Garía Majado, Patricia

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The Covid-19 Measures in Madrid, andwhy they Suffered Defeat in CourtPatricia Garía Majado 2020-10-11T12:15:35The Covid-19 situation in Madrid, as in many other places all over the country, isgetting worse. The number of people infected continue to rise just like the hospitaloccupancy rate. In a political context marked by permanent confrontation betweenthe regional and national governments, ruled by different political parties, the MadridCourt of Justice (Madrid TSJ) has added fuel to the fire by quashing the ‘perimeterclosure’ for Madrid  (Court Order 128/2020, 8th October). Other than one mightthink, this was not a decision about the substance of the Order but rather about itslack of legal authorization to impose a measure so restrictive of fundamental rights,particularly, the freedom of movement.Madrid adopted such Order not unilaterally but in execution of a Ministerial Orderof the National Health Department which declared jointly actions between the Stateand the Autonomous Communities. It established some health standards for thosethat comply them to adopt certain measures in relation to the Covid-19 pandemic,foremost the ‘perimeter closure’ of certain municipalities (limitation of entry andexit, save exceptions). However, that Ministerial Order did not have direct effectson citizens; it was only binding for the Autonomous Communities which shouldimplement it within 48 hours. That is what Madrid reluctantly did.However, the matter did not reach the Madrid TSJ by an appeal of an individualcitizen. Since a short while ago, measures adopted by regional health authoritieswhich affect fundamental rights of subjects who are not individually identified (suchas the perimeter closure) must be ratified by regional courts. This is what the MadridTSJ did not do. In the view of the ruling, the fault of the Madrid Order was that itdid not expressly refer to a material enabling law which authorizes regional healthauthorities to adopt  restrictive measures of fundamental rights (particularly onthe freedom of movement). The focus of the court was not on whether or not themeasures were proportional, but whether there was a legal authorization.In that regard, the TSJ noted that the measures were exclusively adopted on thelegal basis of art. 65 Ley 16/2003: this is the only law expressly mentioned in theOrder. That article details the cases in which the national and regional authorities actjointly in health issues. That provision, the TSJ stressed, does not allow the limitationof fundamental rights in the context of such cooperation, which why the perimetralclosure, being restrictive of fundamental rights and lacking legal qualification, wasnot ratified.In fact, even if it is not expressly stated in the Madrid Order, the material legal basisfor imposing restrictive measures on fundamental rights was another legal provision(art. 3 Ley Orgánica 3/1986, de 14 de abril, de Medidas Especiales en Materia deSalud Pública). It enables the health authority ‘to take appropriate measures for- 1 -the control of the sick persons, or those who have been in contact with them, andthe immediate environment, as well as those measures deemed necessary in theevent of a communicable risk’. The Order, however, did not expressly refer to thatnorm, which led the TSJ to not take it into account as the enabling law to imposethe perimeter closure of municipalities. The court instead focused on the invokedart. 65 Ley 16/2003 which dealt with competence issues rather than substantiveones. This has been criticized for being too formalist, for disregarding the iura novitcuria principle and for mistaking a law regulating inter-administrative relations for thesubstantive basis for imposing material limitations on fundamental rights, which wasthe LO 3/1986, even if it was not expressly cited in the Madrid Order.Too lax, not too strict?What would the situation be if Madrid Order had invoked that substantial enablinglaw? The TSJ implicitly admits that, had art.3 LO 3/1986 been expressly cited,Madrid Order would have been valid, since that provision would act as the legalauthorization. In fact, identical or very similar measures have been adopted andratified all over the country. For example, in the same city of Madrid, the lockdownof certain neighborhoods (Order 1226/2020, 25st September) was ratified by theTSJ the week before (Court Order 116/2020, 24st September), considering that theenabling law was the aforementioned art.3 LO 3/1986. The same has happenedwith measures adopted by other Autonomous Communities in execution of theaforementioned Ministerial Order, since the material legal authorization is the same(art.3 LO 3/1986). For example, the Castilla y León TSJ ratified Orders 1045/2020,1046/2020, 1047/2020, which closed, respectively, the municipalities of León,Palencia and San Andrés del Rabanedo (Court Order 245/2020, 9th October). TheTSJ has considered that there was sufficient legal qualification, even if the law hasnot been expressly invoked in this case either (as it happened in Madrid).Although this is currently the predominant view in the regional Courts, the problemis: Can restrictive measures of fundamental rights with general scope be imposedon the basis of ordinary health legislation (particularly art.3 LO 3/1986) at all? Ithink the answer is no. To my mind, that law allows to adopt restrictive measures offundamental rights concerning specific persons or groups of people (individualized).The ‘perimeter closure’, since it affects an indeterminate collective of individuals,does not fit well into that category. This is, in fact, why the Aragón TSJ has veryrecently stated that the perimeter closure of some municipalities of that region,also based in the art.3 LO 3/1986, fails to have a valid legal authorization (CourtOrder 89/2020, 10th October). So far it has been the only TSJ which has supportedthat interpretation. Although it is not the current judicial trend, I consider thatgeneral scope measures restrictive of fundamental rights adopted by differenthealth authorities (like perimeter closures) should not be ratified by courts. Theyare all based in a legal provision (expressly cited or not) which allows to imposespecific measures regarding identified subjects, not serving thus as a valid legalauthorization.- 2 -In any case, even though there is a heated academic discussion on this subject, itappears likely that the most appropriate instrument for establishing a widespreadlimitation of fundamental rights is the state of alarm (art.116 SC), provided for ‘healthcrises such as epidemics’ (Art.4a Ley Orgánica 4/1981, de 1 de junio, de los estadosde alarma, excepción y sitio). Among other things, it allows to ‘limit the movementor permanence of persons or vehicles at certain times and places, or to conditionthem on compliance with certain requirements’ (Art.11a). It is the Government whoinitially declares this state of alarm, but its extension, after 15 days, requires theauthorization of the Congress (art.116.2 SC). This compels the former to agree andseek parliamentary support in order to keep it alive. In addition, the decree of thestate of alarm should determine the territorial scope of its application (which doesnot have to be the entire national territory) and the measures to be taken (whichalso do not have to be the same in all places), which allows to decentralize the legalresponse and tailor it to the particular needs of different territorial areas.Judicial review is possible in the state of alarm in two ways: On the one hand,the decree of its declaration can be appealed before the Constitutional Court(Judgement 83/2016, 28st April). This centralizes the judicial control over themeasures, as it should no longer be up to each TSJ to rule on whether or notthey can be adopted. On the other hand, the acts and provisions adopted by theAdministration during the state of alarm may be appealed before the administrativecourts (art.3.1. LO 4/1981), for instance, Ministerial Orders issued on nursing homes,transport, etc., or sanctions imposed for non-compliance with the measures. TheAdministration’s activity, therefore, is subject to judicial review from the time thedecree of state of alarm is issued. If this solution was desirable from the outset, theCourt Order of Madrid TSJ rejecting the ratification of the perimetral closure hasspeeded up its declaration in some municipalities of that region on the 9th October.- 3 -

The Covid-19 Measures in Madrid, and why they Suffered Defeat in Court

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The Covid-19 Measures in Madrid, and why they Suffered Defeat in Court

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