Uruguay, Contentius Administrative Judge of Montevideo, 7 July 2022, No. 41/2022
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
A lawyer sued the Presidency of the Republic of Uruguay on behalf of himself and the interests of minors, considering that the vaccination plan for children was risky because, although it was voluntary, their parents did not have enough information to determine whether they wanted their kids to be vaccinated or not.
The Claimant requested the suspension of the vaccination plan for children under 13 years of age until the contracts for acquiring vaccines were published, particularly the components of the vaccines. This was to protect the interests of minors, regarding their right to health and information.
The Court concluded that the vaccination campaign against COVID-19 was unconstitutional for violating the people's right to information and health. Therefore, it ordered the suspension of the vaccination plan for children under 13 years of age until the contracts for acquiring vaccines were published, particularly the components of the vaccines.
Facts of the case
A lawyer sued the Presidency of the Republic of Uruguay on behalf of himself and the interests of minors, arguing that the vaccination plan for children was risky because, although it was voluntary, their parents did not have enough information to determine whether they wanted their kids to be vaccinated or not.
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
First, the Court indicated that the Claimant was legally allowed to file the amparo action since it was the right of minors and their guardians to access information related to their right to health. In addition, Uruguayan law empowered any person to file an appeal for the protection of a minor.
Furthermore, the Judge pointed out that the amparo action had not expired because vaccination as a health operation was renewed with each new inoculation. He indicated that this action was residual but that it was clear that the government had systematically denied access to this information, which was why the amparo action was admissible.
After that, the Court pointed out that the right to information was universal and, in this case, referred both to the details of the contracts for the purchase of the vaccines and the content of the vaccines. It also noted that the right to health included the right to medical information.
The Court said that the medical lex artis implied compliance with the duties of clinical information and documentation to respect the autonomy of the patient's will. Thus, information and consent are intimately related rights because free consent can be given only by having adequate information. \
The Court indicated that in the vaccination process, it was essential to inform the components of the inoculation and its risks in addition to the benefits. The Court said that this did not occur in the vaccination of minors in the country and that the publication and diffusion of that information could not be considered complied with by its mere publication in the mass media of the country, because that was generic information and consent implies a personal, direct, and concrete dialogue between the medical personnel and the patient.
In addition, the Court pointed out that people should be informed about the provisional scientific nature of the vaccine and the implications of the emergency authorization given by the government.
The Court indicated that it was not understood why information related to vaccine components was not excluded from the confidentiality clause in the contracts. It added that such agreements violated constitutional provisions.
Additionally, the Court indicated that the vaccination program was also unconstitutional for violating the right to health and the right to information, privileging private pharmaceutical companies.
Conclusions of the deciding body
The Court concluded that the vaccination campaign against COVID-19 was unconstitutional for violating the people's right to information and health. Therefore, it ordered the suspension of the vaccination plan for children under 13 years of age until the contracts for acquiring vaccines were published, particularly the components of the vaccines.
Fundamental Right(s) involved
- Freedom of information
- 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. 44, Uruguayan Constitution
- Right to information, Art. 13.1, American Convention on Human Rights
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Regarding the principle of separation of powers, the Court indicated that this decision could not be considered a violation or undue judicial interference in health policies.
Judicial dialogue
The judgment mentioned international jurisprudence as follows:
- It indicated that Argentine case law has established, in terms applicable to the case, that free access to complete information is part of the right to health (Supreme Court of Justice of the Nation, Secretariat of Jurisprudence, 2020 Edition; case no. 340:1111).
- It pointed out that the Inter-American Court of Human Rights has established something similar to a rule of admissibility of limitations to the right to information based on three requirements:
i) that the law, in stricto sensu, limiting this right establishes that the restriction is based on reasons of general interest;
ii) that it must respond to an objective permitted by the American Convention; and
iii) that they are necessary for a democratic society (Case Claude Reyes et al. v. Chile; IACHR, no 12.108, Series C no 151, nos 89 to 97). - Regarding the experimental nature of the vaccine, the Court indicated that Chilean justice has stated, in terms applicable to this case, that " The coercive action of the State can be justified when the refusal of medical treatment of a minor meets the following characteristics: that it is a positively curable disease or condition or has a high statistical percentage of probability of cure; and that it is a medical action which practice does not involve a physical or psychological deterioration of the patient that affects his dignity as a person or his quality of life..." (cf. Court of Appeals. Valdivia, Chile, Sentencia of 14.V.2009, RDF 2010-II-226).
- It quoted a Spanish decision where it was said that the effects of COVID-19 have been mitigated from the first moments of the pandemic to the present, that it is also unknown whether this has occurred due to mass vaccination, and that it would be necessary to inquire about the risk that the minor has of contracting COVID-19 as well as the consequences that this may entail (cf. Court of First Instance No. 4 of Torrent (Valencia), Auto 158/2022 of 30 Mar. 2022, Proc. 77/2022).
