The Constitutional Court (TC) unanimously recognized that “preventive measures” such as the ban on travel and meetings during the pandemic, established in a decree-law of the Balearic Islands under the administration of Francina Armengol, are unconstitutional because they restrict fundamental rights. this can only be regulated by the Cortes Generales through organic law.
The magistrates thus ruled by partially accepting the appeal of unconstitutionality presented by the deputies of Vox against the first paragraph of article 1 of Decree-Law 5/2021, of May 7, of the Balearic Islands, by which a regime of sanctions specific has been established. to remedy non-compliance with the provisions issued to mitigate the effects of the crisis caused by Covid.
According to a note published on Tuesday by the Court of Guarantees, the Plenary understands that the articles of the aforementioned Balearic decree-law, signed by the then regional president and current president of Congress, Francina Armengol, have “almost identical” wording. for those of the Galician Health Law, declared on November 5 unconstitutional and void because it regulated fundamental rights that can only be regulated by organic law.
In a judgment for which the judge was rapporteur Laura Diezthe court considers that the Balearic Decree Law, by regulating the restrictions or limitations of fundamental rights, affects the rights included in the Constitution such as the rights to life, liberty, honor and privacy, to enter and leave Spain freely and to meet peacefully.
In this sense, it declares unconstitutional and void the articles of the Balearic decree-law which limited territorial travel, which established a curfew and which limited the number of people who could gather in public and private spaces.
The TC also declares unconstitutional and void the article which established that the Board of Directors could suspend the exercise of activities, intervene by material or personal means and limit the opening and/or closing hours of establishments, places or activities.
Likewise, it declares unconstitutional and void that the Governing Council can carry out “diagnostic tests on all people presenting symptoms” and “collective screening tests” to prevent the spread of the coronavirus.
However, the court rejects the challenge formulated by those of Vox concerning articles 2 and 3, which were limited to reproducing “with slight variations” the measures provided for in Organic Law 3/1986, on special measures in matters of public health .
On November 5, with the ruling on the Galician health law on preventive measures in the event of a pandemic, the Constitutional Court modified the doctrine it had established three years ago and established that the state of alert was sufficient to accept the restrictions on fundamental rights then established. . A turning point which led the conservative bloc to distance itself from this modification.
However, this Tuesday’s ruling on the Balearic decree law does not enter into this reasoning, but is limited to technical questions, which is why it received the approval of the 12 magistrates, according to the sources consulted.
