Brazil, Supreme Court of Justice, 22 February 2022, Habeas Corpus. No 700487 - RS (2021/0331687-3)
Case overview
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Link to the full text of the decision
General Summary
The Court heard an appeal for reconsideration of a preventive habeas corpus, filed by a citizen against Decree 56120/2021 of the Governor of the State of Rio Grande do Sul, which provided for the need to present the document proving the vaccination against COVID-19 so that people could circulate and stay in public and private places. According to the Plaintiff, the measure brought restrictions to the freedom of movement of people and affected fundamental rights.
In the first instance, the appeal was denied, indicating that the judicial review of normative acts in the COVID-19 pandemic requires specific attention and actions. In the second instance, the reconsideration was denied, and it was reiterated, in addition to the lack of competence, that the decree subject to the process was following federal norms, despite not finding in habeas corpus the way for its judicial review.
Facts of the case
In the context of the COVID-19 pandemic, a citizen filed a preventive habeas corpus against Decree 56120/2021, issued by the Governor of the State of Rio Grande do Sul, which provided for the need to present a document proving vaccination against COVID-19 for people to circulate and stay in public and private places. According to the Plaintiff, the measure brought restrictions to the freedom of movement of people and affected fundamental rights.
The claim consisted of guaranteeing his right of movement and the right to remain in private and public places without being affected by the rule in question. In the first instance, the appeal was denied, indicating that the judicial review of normative acts in the COVID-19 pandemic requires specific attention. In addition, it emphasized that the decree issued follows federal regulations. The Plaintiff requested a reconsideration or further appeal.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
On the procedural considerations, the Court reiterated its precedent that filing a habeas corpus action for the judicial review of the rules to declare their unconstitutionality is improper (“Súmula” 266 STF). Additionally, it ruled that the Decree of the State of Rio Grande do Sul, contains the adoption of measures on the presentation of proof of vaccination, which, despite not being attached to the process, complies with the federal rules on the matter. The Court reiterated its precedents (696.608/SP; DJe 30/09/2021; HC 699.569/PE; DJe 13/10/2021; HC 698.965/SP).
Conclusions of the deciding body
First, the Court reiterated that the preventive habeas corpus is not the proper action for the judicial review of the validity of the decree issued by the Governor on the need to present the proof of vaccination against COVID-19 so that people can circulate and stay in public and private premises. Additionally, the decree had not been attached. The Court reiterated that the rule follows the federal regulation on adopting measures for COVID-19. The Court heard the request for reconsideration and determined no reasons to modify the appealed decision, denying the claim.
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 Constitution
- Freedom of movement of people, Art. 5 XV, Brazilian Federal Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Other notes
On "type of measure challenged": Local government measure (State of Rio Grande do Sul). Decree 56120/2021, of the Governor of the State of Rio Grande do Sul, provided the need to present the document proving vaccination against COVID-19 for people to circulate and stay in public and private places.
On "measures, actions, remedies claimed": Moreover, to guarantee the citizen's freedom of movement of people, and to be able to remain in public and private premises without being reached by the rule in question.
On "type of procedure": preventive habeas corpus (“habeas corpus preventivo”). This is used in cases where freedom has not yet been deprived but is under concrete and imminent threat. Preventive habeas corpus is also called "safe conduct" and prevents an illegal act (Art. 102, item II, line "a"; and 105, item II, lines "a" and "b", of the Federal Constitution of 1988; Art. 30 to 35, of Act 8.038/90).
