“Truth and justice”, demanded the anti-covid-19 vaccine protesters at the door of the Palace of Courts. In various posters they demanded to know “the true components of the vaccine” and the contracts that the State had made with Pfizer. Above all , the claim was that someone take action on the matter, and in the substitute judge Alejandro Recarey they found the support and backing they had been looking for a long time.
The action of the Justice in this case, which led to the suspension of vaccination in children until the contract with the pharmaceutical companies is disclosed – or rather until the Court of Appeals annuls the ruling – opened the flank for discussion . Both from the Executive Power and experts in procedural law pointed out inconsistencies in the petition of the lawyer Maximiliano Dentone and the arguments of the judge.
But above all, he put under the microscope the use of the appeal as a tool to twist a policy and not to amend a particular affectation, alluding –as the lawyer and the judge did– to “diffuse interests”.
Different specialists consulted by The Observer They emphasized that the remedy of amparo against the State must be used whenever a person – as the law says – is “injured, restricted, altered or threatened, with manifest illegitimacy, any of their expressly or implicitly recognized rights and freedoms. by the Constitution”.
The most common cases of amparo appeals are due to the fact that the Ministry of Public Health or the National Resources Fund refuse to finance high-cost medicines and whoever files the appeal considers that if the Justice does not order otherwise within a short period of time, That will cause irreparable damage to your life.
But at the same time there is the possibility of appealing to what is called “diffuse interest” and assuming the representativeness of a collective right affected by a norm.
In the case of vaccination of minors, according to the Presidency, attorney Dentone does not have the legitimacy to present it because he has no direct interest in the case and claims to be the representative of all minors in Uruguay.
However, Judge Recarey in his ruling argues that Dentone does have legitimacy since -as the professor and minister of the court of appeals Eduardo Cavalli explains- in the amparos regarding children and adolescents “it will suffice that the interested party, be it an individual or an institution public or private, manifest an interest in the protection of the rights of one or more children or adolescents, sufficing for its recognition that it is not contrary to the law or the Constitution.
Is there one that is right?
Legitimacy as an actor
The law that regulates amparo processes does not provide for the figure of diffuse interest, but is legislated in article 42 of the General Code of Process (CGP). “In the case of issues related to the defense of the environment, cultural or historical values and, in general, that belong to an undetermined group of people, the Public Ministry, any interested party and the institutions or associations of social interest that, according to the law or in the judgment of the court, guarantee an adequate defense of the committed interest”, the article maintains. The Children’s Code extends this power to cases in which the rights of minors are at stake.
The proceduralists Ignacio Soba and Santiago Pereira Campos agreed, in dialogue with El Observador, that there have been few cases in Uruguayan jurisprudence in which diffuse interest was invoked, as in this case it was done referring to minors.
In fact, Soba recalled that the academy has demanded that there be a special regulation of litigation related to collective rights. “For example, to study the issue of legitimacy, of representativeness, in greater detail. If you do not want to be represented by that person who assumes that representation, how do you express your disagreement? That is not regulated, ”explained the lawyer. Does that mean that a judge can take an amparo appeal and, for example, suspend abortions on the grounds of diffuse interest?
For the judges, ultimately, it ends in a problem of interpretation regarding the scope of “diffuse interest.” Some have a more restrictive judgment and another more lax. “There is a void because there is no provision for regulation of collective processes in our country beyond two articles of the General Code of Process and a couple of other things scattered around. There is no clear and complete regulation of the problems that collective processes can give rise to, which is a claim from the academic world for a long time,” explained Soba.
The “strongest” argument of the Recarey sentence
Pereira Campos valued that the “strongest” argument of the Recarey sentence is that all people must be informed of the details of what the vaccine contains. Although the ministry says that it is never done with that level of detail with any vaccine, the judge refutes that in this case, more than ever, it should be done since it is an “experimental” vaccine. “The judge builds an argument in that sense. That is questionable, because the judge cannot bring new arguments that the parties did not make,” said Pereira Campos.
Two sentences contrary to the position of Recarey
In 2010, the Justice and Law Foundation filed an amparo appeal against the Ministry of the Interior for situations of repeated and constant mistreatment in the Canelones prison.
The court denied that the foundation could claim to represent the prisoners and therefore would not fall under article 42 of the CGP that regulates diffuse interests. For this, the expert Enrique Véscovi was quoted, who in his book “Annotated CGP”, states that diffuse interests can be applied when there is an “indeterminate group of people united by contingent factual elements” and that there must be a “legal link” among them.
For this reason, Justice understood that they had no legitimacy. “The defendant, invoking the character of a civil association that among other objectives has that of ‘promoting respect for human rights and denouncing violations,’ does not have a direct personal and legitimate interest, much less a subjective right that enables it to claim in the terms initiated in the lawsuit, given the very special regulation of legitimation” established in the law that regulates the amparo. In addition, the court highlighted that even if they had considered it “the power to control and admit it is left to the jurisdictional body, when the institution or association ‘guarantees an adequate defense of the committed interest'”.
Another case included a discussion of legitimacy regarding a third party abortion. In 2017, a man filed an appeal for protection in Mercedes because his ex-partner wanted to abort the pregnancy. The Justice affirmed that he had legitimacy to present the appeal in the first instance and agreed with him. The woman appealed, but before the appeals court ruled she had a miscarriage. Even so, one of the ministers, María del Carmen Díaz Sierra, understood that she had to rule on the merits of the matter and considered that the first instance ruling was erroneous. As a basis, she argued that for the Inter-American Court of Human Rights, the opinion of the eventual father was not sufficient reason to detain a woman who wanted to voluntarily interrupt her pregnancy.
“This has the consequence that he did not even have active legitimacy for this action,” he assessed.
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