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Brazil, Court of Justice of the State of Santa Catarina, 5 April 2022, No. ‎5003891-48.2021.8.24.0006/SC‎

Case overview

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Country
Brazil
Case ID
No. ‎5003891-48.2021.8.24.0006/SC‎
Decision date
5 April 2022
Deciding body (English)
Court of Justice of the State of Santa Catarina
Deciding body (Original)
Tribunal de Justiça do Estado de Santa Catarina
Type of body
Court
Type of Court (material scope)
Criminal Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Appellate on fact and law
Area
Health law, detention and prison law
Outcome of the decision
Claim inadmissible or rejected

Case analisys

General Summary

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
Administrative recommendation of the National Council of Justice CNJ ‎No. 62/2020
Measures, actions, remedies claimed
To reverse the decision of the court of first instance and grant home ‎detention following the Administrative recommendation of the National ‎Council of Justice CNJ No. 62/2020
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
Urgency
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.‎

Balancing Fundamental Rights and Fundamental Freedoms

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
Health v. freedom of movement of persons
Balancing techniques and principles (proportionality, reasonableness, others)

The Court did not apply any general principle nor weighing technique. ‎

Author of the case note
William Ivan Gallo Aponte, Researcher, Externado University of Colombia; PUCPR, Brazil
Case identified by
William Ivan Gallo Aponte
Published by Chiara Naddeo on 1 November 2022

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  • Brazil, Court of Justice of Santa Catarina, 12 April 2022, No. 5049107-50.2021.8.24.0000/SC
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    Fundamentals rights involved: Freedom to conduct a business; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • Brazil, Regional Uniformization Court of the Federal Special Courts of the 4th Region, 6 October 2021, No. 5053868-04.2020.4.04.7000
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  • Brazil, Court of Justice of Rio Grande do Sul, 6 March 2022, Agravo de Instrumento No. 5028620-06.2022.8.21.0001
    Area: Use of protection devices
    Fundamentals rights involved: Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • Brazil, 2nd Public Treasury Court of Florianopolis, 17 March 2022, Mandado de Segurança No. 5025189-11.2022.8.24.0023/SC
    Area: Healthcare management (Covid related, excluding vaccination)
    Fundamentals rights involved: Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim upheld
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    Area: Vaccination
    Fundamentals rights involved: Right to education; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • Brazil, Supreme Court of Justice, 15 March 2022, Recurso em Mandado de Segurança No. 67.443
    Area: Tax Law
    Fundamentals rights involved: Freedom to conduct a business; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
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