The Constitutional Court still without fixing doctrine on the large-scale restrictions on fundamental rights adopted in favor of public health during the pandemic. The division between the magistrates has led the plenary to postpone its decision on the unconstitutionality appeal that Vox presented against the first state of alarm – in which home confinement was imposed – and that was admitted for processing more than a year ago, the May 6, 2020, legal sources inform elDiario.es.
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In this decision the rupture of the conservative sector has weighed, which has not supported en bloc the position of the rapporteur, the also conservative Pedro González-Trevijano, whose proposal includes a reproach of unconstitutionality for not having used the instrument of the state of exception that allows to suppress Fundamental rights.
The presentation by González Trevijano, former rector of the Rey Juan Carlos University when the scandal of the masters took place, abounds in a defect in form rather than in substance, according to the aforementioned sources. In his opinion, during the first state of alarm, fundamental rights such as traffic rights were not limited, but were directly suspended, so the appropriate instrument would have been the state of exception – the most severe of all the civil power can resort to. – and not the alarm one. This position has met with the opposition of different magistrates who defend that the confinement did not imply such a suspension of fundamental rights if citizens could go shopping at the supermarket, walk their dog or even demonstrate.
Among the magistrates who defend that the state of alarm was a sufficient umbrella to protect the confinement of the population during the worst of the health emergency are the progressives María Luisa Balaguer, Cándido Conde-Pumpido and Juan Antonio Xiol. But not only, the conservatives Juan José González Rivas, president of the court, and Andrés Ollero have also expressed their doubts that Sánchez’s decisions implied the annulment of fundamental rights and that, consequently, the Government should have chosen to impose the State of exception and not of alarm, as González Trevijano maintains in his presentation.
The position of the rapporteur does have the support of the rest of the judges of the conservative bloc: Ricardo Enríquez, Santiago Martínez-Vares, Alfredo Montoya and Antonio Narváez. But before the verification of the division between its magistrates, the plenary session has agreed this week to give itself a period of reflection and to place the debate on the last session before the holidays, scheduled for July.
Meanwhile, informal meetings between the members of the court will continue in order to seek a consensus that allows a resolution to be carried out. If González Trevijano’s proposal is approved in the terms it currently contains, it would have consequences on the effects of the application of the state of alarm, such as the fines imposed for non-compliance.
González Trevijano is the second speaker to analyze the extreme right party’s appeal. The first proposal was made by the progressive Fernando Valdés, who resigned last October after being prosecuted for mistreatment. In his presentation, in which the technical bodies of the court participated, it was considered that the decree was constitutional, it saved some minor section and that the measure adopted was similar to that of other neighboring countries.
The change of rapporteur, therefore, is at the origin of this turn that it intends to declare unconstitutional and, therefore, illegal the path taken by the Government to control the advance of the coronavirus among the population.