The Superior Court of Justice of Navarra (TSJN) has endorsed the package of measures included in the regional order signed by the Minister of Health, Santos Induráin, which among other measures, decrees the perimeter confinement of the provincial community and orders the closure of bars and restaurants for 14 days to stop the COVID-19 contagion curve. The TSJN, which has been the first court to rule on the confinement of an entire community, ratifies the decision of the Executive of María Chivite and considers the measures justified by “the very high rate of infections.” But at the same time, they give him a wake-up call and warn him that for future decisions, the measures must be presented to the judges for prior authorization and not for subsequent ratification. That is, they will have to be raised for judicial control prior to its entry into force.
Navarra opens the door to request the state of alarm to guarantee mobility limitations
The Chamber affirms “the legal inadmissibility of such procedural articulation by the Administration”, and adds that the general rule would be the prior authorization, unless justified by the Administration “special urgency and necessity” in its adoption. The court understands that In the previous provincial orders, also ratified, that urgency was given, however, it highlights that, in the case of the latter, the measures were announced to the media on Monday for their entry into force on Thursday, therefore which considers that there was no such urgency.
In addition, in the operative part of the judicial resolution, the Court requires the provincial government that, after seven days, the delivery of a report “on the epidemiological evolution and the effectiveness of the measures adopted.”
The TSJN admits that fundamental rights can be restricted without a state of alarm
The judges of the TSJN have accepted that by means of Organic Law 3/1986 of April 14, the Government of Navarra has adopted measures that limit the exercise of certain fundamental rights, without the need to resort to a state of alarm, on the contrary of what other courts have issued, such as the Superior Court of Justice of the Basque Country, which This morning the limitation of meetings to six people has been overturned, considering that “only by State Law can limitations to the exercise of fundamental rights be established”. The TSJN, on the other hand, maintains that “in this sense it complies with the canon of constitutional legitimacy for restricting the aforementioned fundamental rights established by the Constitutional Court.”
Thus, the judges highlight, the Constitutional Court admits the possibility that by Organic Law, and even by Ordinary Law, the adoption of specific measures that limit the exercise of certain fundamental rights is allowed, with the qualifications made about the acceptable scope of interference of one and the other in the fundamental right, and provided that this limitation is sufficiently limited in the corresponding legal provision of empowerment in terms of the assumptions and in terms of the purposes it pursues, so that it is true and predictable, and is justified in the protection of other assets or constitutional rights.
They consider that the restriction of mobility in Navarra is justified “by the very high rate of contagion” and because it is a “limited measure”, since it is not “an absolute closure of the provincial community […], it is only restricted whenever the entry and exit is foreseen for justified reasons, which allows interprovincial circulation. “They also point out that” mobility is not absolutely impeded, “since they do not affect traffic on the roads. that cross Navarre “as long as it has its origin and destination outside it”.
The judges ratify the closure of bars and restaurants because it is a place of frequent contagion and because “during the stay in these establishments there are higher risk factors than in other activities” due to the non-use of a mask during the entire time of stay, because they are spaces without adequate ventilation and because alcohol consumption “affects people’s behavior, relaxing security measures.”
Therefore, the Chamber considers that art. 3 of Organic Law 3/1986 of April 14, on special measures in public health, enables the Regional Administration to adopt health measures due to the health crisis situation caused by the pandemic caused by COVID-19 and to be oriented to achieve the purpose of avoiding the transmission of the disease.
In this way, the Chivite Cabinet It will not have to resort to the state of alarm, a way that it was already studying to request the central government in case of receiving a judicial setback that will overturn the restrictions that have come into force this Thursday.