El Estado de Derecho frente al COVID: reserva de ley y derechos fundamentales

Abstract

The scope of this study is to critically analyze the constitutional fit of the numerous measures restricting freedom - the right to free movement and assembly, fundamentally - that have been approved in the context of the fight against COVID 19. It is not discussed that, in most cases, they are necessary measures, but the way and the form in which they have been adopted are. The main legal objection to the way in which the fight against the pandemic has been carried out is that the reservation of law has been violated and with this the principle of legal certainty has also been damaged. The study follows the following scheme: in the first place, the constitutional meaning and scope of the reservation of law according to the doctrine and consolidated jurisprudence of our Constitutional Court are exposed; secondly, it examines whether the law of normality (specifically LO 3/1986 on Special Measures in Public Health Matters) satisfies or not the requirements of this reservation in order to establish limitations of fundamental rights in a general way; thirdly, it examines whether within the crisis or emergency law, the different measures adopted have adequate coverage in the state of alarm or some of them would have required to activate the state of exception; finally, it critically exposes the violation of the reserve of law that has meant the delegation of the competence to adopt restrictive measures of rights in members of the Government or in presidents of Autonomous Communities.

Keywords

• legal certainty
• crisis law
• limits of fundamental rights
• reservation of law
• rule of law
• state of alarm and exception