The restriction of rights during the pandemic has once again divided the Constitutional Court, which has rejected an appeal filed by an individual who considered his fundamental rights violated because he was unable to demonstrate during the first state of alarm, in the initial phase of the pandemic by covid-19. The court has dismissed the challenge on the grounds that in the case analyzed the priority was to guarantee the protection of public health. But the ruling has had the vote against three of the four magistrates of the conservative sector, who consider that the demonstration —convened in Seville for April 30, 2020— should have been authorized, with the sanitary measures that were deemed sufficient to protect to the participants.
The appealed decision was the resolution taken by the Government Sub-delegation in Seville on April 22, 2020 in order to prohibit a demonstration called by the appellant for the following day 30 of the same month and that was going to run through certain streets of Seville until arriving to the Parliament of Andalusia. The march was to last two hours, with the first state of alarm for the health management of covid-19 being in force, royal decree 463/2020.
The administrative resolution justified the decision on the need to protect public health and avoid the danger of contagion of covid-19 among the people who participated, as well as their contacts and passers-by. The ruling – for which the vice president of the court, Inmaculada Montalbán, has been a rapporteur – explains that the government prohibition does not obey the validity of the state of alarm introduced by article 7 of the first royal decree that ordered the confinement of the population. The ruling considers that the administrative resolution was based on “the application of the ordinary regime of the limits applicable to the right of assembly and demonstration in order to protect other assets and rights with constitutional relevance.” And it refers specifically to the protection of public health (article 43 of the Constitution) and the right to life (article 15 of the Magna Carta).
The Constitutional Court considers that the decision of the governmental authority thus complied with “constitutional standards to the extent that it is duly motivated and is proportionate; since the prohibition derives more benefits for the general interest (preventing the spread of the disease) than damages to the committed right”, that of assembly and demonstration. The court recalls that at that time the form of contagion of covid-19 was not known and there was a significant increase in both the number of deaths and sickness, with social distancing and masks being the only instruments for citizen defense against the pandemic. . The guarantee body stresses that it was not until the end of December 2020 that the first vaccines against the pandemic virus became available.
The magistrates Ricardo Enríquez, Enrique Arnaldo and Concepción Espejel have voted against the sentence and have formulated a dissenting vote in which they underline that the Constitutional itself —then with a conservative majority— declared in July 2021 that royal decree 463/2020, of March 14, by which the state of alarm was declared for the management of the health crisis situation caused by covid-19, “did not affect the right to demonstrate, because even with the restrictions on freedom of movement established therein, said right remained intact during that period.” The sentence in question —delivered by six votes, those of the conservative block, against five, those of the progressive group— declared the partial unconstitutionality of said decree, as it supposes a suspension of fundamental rights, and not a mere limitation.
The aforementioned magistrates consider that the exercise of said right had to be regulated exclusively by the provisions of Organic Law 9/1983, of July 15, regulating the right of assembly. They add that, however, the sentence approved by the majority “reduces this declaration to an empty formula lacking practical effectiveness”, since “some conditions imposed on the promoter of the demonstration that are impossible for him to comply with are considered acceptable”. They also consider that the administrative authorities “in preference to the option of prohibiting the reported demonstration” should have agreed on “tendant measures, if those proposed by the promoter were not considered pertinent, to harmonize the right to demonstrate with the general principle of protection of health”.
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