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State Advocacy: "An indispensable measure with no possible alternative"

2021-07-20T03:37:49.585Z


The Government relies on the European Convention on Human Rights to defend the confinement annulled by the Constitutional Court


The State Bar, representative of the Government in the process opened in the Constitutional following the appeal presented by Vox against the decree of the state of alarm, defended that there was no suspension of rights as the Court has estimated, but a limitation of rights supported by both national and international jurisprudence.

"Article 7 establishes a limitation of the mobility of citizens, necessary to prevent the spread of the disease, which limits the exercise of the right to freedom of movement without suspending it," says the State Attorney.

The Government indicated that although the measures were "especially intense" they were adopted with "scientific criteria due to the rapid contagion capacity", and that it was a restriction "not of political origin but of health".

"Some of the measures adopted", they admit, "appear in the state of emergency, but from a different perspective, that is, the maintenance of public order."

The Constitutional Court ruling did consider that as a consequence of a “very high intensity” restriction of rights, a serious alteration of public order took place in Spain, which would have legitimized the declaration of a state of emergency.

The State Bar exposes other reasons to support the legality of the measures taken.

These are:

-

Non absolute measurements.

Mobility allowed.

"The measures have not been absolute but have allowed from the first moment the mobility of people in the cases provided for in the royal decrees in order to meet basic needs."

-

Conditioning of freedom of movement.

“The measures of article 7 do not constitute suspension of the right but rather a general conditioning of the freedom of movement through the spaces of public use, subject to the existence of an essential or justified cause, with an open regime in which the motive is expressly contemplated 'the situation of need 'and' any other activity of a similar nature ', being to compare for these purposes article 11 of Organic Law 4/1981 (state of alarm) and article 20 of the same law (state of emergency), in relation to the requirement, in this second case, of the need for accreditation of people if they move from one place to another, indicating the itinerary to follow, as well as the need, in certain cases, to require communication two times in advance. days of displacement out of town.

-

The endorsement of the European Convention on Human Rights.

"The European Convention on Human Rights and Fundamental Freedoms provides (article 2 protocol 4) the limitation of the right of mobility for reasons of public health, which is indicated for the purposes of the provisions of article 10.2 of the Constitution (" the relative norms fundamental rights and freedoms recognized by the Constitution will be interpreted in accordance with the Universal Declaration of Human Rights and international treaties and agreements on the same matters ratified by Spain ”). The measures of article 7 are covered by this provision of the agreement and by the jurisprudence of the Constitutional Court ”.

-

Indispensable measure with no possible alternative.

"The Government, the competent authority in the state of alarm, after making the corresponding weighting, has concluded that establishing these temporary limitations, with exceptions, is an indispensable measure, without a possible alternative, to protect public health, and a measure that does not disproportionately sacrifice freedom or make the right unrecognizable ”.

-

Proportionality.

“Thus, all the requirements meet, according to the proportionality test to apply the adopted measures:

1.- The measures are provided for in a Law (Spanish Constitution and Organic Law 4/1981) and in successive royal decrees that declare and extend the state of alarm, without doubting its legitimate purpose.

2.- They have been effective for the purpose pursued, according to the report provided.

3.- They have been adopted in almost all the countries of the world, without any state knowing the development of the disease beyond its dramatic deadly consequences.

All this proves that, no matter how intense the limitations, they are completely justified and have been proportionate and reasonable, as shown by the fact that they have prevented both infections and, above all, deaths ”.

Source: elparis

All news articles on 2021-07-20

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