The Superior Court of Justice of the Canary Islands has agreed to suspend as a precautionary measure several of the measures adopted by the Government of the Canary Islands against the pandemic on July 26, including the total closure of commercial activity between 00:00 and 06:00 hours in the islands at level 4 and the requirement of a complete covid vaccination certificate or negative infection test for access to the interior of hospitality, hotel and other establishments such as gyms, cinemas, theaters, auditoriums and cultural spaces.
The Second Section of the Administrative Litigation Chamber of the TSJC at its headquarters in Santa Cruz de Tenerife has upheld the precautionary measures requested by the Circle of Businessmen and Professionals of the South of Tenerife and by the United Hospitality Association Tenerife (HUT) and has appreciated a possible violation of fundamental rights in the measures against the spread of covid 1.6; 3.2;3.7 and 3.13.2 of the annex to the resolution of July 23, 2021 published in the Official Gazette of the Canary Islands on July 26.
Consequently, and as a precautionary measure, the total closure of establishments between 00:0 and 6:00 is suspended (as the Supreme Court had already advanced last Tuesday) and the requirement of the covid certificate or negative diagnostic tests for coronavirus for access to bars, restaurants, gyms, cinemas, theaters, auditoriums and cultural spaces. The capacity in hotels and restaurants is set at 50% in both level 3 and level 4, and that of the remaining establishments listed at 55% for level 4.
The Court understands that the hoteliers, who have no obligation to show their clients their covid certificates because vaccination is not mandatory, "are enabled by the measure in controllers of public health, going on to invade the field of the right to personal privacy" protected by the Constitution.
The Chamber also recalls that the European Court of Human Rights has "insisted" on the importance that health data has for private life, "pointing out that respect for the confidentiality of health information constitutes an essential principle of the legal system of all States party to the Convention."
The Court has taken the decision inaudita parte, that is, when assessing an evident risk to fundamental rights and the public interest. The measure is therefore extremely cautious, the order itself gives the Government of the Canary Islands three working days to make its allegations regarding the maintenance, modification or revocation of what has been agreed. Next week, therefore, the Chamber will decide whether to maintain its current decisions or modify them in view of the arguments of the legal services of the regional Executive.
