Nudists in Barcelona’s Picornell Pools.Joan Guerrero
The Civil Chamber of the Supreme Court has issued a ruling that prevents the statutes of a neighborhood community from mandating the practice of nudism to allow access to certain common areas of the urbanization, such as the pool and gardens. The complaint was made by a group of residents who did not agree that such a rule, which imposed the practice of nudism, could deny their presence in these public areas, which were thus reserved for naked people only. The community came to guarantee this through security guards who had to check the nudity of the participants.
The building consists of a block of flats for holiday use, located in an urbanization where the community of owners had declared the naturist practice essential to access the common elements mentioned above. The Court of Jaén, which heard the case at first instance, and the Provincial Court had dismissed the complaint of the dissatisfied owners, after finding it proven that there were unanimously adopted laws requiring nudism in order to achieve the common elements mentioned above enjoy.
However, the First Chamber admits that there is a manifest error in the assessment of evidence supporting this conclusion, since a simple reading of the Community Protocol provides evidence that the Statutes in question were not approved and in the judgments rendered in other previous proceedings did not address this issue. And given this lack of foresight in the statute justifying the deprivation of enjoyment for the clothed co-owners, the sentence understands that “the imposition of nudism violates the right to equality, implies discrimination against plaintiffs because of their ideas and thoughts, and on their freedom of movement and respect their right to privacy”.
Consequently, the plaintiff owners’ appeal is upheld, a decision based on the criterion that it is not possible to arbitrarily prevent the plaintiffs from having access to the facilities by using force and hiring private security services, in the horizontal ownership regime on common elements if they do not practice nudism. The court stressed that this practice “is a perfectly legitimate and legitimate personal choice, but the exercise of which cannot be unreasonably required”. The judgment establishes the violation of the aforementioned fundamental rights and sets compensation for non-pecuniary damage of EUR 1,000 for each plaintiff.
The sentence encompasses various conflictual episodes in the same community and, after their account, adds that “what has been reported so far would not cease to be a constitutionally meaningless neighborhood conflict if this were not the case. By excusing the content of this statute, the defendants intend to stubbornly and sometimes violently impose the practice of nudism on all residents, so that those who do not practice it cannot use the common areas of the urbanization and in particular its swimming pools.” . And it goes on to emphasize that “in other words, the defendants, in an absolutely unusual way, want to force the owners who want to use the common areas of their co-ownership to move out”.
In order to better justify the acceptance of the lawsuit, the court also emphasizes that “the climate created is therefore unbearable” for the applicants “and many other neighbors who are harassed, coerced and discriminated against for no other reason than being practitioners of nudism”. Finally, he mentions that through his interpretation of the statutes and the purpose of the community, the plaintiffs’ presence in “their vacation home has changed from a place of rest to a place of suffering”, which the judgment aims to bring to an end.
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