[News] Justice of Madrid

[Lord SHinCHaN]

The Eighth Section of the Contentious-Administrative Chamber of the Superior Court of Justice of Madrid (TSJM) has rejected this Thursday to authorize, as is mandatory, the package of restrictions agreed by the Community of Madrid in line with the order of the Ministry of Health to stop the spread of the coronavirus. It understands that it has neither the capacity nor the legal protection to adopt measures that harm the fundamental rights of citizens.

 

The Ministry of Health of the Community of Madrid approved last week an order that transposed the previous dictation of the Ministry of Health as a result of the meeting of the Interterritorial Council of the Branch. It entails restrictions on mobility in municipalities with more than 100,000 inhabitants, as well as other measures such as control of capacity and hours, which the Prosecutor's Office considered appropriate because it considered that they were proportionate, necessary and adjusted to the law in the sense that the region complied Government orders: it was empowered to do so.

 

However, the Chamber concludes that the legal framework under which Health issued the order, - Law 16/2003, of May 28, on the cohesion and quality of the National Health System - «does not contain a legal authorization for the establishment of of restrictive measures of fundamental rights ”as in this case would be the restriction of the freedom of movement of citizens.

The whole order thus turns in relation to the power that Madrid would have or not to affect those essential rights of citizenship, "regardless of whether the restrictive measures of such fundamental right were necessary and suitable to prevent the spread of the disease in a pandemic situation like the current one ”.

 

As he explains, “the only enabling legal title” that protected Madrid to dictate the restrictions was that Health Law and although the Government reformed it last June by Royal Decree to “guarantee adequate coordination between the health authorities and reinforce the functioning of the The national health system as a whole in the face of health crises ”, did not introduce among its purposes“ to authorize measures that limit freedom of movement, as shown by the fact that it repeatedly associates them with the declaration of a state of alarm ”.

 

“It is striking that, given the described health scenario, a reform of our regulatory framework more in line with the confessed needs to effectively combat the Covid-19 pandemic and face the serious health crisis that the country is suffering was not addressed, despite the existing doctrinal consensus about that the current regulation of normative instruments that allow the limitation of fundamental rights, in order to protect physical integrity (...) is certainly deficient and in need of clarification, ”criticizes the TSJM.

 

An interference without legal protection

Thus, it concludes that “the limiting measures of fundamental rights established by Order 1273/2020, of October 1, of the Ministry of Health, merely in execution of the communicated Order of September 30, 2020, constitute an interference by the public powers in the fundamental rights of the citizens without legal authorization that protects it, that is to say, not authorized by their representatives in the General Courts, therefore it cannot be ratified.

 

The order recalls that "it corresponds to the representatives of the citizens in the General Courts the delimitation and the modulation of the fundamental rights of the people, under the requirements of proportionality, certainty and predictability and, in any case, respecting their essential content", and this circumstance does not occur in the restrictions for Madrid.

 

In other words, the fundamental rights that the Constitution attributes to citizens cannot be affected by any unauthorized state interference by their representatives through a provision with the rank of Law, which meets the minimum sufficient conditions required by the requirements of legal security and certainty of law, he adds.

 

The magistrates say they are aware of the seriousness of the situation and of "the need to adopt immediate and effective measures of various kinds to protect the health of citizens" among which "it could include limiting measures of fundamental rights of greater or lesser scope" , but it must be done in a way that conforms to the law.

 

"For this, our constitutional system articulates legal instruments of diverse nature that offer different legal channels to define, modulate, restrict, and even suspend the fundamental rights of people, respecting constitutional guarantees," they recall.

 

A different scenario

In their resolution, the magistrates of the TSJM refer to the ratification that the judicial body gave to the anticovid measures of Madrid last August, which included, for example, the prohibition of smoking on the terraces without separation of at least two meters between clients.

 

As he exposes in response to the allegations of the Prosecutor's Office, which went along that line, that battery of measures with which now has been submitted to the judgment of the court is not comparable, again, due to the difference in the legal authorization to adopt one or more others and their consequences for citizens.

 

"In such Orders, the basis of their decisions on the imposition of sanitary measures was found in the specific normative framework that they mentioned (Organic Law of Special Measures in Public Health, General Law of Health, General Law of Public Health and Law of Ordination Health of the Community of Madrid), and always by its own exercise of powers, and not, as here, mediating an Order communicated from the Ministry of Health, "he explains.

 

He insists that the Ministry of Health "is compelled by the Ministry of Health to adopt the measures" that it is now submitting for ratification "based only on compliance with what is ordered and, above all, based on the provisions of article 65 of Law 16/2003, of May 28 ". "This means, again we reiterate, that we are situated in a completely different scenario from the previous ones," he adds.