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Published 02.11.2021 in K-Tip 18/2021 (Gery Schwager & Markus Fehlmann)
Since the 13th of September, people in Switzerland are only allowed to visit restaurants, cinemas, theatres, museums, zoos and other facilities if they can show a Covid certificate. This means that only those who have been vaccinated against Corona, have recovered from Covid-19 or have tested negative for the Corona virus 48 to 72 hours beforehand are allowed to enter. Before the 13th of September, the certificate requirement only applied to discos and large events.
The Federal Council sees the legal basis for the certificate in Article 6a of the Covid 19 Act. This has been in force since the revision of the law on the 19th of March, despite the referendum, because parliament declared the law urgent. The article mentions the certificate in connection with measures for border closures and not for restricting access in publicly accessible spaces within Switzerland.
Supporters and opponents of the law are turning the November vote into a fundamental decision on the certificate, even though the ballot is about all the amendments to the Covid 19 law from the vote from the 19th of March this year. At that time, parliament also decided on additional financial aid - for example to the self-employed and cultural workers - and more.
With the rigorous certification requirement, the Federal Council says it wants to better protect the health of the population. The Federal Office of Public Health writes to K-Tipp that vaccinated people contribute less to the transmission of the virus than unvaccinated people. And testing ensures that fewer infected people meet each other.
Compulsory certification stands on shaky ground
However, if the Federal Council were concerned with the greatest possible health protection, it should not allow, for example, freshly tested unvaccinated people to meet potentially infectious vaccinated people in an ice hockey stadium. In this way, there is a risk that infectious vaccinated persons will pass on the virus to healthy tested persons. The Federal Council would have to ensure strict separation - i.e. only grant access to either one or the other group. According to a study in the English scientific journal "Lancet", vaccinated people transmit the virus just as often as unvaccinated people.
However, the Federal Council could also simply abolish the certificate requirement. Just as it announced in the spring. On the 21st of April, Health Minister Alain Berset said at a media conference: "If all people who want to be vaccinated are vaccinated twice, we can no longer maintain the restrictions". In the meantime, all those who wanted to be vaccinated were able to do so; the vast majority of those who were not vaccinated did so voluntarily and consciously.
The Federal Council justifies the fact that the certificate obligation still exists with the situation in the hospitals. But the overload that has been predicted again and again since this summer has never occurred (see box). Moreover, according to the Federal Office of Public Health, more than 88 percent of people over 80 are now fully vaccinated. The high vaccination rate in this particularly vulnerable group should significantly relieve the hospitals, provided the vaccination works as expected. Nevertheless, the Federal Council is sticking to the certificate requirement. Opponents of this measure see it as an indirect compulsion to vaccinate. They criticise that without the Covid certificate, "healthy people could no longer participate in social and economic life".
The Covid 19 Act will be put to the people for the second time on the 28th of November. Only the amendments passed by parliament last March will be up for debate.
Even before the first vote on the 13th of June, legal experts were not sparing in their criticism of the bill. Zurich law professor Andreas Kley called the law "unconstitutional" (K-Tip 10/2021). Legal scholars are currently criticising the certificate requirement in particular. In the October issue of the legal journal "Plädoyer", the Freiburg criminal law professor Mar-cel Niggli states "a considerable problem regarding the legal basis" for penalties.
"An encroachment on fundamental rights"
His colleague from Basel, Markus Schefer, does not see a sufficient basis in the Epidemics Act for the compulsory certification decided by the Federal Council and in force today. For Kaspar Gerber, a legal scholar at the University of Zurich, the extended obligation to obtain a certificate represents "a considerable encroachment on fundamental rights". With the certificate requirement, the state has "confiscated part of the constitutional fundamental right of personal freedom". It thus makes it more difficult for the persons concerned to participate in society without hindrance.
In addition, a vaccination or a test is required for the certificate. Both impair bodily integrity. The Federal Constitution, however, explicitly protects the right to bodily integrity. Kaspar Gerber also points out in "Plädoyer" that the Covid 19 Act does not provide a sufficient legal basis for extending the obligation to obtain a certificate to indoor areas. In this law, the certificate is only mentioned in connection with measures for closing borders. Therefore, it may only be used there.
For Ruth Baumann-Hölzle, head of the institute at the Dialog Ethik Foundation, the use of the certificate is also highly questionable: "There is a lack of scientific evidence for the benefit of the certificate in terms of risk reduction if a distinction is made between vaccinated and unvaccinated people in this way". According to Ruth Baumann-Hölzle, this is all the more problematic because the tests for the certificate, which are subject to a fee, put economically weak people at a disadvantage.
Intensive care units are not overloaded
The Federal Office of Public Health and the Federal Council justify the necessity of the Covid certificate by saying that overcrowding in hospitals must be prevented.
Switzerland was and is far from overburdened hospitals and especially intensive care units. This is shown by figures from the Confederation. The coordinated medical service of the Armed Forces evaluates the occupancy of all intensive care beds in Swiss hospitals in detail.
The corresponding figures for the period from January to mid-October 2021 show that between 20 and 40 per cent of the beds in the intensive care units have always remained empty - there can be no question of overcrowding.
Even at the beginning of September, at the peak of the fourth Corona wave, there were enough beds. According to the Federal Office, of 873 beds in the intensive care units, 680 were occupied by patients, of which 298 were corona patients. 193 of the beds would therefore still have been free.
In the week of the 18th of October, an average of 107 Corona patients were still in the intensive care units - 17 per cent fewer than in the previous week.