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The title refers to article 7.1.3.5. of the Royal Decree of March 2020.
For those who received fines under these articles would be able to reclaim or appeal the fines. Appeal should be made within a month of receipt of fine.
CONSTITUTIONAL COURT
Cabinet of the President Press Office
THE PLENARY OF THE CONSTITUTIONAL COURT DECLARES THE UNCONSTITUTIONALITY OF SECTIONS 1, 3 AND 5 OF ARTICLE 7 OF ROYAL DECREE 463/2020, OF MARCH 14, WHICH DECLARES THE STATUS OF ALARM FOR THE MANAGEMENT OF THE OCCASIONAL HEALTH CRISIS FOR COVID-19
The Plenary of the Constitutional Court has resolved the appeal of unconstitutionality formulated by the VOX Parliamentary Group in the Congress of Deputies, against Royal Decree 463/2020 by which the first state of alarm was declared.
The ruling, on which Judge Pedro González-Trevijano has been the rapporteur, does not question the need to adopt exceptional measures to face the severity and extent of the health pandemic caused by COVID-19; measures that are considered necessary, appropriate and proportionate, as well as comparable to those adopted in other neighboring countries. What is questioned is the legal instrument used for this, considering that some of these, insofar as they imply the suspension of fundamental rights, do not find constitutional coverage in the declared state of alarm, and would have justified the declaration of the state of emergency. That the constitutional distinction between one crisis situation and another should not be made violent in this way, turning the alarm into a substitute for the exception, not subject to prior parliamentary authorization.
For these reasons, the unconstitutional measures provided for in sections 1, 3 and 5 of art. 7 of the Royal Decree, which violate the fundamental right to move freely throughout the national territory, the right to freely choose residence (art. 19 CE) and the right to peaceful assembly without arms (art. 21.1 CE). The Court limits itself to verifying that the extraordinary restrictions on freedom of movement, residence and assembly, imposed by art. 7, still oriented to the protection of constitutionally relevant values and interests and adjusted to the recommendations of the World Health Organization, exceed the scope recognized by the Constitution and the Organic Law to which its art. 116.1.
The sentence affirms that it is inherent to the freedom of movement its unrestricted deployment and practice in the roads or spaces of public use, for those purposes that only the right holder can determine and without having to give reason to the authority of the reasons for their presence on such roads. And these essential elements of the fundamental right have been canceled through a measure that imposes the confinement of the entire population in the entire national territory, establishing that people may only circulate, and do so individually, to carry out expressly authorized activities. by the norm. The unconstitutionality is based on the fact that these drastic measures have meant, in practice, the suspension of the right to move freely, that is, the temporary cancellation of the exercise of this right. And that suspension is only foreseen, for certain fundamental rights, in cases of declaration of states of exception or siege (art. 55.1 CE).
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The temporary deprivation of the right to move freely necessarily entails the material amputation of the right to hold private meetings for family or friendship reasons, even in the domestic sphere. And it also violates the right to freely choose one’s residence, taking into account that the Royal Decree only allows “return to the place of habitual residence”, which implies that the permanence in the place where one had been residing is imposed as immovable and the right to transfer or modify said residence is excluded.
Respect for the principle of proportionality in the adoption of these measures, which the judgment accepts, cannot, however, be considered as the only parameter to endorse its constitutionality, since this would lead to the absurdity of its application on a non-existent right, since became the only justifying criterion for its prosecution, thus giving rise to its forced application on a previously canceled right. This would distort the exceptionality model guarantor provided for in art. 116 CE, and that, as long as it is in force, cannot be bordered or made unrecognizable.
On the contrary, the judgment rejects the violation of other fundamental rights alleged by the appellants. Specifically: the right to demonstrate, the right to attend meetings of political parties or unions, the right to education, freedom of business and the right to religious freedom. In all these cases, the limitations introduced, although intense, have not meant the suspension of the exercise of the respective rights, but rather the application of exceptional restriction measures, which are proportionate to the extraordinary circumstances derived from the health crisis, the necessity to preserve the right to life and health of all citizens and to avoid the possible collapse of the health system.
The sentence specifies the scope of the declaration of unconstitutionality, modulating the effects of the nullity. Specifically declares that:
a) Processes concluded by judgment with force of res judicata or situations decided by final administrative actions are not liable to be reviewed, nor are other legal situations generated by the application of the annulled precepts.
And this because the partial unconstitutionality of the Royal Decree does not derive from the material content of the measures adopted, whose necessity, suitability and proportionality we have accepted, but from the legal instrument through which the suspension of fundamental rights was carried out. To which it is added that, having affected the suspension to the generality of the population, it is not justified that singular claims for review based exclusively on the unconstitutionality appreciated, when there are no other reasons of unlawfulness, can be addressed. To understand it in another way would conflict not only with the constitutional principle of legal certainty (art. 9.3 CE) but also with that of equality (art. 14 CE).
b) It is possible to review criminal or contentious-administrative proceedings referring to a sanctioning procedure in which, as a consequence of the nullity of the rule, a reduction of the penalty or sanction results, or an exclusion, exemption or limitation of responsibility ( art. 40.1 LOTC).
c) Finally, and in the case of measures that citizens had a legal duty to support, the declared unconstitutionality will not by itself be sufficient legal title to found claims of patrimonial responsibility of public administrations, without prejudice to the provisions of art. 3.2 of Organic Law 4/1981, on states of alarm, exception and siege.
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The sentence contains the following particular opinions. The particular vote formulated
by President Juan José González Rivas disagrees of the ruling and argumentation of the majority, only partially, in the declaration of unconstitutionality of sections 1, 3 and 5 of article 7, indicated in Legal Basis 5. It understands that the limitations contained in these precepts are covered in the declaration of the state of alarm (arts. 11 and 12 of LO 4/81) and to them, which do not imply suspension of rights, the provisions of art. 20 of Organic Law 4/81, for not being constitutive of a state of exception.
In the opinion of the President of the Court, they were constitutionally admissible those measures that limited the freedom of movement, residence and private meetings, since they did not suppress the exercise of the right and were proportional in the achievement of the public objective that justified them, since it concerns the preservation of the fundamental right to life and the guiding principle of the preservation of health. Especially when taking into account that the World Health Organization (WHO), from the beginning (January 2020), in a scientific and not political assessment, considered mobility and commuting, as well as private meetings in accumulated groups.
He also disagrees with the exception made in FJ 11.c) in relation to art.
3.2. of the LO 4/81 in matters of patrimonial responsibility.
For Judge Andrés Ollero, the center of the problem revolves around the constitutional protection of the essential content of fundamental rights. Hence the dilemma raised between recourse to the state of alarm or declaration of a state of exception. While this has clear precedents referring to public order problems with notorious political connotations, the alarm refers to catastrophes and situations such as the current pandemic. The key, in his opinion, is that when declaring the state of exception it is decided, a priori, to affect the essential content of fundamental rights. For its part, the state of alarm only becomes unconstitutional when it is detected, a posteriori and perhaps in a precautionary way, that the limitation of rights in the provisions of the norm or in the application to a specific case is disproportionate, affecting by both to its essential content.
The particular vote formulated by Judge Cándido Conde-Pumpido Tourón considers that the majority ruling does not resolve, but rather creates a serious political and health problem, by disarming the State against pandemics, depriving it of the instrument that the law expressly determines to do. in the face of health crises, which is the state of alarm. And it does not respond to strictly legal criteria, since these criteria must provide certainty and legal security. From my point of view, what would be radically contrary to the Constitution would be precisely what the sentence proposes to us: declaring a state of exception – suspending fundamental rights and, therefore, its constitutional guarantees – to fight a pandemic, since the power itself constituent, through the referral made to the exceptional organic legislator, has decided that in the case of pandemics, and when there is no disturbance of public order, fundamental rights cannot be suspended.
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The particular vote of the magistrate María Luisa Balaguer shows her disagreement with the argument and with the ruling of unconstitutionality of art. 7 of the challenged Decree. The Magistrate maintains the logical incorrectness of the essential argument of the sentence, since it is the enabling causes of the adoption of the state of alarm or exception, provided for in the Organic Law of the states of alarm, exception and siege, which condition the selection of one or another type of exceptional state, and not the effects, more or less intense, on the limitation of fundamental rights. It is the epidemic situation, therefore, and not the effects that home confinement causes on freedom of movement, which must be taken into account when applying LO 4/1981, and assessing the constitutional adequacy of the Decree.
In addition, the vote denies that the seriousness of the impact on essential public services is sufficient cause to argue that the state of exception should have been adopted, because this and the state of alarm respond to types of crisis situations whose nature is different, and cannot be understood as successive options. The legislator did not at all foresee the option of going from a state of alarm to a state of exception based on the severity of emergency situations.
Finally, the dissenting judge advocates the application of a canon of constitutionality based on the application of the principle of proportionality, stating that said control parameter would have led to the dismissal of the appeal, in particular taking into account the need to formulate an analysis of the sacrifice of the right to individual freedom of movement, in relation to the benefit that the measures adopted had in relation to the preservation of the right to health, life and physical integrity of people.
The content of the particular vote formulated by the magistrate Juan Antonio Xiol will be known in the next few days.
Madrid, July 20, 2021.
“Translation of the article and sub articles referred to.
Article 7. Limitation of the freedom of movement of people.
1. (Canceled).
1 bis. The validity of the state of alarm will not pose any obstacle to the development and implementation of the electoral actions required for the development of elections called to the Parliaments of autonomous communities.
2. Children under 14 years of age may accompany an adult responsible for her care when he or she performs any or some of the activities provided in the previous section.
3. (Canceled).
4. In any case, in any trip, the recommendations and obligations issued by the health authorities must be respected.
5. (Canceled).
6. The Minister of Health may, in response to the evolution of the health emergency, issue orders and instructions in relation to the activities and trips referred to in sections 1 to 4 of this article, with the scope and territorial scope that in those are determined”.
The ruling by itself will not automatically result in the annulment of the sanctions, so an appeal would need to be filed.
Claims or appeals should be made against the administrations who proffered the fines.
There is no general template.
Some claimants are using lawyers and in some cases having to take the matter up judicially.
