Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Further areas addressed
Outcome of the decision
Mr. MS was criminally convicted for the offense of "endangering public health by infringement of health or hygiene rules duly published by the authority in times of disaster, epidemic or contagion" (Article 318 of the Criminal Code) because the police authorities found him circulating in the streets during a curfew.
The claimant requested that the conviction be annulled and that he be acquitted because he considered his conduct not to have factually endangered public health.
The Court concluded that the mere violation of pandemic movement restrictions did not constitute an offense unless it was conduct capable of endangering public health. Therefore, the Court acquitted the claimant.
Facts of the case
Mr. MS was criminally convicted of the crime of "endangering public health by infringing health or hygiene rules duly published by the authorities in times of catastrophe, epidemic or contagion" because the police authorities found him in the car park of a supermarket (during a riot that was taking place near that establishment) when a curfew was in force, without his safe conduct or permission to move around.
The claimant's defense filed an appeal for annulment against this decision. He claimed that MS's conduct was neither typical nor unlawful. He also pointed out that no legal right had been harmed because the offense was not a simple infringement of health rules, but that an additional element must have been present to generate a proximate danger, which would have occurred if Mr. MS had proven to have COVID at the time of the arrest.
In addition, the defense indicated that some people considered public health to be a collective or supra-individual legal interest and that this offense referred to an abstract danger. In this regard, the defense pointed out that for MS's conduct to be dangerous (in concrete or in the abstract), it would have to be capable of injuring a protected legal interest, i.e., the life and health of other persons, which did not occur in this case.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Conclusions of the deciding body
The Court concluded that the mere violation of pandemic-issued movement restrictions did not constitute an offense unless they were capable of endangering public health.
Reasoning of the deciding body
First, the Court indicated that the law providing the mentioned offense requires that public health be endangered and punishes the conduct that generates a risk to that legal asset. It therefore does not punish a simple infringement of health rules on the assumption that this would endanger public health (as would be the case with an offense of abstract danger).
On the other hand, the Court stated that this offense was in a category of hypothetical or abstract concrete danger, which does not require the conduct being prosecuted to generate a specific risk to the legal good. However, it does require that it is suitable for generating it. In this sense, the mere infringement of health regulations did not constitute such an offense.
The Court considered that the proven facts did not demonstrate that there was a danger (neither concrete nor hypothetical) to public health and that the mere infringement of the administrative regulations on the restriction of movement did not represent an actual or hypothetical danger to it, even in times of a pandemic, as the claimant was not in an agglomeration of people (which could possibly have generated a risk).
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 freedom, Art. 19.7, Constitution of Chile
- Right to health, Art. 19.9, Constitution of Chile
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
In examining whether the claimant's conduct constituted a crime, the Court implicitly applied the principle of the rule of law to determine whether it was an act prescribed by law.