The contentious-administrative court of Madrid is positioned against the measures adopted by the Community of Madrid to deal with Covid . In a letter to which EL MUNDO has had access, he explains that "the Autonomous Communities are claiming legal instruments to effectively fight the coronavirus, when these legal instruments already exist in our system, and it is only necessary to put them into operation."

The document signed by judge Alfonso Villagómez Cebrián annuls, de facto, the order of the Community of Madrid that prohibited, among other things, smoking in the street if there was no safety distance or on the terraces and that regulated the opening of the premises of hospitality until 1 in the morning, without being able to accept clients from midnight and ended with nightlife.

He assures that a declaration of a state of alarm "would enable an intensive use of legal measures to limit fundamental rights and public freedoms. This happened with RD 463/2020, of March 14, when the Government of the nation, before the expansion of the disease called Covid 19 , decreed the general measures of limitation of the mobility and circulation of the population, in accordance with the Organic Law 1/1981, of the states of alarm, exception and siege ".

"Fundamental rights cannot be limited without prior declaration of the alarm"

The judge of Madrid understands that from an Autonomous Community "fundamental rights cannot be limited in general without a prior declaration of the alarm. Because, from a certain threshold of intensity in the affectation of fundamental rights, it is not appreciated in Order 1008/2020, if said limitation affects the generality of the territory of the Autonomous Community, the only option, except for recourse to more burdensome instruments (state of exception), is a declaration of a state of alarm unique to its territory as contemplated in article 5 in the aforementioned Organic Law ".

In this way, it is understood that the circulation or permanence of people or vehicles at certain times and places could be limited in the territory of the Community of Madrid, or condition them to fulfill certain requirements. In addition, the Government may delegate the authority of the President of the Community of Madrid the execution of the restrictive measures of rights, and, finally, that the autonomous government can alert of the situation in the Community of Madrid and request the Government this declaration of alarm ".

Fundamental rights are not unlimited, they can be modulated by complying with the legal requirements for this and, although certain decisions can be justified from the prism of non-legal criteria, assumptions such as the one submitted to our consideration in the analysis of Order 1008/20, no they acquire the category of limitation and affectation of fundamental rights, and, in the hypothetical case that they were, due to what has been said above, they could not be limited by means of an administrative provision such as the Order of the Ministry of Health ", concludes the judge.

The letter responds to the measures adopted by the Community of Madrid regarding capacity in public places, closures of nightclubs ...

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