First blow to the government of Pedro Sánchez from the Constitutional Court (TC), which is theoretically adapted to its needs. The magistrates of the court of guarantees concluded that the government would have allowed the 8-M concentration called for by UGT and COO in 2021 during the ‘third wave’ of the COVID-19 pandemic. This is the first time that the Constitutional Court has endorsed a demonstration of absolute alarm and divided it. The magistrates who voted in favor of the estimate of the amparo appeal were the conservatives Ricardo Enríquez, César Tolosa, Enrique Arnaldo, and Concepción Espejel, as well as the progressives Ramón Sáez, Juan Carlos Campo, and María Luisa Balaguer.
Therefore, the decision adopted this Tuesday has seven votes in favor and four against, without the votes corresponding to seven members of the progressive bloc and four of the conservative bloc. In particular, those who supported the government’s actions were the president, Cándido Conde-Pumpido, Vice President Inmaculada Montalbán, and Judge María Luisa Segoviano, all from the progressive wing.
Legal sources indicate to Europa Press that the Plenary rejected the draft of the sentence written by the progressive wing magistrate Laura Díez, which suggests rejecting the appeal for protection presented by the UGT. Therefore, the court agreed to appoint Judge Ramón Sáez as a new rapporteur to prepare another decision that reflects the majority opinion, that is, in support of the union’s appeal.
So, It is expected that the Plenary will soon consider the appeal for protection presented by the unions against the decision of the Executive delegate of Madrid, José Manuel Franco, to ban “for reasons of public health” the concentration calls for that 8 a.m. between 11 am and 2:30 pm in the Plaza de Cibeles, which they estimate can be Up to 250 people attended. The TC judges agreed with the union by considering that the executive ban violated their fundamental rights and would have allowed concentration.
The government argued that at that time Spain was facing “an unprecedented health crisis” and to an extraordinary extent and severity” due to the “high number of citizens affected” by the coronavirus and the risk of infection, to which is added “the resulting pressure on health services” and “the high cost of social and economic gains in preventive measures.
Appeal to the union
The delegate of the Government of Madrid also highlighted the “clearest” reason in the precise context that, “after the consequences caused by Christmas family gatherings”, we are facing “the result of the ‘third wave’, if possible, with greater virulence than the former. Then, the situation in the Community of Madrid was classified as “extremely dangerous.”
The unions appealed to the Superior Court of Justice of Madrid (TSJM) because the fundamental right of assembly, included in Article 21 of the Constitution, was violated and that it was not a “massive gathering” because it was “limited” to 250 people, so they claim the risk of running is “minimal.” The TSJM agreed with the government delegation, arguing that “the arguments and considerations made by the administration in support of the appealed resolution constitute convincing and necessary reasons to justify the restrictions imposed on the exercise of the right of assembly.” Consequently, the UGT knocked on TC’s door, arguing that the proposed concentration was a “harmless act for public health,” as neither the government delegation nor the TSJM offered alternatives.
The decision adopted on Tuesday is contrary to the one issued on May 24, when the same TC endorsed the government’s decision to ban a march called to the Andalusian Parliament in Seville on April 30, 2020—during the first state of alarm due to COVID-19—to prioritize the right to health protection and the right to life. In this case, the magistrates explained that the ban had additional benefits for the general interest (prevention of the spread of disease), which harms the compromised right.
Thus, they remember that, at that time, the form of contagion of COVID-19 was unknown, and there has been a significant increase in the number of deaths and illnesses. They also remember that social distance and masks are the only instruments to defend citizens against the coronavirus. In particular, they emphasize that until the end of December 2020, Spain will have the first vaccines against the virus.
