ATTENTION.The HTML version of this document is not official.To get an official version, you need to download the file in PDF format.82 pages.File format in PDF/Adobe Acrobat.Size: 595.6 Kb. BOC-A-2022-113-1923.Electronic signature - DownloadBe known to all citizens that the Parliament of the Canary Islands has approved and I, on behalf of the King and in accordance with the provisions of article 47.1 of the Statute of Autonomy of the Canary Islands, promulgate and order the publication of Law 2/2022 , of June 6, which establishes the legal health alert regime and the measures for the control and management of the COVID-19 pandemic in the Canary Islands.TITLE I. GENERAL PROVISIONS.Article 4. Precautionary principle.Article 5. Duty of collaboration.Article 6. Duty of caution and protection.TITLE II.GENERAL PREVENTION MEASURES.Article 7. General regime.Article 8. General prevention and hygiene measures.Article 9. Use of masks.Article 10. Interpersonal safety distance.Article 11. Capacity regime.Article 12. Isolation and quarantineArticle 13. Regime of massive events.Article 14. Performance of diagnostic tests.Article 15. Screening.Article 16. Performing contagion and contact tracing.Article 17. Rated treatments of personal data in relation to the epidemiological situation and contacts.Article 18. Inspection, control and penalty system.Article 19. Judicial authorization or ratification.TITLE III.HEALTH ALERT LEGAL REGIME DURING THE COVID-19 PANDEMIC.Chapter I. System of alert levels.Article 20. Alert levels.Article 21. Establishment of alert levels.Article 22. Applicable measures at the different alert levels.Chapter II.Measures applicable at the different alert levels for the protection of health.Article 24. Applicable measures at alert level 1.Article 25. Applicable measures at alert level 2.Article 26. Applicable measures at alert level 3.Article 27. Applicable measures at alert level 4.Single.- Extraordinary measures of a budgetary nature.First.- Regime applicable to health, educational and social centers, as well as transport.Second.- Health alert level and applicable measures at the time of entry into force of this law.Sole.- Regulatory derogation.First.- Specific modification of the Canary Islands Sanitary Regulation Law.Third.- Entry into force.Annex I. Recommendations for the prevention of contagion by SARS-CoV-2.Annex II.Specific measures regarding cleaning and disinfection, capacity and safety distance.Annex III.Preventive measures for establishments, activities and specific spaces.COVID-19 has triggered a serious public health emergency for citizens, societies and economies worldwide, elevated to an international pandemic by the World Health Organization on March 11, 2020, posing significant challenges for public administrations since then at all levels.Its evolution has been vertiginous, requiring urgent and highly effective responses and coordination from the perspective of public action at all institutional levels that operate in the Autonomous Community of the Canary Islands, facing an extremely complex context due to the mutations of the virus and the appearance of new variants, despite the high vaccination rates achieved.The Canary Islands have reached 82% vaccination of their entire population within the planned period, a figure established as ideal to achieve the so-called group immunity that can stop the spread of the virus and promote the definitive return to the so-called new normality.An essential factor in achieving this milestone has been the massive collaboration of the population in availing themselves of this preventive practice, which continues at a rate that suggests higher levels of immunization in the short term.These facts, of great importance, make it possible to face the management of the pandemic with encouraging prospects that make it easier to reconcile the fight against the two crises that this virus has caused, the health crisis and the economic crisis, which must be combated with measures that, in a delicate balance, , allow the recovery and overcoming of the devastating effects of both.However, the virulence and behavior of this pathogen does not allow us to lower our guard, mainly due to the lack of scientific knowledge derived from the lack of precedents.The transmissibility of emerging strains is increasingly rapid and of greater magnitude, ultimately resulting in an increase in the number of diagnosed cases and incidence rates and subsequently in healthcare.The greater transmissibility of the omicron variant, or eventually of the later ones, should not be forgotten, a variant that continues to rise and has become dominant in almost all the autonomous communities, including the Canary Islands, as collected for the delta variant, the documents of the Ministry of Health : “SARS-CoV-2 variants of concern (VOC) and interest (VOI) for public health in Spain” (5th update, August 6, 2021) and “Update of the epidemiological situation of SARS-CoV variants -2 of concern (VOC) and interest (VOI) in public health in Spain” (updated August 30, 2021), which recommends increasing the percentages of vaccination coverage, highlighting the importance that the greatest possible number of people receive the complete guideline in the shortest possible time.Example, this, of what was initially indicated regarding the complexity of this global and unprecedented health crisis.After the two states of alarm declared by Royal Decrees 463/2020, of March 14, and 926/2020, of October 25, and their respective extensions, the management of the crisis has corresponded to the autonomous communities based on their powers statutory, making use of the legal instruments that the current system puts at your disposal.In such a way that, once the states of alarm have ended, the Canarian health authority has been acting under the current state and regional legislation on health and public health.Thus, Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters, which generally and unequivocally empowers the competent health authorities to adopt preventive and health protection measures that are considered necessary in case of risk caused by communicable diseases, it being indisputable that the COVID-19 pandemic has been caused by a highly communicable virus;Law 14/1986, of April 25, General Health, and particularly its article 26, which protects the action of the regional health authorities by authorizing them so that, in the event of an imminent and extraordinary risk to health, they can adopt the preventive measures that they deem necessary, such as the suspension of the exercise of activities and any others that are considered healthily justified, indicating said precept that the duration of such measures will be set for each case, without prejudice to the successive extensions agreed by reasoned resolutions, without exceeding what is required by the situation of imminent and extraordinary risk that justified them;Law 33/2011, of October 4, General Public Health, whose article 54 establishes that public administrations are responsible for adopting those special and precautionary measures, when there are reasons of special gravity or urgency, within the scope of their respective competences in public health matter.None of these regulations, in a way that is absolutely consistent with the risks they seek to prevent and combat, limits the measures that can be adopted based on their individual character by reference to a determinable person or groups of persons.Chapter II of Title II of Law 11/1994, of July 26, on Sanitary Regulation of the Canary Islands, pronounces in similar terms.Likewise, we cannot forget the recent Law 2/2021, of March 29, on urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19, issued under article 149.1.16 of the Spanish Constitution, which attributes to the State the competence in matters of foreign health, bases and general coordination of health and legislation on pharmaceutical products, whose measures will be applicable until the State Government declares the end of the health crisis situation caused by COVID-19 (article 2.3).The ruling of the Supreme Court No. 719/2021, of May 24, fourth legal basis, considers whether the right to life and the right to health protection, which although it is not a fundamental right, can converge with that in limit circumstances, and the state laws that have developed it, the aforementioned, which did not foresee circumstances such as the ones we are going through, allow or not restrict the use of other fundamental rights, to conclude that health legislation does authorize the limitation of certain rights fundamental, provided that the conditions foreseen by it are fulfilled.It points out that the third article of Organic Law 3/1986, when speaking of the measures "that are considered necessary in the event of a risk of a transmissible nature", is clearly circumscribing its qualification to cases of diseases that entail such danger.It is not possible, therefore, to make use of it in any circumstance but in one of the seriousness and necessity that emerges from its own statement.There is, therefore, an objective precision -the existence of a communicable disease- that constitutes the context in which the "control of patients" must be placed, that of "people who are or have been in contact with them" and the “immediate environment”.Depending on how many patients are counted and who have had contact with them in units, tens, hundreds or thousands and the place or places in which they are found, the subjective and spatial scope of application of the precept will be extended correlatively, but without being able to reach more beyond it and become general.However, this article, endowed with a clear final indeterminacy, cannot be understood separately from article 26 of Law 14/1986 and article 54 of Law 33/2011, since they address similar situations and pursue the same purpose of protecting health. everyone in situations where you are in danger.Once again, we find ourselves with the identification of an exceptional assumption -the extraordinary imminent risk to health- and with an authorization to the health authorities, with an indication of specific actions and, in addition, with "those that are considered health-justified".Therefore, in addition to the emergency context for health, it requires justification from the health point of view of these measures.It is not, as the third article of Organic Law 3/1986 is not, a blank clause that empowers the health authority for anything at any time.And the same thing happens with article 54 of Law 33/2011, which "re-circumsects the alleged fact, always of extraordinary seriousness and urgency, requires motivation from the Administration, contemplates measures and leaves the door open to others that, not They only have to be suitable for dealing with this health emergency, but also require that they be temporary and proportionate.Therefore, this set of precepts offers sufficient precision, objective, subjective, spatial, temporal and qualitative to satisfy the requirement of certainty that the precepts that base specific restrictions or limitations of fundamental rights and, specifically, freedom of movement must have. , which, on the other hand, cannot always be predetermined -since situations never imagined or, consequently, foreseen- must not be excluded- and the terms just examined do not deviate from the parameter accepted by the Constitutional Court for the typification of sanctions, for example in its judgment No. 14/2021”.In short, health legislation does authorize the limitation of certain fundamental rights provided that the conditions provided for therein are met and that they are specified in the identification with sufficient clarity of the serious danger to public health derived from a communicable disease that must be avoided. to preserve the right to health and life;the establishment of the extension of that risk from the subjective, spatial and temporal point of view;and justification of the suitability and proportionality of the means established.Although the Supreme Court considers that "it would have been desirable that, instead of indeterminate concepts and general clauses, we could resort to a specific regulation to deal with the pandemic that detailed how many extremes were susceptible to precision to offer maximum legal certainty".Legal basis that the Superior Court of Justice of the Canary Islands expressly endorses in two Orders No. 252/2021, of July 30 (fourth legal basis), and 256/2021, of September 2 (third legal basis), issued in procedures of protection of fundamental rights nº 234/2021 and 245/2021, respectively.This law also obeys this need to have a specific regulation, which seeks to provide the regional legal system with a rule that specifically defines the legal regime necessary for the management of this unprecedented pandemic, detailing how many extremes are susceptible to precision to offer the maximum legal certainty, in light of the knowledge and scientific evidence that has been generated in the two years that its impact has lasted.The Government of the Canary Islands, like the other autonomous communities, has been acting on the basis of its statutory powers in health matters -protected by the legal authorization contained in the aforementioned state and regional legislation-, in civil protection, in social assistance and in many other matters involved in the fight against the pandemic.However, the regulation and protection offered by said legislation represents only a part, albeit an important one, of the list of legal solutions of all kinds, individual or collective, that requires attention to the pandemic.And it is that both the problems posed by the pandemic and the need for intervention by the autonomous public powers, from a temporal and material perspective, make legal regulation according to said needs necessary and convenient.The lack of definition and the indeterminate legal concepts revealed in the aforementioned Supreme Court ruling, as well as the new and changing health situation, without historical or scientific precedents, require legal certainty that can only be provided by a regulation with the force of law, a task that other autonomous communities have already undertaken.The law constitutes, without a doubt, the most effective tool, in the strict legal plane, to order the behavior of institutions, public and private agents and citizens, by imprinting the greatest legal security on their relationships.From this perspective, the availability of a law that establishes the legal health alert regime and the necessary measures for the control and management of the COVID-19 pandemic in the Canary Islands and that makes it possible to deal with this health crisis constitutes a practical and maximum influence and usefulness in different aspects.It is essential to specify the origin and effectiveness of the measures to guarantee that they are applied with the indispensable immediacy that public health actions require.The verification of the evolution of the epidemiological and public health indicators constitutes a material action of the Public Administration, of investigation and systematization of facts, not subject to legal controversy without contradictory verifications or verifications, and that, when it is documented in the form and by the persons established in the basic state and sectoral health and public health legislation, enjoys the iuris tantum presumption of veracity.Based on such findings, the legal, regulatory or embodied in administrative acts of health intervention against the pandemic are proposed and adopted, where appropriate.Of little or no use is a measure that, after being proposed because it is essential in accordance with sanitary, epidemiological or public health criteria, is delayed in its application based on criteria unrelated to those that motivated its adoption.For this reason, the Law must provide the maximum certainty and predictability to the decisions of the health authority, avoiding generating concerns and transmitting insecurity to the population.In the current situation of health crisis, legal uncertainty costs lives.The institutions of the Autonomous Community of the Canary Islands have the responsibility, in view of the health crisis situation caused by the COVID-19 pandemic, taking into account its extension over time and in use of their statutory and legal powers, to provide the legal system Canary Islands with a clear, operational and safe legal regime that allows the health authority to act effectively, with the immediacy that the adoption of containment measures requires and that is impregnated with the maximum certainty, predictability and security, opting for those interpretations of the current constitutional and legal framework that practically all health authorities and judicial bodies have been upholding, to facilitate to a greater extent effective, safe and immediate responses to the future of this health crisis.While the health crisis caused by COVID-19 lasts, with better or worse epidemiological data, as shown by the evolution of the pandemic, the Canary Islands will not be in a normal situation but in a health alert situation, the one that corresponds at all times depending on epidemiological evolution, so its legal system must be prepared to deal with this serious situation.The limitation of fundamental rights by the legislator does not necessarily have to be done by organic law, as stated in the aforementioned Supreme Court ruling No. 719/2021, of May 24.It recalls that although the development of fundamental rights is reserved to that source (article 81.1 of the Constitution) and that the Constitutional Court has equated to development the establishment of limitations on fundamental rights of such intensity that they essentially affect them, in general the reservation of ordinary law is sufficient to regulate the exercise of rights, although in doing so its essential content must be respected (article 53.1 of the Constitution).And establishing specific limitations on rights, even fundamental ones, is not the same as developing them as long as, due to the characteristics of the restrictions, they do not distort them.Within the regulation that the ordinary law can make, it is therefore possible to impose specific limitations on fundamental rights and that reservation of ordinary law can be satisfied both by the law of the State and by the laws that, within its competence, dictate. the autonomous communities.In short, the statement that any limitation of a fundamental right must be made solely and exclusively by organic law does not correspond to the Constitution (SSTC No. 49/1999, 86/2017 and 76/2019).On the other hand, the Constitutional Court has been accepting that by organic or ordinary law the adoption of specific measures that limit the exercise of certain fundamental rights is allowed without the need to resort to the constitutional exception that implies the declaration of a state of alarm, provided that this limitation is sufficiently delimited in the corresponding legal provision of authorization in terms of the assumption and purposes it pursues and that said limitation is justified in the protection of other assets or constitutional rights (STC 76/2019, of May 22).Indeed, article 53.1 of the Constitution establishes, with regard to the rights and freedoms recognized in the second chapter of title I, that only by law can the exercise of such rights and freedoms be regulated and this in any case must respect its essential content. .It recognizes, therefore, that within each fundamental right there is an essential content and, therefore, there will also be elements that are not.Verifying respect for this essential content is therefore highly relevant.In fact, the essential content and the principle of proportionality are two "limits of the limits" that have their own substance and operate cumulatively in our system of fundamental rights (STC 236/2007).STS 719/2021, already cited, indicates that in order to understand what we should consider essential content, the citation of STC 11/1981, of April 8, resolving an appeal of unconstitutionality against various precepts of Royal Decree Law 17/1977, is unavoidable. of March 4 of that year, regulator of the right to strike and collective labor conflicts, to conclude that "we understand by "essential content" that part of the content of a right without which it loses its peculiarity, or, said of another way, which makes it recognizable as a right belonging to a certain type.It is also that part of the content that is inescapably necessary for the right to allow its owner to satisfy those interests for whose achievement the right is granted.This is also the line of the General Court of the European Union, which has defined the essential content of a right or freedom as “the substance of the right or freedom in question” (“Case of DenizBank A.Ş. v. advice”, judgment of September 13, 2018) and the Court of Justice of the European Union when pointing out that the essential content of a fundamental right is that part of it that cannot be violated in any way, an expression that it takes from article 19.2 of the Bonn Basic Law.And a regulation does not violate the essential content when “it only affects the modalities of exercising a (…) right, without endangering its very existence” (judgment in the case “SMW Winzersekt v. Rheinland-Pfalz”, case C-306 /93), so that the absolute guarantee of immunity adheres to the essential core of the right.Finally, the Constitutional Court, in its recent ruling 148/2021, of July 14, regarding the examination of Royal Decree 463/2020, of March 14, declaring a state of alarm for the management of the health crisis caused by COVID-19, has considered that “we must not forget that, in situations of “serious risk, catastrophe or public calamity” (in the words of article 30.4 CE), freedom of movement, like others, could be redefined and contracted -even without giving rise to a state of alarm- in accordance with what the court early called the "necessary limits that result from its own nature, regardless of those that are produced by its articulation with other rights", as established the STC 5/1981, of February 13, FJ 7 (FJ 5 of the sentence)”.Law 14/1986, of April 25, General Health, constitutes the first comprehensive ordinary regulation that enables the autonomous communities to legislate on this matter, by leaving coordination and the basic dimension of the so-called common denominator at the state level, and allow the regional legislator, in the exercise of legislative development and execution, to shape the corresponding public health policy in order to be able, among many other issues, to attend to situations in which there is a serious or imminent risk to people's health.In accordance with this and, very especially, in order to specify the generic authorization of Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters, to adopt the measures considered necessary to fight against the risks of transmissibility that we live today, it is up to the Canarian legislator, in accordance with the constitutional distribution of powers, to specify the scope of the measures that may be considered necessary to reduce the risks to public health, thus limiting the margin of discretion of the authority Canarian health system, given that within the framework of state legislation, and in accordance with the provisions of articles 141 and 19 of the Statute of Autonomy of the Canary Islands, the Autonomous Community of the Canary Islands is responsible for legislative development and execution of legislation state in matters of internal health, which includes, in any case, the management and execution of measures aimed at preventingserve, protect and promote public health in all areas, including occupational health, animal health with an effect on human health, food safety, environmental health and epidemiological surveillance, in order to guarantee the right to protection of health that is recognized to all people who are in the Canary Islands.The legal system of health alert and the measures for the control and management of the COVID-19 pandemic in the Canary Islands established by this law, called to decline when the current health crisis situation is overcome, does not constitute frontal development or entail restrictions that involve essential limitation of any fundamental right, matters constitutionally reserved to organic law, but that only entails the provision of the possibility of provisional modulations and limited to the way in which certain people enjoy and make use, in very specific and non-generalizable circumstances, of the fundamental right.Therefore, it is constitutionally admissible in accordance with the criteria resulting from the judgment of the Constitutional Court 53/2002 and is issued in exercise of the powers of the Autonomous Community of the Canary Islands established in article 141 of the Statute of Autonomy, constituting a legislative development of what established in Organic Law 3/1986, of April 14, on Special Measures in the Matter of Public Health, basic and susceptible, therefore, in the terms and with the limits that have just been specified, of development by the regional legislator.Through this law, admissible modulations are established in specific and non-generalizable circumstances, in view of the current health crisis situation, which are fully justified "in the protection of other constitutional rights or assets", as a result of the authorization contained in the aforementioned Organic Law 3 /1986, and as the Constitutional Court considers necessary when stating in judgment 76/2019, of May 22, that "all state interference in the field of fundamental rights and public freedoms must respond to a constitutionally legitimate purpose or be directed to the protection or safeguarding of a constitutionally relevant asset, since “although this Court has declared that the Constitution does not prevent the State from protecting legal rights or assets at the cost of sacrificing others that are equally recognized and, therefore, that the legislator may impose limitations to the content of fundamental rights or their exercise, we have also specified that, in such cases, these limitations must be justified in the protection of other constitutional rights or assets (SSTC 104/2000, of April 13, FJ 8 and those cited there) and, in addition, must be proportional to the purpose pursued with them (SSTC 11/1981, FJ 5, and 196/1987, FJ 6)” (STC 292/2000, FJ 15)”.Establishing the competence of the Autonomous Community of the Canary Islands, that what is established does not constitute a frontal development or an essential limitation of fundamental rights, but only provisional and limited modulations to the way in which certain people enjoy and make use, in very specific circumstances and not generalizable, of the fundamental right and the evident presence of constitutional rights and assets, such as the right to life that imposes the obligation of all public administrations to protect the health of citizens, which justify such modulations, is necessary, and hence the convenience of regional legislative development, provide the regulation of the health alert regime with a regime that guarantees that, if adopted, the modulation is suitable or adequate, necessary and proportionate (Judgment of the Constitutional Court 60/2010, of October 7).For this, in addition to the monitoring and information provided by the health authorities, this standard specifies the indicators or parameters that accredit such constitutional requirements, by referring them to the technical documents that are adopted within the framework of the National Health System, technical, objective reference and widely agreed upon at the national level, and imposes, by operation of law, the adoption of the measures that may proceed once the concurrence of the aforementioned indicators has been verified.In this way, after identifying the good or interest of constitutional relevance, the right to life and health protection, which is served by the limitation of other constitutional goods, which is modulated in the indicated conditions, the freedoms of movement, reunion or other rights or freedoms, the conditions under which one constitutional interest prevails over another are clearly established, as explained in the judgment of the Constitutional Court 53/2002, of February 27.It is the provisions with the force of law, moreover, that must provide for the regime of potential modulations of fundamental rights, enabling them, however determined and non-generalizable the circumstances in which they may proceed.1st.2nd.3rd.4th.5th.