An applicant accused of the crimes of murder and attempted murder filed an habeas corpus action, seeking to obtain the annulment of the arrest decree due to excessive delay in the formation of guilt, inadequate grounds for prison sentence and illegitimate application of imprisonment instead of the alternative measure of house arrest.

In particular, the claimant highlighted the existence of favorable subjective conditions to revoke his preventive detention in favor of the application of alternative precautionary measures on the grounds that he is the father of a child under 12 years old and responsible for his sustenance, and alleging that, having tested positive to COVID-19, his maintenance in prison constitutes a risk to his health as well as to that of other inmates.

By decision no. 0634549-76.2022.8.06.0000 of 5 October 2022, the Tribunal of Fortaleza dismissed the claim. In particular, with regard to the alleged risk of spread and contamination of COVID-19, the judge first recalled that, while the National Council of Justice recommendation no. 62/2020 required authorities to grant alternative measures to prison in case of COVID contagion, such as house arrest, this recommendation could not be applied anymore as it had lost effects since it was supposed to apply until 31 December 2021. The Tribunal also noted that the current pandemic situation is radically different from, and less severe than, the COVID outbreak that justified the adoption of such measures. Currently, alternative measures to imprisonment, such as house arrest, should be grounded on the existence of specific conditions, including: (i) the inmate being a fragile and vulnerable individual due to particular diseases; (ii) the impossibility of receiving adequate health treatment in prison; and (iii) the existence of a real major risk of the prison compared to the risk in society. In this regard, the judge recalled that, in the State of Ceará, COVID has been handled quite well and that the vaccination plan is at an advanced implementation stage, including with regard to the prison population, and the local government has been gradually slowing down social isolation measures.

Since the claimant does not fall within any of the exemptions currently provided for by the law, the Tribunal has dismissed the action.