The outbreaks are multiplying and some areas of Spain are even looking to a second epidemic wave. This is the context in which regional executives – in charge of controlling the spread of the virus since the start of the de-escalation – try to limit transmission by decreeing ‘surgical’ confinements, limiting meetings or reducing the opening hours of places where It has been proven that there is a greater risk of contagion, such as bars and restaurants.
Justice endorses the restrictions in Lleida but annuls the ban on meetings of more than 10 people in L’Hospitalet
But those restrictions are left to the discretion of judges and courts, charged by law to ratify them in a complex balance between health protection and respect for other rights and freedoms that is giving rise to a tangle of contradictory judicial decisions. The conclusion is that, on occasions, judges overthrow in one city what another judicial body has allowed in another.
Precisely this Friday the Ministry of Health announced that it had agreed with the autonomous communities the total closure of nightlife venues (discotheques, cocktail bars …) and the closure of the rest of the hospitality establishments at 1.00 in the morning “without being able to accept clients after 12.00,” as Minister Salvador Illa explained at a press conference.
In recent weeks, different courts have ruled on the relevance of applying these and other measures. In Aragon -one of the communities in which the situation is more out of control-, its regional court refused to establish at 1:00 in the morning the closing time of hospitality establishments throughout the community, as the regional Executive had decreed. The judges limited this restriction to the areas where more infections are being detected in the absence of a “sufficient justification” for the measure against the “serious repercussion” for the sector in the middle of the holiday season.
Also in Catalonia the regional TSJ lifted the order to close bars and gambling halls at midnight of some thirty municipalities in the metropolitan area of Barcelona, Lleida and Alt Empordà, as well as gambling halls throughout Catalonia, considering that the Generalitat had not justified in its health report that the time limitation of these venues would “produce less transmission of the virus “. It did maintain the total closure of discos and nightlife venues as it is an “adequate and proportional measure given the epidemiological situation to reduce the spread of the virus among the population.”
Judges from other territories, however, have authorized limiting the hours of this type of premises in entire autonomous communities. This is the case of Madrid, where a Litigation judge endorsed the closure of all entertainment venues and terraces at 1.30 am. In her order she argued, among other reasons, that the measure brings “more benefit” to the general interest than damage to other rights and freedoms. Also the one in Galicia, where the regional Supreme Court backed the order to close the hotel business at 00:30 am due to the “undoubted preponderance” of public health over the interests of the hoteliers.
Meetings and confinements
But it is that even within the same autonomous community there have been disparate decisions of judges regarding similar measures. For example, on limiting meetings. Thus, almost at the same time that a judge in Barcelona refused to limit the meetings of more than ten people in L’Hospitalet de Llobregat, claiming that the Generalitat did not have the power to impose restrictions of “such seriousness”; another from Lleida endorsed the same measure, understanding that it is a measure that the regional Executive can take to “limit the activity of people” since the meetings “have been shown as a source of contagion.” Also in Madrid, the Justice has endorsed the restriction of the number of people in meetings both indoors and outdoors to a maximum of ten.
In Extremadura, however, a Contentious Judge refused to ratify the resolution of the regional Executive that intended to limit family gatherings in the private sphere and bottles to 15 people. The argument is that the measure affects the fundamental rights of assembly and inviolability of the home, among others, and the justification of the Board did not comply with the principle of proportionality.
The pressure of the virus has also led some autonomies to even agree to perimeter confinements of several municipalities – that is, to prohibit the entry and exit of them except in assessed cases – that have had the endorsement of the judges. Catalonia closed Lleida and several surrounding towns, Extremadura confined Villarta de los Montes, Murcia did the same with Totana or Castilla y León with Íscar, Pedrajas de San Esteban and Aranda de Duero.
Precisely in this last municipality the judge considered at first that a 14-day confinement was not necessary as requested by the Junta de Castilla y León because the health services worked “normally” and limited it to seven renewable days. The regional Executive requested this Wednesday the extension for one more week.
Jurists consulted by elDiario.es explain that it is common for different judges to even interpret the same rule in different ways, since judicial bodies have independent criteria and it is normal for discrepancies to occur. Judicial decisions also have an influence on how detailed the argumentation and justification of the requested restrictions is and the judge’s own knowledge of the situation, in charge of deciding whether the proposed measures are adequate, necessary and proportional.
Without the state of alarm in force since last June 21, the different administrations avail themselves of the Law of Special Measures in Public Health, of 1986, and subsequent legislative developments at the regional level to give a legal framework to the measures with those that try to contain the virus. The aforementioned 1986 law empowers the health authority in its third article to adopt the measures it deems “necessary” in case of “risk of a transmissible nature”.
However, there is an intense debate among jurists about the extent to which this rule is a sufficient umbrella to protect this type of measure. Alba Nogueira, professor of Administrative Law at the University of Santiago de Compostela, argues that it is a “concise” and “little detailed” rule, but it is precisely the fact that it is “relatively broad” that allows tackling “diverse situations and plural “. Furthermore, as it is an organic law, it provides a legal framework for certain restrictions on fundamental rights.
“Specifying something of these characteristics is complicated. In general, all the emergency and health regulations of most of the countries in our environment make relatively generic authorizations, trusting that the Administration agrees on the measures prudently, when they are necessary and advised. technically “, maintains this jurist.
Xavier Arbós, professor of Constitutional Law at the University of Barcelona, considers, however, that the “problem” is that there is no suitable legal framework to face a pandemic like this. “We are oscillating between a measure such as the state of alarm, which has the advantage of its immediacy and political control by Congress; and the action of the autonomous communities, which requires judicial control when there is limitation of fundamental rights,” he says.
In Arbós’ view, the key issue is that this judicial control is designed for “individualized and individualizable” cases, such as, for example, that of a mentally ill person who must be admitted to avoid self-harm or that of a person with a pathology infectious disease who is denied discharge. “What we are seeing now is that judges, sometimes with few resources, have to form their own criteria based on the health reports that come from those they have to ratify or authorize,” he says.
On this issue Jordi Nieva-Fenoll, Professor of Procedural Law at the University of Barcelona, believes that it is necessary to “improve communication” between health authorities that propose measures to protect the right to life and physical integrity of citizens and judges who “deal” with all fundamental rights, not just the last two.
“The doctor should not presume that his measure is necessary without more, but has to make an extra effort to explain himself with a lot of data and simple language. Thus, the judge can motivate his decision by restricting fundamental rights as little as possible,” says this lawyer, who insists that fundamental rights are the “only protection” that citizens have against the “immense” power of the authorities.
Precisely as a way to avoid this tangle of contradictory judicial decisions, Professor Arbós points out that specific regulation would be necessary. “We would save controversy and gain legal security if there were legislation that would allow communities to carry out certain limitations of rights without judicial control that sometimes lacks the means to analyze the situation and that in any case is later than what it is. It is essential. Collaboration between jurists and public health experts is needed so as not to place a responsibility on the shoulders of a duty judge alone in which literally lives may be at stake, “adds Arbós.
Nogueira, however, does not believe that a specific regulation would put an end to this cascade of heterogeneous resolutions. “There will always be things that do not fit and that will lead to different solutions,” she says. Furthermore, it highlights the “element of guarantee” that a judge is in charge of analyzing whether a measure that affects fundamental rights is adequate, necessary and proportional.