Five years after PSOE, IU, Mixed Group and UPyD presented their appeal of unconstitutionality against the Citizen Security law, the Plenary of the TC studies this week a presentation that endorses the norm approved by the PP. One of the most important points is that of hot returns, the constitutionality of which will be declared by the magistrates. Parliamentary groups challenged up to twelve precepts of the law when considering that they violated fundamental rights such as effective judicial protection, meeting or demonstration.
It is not the first time that the Plenary of the TC addresses the matter, but it is the first time that a favorable draft has been started to support the one nicknamed by the opposition “gag law.” The presentation initially fell on the magistrate Fernando Valdes, in favor of declaring in general terms the unconstitutionality of the law, but its draft found no support within the court, as the magistrates themselves revealed in June in an informative note in which they explained that they were postponing the debate due to “the complexity of the matter and its political-social sensitivity.” The truth is that after the departure of Fernando Valdés from the TC -for the opening of a case for alleged abuse-, the presentation has fallen on the president of the body, Juan José González Rivas, in favor of declaring the constitutionality of the law. And everything indicates that this will be the case, because that text has the contributions of three other magistrates who have been studying the matter since last June: Juan Antonio Xiol, Antonio Narvaez Y Ricardo Enriquez. The debate on this appeal is on the Plenary’s agenda that began yesterday, although sources from the guarantee body told ABC that the magistrates failed to address this matter, which is expected to happen today or tomorrow (Plenary sessions last three days). Nor is it ruled out that the deliberation be postponed to the next plenary session, since several magistrates see the debate precipitated with this new presentation. These are the points under discussion.
Valdés’ initial speech intended to declare them unconstitutional, but a judgment from Strasbourg last February agreeing with Spain gives a twist to his interpretation and endorses the rejection at the border of immigrants who jump the fences that separate Ceuta and Melilla from Morocco. The precept of the Citizen Security law reads as follows: «Foreigners who are detected on the border line of the territorial demarcation of Ceuta or Melilla while trying to overcome the border containment elements to cross the border irregularly may be rejected in order to prevent their illegal entry into Spain ». For Strasbourg, it was the immigrants (object of the expulsion) who “put themselves in a situation of illegality” by trying to access “unauthorized places” and also used force and took advantage of the mass effect to do so. The Court pointed out that they could have applied for a visa or used the border post to request asylum, a contribution that González Rivas himself now includes in his presentation.
Another article challenged by the then opposition is the 20.2 of the law, which “allows the external and superficial body search” of the citizen, which in the opinion of the appellants violates the right to the dignity of the person, his physical integrity and morals and their privacy. The president’s presentation considers that these superficial records are proportionate to the objective pursued, the maintenance of citizen security.
Demonstrations in front of Congress
The law punishes as “serious disturbance of citizen security that occurs on the occasion of demonstrations in front of the headquarters of Congress, Senate and legislative assemblies of autonomous communities even if they were not meeting.” The president’s draft highlights the role of legislative chambers in a democratic system and see provided that they are object of protection. He does not believe that the right of assembly or demonstration has been violated, since the law itself speaks of “serious disturbance.”
“Unauthorized use” of images
The article 36.23 considers a serious offense “the unauthorized use of images or personal or professional data of authorities or members of the State Security Forces and Bodies that could endanger the personal or family safety of the agents or the success of a police operation with respect to the fundamental right to information ”. González Rivas only sees the expression “not authorized” as unconstitutional because implies prior censorship.