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The Justice authorizes the Generalitat restrictions but only until May 24

May 07 from 2021 - 14: 20

The Fourth Section of the Contentious-Administrative Chamber of the Superior Court of Justice of the Valencian Community (TSJCV) has authorized the limitations on night mobility, social and / or family gatherings and capacity in places of worship agreed by the Generalitat Valenciana this Thursday before the end of the state of alarm.

The magistrates limit the validity of these restrictions to the period between May 9 and 24 - not until May 30 as requested by the Administration - and establish that the evolution of the pandemic and the rate of vaccination will determine " the need -or not- of its extension or the adoption by the competent authority of measures of greater laxity in the affectation of fundamental rights ”.

The authorized measures consist of the limitation, with exceptions, of the movement of people between 00.00:6.00 and 10:75, the limitation of groups or meetings of a family and / or social nature to a maximum number of XNUMX people and the reduction to XNUMX % of capacity in places of worship.

The order of the Court states that Organic Law 3/1986, on Special Measures in Public Health Matters, provides "sufficient regulatory coverage for the adoption of limiting health measures - not suspensive - of fundamental rights and freedoms."

However, the Chamber considers that it would be "desirable" a "suitable and ad hoc normative production that solves the interpretive problems that we find ourselves with and avoids the consequent contradiction of criteria that we witnessed in its day and we are bound to repeat in this moment of termination of the state of alarm ”, a legislative intervention such as the one that already occurred at the beginning of the pandemic“ by several countries in our geographical and cultural environment ”.

The TSJCV reiterates in its resolution the arguments that it already presented in a previous order, dated October 27, 2020, by which it ratified similar measures approved by the Generalitat before the declaration of the state of alarm.

In the judgment of the magistrates, the measures whose authorization is intended only suppose "the restriction or limitation of freedoms and fundamental rights, not the suspension of them."

Along these lines, they recall that the Constitutional Court "admits the establishment of specific measures limiting the effective exercise of fundamental rights without necessarily having to resort to the so-called right of exception."

The Chamber understands that the measures approved by the resolution of the Conselleria de Sanidad Universal on May 6 comply with the "suitability judgment", since "they are capable of minimizing these sources of contagion and, therefore, their effects." In other words, “these are measures capable of achieving the proposed objective”.

They also meet the "judgment of necessity", as they are "essential if the objective of reducing or -at least- minimizing the increase in virus transmission is to be achieved."

Finally, they are "provided in the strict legal sense", since they not only offer "advantages for the general interest", but also due to the time slot they involve and the important exceptions that include "minimizes their impact on economic activity.

"What it is about is to avoid a disruptive factual situation that could ruin the epidemiological situation that our Community currently has," conclude the magistrates. The judicial resolution can be appealed in replacement before the same Chamber within a period of five days.

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