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  • Courts The Supreme Court concludes that health laws allow "specific" confinements without the need for a state of alarm

The

Prosecutor's Office

has asked the Supreme Court to establish that, without the coverage of the state of alarm, the autonomous communities cannot establish curfews. The appeal also requests that it be declared that the limitation of the number of people who can meet in homes does not have legal coverage in the health regulations and only applies to the exceptional legislation.

The urgency that the law imposes on this type of resources on the general limitation of fundamental rights means that the

Contentious-Administrative Chamber

of the Supreme Court will have to pronounce itself at the beginning of this week. The curfew is in force in the

Balearic Islands

and the

Valencian Community

, as well as in some municipalities in

Galicia

. Regarding home meetings, there are restrictions in

Catalonia

, the Balearic Islands, the Valencian Community, Galicia,

Extremadura

and the

Canary Islands

.

"The curfew measure cannot be adopted by an Autonomous Community outside the coverage of the state of alarm decreed by the Government of the Nation, and validated where appropriate by the Congress of Deputies, as this would constitute a violation of fundamental right to free movement ", states the appeal filed against the Balearic Government decree that extended the limitation of movements between midnight and six in the morning.

"Indispensable"

The starting point of the Prosecutor's Office is the decree of the central government that triggered the state of alarm.

If it was approved to be able to impose certain rights restrictions, it means that these limitations cannot be established by other means, in particular by the three health laws that the CCAA are using to establish their restrictions once the decree is in force.

For the curfew, the state of alarm is "essential", since this restriction "is not sufficiently established with the state or regional health legislation".

"The position of this Ministry [...] is that it seems reasonable to assume as a general guiding criterion that the measures collected and regulated in the Royal Decree on the State of Alarm [...] constitute an objective and competency limit to the application of the Consequently, once the state of alarm has ended, it is not possible to adopt, in accordance with said health legislation, measures of a general preventive nature (that is, without individually identified recipients) which, due to their similar nature or the way in which they are that affect the same fundamental rights, are equivalent to said exceptional measures ".

The appeal adds that the

Organic Law of Special Measures in Public Health

"only authorizes" the autonomies to adopt "specific measures to control patients and people related to them, without being able to decree measures that imply deprivation on a large scale of the freedom of nocturnal wandering of an undifferentiated group of people ".

Plan b: "disproportionate"

Even in the event that the Supreme Court disagrees and considers that the health regulations do open the door to curfews, the Prosecutor's Office asks to revoke the measure, since it would not pass the following filter either: that the measure is proportionate to the purposes it intends .

In his opinion, there are less burdensome measures with which to act.

"In conclusion, we request an express pronouncement from this Hon. Chamber stating that for the adoption of a restriction of night mobility, a curfew by an Autonomous Community, the prior declaration of the state of alarm is required to authorize such an exceptional measure" .

This is the first time that the Prosecutor's Office has ruled on the curfew before the Supreme Court.

The appeal supposes that the Public Ministry finally opts for a specific criterion, after maintaining contradictory positions according to the autonomous community for weeks.

The appeal is filed against the agreement of the Balearic Government.

In the Valencian Community, however, the Prosecutor's Office had supported that curfews could be established.

Inviolability and privacy

The same arguments of the curfew serve according to the Prosecutor's Office to maintain that it is not possible to limit the number of people who can meet in private spaces, particularly in homes.

The limitation of family and social gatherings in private spaces affects the constitutional right to personal and family privacy and the inviolability of the home enshrined in [the Constitution], and for the same reasonings set forth in the previous section we understand that it must have coverage legal of the "Right of exception" (of the state of alarm) as it is a substantial limitation of a fundamental right ".

He reinforces his arguments by recalling the "controversial" access of the

Police in Madrid

, without judicial authorization, to a flat where a party was being held that violated the rules of the state of alarm.

"The difficulty, if not real impossibility, of an effective administrative control of compliance with this measure is not hidden from us. Consider the controversial access of the Police to a private home to check the capacity of the same, when the owner does not voluntarily access the same".

Perimeter confines

The appeal represents the third pronouncement of the Prosecutor's Office on the possibility of the CCAA to restrict rights based on health regulations.

It is the first to reach the matter of curfew and private meetings.

The former affected the possibility of establishing perimeter confinements.

The Supreme Court concluded, in agreement with the Prosecutor's Office, that these confinements were protected by the sanitary laws as long as they were limited and proportionate.

Therefore, there was no room for provincial or autonomous confinements.

Now the Supreme Court must rule on whether there are curfews and, if the answer is affirmative, these can reach entire autonomous communities or should be, like perimeter confinements, more "localized."

According to the criteria of The Trust Project

Know more

  • Valencian Community

  • Balearics

  • Galicia

  • Madrid

  • Congress of Deputies

  • Canary Islands

  • Catalonia

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