Three years after the pandemic coronavirus, Justice is still resolving lawsuits derived from it and from all the restrictions that were imposed to try to stop the spread of Covid 19. There were claims of all kinds, including those filed by people who opposed vaccination. A trial judge has just handed down a judgment in which it imposes costs on a client who sued a restaurant of take the one who claimed a compensation of 3,000 euros for the alleged non-material damage caused by the refusal of the employees to let him in without the so-called “Covid passport”. The client understood that the requirement of the digital certificate to be able to access the premises implied a illegitimate interference with their right to honor, privacy and self-image, but the judge has completely dismissed the claim and has even sentenced him to pay the costs.
The case dates back to January 7, 2022 when the plaintiff went to a restaurant in Tomares for lunch. When he was about to enter the establishment, an employee asked him for the Covid certificate and the client replied that He did not have it because he “had not been vaccinated”so it was invited to leave the restaurant premises. The plaintiff wore all the required security measures (the mask) and maintained the required safety distance from the employee and the rest of the diners, and requested a Claims sheet for having been refused entry requesting some “sensitive personal health data without being a competent authority”, includes the sentence of the Court of First Instance and Instruction number 3 of Sanlúcar la Mayor.
The plaintiff maintained that the Covid passport “it stigmatizes the citizen and is totally contrary to fundamental rights” collected in the Constitution from the moment that it is required to be able to enter a site or not, since “as is well known the vaccine against the disease is not mandatory for citizens, but optional, each person being able to freely discern whether or not to wear the same one, without the rest of the citizenry having to be informed of it”.
However, the certificate, the plaintiff continued, was imposed as mandatory to be able to enjoy a few hours of leisure, entering into an absolute contradiction with the mandatory nature of the vaccine, “which is not”, therefore fundamental rights are diminished to the point of the point of citizens can be seen “invited or forced to inadvertently get the vaccine, just to be able to have lunch/dinner/breakfast away from home with their family one day”.
He lawyer Pedro Arnaiz, who has defended the defendant restaurant, has explained to this newspaper that the local “limited to comply, how could it be otherwise”with the order issued by the Junta de Andalucía, like ten other Autonomous Communities, by which in its sole article the preventive public health measure related to the Covid19 certificate for access to the interior of hospitality, leisure and recreation establishments was agreed, which was ratified by the Contentious Chamber -administrative decision of the Superior Court of Justice of Andalusia (TSJA) on December 17, 2021. “It is the plaintiff who violates said order and the court order for having refused not to show said certificate, but to get vaccinated, for which reason he did not have of it, therefore putting the health of other users at risk.
The “recklessness” of the lawsuit
The lawyer has stressed that the “The recklessness of the claim was so manifest that it deserved not only its dismissal but also the order to pay the costs”. Pedro Arnáiz added that it is “inadmissible to claim one of the victims of the pandemic, the hospitality sector, which was subjected to the capacity reduction and other measures that led many of them to close, compensation for complying with the legality requested by those who did not want to comply. The only explanation is that it is a lawsuit, as defined in US law, that was only intended to annoy.”
The judge emphasizes that the right to life and physical integrity is above the right to honor of the plaintiff
The sentence of the judge of First Instance of Sanlúcar la Mayor recalls precisely the resolutions issued by the TSJA and even by the Supreme Court in relation to the obligation to require the Covid passport to access the interior of restaurants, in which it is stated manifest that the rights claimed by the client project a “subdued intensity when faced with the powerful presence of the fundamental rights to life and physical integrity, and with the protection of health that defends the general interest of all to survive Covid-19 ”.
In addition, remember that the regulations included in an alternative way the possibility that unvaccinated people will prove “to have passed the disease in the last six months or carry a diagnostic test carried out in the last 72 or 48 hours”, in such a way that the decree did not force anyone to be vaccinated or receive treatment, respecting the decision of each of the citizens to be vaccinated or not, and the population that has decided not to be vaccinated was not coercively induced to undergo treatment or invasive diagnostic test.
The case of this client, the sentence concludes, does not differ from others that the Andalusian High Court analyzed, since the restaurant employees demanded his Covid passport “At a time when said requirement was legally provided for the purpose of maintaining control that was being achieved from the spread of the disease, this measure being fully legally validated, as it is considered proportionate, suitable and necessary, so that no violation of the plaintiff’s fundamental rights has occurred that cannot be understood justified, in his case ” .
Hence, the judge has dismissed the claim in its entirety and, as there were judicial resolutions that “despite any doubts that may have arisen on the matter” when this action was exercised, it imposes the costs.
