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Brazil, Supreme Court of Justice, 22 February 2022, Habeas Corpus. No 700487 - RS (2021/0331687-3)

Case overview

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Country
Brazil
Case ID
Habeas Corpus. No 700487 - RS (2021/0331687-3)
Decision date
22 February 2022
Deciding body (English)
Supreme Court of Justice
Deciding body (Original)
Superior Tribunal de Justiça
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
Vaccination
Further areas addressed
Freedom of movement of people
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_PT available on www.conjur.com.br

Case analisys

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
Local government measure
Measures, actions, remedies claimed
To repeal Decree 56120/2021
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
Ordinary procedures
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.

Balancing Fundamental Rights and Fundamental Freedoms

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
Health v. freedom of movement of persons

Additional notes

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).

Author of the case note
William Ivan Gallo Aponte, Researcher, Externado University, Colombia; PUCPR, Brazil
Published by Laura Piva on 23 November 2022

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