Canary Islands TSJC High Court again frustrates Regional Government measures against COVID-19
The Government of the Canary Islands are struggling to issue guidance in the face of increasing infections and hospitalisations and the repeated rejections of measures to contain the pandemic from the Canary Islands High Court. The Superior Court of Justice of the Canary Islands (TSJC) yesterday provisionally suspended the obligation to present Digital Covid Certificate to access interior areas of restaurants, gyms and cultural venues. This was just part of the measures announced last Thursday which came into force at the beginning of this week, with particular attention to islands at Alert Levels 3 and 4. The Contentious-Administrative Chamber base their decisions on the jurisprudence of Spain’s Constitutional Court and the European Court of Human Rights, which consider that “data relating to health are included within the right to privacy.” In their opinion this precludes the mandatory presentation of health certificates before being allowed to enter an establishment. The judges also overturned time limitations of non-essential activities between 00:00 and 06:00 and increased the amount of people allowed indoors at gymnasiums to 55%, on islands at Alert Level 4.
Last Monday, restaurants and cafeterias on Tenerife – at level 4 – and some of those on Gran Canaria, Fuerteventura and La Palma – at level 3 – were required to screen customers before allowing them inside their premises to eat or drink, though those eating or drinking outside on a terrace did not need to show any documentation. This rule was suspended yesterday after the two decisions issued by the TSJC in response to appeals from the Circle of Entrepreneurs and Professionals of the South of Tenerife and the United Hospitality Association of Tenerife (HUT).
The Minister for Public Administrations, Justice and Security and spokesman for the regional Executive, Julio Pérez, said yesterday during the weekly press conference following the meeting of the Governing Council, that these proceedings will require “in-depth study” , because they dealt specifically with the elimination of night-time restrictions imposed at Alert Level 4, which he said “is not coherent”. Pérez pointed out that in the Canary Islands, for nearly a year, similar documentation has been required to access hotel establishments, as well as in ports and airports to enter the Canary Islands.
Pérez rebuffed the idea that every decision the Government has adopted during the health crisis has been suspended by the courts. When the national State of Emergency in Spain concluded on May 9, control of pandemic measures passed into the hands of the regional governments, and there have been some notable setbacks with the regional judiciary. In May, the Supreme Court dismissed an appeal filed against the TSJC having rejected perimeter closures around islands at Alert Level 3 and 4. At the end of June, the regional court suspended the Governing Council agreement which decreed the closure of indoor areas in hospitality establishments and a maximum occupancy of 50% on outdoor terraces, on the islands at Alert Level 3.
The Administrative Litigation Chamber of the Supreme Court also ruled against curfews on the Canary Islands, in the Canary Islands Government’s appeal against the TSJC not allowing it, on July 14, after the regional executive tried to re-introduce the restrictions on mobility, which had been allowed under the national State of Emergency, between the 00:30 and 06:00 on islands with the highest incidence of coronavirus (Alert Levels 3 and 4). Infection rates have continued to rise.
Spain’s Minister for Health, Carolina Darías, has stressed that in Spain it is not mandatory to be vaccinated, after the Canarian Government studied the idea of requiring public employees in essential services to be immunised against Covid-19.
The judgements published yesterday by the TSJC now set the capacity inside hotel and restaurant establishments at 50%, on islands at Alert Level 3 and 4. For cultural venues, like cinemas, theatres and auditoriums, the magistrates consider it proportional to restrict the capacity to 55%, but they do not endorse members of the public having to provide health information to be allowed to enter.
Both the Government of the Canary Islands and the Tenerife business associations now have three business days to present any objections they deem appropriate regarding the maintenance, modification or revocation of the agreement. The Minister of Health, Blas Trujillo, pointed out that they will try to present objections to the judgements as soon as possible and appealed for individual responsibility while the Court issues a ruling.
Pérez stressed that, despite these latest judgements, most decisions of the Government of the Canary Islands on the pandemic try to combine health with economic activity and legality and have been ratified by the courts. “We will make these objections to find out how far the court’s mandate reaches, but I insist that all the measures are decided based on the recommendations and proposals of the technical, health and legal services, which have a team of 25 lawyers.” He emphasised, “the Government has tried to combine the defence of health so that the impact of the pandemic is the least possible, compatible with developing the greatest possible economic activity and with respect for the law and, in particular, Fundamental rights”.
“Our decisions about the certificate are based on law”
The spokesperson also stressed that although the appeal has been presented by two business associations in Tenerife, the use of the COVID certificate was agreed with other entities in this sector of the Islands and at their proposal. “In the objections, we will defend last week’s decision, in our opinion, as justified and based on law. It seems to us that the right to privacy cannot be understood to be injured in this case, apart from the fact that going to a bar, restaurant or gym is a voluntary activity. That this certificate is required to use a gym or enter a restaurant has not occurred only to the Canary Islands. It is spreading throughout the world and the president of the United States, Joe Biden, will announce tomorrow (Friday, July 30) that public officials must provide themselves with a COVID certificate ”.
This document has the double advantage of facilitating the greater use of interior capacities and provides more security to the clients of those businesses. He also recalled that on the Islands, a million residents have already downloaded this certificate from the website of the Ministry of Health, “which does not seem to be a requirement that costs a lot to obtain.” The certificate is obtained not only through vaccination, but alternatively if the individual has had COVID-19 or a negative test is carried in the last 72 hours.
President of the Cabildo de Tenerife, Pedro Martín, said yesterday that in the face of repeated rejections of measures by the TSJC, the only tool they have left is to increase vaccination and testing, as far as possible. Likewise, Martín acknowledged that the Court’s decision was not expected and confessed that it was “a surprise” to him.