Spain’s Supreme Court and covid passport

Published in Expansión

The recent Supreme Court ruling allowing the conditional implementation of covid passports as a requirement to enter certain establishments contradicts repeated rulings of regional High Courts of Justice and even a previous ruling of the Supreme Court itself (four weeks earlier!) with arguments so far removed from logic and science that they produce a certain astonishment.

In fact, the regional governments of the Canary Islands, Cantabria, Andalusia and Galicia had approved regulations requiring the presentation of covid passports to access nightlife venues, but the judicial authorization of such measures had been consistently denied by the corresponding regional High Courts of Justice. Apart from the possible violation of fundamental rights and the Data Protection Law, the court decisions considered that the legally required criteria of suitability and necessity were not met, based on solid scientific and logical arguments.

The High Court of Justice of Andalusia (TSJA) reasoned that since the vaccine does not prevent the infection and transmission of the virus and that the presentation of a negative test only proves not to carry the virus at the time of the test but not afterwards, “it is not clear how the possible contagion will be avoided”. As for the necessity, the TSJA argued that the authorities had not accredited categorically that the greatest number of contagions originated precisely in nightlife venues. Finally, and only in third place, it criticized the fact that a specific duration was not established.

The impeccable Order of the High Court of Justice of Galicia (TSJG) cited reports from the American Center for Disease Control and Prevention (CDC) and studies from the prestigious medical journal The Lancet, rightly concluding that “no scientific report endorsed by institutions of recognized prestige has reached irrefutable conclusions on the hypothesis that vaccinated people (…) cannot infect or be infected”, that is to say, that “vaccination does not exempt from contagion”. To make matters worse, it published a table of regional epidemiological data “from the simple reading of which it can be deduced that in the only region in which this measure has been implemented (Galicia), the accumulated incidence is slightly higher than in many other Autonomous Regions”, evidence that questioned the supposed efficacy of such “passport”. It also repeated the arguments of the TSJA regarding the criterion of necessity and the limitations of the PCR or antigen tests as a “fixed picture”.

The Andalusian government appealed in cassation to the Supreme Court, but the latter completely agreed with the regional TSJA, whose reasoning corresponded “with the interpretation that, for the Court, must be made of the applicable precepts”, stating categorically that it did not find “any obstacle or reproach whatsoever to the weighing judgment” of the TSJA. The Supreme Court, finally, denied the ratification of the measure “for lack of appropriate justification, in accord with what has been agreed in the orders issued by other territorial Courts” (note the use of the plural, which seemed to indicate universal conformity). It seemed, therefore, that to date there was a rock-solid stance in the Spanish Courts against the covid passport.

However, only a few weeks later, the Supreme Court has made a 180-degree turn in the appeal of the Galician government allowing the requirement of the covid passport with inconsistent arguments that offer a fickle, confusing and contradictory image of Justice.

The ruling is permeated with unscientific assertions alien to reality but that sadly reflect the state of mass hysteria caused by the media terror campaign, as when it mentions the general interest of all “to survive the covid” and defines the current situation as “a serious and imminent danger to the lives of people”. The reality is that covid is a mild disease for the vast majority of the population, with infection fatality rates (IFR) asymptotic to 0% for people under 50 years of age and, at most, 0.3% for people between 50 and 69 years of age and 4% for people over 70 years of age, according to data from the Spanish Ministry of Health corroborated by international scientific studies (see Superstition and Science in covid, fpcs.es[1]).

Likewise, the ruling mentions the extralegal (and unscientific) term “solidarity” stating that the vaccine represents an “undeniable benefit for the health of all”, a belief as popular as it is incorrect: the vaccine represents a benefit for the health of the vaccinated, as we have always thought when we got vaccinated until 2021, the year in which we went crazy. Thus, the director of the Institute of Genetics at University College London, François Balloux, recently pointed out that “vaccination is not so much a duty to others as a protection for oneself”[2], and the Joint Committee on Vaccination and Immunization of the United Kingdom described as “highly uncertain” the supposed benefit to the general population if subsegments of the population not yet vaccinated were to be vaccinated[3]. The High Court of Justice of Galicia cited the American CDC or studies published in The Lancet (arguably one of the four most prestigious medical journals in the world), while this ruling of the Supreme Court relies on reports from the Galician Ministry of Health with vague references to other sources that it fails to identify.

But even more disconcerting is that the new Supreme Court ruling claims that it does not oppose but “reaffirms” the previous, completely opposite, ruling of the same Court. This legal pirouette, which seems to be an insult to intelligence that defies the Aristotelian principle of non-contradiction, is justified by the differences in nuances between the Andalusian and Galician cases in terms of the establishment of a specific duration and scope of the measure. However, it omits that the identical key to the TSJG and TSJA rulings did not rely on these secondary issues, but on the “lack of appropriate justification” of the covid passport in terms of suitability and necessity, a lack that the Supreme Court found irreproachably proven in August but on which this ruling is silent while distracting attention with ancillary issues.

The covid passport implies the requirement to present an Orwellian safe-conduct for everyday life (something typical of the worst dictatorships) and is one more example of the constant abuse on our rights that we have been suffering under the alibi of the epidemic. However, the definitive argument against it is scientific, since vaccines prevent neither infection nor transmission, as the Courts have unanimously recognized until now. Indeed, frustratingly but predictably, according to various studies the efficacy of vaccines to prevent infection has been significantly reduced, being 62% at Astrazeneca[4], 42% at Pfizer[5] or 33% at Janssen[6], percentages in many cases below the efficacy threshold required for approval. This means that the majority of vaccinated people can fall ill with covid and infect third parties, which completely discredits the passport from a scientific point of view and exposes it for what it really is: an underhand, deceitful and liberticidal form of forced vaccination. By supporting against scientific logic what is nothing more than a political subterfuge, this obviously contradictory ruling undermines the prestige of the Supreme Court.

 

Fernando del Pino Calvo-Sotelo

www.fpcs.es

 

[1] Superstición y ciencia en el covid – Fernando del Pino Calvo-Sotelo (fpcs.es)

[2] La variante Delta impedirá que se alcance la anhelada inmunidad de rebaño (abc.es)

[3] JCVI statement on COVID-19 vaccination of children and young people aged 12 to 17 years: 15 July 2021 – GOV.UK (www.gov.uk)

[4] Covid-19: How effective are vaccines against the delta variant? | The BMJ

[5] Comparison of two highly-effective mRNA vaccines for COVID-19 during periods of Alpha and Delta variant prevalence | medRxiv

[6] Johnson & Johnson podría ser menos eficaz contra la variante delta – The New York Times (nytimes.com)

 

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