The Federal Chamber of Mar del Plata rejected a precautionary measure granted by a judge of first instance against the “health pass” in the province of Buenos Aires and reprimanded the magistrate because he considered that “there is no case or cause” and “he made an obvious judicial error,” court sources reported Thursday.
The injunction had been granted by the Mar del Plata federal judge Alfredo Lopez from an amparo action filed by the citizen Luciana Acuna, who wanted her to be exempted from carrying and exhibiting the health pass established by the national and provincial authorities, interpreting that her constitutional rights were being violated.
Judge López estimated last December that the provision would “become inapplicable in fact” due to “the circumstance that the vaccination is not mandatory“, but the provincial State Prosecutor’s Office and the Ministry of Health appealed the resolution.
The Prosecutor’s Office said that the measures questioned “are reasonable given the prevailing epidemiological context” and stressed that “the public interest at stake must be taken into account”.
Meanwhile, Health pointed out that “there is no illegality or arbitrariness in the contested regulations” and that “we are facing an absence since the amparista does not identify specific situations in which the contested regulations generate damage to their rights, but rather limits itself to making a critical exposition in the abstract”, as well as “highlights the relevance of the public interest in the issue and the presumption of legitimacy of any action derived from the government bodies”.
The Public Prosecutor’s Office before the Chamber maintained that “the health pass is a minimum intervention tool that aims to protect public health in the exceptional framework generated by Covid-19 and taking into account that no right is absolute, not only the patient’s rights to dignified treatment, their privacy and their autonomy of will (…), but also the social and legal context that comes from the Covid-19 pandemic that is plaguing the world, and that necessarily requires taking of decisions within the framework of public health policies that each State implements”.
The resolution of chamberlains Alejandro Tazza and Eduardo Jiménez underlines that “the exercise of judicial control must take into account both perspectives, the individual and collective. Therefore, Although there are no doubts about the right of people regarding the disposition of their own body (…), it is also true that such rights must be interpreted and applied in accordance with the public interest involved”.
With respect to López, the chamberlains warned that “the acting Magistrate incurs again, by dispatching this amparo action, in an evident judicial error, thus generating a resolution contrary to the law, from the commission of a serious mistake on the facts aired in the case, and the application of the law.
“As the representatives of the Public Prosecutor’s Office have warned in both instances, they should not have enabled this judicial instance, because there was no ‘case’ or ’cause’ here,” they asserted.
“The Argentine federal system does not foresee the direct questioning, by a citizen, of the constitutionality of a norm ‘in the abstract’. And precisely the presentation of the amparista can be described -without a doubt- as ‘generic’, since it does not accredited the need to carry out some activity for which the sanitary pass is required,” they added.
They clarified that “neither is it foreseen that the attacked regulations impose the amparist to be vaccinated against her will (which she can decide according to her free will, in accordance with the right to autonomy of will enshrined in Law 26,529), nor did it indicate the same that he has been forced to do so in the future”.
Consequently, the judges ordered “the rejection in limine (without treatment) of the amparo action, thereby revoking the authorization of the instance ordered by the A Quo, and consequently nullifying the precautionary measure issued” in the first instance.