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“Create a serious political problem”

Cándido Conde-Pumpido is one of the magistrates who voted against the illegality of the state of alarm. And in his letter, to which LaSexta had access, he is very critical of the result of the vote: in his eyes, the illegality of the government decree “creates a serious political conflict”.

In his intervention, the judge underlines that the decision of the TC “disarms the State against pandemics”, and moreover, in his eyes, the state of alert is precisely for this type of situation: “It is the instrument that the law expressly determines to deal with health crises, ”he said.

Condé-Pumpido also castigates the arguments put forward by the magistrates who voted for, and stresses that the majority of votes was “short and fragile” – it should be remembered that it was manifested by a single vote. In this sense, one of the points with which it is the hardest is with the main axis on which the TC has relied: for the judge, a state of exception, in any case, will not be better for the freedoms of the population than a state of alarm.

With this frankness he said: “For the magistrates who confirm the judgment, it would have been necessary to do away with the right to free movement (…) by declaring a state of emergency. To propose that the rights of citizens be better guaranteed by suppressing them instead of restricting them (…), is not to understand the system of fundamental rights established in our fundamental norm ”.

“It’s a bad approach”

The particular vote insists on the fact that to understand that during the state of alert the rights were removed instead of limiting them, as the TC assures it, is a mistake, and goes further in its position: “I consider that this approach is totally wrong. Restriction and suspension are two different legal categories, ”he emphasizes.

Thus, Conde-Pumpido even goes so far as to ironize this argument of the Constitutional Court, asserting that “it is a curious conception of fundamental rights”. “Those who hold it [la sentencia] wrongly assert that its construction would serve as a greater guarantee of these, when it is precisely the opposite, since its effect is, as we have seen, the removal of constitutional guarantees in exchange for the simple parliamentarization of its declaration . with respect to the points on which the failure was based, remembering that an exception state is more restrictive than an alarm state.

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