Science has known how to react to the pandemic, and has provided us with a vaccine. Lawmakers, on the other hand, have not been able to agree legislative reforms that decrease the legal uncertainty that arises from some sanitary measures. For its part, the Constitutional Court has issued two judgments on states of alarm, and the regulations have not been modified. In fact, on the occasion of the eruption of the volcano in The Palm, they have imposed home confinements without anyone having claimed the state of exception, as would be clear from the jurisprudence of the TC, nor have there been major legal controversies.
Now he plans in the environment the extensive adoption of the so-called ‘covid passport’, whose generalized demand raises doubts. To try to clear them, we can start from a judgment of the Supreme Court, dated September 14, which endorsed the health passport imposed by the Xunta de Galicia for access to the catering and leisure establishments.
Exhibiting a vaccination certificate, or an analysis that proves that you are not a carrier of the coronavirus, involves revealing health data, which are protected by the Right to privacy that the Constitution includes in its article 18.1. Equally, a difference in treatment is established that could conflict with the principle of equality established in Article 14. The judgment of the Supreme Court understands that the difference in treatment is admissible, since it meets two conditions that constitutional jurisprudence requires. On the one hand, it is imposed for a constitutionally protected purpose, such as that of protect the right to life and the right to health protection (Articles 15 and 43); on the other, the measure seems reasonable and adequate for the objective it is trying to achieve. And remember the European Regulation 2021/153, of June 14, which established the framework for the health passport, in which in the preamble it states that the limitation of freedom of movement for reasons of public health is compatible with the law of the Union.
In accordance with this doctrine, if in Catalonia the requirement of the covid passport extends to restoration, the Superior Court of Justice should ratify it without problems. The problem could occur if the covid passport becomes a requirement that you want to demand to access other types of activities. And the fact is that the Supreme Court’s ruling is based on the assumption that access to restaurants and entertainment venues is not essential, so it is worth asking what would happen if it were established as a requirement for, for example, access to any closed premises.
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The aforementioned European Regulation says (article 3.6) that the health passport cannot become a precondition for the exercise of the right to free movement. With this criterion, then, the home confinement of people who do not have it could not be justified. From the point of view of our legal system, it seems to me that the requirement of a health passport to access places where physical presence is essential, such as in some cases the job or the study center, requires something more than just a health certificate counseling order. The mandatory vaccination should be considered, that, contrary to very respectable opinions, it seems to me that it is protected by some laws. To cite two: Law 22/1980, which modifies the Law of Bases of National Health of 1944, provides that, in the case of infectious diseases, the authorities may impose vaccination when “it does not constitute any danger & rdquor ;, and Article 3 of Organic Law 3/1986, on Special Measures in Public Health, empowers the health authorities to “carry out general preventive actions & rdquor; that are considered necessary in case of transmissible risk.
I admit that the cited legal provisions may seem imprecise to adopt measures such as mandatory vaccination. But, in case it is considered essential to carry it out, you must ask our legislators that they strive to improve them within the framework of the Constitution. That responsibility cannot fall on the inevitable casuistry of Supreme Court rulings.
Reference-www.elperiodico.com