The Fourth Section of the Contentious-Administrative Chamber of the Superior Court of Justice of the Valencian Community (TSJCV) has authorized the requirement of the so-called Covid passport to access hotel, restaurant and leisure establishments with a capacity greater than 50 people, festivals of music and events and celebrations with more than 500 attendees, as well as to visit patients and inmates in hospitals and residences, among other activities.
These provisions are contained in the resolution of the Conselleria de Sanidad Universal dated November 25 and will be in force for 30 days after their publication in the Official Gazette of the Generalitat Valenciana (DOGV).
The Chamber considers that they are “balanced” measures, since they derive from them “more benefits for the general interest – containment of the pandemic – than damage to other assets or values in conflict”, while complying with the “constitutional judgment of proportionality” .
The order reviews the recent jurisprudence of the Supreme Court on the requirement of the vaccination certificate, presentation of a negative diagnostic test (PCR or antigen test) or proof of having passed the disease to access certain establishments.
The magistrates argue that these measures are ideal to reduce the risk of transmission of the virus indoors in places where, due to its idiosyncrasy, it is not possible to make continuous use of the mask.
The resolution refers to the scientific data collected in the epidemiological report provided by the Generalitat, which supports that the risk of infection is lower among vaccinated than in non-vaccinated and that, in case of infection, the transmission of Covid-19 is much lower between vaccinated people.
The measures, therefore, are necessary, since no others are known “to achieve the purpose with equal efficiency”, and are “essential if the objective of reducing or -at least- minimizing the increase in the transmission of the virus is to be achieved. ”, Specifies the Chamber.
In addition, the requirement of the Covid certificate seeks to avoid reaching “the scenario of new restrictions on fundamental rights much more intense than the one in question here” and the announcement of its implementation has already encouraged vaccination.
The measure is equally proportionate – continues the Court – because “it will hardly affect economic activity” and even “may facilitate it”, so that it obtains “a good fit of the two most important pieces (health and economy – for this order-) of this unusual puzzle that represents the current pandemic ”.
“Our High Court – reflects the order in reference to the jurisprudence of the Supreme Court – understands that this type of measure supposes a tenuous limitation of certain fundamental rights that, when faced with the powerful presence of other fundamental rights – such as life or protection health-, provides an objective and reasonable justification for its adoption ”.
The TSJCV also considers the implementation of the Covid passport in the entire Valencian Community justified in view of the homogeneous upward and generalized trend of the pandemic curve throughout the territory, the foreseeable mobility of citizens in the proximity of Christmas and the appearance of new variants of the Sars-Cov-2.
Regarding their requirement to visit hospitals and residences, both public and private, the magistrates recall that in these areas there are “close and prolonged contacts” between patients and visitors and in them are “the most vulnerable population” and sometimes people with a decreased immunity to disease.
George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.