Without a state of alarm and without having made this legislative adjustment, we have in our legal system Organic Law 3/1986 on special measures in the field of public health. This standard allows health authorities to take control and prevention measures when necessary for health, emergency or necessity, but is limited to a range directed directly to the centre of gravity of transmission. The Balearic Islands are an example of this. The government of Francina Armengol has decided that the curfew should last until May 23, among other things. Islanders cannot travel from 11 p.m. to 6 a.m. Well, recently, the Supreme Court of the Balearic Islands approved the measures, and it will be the first municipality in Spain that will have a curfew after the state of alert. However, the defence clarified that the sanction was null and void because of the unconstitutionality of Article 7 of the decree authorizing the state of alert and establishing home placement. Although they are more painful for the political class, restrictions on rights must be justified and individualized as much as possible, perhaps so that the state of alert is no longer applied, but Organic Law 3/1986, of 14 April, on special public health measures.
What are the measures declining? The most important ones that affect mobility. Without an alert, there can be no curfew or regional closures. What happens after the exception? That is the big question. The answer lies in the autonomous communities, which now have the power to continue to act if they so wish. In my opinion, recourse to a state of alert whenever a circumstance such as last year`s arises is not the best legal option, except in cases where a general restriction of fundamental rights is fully justified. Other developed democracies have intervened with titles provided for in their health legislation without triggering a state of emergency. A minor fined 601 euros for skipping house arrest during the first state of alert said goodbye to punishment yesterday after a Madrid court lifted the fine in response to the Constitutional Court`s decision annulling the placement. This could be another of the doubts that exist once the state of alarm dissipates. Do I have to wear a mask? The answer is yes. The government has established by law the mandatory use of masks in any public space, whether there is a distance or not. This hypothesis is contained in Law 2/2021, of 29 March, on urgent prevention, containment and coordination measures to manage the health crisis caused by Covid-19. The state of alert, like other states of crisis, serves what it serves.
This is an immediate, agile and temporary (very temporary) response to extraordinary, unforeseen and extremely serious circumstances such as Covid-19. However, the time saved with successive declarations of a state of alert has not been used to implement the necessary legislative reforms that would provide our health system with tools to respond and act on episodes like the current one. We consulted various legal experts to ask them if there are other effective legal instruments to contain the pandemic and if the restrictions can continue to apply. The government, meeting in an extraordinary Council of Ministers chaired by President Pedro Sánchez, authorized the declaration of a state of alert throughout the national territory for a period of fifteen days in order to deal with the health emergency caused by the coronavirus COVID-19 in Spain. The report of the Council of State of 22 March 2021 notes that the fact that no state of alert is in force does not mean that the health authorities are unable to agree and take the measures they deem appropriate to combat the pandemic within the framework of the health legislation in force. This Sunday, May 9, the state of alert in Spain ends. An exception that has allowed restrictions on fundamental rights such as night mobility with curfew or fence on the national territory. In any event, the legally appropriate legal framework for the implementation of restrictive measures is the state of alert ordered by the government under Article 116 of the Spanish Constitution. This can be applied territorially, for example for an autonomous community, if there is an urgent health situation that requires it. The pandemic has highlighted the relative ineffectiveness of some legal instruments, mainly because they were developed in the belief that they would never be used.
This is the case with the crisis situations of Article 116 of the EC Treaty and, as far as we are concerned, with the state of alert. The instrument has proved useful, the problem is that the legislative apparatus is not prepared to deal with the normal management of a situation such as the one we are currently experiencing. It is not wrong to say that the state of alert could be extended. Article 116 of the Constitution does not prohibit any prohibition. Based on the development of the vaccination schedule and its evolution in the population, we will see if this is still necessary. In any event, it must comply with the relevant constitutional requirements. The government cannot declare it for more than fifteen days and must communicate it and obtain the express authorization of the Chamber of Deputies, which could refuse it. The state of alert can be applied throughout the country or only partially, as happened on October 9, when Pedro Sánchez`s executive implemented it only in the Community of Madrid and rejected it yesterday at 16:47. In view of the restrictions on fundamental rights they entail, they can only be adopted if they have sufficient constitutional and legal effect. It is therefore doubtful whether the autonomous communities can adopt them in a generalized manner outside the state of alert. In any case, the above-mentioned measures adopted by the self-government authorities should be ratified by a judicial decision (of the corresponding Supreme Court) if such a possibility is accepted.
The decision not to extend the state of alert means the disappearance of the legal basis that until now allowed the suspension of rights such as freedom of movement. The autonomous communities, true stewards of the fight against Covid-19, are forced to take measures that restrict or suspend rights when they deem it necessary, without legal cover and therefore ultimately subject to judicial approval. The fact that the state of alert is easing does not mean that we are powerless or that our authorities cannot act to fight the pandemic. However, the legal framework becomes much more complex and uncertain because these instruments or instruments of intervention for communities disappear and because the effectiveness of any measure adopted is subject to prior approval or judicial ratification. Therefore: is the curfew legal after the state of alert? No, because it is an exceptional measure that restricts fundamental rights. Of course, the autonomies that want to continue to have it will have to wait and see what the higher courts decide. In this regard, Judge Jesús Torres Martínez told EFE on Tuesday that a judgment of unconstitutionality binds all public authorities, including judges and courts, which, since the publication of the resolution of the Constitution, must resolve any legal procedure compatible with the fact that house arrest is not valid; That is, they must «act as if the law never existed.» For all these reasons, and given the situation we should find ourselves in on 10 May, it seems appropriate to accept a further extension of the state of alert (from 15 days to 15 days, as stated in the Constitution). With regard to the debate on the most appropriate legal framework after the end of the state of alert, certain changes to the basic public health legislation (in its version of the organic law and general law) would give health authorities greater ability to limit certain interventions. In my opinion, we should calmly reconsider this whole issue and introduce more legal certainty. One possible solution would be to reform the state of alert and the law on special measures in the field of public health through an organic law aimed at regulating health emergencies in the latter and separating pandemics from the state of alert. Apart from the exceptional states provided for by the constitution in their art.