The Superior Court of Justice of the Canary Islands (TSJC) has agreed to suspend several of the measures adopted by the Canary Islands Government against the pandemic on July 26th, including the total closure of commercial activity between midnight and 6:00am in the islands in level 4, and the requirement for a complete Covid vaccination certificate or negative proof of infection for access to the interior of bars and restaurants and other establishments such as gyms, cinemas, theatres, auditoriums and arenas.
The Second Section of the Administrative Litigation Chamber of the TSJC at its headquarters in Santa Cruz de Tenerife, has evaluated the precautionary measures requested by the Círculo de Empresarios y Profesionales del Sur de Tenerife and by the Asociación Hostelería Unida Tenerife (HUT), and has agreed 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 Boletin of the Canary Islands (BOC) on July 26th.
Consequently, and on a precautionary basis, the total closure of establishments between midnight and 6.00am (as the Supreme Court had already advanced last Tuesday) and the requirement of the Covid certificate or negative coronavirus test for access to bars, restaurants, gyms, cinemas, theatres, auditoriums and ‘cultural spaces’ is suspended. As is the capacity in the hospitality industry set at 50% for both levels 3 and 4, and that of the remaining establishments listed at 55% for level 4, except for gyms and sports facilities which are 33%.
The Court agrees with the hospitality associations, that the obligation of their clients to show a Covid Certificate is wrong, because vaccination is not mandatory, and that this measure by public health controllers, invades the right to personal privacy, which is protected by the Constitution.
The Chamber also recalls that the European Court of Human Rights has “insisted” on the importance of health data for private life, “noting that respect for the confidential nature of health information constitutes an essential principle of the legal system of all the States parties to the EU Convention.”
The Court has taken the unprecedented decision partly, that is, by appreciating an obvious risk to fundamental rights and the public interest. The measure is therefore extremely precautionary; the order itself gives the Government of the Canary Islands three business days to make its appeal regarding the maintenance, modification or revocation of the agreement. 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 Government.
