New headache for the Government of Pedro Sánchez. The appeal of unconstitutionality presented by Vox against the decree of the state of alarm, and that of the Madrid’s community Against the decision of the Executive to not allow the region to go to phase 1 before, they could lead, if they succeed in the courts, to a barrage of claims by citizens demanding that the State assume a patrimonial responsibility. And if that happens, it would generate more public deficit, something that is not contemplated in the forecasts.

That is the assessment made by the experts in law consulted by Bolsamanía. According to Juan José Guardia, professor of Administrative Law at the Abat Oliba CEU University, in the case of the appeal presented by the Executive of Isabel Díaz Ayuso before the Supreme there may be an economic consequence if the high court agrees with Madrid. “If you rule that the central government’s decision was illegal for lack of motivation or for a violation of the principle of equality that appears in article 14 of the Constitution, there may be patrimonial responsibility “.

If Ayuso wins, it would be understood that there has been a economic damage to the Community of Madrid, and citizens (natural or legal person) would have “one year to ask the administration for compensation for impairment of assets, “says Guardia. They will have to demonstrate that the decision made by Sánchez’s cabinet caused them such damage, but they can claim.

An idea with which Enrique Arnaldo, professor of Constitutional Law at the Rey Juan Carlos University (URJC), agrees. “There can be three consequences: that the Supreme determines the total nullity, the partial nullity or the validity of the act.” If there is nullity, total or partial, it may be due to lack of sufficient motivation (that does not exist) or because there has been a misuse of power, that is, “arbitrariness” by the central government and an “absolute injustice” of its decision of keep Madrid in phase 0 of de-escalation.

“Depending on what the Supreme Court decides, it could have future consequences for the Community of Madrid, for hoteliers, restaurants … that could hold the State Administration accountable in economic terms“explains this expert, who points out that if the high court determines that the decision was arbitrary and, therefore, there is no basis and there has been a misuse of powers that is not justified,” it could lead to someone exercising a criminal action against those responsible for not passing the phase. “They would be, he says, criminal actions brought against the Ministry of Health.

But not only Madrid residents could win with this resource from the Community of Madrid. The regional president herself also, at least in political terms. According to Guardia, the action he has taken in the Supreme will allow him access the full administrative file with all reports on which Health has relied to make the decisions of the phase change. “It is a way to get access to all the reports, because the Administration cannot refuse,” or he would face a penalty, he says.

By law, in the contentious-administrative procedures, the parties are obliged to provide and have access to all the documentation, so although it is a way that “is not fast”, Ayuso will use it to “argue his demand and to make politics”, affirms the professor of administrative law.

JUDGMENT WITH DECLARATIVE EFFECTS

As for the appeal that Vox has filed in the Constitutional Court against the decree of the state of alarm, and that has been admitted for processing, Arnaldo points out that now it must be processed and that “you have to hear the Government (State Advocacy) and the Chambers, which may present allegations, and then decide.” By the time this happens, it is very likely that the alarm state has already ended, so in your opinion the sentence will have “declarative effects”.

“It will not have executive effects, if it annuls something, some precept, but purely declarative. A pedagogical effect,” says the URJC professor, who believes that, in any case, it will “serve as a basis in case there are new alarm states. ” Although he emphasizes that, if the Constitutional ruling agrees with Vox, there may be derived actions: that a patrimonial responsibility against the administration, or that some individuals “promote other judicial processes”.

On this resource, Guardia acknowledges that there has been a great debate among experts in constitutional law, and “many understand that the Government has exceeded itself” because some of his decisions were more typical of a state of exception than of a state of alarm. As for example regarding movements, which many believe are not limited, but suspended, and that is done when there is a state of exception. “The problem is that the state of emergency gives Congress greater control power, and with the alarm the government has more freedom, that is why the alarm was declared,” said this expert.

As he explains, “if the Constitutional Court understands that any of the points or aspects of the decree are more typical of a state of emergency, it will agree with Vox and will declare it unconstitutional, and could determine that damage was caused to citizens, “remarks the professor. And if so, citizens could claim” patrimonial liability “for having suffered “economic damage that they had no legal obligation to bear”. If there are aspects that the court believes are not constitutional, “there will be potential compensation.”

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