The Constitutional Court (TC) corrected this Tuesday the doctrine it established three years ago, when it condemned the measures adopted during the coronavirus pandemic, establishing that the state of alert was sufficient to suit restrictions on fundamental rights then established, according to sources from the Guarantees Court consulted by Europa Press.
The TC made this radical change in a case referring to an appeal by Vox against Galician Health Law 8/2021, which establishes the possibility of adopting a list of “preventive measures” for health crisis contexts, such as isolation of patients. people, home isolation, hospitalization or compulsory vaccination.
As reported by the Constitutional Court through a press release, the magistrates – in a presentation by the progressive magistrate and former minister Juan Carlos Campo– ruled out that “the measures introduced by the Galician legislator constitute cases of suspension of the fundamental rights reserved for the declaration of a state of emergency or a state of siege, as the applicants maintain”.
The previous doctrine, established in Order 148/2021 of July 14 on the first state of alarm declared in the event of a pandemic, established that “the intensity of the interference in the field of fundamental rights is not a criterion determinant of constitutional differentiation between the suspension and restriction of fundamental rights, so that a restrictive law (…) can establish high-intensity limitations on fundamental rights provided that it adapts to the necessary constitutional requirements and , in particular, provided that it respects the principle of proportionality.
However, the TC “underlines at this stage that the possibility of suspension of fundamental rights does not depend on the intensity of the measures adopted but on the concordance of their particular factual budget (the declaration of the state of exception or of the state of siege). ), since what occurs in such a case is the temporary and exceptional suspension of the effectiveness of the right itself with the specific legal regime established.
The sources consulted indicate that in this way the decision of the TC of 2021 was corrected which required declaring a state of exception to restrict fundamental rights, considering that, as long as this is done proportionally, the state of alarm allows such restrictions.
The aforementioned sources explain that the new doctrine implies that the state of exception “only applies in cases of serious disturbances to public order”, while the state of alert concerns “health crises and natural disasters.
They add that the fact that until now the TC required a state of exception for these restrictions excessively limited the possibilities of the State’s response to health crises and natural disasters.
“secret” change
This “secret” change in doctrine is precisely why the five judges who make up the so-called conservative bloc announced a simultaneous private vote.
And this, other voices from the seat of Domenico Scarlatti emphasize, because although they agree with the judgment regarding the Galician health law, they do not agree with the progressive majority – of seven magistrates – in this new doctrine.
Regarding Galician law, the TC partially allowed the appeal presented by Vox and annulled the “preventive measures” introduced by the regional law, indicating that, by restricting fundamental rights, they can only be regulated by the Cortes Generales through an organic law.
