Direct Coronavirus Spain today, breaking news
The Technical Cabinet of the Supreme Court (TS) has issued a
first report on the decree-law approved this week by the Government
, so that the TS has the last word on the sanitary restrictions adopted by the autonomous communities after the state of alarm, in which raises a series of procedural problems and points to a
"possible insufficiency" of this type of norm
to regulate issues that affect fundamental rights.
The report, to which Europa Press has had access, starts by anticipating that "a series of issues will not be examined" because "they require an in-depth study that cannot now be addressed" as it is "an urgent note."
However, he mentions among these issues, although without developing it, "the problem of the possible insufficiency or
inadequacy of the range of the standard used
(decree-law) to regulate an issue like this, which affects fundamental rights."
It also points out, as part of the matters that it is not going to comment on, "the
problem of the constitutionality
of the institutional position in which the courts of justice are placed, as a sort of executive partner in the process of adopting administrative measures. , in the manner of shared administrative competences ".
Legislative reaction
What it does expressly say is that this decree-law "is presented, implicitly but clearly, as a legislative reaction against the jurisprudential interpretation of the previous legal framework."
In this sense, he recalls that in a recent order of March 24, 2021, the high court explained "in a widely argued manner" that against the decisions of the Superior Courts of Justice (TSJ) and the National Court that rejected or authorized the measures sanitary
"there was no appeal
.
"
Once this preamble has been made, it delves into a series of considerations "of a purely procedural nature" to "reveal some doubts of a procedural nature that, already in a first impression, raises the reading of the modification of the Law of Contentious-Administrative Jurisdiction (LJCA) that has just been operated. "
Unification of doctrine?
Specifically, the Technical Cabinet warns that, although the decree-law says that the Supreme Court "will establish doctrine" with these resolutions, "it must be taken into account that
this may not happen
."
Precisely, the need to "unify doctrine" was one of the reasons that the First Vice President of the Government,
Carmen Calvo
, wielded in the press conference after the Council of Ministers last Tuesday - when the decree-law was approved - to justify the The need for it in order to avoid the situation that arose after the first state of alarm, with contradictory court decisions on the restrictive measures.
In this regard, the report explains that it may happen that, given that
the prior procedure
to determine whether the legal requirements to admit the appeal are met, it is the Supreme Court's Contentious-Administrative Chamber itself that establishes in its resolution that it must be inadmissible for that reason or because there is no appeal "-for example because it is" a purely casuistic question "- and does not study or rule on the merits of the matter.
In this regard, it regrets that
the phase of preparation of the cassation appeal before the Supreme Court or the National Court has been abolished
, allowing it to be presented directly before the Supreme Court, which "raises numerous questions and practical problems" referred above all to the impossibility of filter those legal requirements and the appeal interest.
Short but extendable deadlines
Likewise, it expresses
doubts about the real possibility of being able to comply with the deadlines
established by the decree-law, which are shorter than the usual ones, and the Supreme Court must resolve it in about eight days, adding the three of transfer to the parties to allege and the subsequent five for the TS to rule.
"If, as is to be feared, the litigation in this matter multiplies, it will be very problematic to resolve the appeals in such a short time, given that the Supreme Court will access, probably on coincident dates, appeals from any lower courts of this jurisdictional order contentious-administrative ", warns.
It also puts on the table the possibility that those eight days may be extended, since the decree-law does not specify whether the three days that are given to the parties to make allegations are working or natural.
"It will be necessary to understand that these are business days," he concludes.
Along the same lines, it points out that the law does not require - as is customary in cassation appeal - that an appeal be previously filed
,
but it does not prohibit it from being filed, so that, if it were filed, it could further delay the time. resolution.
The role of the state attorney
Another of the points highlighted by the Technical Cabinet is that the decree-law enables the General Administration of the State (AGE) to appeal, "if the object of the authorization or ratification had been a measure adopted by a health authority of a scope other than the state, in compliance with
coordinated actions in public health
declared by the Ministry of Health, where appropriate, prior agreement of the Interterritorial Council of the National Health System ".
"First of all, the question arises as to whether this entry into the proceedings of the State attorney is, as it seems, only for the cassation phase, or whether it should be understood that in those cases it would also have to be given, previously, the status of party in the instance, "he states before arguing that" it must be discarded "because this type of judicial authorization" does not contemplate any intervention other than that of the administration author of the act and the prosecutor. "
It also adds that "the hypothetical attribution of such power seems very
difficult to reconcile
with the legal logic of the cassation", since the State attorney would give rise to formulate new questions and question the facts given as proven in the Supreme Court or the Hearing Nacional, "when what is intended in the cassation is, really, only to discuss the casuistic assessment of the factual circumstances of the case."
Consequently, it rejects both possibilities. A "third problem" that points out "is whether the State's attorney could appear at the cassation not as an appellant, but as an appellant," since if "it is understood that he should be able to discuss the order that he considers contrary a Law, it seems that logically he should be allowed to appear as an appeal in cassation if he understands otherwise, that is, if he considers that the order is in accordance with the Law, and therefore has an interest in opposing a possible appeal. "
Work overload
However, it maintains that "the reform thus introduced is going to have a
very significant impact
on the Third Chamber of the Supreme Court" and anticipates that "the section in charge of processing and resolving these appeals will most likely need the
assistance of the Technical Cabinet
, to to be able to meet the deadlines ", for which he considers" urgent "to be endowed with" personal and material resources ", denouncing that his staff is already" saturated with work ".
It also recommends creating
a new section
that is specifically dedicated to these resources, highlighting that this would contribute to "uniformity" in the study of them, since currently the resources are distributed by virtue of the body that issues the contested act, "which may vary according to each autonomous community", "since the sanitary measures concerned may come from different ministries".
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