They consider that we are witnessing “the most serious suspension of constitutional rights in the history of our democracy”
A group of jurists filed a complaint this Sunday with theOmbudsmanrequesting that the decree of the state of alarm promulgated by the Government of Pedro Snchez due to the coronavirus pandemic be appealed to the Constitutional Court.
Experts consider that we are witnessing “the most serious suspension of constitutional rights in the history of our democracy on the occasion of the declaration of the state of alarm throughout the country.”
Specifically, the signatories – catechists of Constitutional Law, university professors, former judges and lawyers – request the Ombudsman,Francisco Fernndez Marugn,to formalize the immediate filing of an appeal of unconstitutionality and protection before the guarantee court against the regulations developed by the Executive since the state of alarm was declared on March 14.
The extensive complaint made, to which EL MUNDO has had access, is based on “grave concern at the deterioration of the Spanish system of freedoms” in the face of the “general, universal, and permanent suspension of fundamental rights enshrined in our Constitution “, which does not find” legal-constitutional coverage in the state of alarm “.
The signers of the document areCarlos Flores Juberas, professor of Constitutional Law at the University of Valencia;Carlos Ruiz Miguel, professor of Constitutional Law at the University of Santiago de Compostela;Carlos Vaquero Lpez, former judge, university professor and lawyer;Santiago Carretero Snchez, university professor and lawyer;Michael Angel Salom, social graduate and lawyer; and the lawyersRafael AbatiandSergio Nuo Dez de la Lastra.
The situation has “fit” in the state of exception
These jurists denounce that the decree of the state of alarm “has meant a serious general suspension of the fundamental right to free movement enshrined in article 19 of our Magna Carta by containing a global prohibition regarding situations, people and places, which is overflowing the normative provision contained in the Law for the assumption of the state of alarm. Therefore, with the suspension of the right to free movement, we find ourselves in a practical situation included in the event of a state of emergency “.
The experts maintain that although the legislator dedicated the definition of epidemic and sanitary crisis to the state of alarm, the implementation of the legal and legal mechanisms by the current Executive “greatly exceed” the provisions and limitations contained in that assumption, having a better interpretive fit in the state of exception for the suspension of fundamental rights.
“This constitutional excess of the norm provided for the state of alarm, when de facto a state of exception is being applied but without being approved, converts the suspension (not limitation) of the fundamental right to freedom of movement of all citizens in null and void, “indicates this group of jurists.
“A royal decree that steals competition from the Congress of Deputies to previously authorize the declaration of the state of exception to suspend fundamental rights, constitutes a flagrant violation of the constitutional framework and of our rule of law,” they continue.
“Article 9.3 of the Constitution expressly prohibits the arbitrariness of the public powers, which are subject to the same norms and laws that govern us as a whole of the State,” they warn.
Based on this reasoning, the experts in Law explain that the situation being “serious enough to have agreed the state of exception with all the guarantees that the law recognizes” and, on the contrary, when the measures adopted had not been taken atRoyal Decree 463/2020of March 14 and the subsequent regulations approved in that scenario, both the royal decree law and several of the ministerial orders issued are “unconstitutional and therefore null and void.”
Therefore, they argue, “it cannot escape the need to bring before the Constitutional Court, as the highest court of guarantees, the jurisdictional control of the regulations that approve the state of alarm.”
Likewise, they denounce that the current state of alarm has affected the suspension of the rights of assembly and demonstration, the paralysis of the normal functioning of the Congress of Deputies and the system of political control over the Executive, the suspension of the right to religious freedom, as well as the suspension of the exercise of the right to freedom of enterprise.
Lastly, in the complaint, they maintain that if the decree of the state of alarm and other approved regulations finally turn out to be “declared unconstitutional or contrary to the legal system,” the same applies to the sanctions derived from noncompliance with the orders of the competent authority in the state of alarm, which necessarily becomes contaminated and also becomes unconstitutional and, therefore, void “without the effect of the denunciations made by the agents of the authority” during the confinement.
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