The Government of Iñigo Urkullu has once again swerved 180 degrees and has decided that it will finally appeal to the Supreme Court the initial resolution of the Superior Court of Justice of the Basque Country (TSJPV) that prevented the implementation of the COVID passport at leisure and in restoration. In fact, the appeal is already presented. After 48 hours criticizing the judicial order but renouncing to “judicialize” the management of the pandemic, which included a statement and a public statement at a press conference by the Minister of Health, Gotzone Sagardui, official sources of the Basque Administration confirm that the legal services have finally presented an appeal to the high court, as demanded by the socialist wing of the coalition led by Urkullu’s PNV.
The PSE-EE regrets that the Basque Government has not appealed to the Supreme Court to veto the COVID passport
The basis for this appeal is the Supreme Court ruling on Galicia. That ruling authorized the application of the vaccination certificate or negative test provided that a series of limits were given. However, the Basque Superior understood that the Urkullu Executive’s proposal violated fundamental rights and that the aim pursued, the prevention of health due to the rebound in COVID-19, did not justify it sufficiently. Of course, it is also indicated from the Basque side as antecedents that “in the cases of Catalonia and Murcia […] their respective courts endorsed the requirement of the COVID passport. “Other communities such as Navarra have also requested the entry into force of this measure.
In parallel, the Basque Health Minister, Gotzone Sagardui, has called on the central government within the framework of the inter-territorial council that establishes the Ministry of Health and the autonomous communities to adopt a common framework for the application of this passport in a uniform way so that it does not is at the mercy of the different courts. Basque sources indicate that other autonomies have supported this position. Precisely the non-existence of a common agreement in this forum has been the justification used by the Executive to dress the change of opinion. “Given yesterday the non-adoption of new measures by the inter-territorial Health Council, the Basque Government is going to exhaust the possibilities to establish the COVID certificate, since it considers it a measure that contributes to the containment of the transmission of the virus. The legal authorities of the Basque Government argue that a measure of this type is necessary to help stop a new wave of community transmission of the virus and to encourage, even more if possible, the vaccination of all citizens. Fundamental rights, in this case individual freedoms, are opposed to the fundamental right to life and public health, which must prevail above all else, “they explain in a statement from the Public Governance and Self-Government area, on which the central legal services of the Basque Government.
And it is added: “Faced with the consideration of the TSJPV’s order that the COVID passport would affect, in addition to the rights to equality and privacy, the right to assembly, freedom of movement and freedom of expression and artistic creation , the legal services of the Basque Government maintain that these rights do not require for their development that their exercise be carried out in the premises where the requirement of the COVID certificate would be imposed. In this sense, it adds that the measure refers to premises where entry is voluntary and where essential activities are not carried out, to which there is an obligation to attend. The measure tends to reduce contagion, preventing risky behavior, a legal right that must be the object of protection much higher than the impediment that the requirement to present the document to access the establishment “.
What was the plan?
The specific measure proposed in the Basque Country was to consist of the display on paper or digital support of the QR certificate to gain access to “establishments intended to offer the public leisure and dance activities”, which are discos, dance halls, dance halls. parties, music bars, karaoke bars and, in general, all type III and IV establishments, which according to current regulations in the Basque Country would also oblige “erotic entertainment establishments”. Pubs and bars that have ordinary activities and then offer nightlife would have had to claim the passport from 10pm. Likewise, the measure would have been extended to restaurants with dining rooms with more than 50 seats. It was a matter of capacity and not users, that is, a person would not have needed a certificate in a room with 49 seats and full but in one of 51 that was empty. Those who are not vaccinated, those under 12 years of age, would have been exempted unless their age did not have limited access per se. The Prosecutor’s Office, although it gave the green light to this measure for seeing it as proportionate to the pursued purpose of preserving public health, warned that it could be discriminatory for workers, since for them going to these premises is not an option but a labor obligation that it cannot be restricted.
It so happens that the very implementation of the so-called COVID passport already meant another 180-degree turn in the line defended by Urkullu’s cabinet, who up to 24 hours before presenting it questioned its effectiveness. It was mentioned that it was designed to travel between countries and that its control was going to be complex for small operators such as hoteliers. However, in a short time it became the star measure to stop a clear rise in infections in what is already the sixth wave of the pandemic in Euskadi after three in 2020 (March, August and November) and the previous three in 2021 (after Christmas, after Easter and in summer). Furthermore, the climb does not stop. In the last 24 hours, according to data from the Ministry of Health, 797 new positive cases have appeared and the incidence rate rises to 332.94, with 225 admitted, 35 of them critical in the ICU. The plan is to keep the COVID passport at leisure until it drops below 150.