Monday, August 2

The Constitutional solution would have forced the lifting of restrictions in Spain with more than 100 deaths a day

The first generalized state of alarm that has been approved in recent Spanish democratic history lasted for 99 days. From March 14 to June 21, 2020. A little more than three months of confinement and limitation of movements by a royal decree approved by the Government and extended every two weeks by the absolute majority of Congress. More than a year later, the Constitutional Court has considered the decision contrary to the Magna Carta. In the opinion of the court, after a long debate that has split the court in charge of deciding in two, the Executive had to resort to the state of exception, a figure that allows much deeper restrictions on fundamental rights, but which is limited by law. extension to a maximum of 60 days, which would have prevented Spain from concluding the confinement in a similar way as other European countries did when the number of deaths registered in May exceeded one hundred a day.

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

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Although the comparison between countries is always complex due to the legal, social and historical differences that exist, in all those in our environment, home confinements and restrictions similar to those assumed in Spain were approved in one way or another, whose measures were asymmetrically prolonged for several months. This was explained this Wednesday by the Minister of Justice, Pilar Llop, in an appearance to assess the Court’s ruling. “Spanish democracy used the figure of a state of alarm like the rest of the European governments,” he said.

In France, for example, bars and non-essential commerce were closed in mid-March, and did not reopen until June. In Italy the de-escalation was also gradual throughout the spring, while in the United Kingdom the reopening of non-essential shops was postponed until June.

The organic law that regulates the states of alarm, exception and site establishes that the emergency will have a duration of 30 days, extendable only once for a maximum of another 30 days. That is, 60 in total. According to the interpretation made by the Constitutional Court, the Government should have requested this measure, which would have prevented its extension beyond May 14, 2020.

And what was the incidence of the pandemic then? The data is cold, but telling. When the state of alarm was decreed, on March 14, 2020, an average of 48 daily deaths were recorded. On May 14, the last day that the state of emergency could have been applied, it was 111. And on June 21, the last day of the state of alarm, the weekly average number of deaths from the coronavirus was 16.

Evolution of the curve of new cases, admissions, ICU and deaths in Spain

Evolution of
number of new cases, hospital admissions, ICU admissions Y daily deaths in Spain. The cases are shown by date of diagnosis, admissions and ICU by date of admission and for the deceased by date of death. Click to see the detail

The data only includes cases confirmed with an analytical test and the figures for the last weeks are underestimated due to delays

Source: Ministry of Health

Llop, in his appearance on Wednesday, assured that “the Government respects, but does not share the resolution before the Vox appeal, since the confinement of the state of alarm allowed to save hundreds of thousands of lives.” “Several international studies” showed that large-scale confinement measures “prevented the death of more than three million people from COVID,” the minister concluded.

Greater restriction of rights

But beyond the situation of the pandemic, there is the paradox that the Constitutional Court assumes the appeal of Vox, who already on April 1, 2020 accused the Government of Pedro Sánchez of putting “Spain on the brink of a dictatorship”, despite having supported the first extension of the state of alarm just four days earlier.

The ultra-right wing formation has accused the Executive of using the right of alarm to curtail the fundamental rights of the Spanish. But the state of exception, the solution now proposed by the Constitutional Court, enables the Government to restrict a much greater number of rights.

The differences They are regulated by organic law 4/1981. Its article 4 expressly establishes that the state of alarm may be decreed in the event of “health crises, such as epidemics and serious contamination situations.” The Government can decree it by itself, but if it requires an extension, then it must obtain the “express authorization of the Congress of Deputies, which in this case may establish the scope and conditions in force during the extension.”

The norm indicates in its article 11 that during the state of alarm it will be possible to “limit the movement or permanence of people or vehicles at certain times and places, or condition them to fulfill certain requirements”, in addition to “carrying out temporary searches of all kinds of goods and impose mandatory personal benefits “,” intervene and temporarily occupy industries, factories, workshops, farms or premises of any nature, with the exception of private homes, reporting this to the ministries concerned “,” limit or ration the use of services or the consumption of basic necessities “, as well as” to issue the necessary orders to ensure the supply of the markets “, among other measures.

That is all that allows the Government to state of alarm as far as rights are concerned, beyond the fact that the decree can establish single and centralized commands for police forces and other officials.

And the state of exception? The formula for its approval, and its temporal limitation, already indicates that the legislator foresaw that the Executive Power could not put it into operation without the prior ratification of the Legislative, where popular sovereignty resides. Unlike the state of alarm, the state of exception (Chapter III of the same law of 1981) is not intended for specific situations, such as a pandemic, but for “when the free exercise of the rights and freedoms of citizens, the normal functioning democratic institutions, essential public services for the community, or any other aspect of public order, are so seriously altered that the exercise of ordinary powers is insufficient to restore and maintain it “.

In this case, the Government must previously send a request for authorization that expressly includes “the rights whose suspension is requested” and that must be limited to those established in article 55 of the Constitution. And what are these rights? The 17th (“no one can be deprived of his liberty”); 18.2 (“the home is inviolable”) and 18.3 (“the secrecy of communications is guaranteed”); 19 (“Spaniards have the right to freely choose their residence and circulate throughout the national territory); some sections of 20 (freedom of expression, information, …); 21 (” the right to peaceful assembly and without arms. The exercise of this right will not require prior authorization “); 28.2 (right to strike); or 37.2 (collective conflict).

Once the Congress authorizes the state of exception, the Government approves the royal decree that sets it in motion. Any modification that you want to add must be previously authorized by the Lower House. And “if the circumstances that gave rise to the declaration of the state of emergency persist, the Government may request the Congress of Deputies to extend it, which may not exceed thirty days.”

In total, 60 days of limitation of rights that are specified in that, as established by the same law of 1981 from its article 16, “the Government Authority may detain any person if it considers it necessary for the preservation of order”, ” may order inspections, domiciliary searches if it considers it necessary for the clarification of the allegedly criminal acts or for the maintenance of public order “,” may require certain persons to notify, with a notice of two days, any displacement outside the locality in who have their habitual residence “,” may also temporarily fix the residence of certain people in a locality or territory appropriate to their personal conditions “,” may suspend all types of publications, radio and television broadcasts, projections, cinematographic and theatrical performances “, among a long etcetera of measures.

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