Court authorises restrictions in Valencia but overturns them in Aragon

ValenciaAs happened last year at the end of the first state of alarm, the end of the second state of alarm has revealed differences in criteria between courts when it comes to approving or overturning the different restrictions adopted by regional governments to put a stop to the new escalation in coronavirus cases. This Monday the High Court of Justice of the Valencian Country has approved the Valencian government's measures, including a curfew in the 32 municipalities with most infections. On the other hand, the High Court of Justice of Aragon has overturned restrictions approved by the Aragonese government reducing opening times for restaurants and bars.

The Valencian Court accepted the government's argument of fighting against the escalation of contagions to the territory, authorising a limit on social and family gatherings to a maximum of 10 people throughout the Valencian Country and a curfew between 1 am and 6 am in 32 towns with over 5,000 inhabitants, which are a greater epidemiological risk. The measures, requested on Friday by the government, will be valid for 14 days from their publication in the official bulletin of the Generalitat Valenciana.

The 32 municipalities affected are Sant Vicent del Raspeig in the province of Alicante; Benicàssim in the province of Castelló; and Alaquàs, Alboraia, Aldaia, Almàssera, Benaguasil, Benetússer, Benifaió, Bunyol, Burjassot, Catarroja, el Puig, Gandia, la Eliana, Meliana, Mislata, Montcada, Paterna, Picanya, Picassent, Puçol, Quart de Poblet, Requena, Riba-roja de Túria, Sedaví, Silla, Tavernes Blanques, Utiel, Valencia, Vilamarxant and Xirivella in Valencia province.

"Balanced" restrictions in the Valencian Country

In the case of the TSJPV, the court considers that they are "balanced" restrictions, because they derive "more benefits for the general interest - containment of the pandemic - than harm to other goods or values in conflict", while meeting the "constitutional principle of proportionality". The resolution, which has included a dissenting opinion, also argues as elements that favour the authorisation the expansion of the delta variant, the exponential growth of infections, the increase in hospitalisations and the "situation of near collapse affecting primary care centres," considerations that the court makes from the data collected by the report on the epidemiological situation prepared by the Department of Universal Health and Public Health.

As it has already stated in previous proceedings, the court understands that these restrictions find sufficient regulatory coverage in the organic law 3/1986 of special measures on public health, although it reiterates that it would be "desirable" to have specific legislation to avoid "interpretive problems" and "contradiction of criteria" between courts. In this sense, the resolution highlights how the Supreme Court has recently ruled in two judgments on the sufficiency of the law 3/1986 to protect limitations of fundamental rights, provided that their justification is commensurate with the intensity and extent of the restriction of fundamental rights in question.

In this sense, the magistrates assure that the measures proposed by the Department of Universal Health meet the requirements to adopt them, and that they are necessary and suitable to interrupt the spread of coronavirus because "they concern the framework of social relations and unregulated nightlife", which are the main causes of contagion. Thus, limiting night-time circulation is much more effective than other measures to "try to prevent night-time leisure activities known as botellón", the court adds. This is also included in a report prepared by the commissioner in charge of the National Police unit attached to the Valencian Community, which the Council attached to the application for authorisation. "The `practical experience we now have is that laxer measures than those have not worked properly in relation to the obvious objective pursued," the court ruling states.

Finally, and as for the limitation to a maximum of ten people of social and family gatherings, both in public and private spaces, the court notes that it "is in accordance with the rest of health measures adopted by the administration".

Hospitality industry not responsible for contagions in Aragon

Contrary to the criterion adopted by the TSJPV, the High Court of Justice of Aragon has accepted the appeal filed by the hospitality industry and, as a precautionary measure, has suspended the measures approved by the Aragonese government, which wanted to bring forward bars' and restaurants' closing time to 11 pm, with nightclubs closing at half past midnight. While awaiting the arguments that the regional government can present, the court considers that at this point there is no evidence for a "direct relation" between the hospitality industry and an increase in infections in this region.

The magistrates also argue that most of the population most vulnerable to the virus is already vaccinated, which "necessarily reduces the severity of possible outbreaks and their impact on the hospital system", temporarily overruling the measure. This does not mean that if the Aragonese government defends its position with data in a new appeal, the judges will not end up validating the restrictions when they examine the case in greater depth.

For the moment, however, with the current data in hand, the Aragonese court believes that there is no reason for the hospitality industry to advance their closing hours. The Aragonese government had decided to return to level two of the health alert regime designed after the end of the first state of alarm to advance the closing hours of bars, restaurants and nightclubs and limit their capacity to 75% in the case of outdoor spaces and 50% inside the establishments. Now the administration has until next Friday to present its allegations to the court