Constitutional Court considers declaring first state of alarm unconstitutional

Report to be submitted considers agreeing with Vox and that state of emergency should have been applied instead

2 min
The façade of the headquarters of the Constitutional Tribunal

MadridAfter the worst part of the pandemic, the Constitutional Court (CC) will have to decide from June 22 on whether the first state of alarm called at the beginning of the pandemic was lawful or not. Vox appealed against the measure because it considered it to be a "flagrant violation", given that, in its opinion, the Spanish government used it in an "abusive and unjustified" manner and thus violated citizens fundamental rights.

The high court will study a proposal that considers the first state of alarm unconstitutional because it believes that the agreed restrictions exceeded the legal framework with measures more typical of a state of emergency. According to El Español, it is a draft report that will be submitted to the full court by the magistrate Pedro González Trevijano to respond to Vox's appeal for protection against both the royal decree of the state of alarm of March 14 and its subsequent extensions until June.

According to Vox, the state of alarm only allows to limit the free movement of people but not to suspend fundamental rights, "as was done" in their opinion, during the beginning of the pandemic, when leaving home was only allowed in specific exceptions. In particular, he stresses that the rights of assembly, demonstration and education were violated.

The option of a state of emergency

Precisely the proposal of the magistrate Trevijano picks up the gauntlet and points out that the restrictions agreed by Pedro Sánchez's executive exceeded the legal framework of the state of alarm. And that is why the state of exception should have been applied, which, unlike the state of alarm, can only be applied through the council of ministers once authorisation has been given by parliament. On the other hand, the state of alarm can be applied for fifteen days without the approval of the lower house. If it is to be extended, a majority in parliament is required.

The state of emergency, according to the 1981 law, allows "the governmental authority - with limitations - to exercise the following measures: to detain any person if it deems it necessary to maintain order, provided that there are at least well-founded suspicions that they may cause disturbances of public order". It is, therefore, an extreme measure for periods of riots or disturbance of public order that has never been applied after the end of the dictatorship.

Specifically, Trevijano's proposal does not question the fact of having restricted fundamental rights, but the instrument used by the Spanish government. In his opinion, the state of alarm does not allow for the generalised suspension of fundamental rights. For the moment, the draft has been handed over to the rest of the magistrates and will be taken to the plenary session on June 22. As it is a matter of special importance, they hope the court will reach a unanimous decision. If it does not succeed, a new report would have to be considered.