The Constitutional Court (TC) has unanimously annulled several provisions of the decree-law 5/2021 of the Balearic Islands, enacted in May 2021 by the autonomous government under the presidency of Francina Armengol, considering that they violated fundamental rights by imposing restrictions such as curfew, prohibition of meetings, limitation of travel, testing of people with symptoms and mass screenings. The court emphasizes that these rights can only be regulated by an organic law approved by the Cortes Generales. The ruling responds to the appeal of unconstitutionality filed by Vox deputies, who questioned Article 1 of the decree-law, which established sanctions for non-compliance related to anti-COVID measures. According to the resolution, drafted by the magistrate Laura Díez, the provisions of the Balearic decree were “almost identical” to those of the Galician health law, which on November 5 was also declared unconstitutional.
Limitation of fundamental rights
The court states that the measures approved in the Balearic Islands affected rights enshrined in the Spanish Constitution, such as the right to life, liberty, honor, personal privacy and peaceful assembly. In addition, it declares null and void the restrictions on mobility, the curfew and the limitations on both public and private meetings. Likewise, the TC invalidates provisions that allowed the Consell de Govern Balear to suspend activities, intervene material resources and limit opening hours of establishments. It also considers unconstitutional the possibility of carrying out massive diagnostic tests or collective screening of people with symptoms of COVID-19. On the other hand, the Constitutional Court rejected the appeal in relation to paragraphs 2 and 3 of the decree-law, which reproduced measures already provided for in Organic Law 3/1986 on special measures in the field of public health. The doctrinal change of the Constitutional Court in its ruling on the Galician law of November introduced the need for a state of alarm to agree restrictions such as these, but in the Balearic case, the court has limited itself to consider the technical nature of the regulations, achieving the consensus of the 12 judges.
