The fourth section of the Contentious-Administrative Chamber of the Superior Court of Justice (TSJ) has authorized the limitation to a maximum of 10 people of social and family gatherings throughout the Valencian Community and the restriction of night mobility between the 1 and 6 hours in the 77 towns with more than 5,000 inhabitants that present a greater epidemiological risk from COVID-19.
These measures are contained in a resolution of the Conselleria de Sanidad Universal this Wednesday and will be in force during the period between July 26 and August 16.
The Chamber considers that they are “balanced” measures, since they derive from them “more benefits for the general interest – containment of the pandemic – than damage to other goods or values in conflict”, while complying with the “constitutional judgment of proportionality” .
The order – which has the dissenting vote of one of the magistrates, referring exclusively to the limitations to the meetings of people, and which can be appealed in cassation – alludes to the expansion of the Delta variant of the coronavirus, the exponential growth of infections, the increase in hospitalizations and the “situation close to the collapse that is already taking place in Primary Care centers.”
With these circumstances, described in the epidemiological evolution report attached to the Administration’s request, the court concludes that the proposed measures to contain the spread of the virus are necessary, appropriate and proportionate, therefore they comply with the “constitutional judgment of proportionality.” .
The TSJ-CV has examined the ruling of the Constitutional Court of July 14 that declared unconstitutional the general confinement decreed by the central government with the first state of alarm as it involves a suspension of the right to free movement.
Unlike that situation, the Chamber understands that the curfew does not suspend that right but rather limits it, since “it only commits five hours a day in the night time slot (from 1:00 a.m. to 6:00 a.m.)” and “during the remaining 19 hours of the day any person has intact their freedom of movement anywhere ”.
In addition, “the entire spatial scope of the Autonomous Community is not even concerned in that five-hour night period, since the measure affects only the municipalities most affected by the virus, and not the entire Community,” it states. .
The measures proposed by the Conselleria de Sanidad Universal, according to the order, meet the requirements established for their adoption by the recent jurisprudence of the Supreme Court, since their “substantive justification (…) is at the height of intensity and extent of the restriction of rights fundamental issues in question ”.
They are necessary and appropriate measures, points out the Chamber, to interrupt the spread of SARS-Cov-2, since “they concern the framework of social relations and unregulated nightlife”, which are the main causes of contagion.
The TSJ-CV affects the judgment of necessity and maintains that there are no other “more moderate measures to achieve the purpose with equal efficiency”. In fact, the Chamber refers once again to the ruling of the Constitutional Court of July 14, according to which it must be prosecuted if the measure is necessary “Because there is no other less incisive in the fundamental right and of equal effectiveness”.
“The practical experience that we now have and is shown in the reference justifications is that measures more lax than those in question here have not worked correctly,” say the magistrates, who cite a report from the Unit in support of that conclusion. of the National Police Attached to the Valencian Community provided together with the request of the Generalitat.