The battle of Madrid and the central government is played on many grounds and one of them is legal. It was the decision adopted by the Superior Court of Justice of Madrid that precipitated the outcome experienced on Friday. After the declaration of the state of alarm, the tension, far from decreasing, continues to increase and in a last movement Moncloa is already preparing to try to break into the legal fight by the decision of the Madrid court through the State advocacy. The objective: to try to save the plan to restrict fundamental rights launched in the new normal and that, in recent weeks, has shown more than ever that it is insufficient and it is left to the variable interpretation of the judges.
Although the legal services of the State are not, in principle, entitled to take part in the following steps of the procedure, legal sources inform El Confidencial that the legal profession wants to appeal -together with the Prosecutor’s Office- the decision of the magistrates of the Contentious Chamber who unanimously inclined on Thursday for not endorsing the perimeter closure of the capital and the rest of the municipalities. The steps to answer the decision are, yes, limited. Experts consulted assure that although the decision of the Supreme Court can be protested in replacement, it is very doubtful that it can also be done in cassation, that is, appealing before the Supreme court.
Last Thursday the TSJ dismounted with his decision the perimeter closure that Health had imposed for those municipalities with an incidence more than 500 cases per 100,000 inhabitants. The magistrates of the Contentious Chamber of the Madrid court decided not to authorize the measures as they considered that they restricted fundamental rights based on a non-organic law and that it did not enable, therefore, to limit them. They concluded that the tool used by the department of Salvador Illa, Law 16/2003, of May 28, on cohesion and quality of the National Health System, and specifically its article 65, could not be used for this purpose.
The Supreme Court ruled that Health violated the rights of doctors due to the lack of PPE
Beatriz PareraIt states, however, that the responsibility of the Central Administration is also shared by the autonomous communities
In addition, the magistrates recriminated that the initiative of the central government, supposed “interference by public powers in the fundamental rights of citizens“and they referred directly to the declaration of the state of alarm by stating that” the constitutional system articulates legal instruments of diverse nature that offer different legal channels to delimit, modulate, restrict, and even suspend the fundamental rights of people, respectful of the constitutional guarantees “.
They did not stay there. They also reproached the Executive for its lack of legislative foresight. “It is striking that, given the described health scenario, a reform of our regulatory framework more in line with the confessed needs to effectively combat the Covid-19 pandemic and face the serious health crisis that the country is suffering was not addressed,” they said.
After the decision, the resources phase now begins. The controversial car led to the immediate deactivation of the closure of the capital and the rest of the municipalities. Madrid was left without any restrictive measure just before the October 12 bridge. Disagreement went up instead of down. Neither party reached an agreement and on Friday the Council of Ministers decreed an alarm to do the same thing that had brought down the TSJ: restrict mobility. Resources are thus the last handle to try to reverse the situation.
The Public Prosecutor’s Office of the Community of Madrid, which before the decision had been in favor of ratification, has already announced its intention to appeal. However, in the last hours, the State Bar has indicated that it also plans to do so. Legal sources consulted doubt the legality of the movement, since what was ratified was a rule of the Community of Madrid, where the State Attorney – who is in charge of the defense of the Government – was not a party. “If you did not intervene as a strict part of the process, It is more than doubtful that it can now assume active standing when preparing an appeal“they say.
The Government suspects that the CAM forced the cancellation of the closure of Madrid by the TSJM
Fernando GareaMoncloa sources point out that the Ayuso Executive ignored the mention of a law knowing that it thus had options to urge the magistrates to overturn the restrictions
Procedural legitimacy is held or not based on the nature of the process and its purpose. If it is not rooted it cannot be granted “graciously“Through a subjective incorporation that would leave the procedural relationship poorly constituted, they add. Thus, we will have to wait for it to do so and then for it to be accepted for processing or rejected.
To further complicate matters, the resources that will be raised now are those for replacement, that is, those that go to the same room that has already been decided and that, therefore, usually have little travel. After these would come the cassation, which are addressed to the Supreme Court. However, although the court announced this remedy in its car, by not closing any opportunity, the possibility of exercising appeal is not so clear. They do not appear in the list of matters subject to cassation, which are regulated in article 87 of the Regulatory Law of the Contentious-Administrative Jurisdiction.
As if all this were not enough, a new decision entangles the skein even more. The Superior Court of Justice of Madrid was only in his rejection of the Health measures until this Saturday the one from Aragon joined the refusal. In his case, he did it for different reasons. The magistrates of the Aragonese court examined the law that until now did enable the restrictions, the health one of 86, but concluded that it cannot be applied to limit rights collectively and indiscriminately but is only designed for the sick or people related to them .