Friday 31 March 2023

Sala IV: “It is not unconstitutional to ask for a QR code on private sites”

The appeal was filed by a citizen who was asked for the QR code as a requirement to enter the cinema to see a movie with his family

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31 March 2023 - At The Banks - BCCR

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QCOSTARIAC – While the government’s plan to mandate the use of the QR code to enter bars, restaurants, cinema and other businesses hinges on the resolution of the Contentious-Administrative Court, the Constitutional Court or Sala IV as it is commonly referred to, said it is not unconstitutional to ask for a QR code to enter a private area.

The Court’s Resolution was unanimous. The magistrates considered that the request for the QR code or vaccination card as a requirement to enter a private area, be it a restaurant, cinema or other, is not contrary to the Constitution.

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“In this sense, any commercial establishment or private association has the possibility of imposing its admission rules, as long as they are not openly discriminatory, unjustified or disproportionate,” said the magistrates in a decision dated January 14.

The appeal (recurso de amparo in Spanish), was filed by a citizen who complained that CCM Cinemas in San Ramón, on December 5, asked him for the QR code as a condition to enter with his partner and his daughter to see the movie Encanto.

The complainant argued that the code cannot be requested until the Contentious-Administrative Court resolves a request presented by tourism businessmen last November, for a very provisional measure against the obligation to request the QR code to verify vaccination.

The measure by the Contentious-Administrative Court has stalled the government’s mandated coding that was to have begun on February 7 and is currently to take effect at the beginning of March.

Last December, the Government established a voluntary plan according to which merchants who wished to operate at 100% capacity had to request the code.

The appellant argued in his appeal that the request for the code “promotes family and social segregation, the separation of family a base of Costa Rican society. In addition to the invasion of privacy and medical confidentiality of each individual, psychological damage to the underage person who does not understand why dad should be separated from watching a family movie and medical confidentiality law,” reads the resolution.

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He requested that CCM Cinemas compensate him for “psychological and moral damage” to his daughter and his partner for ¢10 million colones plus legal fees.

“That the Costa Rican State be condemned as well (sic) that I be compensated for the sum of ¢50,000,000 (colones) for not protecting the Costa Rican family and rather favoring the destruction and separation of the same with acts contrary to what is established in the Political Constitution,” was another of the requests.

The Magistrates of the Constitutional Court, in rejecting the appeal, said “Requiring the demonstration of vaccination against covid-19 prior to entering a particular establishment does not constitute an openly discriminatory, unfounded or unreasonable measure. It is not superfluous to point out that it is not proper to this jurisdiction to define whether or not a jurisdictional order of a common court is being breached (which may be alleged in the ordinary way); however, in application of the constitutionality control, it is up to the Sala (IV) to assess the possible unconstitutionality of this type of measure, which is ruled out in the sub lite (that which is under discussion).”

At the end of January, 3,647,059 people already had their COVID-19 vaccination certificate QR code available.

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The Constitutional Chamber of the Supreme Court of Justice is the Court that guarantees the dignity, freedoms and fundamental rights of people enshrined in Costa Rica’s Political Constitution and in international human rights instruments.

Among the actions that can be brought before the Sala IV are Habeas Corpus which guarantees the freedom and integrity of the person, protects it from being disturbed or from suffering restrictions due to acts and omissions committed by the authority, unlawful arrests, solitary confinement and the freedom of transit; and the Recurso de Amparo, for example, to claim the right to education, health, freedom of expression.

A Recurso de Amparo can be presented by anyone free of charge and by any means, without major formal requirements and without the need to be authenticated by a lawyer. For example, the appeal can be handwritten on a napkin and still be valid.

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