Brazil, 17th Federal Civil Court of São Paulo, 14 March 2022, No. 5005674-13.2022.4.03.6100
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
During the gradual return to educational activities after the COVID-19 vaccination day in São Paulo, the governing body of the University of São Paulo issued an administrative act to present proof of vaccination against COVID-19 to obtain permission to go to the University's premises and facilities. Later, an engineering student filed a legal action to suspend the administrative act. In the action, the student presented a medical report stating that the student presented robust immunity against COVID-19 and, for this reason, he did not require vaccination. In addition, the student requested the extension of the suspension decision for all students at the University.
The Court analyzed the claim and affirmed that the rector's decision aligns with the precaution required for the safe return to classroom classes. Furthermore, based on the Constitution, the Court emphasized that administrative decisions that can influence legal assets such as life and health must be in line with the principles of precaution and prevention. In these terms, the Court denied the claim.
Facts of the case
A mechatronics engineering student at the University of São Paulo (USP) filed a preventive habeas corpus against the Rector of the University. The claim consisted in allowing full access to the University facilities without being subject to the terms of the administrative act (portaría) GR No. 7671 of 08/19/2021, which conditioned the presence of students to the presentation of proof of vaccination against COVID-19. According to the student, through a medical report, he claimed to have a robust immunity, therefore not requiring vaccination. According to the lawsuit, presenting proof of immunization would constitute an illegal constraint. Additionally, if granted, he requested that the effects of the decision be extended to all students at the University.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
For the Court, the Rector's decision (portaria) aligns with the precaution required for a safe return to classroom instruction. According to articles 196 and 225 of the Federal Constitution, decisions capable of influencing legal goods of supreme value, such as life and health, must be guided by the principles of precaution and prevention.
The use of indirect instruments to compel the population to adhere to the national vaccination program triggered by the health crisis resulting from the pandemic caused by COVID-19 has been repeatedly referenced in several decisions of the Federal Supreme Court (ADIs n. 6.586 and 6.587, j. 12/17/2020).
The Court dismissed the argument that the student would have "robust immunity" against COVID-19 since the medical report submitted was issued more than a month ago and does not present convincing elements of the uniqueness of the Petitioner's medical condition.
Conclusions of the deciding body
For the Court, medical autonomy expressed in a concise report, by itself, is not sufficient to counter an act of authority issued in line with an adopted public policy based on precaution. Additionally, the Petitioner lacks legal standing in his final request for extension of the injunction to all students at the university. I also note that, after classes begin, the Rector and the university community will be able to make the necessary adjustments to ensure a safe resumption of classes. In short, the time is not ripe for the precipitation and hastily granting of injunctions. In this sense, the Court dismissed the Petitioner's request.
Fundamental Right(s) involved
- Right to education
- 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. 6, Brazilian Federal Constitution
- Right to education, Art. 6, Brazilian Federal Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Following Article 196-225 of the Constitution, the Court applied the precautionary principle to affirm that decisions capable of influencing legal goods of supreme value, such as life and health, must be guided by this principle. For the Court, the Rector's decision was in line with the precaution required for a safe return to the classroom.
Other notes
On "type of measure challenged": Administrative act (portaría) GR No. 7671 of 08/19/2021, issued by the rector's office of the University of São Paulo, conditioned the presence of students to the presentation of the respective proof of vaccination against COVID-19.
On "measures, actions, remedies claimed": He requested that the effects of the decision be extended to all students at the University.
On "type of procedure": preventive habeas corpus ("habeas corpus preventivo"). This is used in cases where freedom has not yet been deprived but is under concrete and imminent threat. Preventive habeas corpus is also called "safe conduct" and prevents an illegal act (Art. 102, item II, line "a"; and 105, item II, lines "a" and "b", of the Federal Constitution of 1988; Art. 30 to 35, of Act 8.038/90).
