The home confinement decreed by the Executive of Pedro Sánchez during the first state of alarm, in force between March and May 2020 -in the first phase of the pandemic-, it was unconstitutional. This was stipulated by the Constitutional Court (TC) in a tight vote in which Vox’s thesis was imposed by six votes to five, which presented the appeal.

The Constitutional ruling argues that, in the opinion of the six magistrates who supported the ruling, the legal instrument to apply it should have been the state of exception due to the “seriousness and extension” of the pandemic, which made it ‘de facto’ impossible for the democratic institutions to function normally, while citizens were affected by the exercise of their rights, health services saturated and educational activities “and educational activities were affected. of almost any other nature. ” Now they have transcended the private vows of the judges dissenting from this resolution.

Maria Luisa Balaguer

Magistrate María Luisa Balaguer Callejón points out in her private opinion that the sentence “may cause some perplexity” and generate “more legal uncertainty of which it tries to fight. “” It is difficult to accept as contrary to the Constitution a legislation that has allowed, in a fast and efficient way, to arbitrate effective social measures in order to protect legal assets as important as the life and health of people “, it states.

Balaguer admits that in the Constitutional there has been “a certain internal noise” that, “in an unusual way, has sustained some extra-legal positions not recommended for the future“.

The magistrate also does not find it logical to declare it unconstitutional only part of the decree from the state of alarm, since the logical thing “would have been to declare the entire Royal Decree unconstitutional.”

“If the chosen form was constitutionally unfeasible, it was in general, because the measures could not be fragmented “, he adds.

Andres Ollero

For his part, the conservative magistrate Andrés Ollero points out that “the majority of the Court has been inclined to defend the need for the Government to have declared a state of exception, upon detecting the violation of the essential content of some fundamental rights, as an effective suspension of the same, which the state of exception makes possible, but it would go beyond what is constitutionally admissible after the declaration of a state of alarm “.

However, in his opinion, the border between the two states, “like all legal activity” entails “a interpretive dimension, which in this case implies the entry into play of a inevitable proportionality judgment“.

“Reality has shown that a pandemic can affect certain facets of constitutional rights holders more intensely than a possible coup or the invasion of armored divisions. Given my age, I have been able to experience various states of exception. Due to my Sevillian condition, I remember well that in none of them was the possible popular experience of Holy Week endangered; as in other latitudes, equivalent manifestations were not endangered as an expression of the cultural identity of the area, all of them unintelligible without the entry into action of a considerable noise “, he adds.

Archive - Facade and entrance to the building of the Constitutional Court of Spain, in Madrid on November 29, 2019.

Candido Conde-Pumpido

The progressive magistrate of this body, Cándido Conde-Pumpido, also ruled against the decision adopted by the TC, who considers that the sentence “does not resolve, but rather creates, a serious political problem, by disarming the State against pandemics, depriving it of the instrument that the law expressly determines to deal with health crises, the state of alarm “.

This is what he points out in his private opinion, in which he insists that the resolution does not respond to true legal criteria, “because uses a mere plot shortcut (qualify as suspension an intense restriction of a fundamental right with a very poor argumentation) to estimate the unconstitutionality of a health measure requested by a political party – in reference to Vox – that had previously expressly supported in the debate and parliamentary vote on the extension “.

In his opinion, this construction, “with the lack of certainty that derives from it, leads the public powers to the future use of a tool, the state of exception, which, however, entails (…) a evident decrease in jurisdictional guarantees of fundamental rights“.

Juan Jose Gonzalez Rivas

In turn, the presiding magistrate, Juan José González Rivas, recalls that the state of alarm was declared “in a health emergency situation.” “In my opinion, those measures that limited the freedom of movement enshrined in article 19 of the Constitution, by providing for its temporary validity, were constitutionally admissible, since they did not suppress the exercise of the right and were proportional in the achievement of the objective public that justifies them “, he considers.

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