Spain, Constitutional Court, 2 June 2022, Judgment 70/2022
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General Summary
The Aragon High Court of Justice launched a review of the constitutionality of Art. 10.8 of Law 29/1998, 13 July, of the contentious administrative jurisdiction act (amended to 3/2020, 18 September) which provided that the High Courts of Justice authorize or ratify the general scope of health measures that were restrictive of fundamental rights adopted by the regional Governments. The Constitutional Court had to assess the constitutionality of the judicial process created during the pandemic. It finally concluded that, though it sought to protect public health, the process infringed, not only upon the principle of a separation of powers - since it attributed a sort of executive function to the judiciary - but other constitutional principles as well (efficacy of administrative activity, the responsibility of public powers, legal publicity of legal acts, legal certainty). It was thus declared unconstitutional.
Facts of the case
Until September 2020, Law 29/1998, 13 July, of the contentious administrative jurisdiction act provided for the authorization or ratification of health measures that were restrictive of fundamental rights by the administrative Courts. The first measures adopted to manage the pandemic (lockdowns, curfews, etc.) were sometimes authorized or ratified and sometimes not. Not all the administrative Courts proceeded to apply the general scope of restrictive measures, considering that the authorization or ratification procedure provided by Law 20/1998 was only designed for restrictive measures affecting specific individuals. As a consequence, in the same Province or Autonomous Community, some restrictive measures were implemented and others were not. Aiming to resolve this problem of coherence and interpretation, Law 3/2020, 18 September introduced a modification to Law 29/1998. It stated that the general scope of restrictive measures of fundamental rights should be authorized or ratified by the High Courts of Justice (when adopted by regional Governments) or by the National Audience (when adopted by the national Government) in order to effectively be implemented. Measures restrictive of fundamental rights concerning concrete persons should be ratified or authorized by the administrative Courts. Thus, the aforementioned reform clarified two aspects: that the authorization or ratification process should also be followed when the general scope of restrictive measures came into play and that different judicial bodies were competent to do so depending on the territorial scope of the measure at stake. The government of Aragon, in October 2020, ordered a lockdown of the municipality of La Almunia de Doña Godina. As a restrictive measure of the fundamental rights adopted by a regional Government, it was submitted to the Aragon High Court of Justice for authorization or ratification. Within that judicial process, the regional Court launched a review of the constitutionality of Art.10.8 of Law 29/1998 (which provided for the authorization or ratification of the general scope of health measures that were restrictive of fundamental rights before the regional High Courts, after its amendment) before the Constitutional Court. It considered the obligation to be contrary to the basic principle of a separation of powers (Arts. 106, 103 and 117 SC).
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Individual / collective enforcement
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Reasoning of the deciding body
The Constitutional Court determined that submitting health measures of a general scope that are restrictive of fundamental rights to a judicial authorization or ratification process infringes upon the constitutional principle of a separation of powers. The judicial power is called, in such processes, to carry out functions that do not correspond to the judicial branch (Art. 117 SC). It also infringes upon the regulatory power attributed exclusively to the Government (Art. 97 SC), since health measures adopted by the latter (which are usually regulations) do not need to be complemented or authorized by the judicial power to be fully effective. This regulatory power cannot be shared between the judiciary and the Government, that is, the judiciary is not a co-governing party. It can only review the validity of such regulations a posteriori (Art. 106 SC) but not ex ante. This being so, the authorization or ratification process entails a confusion between the judicial and executive functions, depriving the Government of the regulatory power that it holds exclusively (Art. 97 SC) and also calls into question judicial independence (Art. 117.1, 124.1 and 127.2 SC), by holding it politically responsible (along with the Government) for the health measures adopted. In addition, it makes the exigence of political and judicial responsibilities difficult, thus infringing upon the principle of responsibility of public powers (Art. 9.3 SC) which is strictly linked to the principle of a separation of powers and full judicial review of administrative activity. In addition, the Court highlighted that the judicial process in question also infringed upon the constitutional principle of efficacy which determines the activity of the Administration (Art. 103. 1SC) and thus its regulatory power. Submitting health measures that are restrictive of fundamental rights to judicial authorization or ratification hinders and delays the implementation of measures aimed at protecting public health which are urgent and, in many cases, to be implemented immediately. Moreover, since the rulings which authorize or ratify such measures are not officially published -as happens with regulations that are norms- it is difficult for the citizenry to understand which measures they are subject to. Thus, the principles of publicity of legal enactments and legal certainty (Art. 9.3SC) are also violated. Finally, the Court explained that the authorization or ratification process for health measures of a general scope that are restrictive of fundamental rights also does not fit in Art. 117.4 SC. It stated that the law can expressly attribute other powers to the judiciary (not jurisdictional ones) ‘as a guarantee of some right.’ It should be noted that the ‘other powers’ which the Constitution alludes to cannot infringe upon the principle of a separation of powers or call into question the independence of the judiciary. In this case, the authorization or ratification process consists of an abstract and ex ante judicial control which would deprive the Government of its regulatory power and which makes the judicial power a co-governing party in health matters. Therefore, it cannot be said that the authorization or ratification process is a non-jurisdictional function that the law attributes to the judiciary as a guarantee of some rights.
Conclusions of the deciding body
The Court concluded that, although the legal reform carried out was protective, since it sought to safeguard public health, it did not fit well into constitutional provisions. The authorization or ratification process infringed upon the principle of a separation of powers, the regulatory powers of the Government, and the independence of the judiciary (Arts. 1.1, 97, 106.1, and 117 SC). In addition, it also violated the principle of efficacy of administrative activity (Art. 103.1 SC), the principle of responsibility of public powers, and those of the legal publicity of legal acts and legal certainty (Art.9.3 SC).
The Court declared not only Art. 10.8 of Law 29/1998, 13 July, of the contentious administrative jurisdiction act (which subjected restrictive measures of fundamental rights adopted by regional governments to the authorization or ratification of the High Courts of Justice) to be unconstitutional - which was being challenged - but also, given its close connection to the latter, Art. 11.1.i) of Law 29/1998 which attributed the same judicial control to the National Audience when the measures were adopted by the central Government.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Judicial dialogue
European Court of Human Rights Judgment, 9 March 2021, Bilgen vs. Turkey; 29 June 2021, Broda y Bojara vs. Poland; 15 March 2022, Grzeda vs. Poland.
Impact on Legislation/Policy
From the judgment, health measures restrictive of fundamental rights of a general scope adopted by different Governments (regional or central) were no longer to be subject to a judicial authorization or ratification process but directly implemented. They could only be challenged before the administrative courts once they were passed, that is, a posteriori. However, this ruling was released almost two years after the legal reform which created the legal process was challenged, at a moment when almost all restrictions had already been lifted.
Impact on national case law
This is the only ruling on the constitutionality of this new authorization or ratification process provided for health measures restrictive of fundamental rights of a general scope.
Other notes
On the general principles applied: Principle of the separation of powers, principle of efficacy of administrative activity, principle of the responsibility of public powers, principle of the legal publicity of legal acts, principle of legal certainty.
There were four dissenting opinions.
