The Superior Court of Justice of Cantabria (TSJC) has endorsed the curfew in Cantabria and the limitation of social gatherings, two measures requested by the regional government to contain the spread of the virus in more than half of the municipalities of the community. Thus, the Justice has given the green light to the prohibition of mobility from 1:00 to 6:00 in the morning, as well as the restriction to groups of a maximum of six people who do not live together in public and private spaces during that time slot.
In an order issued this Friday, the court thus authorizes the Government of Cantabria to adopt this measure in a certain number of municipalities in the region and for an initial period of fourteen days. The resolution considers that the measures proposed by Health “exceed the judgment of proportionality” and are “necessary” and “balanced” since, as stated in the resolution of the executive subject to authorization, “community transmission is uncontrolled and is generating an epidemic wave with the highest incidences ever recorded in Cantabria. ”The order has a private vote from Justice Paz Hidalgo, who considers that“ the two measures limiting fundamental rights are not proportional or justified ”.
The right to life prevails
The Litigation Chamber understands the measures that limit circulation and meetings during night hours “pursue a purpose of high constitutional relevance” such as the right to life, “which cannot justify any restrictive measure without further ado, but allows affirm the preponderance of this right over those who are affected in this case ”. In this sense, the magistrates point out that apart from vaccination “one of the most appropriate measures is the limitation of social contact and the activities that promote it.”
In addition, they add, “the advance of vaccination has not succeeded, for the moment, to stop the spread of the virus” while “the decrease in hospitalizations and deaths (as a result of vaccination) does not justify administrative inactivity in the face of the alarming increase in contagion ”. For the court they are “necessary measures”, because the current situation of “continuous and accelerated expansion” of the pandemic “does not allow opting for less restrictive measures if they do not have the same potential to eliminate risk.”
Finally, the room indicates that they are balanced measures “because the benefit they seek to guarantee health and life, and not only that, but the return to a normality that favors social and economic development, balances, compensates (if it could be said that way) the limit to the rights affected that they entail ”. In this sense, it points out that the limitation of circulation “has a surgical character for the sake of the general interest, and with the exceptions that it includes, it minimizes its impact on economic activity”, while being circumscribed to the municipalities with the highest risk of transmission. .
Justice Paz Hidalgo has expressed her dissenting vote because she understands that the measure proposed by the Government of Cantabria “does not exceed the proportionality judgment” nor is there justification that the measure “is indispensable.” In this sense, the magistrate explains that the parameters used to assess the risk and that are used for the rest of the measures against Covid-19 have been ignored, and “new indicators are created, exclusively for this case.”
It also indicates that “on the same date that we are requested to authorize the restrictive measures of fundamental rights, the Community of Cantabria, taking into account all the aforementioned indicators and not only those chosen, is in a situation of alert 1 and none of the municipalities affected by the limitations is at the maximum alert level ”. “It is true that the data on contagion and presence are high, but not those related to the use of healthcare services, so we are not in that extreme situation that is taken as a premise,” he adds.
Along with this, the magistrate points out that if the measures “are intended to prevent behaviors that take place at night, there are other mechanisms or legal instruments of intervention that do not harm fundamental rights.” It considers that, if the current situation does not require the closure of the interior of the hotel trade or the limitation of interior areas of facilities, sports centers, gyms, celebration of ceremonies, “a limitation as restrictive of family and personal life as is not explicable a curfew ”. Finally, he understands that “it is not explainable that, if the problem is linked to the consumption of alcohol by young people, it is used as a restrictive measure to apply the curfew and only the reduction of hours for its sale at 20 is considered as a preventive measure : 00 hours, being able to be acquired at 19:55 ”.
Cantabria has been registering an exponential growth of infections for weeks, especially among young people, breaking records of positives detected since the pandemic began in several days, which has resulted in a cumulative incidence that exceeds 560 cases and that does not stop grow up. The explosion of infected came when, by court decision, the hotel industry and nightlife – now closed by Health in some municipalities for 15 days – were able to open according to their license. The extension of hours together with the end-of-year celebrations and the EBAU provided a breeding ground that placed this community at the head of the rate of contagion among young people, a worrying panorama that the regional government intends to reverse with the latest measures announced and that the Justice has now endorsed.
This ruling of the Cantabrian justice comes after several contradictory decisions in other territories that have also requested in recent days the endorsement of the courts to impose again a curfew similar to that proposed by the Government chaired by Miguel Ángel Revilla. Thus, while the Valencian Community was the autonomy that opened the ban on this new limitation of movements to its citizens, and managed to carry it out with the permission of the judges, the Canary Islands have also tried without success, since there the magistrates have overthrown the decree the island government that intended to apply it in the islands with the worst epidemiological data.
In this case, in addition, the petition did have the approval of the Canary Islands Prosecutor’s Office, which argued that the measures established so far were “ineffective” to contain the numerous infections of COVID-19. In addition, the prosecutor pointed out that the restriction on nighttime mobility becomes necessary to reduce crowds and encounters, as has been proven by the numerous police interventions in illegal parties and bottles that are usually given at this time, avoiding social interaction that has unleashed the excessive spread of the virus.
However, the judges insisted on the prevalence of economic interest and the right to work over partial closure measures: “The number of vaccinations is increasing daily and the contagion no longer has an impact on health as shown by the number of deaths and cures and the least impact on intensive care units. Therefore, general prevention is required in specific places where the risk is uncontrolled, but not a generalized closure, “said the order, which literally states that” no one denies the suitability of the measure to fight the disease, but the end does not justify any means and the agreement adopted is excessive and at the cost of serious damage to the vast majority of the population, including young people, who comply with the rules. ”
Very different were the arguments of the magistrates in the Valencian Community, where the curfew is in force between one and six in the morning in the 32 municipalities with more than 5,000 inhabitants with the highest risk of spreading the virus. There, the Contentious Administrative Chamber of the Superior Court of Justice indicated that the measures, which also include the limitation to a maximum of 10 people in social gatherings, are “balanced” and comply with the judgment of “proportionality” given the increase in the hospitalizations and “the situation close to the collapse that is already taking place in the Primary Care centers.”
“The practical experience that we now have is that more lax measures than those discussed here have not worked correctly in relation to the obvious objective pursued,” the court ruling stated that, regarding the limitation of social and family gatherings, both in public and private spaces, he pointed out that “it is accompanied by the rest of the sanitary measures adopted by the Administration.”
In addition to Cantabria, this Friday the Justice has also endorsed the curfew in Catalonia, a measure that will be established in 161 municipalities and will affect six million people. Also on this day, Navarra and Extremadura have requested their respective judicial bodies to implement this limitation, so they are currently awaiting a response from the courts.
In the case of Cantabria, the Minister of Health, Miguel Rodríguez (PSOE), already announced during the press conference in which he announced the decision to request the endorsement of the judges to apply the curfew again in 53 municipalities of the autonomous community that, in the case of not obtaining the approval of the TSJC, they would appeal by “express way” before the Supreme Court, an alternative that the Balearic Islands already tried at the beginning of June, but which denied their proposal considering that It had not been proven that this measure was “essential to safeguard public health”, recalling in its judgment that “mere considerations of convenience, prudence or precaution are not enough.”
To all this cataract of contradictory decisions in the middle of the fifth wave of the pandemic is added the recent ruling of the Constitutional Court, which has concluded that the confinement of the population decreed by the Government of Pedro Sánchez in March 2020 was adopted outside the Constitution , once the magistrate Pedro Trevijano has managed to impose by the minimum, by six votes to five, his censorship of the key measure of the tool used by the Government of Spain to control the first stage of the pandemic.
The Constitutional Court has relied on a technical argument to overturn the legal roadmap that allowed the coalition government to limit rights and freedoms with the intention of controlling the spread of the coronavirus. The speaker concludes that the figure of the state of alarm was not applied correctly and that the central Executive should have opted for the declaration of the state of exception. Be that as it may, the ruling concludes that the confinement adopted at the worst moment of the virus expansion was applied outside the law, which now calls into question any similar decision despite the advance of the new wave that is hitting once again a good part of the Spanish territory.