Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The Court of Justice of Santa Catarina annulled the first instance decision, which ordered the house arrest of a young man, 23 years old, who did not prove to be a carrier of severe diseases and did not belong to the COVID-19 high risk group. The first house arrest decision was based, among others, on the administrative recommendation of the National Council of Justice CNJ No. 62/2020. The Court found that the citizen did not meet the requirements to be the beneficiary of such a measure. The citizen was in prison for the crime of drug trafficking and theft.
Facts of the case
In the context of the pandemic, a citizen convicted of drug trafficking and theft requested the granting of house arrest in a semi-open regime because he had a job offer, two small children, and his wife was unemployed. He also argued the risk of being contaminated with COVID-19. The Judge of first instance, based on the administrative recommendation of the National Council of Justice CNJ No. 62/2020, granted the citizen's request for house arrest. After the decision, the State Public Ministry Office appealed, arguing that the citizen was not part of the COVID-19 high risk group and that the prison population was vaccinated. The Court heard the appeal.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court analyzed the appeal and verified that the citizen was not a carrier of severe diseases and did not belong to the COVID-19 high risk group, so he did not meet the procedural requirements for granting access to the criminal benefit of house arrest. The Court emphasized that, although the authorization for external work may be evaluated, it is essential to highlight that vaccination in the country and prisons has been advancing. With this progress, it is understood that it is time for the citizen to fulfill the sentence under imprisonment.
Conclusions of the deciding body
The Court decided the appeal, and it revoked the home detention granted by the court of first instance. It determined that the citizen should return to serve his sentence in a semi-open regime and that the Local Court should urgently evaluate the possibility of granting outside work, summoning the Defense to present documents if deemed necessary and hearing the Public Ministry Office beforehand.
Fundamental Right(s) involved
- Prisoners’ rights
- 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 of 1988
- Prisoners’ rights, Act no. 7.210 de 1984
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Balancing techniques and principles (proportionality, reasonableness, others)
The Court did not apply any general principle nor weighing technique.