Wednesday, December 7

Judgment against the Junta de Andalucía for evicting and changing the lock of a union premises in a public hospital

The Contentious-Administrative Court number 6 of Seville has upheld an appeal for the protection of fundamental rights filed against the eviction of the premises ceded to the trade union section of the General Confederation of Workers (CGT), located in the La Merced de Osuna Hospital (Seville) for violating article 18.2 of the Spanish Constitution, which states that “the home is inviolable” and that “no entry or search may be made in it without the consent of the owner or a court order, except in the case of flagrante delicto”.

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The entry into the premises, ceded by the defendant Administration (Andalusian Health Service) and which the CGT had been occupying, without having previously obtained judicial authorization to enter, in the absence of the occupant’s consent, constitutes a violation of the fundamental right, is explained in the sentence, which imposes the costs on the defendant Administration and against which an appeal can be filed before the court itself and before the Contentious-Administrative Chamber of the TSJA based in Seville.

three requirements

It happened on February 22 and it was an “involuntary entry into the premises of a union section”, where “documents belonging to the union section are kept, which may be related to their union action and that require privacy”. Therefore, “the premises of a union must be considered the domicile of the union section and, consequently, the action of eviction from the premises, with the documentation in custody, carried out without the consent of the owner and without judicial authorization, violates Article 18 of the Spanish Constitution”.

The defendant administration requested the dismissal of the appeal, arguing that in the 2019 union elections CGT did not obtain any representation, requiring it for the first time in February 2021 to cede the use of the physical space where it carried out its union activity in the hospital, without No appeal was filed against it. Already in December 2021 he was requested again, as in January of this year, although the eviction scheduled for February 11 could not be notified. Days later, the eviction was notified again, which was finally carried out on February 21, 2022, consisting of “the change of the lock and the inventory of the existing belongings, without the belongings having been evicted,” he says. sentence.

As the CGT had argued, prior to the last union election process held in February 2019, it already had the transfer of a local, like other unions, by having representatives in the legal representation body of the SAS workers, explaining that, at that time, the Management Directorate ceded premises for union use “to other unions that had not obtained representation on the Personnel Board.” According to the SAS, the reasons why the union had the right, once the electoral results were confirmed, to use a local in which to carry out its union activity, had not been proven, adding that the constitution of a union section that represents it is not sufficient, since it is considered “necessary to have union representation that the CGT did not obtain.”

Notified later

The CGT had argued that the eviction had been a consequence, above all, of the actions of a vindictive nature and of denunciations that the union section of the CGT has been carrying out due to the complaints against the allegedly irregular situations carried out by the economic and administrative director of the hospital, but “Nothing is proven that this is the reason for the eviction,” says the ruling.

Despite the fact that, according to the judges, “the union did not have the prerequisites and requirements to have the right to use adequate premises, and there is no evidence that the deprivation of the use of the premises prevented it from carrying out free union action ”, estimates his appeal, since there was “access to a premises occupied by a union and his eviction with all the documentation existing there that has not been consented to”.

The ruling relates that in the eviction record “it is recorded that the premises have been opened, that once inside, an inventory of what exists there is carried out, and that the lock is changed.” “It is added that the eviction takes place due to the impossibility of notifying the union representative”, “the file stating that indeed the resolution agreeing that the eviction will take place on 02/21/22, the union is not notified until on 03/01/22, that is, once the eviction has been carried out. And there is no evidence that a CGT representative was present on the day the eviction took place, or that CGT consented to entering the premises.”

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