Fighting COVID 19 – Legal Powers and Risks: Spain
Alba Nogueira López · intR2Dok (Staatsbibliothek zu Berlin) · 2020
A global health crisis, broadcasted almost instantly, arguably ensures that most citizens accept health recommendations responsibly, and no coercive measures are needed for them to take precautions.In fact, the first decisions made by the Spanish health authorities with respect to COVID-19 were passed through documents with no regulatory value.However, the rapid spread of the epidemic forced these authorities to increasingly restrict various fundamental rights and freedoms.Three major legal issues arose then: firstly, whether the ordinary provisions of the health legislation were sufficient to deal with this crisis or emergency powers should be triggered; secondly, whether the central government should have powers devolved to better manage the crisis; and, thirdly, under which conditions and to what extent the government may restrict constitutional rights by virtue of these emergency powers. Regional health measuresIn Spain, health services lie within the responsibility of regions (Comunidades Autónomas).Although the central government can pass basic regulations with minimum common standards and coordinate the health system, it only has executive powers over transborder health issues (e.g.airport entrance control).The first measures to fight COVID-19 were adopted on the 9th of March 2020 by the Interterritorial Council of the National Health System, which the Ministry of Health and regions are part of.Such measures were limited to areas where community transmission was significant (region of Madrid, the city of Vitoria and the small town of Labastida).In these areas, school activities were suspended and social distancing was established in the educational and work environment.Between the 8 th and 13 th of March, all regions took executive measures, as they were increasingly affected by the expansion of COVID-19.Large social gatherings and face-to-face educational activities were suspended.Sanitary recommendations on hygiene and social distancing were issued.In some cases, more invasive measures, such as forced medical controls, quarantines, requisition of sanitary supplies, takeover of private hospitals and regulations on the working conditions of health and emergency personnel, were also taken.Under Spanish law, restrictions on constitutional rights need to be proportionate and provided for by parliamentary law.Moreover, when it comes to restrictions on the so-called fundamental rights (as freedom of movement), this law must be a state organic act (ley orgánica).Both central and regional law contain several provisions that meet those constitutional requirements and enable to take the abovementioned