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Supreme Court challenges government decree giving it final say on restrictions after state of alarm

The Technical Office of the Litigation Administration of the Supreme Court considers the reform of the cassation appeal “ambiguous” so that the High Court resolves the restrictions in the Autonomous Communities after the end of the state of alert. This was highlighted in a report on the decree-law approved by the government, highlighting a “possible insufficiency” of this type of rule to regulate issues that affect fundamental rights.

The document begins by anticipating that “a series of issues will not be considered” as “they require in-depth study which cannot be addressed now” as it is “an urgent note”. However, he mentions among these questions, without however developing it, “the problem of the insufficiency or possible insufficiency of the scope of the standard used (decree-law) to settle a question like this one, which affects fundamental rights”.

He also underlines, within the framework of the subjects on which he will not comment, “the problem of the constitutionality of the institutional position in which the courts of justice find themselves, as a sort of executive partner in the process of administrative adoption. . measures., in the manner of shared administrative competences. “What he expressly says is that this decree-law” is presented, implicitly but clearly, as a legislative reaction against the jurisprudential interpretation of the previous legal framework “.

In this sense, he recalls that in a recent order of March 24, 2021, the High Court explained “in a largely argued manner” that against the decisions of the Superior Courts of Justice (TSJ) and the National Court having rejected or authorized the sanitary measures “there was no appeal.” Once this preamble is done, it plunges into a series of considerations “of a purely procedural nature” to “reveal some procedural doubts which, already in a first impression, raise the reading of the modification of the law of litigation. Administrative jurisdiction (LJCA) which has just been operated. “

More specifically, the Technical Cabinet warns that, although the decree-law states that the Supreme Court “will establish the doctrine” with these resolutions, “it must be taken into account that this may not happen”. Precisely, the need to “unify doctrine” was one of the reasons that the first vice-president of the government, Carmen Calvo, waved during the press conference after the Council of Ministers last Tuesday – when the Legislative Decree was approved – to justify the necessary to avoid the situation that arose after the first state of alert, with conflicting judicial opinions on restrictive measures.

In this regard, the report explains that it may happen that, given that the preliminary procedure is abolished to determine whether the legal conditions for admitting the appeal are met, it is the Administrative Contentious Chamber of the Supreme Court that – even which establishes in its resolution that “it must be inadmissible for this reason or because there is no appeal” – for example because it is “a purely casuistic question” – and that it neither study nor comment on the substance of the question.

Doubts about the deadlines set in the decree

In this regard, it regrets that the preparation phase of the cassation appeal before the Supreme Court or the National Court has been abolished, allowing its direct presentation before the Supreme Court, which “raises many questions and practical problems” mentioned above all. the impossibility of filtering these legal requirements and the appeal interest. Likewise, he doubts the real possibility of being able to meet the deadlines set by the decree-law, which are shorter than the usual ones, and the Supreme Court must resolve it in about eight days, adding the three of transfer to them. parties to allege and the next five for the TS to rule.

“If, as it is to be feared, the litigation in this case multiplies, it will be very problematic to resolve the appeals in such a short period of time, since the Supreme Court will have access, probably on coincident dates, to the appeals from any lower court. the courts of this contentious-administrative jurisdictional order ”, warns. It also puts on the table the possibility that these eight days could be extended, with the executive order not specifying whether the three days that are given to parties to make claims are functional or natural. “It will be necessary to understand that these are working days”, he concludes.

In the same vein, it emphasizes that the law does not require – as is customary in cassation – that an appeal for review be filed beforehand, but does not prohibit it either, so that, if it were filed, it could further delay the resolution times. Another of the points highlighted by the Technical Cabinet is that the decree-law allows the General State Administration (AGE) to appeal, “if the object of the authorization or ratification had been a measure adopted by a health authority of a scope other than the State, in accordance with the coordinated actions in public health declared by the Ministry of Health, if necessary, prior agreement of the Interterritorial Council of the National Health System “.

“ First of all, the question arises whether this entry into the procedure of the public prosecutor is – as it seems – only for the cassation phase, or whether it should be understood that in these cases, it should also be given, before, the condition of party to the proceedings “, he specifies before arguing that” it must be rejected “because this type of judicial authorization” does not envisage any intervention other than that of the administration author of the act and of the prosecutor “.

He also adds that< l'attribution hypothétique d'un tel pouvoir semble très difficile à concilier avec la logique juridique de la cassation >>, since the public prosecutor would give rise to the formulation of new questions and to the calling into question of the facts noted as proven in the Supreme Court or at the hearing. Nacional, “when the intention of the cassation is, in reality, only to discuss the casuistic assessment of the factual circumstances of the case”. Therefore, he rejects both possibilities.

The role of the prosecutor, another controversial point

A “third problem” which highlights “is whether the public prosecutor could appear in cassation not as an applicant, but as an applicant”, because if “it is understood that he should be able to discuss the order that he considers contrary to in law, it seems that logically, he should be allowed to appear in cassation if he understands otherwise, that is to say if he considers that the order is in accordance with the law, and therefore has an interest in opposing a possible appeal ”.

However, he maintains that “the reform thus introduced will have a very significant impact on the third chamber of the Supreme Court” and foresees that “the section responsible for handling and resolving these appeals will most likely need the assistance of the Service. Technical Cabinet, to be able to meet deadlines ”, for which he considers“ urgent ”to acquire“ personal and material resources ”, denouncing that his staff is already“ saturated with work ”.

It also recommends creating a new section specifically dedicated to these resources, stressing that this would contribute to the “uniformity” of their study, given that currently the resources are distributed under the body that issues the contested act ” , which may vary according to each autonomous community ”,“ because the health measures concerned may come from different ministries ”.

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