As is public knowledge, on the 15th of this month the “Sectorial Guidelines for the preventionof Covid-19 in the provision of air passenger service at national level” came into force inaccordance with Ministerial Resolution No. 0384-2020-MTC/01, specifying the protocols to befollowed by passengers, airline crew members, workers, airline and airport operators duringtheir stay in their facilities, boarding, disembarkation and transfer of aircraft, indicating thatpassengers must comply with the following measures:
The passenger will enter the airport alone; exceptionally, in case of requiring assistance for histransfer, an accompanying person will be allowed to enter the airport.
The passenger must wear a face mask and face shield upon boarding, which he/she will usethroughout the flight.
● Temperature taking shall be performed on all passengers.
● Disinfection of footwear and hands.
● The traveler shall submit his/her health affidavit.
● During embarkation and disembarkation distances between people must be respected.For boarding, passengers must arrive three hours in advance at Jorge Chávez InternationalAirport and two hours earlier at air facilities in the interior regions of the country.
On the part of the airlines, they must follow a series of protocols, among which the followingstand out:
● Disinfect all aircraft surfaces.Aircraft must have HEPA (High Efficiency Particulate Air) filters that remove 99.9% of anypathogenic agent (viruses and bacteria) inside the aircraft every two to three minutes and allseats in the aircraft must be used.
● Distancing measures at embarkation and disembarkation to avoid crowds of passengers.
● All airline and airport workers will have their temperature taken at the beginning and end oftheir workday.
● Personnel shall wear protective equipment during all phases of flight.
Among the requirements demanded from the passengers, the most relevant -I consider- will bethe Health Affidavit, since it will be mandatory and will contain a declaration under oath thatthey do not have coronavirus, do not have any symptoms, nor have they had contact with peoplewith the disease during the last fourteen days, a requirement that we will analyze in detail lateron.
In the event that a passenger verifies that all the requirements of the travel protocol are notbeing complied with at the airport, he/she should request the airline the complaint book in orderto report the fact or, failing that, go to the Indecopi office at the airport and file the complaint,detailing the airline company, flight number and the reason for the complaint in order tosafeguard his/her health.
Now, what happens when a passenger presents symptoms in the boarding lounge? Thepassenger will be transferred to the Airport Health Department so that a doctor can evaluatehim/her and determine whether he/she can board the plane or not. If the doctor determines thathe/she cannot travel, he/she must be evacuated to the respective health facility.
Following this line, we noticed an apparent contradiction in the “Health Affidavit”, since on theone hand the passenger is obliged to declare that he/she does not present respiratory symptomscompatible with COVID-10 and then to mark in a chart the signs or symptoms of loss of senseof smell, taste, fever, sore throat, muscle aches and cough.
This form also expressly contains the following statement:
“The answer is clear: such passenger commits a crime against the Public Faith, in the modalityof Ideological Falsehood, whose penalty shall be not less than three nor more than six years ofimprisonment and one hundred eighty to three hundred sixty-five days of fines, in accordancewith Article 428 of the Penal Code.
In spite of this, many people in Peru will surely apply the misnamed “viveza criolla” to travel tothe interior of the country for various reasons, knowing that the information contained in theaffidavit is false, exposing other passengers to contract the disease or die as a result of it, solelyand exclusively due to their criminal negligence.
The hypothetical consequences of possible infection and/or death of passengers may be verifiedin the next fifteen days after the date of travel, then, who will assume criminal liability for apossible infection of the disease or, in the worst case scenario, for the death of a passenger byCOVID-19, will it be the responsibility of the passenger who submitted the affidavit, of anotherpassenger who was located near him and also failed to tell the truth in his affidavit of health,will the pilot of the plane or the airline in which the passengers travelled be responsible? Whathappens with asymptomatic passengers, who represent 80% of the cases of contagion and do not present any symptoms but have the capacity to transmit the virus? We will answer all thesequestions.
When a passenger travels and it is proven that he/she submitted an Affidavit of Health withfalse information regarding the diagnosis of COVID-19, such passenger will be criminallyliable for the crime of Violation of sanitary measures (art. 292 of the Penal Code) and if he/shealso infects others and any of them dies, he/she commits the crime of Propagation of dangerousor contagious diseases in the aggravated modality (art. 289 of the Penal Code), whose penaltyranges from ten to twenty years of imprisonment.
Finally, we fully agree with the spirit of Supreme Decree N° 117-2020-PCM issued by thePeruvian State, which provided for the approval of Phase 3 of the Resumption of EconomicActivities, authorizing the Ministry of Transportation and Communications to issue MinisterialResolution N° 0384-2020-MTC/01 regarding the sectorial guidelines for the air transportationservice at national level, among others, but – I think – some additional requirement should be putin place to ensure the health safety of all passengers, with the sole purpose of minimizing therisks of future impacts due to contagion and/or deaths from coronavirus, and the health affidavitshould be corroborated by a medical certificate or a quick test of the passenger who does nothave COVID-19.
