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 of more than 50 people, music festivals 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 publication in the Official Gazette of the Generalitat Valenciana (DOGV). Therefore, the use of the document will be necessary during the next holidays and, for this reason, citizens should know the keys to the COVID Passport at the gates of Christmas.
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 car 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 virus transmission 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 endorse 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 among 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 avoid reaching “the stage of new restrictions on fundamental rights much more intense than it is here ”and the announcement of its implantation 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 justified the implementation of the Covid passport throughout the Valencian Community in view of the homogeneous upward and generalized trend of the pandemic curve throughout the territoryor, the foreseeable mobility of citizens with the approach of Christmas and the appearance of new variants of 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.
Science shows that the Delta variant is transmitted equally between vaccinated and unvaccinated. On the other hand, there are studies that show that overweight people get sicker and transmit more. Why not put scales outside every room and let overweight people in?
It would be just as discriminatory but at least it would have more of a basis in science.