Argentina, Federal Criminal Cassation Chamber, 6 April 2022, FBB 726/2020/2/CFC1
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
A person failed to comply with the preventive and mandatory isolation measures decreed by the National Executive Power for all persons in Argentina. Therefore, this person was investigated for the offense of "violating the measures adopted by the competent authorities to prevent the introduction or spread of an epidemic".
During the criminal proceeding, this person offered as a measure of integral reparation, to extinguish the criminal action, to donate 20 liters of milk per month for four consecutive months. The Judge of the first instance admitted this request in its decision, and the Prosecutor's Office filed a cassation appeal against it. The Court confirmed the first instance Judge's decision because it considered that the conduct attributed to the accused had not represented minimally potential damage to the protected legal right, public health.
Facts of the case
In March 2020, the National Executive Power of Argentina issued Decree 297/2020, ordering the preventive and mandatory social isolation of all persons unless they had the authorization to move within the territory to prevent the spread of COVID-19. During the enforcement of this measure, a person failed to comply with it without justifying this violation to the police officer who arrested him.
For the above, this person was required to stand trial under Article 205 of the Argentine Criminal Code, which states, "Anyone who violates the measures adopted by the competent authorities to prevent the introduction or spread of an epidemic shall be sentenced to imprisonment".
During the criminal proceedings, the person indicated that he had failed to comply with the measure as a consequence of problems of cohabitation at home. He was moving from his father's house to his mother's house. In addition, his defense offered as a measure of integral reparation, to extinguish the criminal action, that the Defendant donate 20 liters of milk per month for four consecutive months. The Judge admitted this request, and the Prosecutor's Office filed a cassation appeal against it.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
PublicDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
The Court mentioned the reasons that the Judge of the first instance had had for accepting the full reparation offered by the Defendant. The Court found that the acts investigated had been committed without violence and that it had not been proven that there had been a specific danger to the protected legal right by the Criminal Code, i.e., to public health. Therefore, the Judge of the first instance considered the offer proper and proportionate.
The Court determined that the decision of the Judge a quo was reasonably justified and had necessary and sufficient legal grounds. Therefore, it was not arbitrary. The Court noted that the conduct attributed to the accused had not represented minimally potential damage to the protected legal right. In this regard, it considered that the Defendant's conduct was insignificant according to the most basic principles of criminal law.
In addition, the Court added that the Prosecutor's Office did not refute the arguments considered by the Judge a quo in the decision under attack. Therefore, it confirmed the ruling of the Judge of the first instance.
Conclusions of the deciding body
The Court upheld the decision of the Judge of the first instance, because it considered that the conduct attributed to the accused had not represented minimally potential damage to the protected legal right, public health.
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
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the principle of reasonableness to determine that, considering that the conduct of the accused had not harmed any legal right, it was admissible and not arbitrary to accept his offer of full reparation to order the dismissal of the case.
