75 days later, Spain increasingly returns to the night curfew. The accelerated multiplication of COVID-19 cases has made several autonomous communities resort to the time restrictions that marked the six months of state of alarm between October 25, 2020 and May 9, 2021. Catalonia, the Valencian Community , Navarra or Cantabria have made use of this measure in the face of the advance of the pandemic.
The explosion of infections begins to impact hospitals: “It’s like reliving last summer”
“Now it is justified”, analyzes the epidemiologist, professor and director of Preventive Medicine and Public Health at the Autonomous University of Madrid, Fernando Rodríguez Artalejo, who adds that “they will probably be temporary measures because much progress is being made in vaccinating young people, which are the main vector of transmission “. Other experts differ, not because they do not believe that the measure will have an effect, but because they believe that it could have been acted more gradually. “It seemed to us that by closing certain activities it was not necessary to reach the curfew,” says María Urtasun, an epidemiologist, community nurse and professor at the University of Alcalá. “Although it is true that in some communities we are already experiencing quite explosive situations and nothing can be done,” he adds.
This Friday decisions of the regional governments have been accumulating in the same sense: limiting the movement of people at night, an image that has symbolized the fight against the different waves of the disease since the autumn of 2020. In fact, that touch The curfew between 01.00 and 06.00 came into force in 136 municipalities of Catalonia –including Barcelona– at dawn from Saturday to Friday after the approval of the Superior Court of Justice. That measure will affect six million people. As Artalejo indicated, the restriction will be limited, in principle, to one week, although the forecast is to prolong it.
The nightly confinement extends through Spain as the transmission of the coronavirus tightens. Cantabria has obtained the endorsement of the Superior Court to apply a curfew between 01:00 and 06:00 in 53 municipalities of the autonomous community that represent more than half of the Cantabrian towns and include the most populated. In addition, the regulations limit the meetings of non-cohabitating people to a maximum of six per group in public and private spaces during that time slot. The intention of the autonomous government was that this limitation would work as soon as the permit was obtained.
Also this Friday, the Regional Executive in Navarra explained how it is drafting regulations to apply the curfew in municipalities whose accumulated incidence results in extreme risk. “If you do a general curfew, it will be more difficult with the judges. You have to spin fine,” sources from the Government of Navarra have indicated. In reality, those very high levels of transmission to which they refer affect localities, including Pamplona, which account for 80% of the population.
Artalejo insists that “the curfew is the most effective, if the judges allow it. For a short period of time they may be justified.” Precisely in Extremadura, the regional government had requested a curfew in three municipalities with incidence rates of more than 500 cases. Justice has denied it, although it has authorized the perimeter closure. In the Canary Islands they did not admit the curfew requested by the regional government for the islands in the worst epidemiological situation, despite the fact that the Prosecutor’s Office did endorse it. The Executive has appealed the decision to the Supreme Court. If they agree, the measure will also be implemented in the archipelago.
“It is a game of balances. If you want to attract foreign tourists and you talk to them about a curfew, they will not come. It is a complicated balance that would be resolved if people were responsible and without this responsibility the options are all bad because what is effective is unpopular and expensive, “sums up the public health expert.
Catalunya, Navarra, Cantabria … this group has followed in the footsteps of the Valencian Community that designed, proposed and obtained the permission of the judges to establish a curfew for 32 towns with more than 5,000 residents (the city of Valencia appears on the list ). The measure has been working since July 13 without major incidents.
“It was known that the incidence was going to increase, but it was not thought that it would escalate in this intense way”, analyzes the spokesman for the Spanish Society of Public Health, Ildefonso Hernández. Hernández, who was director general of Public Health in the Government of José Luis Rodríguez Zapatero, admits that “it is true that in some communities the incidence had been low for many weeks, although not below 30, which would have been desirable, but in That situation was difficult not to start reducing the measures. But now, at this moment, you can judge that it was a bit hasty to give the feeling that it was resolved. ”
Was this situation avoidable? “Probably not quite,” Urtasun said, alluding to the fact that when things are going well, the restrictions cannot be maintained with the same intensity. “The problem may have been a de-escalation a bit fast and all at the same time. This has been able to wrongly transmit to society that everything was over, that perception has been added to the fact that people have relaxed the measures more.”
Judicial uncertainty after the Constitutional ruling
“It was very foreseeable that this would happen, but I think other simpler measures have been late,” summarizes epidemiologist Pedro Gullón. “Functioning may work, if you can’t get out … but accepting it can be difficult.” Urtasun agrees with Gullón and is committed to the selective closure of certain activities (such as nightlife) and above all to better communicate. “We must adapt the messages to the population we want to reach them, in this case the young population. banner on the website of the Ministry it is probably not useful for that, perhaps reaching their referents so that they send these messages through their channels and more reach them, “he proposes.
All in all, the adoption and expansion of the curfew is stumbling along in the face of the need to pass through the filter of the courts. If the Valencian Community managed to carry out the curfew and Navarra designs its regulations so that the magistrates do not complain, the Canary Islands have not been able to implement this measure by judicial decision. Now he hopes that the Supreme Court will agree with him.
In the same way, Catalonia has had to await the order of the Superior Court of Justice. And, although the curfew has finally been approved, the same judicial decision already warns that more complications are coming after the decision of the Constitutional Court not to endorse the declaration of a state of alarm to forcefully restrict freedom of movement.
The Catalan magistrates have warned that “the Constitutional ruling cannot be ignored”. During its deliberation for this seven-day curfew, the ruling on the state of alarm had not yet been published, so it had no practical effect, but, should the application period need to be extended, it would already be a crucial element. : they will have to “conform to their dictates.”
The disparity of resolutions of the higher courts of justice originated in September 2020. The summer of the de-escalation began with hardly any restrictions, but as infections rebounded, the different regional governments approved restrictions that were approved or rejected by judges ordinary if they were called upon.
The Government wanted to end this situation and on September 19 it established in the reform of the law of the Contentious-Administrative Jurisdiction that it is the superior courts of justice of each autonomous community and not the Contentious Courts that must ratify this type of restrictions when promoted by regional governments. Several experts then warned that this precept had the risk of provoking contradictory decisions. So it was.
Less than a month later, already in the middle of the second wave, various regional governments began to decree perimeter confinements of the population. The result was an uneven map of judicial decisions: in the Community of Madrid, for example, it was refused to confine 10 cities in the region, while in Castilla y León its court agreed to close several localities.
The state of alarm that was imposed shortly after ended with the intervention of the higher courts of justice in the sanitary restrictions, centralized by the State until last May 9, when it declined. And, again, the same panorama, although sharpened because this time the restrictions were tougher and affected fundamental rights, such as the curfew. The substantive debate then is the same as it is taking place now: if the organic law of Special Measures in Public Health is used to apply those measures or if a state of alarm is needed. And if the measures, although protected by law, are proportional. It is this unresolved legal debate that is causing the disparity of decisions on restrictions.
“There can be no doubt that the measures pursue social distancing, the limitation of contacts and group activities and there are no merits to doubt that their purpose lies in the specific regulation of health emergencies and the control of infections to protect values and rights so senses such as life, physical integrity and people’s health “, the Superior Court of Justice of Catalonia argued this Friday. The one from Cantabria has also authorized the measure, which has passed, they say, “the proportionality trial.”
Just a few days ago, the Canary Islands Supreme Court ruled in the opposite direction. He did not see “any reason by virtue of which it can be defended that risky behaviors are even more dangerous if they are carried out at night or that the innocuous ones cease to be so because the day gives way to night”, and recalled that other courts, such as that of The Balearic Islands have rejected the curfew because they need the legal coverage of a state of alarm. This same Friday, the Extremadura has ratified the perimeter closure of several towns but has refused the curfew. The argument? That in this case, and despite the fact that it was limited to only three locations, the judges understand that “it does not pass the proportionality judgment” and entails “a true restriction of the fundamental right to freedom of movement.”
The Supreme Court has entered the matter on some occasions, when the resources on those measures reached the high court. His position – expressed for the last time at the beginning of June – has been to defend that a curfew can be imposed only with ordinary laws, but as long as it is essential, is sufficiently motivated and it is proven that it is “indispensable” for ” safeguard public health “. Those jurisdictional limits, also subject to interpretation, have allowed contradictory decisions to continue to be made.
As if that were not enough, the Constitutional Court has entered the legal mess with its ruling against the state of alarm. After weeks of deliberations on a paper that took months to write, six magistrates have considered that this constitutional tool was not enough to, for example, confine citizens to their homes. In his opinion, a state of exception should have been approved, which allows greater limitations on fundamental rights. Five judges have opposed a sentence whose consequences are yet to be determined.