Brazil, Federal Court of Accounts, 16 February 2022, Acórdão 335/2022 – Plenário, Processo No. 014.182/2021-7

Case overview

Country
Brazil
Case ID
Acórdão 335/2022 – Plenário, Processo No. 014.182/2021-7
Decision date
Deciding body (English)
Federal Court of Accounts
Deciding body (Original)
Tribunal de Contas da União
Type of body
Court
Type of Court (material scope)
Administrative Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Representation (“representação”)
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 pesquisa.apps.tcu.gov.br
General Summary

As part of a representation process, the Federal Court of Accounts analyzed the lack of guidelines and conditions for implementing quarantine measures, which are the responsibility of the Ministry of Health. The process identified that different subnational entities were using their criteria, as they deemed most appropriate and convenient, often generating insecurity in the population that ends up questioning the application and validity of the measure, impairing their adherence to the restrictions imposed and, consequently, compromising the effectiveness of its results. The Court recommended to the Ministry of Health to establish, in an internal rule, the objective criteria required in establishing the quarantine restriction of activities.

Facts of the case

In February 2020, through Decree 188, a public health emergency of national importance was declared due to COVID-19. From then on, Act 13979/2020 was drafted to provide measures to face the pandemic. Measures such as quarantines were listed in the Act. In addition, it was established that the application of a quarantine should observe the guidelines and conditions established in the National Contingency Plan by COVID-19. However, the technical unit verified that such technical criteria and guidelines were not established. Once this normative gap was verified, the technical unit proposed representation for the necessary action of the Court.

Type of measure challenged
Omission of the administrative health authorities.
Measures, actions, remedies claimed
Corrective action of the Court for the adequate treatment and provision of guidelines and criteria for COVID-19 pandemic's management.
Individual / collective enforcement
Action brought by a qualified entity in the interest of a specific group of claimants for the purpose of injunctive measures or other remedies, including the annulment of administrative decisions, for the protection of a more general collective interest.
Nature of the parties
  • Claimant(s)
    Public
  • Defendant(s)
    Public
Type of procedure
Special / extraordinary procedures
Reasoning of the deciding body

The Court analyzed the representation regarding the lack of guidelines and conditions to carry out the quarantine measure. In its role as coordinator of the measures to be executed during a Public Health Emergency of National Importance, Espin, the Ministry of Health is the agency in charge of fixing this.

The application of quarantine must observe the guidelines and conditions established in the National Contingency Plan for Human Infection by the new coronavirus. However, for the Court, this plan did not include the guidelines and conditions established for the adoption of quarantine.

The Court that evaluated the issue pointed out that the various subnational entities would be using their own criteria, as it seems more appropriate and convenient, often creating insecurity among the population, which ends up questioning the application and validity of the measure, undermining their adherence to the restrictions imposed and, consequently, compromising the effectiveness of its results.

Conclusions of the deciding body

The Court recommended that the Ministry of Health establish, in an internal norm, the objective criteria for the establishing of quarantine restrictions of activities.

Fundamental Right(s) involved
  • Freedom of movement of people, goods and capital
  • 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 Consitution
  • Freedom of movement, Art. 5 (15), Brazilian Federal Consitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
  • Health v. freedom of movement of persons
  • Health (public) v. access to health services
Other notes

On "deciding Court": The Federal Court of Accounts audits the accounts of administrators and other persons responsible for federal public funds. Also, it is an administrative and judicial authority, among others, that is provided for in art. 71 of the Brazilian Constitution of 1988.

On "instance" and "type of procedure": Representation (“representação”) is an instrument that triggers the Court's audit of illegalities in the management of federal public resources. Unlike denunciation, it is not stealthy. Only control organs and other political agents and members of the judiciary can present this representation.

On "outcome of the decision": the decision did not respond to any claim since it is a kind of automatic control by the Court of the administrative management. Nevertheless, its result was satisfactory.

On "type of measure challenged": Administrative health authorities did not contemplate criteria for the guidelines and requirements in applying restrictive measures to combat the COVID-19 pandemic, such as quarantines.

Author of the case note
William Ivan Gallo Aponte, Researcher, Externado University of Colombia; PUCPR, Brazil