The Superior Court of Justice of the Canary Islands (TSJC) has denied the request of the Government of the Canary Islands for the ratification of the measures to limit the entry and exit of people to the Islands in alert levels 3 and 4 and the limitation of the freedom of movement of people at night, and has confirmed the origin of the limitation of social and family gatherings and the permanence of people in places of worship, provided that it is not outdoors.
The Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands has notified this Sunday afternoon, the order that responds to the request submitted at noon last Friday by the Government of the Canary Islands for the ratification of the preventive measures of propagation of Covid-19 adopted from the end of the validity of the state of alarm decreed by the Government of the nation, that is, from zero hours today, May 9, 2021.
In reference to the restriction of entry and exit of people to the Islands in alert levels 3 and 4, the Court considers, by the majority of its six members, that the negative impact on fundamental rights is not sufficiently justified.
It understands, among other things, that the measure establishes "a legal regime that discriminates", since the restriction operates on trips from outside the Islands to them, "but if it is between Islands, these assumptions no longer apply, but a negative PDIA is enough." And it also points out that, according to this agreement, a person who proves a tourist reservation in the Islands could travel, but if that same person instead of going to a hotel, stayed at a friend's house, "it would not be possible even presenting" a negative Covid test.
"We do not consider that this tourist reservation can be a sufficient differentiating element in relation to the purposes of protecting public health that are required," the Chamber warns.
The TSJC also does not see fit, this time unanimously, to validate the so-called curfew, that is, the "limitation of the freedom of movement of people at night", because it affirms that it supposes "a true confinement for the sole reason of the schedule". "If what is intended, tacitly, is to avoid that certain behaviors may entail a greater risk to public health because it is considered that they usually, by social custom, develop at night," the order states, "the public authorities have other less harmful intervention instruments."
The Chamber alludes in this sense to the Law of Classified Activities and Public Spectacles or to the Organic Law of Protection of Citizen Security, which, it warns, "we cite merely as an example and among others, without it being proportionate to subject the general population to a periodic deprivation of their ambulatory freedom for the mere reason of the hour."
Family and religious gatherings
The TSJC does confirm, unanimously, the accommodation in the legality of the measure of limitation of the maximum number of non-cohabiting people in family and social gatherings, in spaces of public and private use closed or outdoors: "This measure is proportionate and does not imply a restriction of the essential core of the fundamental rights concerned (freedom and assembly), but only affects accessory aspects of the same, modulating them, but not preventing them," it justifies.
Likewise, the Court ratifies with full consensus the adjustment to the Law of the measure of limitation to the permanence of people in places of worship, but only when these meetings are held in closed spaces. The Chamber does not approve point two of this measure, referring to the restrictions when these religious meetings are held outside buildings or on public roads.
The order attaches two dissenting opinions, issued by two members of the Chamber, who were in favor of maintaining the limitation of the entry and exit of people to the Islands with alert levels 3 and 4. According to the dissenting magistrates, this limitation involved "a minimal and necessary impact on the right to free movement, justified in the containment of a communicable disease of extremely serious consequences for the health and life of people."
According to the Chamber, in the processing of the request, the Public Prosecutor's Office reported opposing the so-called curfew and the limitation of the maximum number of non-cohabiting people in family and social gatherings. The Public Prosecutor's Office stated that it had "nothing to oppose" to the approval of the remaining measures proposed by the Canary Islands Government.
The order is subject to appeal before the Supreme Court.
