The Valencian Community was the first autonomous community to declare a state of alert in Spain since the derogation ended at national level on 9 May. Faced with this situation, measures have been taken, such as reinstating quarantine to all close contacts, even if they have the full vaccination schedule, closing nightlife, limiting sessions to a maximum of 10 people, reducing catering capacity to 50% and 70% in stores, Culture, sporting events and gyms, and the most controversial: re-enforcing the curfew. Of all these measures, the one that probably gets your attention the most is the curfew, especially since it must be approved by your Supreme Court. The Catalan government decided on Monday night to cross the Rubicon and become the first regional executive to commit to this sixth wave to apply restrictions on fundamental rights to combat the new attack of the virus. The Generalitat announced that it would ask the Supreme Court of Catalonia (TSJC) for authorization to apply the curfew from next Thursday between 1 and 6 am. But does Father Aragonès` executive power have the power to impose a decree on fundamental freedoms of this magnitude? And can you do it without the screen of an alarm state? However, although the Supreme Court did not initiate this appeal, it used this resolution to justify its position and defend that it considered the curfews that other autonomous communities had already authorized at the time to stop the fifth wave to be legal. Specifically, the Supreme Court decision referred to restrictions on night walks approved in the Valencian Community, Catalonia and Cantabria. These other regional administrations – according to the resolution – “based their demand for ratification of the measures on the data of the high incidence of the number of infected people and their pressure on the health system, which is lacking in the Canary Islands in this case”. The answer was given by the Supreme Court last July. The Supreme Court then gave the green light to regional governments to impose curfews themselves. But yes, with many restrictions, always in a “proportionate” and argued ad nauseam way a restriction of freedoms of this caliber. And in any case, only in situations of extreme distress, such as stopping an uncontrolled emergence of the virus at certain times and in certain areas, or reducing the pressure on the health system, which is on the verge of collapse.
This could be another of the doubts that exist once the state of alarm dissipates. Do I have to wear a mask? The answer is yes. The government has established by law the mandatory use of masks in any public space, whether there is a distance or not. This hypothesis is contained in Law 2/2021, of 29 March, on urgent prevention, containment and coordination measures to manage the health crisis caused by Covid-19. Can the government impose measures on municipalities without raising a state of alert? Experts believe so, but if they restrict constitutional rights, they need the approval of the national court. The government could impose these measures unilaterally, but experts agree that it makes sense for it to agree with the municipalities of the Interterritorial Health Council. And once agreed, there are two possibilities: that the communities formally prescribe them and that they are the ones who seek the approval of the autonomous court; or that the government does so, thereby placing the decision in the hands of a single court and avoiding the risk of disagreement. The initiatives taken in this area are, according to most lawyers, mandatory for all communities, a situation that was called into question yesterday when Castilla y León suspended vaccination with AstraZeneca, contrary to the agreements of the national vaccination strategy. What could be more complicated, legal sources say, is that the Supreme Court protects the restriction of gatherings in the entire community solely on the basis of the 1986 Organic Law on Special Public Health Measures. This is the regulation invoked by all the autonomies that imposed restrictions after the end of the alert, and it is the one that the Supreme Court has already reaffirmed in its resolution on the Balearic Islands, that it serves only to authorize certain restrictions on fundamental rights, but only for certain cases and closely related to epidemics and groups of patients. And not to impose restrictions on large groups of healthy people, such as restrictions on participants in social gatherings, including in the private sphere.
The TSJC`s decision, which was explicitly supported by prosecutors, could set a precedent for other communities. Indeed, the Supreme Court of the Canary Islands (TSJC) will soon have to rule on the request of the island executive to impose the curfew between 00:00 and 06:00 on the islands that are at alert level three due to the pandemic (in this case, Tenerife). This Sunday, May 9, the state of alert in Spain ends. An exception that allowed restrictions on fundamental rights such as night mobility with curfew or fence on the national territory. What could be more complicated, according to legal sources, is that the Supreme Court protects the restriction of gatherings throughout the community solely on the basis of the 1986 Organic Law on Special Measures in the Field of Public Health. It is the regulation invoked by all the autonomies that imposed restrictions after the end of the call for tenders, and it is the one that the Supreme Court has already reiterated in its resolution on the Balearic Islands that it serves only to authorise certain restrictions on fundamental rights, but only for certain cases and closely related to epidemics and patient groups. And not to impose restrictions on large groups of healthy people, such as restrictions on participants in social gatherings, including in the private sphere. The intention announced by the President of the Government to suspend the state of alert after 9. ©May will review the legal framework to fight the pandemic and see if it is ready for common governance.
Several regional presidents have complained about the lack of clear rules telling them what they can and©© cannot do once this exceptional legal instrument is repealed, while the government insists that existing laws cover more than the needs of regional executive bodies. The lawyers consulted fall somewhere in between: municipalities, they argue, can promote any measure against the virus as long as they get judicial approval, but there is a risk that the courts will give different answers to the same measure as last summer. Since the executive and municipalities do not agree on how the transition from the current state of alert to decentralized administration will unfold this time, here are some of the questions and answers for the next day©: Will municipalities be able to implement similar measures? Legal experts and the experience of last summer`s events suggest that the difference lies in the fact that in the event of a state of alert, measures restricting fundamental rights can enter into force immediately and that these restrictions require prior judicial authorisation, in this case the Community Supreme Court, without them©. “What decreases is joint actions that are mandatory, but municipalities can still take measures and get permission from the court to implement them,” said Ana ±Aba Catoira, professor of constitutional law at the University of A Coruña±a. The Valencian judiciary on Monday became the first in Spain to approve curfews without the support of a state of alert to stop the fifth wave of the virus. The fourth section of the contested Administrative Chamber of the Supreme Court of the Valencian Community (TSJCV) has approved the request of the Ximo Puig government to impose restrictions on night mobility between 1 and 6 hours in the 32 cities of the region with more than 5,000 inhabitants, which represent the greatest epidemiological risk due to Covid-19. The Mother Superior also gave the green light to limit social and family gatherings to a maximum of 10 people throughout the region, regardless of the frequency of the area. The judges, stressing that the curfew appears essential to “try to prevent the nightlife known as Botellón” after the failure of other restrictions, insist that their solution is in line with the doctrine dictated by the colonel in recent weeks.
