In this constitutional action of habeas corpus, the applicant sought his release alleging inadequate reasoning of the arrest decree. In addition, he highlighted the existence of favorable subjective conditions, sufficient to revoke his preventive detention.
The applicant asked for the application of various precautionary measures, in addition to stating that he was the father of a child under 12 years old and responsible for his sustenance. Finally, he alleged that, being positive for COVID-19, staying in prison was a risk to his health.
About the alleged risk of spread / contamination by COVID-19, the judge stated that the National Council of Justice Recommendation No. 62/2020 suggested granting alternative measures such as house arrest or revoking preventive prisons. But that act remained applicable only until 31 December 2021, so that it is no longer in force. Furthermore, according to the judge, the current pandemic situation is completely different from the one that gave rise to the creation of the Recommendation. In the current situation, precautionary measures or the imposition of house arrest require proof of certain requirements, such as: (i) Unequivocal belonging to a vulnerable or risk group for COVID; (ii) Impossibility of receiving the treatment in prison; and (iii) Real major risk of the prison compared to the risk in society.
On 5 October 2022, the judge held that the State of Ceará was at an advanced stage in the vaccination plan, including in the prison population, having already made the fourth dose of the immunizer available to certain risk groups. In addition, given the weakening of the health crisis, the State Government has been gradually slowing down social isolation measures, even with the release of masks in closed places.
Having established these premises, the judge did not find sufficient evidence to grant the order, since vaccination was at an advanced stage and the patient did not belong to any risk group.
Reference: Brazil, Monocratic Decision of Court of Justice of the State of Ceará, 2nd Criminal Chamber, Criminal Habeas corpus 0634779-21.2022.8.06.0000.