Argentina, Court of Extraordinary Judicial Recess of the City of Cordoba, 8 April 2020, Auto Interlocutorio 216
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Private and family life
- Freedom of movement of people
- Healthcare management (Covid related, excluding vaccination)
- People with disabilities
- People deprived of liberty
Outcome of the decision
The case involved a claim for the conversion of an intramural prison sentence to house arrest of a person deprived of liberty, on the grounds that he had a quadriplegic son he could no longer visit due to the Covid-19 pandemic. He also argued that prison overcrowding, a lack of food, and poor containment of the virus by the prison service should be considered to further justify his request. The plaintiff considered that his right to health could be at risk as well as the protection of his minor son’s interests. Faced with this situation, the prison service, the forensic medicine section of the judiciary, and the prosecutor’s office denied the claim based on the consideration that the plaintiff was young, in good health, had no relevant medical history, no symptoms of Covid-19, or any contact with positive cases. Hence, he was not at risk of developing a severe case of Covid-19. Furthermore, it was indicated that the Ministry of Health measures were being respected in the province to contain the virus in prisons. The Court denied the claim after considering all the steps taken to prevent the spread of the virus in prison and the health conditions of Mr. DC. It concluded that Mr. DC was not at risk of developing a more serious case of Covid-19 and that the impossibility of seeing his family was also the case for the entire population of the country due to the isolation measures in place at that time.
Facts of the case
Mr. DC was deprived of his liberty. In April 2020, he requested that he be granted house arrest, arguing that he had a quadriplegic son that he was able to visit before the pandemic and could no longer see. He indicated that this situation could affect the child’s interests and that his presence in the home was necessary to obtain economic resources for the family. Mr. DC also argued that prison overcrowding and the lack of food and containment of the virus by the prison service should be taken into account. The prison service informed the Court that Mr. DC was 34 years old, in good health, and had no relevant medical history, so he was not in any at-risk group. It also indicated that the measures taken by the provincial Ministry of Health to contain the virus were being followed. The forensic medicine section of the judiciary added that Mr. DC had no symptoms of Covid-19, nor had he had contact with any positive cases. It also noted that at that time, there was no information about Covid-19 circulating in the prisons. The Prosecutor indicated that house arrest should not be granted because Mr. DC was not in any of the at-risk categories identified by the WHO. He added that the Ministry of Health of the province indicated that since there were no positive cases of Covid-19 in prisons, all the measures being taken were preventive. Therefore, being in prison did not imply a greater risk to Mr. DC’s health. He indicated that the mere existence of Covid -19 was not sufficient grounds for granting a request of house arrest.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
First, the Court indicated that after the executive power had declared a health emergency in Argentina, social and preventive isolation was decreed. In addition, the Ministry of Health of the province of Córdoba created a care plan for persons deprived of liberty in response to Covid-19, which contemplated several measures for containing the disease, and also created a Covid-19 Care Protocol for Penitentiary Establishments, creating an operations center that would attend to this emergency. Additionally, the Court indicated that home imprisonment was one of the alternatives for special situations provided by the Argentine legal system for carrying out a prison sentence. One of the grounds for this measure being granted is in cases where the deprivation of liberty prevents a person from recovering from an illness or in cases where they have a terminal illness. Thus, the purpose of this measure is to prevent the deprivation of liberty from being particularly afflictive and constituting cruel, inhuman, or degrading treatment by making it impossible for the sick convicted person serving his sentence in prison to recover or receive adequate medical treatment. According to the above, for the Court to grant Mr. DC’s request, he would have had to prove a severe current risk to his health and that no measures were being developed to avoid such a risk. The claimant did not demonstrate either of these two requirements. Consequently, the Court indicated that no elements were provided that would allow it to infer that there was an imminent or severe risk to Mr. DC’s health. However, it did point out that this situation could change later due to the changing dynamics of the pandemic. Regarding visits to Mr. DC’s disabled minor son, the Court indicated that people were in isolation at that time due to the pandemic (at the National and Provincial levels), so this was also a reality for people who were not deprived of their liberty.
Conclusions of the deciding body
The Court did not grant the claimant’s demands because it considered Mr. DC’s health not to be at risk and that the impossibility of seeing his family was also the case for the entire population of the country due to isolation measures.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Prisoners’ rights
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 42, Argentinian Constitution
- Right to life, Argentinian Constitution (implicity)
- Freedom of movement of people, Art. 14, Argentinian Constitution
- Prisoners’ rights - Humane treatment, Arts. 18 and 22, Argentinian Constitution
- Prisoners’ rights - Humane treatment, Art. 25, American Declaration of the Rights and Duties of Man
- Prisoners’ rights - Humane treatment, Art. 5, Salvador Protocol to the American Convention on Human Rights
- Prisoners’ rights - Humane treatment, Art. 10, International Covenant on Civil and Political Rights
- Prisoners’ rights - Humane treatment, Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to privacy (private and family life)
- prisoners’ rights
Balancing techniques and principles (proportionality, reasonableness, others)
No techniques were used by the Court to balance fundamental rights.The Court did not explicitly mention any principles. However, from the decision, it can be concluded that the Court used the equality and non-discrimination principles to decide if Mr. DC was being discriminated against due to his condition of being a person deprived of liberty in comparison with the rest of the population, considering that he could not visit his son. Also, it implicitly applied the proportionality principle to decide if his prison sentence was necessary taking into account his right to health and his child’s interest.
On the type of court: The duty of this Court was to hear petitions related to the sanitary emergency that gave rise to the extraordinary judicial recess in Argentina.
On types of measure challenged: The national measures challenged were Law 24.660, Article 32, a national law that establishes the situations in which a person may be granted house arrest, and Decree of Necessity and Urgency No 260 of March 12, 2020, a national norm that decreed mandatory isolation. It could also be considered that it was challenged the government omission to consider house arrest as a measure for facing the pandemic.