The TC, on the second state of alarm: "The control regime of Congress was canceled"

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• The ruling The TC overturns the six-month extension of the state of alarm and co-governance with the autonomies

"The control regime that in guarantee of the rights of all corresponds to the Congress of Deputies under the state of alarm was canceled." For this main reason, the Constitutional Court has partially upheld Vox's appeal against the second state of alarm decreed during the Covid-19 pandemic and declared the six-month extension of the same unconstitutional, together with the so-called co-governance with the autonomies.

In a judgment, a presentation by magistrate

, the court understands that "the temporary determination of that six-month extension was carried out in a way that was entirely inconsistent with the constitutional meaning that is proper to the authorization act and without any coherence, even, with the reasons that the Government asserted to urge the extension finally granted. "

Therefore, the body of constitutional guarantees emphasizes that the setting of the duration of an extension for a period of six months cannot be considered reasonable since Congress established it without any certainty about what measures were going to be applied, when they were going to be applied. applied and for how long they would be effective in some parts or others of the entire national territory to which the state of alarm spread.

The judgment emphasizes that the extension was authorized when the limiting measures of rights included in the request were not going to be applied immediately by the Government, since its implementation was subject to what the presidents of the autonomous communities so decided, so That authorization was given without knowing what measures were going to be applied to combat the pandemic. For this reason, what deserves constitutional censure is not the duration of the extension, by itself and without further ado, but the unreasonable or unfounded nature, considering the agreement adopted by Parliament as a whole, of the decision by which it was established. such term.

For the Constitutional Court, the constitutional requirement to establish a certain period for the extension was distorted in this case by the Lower House, which automatically made the one proposed by the

in a request that was not connected to the application. of measures that were to govern during said period.

In addition, the control required of Congress over the request for authorization made by the Government did not extend to what measures were applicable, nor did it extend to the correspondence that should exist between the authorized six-month extension period and the measures that should be applied.

Regarding the second aspect of the Vox appeal estimated in the ruling, the so-called co-governance with the autonomies, the TC declares that this decision of the Government, endorsed with its authorization by the Plenary of the Congress of Deputies, contravenes the provisions of the organic law to the that article 116.1 of the

reserves

the regulation of states of crisis and the corresponding powers and limitations.

In addition, its legal effects were not reconcilable with the institutional relations because the Government initially agreed to the delegation without any reservation of instructions, effective supervision and eventual certification of the Government itself and, on the occasion of authorizing the extension, the Congress of Deputies did not object to it either. delegation in genere and without establishing criteria relative to what the delegated authorities could act in their respective territories.

In this sense, the magistrates indicate that Congress was first deprived, and later lost, of its power to supervise and supervise the actions of the governmental authorities during the six-month extension. The ruling underlines that "the control regime that, in guarantee of the rights of all, corresponds to the Congress of Deputies under the state of alarm was thus canceled. Parliamentary control that is also at the service of the formation of public opinion active and vigilant and that cannot in any way be bypassed during a constitutional state in crisis ".

With regard to the limitation of the freedom of movement of people at night, known as curfew, throughout the validity of the state of alarm, the Constitutional Court understands that said limitation "must be regarded as an adequate measure to combat that negative evolution of the pandemic, as it faced a risk situation that had been detected as favoring contagion, that of social encounters that took place in those hours of the night before the state of alarm ".

Furthermore, "it is proportionate to the achievement of a constitutionally legitimate aim of general interest for the social community, such as the preservation of life."

Different types of confinement

The sentence also expresses the differences that it has appreciated between the general confinement agreed during the first state of alarm and the one agreed during the second, limited only to hours of the night, with less social and work activity. Hence, it has appreciated that, in this case, there was only limitation and not suspension of the exercise of the right.

On the other hand, the supreme interpreter of the Magna Carta also endorses the constitutionality of the limitation of entry and exit of people in autonomous communities and cities or in lower territorial areas, also underlining the differences between the situation of the first state of alarm regarding the second, supported by the same reasons. The judgment highlights that said measure has passed the proportionality test, since "it was adequate because it was capable of fulfilling a legitimate purpose such as substantially reducing the mobility of the virus" and "necessary to deal with the confirmed mutations of the virus. virus and its growing spread, as well as the foreseeable increase in healthcare and hospital pressure ".Likewise, the limitation of the permanence of groups of people in public and private spaces and in places of worship is considered a necessary and adequate measure with the same arguments mentioned above.

Private Vows

The sentence was supported by six votes in favor and four against the president

and the magistrates of the progressive sector

and

In his vote, González Rivas defends that, in his opinion, the Congress of Deputies was not deprived of the control instruments during the validity of the extended state of alarm.

This magistrate believes the decree that authorized the extension did not exercise a transfer of ownership attributive of powers, but a mere delegation, maintaining the controls of the delegating authority that was the Government and that could be revoked at any time.

For the president of the Constitutional, the general framework established in the applicable normative texts offered sufficient certainty and legal security to citizens.

On the other hand, the sentence also includes a private opinion formulated by the magistrate Juan Antonio Xiol Ríos who disagrees on the unconstitutionality of the co-governance.

It considers that the difference between an improper delegation carried out by a provision with the force of law such as the alarm decree, with its own administrative delegation and the relevance this has in the context of the analysis of the law, has not been adequately analyzed. constitutionality of the contested agreements.

The sentence also has the particular vote of the former attorney general of the Conde-Pumpido State, who considers that both the parliamentary authorization of the extension of the state of alarm and its temporary extension, as well as the system of action by delegation in the presidency of the communities Autonomous states or cities with a Statute of Autonomy were in accordance with the Constitution.

In his opinion, the measures adopted comply with the proportionality canon because they respond to the sole purpose of protecting the health and safety of the population as a whole, containing the progression and spread of the disease and strengthening health and social services. Likewise, the six-month period of the extension is necessary, adequate and proportional so that the application of the measures can achieve the intended practical effects, that is, that they are really effective to achieve the purpose of safeguarding the health and safety of the citizens. On the other hand, the co-governance system designed by the Royal alarm decree and authorized by Congress adjusts to the competency reality of our autonomous State and to the factual reality of the pandemic that required a differentiated application by territories and in time,of the necessary measures, since the severity of the pandemic was not the same in each Autonomous Community nor did it evolve temporarily in a homogeneous way throughout the country.

In addition, Conde-Pumpido believes that it is a system that is fully consistent with the constitutional design of the state of alarm since decentralized management does not mean the disempowerment of the Congress of Deputies or an alleged abandonment or omission in the exercise of the control functions that they are his own.

Finally, Judge María Luisa Balaguer also disagrees not only with the ruling, but also with the arguments developed by the Plenary.

In his opinion, the jurisprudential development of the constitutional right of exception, formulated by the court, lacks connection with the current design of the autonomous state, and seeks an incoherent interpretation of the Constitution.

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Know more

• constitutional Court

• Congress of Deputies

• Vox

• Coronavirus

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JusticeThe TC overturns the six-month extension of the state of alarm and co-governance with the autonomies

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