The Plenary of the Constitutional Court has endorsed the constitutionality of the Citizen Security Law Except for the “unauthorized use of images or data of authorities or members of the State Security Forces and Bodies” provided for in article 36.23 of that rule.
The ruling thus dismisses most of the challenges to the unconstitutionality appeal filed against the PP Government by PSOE, IU, Mixed Group and UPyD and therefore also endorses hot returns.
The progressive magistrates Cándido Conde-Pumpido and María Luisa Balaguer have voted against the sentence, of which the president of the TC, Juan José González Rivas, has been the speaker.
After analyzing the constitutional doctrine and the jurisprudence of the European Court of Human Rights, the Plenary has only declared the unconstitutionality and nullity of the “unauthorized” section of the Article 36.23 of the law, which provides as a serious offense the unauthorized use of images or personal or professional data of the authorities or members of the Security Forces and Bodies, which implies a prior caesura.
According to the Chamber there is when the dissemination of the images or data is subject to a prior examination of their content by the public power, so that it (dissemination) can only be carried out if the latter “grants the placet”, which violates the Article 20.2 of the Constitution.
In this way, it indicates that for the term “use” to conform to the Magna Carta, it must be interpreted in the sense that in order for a serious infringement to be assessed, the publication or illicit dissemination is necessary, “the mere capture not followed by publication or dissemination ‘.
At the same time, the term “images or personal or professional data” also includes those related to private life, an element that must be taken into account to determine whether or not the right to information prevails, the TC indicates in an informative note.
Rejections at the border
With respect to special regime for Ceuta and Melilla of rejection at the border of foreigners who try to enter illegally (known as hot returns), the TC declares it in accordance with the doctrine of the European Court of Human Rights, consisting in that “rejection at the border is a material action of a coercive nature , which aims to immediately reestablish the legality violated by the attempt by foreign persons to cross that specific land border irregularly. Material performance [será constitucional], without prejudice to the judicial control that may be carried out by virtue of the actions and remedies filed, in each specific case, by the foreign person ”.
The magistrates point out that the rejection must be carried out with the guarantees recognized for foreign persons by the international norms, agreements and treaties ratified by Spain, and the procedures for legal entry into Spanish territory must be “real and effective”. The magistrates specify that the security forces must pay special attention to particularly vulnerable categories of people (minors, pregnant women or the elderly).
Demonstrations in front of Congress
The Plenary also considers constitutional the precept that classifies as a serious offense “the serious disturbance of citizen security that occurs during meetings or demonstrations in front of the headquarters of the Congress of Deputies, the Senate and the legislative assemblies of the autonomous communities, even if they were not meeting, when it does not constitute a criminal offense ”. For the Court, this precept «is aimed at preventing serious disturbance of citizen security on the occasion of meetings or demonstrations before the Courts from preventing the normal functioning of the parliamentary body in its different forms and compositions or causing a disregard of the symbol embodied in the parliamentary seats’.
The magistrates believe that two legal assets are thus protected: on the one hand, the special institutional significance of parliamentary institutions and, on the other, the normal functioning of these bodies. Too supports that this “disregard” occurs even if the assembly in question is not in session.
The ruling explains that the searches “do not harm the right to bodily privacy when said searches, which may even involve partial nudity, are based on rational indications that objects are being carried and can be used for the purpose of committing a crime or offense , or to alter public safety ». Of course, the Court understands that this action must be based on the principle of proportionality, so that it will only proceed when it is suitable for the protection of citizen security.
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