The fourth section of the Contentious-Administrative Chamber of the Superior Court of Justice of the Valencian Community has declared the annulment of articles 3.2 II, 22 bis, 26-1, 29-3 and 31-2 of the Civic Coexistence Ordinance of the Alicante City Council, sections of the norm that affect prostituted women, minors and homeless people who sleep on the street.
The court finds that the ordinance lacks the gender impact report required by law, with which it estimates the contentious-administrative appeal filed in August 2022 by the Unides Podem councilors in the City Council, Xavier López and Vanessa Romero. The ruling, dated May 26, imposes costs on the Alicante town hall and the Vox group, as defendants, in the amount of 1,500 euros each. The decision can be appealed before the Supreme Court.
The norm was approved by the Plenary of the Alicante City Council on February 15, 2022, with the votes of PP and CS, the support of Vox and the rejection of PSPV, Compromís and UP, who claimed that the text made a city "more cruel" and accused the government team of punishing homeless people and prostituted women on public roads.
Unides Podem appealed articles 22 bis, which includes the prohibition of camping on roads and public spaces, which includes stable installation in these public spaces, their elements or furniture and the prohibition of sleeping day or night in these spaces ; 26.1, which prohibits sexual practices and the offering, request, negotiation and direct or indirect acceptance of sexual services on the street when these practices affect citizen coexistence; and 3.2, 29.3 and 31.2 on minors, acts of vandalism and subsidiary and joint liability of parents and guardians and liability for non-compliance with the planned actions.
In their appeal, the UP councilors alleged "formal defects" in the processing of the ordinance, such as the non-existence of a gender-based impact report or that there was no mention of the impact on children in the processing file, either. adolescence and in the family.
Regarding the impact due to gender, the TSJCV indicates the "requirement" of the report as a "necessary requirement" in the processing of ordinances and adds that, "in order to make effective the regulations and principles set forth related to gender equality", the norm must contain it.
In this regard, the room underlines that the City Council, in the Gender Impact Report, indicates that the norm "has a null gender impact" and that "the inclusive use of language in the Administration has been taken into account" in the wording of the rule.
Which, according to the order, "does not meet the requirements of the gender impact report requirement" because it should have considered "the analysis and assessment of the results that may follow from the approval of the standard from the perspective of the elimination of inequalities and their contribution to the achievement of the objectives of equal opportunities and treatment between women and men".
The text explains that the ordinance regulates "matters related to camping in public places or begging, as well as the practice or use of public space for the offer and demand of sexual services, that is, prostitution, an activity that is especially sensitive in terms of protection of women", which is why the gender impact report process "was required".
Regarding the analysis of the regulatory impact on childhood, adolescence and the family, the room indicates that the Alicante City Council opts in the processing for an abbreviated regulatory impact analysis report, which should include information such as the opportunity of the norm, the impact due to gender and other detected impacts that are deemed relevant, among others.
The magistrates point out that the ordinance lacks this report, despite the fact that its scope of application extends to conduct carried out by minors, but considers that this absence "even when considered, cannot produce the effects of nullity by operation of law invoked by the appellants, since it is not mandatory in the procedural processing and its absence does not cause irreparable effects in the application of the ordinance".
Thus, although the absence of the required gender impact report entails the effect of "annulment by operation of law" of the complete ordinance, since the plaintiffs have requested the partial annulment of different articles, the court must judge within the limit of what is requested. by the parties, and in accordance with the provisions of the Contentious-Administrative Jurisdiction Law, declares only the nullity of the precepts challenged by the appellants.
