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Canary Islands High Court suspend 4am closing time extension pending appeal

Canary Islands High Court suspend 4am closing time extension pending appeal

The Higher Court of Justice of the Canary Islands (TSJC) has suspended the Canary Islands’ Government September 16 agreement extending nightlife opening hours, in a judgement announced this Tuesday.

The Second Administrative Court of the TSJC in Santa Cruz de Tenerife grants the administration of the Canary Islands autonomous community a period of three working days, from the notification of the order, to formulate any objections or appeal.

The Canary Islands have shown clear improvement in all the main indicators used to assess the situation, and the Government decided that nightlife businesses (discos, bars and karaoke bars) that voluntarily take responsibility for access control, could close at 4:00 a.m., on islands at coronavirus Alert Levels 1 and 2. The measure is subject to the presentation of a Covid certificate, a negative PCR within a maximum of 48 hours in advance, to be able to enter the establishments or to prove they have had the disease in the previous 11 to 180 days.

The order points out “from the outset the possible ineffectiveness of the agreed measure, due to a lack of prior judicial authorisation.” They base this on article 10.1.8 of the Law Regulating Contentious-Administrative Jurisdiction (LJCA), saying “measures adopted in accordance with the health legislation, that the state-level health authorities consider urgent and necessary for public health, and that imply the limitation or restriction of fundamental rights and [aimed at citizens] not individually identified, require judicial authorisation by the Administrative Litigation Chamber of the territorially competent Superior Court of Justice”.

In this sense, the Legal Services of the Autonomous Community needed to request judicial ratification of the approved measure, since the requirement to present the Covid certificate, a negative PCR or having had the disease to be able to enter a nightlife venue, would entail “a potential violation of the fundamental rights” of the people.

The lack of judicial authorisation, specifies the order of the TSJC, “has already been established, with clarity, by the Third Chamber of the Supreme Court” and for that reason, the measure approved by the Government of the Canary Islands on September 16, “lacks efficiency “, which is why “the administration cannot impose it nor the individuals be forced to obey it”. The Canarian Governemnt did not carry out the necessary prior procedure of submitting its decision to judicial authorisation, as a prior condition to apply it, and as there are “very strong indications” of this, this is why the TSJC has admitted the appeal.

That Liberum association, who brought the appeal, also appealed last August against the order of the Canary Islands Government for businesses to request Covid certificates to access hotel and catering establishments, and the TSJC agreed with the plaintiff then as well, by refusing to allow the requirement for this document to enter into a business, established in another order on July 20 of this year. It was considered that the measure “would lead to the segregation of citizens, so that only those who comply with those requirements could enjoy the exercise of all the activities that their scope of freedom allows them.”

The Executive has a period of three business days, counting from the day notified, to formulate any objections it deems pertinent regarding the modification, revocation or maintenance of the agreement. The Government was notified of the resolution on September 24, reports the TSJC.

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