Spain, Constitutional Court, 14 July 2021, Sentencia 148/2021
Case overview
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Further areas addressed
- Education
- Freedom to conduct a business
- Health and freedom of association/public gathering/religion
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
General Summary
The appeal of unconstitutionality which has been lodged by more than 50 deputies of the Vox parliamentary group has challenged some of the restrictive measures of fundamental rights provided for in the Royal Decree 463/2020, of March 14, which has declared the state of alarm to deal with the C ovid-19 pandemic , and others, which extended the aforementioned . Apart from the violation of Arts. 55.1 (suspension of fundamental rights under the states of exception and siege) and 116 SC -Spanish Constitution- (emergency states), the appeal has put forward the violation of: the freedom of movement (Art. 19 SC), the right to personal freedom (Art. 17 SC), the rights of assembly and demonstration (Art. 21 SC) and the principle of sanctioning legality (Art. 25 SC) regarding Art. 7 of Royal Decree 463/2020 (lockdown); the right to education (Article 27 SC) regarding Art. 9 (educative containment measures); the right to work (Article 35 SC); the freedom to conduct a business (Art.38 SC) regarding Art.10 (commercial activity containment measures) and the right to religious freedom (Art.16 SC) regarding Arts. 7 and 11 (religious containment measures). Appellants have not challenged the declaration of the state of alarm, but they have just claimed the declaration of unconstitutionality of some of the measures adopted under it. The Constitutional Court, nonetheless, has considered them all constitutional except for the general lockdown (art.7) and the Section 6 of Art.10 of Royal Decree 463/2020 (introduced by Royal Decree 465/2020, 17th March 2020), which have empowered the Head of a ministerial department in order to reduce the fixed margins through which the freedom to conduct a business was maintained. The claim has been , therefore, partially upheld.
Facts of the case
The first wave of the Covid-19 pandemic has led to the adoption of the Royal Decree 463/2020, March 14, which declared the first nationwide state of alarm for the management of the Covid-19 crisis, the constitutional emergency state designed to deal with health crisis such as pandemics, according to art.4b of the Organic Law 4/1981, June 1, of the alarm, exception and siege states (LOEAES). It came into force from March 14 to June 21, 2020. The initial duration of that first Royal Decree was of 15 days, according to art.116.2 SC, being subsequently extended, thanks to the approval of the Congress, through others until late June. Aiming at protecting public health, it has included different restrictive measures of fundamental rights which, at least some of them, have suffered modifications due to the evolution of the pandemic. The most well-known and severe was the confinement of the population. More than fifty deputies of the VOX political party have challenged, before the Constitutional Court, the constitutionality of some of them. Since the Royal Decrees declaring the state of alarm have a legal category , not being thus mere regulations, they could not be appealed before the Supreme Court, but only before the Constitutional Court, as the latter had stated some years ago (Constitutional Court Judgement 83/2016, April 28)
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
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Reasoning of the deciding body
Most of the health measures challenged have been declared constitutional. The Court has considered that they have an appropriate legal basis (rule of law principle), i.e. , that they are included within the scope of the LOEAES (particularly, its art.11) and they are proportionate (proportionality principle). That has been the case of the containment measures in the fields of education (suspension of students' personal attendance at educational establishments) and religion (social distance measures regarding the attendance at places of worship and religious ceremonies).
Regarding the containment measures in the field of commercial activity, the Court has stated that they pose very intense and temporary restrictions on the business activity, but has concluded that such restrictions have been based on the LOAES and have not been disproportionate. However, the Court has declared the unconstitutionality of Section 6 of Article 10 of Royal Decree 463/2020 (introduced by Royal Decree 465/2020, March 17, 2020), which had empowered the Head of a ministerial department to reduce the previously fixed margins in which the freedom to conduct a business was maintained. This provision has allowed the Government to restrict the right to freedom to conduct a business (through subsequent rulemaking based on the state of alarm) beyond what was provided for in Paragraphs 1, 3 and 4 of Article 10 of Royal Decree 463/2020 without the constitutionally required accounting to the Congress of Deputies. Ex post approval by the Congress is needed only in respect of the declaration and extension of the state of alarm, but not in regarding administrative regulations adopted on the basis thereon.
The most relevant part of the judgement has been, therefore, the declaration of unconstitutionality of the general lockdown of the population. In this regard, the Court has recalled that the suspension of fundamental rights can only take place under the states of exception and siege, allowing the state of alarm the imposition of mere restrictions only. On this basis, it has tried to distinguish the concepts of ‘limitation’ and ‘suspension’, explaining that the former is the generic termn and the latter the most specific one , and that therefore a suspension constitutes a qualified limitation. It has amounted to a cessation, even if temporary, of the exercise of the fundamental rights and its safeguards. The Court has thus adopted a material concept of suspension. This being the case, a norm that banned the movement of all people, anywhere and at any time, except in cases expressly considered as justified (lockdown), has implied a suspension of the right to freedom of movement (art.19 SC), something not allowed under the state of alarm.
At the end of the judgment , although this particular issue has not been challenged by the appellants, the Court has explained that it should have been the state of exception the one declared and not the state of alarm, as it finally happened. It has considered that the emergence of the Covid-19 pandemic has called into question the public order -the enabling clause of the state of exception- and has demanded suspensive measures of fundamental rights.
Conclusions of the deciding body
The Constitutional Court has declared unconstitutional the sections 1,3,5 of the Art.7 belonging to the Royal Decree 463/2020 (lockdown), since they have suspended the freedom of movement, and the terms “modify, extend” of section 6 of Art.10, introduced by Royal Decree 465/2020. The rest of the measures have been declared constitutional. Regarding the effects, the Court has stated that the declaration of unconstitutionality can create the review of the criminal or administrative sanctions stemming from the breach of the rules declared null and void , in case they had been the sole basis of the sanction. The review can lead to a reduction of the penalty or to an exclusion of the responsibility. The declaration of unconstitutionality, however, will not allow claims engaging the liability of the administration.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of movement of people, goods and capital
- Freedom of religion
- Freedom to conduct a business
- Political rights
- Right to education
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of movement, Art. 19 Spanish Constitution (SC);
- Right to personal freedom (Art. 17 SC);
- Freedom of assembly and demonstration (Art. 21 SC);
- Right to education (Article 27 SC);
- Freedom of religion (Art.16 SC).
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
- Health v. freedom of association / public gathering
- Health v. freedom of religion
- Health v. right to education
General principle applied
- Rule of law
- Proportionality
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court has applied the proportionality principle. In particular, it has analyzed whether the measure is adequate - eager to reach the aim proposed-, necessary -whether there are not any other restrictive measures of fundamental rights to achieve the same purpose - and strictly proportional -the benefit provided by the measure should be greater than the damage caused-.
Judicial dialogue
The Court has referred to the Decision of the European Court of Human rights Terhes vs. Romania, May 20, 2021.
Impact on Legislation/Policy
The decision has not resulted yet in a change in legislation or governmental policies.
Impact on national case law
The decision has addressed for the first time the distinction between limitation and suspension of fundamental rights. There is no previous case-law on this matter.
