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Covid-19 Andalucía will not apply the new restrictions of the Ministry and will maintain its schedules in the hospitality industry
The Superior Court of Justice of Andalusia (TSJA) has rejected the
confinement
of the Jaén municipality of
Bailén
that the Junta de Andalucía 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 "an
abused woman
who, prior to initiating a criminal proceeding, decides to go to reside elsewhere in Spain, outside of Bailén to flee from her attacker." Among the exceptions provided by the Board's rule, "this situation is not found."
Yes, the situations of major cause are foreseen to skip the confinement, "but the summary judgment of whether or not it concurs would 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 her right to privacy, and placing her in an
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 Chamber. Administrative of the TSJA based in Granada.
It is not the only example detailed by the TSJA.
Another fundamental right that is suspended with confinement is the right to religious freedom (Article 16 of the Constitution).
"If any
believer
of any religion wanted to go visit their deceased relatives and
pray to them
if they are outside Bailén, or to some sanctuary or
religious event,
" they could not do so, by virtue of the Order of June 2, 2021 of the Board that decrees the confinement of Bailén.
There is more.
If a
health worker
who "has fought with such dedication against the pandemic wants to exercise his
right to rest
(Article 40 of the Constitution), he will 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 of
demonstration
(article 21), since a protester who expresses that he wants to
protest
against something outside of Bailén, will not be allowed to do so, or someone who You are not allowed to obtain legal advice outside of Bailén, in contravention of article 24 of the Constitution, since the exception to the rule is for compliance with legal obligations, and the legal advice requested may be qualified, in the opinion of the municipal or governmental authority, as something unnecessary ", exposes the TSJA.
The same happens with the right to organize, or freedom of association, or the
right to strike
, which "would not justify leaving or entering" Bailén.
In short, for the TSJA, the Board's Order on the confinement of Bailén "does not respect fundamental rights, because it suspends them, and suspends them almost completely, and not only Article 19".
Therefore, the TSJA rejects the confinement of Bailén 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 are placed in the position or
fear of being fined
, as in fact there have been more than two million Spaniards since the pandemic began. "
They also expose themselves to show "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
pre-constitutional times
and of course not very respectful with the current democratic regime, where the desirable thing would be that whoever exercises a fundamental right would not have a well-founded fear of being fined for it, "the order adds.
"Hence the
seriousness
of the indiscriminate and generic suspension of fundamental rights, and the need for the rule to be reversed," clarifies the TSJA.
Supreme court
The "first reason" that the TSJA exposes for not authorizing the confinement of Bailén 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 "
massively and indiscriminately
, without sufficient motivation, without proportionality, and without proving the principle of necessity", circumstances that do not concur in this case, as happened with
Montefrío
, "which makes it necessary to apply the same criteria for reasons of equality and legal certainty."
The TSJA argues that constitutional norms cannot be contradicted by an autonomous order.
"In other words, the regional 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 regional order. ".
This precision 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 Bailén, another Chamber of the TSJA based in
Seville
, has agreed to ratify the perimeter closures of the Sevillian municipalities of
La Campana and La Algaba
for seven calendar days for health reasons public for the containment of Covid-19.
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