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A judge strikes down Madrid community order on smoking and nightlife restrictions

In a legal decision that could have a profound impact on all of us a Judge has pointed out that community lawmakers cannot limit fundamental rights without prior declaration of a State of Alarm.

Magistrate Alfonso Villagómez Cebrián refused to ratify the Madrid community order on Thursday in a decision that has been made public today, Friday August 21st. He pointed out the restrictions were based on a Ministry of Health order that has not been published in the Official State Gazette, Boletín Oficial de Estado (BOE). He stipulated that rules and and general provisions have to be published correctly.

The judge explained he was well aware of the difficulties facing the country but warned the COVID crisis 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."

He believes there is no need to create new legal instruments and points out the constitutional process for a State of Alarm provides the State with the legal power to restrict fundamental rights and freedoms. He concedes (in a phrase that would perhaps cause some alarm to people more familiar with common law understandings) fundamental rights are not unlimited and they can be "modulated" in compliance with legal requirements. But he stresses such limitations cannot be put in place by administrative orders from councils.

When the latest round of restrictions was agreed on by the autonomous regions last Friday, the Minister of Health Salvador Illa explained that compliance with these orders "is not optional", furthermore, he pointed out that the orders do not need judicial ratification.

This decision clearly puts at least one member of the judiciary at loggerheads with the national government but obviously does allow the spectre of a return to a State of Alarm to emerge in order to legally impose restrictions. As the hospitality sector has filed legal challenges to the restrictions across all autonomous regions,  this decision could have far reaching implications.


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