Colombia, Constitutional Court, 26 September 2022, T-337/2022
Case overview
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Deciding body (Original)
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Type of Court (territorial scope)
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Link to the full text of the decision
General Summary
Three plaintiffs each filed a protective action (tutela) against a public center for disabled people and the National Commission for Public Officials alleging a violation to their fundamental rights, specifically their human dignity, personal freedom, freedom of conscience and the principle of non-discrimination. In the first case, the plaintiff alleged that the rehabilitation center had denied her entrance and the right to visit her uncle (a disabled person), citing their lack of vaccination. In the other two cases, the plaintiffs were participating in a call for a public position but were denied entrance to the building where the selection process was being held, as they were not vaccinated. The Court found that the fundamental rights of the plaintiffs were violated, as requiring the exhibition of a vaccination card to access certain public services and buildings was discriminatory and disproportionate. According to the Court, this measure was not the only effective alternative for facing the public health issue that the Covid-19 pandemic posed. Hence, public authorities had the duty to create less burdensome measures in order not to violate the fundamental rights or the principle of equal treatment.
Facts of the case
Since May 16, 2021, one of the plaintiffs had been denied entry to a rehabilitation center for disabled people to visit her uncle, due to her unvaccinated status. On December 19, 2021, the other two plaintiffs were denied entrance to a public building that was hosting a selection process for public officials due to their unvaccinated status. The plaintiffs each filed a protective action (tutela) against public authorities alleging a violation to their fundamental rights, specifically their human dignity, personal freedom, freedom of conscience, right to privacy, and the principle of non-discrimination. The Court granted the protection, finding that the measure was disproportionate and discriminatory. Hence, it ordered public authorities to cease the violation (although the violation had already ceased in the case of some of the plaintiffs after time had passed).
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court reasoned that requiring the exhibition of a vaccination card to access certain public services and buildings was discriminatory and disproportionate. According to the Court, this measure was not the only effective alternative for facing the public health issue that the Covid-19 pandemic posed. Hence, public authorities had the duty to create less burdensome measures in order not to violate fundamental rights or the principle of equal treatment. Furthermore, according to the Court, in the case of the two plaintiffs denied entrance to the public building for the selection process, the plaintiffs were arbitrarily treated unequally to other applicants that were vaccinated. According to the court, their vaccination status was not relevant to their suitability for the public position.
Conclusions of the deciding body
The Court concluded that public authorities had violated the fundamental rights to the plaintiffs by requiring a vaccination card to access public services and buildings.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Human dignity, Art. 1, Colombian Constitution
- Equal treatment, Art. 13, Colombian Constitution
- Personal freedom, Art. 16, Colombian Constitution
- Freedom of conscience, Art. 18, Colombian Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to privacy (private and family life)
- Health (public) v. access to health services
General principle applied
- Equality
- Proportionality
Balancing techniques and principles (proportionality, reasonableness, others)
Proportionality: The Court analyzed whether the vaccination card requirement was a proportional measure for facing the public health issue of the Covid-19 pandemic. Hence, the Court examined whether it was an adequate measure for containing the spread of the virus (it found that it was). Likewise, the Court analyzed whether it was a necessary measure (the only alternative and the less burdensome on fundamental rights). Pursuant to the Court’s reasoning, the measure was not necessary as there were less burdensome alternative measures that authorities could take before restricting access to public services.
Equality: Specifically for two plaintiffs, the Court found that authorities had violated the principle of equal treatment. According to the Court, denying entrance to the building where the selection process for a public position was being held was discriminatory and arbitrary against unvaccinated people.
Other notes
On the type of procedure: Special procedures (protective action – tutela, art. 86 of the Colombian Constitution).
