Tuesday, January 18

Justice rejects the COVID passport in Andalusia for hospitals and residences

Justice has rejected the implementation of the COVID passport proposed by the Junta de Andalucía for those people who make visits or accompaniment to patients admitted to hospital centers or make visits to residents of a social health center, as reported by the Superior Court of Justice of Andalusia (TSJA). In a statement, the Andalusian high court indicates that the Contentious-Administrative Chamber of the TSJA, based in Granada, considers that the proposed measure meets the requirements of proportionality, necessity and suitability and that there is little entity of the restriction of fundamental rights, but it does not ratify the Order as it does not have a temporary limitation of its validity.

The order explains that the Administration can immediately re-interest a new ratification by establishing an appropriate time limitation in the order, so it is expected that the Board modifies its request to try to alleviate the rising coronavirus infections in Andalusia. The resolution indicates that the justification of the measure should not be limited to its proportionality, necessity and suitability, but that “it must also contain sufficient motivation regarding its validity over time.” Thus, it recalls that the Supreme Court concluded that current legislation allows the adoption of specific restrictions or limitations of fundamental rights. This “punctual” character must be understood, according to the order, “not only in relation to the different powers inherent in each fundamental right, but also in terms of maintaining the restriction over time”.

The decision of the TSJA, despite the prior endorsement of the measure by the Superior Prosecutor’s Office of Andalusia, is not finally added to that of other courts that have endorsed the certificate. Galicia, Aragon, the Balearic Islands, Murcia, Catalonia, the Valencian Community and Navarra already have the endorsement of their higher courts of Justice to impose the COVID passport in their territories and be able to access certain spaces in the face of the upturn in cases that is occurring at the level national. It should be noted that Health experts consider that the COVID passport does not serve to reduce infections in Spain, the Alerts Report considers that it can “encourage” vaccination and sees its use “more justified” in hospitals or residences than in bars, as Andalusia had requested, since the vulnerable population is concentrated there.

In the request of the regional administration, no reason is attached as to why there is no temporal limitation of the measure or the reasons why it is not possible to set a specific term of validity. Thus, “in the event that the Court ratifies the order in the terms in which it has been presented, it would have a totally indefinite duration and it would be beyond the control of its proportionality, necessity and suitability,” the order states.

For this reason, it has an impact, although the measure is currently justified, the evolution of the pandemic “may lead to the fact that in a given period it ceases to meet the previously stated requirements, therefore, a restriction of fundamental rights would be prolonged over time without sufficient justification ”. Thus, although the order states that there will be continuous monitoring and evaluation of the measure, if it were ratified “it would mean accepting that this monitoring and evaluation work would be practically exempt from any judicial control.”

The resolution explains that the jurisdictional bodies cannot determine the way in which the precepts have been drawn up, which is why the measure can only be denied. All this, without prejudice to the fact that “the Administration may immediately re-interest a new ratification, establishing in the order an appropriate time limitation, without prejudice to a subsequent extension by this Court.”

Measure provided

The order indicates that the requirement of the COVID-19 certificate or diagnostic test in people who go to health centers and residences facilitates the prevention of infections and, consequently, can prevent an outbreak among the most vulnerable people. People without immunity are more likely to be infected and to be transmitters with a higher viral load than people with immunity, “which justifies preventing their access to places considered to be of high risk of exposure.” Thus, it explains that there is no discrimination between those vaccinated and those who are not, since they can present the vaccination certificate, the result of an antigen test or the COVID-19 recovery certificate if they have passed the infection.

Furthermore, even assuming that such discrimination existed, “there is an objective and reasonable justification, since it concerns the protection of people’s health and lives.” Regarding the possible violation of the right to privacy, the order recalls that the Supreme Court defends that it is not prevalent with respect to the legal rights that are intended to be protected.

Along with this, the order recalls that the implementation of the measure “does not directly or indirectly imply the obligation to be vaccinated or the display of medical information that we could classify as excessive in the context of the current pandemic”, which justifies its proportionality. And he considers it necessary because its purpose is “to immediately reduce the rising rate of infections, especially in a spatial and subjective environment so exposed to transmission” and it is ideal because it aims to limit access to these centers for people who potentially have an increased risk of disease transmission. Although the risk will never be zero, “it should not be understood that the measure is useless”.

The precedent with nightlife

In any case, the Board seems that it will also request a passport for access to nightlife and restaurants. In La Sexta, the Andalusian president himself, Juan Manuel Moreno, confirmed on Wednesday night that the Andalusian Government “probably” will request the TSJA the necessary legal endorsement so that the vaccination certificate can be required in that sense, thus attending to a proposal from the sector itself. “The hospitality and leisure sector have asked us” that the Board request the certificate as mandatory “for the whole of the night,” according to Moreno, who highlighted the “very responsible attitude” on the part of this sector. The objective is “to be able to control accesses as much as possible and, above all, large agglomerations,” said the president.

Although Moreno pointed out that “we hope he will grant it to us,” the Andalusian administration suffered a judicial setback in this regard last summer by the TSJA, which rejected the Covid passport to enter the entertainment venues at night. Last August, the Board proposed in an Order to limit access to the interior of entertainment and hospitality establishments with music to those people who could prove that they were in possession of the Covid certificate, or have performed a PCR or antigen test with negative result in the last 72 hours. The Contentious-Administrative Chamber of the TSJA, based in Granada, denied judicial ratification of that measure, a decision that was later endorsed by the Supreme Court.