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Brazil, 2nd Public Treasury Court of Florianopolis, 17 March 2022, Mandado de Segurança No. 5025189-11.2022.8.24.0023/SC

Case overview

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Country
Brazil
Case ID
Mandado de Segurança No. 5025189-11.2022.8.24.0023/SC
Decision date
17 March 2022
Deciding body (English)
2nd Public Treasury Court of Florianopolis
Deciding body (Original)
2ª Vara da Fazenda Pública da Comarca de Florianópolis
Type of body
Court
Type of Court (material scope)
Administrative Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Local Court
Instance
1st Instance
Area
Healthcare management (Covid related, excluding vaccination)
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_PT available on www.miglhas.com.br

Case analisys

General Summary

The Condomínio XX filed a "mandado de segurança" against an administrative act issued by the Directoría de la Vigilancia Sanitária of the Municipality of Florianopolis. Through the action, it was intended that the administrative authority authorize the condominium to use the access control system through facial recognition, with photo registration necessary for each person, individually, without crowds, and without any physical contact, to lower the face mask for a short time. This action was filed after an administrative decision against the condominium.

The Judge recognized that the benefits of implementing the measure outweighed the eventual damages derived from quickly lowering the mask. The form of entry to the municipality does not require sharing objects with officials and other visitors. In these terms, the act violates the principle of reasonableness and motivation of administrative acts. The Court accepts the claims of the Plaintiff, which is the condominium.

Facts of the case

During the COVID-19 pandemic, the Health Surveillance Directorate of the Municipality of Florianópolis issued an act of intimidation against the Condomínio XX. The basis of this act was that the Condominium did not comply with the sanitary protocols against the pandemic since people needed to lower their masks to carry out the access registration. Based on this administrative act, the Condominium filed a "Mandado de Segurança”) seeking authorization to use the access control system through facial recognition, with the necessary photographic record for its operation, for which each person, individually, without crowding and without any physical contact, can lower their mask for a few seconds.

Type of measure challenged
City government measure
Measures, actions, remedies claimed
Authorization to use the access control system through facial recognition, which requires to lower their mask
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Special / extraordinary procedures
Reasoning of the deciding body

For the Court, as demonstrated in the process, the condominium acquired a new access control model by turnstile that works through facial recognition and temperature measurement. The equipment could identify the passage of people without masks or register the incorrect use of protection. The initial registration requires a photo of the person's full face, which is only possible by lowering the mask for an instant. In analyzing the claim, the Court recognized that the gains from implementing the measure outweighed the possible harm from briefly lowering the mask. The entry form does not require sharing objects with staff and other visitors, such as pens or fingerprint readers. Finally, the Court emphasized that the Sanitary Inspection Report, containing the infraction details, was only prepared after the notification of the inputted authority, so the document does not validate the previous administrative act.

Conclusions of the deciding body

The Court concluded that, although the use of masks indoors has been recently disobliged by the state government, the case under examination occurred while the norm requiring the use of equipment in the prevention of COVID-19 was still in force last December. Nevertheless, the fine issued by the health agency for the removing of the protective mask for a few seconds during facial registration violates the principle of reasonableness. In this sense, the Court granted the action pleaded by the corporate condominium and suspended the effects of a summons issued by the municipality's Health Surveillance.

Balancing Fundamental Rights and Fundamental Freedoms

Fundamental Right(s) involved
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
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health (public) v. access to health services
General principle applied
Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)

For the Court, the principle of reasonableness guides administrative action according to the principles of isonomy, logical coherence, and equity.

In the specific case, the application of reasonableness is not merely a matter of the mere pursuit of compatibility between cause and effect. On the contrary, a reasonable compatibility between interests and reasons to be carried out by the public administration was evidenced in the case.

Additional notes

Other notes

Act of intimation of the Directorate of Sanitary Surveillance of the Municipality of Florianópolis against the Condomínio XX.

On "type of procedure": “Mandado de segurança”, action to protect liquid and certain rights, not protected by habeas corpus or habeas data, whenever, illegally or with abuse of power, any natural or legal person suffers violation or risk of suffering it by the authority (Art. 5 LXIX – LXX Federal Constitution of Brazil 1988; Act. 12016/2009 art. 1).

Author of the case note
William Ivan Gallo Aponte, Researcher, Externado University of Colombia; PUCPR, Brazil
Published by Laura Piva on 25 November 2022

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