A Court in Santa Cruz de Tenerife has annulled the sanction imposed by the Government Sub-delegation on April 2, 2020, on a citizen who was circulating on public roads during the period of confinement due to Covid-19, applying the ruling of the Constitutional Court that on July 14 declared parts of the statements of the Decree that declared the State of Alarm in Spain null.
In an unappealable ruling, the Contentious-Administrative Court number 4 of Santa Cruz de Tenerife has upheld the appeal of a resident of the capital of Santa Cruz against the resolution that on April 2, 2020, sanctioned him with 300.50 euros (fine discounted by 50% for immediate payment) for circulating on public roads around 1:20 p.m., breaching the mobility restrictions determined in Royal Decree 463/20, without being included in any situation of exceptionality as legally foreseen.
According to the ruling, the sanctioned person told the agents that he was coming from the veterinarian "because the dog is stressed and its hair is falling out."
Magistrate Jorge Riestra clarifies in the ruling that from the reading of the facts it is evident that it is not that the resident disobeyed the agents, but that he was detected on the street without his presence being covered by any of the assumptions allowed by the Royal Decree that declared the state of alarm.
However, the ruling states, the ruling of the plenary session of the Constitutional Court 148/2021, of July 14, in the second pronouncement of its ruling, partially upheld the appeal of unconstitutionality filed against the aforementioned Royal Decree and declared unconstitutional and null the aspects referring to the limitation of mobility of the population.
The magistrate affirms that the present case is fully affected by the declaration of unconstitutionality. "The maintenance of the criminal or administrative sanction that originates from a provision declared null would violate the right to criminal legality" enshrined in the Constitution," he states.
The ruling emphasizes: "The sanction really corresponds to the breach of the limitations of freedom of movement of people on public roads established during the validity of the state of alarm, which have been declared unconstitutional, and therefore cannot enable the Administration to sanction a citizen who breaches them."
Then, the judicial authority concludes, "the exercise of the sanctioning administrative power is not possible in this case, as it is linked to the principle of legality, as part of the ius puniendi of the State, proceeding to annul the imposed sanction, leaving it without effect, but without imposing interest on the fine as it is not a consequence of the appealed administrative act."
Doubts and insecurity
The ruling refuses to impose the costs of the process on the public administration "given the legal uncertainty that generated doubts even for the Constitutional Court, which resolved the unconstitutionality of the enabling rule after the sanction, which implies a reasonable doubt of law." The magistrate recalls that, by accepting the discounted payment of the fine, the sanctioned citizen "prevented the Administration from issuing a more elaborate sanctioning resolution, and even its own revision in application of the administrative regime of appeals."
The ruling is not the first in this sense that has been issued in Spain after the pronouncement of the Constitutional Court, but it is the first to be known in the Canary Islands through the Judicial Communication Office.
