The judgment of the Constitutional Court on the illegality of the state of alert will include two arguments: among them, that during the confinement public order was altered due to the collapse of the health system, a fact that would justify the application of the state of emergency – in the eyes of the TC, the right measure.
This was confirmed by legal sources at LaSexta, who report the reasons given by magistrate Pedro González Trevijano during his presentation to convince the judges that the first state of alarm was unconstitutional. A presentation which has already been approved (by a majority of 6 to 5) and which, with slight modifications, will be the one which will be notified next week in the sentence.
State of alert surpassed laws by suspending rights and not limiting them, according to TC
The first argument made by Trevijano was that, during the lockdown, fundamental rights had been suspended. In other words, they were not only limited, as the state of alert allows, the Government would therefore have exceeded what the organic law allows.
The second argument is the one mentioned: during the state of alert, according to Trejivano, public order was altered, one of the conditions necessary to apply the state of emergency. This is precisely the cornerstone by which the Constitutional Court, in its judgment, decided to annul the government’s decree: it would first have been necessary to apply the state of emergency, a much harsher measure which also requires the ratification of the Congress of Deputies.
Two articles of the royal decree, illegal for the CT
In its judgment last Wednesday, the plenary session of the Constitutional Court declared two articles of the royal decree illegal. Basically, those who regulated home confinement and the impossibility of free movement of people and vehicles.
The court also rejected the provision that allowed the Interior Ministry to close roads, as well as another aspect: a provision that allowed the Ministry of Health to expand and change the measures adopted.
After the two arguments presented by Trevijano, and approved by a majority, a new panorama is now presented both for the citizens and for the government. In the first place, the possibility is open to obtain the nullity of some of the fines which were imposed during the detention, as well as to pursue, in very appreciated circumstances, to claim from the Administration compensation for the damages which could have been be caused. .
Second, what happened with the state of emergency. When the TC considers that this was the measure that should have been applied, it also shook the entire legal-legal scaffolding from which home confinements and curfews were decreed, along with the legal umbrella of the state of alert, as well as the closures of perimeters which are still applied today in neighborhoods and small towns with a high incidence of infected, in accordance with health laws.
Thus, according to constitutional sources, although having been ratified by the third contentious-administrative chamber of the Supreme Court, these measures would also be liable to be challenged before the Constitutional Court, now endowed with greater possibilities to prosper.