Sunday, February 5

This is how the judicial labyrinth created by the Covid remains

As coexistence with the pandemic drags on judicial decisions are being added that support or cancel the measures agreed to combat it. You might think that by now, thanks to them, all governments are clear about what measures they can impose to fight the covid and citizens how to act, but this is not the case.

The feeling is that the different resolutions, among which stand out the two sentences of the Constitutional Court that annulled the states of alarm, instead of generating certainty what they have done has been generate more confusion. These are the keys to the judicial panorama:

1- What is the value of TC faults

“All the rulings of the Constitutional have general extension will“, explains a magistrate to this newspaper. But in few it is so visible as in those that annulled the two states of alarm. The first endorsed the measures adopted to fight against the covid, but established that a house confinement like the one that we live from March 2020 It was not a limitation of rights, but a suspension, which can only be decreed under a state of exception. The declaration of unconstitutionality led to the immediate annulment of the sanctions imposed for having left home.

The second too endorsed curfews and other concrete measures that were imposed, but annulled co-governance, because during the exceptionality of a state of alarm, the central Executive cannot delegate functions to the autonomous communities as it did. Thus, although it did not annul specific restrictions, it left it up to citizens to claim for the damages they might suffer due to closures or capacity limitations set by an autonomous government for the unconstitutional delegation of functions. The courts, which are already beginning to receive these resources, must determine if the measure was proportionate and if it was decreed within the autonomic powers or by delegation of the central Executive.

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2- No pandemic law

The restrictive measures of fundamental rights agreed by the communities must pass the legality control of the corresponding Superior Court of Justice (TSJ). If the Supreme Court considers that they are balanced and appropriate to the epidemiological situation and endorses them, no one can challenge them. Only if they are canceled, the autonomous government can appeal to the Supreme, which has already issued several sentences.

In the first one that it issued, in which it confirmed the no of the Canary Islands Supreme Court to the no of the Canary Islands Government to the perimeter closure that it wanted to establish, the Supreme Court explained that the limitation of fundamental rights to fight the covid did not have to be done “necessarily” by organic law, and a autonomic law, but declared that it would have been “desirable a specific regulation to deal with the pandemic detailing how many extremes were susceptible of precision to offer maximum legal certainty“.

3- Passports and curfews

Since then the Supreme Court has issued several resolutions, in which it has endorsed the curfews and the requirement of the covid passport, a measure to which it gave its approval in the Basque Country or in Galicia, but not in Andalusia. The reason is that no restriction has an automatic go-ahead: it has to be proportional and justified, and one can be endorsed in one place and not in another depending on the specific circumstances. In the case of the Galician passport, it was validated, because, unlike the Andalusian, it was not indiscriminately implanted throughout the territory, but rather established a kind of map based on the incidence in each place with a time limit.

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