Constitutional Court questions whether containment was legal during first wave of pandemic

Updated: Tuesday July 13, 2021 5:32 PM

Posted: 07/13.2021 17:31

The plenary session of the Constitutional Court is debating these days on the constitutionality of certain aspects of the first state of alert decree that the government approved to fight the pandemic.

Among the magistrates, there are different points of view. According to legal sources consulted by LaSexta, three constitutional magistrates have spoken in favor of the presentation of Judge Pedro González, who has undertaken to declare this first state of alarm illegal and in agreement with Vox. This line considers that to restrict freedom of movement, a state of emergency was necessary.

However, two other magistrates spoke out against it. For the moment, the Vice-President of the Court, Encarnación Roca, has not chosen, who could tip the scales towards one extreme or the other.

Constitutional law experts say the alarm state tool was correct. According to Javier Tajadura, professor of constitutional law at the University of the Basque Country, “the state of alert concerns natural crises such as an epidemic, while the state of emergency concerns public order crises”.

However, he admits, “the government has probably overstepped the measures, as absolute confinement of the population is not a limitation of rights, but rather a suspension, for this reason such confinement can be declared unconstitutional.” .

Therefore, whatever the decision of the 11 magistrates, they believe that the law governing it should be changed. “The law of 1981 showed a certain fatigue of materials, a certain disconnection from this type of circumstance”, explained Ana María Carmona, professor of constitutional law at the University of Seville.

In any event, if he were to decide that it is unconstitutional, there would be no future claims for damages from the containment, but that would only have effects for the future.

The resolution adopted by the Constitutional Court will have to take into account the fact that it was approved by a large majority in Congress, where popular representation is reflected and, as Carmona says, “decisions approved by Parliament enjoy the presumption of constitutionality ”.

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