The battle against covid-19 has been a health challenge for the world, but also for the laws of democratic countries. Government measures have jeopardized individual rights, suspended or restricted in favor of groups. This legal debate, from which Spain has not escaped - with great discussions about home confinements, the perimeter closures of municipalities or the limitation of demonstrations - enters another scenario: that of the era of the vaccine. With an important part of the population immunized and with the approach of the moment when all those of legal age can be immunized if they require it, new questions arise:Can citizens be forced to be vaccinated to achieve herd immunity? And to specific groups? Will someone lose their job if they don't? Can the covid passport or another certificate be required to enter leisure venues? Are these measures discriminatory? Do they violate rights?
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These issues are not a thing of the future. They are already on the table. The French Constitutional Council gave the green light this August to the requirement of the covid certificate to enter crowded places, such as restaurants, in addition to validating the mandatory vaccination for health personnel. Italy has taken steps along these lines. New York announced that it will require proof of vaccination for those who attend indoor venues such as bars, gyms and shows. In Spain, three autonomies have already implemented this requirement to access premises - although the courts have suspended the initiative in them - and half a dozen are committed to compulsory immunization of health workers and nursing home workers.
The Administrations face, therefore, the umpteenth challenge.
And, according to several consulted jurists, the weighting of rights is key again in a debate with multiple edges.
Mandatory vaccination.
In Spain there is no rule that requires citizens to be immunized against coronavirus. But Xavier Arbós, professor of Constitutional Law at the University of Barcelona, considers that a measure in this line could have a constitutional fit as it is an exceptional situation. In fact, it recalls that a 1980 law is in force —that modifies, in turn, one of 1944— that establishes that “vaccinations against smallpox, diphtheria and against typhic and paratyphic infections may be declared mandatory by the Government when, due to the existence of repeated cases of these diseases or due to the current or foreseeable epidemic state, it is deemed appropriate ”. "In all other infections in which there are means of vaccination of recognized total or partial efficacy and in which this does not constitute any danger,they may be recommended and, where appropriate, imposed by the health authorities ”, this regulation adds.
Although, according to Arbós, "it is a sufficiently ambiguous wording": "Because, can anyone say that a vaccine does not entail any danger?" Gerardo Pérez, professor of Constitutional Law in La Laguna continues: “If the question is: could the mandatory vaccination be implemented tomorrow? The answer is no. But I understand that it could be done with a state law that regulates it. " In this sense, it emphasizes that the rule would have to be drawn up from “proportionality”, anticipating extraordinary moments —such as health crises— and contemplating “exceptions” —for example, not forcing those who suffer from illnesses that imply contraindications—.
Francisco Javier Díaz, Professor of Law at the University of Castilla-La Mancha, points out: “It is constitutionally possible.
There is the principle of freedom for individuals, but [the Basic Law] also protects collective health and that of third parties.
Although it is true that, currently, I believe that the necessary requirements for mandatory vaccination are not met.
There is no specific legal provision and any law that restricts fundamental rights must pass a suitability and proportionality test, and must be necessary.
And I think that applying it at this time would not be necessary in Spain and [its implementation] could have constitutionality problems ”.
The President of Galicia, Alberto Núñez Feijóo, upon his arrival at the Conference of Presidents last July LORRYS / Europa Press
Galicia reformed its health law this year to empower its health authorities to impose the mandatory vaccination on citizens under threat of a fine, with the idea of controlling communicable infectious diseases (not only covid-19) in situations of serious risk for the public health. But La Moncloa appealed the measure - "It is only possible to restrict fundamental rights through state legislation," argued the then Government spokesperson, María Jesús Montero - and the Constitutional Court has decided to keep it on hold until it gets to the bottom of the matter. The magistrates argued that this "preventive" initiative does not appear "expressly contemplated" in the organic law of special measures in public health "and involves a coercive bodily intervention practiced outside the will of the citizen."
Professor Arbós picks up this last idea: "Getting vaccinated means undergoing medical treatment that affects the right to privacy, but this is not unlimited." For example, in January a judge in Santiago forced a woman to vaccinate her elderly mother, admitted to a residence and with a high degree of cognitive impairment, for covid. The daughter alleged that she was "unaware" of the consequences of immunizing her relative and it seemed "wiser" to wait to see what effects it had on "other people before subjecting her mother to such risks." But the judge rejected his thesis and raised the debate like this: “Getting vaccinated and not doing it carry a risk that must be assumed, as there are no intermediate options. In such a situation, the question is reduced to a pure weighting of which is the lower risk (and, therefore,the greatest benefit translated into the adoption of the lightest) ”. There are other precedents: in 2010, a judge in Granada ordered the forced vaccination of 35 children against measles to stop an outbreak.
The jurists consulted add another nuance when recalling that the law on states of alarm, exception and siege - foreseen for "health crises, such as pandemics" - contemplates that "the competent authority" adopt measures "established" in the regulations for " fight infectious diseases ”. The Vaccine Advisory Committee of the Spanish Pediatric Association adds: “Although [all] these legal provisions are plagued with indeterminate legal concepts, we can conclude that it is legally possible to impose vaccination in the event of an epidemic, when there is a collective risk to health. public, displacing in these cases the general principle of voluntariness in vaccination that prevails in our law ”.
Added to the debate is a recent ruling by the European Court of Human Rights, which in April endorsed the legislation of the Czech Republic that makes childhood vaccinations mandatory.
The magistrates of this body not only considered that this measure may be "necessary in a democratic society" and "seeks legitimate objectives to protect the health and rights of others", but also concluded that "vaccination protects both those who receive it as those who cannot be vaccinated for medical reasons and, therefore, depend on herd immunity for their protection against serious contagious diseases ”.
A group of people walk into CNN headquarters in Atlanta, in a file image.Ric Feld / AP
Consequences.
The debate on compulsory nature - both among the general population and among specific groups - immediately acquires another dimension: what labor or social consequences can it entail? CNN fired three employees for going to the office without being vaccinated against COVID, according to
The Guardian
. Italy, the first European country to require immunization for all health workers, has approved a regulation to extend the requirement to school and university personnel, who must present the vaccination certificate, of having tested negative in a recent coronavirus test or of having passed the infection. If they don't, they won't be able to attend class and their pay will be frozen.
In Spain, several communities are already committed to adopting similar measures between health personnel and nursing home workers. For its part, the Ministry of Health has always been against forcing vaccination, but it is in favor of tightening control measures in social health centers. "If a law were made to regulate it in a clear and proportional way, I believe that such a measure would be possible in Spain and that sanctions be foreseen," explains Gerardo Pérez. The professor from La Laguna emphasizes that, saving the distance, it is already required in some professions to undergo compulsory drug tests and, if one does not accept it, it can lead to expulsion: "I don't think it is very different."
Arbós adds: "It would be necessary to see very well the terms in which the obligation would be considered". Professor Francisco Javier Díaz continues along the same lines: “It would be necessary to analyze case by case, seeing if the principle of proportionality is fulfilled. For example, it does not make sense to demand immunization from those who telework. But it can be required of those who have contact with third parties, because in exchange for a very small restriction of freedom, a very large benefit is achieved ”. "In Spain we do not have a global vaccination problem and, therefore, I believe that a global solution would be disproportionate," the teacher clarifies.
Entry ban.
"In general, no country in our environment has been so chaotic when it comes to establishing restrictions," says Lorenzo Cotino, professor at the University of Valencia and coordinator of the Observatory of Public and Constitutional Law and Covid-19. A problem that has become evident in recent weeks with the prohibition of access to the interior of leisure venues for those who lack a vaccination certificate: three communities approved it; others considered it; and others discarded it without a homogeneous state framework. La Moncloa, for her part, avoided getting to the bottom of the matter, but did not close the door. "In some countries a certain stagnation in vaccination has been detected and it seems that in this way it is also trying to stimulate rather than force", says the professor.
Cotino details that the EU only regulated the covid passport for the "limitations established by the countries" when traveling between them, but has not yet entered into how each State later uses this instrument internally. Sanidad pointed in that line this summer. "The covid passport will be used for what the EU contemplates, to travel, which is the legal protection it has," summarized the person in charge, Carolina Darias, who was very cautious in the face of a new debate that arises at a delicate moment. The Government saw just a month ago how the Constitutional Court overthrew the legal instrument it used to decree the confinement during the first state of alarm, which caused the immediate onslaught of the opposition led by PP and Vox.
However, before the Executive ruled, Galicia and the Canary Islands had already taken the lead and in July became the first autonomies to require the covid passport or another certificate of complete vaccination schedule to enter leisure venues ― he added then Cantabria. Thus began the battle. A group of businessmen from the islands took the case to court, which suspended the measure there. The Superior Court of Justice of the Canary Islands (TSJC) considered that the initiative may violate fundamental rights and agreed to annul it in a precautionary manner.
On July 29, the magistrates of the Canary Islands Supreme Court understood that this measure turns hoteliers into a kind of "public health controllers" and invades "the field of the right to personal privacy." Joaquín Urías, professor of Constitutional Law at the University of Seville and former Constitutional Lawyer, disagrees: “I see no problem as long as a covid passport or PCR certificate is requested. I am aware that it sounds excessive, but it is about access to a place that is not essential, but leisure. And what is required is reasonable to avoid contagion. It is not outrageous. If it were only with a vaccination passport, things would be different because it is a requirement that is impossible for young people to fulfill, which would exclude them as a group from access to leisure, incurring disproportion ”.
After the Canary Islands Supreme Court, the Cantabrian and Galician Supreme Court also suspended the measure due to deficiencies in its implementation.
Currently, only the Balearic Islands keep the covid passport requirement active, but exclusively to enter residences and, as announced, as of this Saturday it is required for mass events.
Two people with a mask on a terrace in Malaga.Álex Zea - Europa Press / Europa Press
Professor Lorenzo Cotino recalls that the Constitution establishes that all "Spaniards are equal before the law, without any discrimination on the basis of birth, race, sex, religion, opinion or any other personal or social condition or circumstance". Hence, the requirement of a covid passport or other certificate enters swampy terrain and, in his opinion, any restriction requires a special foundation. “Any different treatment can be seen as discrimination and here three [delicate] fronts are opening. One, that of the people who want to be vaccinated and have not been able to because the government's vaccination strategy has established that, by age, it was not yet their turn. Two, that of those people who cannot do it because they suffer from some disease. And three,those who do not want to be vaccinated and can claim ideological discrimination ”, explains the teacher.
But the autonomies that have applied it believe that fundamental rights were not violated and stated that alternatives were offered. Cantabria explained that, in addition to allowing those who had the full guideline to enter, those who “could prove that they had had the disease; or if they had a negative test passport, carried out in the previous 72 hours ”.
Andalusia wanted to implement a similar system and spoke of allowing even those who passed the antigen test that is bought in pharmacies. Of course, before decreeing the entry into force of the proposal, his Government consulted the Superior Court of Justice of autonomy, but it rejected it. The magistrates ruled that the initiative "did not meet the judgment of suitability or necessity" because it may affect fundamental rights by establishing differentiated treatment based on the possession of the aforementioned certificate; and because it may violate the right to personal privacy by involving the display of sensitive health-related data.
Of course, another controversial aspect revolves around the information revealed by a vaccination certificate. The Canary Islands Supreme Court emphasized that European justice has "insisted" that "the confidential nature of health information constitutes an essential principle of the legal system of all States." In addition, before the implementation of this type of restriction, the Spanish Agency for Data Protection (APED) sent a "request for information" to the Canary Islands and Galicia "in order to verify the legality of the processing of personal data." "The European data protection authorities have expressed our concern about the use of certificates within the States for purposes such as access to shops, restaurants or gyms, as well as their use in other contexts such as work",said organism warned.
The restriction of access to services to those who are not vaccinated is not uncharted terrain in Spain. In 2019, a Barcelona court agreed with a Catalan City Council that refused to enroll a child in its nursery without any vaccination. The mother alleged that her right to ideological freedom, personal dignity, physical and moral integrity, and the prohibition of discrimination were being violated. But the judge considered that his argument was baseless: “The appellant has not been forced at any time to vaccinate her son. She has been able to freely choose, without this having entailed any sanction for her or her child [...] The appellant forgets the rights of others, because she understands that her right to attend the nursery school is superior to the right to health of the child. rest of the children. [...] It intends that the option that it has decided unilaterally, its consequences and risks, be assimilated by the rest ”.