September 24, 2020

The TSJ of Madrid annuls the judge’s order and ratifies Ayuso’s anti-COVID-19 measures


The Administrative Litigation Chamber of the Superior Court of Justice of Madrid has upheld the appeal filed by the Government of Isabel Díaz Ayuso against the order of the Contentious Court that had rejected to ratify the new order of the Madrid Ministry of Health that included various preventive measures against COVID-19.

A judge annuls the order of the Community of Madrid that prohibited smoking in the street without distance and closed nightlife venues

A judge annuls the order of the Community of Madrid that prohibited smoking in the street without distance and closed nightlife venues

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The magistrates that make up the Vacation Room of the Court have annulled the order of Judge Alfonso Villagómez and have declared unnecessary the authorization or judicial ratification of the new measures adopted with respect to the recommendation to the population to reduce social encounters outside the group stable coexistence, because it is precisely a recommendation and not an imperative measure.

Also with respect to the request to provide identification data to those attending an event and their conservation in case it is required in the investigation of an epidemic outbreak when conditional on the provision of consent of the interested party or the limitation of the outputs of the residents in social health centers conditioned to the epidemiological situation in the region, as it does not imply the deprivation or restriction of liberty or other fundamental right. Finally, they ratify the sanitary measures on carrying out PCR tests for the detection of COVID to all new admitted with 72 hours in advance, at most, to the date of admission.

The Chamber believes that Judge Alfonso Villagómez committed a “reprehensible excess” when ruling on the eleven measures adopted – among them, the prohibition of smoking when a safety distance cannot be maintained or the cessation of hospitality activity at 1.00 in the morning – when in reality the Ministry of Health only asked to ratify the four mentioned, which are the ones that the regional Executive understood that they could limit freedoms or fundamental rights. “On these specific sanitary measures and not on the totality of the eleven adopted, the trial judge had to constrain and adapt his ruling, without making a general assessment of the legality of the regional order, as he did, however,” say the magistrates, in a sentence susceptible to appeal within a period of thirty days.

The ruling establishes, against Judge Villagómez “that the lack of publication of a legal norm does not affect its validity, given that the measures approved by the Inter-territorial Council of the National Health System and declared in the Ministerial Order of August 14, 2020, are addressed to the regional health authorities, as interlocutors of the State administration, and not to citizens ”. The judge had refused to ratify these measures on the grounds that he could not “validate” them by referring to an order from the Ministry of Health that had not yet been published in the Official State Gazette (BOE) and that, therefore, was “ null and void ”.

Along these lines, the resolution recalls that “the health authorities of each autonomous community may agree to general preventive actions and adopt the health measures and limitations they deem appropriate when there are urgent or necessary health reasons or to control communicable diseases, provided they are justified and be accommodated (…) to the ultimate goal of prevention and control of individual and collective health ”. For this reason, the sentence reasons that the “intervention” of judges and courts will be necessary to “approve and ratify” the measures that may imply “deprivation or restriction of freedom or of another fundamental right.”

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