WAS THE STATE OF ALARM INCONSTITUCIONAL?

When the Spanish government decreed the state of alarm in March 2020, certain fundamental freedoms and rights of citizens were restricted, such as:

1) limits were placed on public use of the roads or public spaces.

2) vehicular movement was restricted with the same exceptions as applied to the movement of people..

3) Roads or sections of roads were closed to traffic or restricted to certain vehicles for reasons of public health, safety or traffic flow. 

The ruling of the Constitutional Court of 14 July 2021 has an evident implication because the 3 annulled clauses imposed restrictions on very basic rights (the right of movement of persons and vehicles) and this raises two questions.

First, whether those who have failed to comply with the restrictions when in place, and who have been fined for such non-compliance, are entitled to have the sanction overturned and be restored to a legal situation as if the infringement had not been committed.

Ssecondly, whether those who did comply with the restrictions when in place have any right to compensation for the damage they suffered by complying with the orders issued by the Spanish Government.

The answer can be found in the ruling of the Constitutional Court itself:

1) This judgment is only applicable to legal proceedings in progress before any jurisdictional order (civil, criminal or administrative) in which there was no final judgment and therefore the judges are obliged to apply it and declare null and void fines and penalties that are the object of the legal proceedings.

2) With regard to legal proceedings already concluded with a judgment with the effect of res judicata that have actually taken place before the criminal or administrative Courts, these may be reviewed provided that in the latter case, their object is an administrative sanctioning action.

3) With regard to legal proceedings already concluded with a judgment with the effects of res judicata that have not actually been brought brought before the criminal or administrative Courts, or which when brought before the latter do not involve an administrative sanctioning action, these cannot be reviewed even if they are affected by the declaration of nullity of the rule declared unconstitutional.

Author: J. Escobedo

I am a member of the Tenerife Law Society since 1989 with a dedicated team for anyone who needs an immediate answer or long term solution to any practical or legal issues appertaining to any property or business investment in Spain. If you have decided to move to Spain to start a new life, whether that´s buying a property or a business, then you will definitely need the services of a good Spanish Lawyer who is fully conversant with Spanish protocol and who has a good command of the English language. I am based in the south of Tenerife and I am specialist in Property Law, Inheritance issues and taxes as well as Tenerife and Canarian law and a great deal more. ABOUT MY STAFF All my friendly and professional staff are fluent in English. We have been working for foreign clientes for over 30 years in Tenerife, providing legal advice and litigation services to all our clients investing throughout the whole of Spain and we pride ourselves on providing a high quality service to our clients in the form of clearer communication and advice.

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