The Supreme Court avoids ruling on the closure of a town in Granada: "It is not our function"

The Contentious-Administrative Chamber of the Supreme Court (TS) has rejected for loss of purpose the appeals filed by the Junta de Andalucía against the orders of the Superior Court of Justice of Andalusia (TSJA) that denied the confinement of the municipality of Montefrío (Granada), despite the fact that the Prosecutor’s Office saw the “necessary” and “ideal” measure to fulfill the sanitary objective pursued by the Andalusian Government. In its order, the high court explains that the sanitary measures not judicially ratified “do not display effects or are applicable “, thus refusing to rule on the matter. In addition, “it is not the function of the judges and contentious-administrative courts to exercise an advisory function,” they point out. It should be remembered that the TSJA has ratified the closure of other Andalusian municipalities with a high incidence rate, but not that of Montefrío. Last week, the president of the TSJA, Lorenzo del Río, lamented the disparity of the court’s criteria and blamed the Sánchez Government for this: “They have forced us to manage the pandemic and that’s what they are for.” Respondents -of May 10 and 14- denied the ratification requested fundamentally on the grounds that the sanitary measures adopted by the Junta de Andalucía in the Orders of May 7 and 12, 2021 restrict certain fundamental rights whose development is constitutionally subject to reservation of Organic law.After the ruling of the TSJ, the Official Gazette of the Junta de Andalucía (BOJA) published new Orders in which the confinement was nullified because it had not been judicially ratified.According to the Supreme Court, if the judicial ratification is denied, it is not necessary for the Administration to agree to “nullify” the act that included the sanitary measures, “since it is an act that has never been legally effective.” the Chamber, is that the Administration “can – or even should – publicize the denial of judicial ratification of the sanitary measures, especially in the event that they had previously had some kind of official publicity.” The Chamber clarifies that the Orders of May 7 and 12 that agreed to the confinement of Montefrío, to which the appealed orders refer, could never legally take effect and, therefore, it was inadmissible for the Junta de Andalucía to issue new Orders expressly leaving those without effect. Finally, the Supreme Court adds a final precision in the order released this Friday, noting that “it is not a mere formality to verify that the Administration has eliminated The act whose judicial ratification was requested and was not obtained, nor is it inferred from this that the appeal is then devoid of purpose. ”Furthermore, it recalls that the new procedure for judicial ratification of sanitary measures and the appeal for cassation does not They are no longer a procedure and an appeal followed before courts, so there must be some question to resolve. “It is not the function of the judges and contentious-administrative courts to exercise an advisory function,” the Chamber concludes.