Thursday, August 5

The Constitutional ruling against confinement binds the Government against future pandemics


The Constitutional ruling on the state of alarm ties the Government against future pandemics. The decision, adopted by six votes to five, will prevent the use of the same mechanism that Pedro Sánchez applied in early 2020 to confine the population to their homes in response to the health crisis. From now on, a general confinement can only be decreed for a maximum period of 60 days, after the Parliament has declared a state of exception. The decision has been taken in response to an appeal by Vox, which the far-right formation presented despite having voted in favor of the same measure in Congress. The Popular Party also voted in favor of the first extension of the state of alarm, as did a vast majority of the House of Representatives. The main promoter of the constitutional censorship has been the magistrate Pedro González Trevijano.

The Constitutional Court overturns the confinement of the first state of alarm at the request of Vox

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The guarantee body has welcomed a total confrontation during the debate that has been resolved with the declaration of unconstitutionality of the confinement imposed by Sánchez during the first wave of COVID. The decision supposes to empty of content the concept of state of alarm included in the Constitution with regard to its application for health crises. What at first seemed a discussion of legal technique has resulted in an amendment to the entire mechanism with which the Moncloa team has circumvented the first wave of the pandemic, the 98 days in which Spain hid between four walls while the The virus was hopelessly killing hundreds of people every day. That decision was ratified with the votes of the majority, including the Popular Party and Vox. Today something similar could no longer be done.

The debate of the guarantee body has lasted for three days, in a climate of maximum tension in which the protagonist has been the conservative magistrate Pedro González Trevijano. His presentation turned around a previous proposal that raised an opposing resolution and has led five magistrates, including two conservatives, to announce a particular vote against the decision adopted by a single vote of difference. During the most heated moments of the discussion, Trevijano has been reminded that such a sensitive issue could not be approved by a single vote margin in a court still pending renewal. Then, Trevijano has faced with his companions to the voice of “there will be no renewal,” say sources of the Constitutional.

Government sources point to this incident as an important proof of the connection between this decision on the State of Alarm and the strategy, on the part of the right, to wear down the Executive from Justice. Like the CGPJ, several of the magistrates of the Constitutional Court are in office, with the mandate expired, pending a renewal that blocks the PP, which maintains a majority in this body that years ago lost at the polls

The Constitutional Court has been broken and the minority progressive bloc has been joined by two conservative magistrates opposed to the censorship signed in the resolution advanced this Wednesday by elDiario.es. Among them, with a private vote announcement, Juan José Rivas, president of the institution. During the crossing of arguments there have been interventions of high tone. One of them, starring Magistrate Cándido Conde-Pumpido, who has come to assure the following: “I am not responsible for any future government facing a pandemic and not being able to adopt measures while people die and waiting for let it be Parliament that authorizes the confinement of the population. ”

Conde-Pumpido’s reasoning is related to the main debate proposed by the rapporteur Trevijano: whether confinement should be imposed by the declaration of a state of alarm (power of the president) or by that of a state of exception (power of Parliament). In that line of argument, Magistrate Encarnación Roca, once proposed to the court by the Socialist Party, moved. Roca argued his distrust of the Government and demanded that measures such as home confinement should be submitted to a parliamentary vote before being applied. Finally, his vote was the final one to approve the final resolution that declares that the entire Spanish population spent 98 days locked up in their homes on a decision taken outside the Constitution.

Given the size of the dilemma, the president of the Constitutional Court, Juan José Rivas, proposed in his turn to speak that everyone take time to reach a consensus decision. Rivas proposed the creation of a group of magistrates who would work for 15 days in search of meetings. Trevijano replied. And he did it to claim that his status as speaker authorized him to demand an immediate vote. The vote took place and Trevijano won.

The consequences of the sentence

The consequences of the resolution are incalculable at this time. In an attempt to convince Magistrate Encarnación Roca, on whom his victory depended, Trevijano modified his presentation in recent days to include a new section that seeks to exempt the Government from financial responsibility for having imposed a mobility limitation that has been confirmed as illegal. This text, incorporated into the sentence, reads as follows: “The unconstitutionality appreciated in this sentence will not by itself be a title to found claims of patrimonial responsibility of public administrations, without prejudice to the provisions of article 3.2 of the Organic Law of the states of alarm, exception and siege “.

Court sources consulted by elDiario.es qualify this addition as “wet paper” against future claims to the State. “Any Spanish citizen could now complain about having been locked up in his home and, therefore, claim compensation,” they assure this writing. For months now, many law firms have been working on the possibility of joint lawsuits to request compensation derived from the citizen stoppage motivated by the confinement. One of the most active has been the former counselor of Esperanza Aguirre, and currently a practicing lawyer, Manuel Lamela, who already in 2020 announced complaints on behalf of private health to claim compensation for the lack of business that they had their clients locked up in home. Private hospitals reported that specialties such as traumatology were left without an audience in the consultations. Some of them, as elDiario.es reported in March of last year, even asked their workers to take vacations due to the lack of business.

The Constitutional ruling will allow, in principle, that fines can be annulled for skipping the restrictions of the state of alarm, such as home confinement. This scenario will be possible before the filing of an appeal, since the ruling by itself will not automatically translate into the annulment of the sanctions.

Apart from the above, there will be no consequences on shops and hotels, since the sentence is specific by not discussing the limits that were imposed on these sectors in the heat of the state of alarm. The censorship that Vox proposed on the limits that were then imposed on wakes and funeral services at the crudest moment of the counting of victims has also been specifically rejected. The rest is in the air.



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