For the second time in a few days, the High Court of Catalonia has refused to authorise the extension of the curfew in several cities arguing that the conditions for this measure have not been met and that, basically, the arguments of the Catalan government had no justifiable basis to decree a measure which implies the limitation of fundamental rights and public freedom.
The ruling, announced by judge Javier Aguado, frustrated the Generalitat's plans. From a minimally objective standpoint one must admit that the Catalan government's position on this issue has been legally weak, as the changes in the criteria for requesting a curfew between 01:00am and 06:00am are hard to justify. When the curfew was first requested the contagion level laid down was 400 cases per 100,000 inhabitants, later lowered to 250 cases. The High Court of Catalonia (TSJC) finally authorised the implementation of a curfew in summer, after two requests from the Catalan government. Only when the contagion rate went down to 150 cases did the Catalan High Court consider the decision unjustified. The government suggested implementing it in towns of over 20,000 inhabitants (previously it was decreed in towns of over 5,000 inhabitants) as a last resort, but that too, was rejected.
No one likes the images of street drinking bouts and mass gatherings after 01:00am due to the greater risk of the pandemic spreading, just when health professionals and authorities are breathing a sigh of relief at the end of the fifth wave, although they fear that what has been happening these days could be the prelude to the sixth.
But this public unease and the existing political concern cannot be used to implement mobility restrictions through the back door and pretend to deal with security issues, street drinking and public order through alleged sanitary shortcuts. It is hard to disagree with the judicial position when it states: "Control of social interactions is not a health criterion strictly considered as genuine legal authority for the maintenance of security and public order, whose nature, moreover, does not transmute according to the time slots of social relations. What during daytime hours is indisputably a matter of administrative policy, does not become a health issue come night-time".
In the end, the issue is once again the responsibility of the Catalan government and the town councils which, with the legal powers they have in matters of security and public order, must ensure that scenes and situations such as those seen in the last few days do not happen again. When put this way, it seems only natural that it should be so, even if the Catalan government sought to play it safe by seeking, unsuccessfully, judicial approval.