The Prosecutor's Office of the Supreme Court has requested that the appeal filed by the Government of the Canary Islands be dismissed outright against the decision of its Superior Court of Justice not to ratify the perimeter closure of the islands that are at level 3 and 4 in order to deal with the Covid pandemic. It considers that the appeal lacks grounds for appeal, so the high court should not deliberate on the issue raised.
"This Prosecutor's Office understands that, in reality, the appeal filed by the representation of the Government of the Autonomous Community of the Canary Islands contains a simple review claim of the reasoning used by the Court a quo, which does not conform to the concept and function of the appeal, but would rather fit into the technique of appeal," it states.
It adds that, although the evaluative reasoning used by the TSJ of the Canary Islands may be debatable, "it is not possible to confuse this discrepancy with the infringement of the proportionality test imposed by the examined jurisprudence."
Therefore, it concludes that the appeal lacks "objective grounds for appeal for the formation of jurisprudence regarding the control of proportionality carried out by the Canary Islands court."
The grounds for appeal proposed by the Government of the Canary Islands sought to have the Supreme Court establish as jurisprudential criteria that, in exceptional situations such as a global pandemic, the proportionality test on measures by the health authority requiring judicial ratification cannot be abstracted from the reality that has forced the adoption of the measures, and resolve as if it were in a situation of absolute normality.
In total, the TSJC overturned two of the measures proposed by the Canary Islands Government - the curfew and the perimeter closures of islands with high incidence - but finally the Executive decided to appeal only one of them and renounce the curfew, considering that it had more chances of success.
