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
Outcome of the decision
Two people filed a habeas corpus action because they considered the measure taken by the provincial and national government requiring the "Pase Libre Covid" (a certificate of complete vaccination against COVID-19, necessary to attend certain events considered to be an epidemiological risk) a violation of their freedom.
The first instance judge rejected the request and sent the case to a second instance judge for consultation. The Court considered the "COVID Free Pass" measure to be legitimate, not arbitrary, and did not infringe upon the claimants' freedom. On the contrary, it noted that it protected public health.
Facts of the case
Two people filed a writ of habeas corpus to "avoid current, imminent, and future disturbances and unlawful deprivations of their liberty." They considered the national and provincial government "Pase Libre COVID" requirement to be a severe restriction of their freedom in almost all acts of civil and daily life.
The "Pase Libre COVID" is a certificate demonstrating that a person has completed their COVID-19 vaccination schedule and that more than fourteen days have passed since their last dose. It was necessary to attend activities that represented a significant epidemiological risk, such as religious, cultural, and recreational activities in enclosed spaces, in-person procedures in provincial and municipal public bodies, and private procedures involving crowds of people.
The claimants pointed out that making experimental vaccination compulsory was a political decision and lacked scientific rigor. The first instance judge noted there was no evidence of any arbitrary situation that would in any way threaten the freedom of these persons, especially as the aforementioned restrictions were for public health reasons. This judge sent the case to the second instance judge for consultation.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Conclusions of the deciding body
The Court found that the measure requiring the "Pase Libre COVID" was legitimate, was not arbitrary, and did not infringe upon the claimants' freedom. On the contrary, it noted that it protected public health.
Reasoning of the deciding body
First, the Court indicated that the writ of habeas corpus served to determine whether the obligation to exhibit the COVID Free Pass constituted an illegitimate infringement of the claimants' freedom of movement, but that the Court could not analyze this measure in depth because it was not an appropriate action and could disarticulate public policy and violate the principle of a division of powers.
According to the Court, that did not mean that such measures could not be controlled, but it indicated that there were procedural mechanisms for such revision.
On the other hand, the Court indicated that none of the hypotheses necessary for the habeas corpus writ to proceed were fulfilled. It noted that the measure created by the government sought to prevent the spread of a disease classified as a pandemic in order to protect the public interest in public health, which was entirely legitimate. Furthermore, the Court found that the measures taken to do so were appropriate, reasonable, prudent, and proportional.
Finally, the Court stated that the arguments put forward by the claimants failed to prove that the measures in question implied an unjustified or impertinent infringement of individual rights since the "Pase Libre COVID" requirement was justified by the pandemic emergency, the guidelines issued by the World Health Organization, and the scientific criteria governing the matter.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to Health, Art. 42, Argentinian Constitution
- Right to freedom of movement of persons, Art. 14, Argentinian Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Principle of the division of powers
Balancing techniques and principles (proportionality, reasonableness, others)
Regarding the principle of the division of powers, the Court stated that it was not the task of judges to establish health policies either directly or indirectly, as this would severely affect the republican system of government and one of its guiding principles: the division of powers.
On the other hand, when studying the measure, the Court applied the principle of proportionality by saying that the challenged regulation was aimed at preventing the spread of COVID in order to protect public health and that it was a suitable, reasonable, prudent, and proportional measure.