Argentina, National Court of Appeals for Criminal and Correctional Matters, 29 April 2020, CCC 10980/2020/3
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
- Healthcare management (Covid related, excluding vaccination)
- People with chronic diseases
- people deprived of liberty
Outcome of the decision
Mr. XX was a person with immunodeficiency virus (HIV). Beginning in 2020, he was deprived of his liberty, so when the pandemic began, he requested that he be granted house arrest, in order to guarantee his right to health, considering that he was a person included in the COVID-19 risk groups. The Court of first instance denied his claim. It indicated the necessity of maintaining his deprivation of liberty in a penitentiary center to ensure the protection of the legal process and avoid hindering the investigation. The Court also rejected the claim because it considered that although Mr. XX was in an at-risk group during the pandemic, he was receiving treatment for his illness, was stable, and could eventually be treated in his place of confinement.
Facts of the case
Mr. XX was a person with immunodeficiency virus (HIV) deprived of his liberty. When the pandemic began, he requested that he be granted house arrest due to his health condition as he was among those the Argentine government had established as being at-risk in the context of the COVID-19 pandemic. The Penitentiary pointed out that when Mr. XX arrived at the prison, he had never been treated for his illness, and that it was only during his imprisonment that he began to receive medicine for his medical condition. It also indicated that he was stable and receiving his antiretrovirals. The Forensic Medical Corps indicated that although Mr. XX was a person included in the list of those at risk of suffering the severe forms of COVID-19, he was not legally qualified for house arrest due to his illness. In this regard, it indicated that hospitalization of Mr. XX was not required since he did not suffer from an incurable or terminal disease, was without disability, and added that the literature suggested his disease could be cured. The Court of first instance denied the claim. It indicated that to ensure Mr. XX’s subjection to the process and avoid hindering the investigation, it was necessary to maintain his detention in a penitentiary center. It pointed out that the alternative measures contemplated in the procedural law had been considered, but the Court concluded that the only way to neutralize the danger of evasion was to maintain Mr. XX’s preventive confinement.
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 the decision of the first instance Court was correct because the facts of the case did not coincide with the requirements established in the Argentinean law for granting house arrest. The Court analyzed the reports presented by the Forensic Medical Corps and the Penitentiary Center related to the fact that Mr. XX was receiving his antiretroviral treatment at his place of confinement and was stable. Therefore, the Court stated that Mr. XX was not within the exceptions contemplated by the law for obtaining house arrest related to the severity of the physical ailment that a person may suffer. The Court stated that, during the pandemic, Mr. XX could receive the medical attention he might require inside the penitentiary unit where he was located, and, eventually, he could be referred to a more advanced center. Consequently, it indicated that since Mr. XX’s physical condition, due to its characteristics, did not represent a limitation that would permit his confinement to be characterized as indignant, inhuman, or degrading treatment, it confirmed the decision of the first instance Court.
Conclusions of the deciding body
The Court rejected the claim because it considered that although Mr. XX was in an at-risk group during the pandemic, he was receiving treatment for his illness, was stable, and could eventually be treated at his place of confinement.
Fundamental Right(s) involved
- Prisoners’ rights
- Right to health (inc. right to vaccination, right to access to reproductive health)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health (public) v. access to health services
- prisoners’ rights
Balancing techniques and principles (proportionality, reasonableness, others)
The Court did not explicitly refer to any balancing technique. Regarding principles, it can be concluded that it applied the precautionary principle to decide whether Mr. XX’s state of health could justify taking measures that sought to prevent the deterioration of his medical condition. It can also be considered that it applied the principle of proportionality to determine how detrimental it could be for his health to remain in a penitentiary center instead of house arrest.
On the type of measure challenged: On the pandemic, two national measures are being challenged: the Argentine Penal Code and Law 24660, which established the requirements for house arrest to be granted. It could also be considered that it was challenged the government omission to consider house arrest as a measure for facing the pandemic, particularly for people who suffered from chronical diseases.
On the fundamental right(s) involved: The Court did not explicitly mention any fundamental rights. However, from the reading of the decision, it can be concluded that several rights were considered: the Right to health, Art. 42, Argentinian Constitution; the Right to life, not mentioned explicitly in the Argentinian Constitution but considered incorporated with it. Freedom of movement of people, Art. 14, Argentinian Constitution. Prisoners’ rights - Humane treatment. Art. 18 and 22, Argentinian Constitution.