Tuesday, December 7

Justice knocks down the COVID passport requirement in Euskadi

The contentious-administrative chamber of the Superior Court of Justice of the Basque Country (TSJPV) has decided not to authorize the use of the COVID passport in the Basque Country. The decision has not been unanimous, since it has a private vote cast by Judge Luis Garrido, who is the president of the court and on other occasions had opposed measures of the Basque Government. Yes, justices José Antonio González Saiz and Irene Rodríguez del Nozal have seconded the paralysis of the certificate. The Prosecutor’s Office had also supported the initiative of the Department of Health in the face of the rebound in the pandemic.

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Among the arguments used by the Superior, it is mentioned that it would be a limitation of the fundamental right of assembly, the right to freedom of movement or even freedom of expression or artistic creation by preventing everyone from performing in karaoke. It is mentioned that it is not reasonable to apply a “uniform” measure throughout the autonomous community since the data are not homogeneous. In addition, the “very high percentage of vaccinated is a factor that works against”. “Imposing the requirement of a passport indiscriminately lacks justification and even less when it is simultaneously recognized that the effects of contagion on those vaccinated are not relevant,” argues the court decision, which considers that the situation of the workers should also have been foreseen , which “perfectly can infect customers. Likewise, it is ugly not to have valued the position of people over 12 years of age with contraindicated vaccination and that they would be banned from some entertainment venues.

The specific measure was to consist of the display on paper or digital support of the QR certificate to be able to access “establishments intended to offer the public leisure and dance activities”, which are discotheques, dance halls, party rooms, bars musicals, 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 of 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 because it saw 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.

Throughout the pandemic, the Superior has stopped the vast majority of measures proposed by the Executive of Iñigo Urkullu. Thus, it led the whole of Spain to more than six months of a state of alarm by rejecting limitations to mobility without an exceptional framework or even preventing the closure of the hotel industry in the midst of the wave after Christmas last year. It also made it necessary to allow more public in the football stadiums when in Euskadi they had the most limited capacity. However, he did agree to allow the ban still in force on eating popcorn in cinemas, although on that occasion the rapporteur for the resolution was not Judge Garrido, but his colleague Emilio Lamo de Espinosa. However, never in the pandemic has any of the pronouncements of this court been accompanied by individual votes, except on this occasion and precisely issued by Garrido.

The proposal for the ‘COVID passport’, already explored in Galicia or Catalonia and which is now becoming widespread in Spain, as in other European countries, came from the Basque Government last Tuesday. It was a 180-degree turn to try to contain the escalation of the pandemic, since up to 24 hours before he had questioned its suitability. It was argued that it was an instrument designed to travel safely between European countries and that requiring the control of medical certificates from small operators such as hoteliers raised doubts. In fact, the announcement was so sudden that the final proposal wasn’t ready until 48 hours later.


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