The High Court of Justice of Extremadura, in a judgment dated February 12, has completely dismissed the administrative appeal filed by APAG-ASAJA Cáceres against the resolutions of the delegation of the Government in Extremadura, which prevented the cutting of the motorways in Extremadura; the judgment states that before this resolution there can be no appeal and the dispute is settled.
The court, after recognizing the importance of the right of assembly and demonstration, recognized both in judgments of the Constitutional Court, and of the European Court of Human Rights, as a fundamental right. However, it recognizes that the mere suspicion that the exercise of this right impedes the exercise of other fundamental rights is not enough, so it requires the authorities sufficient justification to establish limitations on the exercise of this right; therefore, the Constitutional Law undoubtedly requires the exquisite motivation of the limitation of the right and the proportionality of measures that are imposed in order to safeguard public order; especially in the material sense of “maintaining public order”, meaning “the normal functioning of collective life, the guidelines that order the habitual flow of social coexistence, can be altered by multiple factors, which in turn can affect issues or goods as diverse as the normal functioning of the citizens, the tranquility of their lives, However, the public order to which the constitutional precept refers may only be affected when the external disorder on the street endangers the integrity of persons or property.”
The TSJEx also refers to the weighting requested by the Constitutional when establishing the prevalence of the right of assembly over other constitutional rights such as the right to freedom of movement, life or integrity, the right to property.
After these legal bases, the TSJEx states that “Since it is notorious the intensity of traffic that these roads support, with a high percentage of heavy vehicles in the composition of the traffic. The intensity of the traffic added to the fact that the cuts took place over a period of five and a half hours and that the duration of the cuts is expected to be thirty minutes each hour would mean that it would not be possible to restore traffic normally, actually extending the traffic cut of such important communication arteries within the Autonomous Community of Extremadura and with the rest of Spain throughout the day, causing a significant collapse in communications to the detriment of all road users in general and of essential services for the community in particular, such as actions of the State Security Forces and Bodies, firefighters and ambulances. The Government Delegation has issued a resolution with a detailed and precise motivation on the danger represented by admitting traffic cuts of half an hour every morning, showing that except at the kilometric point of Almendralejo there are no alternative evacuation routes and that the intended cuts do not guarantee the transfer of patients, accidents and passengers in ambulances or in ordinary vehicles that have to go to health centers, hospitals, as well as for the circulation of the rest of essential services for the community.”
In addition, the TSJEx, in its judgment, recognizes that the Government Delegation has justified that “the risk of an accident by range especially in the kilometer points of Hinojal and Trujillo, in the national 630 and in the E-5 Motorway, respectively, which makes it essential in these kilometer points to shorten the retention times, trying to obtain a fluidity of traffic in order to guarantee road safety avoiding a retention that extends along the road and makes it impossible to warn drivers to react to traffic cuts, do not forget the actor that warns us in advance of the need to control the vehicles.” To this is added the important additional surveillance efforts that the members of the Civil Guard and the Road Demarcation will have to carry out in order to guarantee road safety.”
In its judgment, the TSJEx insists that “only in very specific cases in which, after weighing the circumstances, it is concluded that the holding of these meetings may produce prolonged circulatory collapses that prevent access to certain areas, thus completely preventing the provision of essential services with an impact on the safety of persons or goods - medical emergencies, fire or police - can they be considered contrary to the limit established by art. 21.2 the traffic restrictions entailed by the exercise of the right of demonstration (STC 66/1995, F. 3).”
Having made all these legal considerations, the TSJEx analyzes the specific case of the application of APAG-ASAJA Cáceres in which it requests five four-hour traffic cuts in very relevant localities of the State’s road network and of the Junta de Extremadura, and determines that authorizing such cuts “would pose a risk to road safety and a serious harm to users”; at the same time it considers that “a pedestrian demonstration on motorways and roads entails more danger for those people than if it were carried out with motorized vehicles” and recognizes that “Any type of cut and concentration of people or vehicles (regardless of their duration) could cause serious risks to cut themselves.
However, the ruling specifies that the competent authority (in this case the Government Delegation) could authorize these cuts provided that there are a number of circumstances such as the duration being two hours, with opening intervals of ten minutes, in addition to obliging the organization of the cuts to comply with a series of security measures.
After all this reflection and legal analysis, the TSJEx assures that “having heard the allegations, it comes to understand that in fact the Resolution (of the Government Delegation) meets the parameters provided by the TC so that the denial is motivated and that motivation refers to the technical reports themselves. The Resolution’s motivation for denying concentrations on motorways can even be said to be obvious, since it is not an area suitable for the movement of pedestrians, the obvious danger represented by the paralysis of traffic for road safety and the significant collapse that would occur with evident and varied damages in those high-capacity roads for such a long time.”
The judgment also states that “given the speed achieved in them it could, and this is important, cause damage to people resulting from accidents, as well as devices that would have to travel to ensure circulatory order and restrictions to individuals who, even without travelling in emergency vehicles, went to hospital centers or similar.” And he insists that “it is worth pointing out that the legitimate claims of the applicants are already known nationally and internationally, they will be made in the conventional ways in the form in which they have been authorized, without it being necessary to make them in this type of motorways, which would constitute a real danger and a limitation to the freedom of movement that surpasses the limitations of jurisprudence.”
Finally, the judgment states that “in relation to the authorization in the conventional ones and despite the fact that the plaintiff stated that they did not agree, however, with what was explained later it can be understood that in reality there was no real opposition to what was agreed by the government, so no modification is introduced”.
For all these reasons, the TSJEx dismisses in full the administrative appeal filed by APAG-ASAJA Cáceres and agrees with the Delegation of the Government of Extremadura in prohibiting the cutting of the Extremadura motorways in accordance with the request submitted by this Agrarian Organization.
The Government Delegation expresses its satisfaction with the ruling of the TSJEx since its sole objective is to guarantee the security of the citizens of Extremadura; respecting the right of assembly and demonstration, but always complying with the constitutional principles that we Spaniards have endowed ourselves with.
The Government Delegation in Extremadura will guarantee the right of assembly and demonstration whenever it conforms to the current legal system, and undoubtedly accepts and complies with the resolutions of the judicial bodies of our country.
Finally, the Government Delegation calls on both citizens and demonstrators to be prudent and to respect the rights of all citizens.