The TSJA rejects the confinement of Bailén because it does not respect the rights of an abused woman who wants to leave town

The Superior Court of Justice of Andalusia (TSJA) has rejected the lockdown of the Jaén municipality of Bailn that the Junta de Andaluca had requested due to its high rates of coronavirus because the measure may lead to “situations seriously contrary to the Constitution“.

Among them, the TSJA car known this Friday, held by EL MUNDO, cites several examples. The most eloquent is that of “a battered Women that, prior to initiating a criminal proceeding, he decides to go to reside elsewhere in Spain, outside of Bailn to flee from his aggressor. “Among the exceptions provided by the Board’s rule,” this situation is not found. ”

Situations of major cause are foreseen to skip confinement, “but the summary judgment of whether or not it concurs will correspond to the municipal police located on the edge of the municipality, to whom the victim of gender violence would have to expose their situation, in contravention of Article 18 of the Constitution that guarantees your right to privacy, and locates it in a intolerable situation of double victimization before a person who does not have to have legal training, “remarks the order of the First Section of the Contentious-Administrative Chamber of the TSJA based in Granada.

It is not the only example that the TSJA details. Another fundamental right that is suspended with confinement is the right to religious freedom (Article 16 of the Constitution). “If some believer of any religion would like to visit their deceased relatives and pray to them if they are outside of Bailon, or to some shrine or religious event“, could not do so, by virtue of the Order of June 2, 2021 of the Board that decrees the confinement of Bailn.

There are more. If a sanitary that “with such dedication he has fought against the pandemic wants to exercise his right to rest (Article 40 of the Constitution) see that he cannot disconnect and rest outside his place of residence “.

“The same happens with those who want to exercise their right of association (Article 22), or manifestation (Article 21), since a protester who expresses that he wants to protest against something outside of Bailón, he will not be allowed to do it, or someone who wants legal advice is also not allowed to obtain it outside of Bailón, in contravention of article 24 of the Constitution, since the exception of the rule is for compliance with legal obligations , and the legal advice that is requested can be classified, in the opinion of the municipal or the governmental authority, as something unnecessary “, exposes the TSJA.

The same is true of the right to organize, or freedom of association, or the right to strike, that “neither would justify an exit or entry” to Bailn. In short, for the TSJA, the Board’s Order on the confinement of Bailn “does not respect fundamental rights, because it suspends them, and suspends them almost completely, and not just article 19”.

Therefore, the TSJA rejects the confinement of Bailn because the order that regulates it is not “respectful of the rights of women victims of gender violence, religious freedom, trade union freedom, effective judicial protection, or others.”

Having established as a general rule that these fundamental rights cannot be exercised during confinement, – the TSJA reasons – those who want to “enjoy the freedoms of the constitutional regime in the situation or fear of being fined, as in fact more than two million Spaniards have been since the pandemic began “.

They also expose themselves to showing “their privacy to the government authority so that it can summarily assess, without guarantees, and without legal training if we are facing a case of force majeure or not, which is more typical of few preconstitutional and certainly not very respectful of the current democratic regime, where it would be desirable that whoever exercises a fundamental right would not have a well-founded fear of being fined for it, “the order adds.

“From ah la gravity of the indiscriminate and generic suspension of fundamental rights, and the need to reverse the rule “, clarifies the TSJA.

Supreme court

The “first reason” that the TSJA exposes for not authorizing the confinement of Bailn is included in three orders of May 2021, all three final, as they have not been revoked by the Supreme Court. The criterion can be synthesized in that the Autonomous Administration cannot confine municipalities of “massive and indiscriminate way, without sufficient motivation, without proportionality, and without proving the principle of necessity “, circumstances that do not concur in this case, as happened with Montefro, “which requires the application of the same criteria for reasons of equality and legal security”.

The TSJA argues that constitutional norms cannot be contradicted by an autonomous order. “In other words, the autonomous order that suspends free movement in a part of the Spanish territory is contrary to the Constitution“, he warns.

Article 139.2 of the Constitution does not prevent free movement from being limited “individually”, but “it does prevent such suspension of free movement from being carried out collectively and indiscriminately, as is intended with this autonomous order. “.

This clarification is “important” -explains the TSJA-, because the Supreme Court has indicated that no fundamental right is “absolute”, and that “logically” “limitations to fundamental rights” can be established. “But in the case at hand we are not facing limitations of fundamental rights, but rather a suspension,” he adds.

The same day that this devastating car was known, rejecting the confinement of Bailn, another Chamber of the TSJA based in Sevilla, has agreed to ratify the perimeter closures of the Sevillian municipalities of La Campana and La Algaba for seven calendar days for public health reasons for the containment of Covid-19.


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