The exercise of the right to criminal infringement

the constitutional right to come and go in times of pandemics versus the violation of preventive health measure

Abstract

The new Coronavirus pandemic required a series of sanitary measures from the Government to contain the advances of the virus and its consequences. In short, the main objective of these measures was to ensure the right to health and, above all, the right to life. However, the same measures that try to guarantee life, imposed a series of limitations on the citizens' right to come and go, especially from the distance and even social isolation, in addition to the restriction or complete closing of commercial establishments and the prohibition of access to public places. In this atypical situation, although supported by the Federal Constitution of 1988, in its Article 5, XV, the right to come and go was transformed into an infraction, since the Penal Code, in its Article 268, typifies the so-called infraction of sanitary measure preventive. Thus, based on bibliographic references and documentary research, we aim to analyze the apparent conflict of norms, which confronts the right to health and life on the one hand and the right to freedom of movement on the other. To this end, in addition to the legislation and concepts of Brazilian constitutional scholars, we sought to analyze the recommendations and specific legal provisions issued by the World Health Organization (WHO) and the federal, state and municipal governments. For the present analysis, three Decrees of the Municipality of Concordia and one Decree of the Government of the State of Santa Catarina were selected, on which we will take a closer look in order to answer whether the right to come and go is, in fact, an absolute right and unrestricted to Brazilian citizens.