The Constitutional Court has granted protection to the workers' commissions in the appeal filed by the union against the ban on demonstrations on March 8, Women's Day 2021, the second year of the Covid-19 pandemic. A year earlier, complaints had been lodged against the then government delegate in Madrid, José Manuel Franco, for allowing similar concentrations, which led to the suspension of union meetings given the serious risks in the first months of the Covid-19 pandemic. The criminal investigation was eventually archived.
CC OO, in turn, then filed a lawsuit alleging violation of fundamental rights, in particular the rights of assembly and demonstration, and the Constitutional Court finally agreed to this two and a half years later, since it viewed the mergers as “no” when they were announced. There were reasons for them maintaining the restrictions that were just as important as those of the first state of alarm.
Union sources underline the importance of this ruling because of the protection it brings to the right to demonstrate. The same sources add that the interest of this resolution is not limited to the specific case resolved, but that the doctrine approved by the Guarantee Authority will make it possible to defend the prevalence of this right in other situations that, regardless of whether they involve a related or unrelated, propose health risks, propose administrative decisions that restrict the right to peaceful assembly or demonstration for any plausible reason.
The judgment states that in order to assess the seriousness of the danger, attention must be paid to the circumstances that occurred at the time the decision was challenged, which in 2021 would already have been significantly different from those that would have given rise to the determination of the first state of alarm year before. In this sense, the ruling assumes that the population in 2021 “has become accustomed to life with the pandemic and has learned to protect themselves with masks and interpersonal distance wherever possible.” It adds that “people wore masks, which were mandatory even in closed spaces and in open spaces when the distance could not be maintained” and that “the full vaccination plan had been implemented for the over 80s, which ” they were.” The part of the population most affected by the high mortality that the pandemic caused in the first moment.” And the resolution also highlights that “there were mechanisms for detecting contagion that allowed those who “All of this, according to the ruling government, “allowed those who took part in the demonstration to remain healthy.”
However, the court debated the issue intensively, as there were head-on opposing positions within the court, as already happened when a similar appeal by the UGT to a ban on demonstrations was decided last November and whose challenge was also accepted by the court. Opposite the majority of judges from the progressive group who defended the supremacy of the right to demonstrate in the face of a pandemic that could no longer be combated with curfews, two of the judges from this bloc – Laura Díaz and María Luisa Segoviano – have cast a dissenting vote against the verdict and considered that priority should be given to the best guarantee of the right to health.
In turn, three judges from the conservative sector – Enrique Arnaldo, Concepción Espejel and Ricardo Enríquez – defended – in line with the ruling but with different arguments – a simultaneous vote in which they disagreed with the importance that the decision attaches to improvement agree with the health situation arising from the evolution of the Covid-19 pandemic itself in 2021, “to the point of making it the real reason for the decision to the detriment of the application of the consolidated constitutional doctrine in this matter”, to defend the right to health. And they also believe that the government's decision was not disproportionate, but that there were “options for further developing the law that were less harmful or infringing on the fundamental right to assemble and demonstrate.”
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