October 27, 2020

The superior courts of the autonomous communities must ratify the new Health restrictions


Justice must ratify the new restrictions required by the Ministry of Health in cities with the highest incidence of the virus. The autonomous communities obliged to apply these measures – perimeter closures or limitation of meetings, among others – will have to request the higher autonomous courts to ratify them by virtue of the Law of the Contentious-Administrative Jurisdiction, which establishes that the measures adopted in accordance with Health legislation that involves the limitation or restriction of fundamental rights require judicial ratification.

Restriction of mobility, reduction of capacity and bars open until 11:00 pm: Health measures for cities with a high incidence of COVID

Restriction of mobility, reduction of capacity and bars open until 11:00 pm: Health measures for cities with a high incidence of COVID

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A spokesman for the Ministry of Justice confirms that the regulations come into force and are effective from the moment they are published in the official gazette, even though they are awaiting judicial ratification. In the event that it is not ratified, it would be the judicial authority that would have to determine what happens to those effects that have occurred while it has been in force. In any case, the regional executives do have the power to paralyze the sanctions until the courts are pronounced, as the Community of Madrid did with the first 37 health areas in which entries and exits were restricted.

Since last September 19, when the latest reform of the law of the Contentious-Administrative Jurisdiction was published in the Official State Gazette, it is the higher courts of justice of each autonomous community and not the Contentious Courts that must ratify this type of restrictions when promoted by regional governments. If the measures are adopted by the state health authority – the Ministry of Health – the ratification must be made by the Administrative Litigation Chamber of the National Court.

In this case, although the statement of coordinated actions is approved by the Ministry of Health through a communicated order, it is the autonomous communities that have to request judicial ratification. This happens because what really limits the fundamental rights of citizens is the autonomous provision that incorporates that mandate, not the order of the ministry itself, legal sources explain.

Despite the fact that the Government defended the latest reform of the Law on Contentious-Administrative Jurisdiction as a way to gain legal certainty and avoid paradoxical situations, experts consulted by elDiario.es argue that it would be possible that, once again, higher courts of Autonomous justice will agree on different decisions according to the territories.

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