Updated: Thursday, July 15, 2021 10:48
Posted: 07/15.2021 10:46 AM
The decision of the Plenary Assembly of the Constitutional Court to declare the illegality of home confinement that the Government approved on March 14, 2020 as part of the first state of alert opens the possibility of achieving the nullity of some of the fines. that were inflicted. during this period and to bring, in highly estimated circumstances, an action for compensation with the Administration for any damage which may have been caused.
Without knowing the legal bases of the sentence pronounced by the court of guarantees, which will be published next week and of which only the judgment has been advanced, sources of the constitutional body explain to LaSexta that the first consequence of the resolution will be either the nullity of all fines for which no final judgment has been pronounced and which were pronounced during the first state of alert, which lasted between March 14 and June 21, 2020.
According to a report by the Ministry of the Interior, during this period, 1,142,127 fines were imposed across Spain, ranging from 100 to 600,000 euros and which, in the event of a repeat offense, led to convictions for offense of disobedience. According to the aforementioned sources, the nullity would affect the fines in progress, to the exclusion of all those which have acquired firmness or have not been the subject of an appeal within the time limit.
Very limited remuneration
The second debate that opens the sentence is whether the companies and individuals who suffered millionaire economic damage due to the limitation of mobility during these three months could claim from the state for patrimonial compensation for the damage resulting from the cessation of their commercial or professional activity. .
Sources of the court of guarantees anticipate that the judgment of the TC, approved by a weak majority of six votes to five, will make explicit that the citizens will have to “bear” the effects resulting from the partial annulment of the two articles of the decree, which would close the door to the general demand for compensation. “The penalty as such is not an enabling title in itself to be able to assert a patrimonial claim”, explains a magistrate.
However, the resolution adds that this general rule will be applied without prejudice to the content of Article 3.2 of Organic Law 4/1981, which regulates states of alert, emergency and siege. This precept stipulates that “those who, as a result of the application of acts and provisions adopted during the validity of these states, suffer, directly or in their person, rights or property, damages or losses for acts which do not are not attributable to them. , will have the right to be compensated in accordance with the provisions of the law ”.
The following key should be sought in Law 40/2015 on the Legal Regime of the Public Sector, which limits the possibility of submitting property claims to the State to a series of conditions that the Professor of Constitutional Law at the University of Seville Fernando Álvarez- Ossorio sums it up in three: “That you have promoted an ex ante procedure (previously), that a contrary judgment has been rendered and that in the process you have alleged the unconstitutionality of the law they applied to you.
Article 32.4 of this rule, which was promoted by the government of Mariano Rajoy, severely limits the possibility of filing property claims against the state for damages such as those derived from the limitation of mobility during the pandemic. “If the damage is the consequence of the application of a rule having the rank of law declared unconstitutional, the compensation will intervene when the individual has obtained, in any case, a final judgment rejecting an appeal against the administrative action. which caused the harm, provided that I would have argued that it was subsequently declared unconstitutional, ”he said.
That is, those who did not sue the Administration and obtain a final negative judgment to claim damages would no longer be in time to claim them.
When estimating the appeal raised by Vox, the TC also wobbles all the legal-legal scaffolding from which the home confinements and curfews were decreed, with the legal umbrella of the state of alert. , as well as the perimeter closures that are still applied. today in neighborhoods and small towns with a high incidence of infected, in accordance with health laws. According to constitutional sources, although having been ratified by the third contentious-administrative chamber of the Supreme Court, these measures are also likely to be challenged before the Constitutional Court, now endowed with greater possibilities to prosper.
If the expansion of new variants of the disease required further home lockdowns or nighttime curfews, with the current legal framework, the government would have no choice but to declare a state of emergency, which grants broad powers to the executive and the security forces, as long as it obtains the approval of the majority of Congress.
This figure brings the duration of detention to ten days before bringing to justice those suspected of having caused “public disorder”, authorizes “home inspections and searches” if they are deemed necessary for “clarification. of allegedly criminal acts ”or empowers the government authority to intervene in communications – including postal, telegraph and telephone communications -, control all kinds of transport or suspend and seize publications, radio and television broadcasts, screenings movies or theatrical performances.