The Supreme Court has settled part of the debate on the legal framework of the restrictions to face the pandemic out of the state of alarm. At least, regarding the perimeter closures. The judges consider that health legislation is a sufficient umbrella to protect "specific limitations on freedom of movement" provided that the Administration justifies with "sufficient clarity" that this limitation of fundamental rights, limited to a specific time and space, is " essential ”to prevent the transmission of a disease that endangers public health. That is, as long as there are no other effective means to prevent transmission.
The Supreme Court dismisses the appeal of the Government of the Canary Islands and also demolishes the perimeter closure of the islands
This is stated in the note in which the Fourth Section of the Contentious-Administrative Chamber advances the decision of dismiss the appeal of the Government of the Canary Islands against the order of the Superior Court of Justice of the Canary Islands (TSJC) that denied part of the measures adopted after the cessation of the state of alarm. The ruling, which will be known in the coming days, refers only to the limitation of entry and exit in the islands that are at alert levels three and four, which was the aspect appealed by the regional Executive, which desisted from doing so regarding the curfew, also knocked down by the TSJC.
The Supreme Court shares the criteria of the Canarian court, whose magistrates argued that the autonomies are competent to restrict fundamental rights "for reasons of public health", but denied the aforementioned measures considering that they did not comply with the "principle of proportionality." Thus, the judges of the High Court emphasize that, in this case, it has been "reasonably proven the insufficiency of the motivation offered to justify the limitation and inconsistency of the measure with the exceptions provided."
In addition, the Supreme Court has also resolved the controversy that has arisen in recent days about from what moment the approved restrictions can be applied. And their position is blunt: the measures submitted for ratification "cannot be applied before they have been obtained." Therefore, the sanitary measures not yet judicially ratified "do not display effects or are applicable," argue the judges in another resolution referring to the perimeter closure of Montefrío (Granada) - also rejected - although in this case the judges have not entered the fund. affair. The judges have dismissed the appeals of the Junta de Andalucía for "loss of purpose" because the regional Executive, after the decision of the regional court, published new orders in which the confinement was canceled.
On the other hand, the Supreme Court also gives guidelines to the regional courts, which are in charge of analyzing these resources in the first instance. Thus, it establishes that they have to verify that the Administration requesting ratification is competent to adopt the measures to be ratified, that it invokes the appropriate health laws, that it identifies with "sufficient clarity" the serious danger to public health derived from a communicable disease. and that it "duly establishes the extent of this risk from a subjective, spatial and temporal point of view.
Likewise, the Administration that asks to ratify measures that imply limitation of fundamental rights has to justify that it does not have other less aggressive means to achieve the objective of limiting transmission. And the regional courts will be in charge of assessing whether the proposed measures are suitable and proportionate for this purpose.