Date Published: 21/08/2020
ARCHIVED - Judge annuls prohibition of smoking in public spaces in Madrid
ARCHIVED ARTICLE The same ruling also applies to all of the measures imposed by the regional government in line with the agreement made by the health departments of the autonomous regions of Spain
A judge of the Contentious-Administrative Court number 2 of Madrid, Alfonso Villagómez Cebrián, has annulled the ban on smoking in public spaces recently announced by the Government of the Community of Madrid. The magistrate understands that the regulations cannot be applied when referring to an order from the Ministry of Health that has not been published in the BOE.
In the order, the judicial resolution, against which there is the right to appeal (which is being exercised by the regional government of Madrid on Friday), suspends its application as it has not been ratified.
The regional executive has in response sent a letter urgently requesting ratification of the measures and clarification.
The decision not only annuls the ban on smoking in public spaces, but also the obligation not to eat in public transport, increased vigilance to prevent botellon drinking parties, the mandatory use of masks in open and closed places and the limitation of meetings to 10 people maximum.
The regulations also included the closure of discos and nightlife establishments.
The judge said that " an Autonomous Community cannot limit fundamental rights in general without a prior declaration of the state of alarm."
The judge emphasizes that the order of the Community of Madrid with the new restrictions is based on another of the Ministry of Health that has not yet been published in the Official State Gazette (BOE), "when, as is known, the rules and general provisions have to be published so that they are binding on everyone. "
The magistrate states that he is aware of the difficulties the country is facing due to the pandemic, but warns that COVID-19 has exposed "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 it is only necessary to put them into operation." This comment refers specifically to the declaration of a state of alarm, which would allow the restriction of fundamental rights and freedoms.
With a "declaration of the state of alarm specific to its territory", the circulation or permanence of people or vehicles in certain 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 through an administrative provision such as this order from the Madrid Health Council.
The coordinated actions are an "ex novo" point as published in the "Early Response Plan in a COVID-19 Pandemic Control Scenario", approved by the Government and communities in mid-July, designed to halt the expansion of the virus when those adopted by the communities are not enough. If it does not work, the next scenario which must be considered is the application of the state of alarm.
The Community of Madrid has requested the necessary clarification in order to take the necessary legal steps, but points out "the urgent need to update the special legislation on health matters regarding pandemics". "This is something that we as the PP have urgently asked the Government of the nation to resolve and no attention has been paid to our request. The government went on vacation without undertaking this reform", they said in a statement.
Prime Minister Pedro Sánchez has cut short his holiday and is returning to Madrid on Friday afternoon.
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