The acting Ombudsman of Spain), Francisco Fernández Marugán, has sent several recommendations to the Ministry of Health to improve the so-called Covid passport and to ensure that its use as a pandemic prevention and control measure respects legislation and fundamental rights.
Over the last month, the Ombudsman has received a large number of complaints about incidents related to the EU digital Covid certificate issued by the Spanish authorities.
The complaints received raise two situations that cause problems and can lead to difficulties and unjustified unequal treatment for travel, in the Ombudsman’s opinion.
On the one hand, the Spanish vaccination certificate does not clearly and expressly state that persons with a single dose, because they have overcome the disease, or with two doses of different vaccines, have received a full course of vaccination (according to the clinical and epidemiological criteria of the Spanish health authorities).
On the other hand, the European Union Regulation does not recognize antigen tests or serological antibody tests to validate a contagion and requires that the diagnosis be made by PCR in order to certify the recovery in the Covid passport.
Thus, the Ombudsman has received complaints from people who have overcome Covid-19 and cannot obtain a certificate of recovery, having overcome the disease either at some point more than 180 days ago, or in the last six months, and having been diagnosed only with an antigen test, as established by their autonomous health service, in application of the Strategy for early detection, surveillance and control of Covid-19. In some cases, they even only have a clinical diagnosis, given the saturation of the health services at various times during the last year.
For the Ombudsman, the impediment to obtain the Covid passport in these cases may lead to unequal treatment for the exercise of the right to free movement of persons affected by these situations, especially when the purpose of these certificates is precisely to facilitate travel.
For all these reasons, it has recommended that the Ministry of Health ” must adapt the Covid certificate of vaccination model in Spain to expressly indicate that the carrier has received a full course of vaccination, thus avoiding certification problems for people who have recovered from the disease and who are only given one dose of the bidosis vaccines and for people who have received the AstraZeneca/Pfizer mixed regimen”.
Likewise, the Institution has also formulated a recommendation to “promote with the European Commission the adaptation of Regulation (EU) 2021/953, so as to allow persons who can prove that they have overcome the disease by any of the valid diagnostic means accepted by the scientific community to obtain the Covid certificate of recovery”.
In the meantime, the Ombudsman requests that the Health Department coordinate with the autonomous communities to perform PCR diagnostic tests on all positive cases by means of antigen tests, in order to incorporate the necessary information in the Covid certificate.
On the other hand, in the Ombudsman’s opinion, the intention of several regional governments to use the Covid certificate as a condition for access to certain activities or services (in addition to restrictions on mobility and freedom of movement), among their preventive measures against Covid-19, may intensify the problems described for these people.
In fact, several regional orders have already included this possibility, which is now under the scrutiny of the courts of justice.
In these circumstances, the Ombudsman also considers it urgent to eliminate the uncertainties identified in the Covid certificate in Spain, without prejudice to the changes to be promoted with the rest of the States of the European Union, so as to better guarantee the right of citizens to equal treatment and the exercise of their freedom of movement.
In this line, it has recommended to Health to “coordinate with the autonomous communities the uses of Covid certificates, as a measure for the prevention and control of the pandemic in Spain, to ensure its adequacy to public health legislation and the due guarantees of proportionality and minimal impact on fundamental rights”.
