substantive justification of the sanitary measures is commensurate with the intensity and extent of the restriction of fundamental rights in question, “he says.

The Supreme Court responds to the letter sent by the Government in response to the appeal presented by the Balearic Prosecutor’s Office against the extension of the curfew until this Sunday and the limitation of the number of people who can be gathered indoors. It should be remembered that the regional Executive will lift the curfew this next June 6or, but you want to limit at least until June 20 the meetings of more than 10 people indoors.

In this way, the Supreme Court rectifies several favorable judgments of the Superior Court of Justice of the Balearic Islands (TSJB), which has endorsed on several occasions the thesis of the Government of the socialist Francina Armengol to restrict fundamental rights.

The archipelago’s justice justified that there were no “absolute rights” and that the “risk to life” posed by the pandemic made it possible to limit mobility or meetings. “No one will be able to deny that the pandemic, with its undeniable risks to health, has been and continues to be a risk to life, with which it is naturally appreciable that the fundamental right to life recognized in the Constitution is at stake,” he said. the car, which insisted that «limit fundamental rights It is neither to suspend them nor to violate them ». “Therefore, it should not be confused that the right of constitutional exception displaces ordinary law with the fact that ordinary law lacks all the potentialities of the right of constitutional exception,” pointed out the TSJIB.

Now, the Supreme Court aligns itself with the thesis of the Balearic Prosecutor’s Office, who has always been against the curfew and other restrictive measures for the population, and with the judges of the TSJB, Alicia Ortuño and Carmen Frígola, who cast a private vote warning that the curfew was “disproportionate and unjustified” because there are “Less drastic alternatives” than limiting the right to free movement.

«From our point of view, it takes a giant step and limits freedom of movement and private meetings to all the citizens of the islands. And it does so when the vaccination process is already started, there is a transcendent advance in the state of science about the etiology of the virus and the tools to prevent its infections, “they argued.

In addition, they pointed out that, a year after the outbreak of the pandemic, and in the case of measures that the Government has been applying since October, they were not “pure ‘measures’ punctual in time and of almost immediate adoption” but were inserted in ” a mode of administrative action, also aimed at the generality of people in the Balearic Islands, which exceeds the concept “. In other words, these measures were “already part of a predictable and general ‘modus operandi'”.

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