Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
A group of health care workers (nurses and auxiliary nurses) of a public hospital in the city of Buenos Aires requested, through a collective precautionary measure against the government of the aforementioned city, for them to be urgently provided with the supply of personal protection elements, deemed necessary to attend to the hospital's patients during the pandemic. They pointed out that the lack of these supplies put their right to health at risk.
The Court upheld the claim, because it indicated that there was certainty about the righteousness to have protective supplies against COVID-19 and that the city government should provide them, as the subsequent employer. It also pointed out that the danger of delay was evident, because if the claimants' request was not granted, their right to health would be at risk.
Facts of the case
A group of health care workers (nurses and auxiliary nurses) of a public hospital in the city of Buenos Aires requested, through a collective precautionary measure against the government of that city, to be urgently provided with the supply of personal protective equipment necessary to care for the hospital's patients during the pandemic.
The claimants indicated that their right to health was at risk, since these medical supplies were indispensable and limited. They pointed out that days before, since they had submitted a note to the Director of the Hospital requesting working clothes and protective equipment, without receiving any response.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
Firstly, the Court indicated that for a precautionary measure to be granted, there were two procedural requirements: i) the verisimilitude of the right, which did not require an examination of its certainty but that it probably existed (appearance of a good right); and ii) the danger of delay, which means that if the precautionary measure was not granted, the right which protection was requested would be at risk of being violated through the occurrence of damage.
Thus, to avoid generating imminent or irreparable damage, these types of urgent measures could be requested. According to the aforementioned facts, the judge had a preventive task in this context.
Based on the reasons mentioned, the Court concluded - on the basis of various instruments of international and national law (see the section on "Fundamental Rights Involved") - that all persons had the right to life and health and that the State should take the necessary measures to ensure that these rights were guaranteed.
Additionally, the Court indicated that at the time of the request, the Argentinian national government's Decree of Necessity and Urgency 297-PEN-2020 was in force, according to which the entire population of the country was ordered to maintain preventive isolation and indicated that it was forbidden to move, except for essential activities, including health services.
The same rule stated that in all cases exempted from isolation, employers had to guarantee the hygiene and safety conditions established by the Ministry of Health to preserve the workers' health.
The decree also ordered each jurisdiction (in this case, the city of Buenos Aires) to dictate the necessary measures to implement this rule.
In addition to that, and according to that country's Decree-Law 19,587, every employer was required to adopt and implement adequate health and safety measures to protect the life and integrity of workers, especially concerning the provision and maintenance of personal protective equipment.
Furthermore, the Court noted that the Superintendence of Occupational Risk made a series of recommendations for workers exempted from quarantine, including providing these protective supplies. Finally, the Court indicated that the city government had established protocols and recommendations for health personnel, including personal protective equipment for COVID-19.
Conclusions of the deciding body
The Court upheld the claim, because it stated that there was certainty about the verisimilitude of the right to have protective supplies against COVID-19 and that the city government should provide according to its condition of employer. It also indicated that it was evident that there was a danger in the delay because if the claimants' request was not granted, their right to health would be at risk.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 11, American Declaration of the Rights and Duties of Man
- Right to health, Art. 25, Universal Declaration of Human Rights
- Right to health, Art. 12, International Covenant on Economic, Social and Cultural Rights
- Right to health, Art. 20, Constitution of the City of Buenos Aires
- Right to life, Art. 25, Universal Declaration of Human Rights
- Right to life, Art. 11, International Covenant on Economic, Social and Cultural Rights
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 did not explicitly mention any balancing technique or general principle. However, on the basis of the contents of the decision, it could be concluded that it applied the precautionary principle when assessing the verisimilitude of the right and the danger of delay in the case, and determined that it was appropriate to grant the claimant's request because otherwise, their right to health could be at risk.
Types of procedure: urgency, expedited procedures