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After a meeting held between the Minister of Health, the judge who revived the requirement of PCR tests for travelers and the lawyer who filed the guardianship, the latter considered that, although the decision of the office favored him, a part of the sentence should be eliminated.
An extensive debate has led to the decision of a judge of the Republic to order that the country again require a negative PCR test result for COVID-19 for those who intend to enter the national territory and that, in addition, these people must keep a quarantine of 14 days after arrival in the country. Despite the fact that these requirements had been eliminated by the Ministry of Health, a protection action by the lawyer Alberto Elías González Mebarak, put the matter in consideration of the administrative court 11 of the Bogotá circuit, which determined to protect the rights to life and health of the and that, again, said conditions will be applied for the entry of travelers. (You may be interested: Judge orders the Government to require PCR test again for travelers arriving from abroad)
The court’s ruling, which was issued on November 25, aroused great controversy among public opinion and led to uncertainty among travelers who did not know whether or not they should have the requirement. The days passed and the Ministry of Health, based on the figures and concepts of the scientific community, insisted that the requirement of the PCR test for travelers is currently not a useful measure to control infections in the country and asked the judge to explain his decision. In response, the firm upheld the ruling on December 3. Meanwhile, others criticized that the entity, as part of the Executive, did not comply with a court order. Thus, the tension between the parties involved in the matter grew.
To try to mediate, the Attorney General’s Office decided to intervene. He summoned the parties and scheduled a virtual meeting to discuss the issue, which finally took place on Wednesday, December 9. The meeting was attended by the Minister of Health, Fernando Ruíz; the lawyer who filed the guardianship, Alberto González Mebarak; and Judge Guivanni Humberto Legro Machado. As planned, each one presented their point of view regarding the decision issued in the sentence and the meeting proceeded in cordial and respectful terms. In his intervention, the Attorney General’s Office asked the robed man to modulate the guardianship, that is, to review the case again taking into account the arguments presented in the dialogue.
But the Public Ministry was not the only one who requested a modulation. The lawyer who filed the guardianship, González Mebarak, also asked the office to review his decision because, although it favored him, the judge protected his rights and granted his claims (that the PCR test be required again for those who enter the country via aerial), the plaintiff, apparently, was not entirely satisfied. According to the formal request for modulation of the jurist, he requested that “the requirement of quarantine for 14 days for travelers entering the country be eliminated.” The lawyer focused his request on three arguments.
First, it was agreed that the office would study the possibility of modulating the ruling; second, that the referred quarantine was not part of their requests; and thirdly, the requirement of a negative PCR test for travelers entering the country is the most effective measure to stop an exponential increase in infections. In addition, he pointed out that the quarantine is “inane (useless), since by showing that there is no capacity to carry out a real and effective monitoring and control by the Ministry of Health and the National Tracking Center, it is ineffective and useless to implement the mandatory nature of said quarantine”. However, he clarified that he maintains that the office’s order to require the PCR test for travelers must be complied with.
The arguments of the Attorney General’s Office to request modulation of the ruling
The Public Ministry, in its role as mediator, also asked the 11th Administrative Court of the Bogotá Circuit to modulate the questioned sentence. The 88th Judicial Prosecutor for Administrative Affairs of Bogotá, Carlos Andrés Zambrano, who was responsible for the matter, indicated that the meeting between the parties took place under the premise, both of respect for judicial decisions and the independence of the Judicial Branch , as well as autonomy from the design and implementation of public policies on health and specialized care for the pandemic.
In this sense, the official found that the common factor between the plaintiff, the Ministry of Health and the office is the concern and interest in defending the life and health of Colombians. Therefore, it considered that the best way to overcome these difficulties to guarantee effective, complete and satisfactory compliance with the ruling issued by the firm is to raise the possibility that, within the legal and constitutional framework, the court modulates its decision. (It may interest you: PCR tests for travelers, another mess to close 2020)
“Without altering the fundamental content of the decision, nor the essential core of the rights protected in it, it does allow (the court) to the action (Minsalud) all the actions and measures that guarantee compliance in defense of the fundamental constitutional rights to the health and life of the inhabitants of the national territory, within the framework of what is the public policy that has been designed to face the global pandemic and that has been permanently adjusted as the dynamics of said emergency vary, ”said Zambrano.
In other words, the prosecutor asked the office to review the sentence again with a view to modifying the decision so that, while maintaining the protection of the plaintiff’s rights, it allows the Ministry of Health to act independently and decide what are the appropriate measures to manage the pandemic in the country. The official brought up scientific publications and reports from experts, who concluded that, although the restrictions adopted at the beginning of the pandemic were necessary, their effectiveness was diminished by the community circulation of the virus.
“Taking into account the reviewed scientific evidence, it is not considered relevant to redirect the available resources for the tracking without risk criteria, of imported cases, taking into account that for this phase of the pandemic, community transmission is demonstrated, which means that the spread of the virus occurs among local citizens and is substantially higher than the incidence of imported cases, “said the attorney, adding that, according to Sivigila data observed as of December 4, 2020, only 0.07% of cases in the country are imported, in contrast to 99.93% corresponding to autochthonous cases.
He also cited the World Health Organization (WHO) and the European Center for Disease Prevention and Control (Ecdc) who have stated that: the percentage of individuals with COVID among travelers tends to be lower compared to the population that lives in the destination territory; the ability of the PCR test to detect asymptomatic persons as positive is low; the PCR test with a negative result creates a feeling of security that encourages a reduction in prevention measures; from the moment the sample is taken until the date of the trip, there is a possibility of being infected; and that considering the different measures adopted by governments there are difficulties in taking the test.
With these arguments, the prosecutor formally requested Judge Legro to modulate the ruling of September 25, with the purpose of ordering the Ministry of Health, as the highest national health authority, that the measures it implements to exercise an epidemiological fence, including taking PCR tests on travelers, as well as their mandatory isolation, “must be analyzed, defined, established and implemented and required according to specialized technical criteria that, in addition to having scientific support, must be effective in controlling the state of spread of the virus in the national territory ”.
