Brothel claim for Covid closure compensation dismissed

The Supreme Court (TS) has rejected the appeal filed by a brothel that claimed compensation of 72,188 euro from the State for the economic damages and losses suffered by the closure of the establishment during the state of alarm due to the coronavirus pandemic.

The Fifth Section of the Contentious-Administrative Chamber, chaired by the former president of the General Council of the Judiciary (CGPJ) Carlos Lesmes, thus rejects the patrimonial responsibility of the State requested by this establishment in its appeal and concludes that the measures adopted by the administration to deal with the coronavirus were “necessary, appropriate and proportional to the seriousness of the situation.”

It adds that these measures “enjoyed a sufficient degree of generality in terms of their recipients, who had the legal duty to endure them without generating any right to compensation for the possible damages suffered, the Constitutional Court having expressly declared this” in ruling 148/2021, a resolution “that produces res judicata effects and binds all courts.”

In his ruling, Lesmes himself offers this appellant the same response that has already been given in around fifty rulings to different companies, mainly hospitality, that demanded that the State’s patrimonial responsibility be declared for the damages suffered with the measures adopted during the state of alarm. All of them were ordered to pay 4,000 euro in costs, and in this case that figure is maintained.

The resolution declares that “the disease derived from COVID-19 as an infectious disease highly transmissible by air and through personal contact, not only entailed a high risk to human health derived from the high rate of spread but, in addition, a risk of collapse of health services as in fact happened, all associated with an increase in mortality and morbidity.

Lesmes explains that to judge the success or failure of the measures adopted by the public authorities in the first months of the pandemic, one cannot “rely on current scientific knowledge but on what exists when the pandemic begins to unfold its effects.”

He explains that this has been maintained by the Constitutional Court in its 2021 ruling “by pointing out that the measures taken were in accordance with the scientific knowledge of the epidemic that existed at that time, and these measures were not disproportionate in view of the existing situation.”

“The court added that its origin or eventual error cannot and should not be considered or judged in accordance with what is known subsequently – the so-called ‘hindsight clause’ or retrospective bias of Anglo-Saxon jurisprudence – nor does it generate liability even when they could be improved by view of the knowledge acquired later,” he emphasises.

“This is why the maintenance of the physical integrity of the population (article 15 of the Constitution) and the right to the protection of public health (article 43) provide constitutional coverage and legitimise restrictions on the exercise of certain economic activities, which is sufficient to reject the violation of the freedom of enterprise provided for in article 38” of Magna Carta, he adds.

For Lesmes, “there is no doubt” that the set of measures adopted by the Public Administrations during the management of the health crisis “was conditioned by the scientific knowledge existing at all times, which was very lacking in certainty, both in relation to the form of transmission of the coronavirus and the real impact of the spread, as well as the medium and long-term consequences on the health of people affected to a greater or lesser extent by the virus.

Therefore, based on this knowledge, he points out, “social distancing measures, home confinement and the extreme limitation of contacts and group activities were the only measures that were proven effective in limiting the effects of a completely unpredictable pandemic and of dimensions unknown until then”.

Lesmes insists that in this case “the administrative activity carried out was reasonable and proportionate to the existing situation, which is why it did not generate financial liability” attributable to the State despite the fact that certain damages are directly attributable to the pandemic.

It should be remembered that, according to reports from the Supreme Court, there are still about a thousand claims on this issue to be resolved, although a hundred companies have withdrawn their appeals after the first ruling of the Chamber, issued in the month of October.

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