Brazil, Court of Justice of Rio Grande do Sul, 6 March 2022, Agravo de Instrumento No. 5028620-06.2022.8.21.0001
Case overview
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General Summary
The Associação Mães e Pais pela Democracia (AMPD) filed a public civil action against an administrative measure of the State of Rio Grande do Sul, alleging that, when the State obliges the use of individual protective masks for all persons over three years of age, it incurs in illegality. In the first instance, the claims were granted, and the effects of the state decree were suspended. Following an appeal, the Court considered that the classification of the new protocols adopted by the State indicates an alteration of the State's public health policy until then in force. For the Court, public health policies less restrictive than those adopted by the Union cannot be implemented, as in the specific case deals with the mandatory use of face masks by children.
Facts of the case
In the context of the COVID-19 Pandemic, the State Government of Rio Grande do Sul issued a decree restricting the obligation imposed by federal regulation on the use of masks for children under 12 years of age. Subsequently, the "Associação Mães e Pais pela Democracia (AMPD)" filed a Public Civil Action claiming that the State of Rio Grande do Sul acted illegally since there was no modification of the text of the National Act.
In the first instance, the Court granted the Association's request, suspending the effects of the State Decree. Dissatisfied, the State of Rio Grande do Sul appealed to the Court of Justice. It claimed, among other arguments, that there is a recommendation that children between 6 and 11 years of age wear masks, being in total harmony with the discipline drawn up at the federal level. And there was no annotation in the State Decree to the effect that the use of masks should or could not be performed.
Type of measure challenged
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Individual / collective enforcement
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Reasoning of the deciding body
The Court considered that the classification of the new protocols adopted by the State signal a change in the state public health policy in force. Specifically, the obligation imposed by the Federal Law on sanitary measures for the control of the COVID-19 pandemic was reduced.
During the pandemic, the jurisprudential understanding of the Federal Supreme Court was firmed in the normative plan and the division of competencies in public health matters. This understanding teaches that the autonomy of the federal entities could be exercised to increase the restrictive character of health measures, considering local peculiarities. In examining the complexity of decrees issued, the State opted for the opposite path in the specific issue of wearing masks, which does not seem legitimate.
Conclusions of the deciding body
The Court denied the appeal of the State of Rio Grande do Sul. It upheld the preliminary injunction decision on using individual protection masks for children under 12 years of age. It concluded that it is forbidden to implement public health policies to fight the COVID-19 pandemic that are less restrictive than those adopted by the Union, as in the case at hand, which deals with the mandatory use of individual protection masks by children.
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Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Other notes
On "type of measure challenged": Decree No. 56503/222 of the Governor of the State of Rio Grande do Sul, whereby the obligation to wear face masks for children under 12 years of age was withdrawn.
On "type of procedure": "Ação Civil pública" is an action to declare liability for damage caused to the environment, consumers, property, and rights with value (Act. 7.347/1985) (Art. 13.105/2015 art. 300).
