June 15, 2021

Conflict over the limitation of fundamental rights


Despite criticism from the opposition and various regional executives, the Government has decided to do without this instrument, which it decreed for the second time in October 2020, with the second wave of the coronavirus. As argued in Moncloa, the autonomies have enough legal tools to deal with the pandemic in this phase, in which vaccination is increasing and the incidence is decreasing.

To avoid the disparity of criteria that occurred last summer after the end of the first state of alarm, the Executive has approved a decree creating an “express” appeal for the Supreme Court to unify doctrine. However, the TS itself has warned that “that may not happen” and has questioned this rule, due to insufficient rank.

Discrepancies between courts

The first royal decree of a state of alarm was approved on March 14, 2020. This was followed by six extensions, one every fifteen days: March 27, April 10, April 24, May 8 and June 5. And each of them came forward in Parliament with less support than the last. Vox only supported the first extension and the PP voted against the last two. And that of June 5 went ahead thanks to the abstention of ERC.

On June 21, the last extension ended, but the controversy between the measures adopted by the communities and the resources that began to take place before the courts again forced the Government to approve an alarm decree that would cover the autonomous measures. On October 9 it did so for the Community of Madrid and on the 25th of that same month, for all the autonomous communities. It was extended on November 3 for 6 months and this last extension is the one that ended today.

The state of alarm has covered during these almost 10 months –9 months and 21 days for the whole of Spain and 10 months and 6 days for the Community of Madrid– to all the measures that the autonomies have adopted and that affected fundamental rights, such as the curfew, the confinements or the perimeter closures of the regions. That was precisely the government’s justification for turning to him again in the autumn.

The Government was forced to approve a second state of alarm to cover the regional measures in the face of the discrepancies of the Superior Courts of Justice


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But Pedro Sánchez’s decision not to extend this exceptional measure has led to controversy, since last summer many regions found themselves with resolutions from the Superior Courts of Justice annulling the measures they had adopted. This is the case of the Basque Country, whose government is one of those that has pressed the most for the state of alarm to be extended.

However, the Executive has decided to maintain its position and to avoid discrepancies between the decisions of the Superior Courts of Justice of the different autonomous communities, it has chosen to create an “express” appeal before the Supreme Court in order to that it unifies the doctrine. The Third Chamber of the high court will have five days to resolve, so that the measures that may affect fundamental rights are the same in all regions.

But even before the appeals for the decisions of the Supreme Court begin to reach the Supreme Court, it has already issued an urgent note in which it points to a “possible insufficiency” or “inadequacy” in the range of the norm used to regulate issues that affect fundamental rights.

In addition, the Supreme Court criticizes the Executive for trying to make executive partners in the courts of justice in the adoption of administrative measures. The TS also warns that the alleged unification of the Government’s doctrine may not occur, because, among other things, it warns that the resources may be inadmissible because it is understood that it has no interest in casuistry, for example, because it is a casuistic matter.

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