The claimant brought an action before the Constitutional Court relying on the freedom of assembly (art. 21 Spanish Constitution), seeking for the adoption of urgent precautionary measures aimed at ensuring the celebration of a demonstration already organized by a Trade Union. The Spanish constitutional Court recalled its previous case law, according to which "the right set forth in Article 21 of the Spanish Constitution (SC) is not an absolute or unlimited right, but rather, like other fundamental rights, it may be subject to certain modulations or limits, including both the one specifically set forth in Article 21.2 SC itself -a disturbance of public order that endangers persons and property - and those others imposed by the need to prevent an excessive exercise of the right from coming into collision with other constitutional values” (Spanish Constitutional Court, 42/2000, February 14). Moreover, the Court recalled its judgement n. 195/2003, of October 27, (FJ 7), according to which the limits to fundamental rights must be necessary "to achieve the end pursued, taking into account the proportionality between the sacrifice of the right and the situation in which the person on whom it is imposed finds himself [...] and, in any case, respecting its essential content". As to the present case, the Court affirmed that the prohibition on holding the demonstration has a logical and necessary relationship with the purpose pursued by that prohibition: to prevent the spread of a serious illness, the mass transmission of which could lead to the collapse of public health care services. The Court concludes that the measure is adequate to the purpose sought by the limitation. The limits to the exercise of the right are imposed by the need to avoid that an excessive exercise of the right may collide with other constitutional values, which in the present case are the ones of life, health and the defense of a health care system whose limited resources must be adequately guaranteed. The Court stated that within the analysis of the proportionality of the measure several elements must be considered (e.g. the mode of demonstration chosen by the claimant; the impact of the COVID-19 infection in the city where the demonstration is to be done (Vigo); the impact of the demonstration on the free transit of medical vehicles etc). The Court rejected the claimants’ request for an urgent and precautionary measure.

Author
FRICoRe Research Fellow Chiara Angiolini — University of Trento

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