Many doubts about curfew awaiting judges' decisions

BarcelonaIn spite of the fact that the Government says that from now on the restrictions will be known "with enough time", the reality is that it does not specify what measures it will present to the High Court of Justice of Catalonia (TSJC) next week in order to maintain them. This anticipation that the Generalitat has defended is forced because on Sunday 9 May the current state of alarm will cease to apply and the covid restrictions that affect fundamental rights will have to go before the judges. The curfew, the limitation of moving between territories, and the establishment of a maximum number of people in the meetings are the main measures that need judicial endorsement. In none of the three cases Home Affairs and Health have clarified what they want to do when the state of alarm is over.

The only thing they have repeated is that they want to have "the legal instruments" so that, "if necessary", the restrictions that go against the right of free movement and assembly can be applied. One of the "instruments" will be that the executive council will approve next Tuesday a modification of the decree law 27/2020. Thus the curfew will be incorporated into the Catalan law of public health: it will be collected that in pandemic, nocturnal mobility can be forbidden. But this approval of the decree law does not guarantee that curfew is shielded, because it will also have to go through the TSJC. "When the measures are limitations of fundamental rights, they have to be proportional", warns Josep Maria Aguirre, professor of administrative law at the University of Girona.

According to Aguirre, "it is not so easy" to argue in favour of curfew because he recalls that the Government banned last summer the consumption of alcohol on public roads and since then also keeps nightlife closed, which already limits the activities at night. "They have reiterated that curfew is effective but have not had to justify it at any time", he adds. One of the doubts about night-time lockdown is whether the TSJC, which will have to validate it for the first time, will accept it. Xavier Arbós, professor of constitutional law at the University of Barcelona, admits that curfew, which did not exist last summer, is "drastic because it affects everyone". Nor does he take it for granted that it will be "automatically ratified without further issues" by the judges.

Another of the doubts is the impact of the decree law of the Generalitat in the decision of the TSJC. Every time the Government agrees to new covid restrictions it makes a resolution - signed by the Health and Home Affairs Ministers - that is based on the Catalan public health law. It is true that after Tuesday the law will be reinforced, but this does not ensure that the curfew receives judicial approval. Given the uncertainties, the Generalitat does not rule out resorting to the so-called state of alarm "a la carte": asking the Spanish government to declare a state of alarm in Catalonia.

Disparity of criteria

The debate is open to all the autonomous communities. Arbós reminds us that it can also happen that in one place judicial authorisation is given to apply the measures and in another it is not because each High Court will take its own decision. In any case, he adds that it is up to the judges to assess whether it is a sufficiently serious situation affecting public health to be able to limit fundamental rights. Aguirre insists that the virus "does not act in the same way" in all territories: for example, in rural and urban areas there are differences, which will make it difficult to establish general restrictions.

It will be interesting to see what happens next saturday at midnight, because at that time the state of alarm will end. Therefore, if the Government has not asked to maintain curfew or if the TSJC has overturned the proposal, it will be the moment when free mobility at night will be restored after more than half a year.