The judicial blow to the COVID passport in Euskadi leaves other communities in suspense in the fight against the sixth wave

The new measures of the autonomous governments to stop the advance of the coronavirus are shipwrecked again in the courts. The COVID passport of the Basque Government has not received the endorsement of the judges for using too generic an argument and, as it has been happening since the beginning of the pandemic, doubts about how to prevent the sixth wave from continuing to grow are returning. With the confinements and the state of alarm out of circulation, the judges once again have in their hands the development of the less intense restrictions and the response, more than a year and a half after the beginning of the crisis, is still not unitary.

The sixth wave opens the debate on whether it is effective to put restrictions on those who do not get vaccinated

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The rejection of the High Court of Justice of the Basque Country to Iñigo Urkullu’s plan to control access to hotels and nightlife with the COVID passport has been overwhelming although not unanimous. The contentious judges explain that “the end does not justify the means when living in a state of law” and emphasize that demanding this vaccination certificate can affect an important bunch of fundamental rights of citizens: equality, privacy, assembly and ambulatory freedom. The magistrates’ resolution concludes that limiting access to karaoke can affect freedom of expression and artistic creation.

The data that the Basque Government uses on the growth of the pandemic in the community, explain the judges, are real but generic and do not justify the generalized restrictions, according to the judicial order. “It is not justified that the figures we have referred to are the same throughout the community and with this it is not justified either that the same measure should be applied uniformly throughout the Basque Country”, says the resolution, which has counted one vote in against. The Supreme Court reproaches the Basque Executive for having ignored the existence of other measures such as “the use of cleaners and air purifiers” to contain the pandemic and that, in its opinion, do not affect fundamental rights.

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This rejection of the Supreme Court of the Basque Country to the COVID passport leaves at least three communities that are going to request it immediately (Navarra, La Rioja and Comunitat Valenciana) or others, such as Andalusia and Castilla y León, that are considering it. Aragon is already awaiting the ruling of its courts with the precedent that they already rejected it in the past, while Catalonia and Galicia had it in force before this rebound. In fact, this Tuesday, the Generalitat de Catalunya announced that it is expanding the use of the COVID-19 certificate beyond nightlife and that it will begin to require it in hospitality establishments, gyms and residences for the elderly. Although before its entry into force, in principle on Friday, the Superior Court of Justice of Catalonia must decide.

Few governments rule out using it at a time of boom in cases (Madrid, Castilla-La Mancha, Asturias and Extremadura), so the blow in the Basque Country increases the pressure on the Ministry of Health. The department headed by Carolina Darias conceded last week, after a rather explicit rejection of the passport in the past, that the measure is an “open path” for regional governments, but the Basque background suggests that other administrations may clash with the courts. Darias insists that the petitions must be limited to what is established in the Supreme Court ruling in the case of Galicia and, for now, he avoids proposing a joint action coordinated with the communities, as some territories are asking him to do.

Galicia and Andalusia

The order, which the Basque Executive has decided not to appeal to the third chamber of the Supreme Court, returns a part of the autonomous communities to the starting box and gives continuity to the multiple resolutions that have been found since the beginning of the pandemic. This is not, in any case, the first time that the Spanish courts have come across the COVID passport: the Supreme Court endorsed the measure in Galicia and rejected it in Andalusia. Their files invite the health authorities to justify this limitation of rights a lot.

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Andalusia received a similar response from the Supreme Court last August. The judges, among other reproaches, assured that “the measure is postulated for the whole of the territory of Andalusia, in general, applicable to the entire population and Andalusian municipalities regardless of the incidence rate and without connection to their health situation and their evolution”. The measure of the Juan Moreno executive limited access to establishments “entertainment and hospitality with music” to those who could present the COVID certificate or a negative test of the previous three days.

A few weeks later Galicia received a different response. The third chamber understood then that the measure of the Xunta was “suitable, necessary and proportionate” and that the benefit that it presented at that moment “is much higher than the sacrifice that the requirement to present the documentation entails.” But the Supreme Court justified its decision and stressed that the measure implemented in Galicia was not unitary for the entire territory: “It is not implemented indiscriminately throughout the territory of the Autonomous Community (…) it establishes a kind of map that graduates the incidence of the pandemic in each place “. The key, therefore, is to spin as fine as possible if that is feasible when the goal is to prevent the next wave.

That order of the Supreme Court went in the opposite direction to his colleagues in the Basque Country in one aspect: the violation of fundamental rights. Wherever the TSJ of Euskadi understands that the COVID passport even attacks the right of artistic creation in karaoke, the Supreme Court limited itself to denying that it affected the privacy of people because it contains medical data on vaccination. Those rights, the court said at the time, “project a tenuous intensity when faced with the powerful presence of the fundamental rights to life and physical integrity, and with the protection of health that defends the general interest of all to survive the COVID-19 “.

The effectiveness of the passport

The sixth wave has given an unexpected boost to the COVID passport. Epidemiologists agree that it is an “easy” tool to apply because it affects few people. In recent weeks it has become popular due to an inevitable drag effect (one community takes a measure and the rest imitates it) that has already happened on other occasions and also because it is a way to avoid tougher restrictions that no regional president wants to reach. . Nobody wants to close the bars again.

However, the effectiveness of the tool raises some doubts and has epidemiologists divided. Some public health experts, such as Pedro Gullón, consider that its effect is “limited” with a population with such high vaccination coverage. Antoni Trilla, head of preventive medicine at Hospital Clínic, believes that the tool allows “reducing the risk of infection, even if it is not zero.” More forceful is Javier Segura, vice president of the Madrid Public Health Association. The health worker believes that it does not make much sense to treat the vaccinated and the non-vaccinated as inhabitants of “two separate worlds”, given that they live together all the time and that, in addition, the immunized can also infect.

The Supreme Court of the Basque Country also delves into this argument. It affirms that the high percentage of vaccinated “is a factor that works against the measure whose authorization is sought and that is that what will have to be presumed is that the vast majority of the population is vaccinated.” The judges, who in a first section of the car assure that they are not going to pronounce in scientific terms, even emphasize that “the effects of the contagion in the vaccinated are not relevant.”

Sociologists also ask the authorities to consider another variable: how the limitations of the unvaccinated are received socially. Experts warn that these measures should be considered so as “not to accelerate conflicts between the immunized and the non-immunized.” On the one hand, limited restrictions run the risk of further radicalizing the reluctant, while general restrictions can promote detachment from those who have fulfilled the social contract by getting vaccinated.