TC concludes that leaving the endorsement of covid restrictions in the hands of the TSJ undermined the effectiveness of the Administration

He says that demanding judicial authorization made it difficult to apply measures that were intended to be urgent to protect the population

MADRID, 10 Jun. (EUROPA PRESS) -

The Constitutional Court (TC) has concluded that the decision to leave in the hands of the Superior Courts of Justice (TSJ) the endorsement of the health restrictions approved by the autonomous communities after the end of the state of alarm declared by the coronavirus pandemic undermined the constitutional principle of effectiveness to which the actions of public administrations are subject.

This Friday the sentence in which the Plenary argues the ruling advanced on June 2 has been announced. In said resolution, collected by Europa Press, the magistrates have specified why they have annulled the reform carried out by the Government so that the TSJ were in charge of approving the health restrictions approved by the autonomous communities after the state of alarm was lifted .

The court declared unconstitutional and annulled said reform a week ago when estimating the question raised by the Contentious-Administrative Chamber of the TSJ of Aragon in relation to article 10.8 of the Law of the Contentious-Administrative Jurisdiction, drafted by the second final provision of the Law on procedural and organizational measures to deal with covid-19 in the field of the Administration of Justice.

Now, in a 51-page resolution, the magistrates have specified their arguments, among which they mention that the reform was an "undermining" of the constitutional principle of effectiveness to which the actions of public administrations are subject. This is because "the requirement for judicial authorization makes it difficult and delays the application of measures aimed at protecting public health that are intended to be urgent and therefore require immediate application."

As was already anticipated when the ruling was announced, the body has considered that the measure adopted "breaks the constitutional principle of separation of powers." As they have indicated, the judicial authorization of the general health measures provided for in the questioned article 10.8 caused "a reprehensible confusion between the functions of the executive power and those of the courts of justice."

In his opinion, this confusion "undermines both the regulatory power and the independence and reserve of jurisdiction of the judiciary, thus contradicting the constitutional principle of separation of powers, inherent to the social and democratic State of Law."

For the court, "the confusion is undeniable" because they are general provisions -- issued by the executive power -- that are imposed "on an indeterminate number of people for an indefinite period of time," but that "need the complement of the express authorization of a judicial body to deploy effectiveness".

Given this situation, the magistrates have explained that the constitutional principle of separation of powers "does not allow" that the legislator "converts a power attributed by the Constitution to the executive power into a power shared with the courts of justice that are members of the judiciary."

"The judiciary is not, in short, co-ruler or co-participant in the exercise of regulatory power. This power, which Article 97 attributes to the Government, is not, and cannot be, subject to permission or authorization from another power, since in such In this case, it would cease to be an exclusive constitutional power as it cannot deploy effects by itself", the Plenary has underlined.

According to the ruling, both the State Attorney's Office and the Prosecutor's Office opposed admitting the question of unconstitutionality raised by the TSJ of Aragon. Both defended the "full constitutionality" of the questioned precept.

The legal services of the State and the Public Ministry alleged, among other issues, that the TSJ of Aragón had not sufficiently motivated the question of unconstitutionality that it raised before the guarantee body.

The Plenary has rejected this argument and has reminded them that the burden of substantiation that is required of the judicial bodies "is not as strict" as the burden that falls on those who file an appeal of unconstitutionality.

"The relationship that is established between this Constitutional Court and the judges and ordinary courts that ask us questions about the constitutional validity of the laws is a collaborative relationship, aimed at ensuring the supremacy of the Constitution," the body stressed.

The decision of the Plenary to declare the reform of the Executive unconstitutional so that the TSJ were in charge of giving judicial endorsement to the health restrictions approved by the autonomous communities after the end of the state of alarm has had the particular vote of four magistrates.

Cándido Conde-Pumpido, María Luisa Balaguer, Ramón Sáez Valcárcel and Inmaculada Montalbán have recorded their discrepancy "both in the rationale and in the ruling" adopted. The four have considered that the mechanism chosen by the Government attributes to the judicial bodies a "function of judicial control" in "guarantee of the fundamental rights that find constitutional coverage in article 117.4 of the Constitution", in which they are delimited the functions of the courts and tribunals.

In 15 pages, the signatories have concluded that the measure "in no way undermines the independence or exclusivity of the jurisdictional function" nor does it affect the functions constitutionally attributed to the executive power in a way that can be considered unconstitutional.

Among other issues, the four magistrates have disagreed with the decision of the plenary session because, in their opinion, it ignores the context and purpose of the legislative reform, in reference to the pandemic caused by the coronavirus. Thus, they have highlighted that "at the time of approval" of the Law, covid-19 "had already caused tens of thousands of deaths in Spain".

In line, they have insisted that the legislator's intention to bet on a "counterweight to administrative discretion in a very sparse programming environment" and in a context in which fundamental rights were "at stake" should have been addressed.

"You may or may not agree with the regulatory option of the legislator, with its convenience or with its technical success, but in no case can it be denied that the function performed by judges and courts is a judicial function to guarantee fundamental rights. , different and that is not confused with the technical and political discretion subject to control", they have pointed out.

Thus, they have considered that the question of unconstitutionality should have been dismissed and that the compatibility of the reform with the Constitution should have been confirmed.