The head of the Administrative Litigation Court number 2 of Madrid has refused to ratify the order issued by the Community of Madrid to apply the latest consensual measures against the coronavirus, from the smoking ban if the 2 meters distance to the closing of nightlife is not respected.
In the order, issued yesterday Thursday by the magistrate Alfonso Villagómez Cebrián and made public this Friday, it is stated that “from an autonomous community, fundamental rights cannot be limited in general without a prior declaration of the alarm”.
The judge emphasizes that the order of the Community of Madrid with the new restrictions is based on another from the Ministry of Health that has not been published in the Official State Gazette (BOE), “when, as is known, the general rules and provisions have to be published so that they are binding on all”.
In addition to restrictions on tobacco and nightlife, the Madrid order took up the agreed measures for residences for the elderly relating to outings, visits and PCR tests; and the ban on eating on public transport, restrictions that the Government of Isabel Díaz Ayuso took before the court for ratification.
The magistrate assures that he is aware of the difficulties facing the country due to the pandemic and of the need to combine health and economic issues, but warns that COVID-19 has revealed “many regulatory and legal problems”Which must be resolved by the constitutionally competent bodies, respecting the current legislation and the jurisprudence of the Constitutional Court.
In his opinion, it is unnecessary to design new legal instruments, as requested by the autonomous communities, because “they already exist in the Spanish legal system and you only need to put them into operation”. It refers specifically to the declaration of a state of alarm, which would allow restricting fundamental rights and freedoms.
With a “declaration of the state of alarm singled out to its territory”, The circulation or permanence of people or vehicles in specific times and places could be limited in Madrid or conditioned to meet certain requirements, he points out.
The magistrate assumes that fundamental rights are not unlimited and that they can be “modulated” in compliance with legal requirements, but insists that they could not be limited by means of an administrative provision such as this order from the Madrid Health Council.
In addition to restrictions on tobacco and nightlife, the Madrid order took up the agreed measures for residences for the elderly relating to outings, visits and PCR tests; and the ban on eating on public transport
Last Friday, when the communities agreed on the new coordinated restrictions, the Minister of Health, Salvador Illa, pointed out that their compliance “is not optional” nor does it require judicial ratification, as they have required other “surgical” decisions that have been taken. such as partial confinements.
The coordinated actions are an “ex novo” figure contemplated in the “Early response plan in a scenario to control the COVID-19 pandemic”, approved by the Government and the communities in mid-July, designed to stop the expansion of the virus when those adopted by the communities are not enough. If it does not work, the next scenario considered is the alarm state.