The home confinement decreed during the first state of alarm in Spain, between March and June 2020, is unconstitutional, according to the criteria established by the magistrate of the conservative sector of the Constitutional Court Pedro Trevijano in the draft judgment that he has drawn up and that will be submitted to deliberation in the plenary session of the high court on the 22nd. Trevijano considers that the confinement produced a suspension of fundamental rights, and not a mere limitation, and that for this it would have been necessary to have declared a state of exception. If this criterion is assumed, all the sanctions imposed for non-compliance with the state of alarm would be nullified.
The draft ruling, which obeys a challenge presented by Vox, considers that article 7 of the decree on the state of alarm – which prohibited the free movement of people with exceptions – is unconstitutional because said suspension of rights had to be agreed by Congress of the Deputies, which is what is foreseen to declare the state of exception, and not the Government, which is what is foreseen for the state of alarm. As a consequence of the unconstitutionality of said article, the sanctions imposed for breach of the rules on restrictions of rights are annulled.
Trevijano’s presentation indicates that all sanctions that have been imposed, even by final judgment, be they criminal or administrative fines, are automatically annulled due to the retroactivity of the sanctioning rule.
The sentence does not pronounce on the patrimonial responsibility of the State with respect to the thousands of businesses that suffered enormous economic damage by being closed for months as a result of the alarm decree.
Two of the contested norms, referring to the closure of educational centers (Article 9) and the closure of shops (Article 10), have been endorsed in Judge Trevijano’s judgment presentation on the grounds that fundamental rights were not violated and, therefore, the alarm decree was adequate to take such measures.
The conservatives have a large majority in the plenary session (seven to four), so different Constitutional sources considered this Thursday that the proposal to consider article 7 of the decree that imposed home confinement unconstitutional, will go ahead.
Trevijano argues in his presentation that the restrictions that prevented millions of Spaniards from leaving their homes were adequate to combat the pandemic, had been recommended by the World Health Organization (WHO) and were applied in many other countries, but should have been approved in Spain under the legal umbrella of the state of exception as it is a suspension of fundamental rights. The draft judgment maintains that the “radical limitation, or suspension of the fundamental right to freedom of movement cannot but be considered as a reasonably adequate and necessary measure to achieve the objectives” of preserving public health.
Those in court who believe that there was no such suspension, but a mere limitation, cite that during the confinement there were even demonstrations, before which some higher courts of justice disagreed, so that in some cases they were authorized and in others not. The fact that they were allowed – and in other cases tolerated – would show that fundamental rights were restricted, but not that they were temporarily abolished, as they were suspended. Some magistrates recall that tolerated mobilizations began with cacerolas against the Government in the Salamanca district of Madrid and turned into demonstrations in one of its streets, Núñez de Balboa, in which that right was exercised before the eyes of the police, without will get to act.
More than a million fines and more than 9,000 arrests
During the slightly more than three months that the first state of alarm was in effect, the security forces proposed the imposition of 1.1 million fines and made more than 9,000 arrests for breaches of the mobility restrictions established to minimize the risk expansion of the coronavirus. As a sanctioning tool, the Ministry of the Interior used the Organic Law of Citizen Security – known as gag law– and, specifically, its article 36.6, which provides for sanctioning for serious misconduct – from 601 to 30,000 euros – disobedience to the Police.
This punitive policy led the Ombudsman to request, in April of last year, information on the fines processed to determine if the Police were acting “in a correct and proportional manner.” In its last report, the institution showed its “critical position on the suitability” of applying the gag law considering that this standard was not intended to address the situation.
The Ombudsman stressed that said law “could entail the payment of exorbitant fines to people who, in addition, had lost their jobs or drastically reduced their income as a result of the devastating economic effects of the pandemic.” And he also criticized the fact that a single article, 36.6, had been used to punish “all conduct contrary to the provisions of the royal decree that decreed the state of alarm.”