TSJC High Court ruling questions necessity for curfews or inter-island travel restrictions in Canary Islands following end to State of Emergency
A Canary Islands TSJC High Court ruling has refused to endorse the regional government’s intention to maintain scheduled curfews, and in particular travel exclusion rules around perimeter closures on islands at alert levels 3 or 4. The Contentious-Administrative Chamber of the TSJC also established the limits to people in places of worship and maximum numbers of non cohabitants at family or social gatherings in public and private. All Canary Islands are currently at level 1 or 2, and so for now the travel restrictions in question are not of great importance, but there will be debate over whether curfew is still required.
The Government of the Canary Islands has already announced that it will file an appeal before the Spanish Supreme Court against the order of the Canary Islands TSJC on maintaining the power to enforce curfew and the perimeter closures, and in the meantime it has decided that these measures do remain in force.
The TSJC High Court ruling provides a legal basis for measures that the regional Government intended to establish into regional law, following today’s end of the nationwide state of emergency, and which they adopted in the Governing Council last Thursday, in reference to the continuity of the archipelago’s perimeter closure rules, curfews, the capacity and limitation of the numbers of people in places of worship.
The Canary Islands High Court (TSJC) is the highest legal body in the Autonomous Regional Community, and they had until noon on Monday to rule on and resolve any objections to the course of action proposed, issuing their opinion instead this Sunday afternoon in Santa Cruz de Tenerife, the court published their official ruling following a private vote of the magistrates.
They opposed any scheduled restriction to movement at night without a demonstrable reason, and to restrictions on travel between islands while tourists are still able to come for holidays but residents cannot stay at a friends house, as well as any attempt to prohibit religious demonstrations on public streets, so long as they have the appropriate prior planning, even during alert levels 3 and 4, saying that the rest of the restrictions were subject to the approval of the municipalities themselves.
The TSJC High Court ruling indicates, in its resolution, that it is not their task to review the timeliness of agreed measures, but to analyse which of them limit or restrict the fundamental rights of citizens and whether such limitation is legally permissible.
The judges pointed to several reasons for denying the regional government the power to stop travel between islands pointing out that tourists are allowed to travel to the islands with a negative test result and a reservation in a tourist establishment, but not if they are staying at a friends place, warning that “we do not consider that this tourist reservation can be a sufficient differentiating element in relation to enforceable public health protection purposes”.
As for restrictions to movement at night the court declared this to not be appropriate because they do not see any reason “by virtue of which it can reasonably be defended, that risky behaviours are even more dangerous if they are carried out during night time hours or that the harmful ones cease to be so because the day gives way to the night”.
This is literally “confinement based solely on a schedule” continued the Chamber, making clear that in their view the public powers have other less harmful legal instruments of intervention, if it is simply harmful behaviours that are to be avoided, but could see no reason to suggest that harmful behaviours were more or less likely at a given period of the day or the night.
The TSJC upheld approval for the limitation on the number of people, not living together, in family and social gatherings, whether that be in spaces for public or private use, indoors or outdoors, which they see as a proportionate measure and “does not imply a restriction of the essential nucleus of the fundamental rights of freedom and assembly”.
While the judges said that there should still be limitations on the numbers of worshipers during religious ceremonies, they say no reason to uphold a blanket requirement for extra authorisations to use the exterior of buildings or the public highway for the celebration of acts of religious worship “because the prior communication regime allows an effective control of the acts of assembly and manifestation” without the Chamber seeing any need for the introduction of additional prior authorisations, the constitutionality of which would also be doubtful.
The Government of the Canary Islands expects the Supreme Court to adopt a common line after similar types of proceedings have been raised in various autonomous communities. In some of them, measures similar to the Canary Islands, such as the curfew, were ratified.
The regional government said that valued, however, that the order of the TSJC gives legal conformity for some measures, among them those related to the limitation of the maximum number of people who do not live together.
According to the regional government restrictions stay in place for now.