1.  The constitutional framework of the Republic of Argentina is provided by the Argentine Constitution. The federal jurisdiction, as well as the 23 provinces and the Autonomous City of Buenos Aires, are organized as representative democracies. According to the Constitution, Argentina ‘adopts the federal republican representative form of government’.¹ The President, directly elected every four years, ‘is the supreme head of the Nation, head of the government and he is politically responsible for the general administration of the country’.² The National Congress comprises two chambers—the Chamber of Deputies and the Senate—that are in charge of the legislative process.³ The Federal Constitution stipulates that provinces are to enact their own constitutions under the republican, representative system.⁴ Therefore, the provinces and the City of Buenos Aires are governed by a head of the executive—governors and chief of government—and legislatures, consisting of one or two chambers. The Constitution also foresees a third level of government: municipalities, whose autonomy and role ‘in the institutional, political, administrative, economic, and financial structure’ is to be determined in the provincial constitutions—having to follow, as well, the republican, representative system.⁵

2.  The federal legal system in Argentina comprises the National Constitution, a series of international treaties (some of which have constitutional hierarchy), the laws passed by Congress,⁶ and decrees issued by the executive branch. The same types of legislation also exist at the local level. Regardless, the enforcement of federal legislation takes precedence over local legislation.⁷ Moreover, legislation at every level is subject to a diffuse system of judicial review.

3.  The right to health has been recognized in the Argentine Constitution through the inclusion of a series of international human rights treaties and instruments in the last constitutional reform of 1994.⁸ Thanks to this inclusion, 14 treaties and instruments (including the International Covenant on Economic, Cultural and Social Rights (ICECSR)) have gained constitutional hierarchy. Particularly, the ICESCR provides for the recognition of the right of everyone to the highest attainable standard of physical and mental health.⁹

4.  The Constitution also foresees ‘a system of personal liberties whose centre is article 19’.¹⁰ This article establishes that ‘[t]he private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of magistrates’. Thus, as explained by the Supreme Court, the Constitution delineates ‘a sphere in which the State cannot intervene’,¹¹ barring governmental entities from criminalizing or prohibiting conducts that do not affect third parties. This does not mean that the State, faced with a health crisis, could not adopt measures that could temporarily restrict and affect individual freedoms. Nonetheless, for these restrictions to be constitutionally valid, the State has the burden of proving that the absence of any restrictive measure might generate a danger to the health and life of third parties.¹² Moreover, the Constitution demands that this damage should reach the threshold of ‘substantive harm’.¹³ This constitutional framework requires the Government to publicly present all available evidence that justifies any proposed restriction, and for the courts to control the legality and proportionality of any measure adopted.

5.  The distribution of competences between the Nation and the provinces is set forth throughout the constitutional framework. It is a delimitation, which, in the terms of the Supreme Court, would be rigid in that ‘the powers not delegated or reserved by the provinces cannot be transferred to the national government, except by their will, expressed in a general constituent congress’.¹⁴ However, the constitutional practice has evidenced a fluctuating delimitation of competences, mainly due to the increase of the federal government's power quotas over the provinces.

6.  As interpreted by the Supreme Court, the distribution made by the Constitution gave rise to four categories of powers: (1) powers expressly ceded to the national government,¹⁵ among which are those implicitly delegated, that is, those ‘whose exercise by the provincial powers would hinder or render ineffective the exercise of those corresponding to the national powers’;¹⁶ (2) concurrent powers, which are exercisable both by the Nation and by the provinces,¹⁷ although in case of conflict they will be assumed by the Nation provided that ‘there is an effective and insoluble contradiction between the exercise of national and local authority, or between the latter and the purposes required by the Federal Constitution’, and ‘the presence of a real purpose of general welfare in the performance of the national authority’;¹⁸ (3) powers expressly retained by the provinces,¹⁹ and those implicitly retained;²⁰ and, finally, (4) powers expressly prohibited to the federal government,²¹ and to the local governments.²²

7.  According to the Constitution, the Executive is authorized to issue three types of decrees. First, regulatory decrees (decretos reglamentarios) are issued by the Executive with the purpose of enacting laws sanctioned by Congress. Their scope is specific and peripherical, the Constitution states that they entail the acts ‘necessary for the execution of the laws of the nation’.²³ Second, delegated decrees (decretos delegados) comprehend acts of general legislation issued by the Executive with previous authorization from Congress. This delegated authority entails a circumstantial and exceptional alteration on the division of powers, hence its scope is delimited for ‘determined administrative matters or public emergency for a specific period of time and on the basis established by Congress in its delegation’.²⁴ Following the principle against the use of legislative power by the Executive, the Supreme Court has stated that these acts are subject to a stricter standard of judicial review than regulatory decrees.²⁵ Finally, ‘decrees of necessity and urgency’ (decretos de necesidad y urgencia) (DNUs) are those general acts of legislation issued by the Executive without previous delegated authority from Congress. The obvious concentration of power implicit in this type of decree has led to their absolute prohibition in the Constitution with the exception of the existence of ‘circumstances that would make it impossible to follow the normal legislative procedure’. DNUs cannot regulate criminal, tax, or electoral matters and are not allowed to alter the political parties’ regime. With respect to formal requirements, urgency decrees must be approved by a general Cabinet agreement with the endorsement of the Chief of the Cabinet.²⁶ Both delegated and urgency decrees are subject to ex post facto political control from Congress by legal and constitutional mandate. The Bicameral Commission of Congress has been established for that purpose. Notwithstanding this form of political control, they can also be subject to judicial review.

8.  The Covid-19 crisis neither brought up any legal changes to the structure of the federal or local governments nor implied new divisions of competencies between jurisdictions. Nonetheless, the federal government, through the use of executive powers, implemented a series of regulations that significantly affected every single jurisdiction in the country. Probably the most relevant of these measures was the President’s early decision to establish a mandatory stay-at-home order for everyone in the country. This decision was adopted on 19 March 2020, through DNU 297/2020.²⁷ Together with this crucial measure, many other relevant decisions were adopted—most of them, again, through emergency decrees, as a state of emergency was not formally declared which we shall examine below. This use of presidential powers gave rise to a series of legal and constitutional questions, concerning both the process and substance of those decisions.

9.  In order to show the considerable distinctions in regulation and implementation that have arisen between the different jurisdictions throughout the pandemic, this report focusses on the City of Buenos Aires and the province of Formosa. These two jurisdictions occupy two ends of the spectrum regarding the response to Covid-19 in Argentina. The former is the most densely populated city in the country governed by a centre-right coalition, the latter a large territorial province with a conservative populist government. Legally, however, they are both structured through a constitution which responds to similar principles and ideals as the national Constitution.²⁸

10.  According to Article 14 of the Argentine Constitution and international human rights treaties with constitutional hierarchy, only Congress can suspend rights, and it can only do so in specific scenarios of emergency.

11.  The mechanism that allows for such suspension in the Constitution is the ‘state of siege’ (estado de sitio). Under Article 75(29) of the Constitution, Congress can declare a state of siege in the case of internal disorder or foreign attack that ‘puts in danger the exercise of the Constitution and the authorities created by it’. Equally, it is entitled to approve or suspend the ‘state of siege’ declared by the Executive whilst Congress is in recess. Article 99(16) of the Constitution establishes that the Executive has the power to declare the ‘state of siege’, only in the case of exterior attack, for a ‘limited time and in agreement with the Senate’.

12.  When dealing with the Covid-19 pandemic, the President explicitly decided to avoid declaring a ‘state of siege’ because of the trauma persisting in the population due to the most recent resort to such a mechanism in December 2001.²⁹ That declaration by President De la Rúa precipitated the most dramatic recent political crisis in the country, including a long period of instability and police repression.

13.  Instead, the President resorted to procedures not specifically regulated in the Constitution or elsewhere, such as the ‘state of emergency’ (estado de emergencia). The Decree used the World Health Organization declaration of 11 March 2020 and the need to take ‘timely and transparent measures based on consensus and scientific evidence, alongside other measures adopted for the mitigation of the pandemic’ as its foundation for the creation of this new legal mechanism.³⁰ Nonetheless, the use of emergency powers has arguably exceeded what is constitutionally permissible, establishing de facto something akin to what the Constitution terms a ‘state of siege’. This seeming ‘state of siege’ can be recognised by: (i) the concentration of powers in the hands of the Executive; (ii) the severe limitation of fundamental constitutional rights; and (iii) the militarization of the public space—for some time, the main streets and avenues showed a remarkable presence of the coercive forces of the state, and a moderate, although growing circulation of the civilian population.³¹ Furthermore, in Article 99(3) the Constitution determines that the President’s emergency powers do not allow him to intervene in areas related to criminal law, which the Executive has done indirectly, eg ordering the detention of vehicle drivers for violation of quarantine.³²

14.  States of emergency are also regulated in Argentina under a series of international human rights treaties with constitutional hierarchy, which establish specific procedures for the suspension of fundamental rights. These limitations to restriction and derogation of rights stipulated by treaties—such as the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the ICESCR—also narrow the powers of the authorities to restrict fundamental rights.³³ These treaties reinforce other stipulations of the Argentine Constitution in determining that Congress is in charge of the establishment of Covid-19 measures that hinder constitutional rights, and that those restrictions must respect the principles of necessity and proportionality.³⁴ Furthermore, international treaties stipulate that States must notify derogations of rights to the relevant international authorities, ie the United Nations (UN) Secretary General and the Organization of American States (OAS) Secretary General.³⁵ As regards the measures taken in light of Covid-19 pandemic, Argentina notified the suspension of rights both to the UN and regional OAS authorities. In both cases, the government did not specify which rights had been suspended or for how long: one note only described, in broad terms, the measures taken, while the other simply attached a copy of the relevant DNUs.³⁶

15.  Although empowered to implement measures and regulate rights pursuant to their own constitutions, local jurisdictions cannot declare a ‘state of siege’, which is an exclusive competence of the federal government. Nevertheless, through regulatory powers, local authorities also implemented vast protocols to control a wide range of activities within their territory. For instance, both the City of Buenos Aires and the province of Formosa implemented mandatory quarantine periods of isolation for people entering their territories, close contacts of Covid-19 cases, and Covid-19 patients (see details in Part IV below).

16.  There was no new general statute law introduced to respond to Covid-19 in particular. On 23 December 2019, briefly after the election of Alberto Fernández as President, and months before the pandemic reached the country, Congress passed an overarching statute (Law 27,541) declaring a ‘public emergency’ (emergencia pública) on matters related to the economy, finances, taxes, the administration, the pension system, tariffs, energy, health and ‘social affairs’.³⁷ The law delegated to the national Executive a set of powers originally held by Congress. This was done citing Article 76 of the Constitution, which establishes that such delegation is impermissible except on ‘issues concerning administration and public emergency, with a specified term for their exercise and according to the delegating conditions established by Congress’.

17.  In relation to sanitary matters, Law 27,541 of 23 December 2019 conferred the following powers: ‘[t]o procure the supply of essential drugs for outpatient treatment to patients in conditions of high social vulnerability, access to essential drugs and supplies for the prevention and treatment of infectious and chronic non-communicable diseases; to attend to the effective compliance with Law 27,491 on the control of diseases preventable by vaccination and to assure access to essential medical benefits to the beneficiaries of the National Institute of Social Services for Retirees and Pensioners and the National Health Insurance System’.³⁸

18.  On 12 March 2020, nine days after the first confirmed case of Covid-19 in the country, President Fernández issued a DNU ‘expanding’ the ‘sanitary emergency’ declared under Law 27,541.³⁹ Given the spread of Covid-19, the decree argued, it was ‘necessary to adopt new opportune, transparent, consensual measures, based on scientific evidence, in addition to those already adopted since the beginning of this epidemiological situation, in order to mitigate its spread and its health impact’.⁴⁰ The decree then vested in the Ministry of Health a broad range of responsibilities and established the first measures of quarantine and isolation for people who may have been in contact with the disease.

19.  Argentina’s reaction to the Covid-19 pandemic was overwhelmingly governed by Executive rule-making: for almost eight months, walking in the street without specific purpose was punishable with jail sentences in certain parts of the country, according to governmental orders (see Part IV.A.1–2 below).

20.  From the onset, however, the specific legal basis for this succession of decrees was unclear. Although the decrees were formally made under the authority of Article 99(3) of the Constitution, as DNUs, they all also invoked the authority delegated by Congress in Law 27,541, under Article 76 of the Constitution, as delegated decrees. This authority, however, was quite thin: Law 27,541 was passed months before the pandemic, and was merely meant to enhance the Executive’s ability to strengthen the sanitary system in general. Reference to this delegated authority was, therefore, insufficient to justify the measures taken by the government as a response to Covid-19. The decision to discursively connect the response to the pandemic with the sanitary emergency established in Law 27,541 can be understood, however, as a political statement meant to blame the previous administration for the structural fragility of the Argentine sanitary system.⁴¹

21.  The authority of the decrees to govern throughout the many challenges posed by the pandemic, and to suspend constitutional rights for a prolonged period of time, ultimately rested upon the extent of the government’s ability to enact legislation under Article 99(3) of the Constitution, as decrees of necessity and urgency. This ability, however, has been significantly brought into question—particularly after Congress returned to its normal functioning in May 2020.⁴² Instead of turning to Congress for a legal framework for the suspension of rights, as demanded by the Constitution and the international human rights systems, the government insisted on the imposition of a wide array of restrictions via Executive rule-making.

22.  DNUs are regulated in Article 99(3) of the National Constitution. The provision begins by stipulating that ‘[t]he Executive Power may not issue dispositions of a legislative nature in any case whatsoever, under penalty of their absolute and incurable nullity’. The same Article, however, does authorize the exceptional issuance of ‘decrees of necessity and urgency’.⁴³ Three conditions need to be fulfilled for these decrees to be valid: (1) there must be ‘exceptional circumstances [that] make it impossible to follow the regular procedures provided by this Constitution for the passing of laws’, for example, ‘that the chambers of Congress cannot meet due to force majeure circumstances that prevent it’;⁴⁴ (2) the measures must be necessary and urgent; and (3) they must ‘not involve rules that regulate criminal, tax, or electoral matters or the regime governing political parties’. The Constitution also foresees a special Congressional procedure for the supervision of these decrees, run by a Standing Bicameral Committee.⁴⁵ These DNUs have no inherent sunset period or time limits of any sort: they are valid as long as Congress does not repeal them.⁴⁶

23.  On 12 March 2020, President Alberto Fernandez signed DNU 260/2020, expanding the public emergency approved by Congress in December 2019 (Law 27,541).⁴⁷ The Decree used the World Health Organization declaration of 11 March 2020 and the need to take ‘timely and transparent measures based on consensus and scientific evidence, alongside other measures adopted for the mitigation of the pandemic’ as its foundation. Likewise, the decree gave broad powers to the Ministry of Health.

24.  The course adopted by the Executive faced significant criticism on constitutional grounds from the outset, as the President had simultaneously used two different procedural avenues for emergencies (Articles 76 and 99(3) of the Constitution). The President issued a decree to expand the state of emergency which, under Article 76, could only be declared by Congress, who would then delegate to the Executive legislative powers which must be limited in temporal and material scope. In other words, under a substantially broad interpretation of its powers, the Executive extended the limits of the previous Congressional delegation and broadened its own powers. This notwithstanding the fact that the Supreme Court’s previous doctrine on the matter was clear enough that the constitutionality of these measures can be reviewed, and that ‘faced with a delegation … the Executive cannot exercise exceptional attributions which were conceived to be performed in the scenario of an inability of Congress to act, and not concurrently with its operation’.⁴⁸

25.  One week later, on 19 March 2020, President Alberto Fernández signed DNU 297/2020, establishing a novel regime structured by a general stay-at-home order. They called the regime ‘social, preventive, and compulsory isolation’ (aislamiento social, preventivo y obligatorio) (ASPO), and made it applicable to all persons who lived in the country or who were in it at that moment. The Executive argued that the speed of the spread of Covid-19 and the lack of ‘an effective viral treatment or vaccine’ created ‘a potential health and social crisis of unprecedented dimensions’, which demanded ‘the adoption of rapid, effective, and urgent measures, making it impossible to follow the ordinary procedures for the enactment of the laws.’⁴⁹ Indeed, at the time, Congress became paralyzed and did not meet for around two months, given the fear of the virus and the novel restrictions.

26.  The measures established in DNU 297/2020 were meant to be temporary, from 20–31 March, but they were successively extended in 20 further DNUs, each decreed right before the expiration date of the previous one.⁵⁰ Significant variations were introduced throughout the months to the original measures, including the slow evolution from ASPO (isolation) to ‘social, preventive, and compulsory distancing’ (distanciamiento social, preventivo y obligatorio) (DISPO).⁵¹ On each of these occasions, the President decided on the measures with his team—usually after consultations with provincial governors and with his scientific advisors—and communicated them to the public in a press conference, shortly before they entered into force. There is no public record of the decision-making process behind each of the DNUs, which is presented as a discretionary power of the President.

27.  Despite some generalized complacency in the public sphere, which could be attributed to the strong presidentialist culture of the country,⁵² the validity of (some of) these DNUs was questioned by academics and activists.⁵³ The concerns focused on all three of the constitutional requirements.

28.  First, questions were raised regarding the varying availability of the regular procedures for the passing of laws. Congress was, indeed, inactive for around two months, until regulations for online sessions were put in place. However, on 13 May 2020, both houses of Congress returned to their regular activities, after agreeing on rules to accommodate online participation of legislators.⁵⁴ Dozens of laws were passed under this system, including some very prominent and widely debated, such as the regulation of housing rentals,⁵⁵ and the legalization of abortion.⁵⁶ Notwithstanding this intense congressional activity and the constitutional requirement regarding the impossibility ‘to follow the regular procedures provided by this Constitution for the passing of laws’, the public health measures related to the pandemic are still, at this time, being decided by the President via DNUs.

29.  Second, there are doubts about the urgency for the measures, particularly those dictated after DNU 297/2020. The growth in the number of cases was quite slow in the country, leaving time for debate regarding the courses of action available. This is all the more true when, after over a year of the pandemic, decisions on long-term indicators to deal with the pandemic are being made via executive rulemaking.⁵⁷

30.  Third, concerns have been raised because the DNUs indirectly legislate on criminal matters, something explicitly banned by Article 99(3) of the Constitution: they include a reference to an article of the Criminal Code which establishes jail sentences for those who ‘violate the measures adopted by the competent authorities to prevent the introduction or spread of an epidemic’.⁵⁸

31.  On 30 April 2021, after more than a year of regulating the course of the pandemic through executive rule-making, the President announced that he would ‘send a Bill to Congress so that, based on clear and precise scientific criteria, the President of the Nation and the governors are empowered to take restrictions and care measures during this exceptional situation’. ‘Through this’, he said, ‘I am confirming my dedication to dialogue. The pandemic demands an immense responsibility from us. And it is politicians who must make the decisions and find the answers to the challenge we face’.⁵⁹ The media reported that the President and his advisors relied explicitly on a German law for this proposal.⁶⁰

32.  Simultaneously with this announcement, the President signed yet another DNU extending and expanding the various restrictions (see Part IV below).⁶¹ The text of the Decree acknowledges that a bill was sent to Congress but, just two paragraphs later, attempts to justify its legal authority stating that the scenario ‘makes it impossible to follow the ordinary procedures for the sanction of laws’.⁶²

33.  The bill passed quite rapidly (with some changes) in the Senate, where the governing party has a considerable majority.⁶³ In the Deputies chamber, however, the government did not succeed in achieving support; the project then stalled.⁶⁴ Since then, the Executive has continued issuing DNUs, stating that ‘to date, there is no legal framework sanctioned by Congress to face the emergency of Covid-19’ and, immediately afterwards, that the scenario ‘makes it impossible to follow the ordinary procedures for the sanction of laws’.⁶⁵

34.  Authorities also relied heavily on soft-law approaches to cope with the pandemic. Since the dawn of the disease in Argentina, the Federal Ministry of Health has published various legally non-binding recommendations on hygiene in daily life. Many are found on a website established by the government for these purposes.⁶⁶ At the same time, it implemented the National Care Plan for health care workers, with the aim of guiding health care institutions to carry out actions to prevent Covid-19 infections and the consequences they have for health care workers.⁶⁷ It also developed several manuals with recommendations for health teams,⁶⁸ ‘a manual for a comprehensive approach to the care of the indigenous population’,⁶⁹ a document with recommendations to guarantee access to health care for trans, transvestite, and non-binary people,⁷⁰ and a guide with recommendations for prevention and approach in homes for the elderly and a contingency plan.⁷¹ Finally, together with the Ministry of Social Development, it prepared a document on recommendations and specific measures to prevent the spread of Covid-19 in poorer neighborhoods and in care for the elderly.⁷²

35.  Other administrative bodies have also reiterated the practice adopted in the first instance by the Ministry of Health. The Ministry of Social Development approved a guide of recommendations for the prevention of transmission in institutionally developed residential or family care arrangements for children and adolescents and for closed centers in the juvenile penal system.⁷³ For its part, the National Institute against Discrimination, Xenophobia, and Racism (INADI) launched a campaign on social media with recommendations to ensure that information on the pandemic is accessible to people with disabilities and the elderly, in order to incorporate audio-visual accessibility tools such as subtitling, sign language, and audio-description.⁷⁴ In turn, the Ministry of Women, Gender, and Diversity prepared a document with recommendations on gender and diversity policies within the framework of the health emergency addressed to provincial and municipal governments.⁷⁵

36.  In addition, the President addressed the general population several times in television addresses, calling on them to keep their distance and to be careful. Another non-legal measure was the development of the Coronavirus Covid-19 symptom self-assessment app.⁷⁶ None of these various guidelines diverged significantly from the law in place.

37.  After authorizing the exceptional possibility of executive rule-making via DNUs, Article 99(3) of the National Constitution provides a procedure for congressional supervision of these regulations: ‘[t]he Chief of the Cabinet of Ministers, personally and within ten days, shall submit the measure for the consideration of the Standing Bicameral Committee, whose membership must reflect the proportion of the political representation of each Chamber. This Committee shall forward its report within ten days to a plenary session of each Chamber for its express and immediate consideration. A special law approved by an absolute majority of the totality of the members of each Chamber shall regulate the procedure and the scope of the intervention of Congress.’

38.  The law in question, passed in 2006, set up the procedure in a manner that significantly restricted the possibility of a rejection by Congress. The law details the steps to be taken after a DNU is issued, and states that a ‘rejection by both Houses of Congress of the decree in question implies its repeal.’⁷⁷ The presumption, then, is the validity of the DNU, and this is only altered if both chambers agree on its repeal. The Committee can make no changes to the regulations: it can only repeal it or accept it as whole. It must make a decision within ten days of receiving the decree, and then both Chambers must give the matter ‘immediate and express treatment’.⁷⁸ This has historically resulted in very few rejections of decrees.⁷⁹

39.  The case of the Covid-19 DNUs was no exception. The Bicameral Committee first met in May 2020 to decide upon a package of around 20 DNUs decreed in the previous months, related to the pandemic. Some legislators in the opposition did raise the general question of the appropriateness of executive rule-making in this scenario in which Congressional law-making was in full operation, with Senator Naidenoff stating ‘[w]e support these decrees, of course, as a political decision. What is the paradox? That Congress is making the decision, but because it is already up and running.’⁸⁰ However, both the ruling party —which controls the Senate and is the first minority in the Deputies Chamber—and the opposition moved to approve the decrees, unanimously, with minor exceptions (see Part IV.A.2 and Part V.A below).⁸¹ None of the several Covid-19 DNUs have been repealed since the pandemic began and none are subject to sunset clauses.

40.  Pursuant to Article 66 of the National Constitution, each chamber—the Chamber of Deputies and the Senate—is empowered to make its own rules of proceeding. Nevertheless, neither chamber’s rules of proceedings provided special rules for their functioning during a time of crisis such as the one presented by Covid-19. Additionally, if carried out as normal, the sessions meant that a significant number of people would remain in an enclosed space for long periods of time. In light of this, for weeks Congress remained closed, legislators did not attend any sessions, and many were away in their respective provinces. The decision to suspend the sessions was formally made by the President of each chamber, both from the governmental coalition, but was initially accepted by the opposition.

41.  When more than a month had passed since the stay-at-home order was put in place, the opposition began demanding that Congress go back to work. However, the ruling coalition and the opposition had different proposals as to the functioning of the chambers. The ruling coalition proposed virtual sessions, arguing it would be the safest choice, safeguarding the health of legislators and congressional employees.⁸² The opposition questioned the validity of virtual sessions and considered that the chambers’ rules of proceeding had to be amended in person prior to going virtual.⁸³ Moreover, they argued that nothing prevented the sessions from being carried out in person and proposed changing the venue to a bigger space where legislators could convene while following social distancing measures.⁸⁴

42.  In the midst of this debate, Vice-President Fernández de Kirchner, in her capacity as President of the Senate, presented before the Supreme Court a request for a declaratory judgement to ascertain the validity of the virtual sessions. Although the Court rejected the request, it did so after considering that ‘the Senate had the constitutional authority to interpret its own rules of proceedings as to whether it is permissible to hold sessions virtually’.⁸⁵ While the Court technically did not decide on the case, it settled the discussions concerning the validity of virtual sessions and prompted both sides to reach a compromise. Eventually, after defining certain technical issues, both chambers decided to start virtual sessions and on 13 May 2020 Congress returned to its regular activities.⁸⁶

43.  Since then, the system has gone through some changes and some further discussions arose between opposing parties. Nonetheless, dozens of laws were passed under this regime, including some very prominent and widely debated, such as the regulation of housing rentals,⁸⁷ and the legalization of abortion.⁸⁸ As of 13 May 2020, both chambers have carried their business in a mixed format, having legislators hold sessions both virtually and in person (hybrid sessions).

44.  At the local level, the legislature of the City of Buenos Aires reconfigured its format much faster. A week after the isolation measures were put in place, legislative commissions started virtual sessions.⁸⁹ Additionally, legislators convened in person and, in a socially-distanced special session, decided to grant powers to the Legislature’s vice-president (a legislator from the ruling coalition) to stipulate the functioning of virtual sessions. Formosa also moved to hybrid law-making in May 2020.⁹⁰

45.  Article 116 of the National Constitution establishes that the ‘Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation.’ Procedural rules are established in the relevant code of procedure applicable to the particular type of proceeding in question, eg the National Civil and Commercial Procedural Code or the National Criminal Procedural Code. Additionally, in 2011, Congress authorized the implementation of electronic files and proceedings in all national courts.⁹¹ As head of the Judiciary, the Supreme Court, through internal decisions called ‘acordadas’, began the implementation of this change. Particularly, through this channel, the Supreme Court has for a couple of years been introducing different technological tools to modernize the judicial system.⁹² Nevertheless, the court system was not quite prepared to face the challenges the pandemic implied as regards judicial procedure.

46.  After the stay-at-home measures were introduced, the Supreme Court declared a judicial leave period that heavily restricted access to justice.⁹³ The decision meant that national courts were only to continue reviewing urgent cases. Although the measure was at first stipulated to last two weeks, it was periodically prorogued and ended up lasting—with variations—over four months.⁹⁴ In addition, lawyers were formally not allowed to attend their offices in many parts of the country until at least late July 2020 due to the general isolation measures.⁹⁵ Despite protests from lawyers, some tribunals are still not in full operation even in mid-2021.

47.  Even so, courts did function in certain sporadic instances as a check on the decisions made during the pandemic (see specific examples of cases below in Part IV). In 2020, this was rather sporadic and exceptional, with most courts being deferential to the Executives regarding the constitutionality of the measures.⁹⁶ In 2021, however, some tribunals shifted, albeit slightly, their position. In a case studying restrictions of entry to the province of Formosa, the national Supreme Court stated that ‘[e]ven though it is true that there are no absolute rights, it is no less true that the power of the government to trim them according to its needs, under an emergency or not, is much less than absolute. Courts must scrutinize interventions on individual rights with growing rigour as they become more intense and protracted, to establish not only whether the measure’s overall validity is justified, but also its scope’.⁹⁷ In a prominent case between the City of Buenos Aires and the National Government regarding school closures, the Chief Justice stated that ‘the existence of a situation of this nature enables the adoption of remedies that under normal conditions could not be valid … However, the emergency is not a franchise to ignore the existing law. The emergency is subject to the law in this country, as it is also a legally regulated situation and it does not imply in any way that any measure that could be represented as effective to address the situation is, for that reason alone, constitutionally admissible. It should not be forgotten that the emergency, while it may provide the occasion to exercise an existing power, does not create new powers.’⁹⁸

48.  In 2020, only municipal elections were scheduled to be held during the pandemic. Two small elections in Córdoba and Santa Fe were postponed in March and May due to the public health measures.⁹⁹ Río Cuarto, a city of around 140,000 inhabitants, finally voted in November 2020.¹⁰⁰ San Guillermo, a small town of 9,000, has not yet been able to hold its elections.

49.  By contrast, a number of important elections were scheduled for 2021. In June, Misiones was the first district to hold provincial elections during the pandemic.¹⁰¹ For such purpose the Electoral Tribunal of Misiones drafted a ‘Biosafety Protocol’, which extended voting hours, expanded the number of voting centres, and established general guidelines for the election.¹⁰² Later that same month, the province of Jujuy also held its provincial legislative elections, with similar provisions.¹⁰³

50.  The national mid-term elections for Congress are also scheduled for 2021. These involve two instances: the mandatory primaries (Primarias Abiertas, Simultáneas y Obligatorias), which were to be held in August, and the actual elections, originally scheduled for October. In late 2020 and early 2021, there were numerous rumours of postponement and even suspension of the primaries. In December, legislators supported by various provincial governors introduced a bill proposing to suspend the primaries, which was never finally discussed in Congress.¹⁰⁴ In February, the then Minister of Health stated that ‘the sanitary conditions are not in place for an election to be held in August’.¹⁰⁵ Around the same time, a Federal Judge in charge of the organization of the elections demanded that her staff be vaccinated with utmost priority, saying that: ‘[i]f they don’t vaccinate the staff, I don’t hold the election’.¹⁰⁶

51.  In May 2021, the government and the opposition reached an agreement to hold both the primaries and the general election, but to postpone them for one month. Law 27,631 passed in early June and modifies ‘for one time only’ the dates of the elections, setting them for ‘the second Sunday of September’ and ‘the second Sunday of November’, respectively.¹⁰⁷

52.  In late February 2020, President Alberto Fernández convened a team of epidemiologists, clinicians, and cardiologists to advise him in decision-making related to the pandemic. The members of this advisory committee were selected by the President without any formal consultation with other institutional bodies, and without any public explanation regarding the criteria for inclusion. It was a fairly urgent, informal invitation, to meet with the President and give advice. Some of the members of the team were closer to the government, while others proved somewhat critical of the way the crisis was handled. Most of them are considered extremely prestigious in their respective fields. They all worked ad honorem.

53.  The ‘committee of experts’—as it became known in the press—was never institutionalized, and its operation remained fully dependent on the discretion of the President. Its members, however, gained notoriety and influence, and the President routinely consulted with them before each extension of the ‘social, preventive, and compulsory isolation’ (ASPO) or ‘social, preventive, and compulsory distancing’ (DISPO), at least until September 2020.¹⁰⁸ None of these meetings were public, minutes were not published, and hence the content of the deliberations only reached the public through governmental press releases or informal statements of the members. Nevertheless, the press covered the closed summits with great anticipation, filming the moment in which the van carrying the experts entered the presidential residence. The experts were regularly featured in interviews, both discussing their approaches and opinions and forecasting the future direction of the handling of the pandemic by the government. From the beginning, the government explained that the strict measures it adopted, such as the general stay-at-home order, were made following guidance from the experts.

54.  The choice to make decisions based on scientific advice was initially well-received, particularly given that the President had no legal obligation to conduct such consultations before issuing DNUs. However, with the extension of the ASPO, the detrimental effect of the measures over different aspects of quotidian life, and the systematic increase in the number of cases, the media began to question the experts and their relationship with the government. Many criticized the strict, medical approach taken by the committee, which gave its advice focused only on Covid-19, without due regard for other deleterious consequences of the crisis, including, for example, the economic downturn caused by the ASPO, the effects of school closures, and the broader health impacts of the lockdown (particularly on mental health). As a response, in August 2020, the President added psychologists and social scientists to the committee.¹⁰⁹ In October, and without any specific explanation, the President stopped meeting with the experts before issuing new DNUs.¹¹⁰ In 2021, meetings with the experts were usually led by the Chief of Cabinet and the Minister of Health, rather than the President.¹¹¹

55.  During 2020, as far as it was made public, the committee did not significantly change its position regarding the necessity of harsh measures to control the spread of the virus. In a rare open letter published in late September, after five months of lockdown, the experts acknowledged ‘that this huge effort … has created a feeling of strain and fatigue on all of us’, but still ‘call[ed] on the authorities to take the necessary sanitary blockade measures at the neighbourhood, departmental or provincial level, according to the seriousness of the situation in their respective jurisdictions, without delay’.¹¹²

56.  In the same letter, the committee complained about how the emergence of ‘political differences [had begun] to spoil health policies’ meant to contain the virus.¹¹³ Throughout these months, some members of the committee framed the critiques of the measures either as obstructionism coming from the opposition, or as irrational arguments made by people who did not understand the situation. In an interview in June 2020, for example, Dr. Pedro Cahn stated the following: ‘[t]he anti-quarantine militancy reminds me of the flat Earthers or the anti-vaxxers. I invite you to tell me what their proposal to replace social distancing is, which is the only thing we know works. Take the map of Argentina, look to your right and you’ll see Brazil, which has approximately 200 deaths per million inhabitants; look to the left and you’ll see Chile, which has 180 deaths per million. If we had done a ‘lockdown’ like Brazil’s (ie no lockdown at all – see Brazil’s report in the Compendium), we would probably have eight thousand dead by now.’¹¹⁴

57.  A year later, and looking retrospectively, however, some members of the committee acknowledged that the strategies they suggested were not fully successful. In an interview in March 2021, for example, Dr. Cahn admitted that ‘the lesson of 2020 is that we do not need lockdowns that are as prolonged as those we had last year’.¹¹⁵ After suggesting the avoidance of in-person education during 2020, he also acknowledged the change of course in relation to this topic in 2021, stating: ‘[w]e are all in agreement with going back to classes’.¹¹⁶ Dr. Eduardo López, another member of the committee, agreed saying that: ‘[the 2020] lockdown lasted perhaps longer than it would have been logical, and this caused people to develop a tendency to fail to comply with the measures.’¹¹⁷ He also concurred with Cahn regarding in-person education: ‘I think the lesson has been learned: schools should be the last to close and the first to open.’¹¹⁸

58.  Meanwhile, in June 2020, the Ministry of Health adopted a resolution formally establishing an Ethics and Human Rights Committee in the Covid-19 Pandemic (Comité de Ética y Derechos Humanos en Pandemia Covid19), with experts in bioethics and law. The Committee—which was very different in its composition and role to the ‘committee of experts’—was meant to assist the Ministry on ‘the ethical implications of the Covid-19 pandemic on public health.’¹¹⁹ The final outcome of this Committee was a series of reports on the allocation of scarce resources and various other topics, such as the use of personal data, discrimination, and human rights impacts of the measures.¹²⁰ These reports had almost no visible impact on official decision-making nor on public debate.

59.  While the work of journalists has been impacted by general rules like social distancing measures, authorities have not implemented special legal restrictions on the media which would be, with regard to the freedom of press (Article 14 of the Constitution), highly objectionable. On the contrary, in most regulations, the press is explicitly exempted from mobility restrictions and social distancing requirements. This was construed quite broadly, including everyone working in ‘audiovisual, radio and graphic communication services’ as ‘essential workers’ exempt from the stay-at-home order.¹²¹ Early in 2020, many began to question whether it was appropriate, for instance, to consider people working on TV entertainment shows as ‘essential’.¹²² This sentiment was voiced in the media frequently, but never seriously considered by the government, given the difficulties of differentiating between categories of media workers.

60.  The general provisions granting access to official information from authorities, like the Law on Access to Public Information (2016), also apply in the pandemic.¹²³ The Agency of Access to Public Information published various reports on the protection of personal data and transparency of the vaccination campaign.¹²⁴

61.  In the case of Formosa, the strict isolation mandated by the governor meant that outside media could not enter the province, notwithstanding national regulations. After reports emerged of the draconian nature of the measures involved, a news team from a Buenos Aires’ TV channel secured a habeas corpus order confirming their right to enter the provincial territory.¹²⁵

62.  The Argentine Constitution sets up two bodies tasked with oversight functions regarding the development of governmental activities: the General Auditing Bureau (Auditoría General de la Nación) and the Office of the Ombudsperson (Defensor del Pueblo). Both could have been very relevant to supervise the functioning of the state in relation to the Covid-19 pandemic, but their actual performance was thus far not as significant as expected.¹²⁶

63.  Article 85 of the Constitution stipulates that Congress is ‘exclusively empowered to exercise the external control of the national civil service as regards its estates and its economic, financial and operative aspects’ and establishes for such purposes the General Auditing Bureau (Auditoría General de la Nación) (AGN). In such capacity, the Bureau is an advisory body of Congress with functional autonomy, which controls the public administration, and assesses facts, acts, and documents once the organizations to be audited finish their accounting exercises. Additionally, it takes part in the approval or rejection of the revenue and investment accounts of public funds. The AGN could revise some aspects of the Covid-19 measures in the future, but it has not produced any significant reports yet.

64.  Article 86 of the Constitution creates the office of the Ombudsperson (Defensor del Pueblo) and stipulates as its mission ‘the defense and protection of human rights and other rights, guarantees and interests sheltered under the Constitution and the laws, in the face of deeds, acts or omissions of the administration; as well as the control of public administrative functions.’ However, the office has been vacant since 2009 given that—because of a required two-thirds majority and a lack of compromise from political parties—Congress has continuously failed to appoint someone to this position.

65.  The lack of an Ombudsperson has been particularly concerning throughout the pandemic in light of the severe restrictions imposed on human rights throughout the country. Given that the Constitution stipulates that it can operate ‘with full autonomy and without receiving instructions from any other authority’ (Article 86 Argentine Constitution), the Ombudsperson could have independently assessed situations like the confinement in Formosa or the lack of water service in the slums of the City of Buenos Aires. Several civil society organizations have been demanding the appointment of an Ombudsperson for years.¹²⁷ In March 2020, Human Rights Watch issued a communiqué stressing this point, specifically in relation to Covid-19: ‘[t]he Ombudsperson’s Office, a body that is structurally independent from the executive and would have the capacity to document and report on abuses, has not been functioning normally since 2013, when the mandate of the then-deputy ombudsperson expired. Human Rights Watch and the Johns Hopkins University centers recommend that the administration of President Alberto Fernández work with Congress to appoint an ombudsperson who can ensure credible, independent, and reliable reporting of human rights conditions in Formosa and elsewhere in Argentina.’¹²⁸

66.  At the local level, both the Constitution of the City of Buenos Aires and the Constitution of Formosa establish local Ombudspersons (Article 153 Constitution of Formosa) (Article 137 Constitution of the City of Buenos Aires) with similar functions to those stipulated at the national level. In the City of Buenos Aires, Ombudsman Alejandro Amor took an active role in light of complaints from neighbours without access to water in underprivileged areas.¹²⁹ In the case of Formosa, the Ombudsperson—who has been in office for 19 years and has contributed funds to the electoral campaign of the governor—has taken sides with the government in relation to the serious human rights allegations concerning the conditions at quarantine centers and restrictions of entry to the province (see Part IV below).¹³⁰ For instance, in October 2020, claiming to represent ‘people with high health risk in the pandemic’, he requested a declaratory judgment from the provincial judiciary barring federal judges from intervening in matters related to the Formosan government’s response to the pandemic.¹³¹ In response to the Ombudsperson’s inaction, civil society took on the challenge of amplifying local voices and lobbying federal authorities to intervene.¹³² In January 2021, members of the National Human Rights Secretariat (a governmental office in the Ministry of Justice) visited Formosa to assess the situation at quarantine centers.¹³³

67.  During most of 2020, the federal government of Argentina imposed very strict public health measures upon the population, generally making it a crime for people to leave their houses for non-essential activities. The ‘essential’ or ‘non-essential’ nature of activities was at first defined by the federal government through DNUs, and then progressively delegated to provincial governors. After a while, the general stay-at-home order was gradually lifted by the federal government in those areas of the country that did not have active outbreaks. In the city of Buenos Aires, for example, this happened in November, lasting almost eight months in total. The media called this ‘the longest lockdown [cuarentena] in the world’.¹³⁴

68.  Despite the strictness of these measures on paper, the actual levels of compliance varied in time and space, for at least two reasons. First, several exceptions were inserted into the general stay-at-home order, creating endless (and sometimes unclear) lists of authorized activities. The confusion about the exceptions eroded the strength of the general order, and people began to find loopholes to justify their activities. And second, in a country with a national poverty rate of over 40%, many had to breach the orders in order to work and secure their basic needs.¹³⁵ Also, after several months of isolation, even those above the poverty line breached the stay-at-home order to carry on with their lives.

69.  The government acknowledged both of these factors, arguing publicly that the measures were not that strict. In a TV interview in September 2020, when the stay-at-home order was still in place for many in the country, President Alberto Fernández stated that ‘there is no lockdown [cuarentena], we have to stop confusing people. If we had had 160 days of real lockdown, we would not have any of the problems that we are currently having [referring to the number of cases], because these problems are derived from the greater circulation and greater contact of people with each other that we are witnessing’.¹³⁶ He further stated that: ‘I was out on the street, and people do go out and walk in the City of Buenos Aires’, and ‘[w]e have not had 160 days of lockdown, there is no lockdown’.¹³⁷

70.  Some of the measures imposed by the federal government were to be complemented by decisions of each provincial government. In the case of Formosa, on 16 March 2020, the governor issued Provincial Decree 100/2020, which would be the cornerstone of the local regulation of the pandemic.¹³⁸ In said decree, the governor ‘adhered’ the province to the measures established by the national executive through DNU 260/2020 and established a Council on Integral Attention of the Covid-19 Emergency (Consejo de Atención Integral de la Emergencia Covid-19). The Council was formed by all the ministers and state secretaries, with the purpose of ‘implementing the measures hereby established’ or in order to make them ‘broader’ or simply ‘change’ them depending on the evolution of the pandemic.¹³⁹ The Decree also suspended classes¹⁴⁰ and issued extraordinary leaves of absence for public employees at risk due to Covid-19 and those with small children, among others.¹⁴¹ In the case of the City of Buenos Aires, most of the decisions were made through DNUs issued by the Chief of Government, claiming to be empowered to do so by the local constitution, which allows for DNUs in similar terms as its national counterpart.¹⁴²

71.  On 19 March 2020, the federal government implemented the ‘social, preventive, and compulsory isolation’ (ASPO),¹⁴³ and imposed a wide range of strict mobility restrictions on citizens throughout Argentina. The ASPO measures were structured around a stay-at-home order, prohibiting any non-essential activity of people in the country at the time. Circulation was only allowed in cases considered essential, eg going to a supermarket or assisting an elderly family member. On 31 March 2020, the ASPO restrictions were prolonged up until 12 April 2020, without any changes, maintaining the strict ban on leaving one’s home.¹⁴⁴

72.  Only a couple of days after the ASPO was established, the National Appeals Court on Criminal Matters reviewed a habeas corpus petition that alleged the unconstitutionality of the isolation measures insofar they disproportionately restricted civil liberties. The suit also claimed that the Executive had overreached in its powers by regulating criminal matters, which is expressly prohibited by Article 99(3) of the Constitution. In the decision, rendered only two days after the first lockdown, the tribunal understood that the restrictions imposed had a legitimate aim and were proportional, given that the measures were the means available to prevent the spread of Covid-19.¹⁴⁵

73.  On 11 April 2020, the federal government prolonged the restrictions for an additional 15 days.¹⁴⁶ However, the new extension introduced new exceptions to the stay-at-home order, allowing for the reopening of banks, book shops, and car repair shops. Furthermore, it was explicitly allowed for persons with disabilities or autism to leave their homes for outings close to their residences. Additionally, with this extension the federal government set up a mechanism through which local authorities could request for additional activities to become exempt from the restrictions.

74.  In light of this new stipulation, and after crafting protocols to safely reopen activities—which were supervised by the federal Health Ministry—local jurisdictions began to allow a number of activities to open back up. The reopening protocols included social distancing measures and the mandatory use of masks. Additionally, the City of Buenos Aires established a scheme allowing citizens to leave their homes according to their ID numbers. This implied that, as regards non-essential activities, people whose ID numbers ended in an even number would have to leave their homes on even numbered days and those with an ID number ending in an odd number would leave on odd numbered days.¹⁴⁷

75.  Beginning on 6 April 2020, those excepted from the ASPO had to secure a permit allowing them to circulate (Certificado único de circulación), which the government issued on the basis of a sworn declaration.¹⁴⁸ Later that month, the government relaunched an app (‘CuidAr’) that had been created for international travellers, through which the permit could be secured.¹⁴⁹ The app first asks users a series of questions to self-diagnose symptoms of Covid-19, and then allows them to apply for the permit. Those unwilling or unable to use the app can access the same services through a website, and print out their authorizations.

76.  On 26 April 2020, the isolation measures were prolonged for two more weeks.¹⁵⁰ However, in this instance, the federal government delegated to local authorities the decision on what activities to reopen and how. Furthermore, the federal government included a new exception to the restrictions allowing citizens to conduct daily leisure activities outside their homes.

77.  Without many further changes, the isolation measures were prolonged again on 10 May 2020¹⁵¹ and 24 May 2020.¹⁵² On 7 June 2020, in light of the very diverse epidemiological scenarios throughout the country, the federal government implemented an additional framework to control the spread of Covid-19, the ‘social, preventive, and compulsory distancing’ (DISPO).¹⁵³ This implied that certain areas of the country continued under the isolation measures, but others entered into a distancing phase. In those areas, the stay-at-home order was lifted and citizens could leave their homes as long as they followed social distancing and wore masks. Under the new scheme, small social, artistic, and sporting activities were allowed, but distancing protocols had to be implemented. Nonetheless, the new scheme did not allow for mass gatherings, tourism, or the reopening of cinemas, theatres, and clubs. It is worth mentioning that Formosa was one of the areas under distancing measures, whereas the City of Buenos Aires remained under isolation measures. On 29 June 2020,¹⁵⁴ 18 July 2020,¹⁵⁵ and 2 August 2020¹⁵⁶ the dual DISPO-ASPO framework was prolonged without meaningful changes to the restrictions established for each case.

78.  On 30 August 2020, the measures were maintained but the federal government allowed gatherings and events for up to 10 people for both areas under DISPO and ASPO restrictions.¹⁵⁷ On 20 September 2020,¹⁵⁸ 11 October 2020,¹⁵⁹ and 25 October 2020¹⁶⁰ the restrictions were further extended without major changes made at the federal level.

79.  On 7 November 2020, the restrictions were extended, but the City of Buenos Aires and its metropolitan area were included among the areas under distancing restrictions.¹⁶¹ Even if the federal restrictions did not change in substance, maintaining the ASPO-DISPO dual regime, this was an important change since one out of every three Argentineans lives in the Greater Buenos Aires area.

80.  On 21 December 2020, for the first time, all the country was under distancing measures.¹⁶² Afterwards, on 29 January 2021¹⁶³ and 27 February 2021,¹⁶⁴ the government maintained the measures and reintroduced isolation restrictions to certain areas.

81.  On 8 April 2021, facing a stark increase in cases and high ICU occupation in various parts of the country, the government took new measures restricting individual mobility and other activities. DNU 235/2021 established a ‘restriction on nocturnal mobility’ from 12am to 6am for areas with ‘High Epidemiological and Sanitary Risk’—a category based on case ratio and incidence—which included the City of Buenos Aires and its surroundings.¹⁶⁵ One week later, DNU 241/2021 imposed additional restrictions applicable only to the Metropolitan Area of Buenos Aires (AMBA),¹⁶⁶ a region with no formal legal existence, composed of the City of Buenos Aires and 40 surrounding municipalities from the Province of Buenos Aires.¹⁶⁷ Among other measures, the ‘restriction on mobility’ was expanded, now ranging from 8pm to 6am.¹⁶⁸

82.  On 30 April 2021, DNU 287/2021 created what the government called an ‘epidemiological traffic light’—formally, ‘Parameters to Define Health and Epidemiological Risk’.¹⁶⁹ It defined four categories of areas, based on case ratio, incidence, geographical size, and level of ICU occupation: (1) ‘Low Epidemiological and Sanitary Risk’, (2) ‘Medium Epidemiological and Sanitary Risk’, (3) ‘High Epidemiological and Sanitary Risk’, and (4) ‘Epidemiological and Sanitary Alarm’. The restrictions to mobility and other measures would vary around the country depending on the designation of the relevant areas. The Decree, however, did not establish the mechanism for the designation of each jurisdiction as part of the various categories, nor the period in which the designation would be reviewed. All it stated was that the various categories ‘are specified and periodically updated on the official page of the Ministry of Health of the Nation’.¹⁷⁰

83.  The epidemiological traffic light was maintained in subsequent DNUs.¹⁷¹ On 10 May 2021, the Executive sent a proposal for a ‘Law of Epidemiological and Sanitary Regulatory Parameters of the COVID-19 Emergency’ to the Senate, based on the traffic light system of DNU 287/2021.¹⁷² The bill passed in the Senate, but has not yet been considered in the Deputies Chamber, where it has not gained sufficient consensus.¹⁷³

84.  The AMBA, including the City of Buenos Aires, was downgraded from Epidemiological and Sanitary Alarm to High Epidemiological and Sanitary Risk on 12 June 2021.¹⁷⁴ As of then, the nocturnal mobility restriction is no longer from 8pm to 6am, but from 12am to 6am.

85.  The ASPO established as of 20 March 2020 heavily restricted internal travel in the country: from then on people were only allowed to circulate within 500 metres of their homes, unless specifically authorized. These exceptions varied in time and space, with each jurisdiction establishing their own rules for this purpose. For the summer vacation season, the government created a dedicated website, indicating the restrictions applicable to each province.¹⁷⁵ It also created a national certificate (Certificado Verano) required to interprovincial tourists.

86.  Various provinces also set up restrictions for internal travel, of various kinds—from testing, to insurance, to isolation. The Ministry of Tourism set up a website detailing and updating the restrictions applicable to each province.¹⁷⁶ Some of these measures were judicially challenged (see Part IV.A.7 below).

87.  On 12 March 2020, the federal government suspended for 30 days the arrival of international flights coming to Argentina from ‘affected areas’, such as European Union Member States, the United Kingdom, the United States, South Korea, Japan, China, and Iran.¹⁷⁷

88.  On 16 March 2020, the federal government closed Argentine borders and banned the entry into the country of all non-resident foreigners.¹⁷⁸ On 26 March 2020, the ban was extended to Argentines living abroad and non-Argentine residents.¹⁷⁹ Additionally, the federal government entrusted the Foreign Ministry to take all necessary measures to assist Argentines and residents abroad. The Ministry instituted a plan instructing embassies and consulates to guarantee lodging, sanitary assistance, food, and any other basic necessities to Argentines and residents that had become stranded because of Covid-19 and the restrictions implemented.¹⁸⁰

89.  On 1 April 2020, the border closing was prolonged. However, the government implemented a plan for the gradual repatriation of Argentines and residents abroad.¹⁸¹ Through this plan the federal government brought thousands of citizens back to Argentina.

90.  Argentina maintained the closure of its international borders until 28 October 2020, when it allowed the entry of tourists from bordering countries.¹⁸² One day later, it authorized the return of international air transport operations, delegating to the National Civil Aviation Agency (ANAC) the approval of air transport schedules in accordance with the restrictions in force at that time.¹⁸³ Then, on 28 November, authorization to enter the national territory was extended to non-resident foreigners who are direct relatives of Argentine citizens, requiring a sworn statement and proof of a negative PCR test taken a maximum of 72 hours in advance, and proof of health insurance.¹⁸⁴

91.  However, a few days later, due to an increase in cases in most of the countries of the region and the fact that in Argentina the presence of a new variant of Covid-19 had not yet been identified, the entry of persons coming from countries with transmission of new variants was restricted, and, therefore, only the entry and exit of nationals and foreigners residing in the country and non-resident foreigners who are direct relatives of Argentine citizens or residents in the national territory, and who would temporarily enter the country for reasons of necessity, was authorized.¹⁸⁵ Such a measure was successively extended on 8 January 2021,¹⁸⁶ 1 February 2021,¹⁸⁷ 28 February 2021,¹⁸⁸ and 12 March 2021.¹⁸⁹

92.  Additionally, in light of the new Covid-19 variants, flights arriving from certain countries were banned. The countries first included were the UK, the Netherlands, Australia, Denmark, and Italy, which had been hit by the Alpha variant.¹⁹⁰ The list was then expanded to include the Brazil, Chile, and Mexico, these last three countries being recently added on 25 March 2021.¹⁹¹

93.  Throughout the pandemic, the National Administration of Civil Aviation (Administración Nacional de Aviación Civil) (ANAC) administered the number of flights authorized to land in Argentina. By June 2021, this number corresponded to around 2,000 passengers per day. On 25 June 2021, the Chief of Cabinet issued a Decision instructing ANAC to establish a quota of 600 passengers per day ‘for the reentry to the national territory of Argentines and residents abroad’, citing concerns over the entry of the Delta variant of Covid-19 to the country.¹⁹² The Minister of Health explained that this variant was worrisome due to its high transmissibility and that the government’s goal was ‘to delay its entry as long as possible’.¹⁹³

94.  The International Air Transport Association (IATA) formally protested the decision, arguing that ‘every day that passes, the measure is literally leaving some 1,400 people “stranded” in various parts of the planet’.¹⁹⁴ Amnesty International Argentina protested the measures and framed them as human rights violations.¹⁹⁵ Individual citizens and legislators from the opposition presented habeas corpus petitions in favour of Argentine travelers abroad who were unable to return to the country because their flights had been cancelled. A judge of first instance initially rejected the petitions, but the measure was reversed by the Criminal Chamber of the City of Buenos Aires.¹⁹⁶ The procedure is still ongoing.

95.  On 12 March 2020, the federal government delegated on ‘the corresponding jurisdictional authorities’ the closure of museums, sport centers, public pools, and other public spaces. Additionally, it stipulated that public events and other mass gatherings could also be suspended.¹⁹⁷

96.  A few days later, with the implementation of the isolation measures on 19 March 2020, the federal government banned all public and private gatherings.¹⁹⁸ The decree establishing the isolation measures explicitly prohibited cultural, recreational, religious, sporting and any other events that involved the attendance of public.¹⁹⁹

97.  After three months and under the distancing framework—first implemented on 7 June 2020 in some parts of the country²⁰⁰—the federal government started to decrease the restrictions on gatherings. In that instance, it allowed social, cultural, recreational, religious, and other events for up to ten people in both public and private spaces. Additionally, on 30 August 2020, the federal government allowed any private gatherings and events for up to ten people throughout the country.²⁰¹

98.  On 29 November 2020, the government allowed for bigger gatherings to take place: in open spaces, events were allowed for up to 100 people; and in closed spaces events were allowed for up to 20 people.²⁰² These restrictions were kept in place on 21 December 2020,²⁰³ 29 January 2021,²⁰⁴ and 27 February 2021.²⁰⁵

99.  It is worth noting that since the federal government delegated to local authorities the decision on what activities to reopen and how,²⁰⁶ at the local level further activities have been allowed. For instance, recently, in the City of Buenos Aires, the local government has allowed the reopening of cinemas,²⁰⁷ implementing a protocol that allows them to function with up to 30% of their capacity.²⁰⁸

100.  Several provisions related to the closure of public spaces were adopted prior to the decree that established the ASPO. Thus, in view of the need to restrict activities with a high concentration of public, on 12 March 2020 the City of Buenos Aires ordered the suspension of all activities carried out in museums, cultural centers, and public theatres, and allowed sports events but without the attendance of public.²⁰⁹ On 15 March, a similar measure was adopted by the National Parks Administration which ordered the closure of National Parks and Protected Areas in the country to visitors.²¹⁰

101.  One of the most drastic measures against the pandemic was the mandatory closure of schools. On 15 March, the Ministry of Education ordered the suspension of on-site classes at the pre-school, primary, and secondary levels in all modalities, and institutes of higher education.²¹¹ The measure had been initially dictated to be in force for 14 days, but the suspension finally included, for many, the whole of the 2020 school year. This generated negative consequences even for those who were able to continue with the activity virtually,²¹² but even more so for those groups that were prevented from exercising the right to education due to the impossibility of having the required technological means to access the classes.²¹³

102.  On 26 April 2020, as the isolation started to become more lax and local authorities were allowed to reopen activities,²¹⁴ the federal government stipulated that in-person classes were banned and could not be included among the activities to be reopened.²¹⁵ This scenario changed on 7 June 2020 with the introduction of the distancing measures (DISPO) which entrusted local authorities with the evaluation of how to reopen schools safely.²¹⁶ However, it should be noted that only those jurisdictions that at the time were under distancing measures could make that analysis. On the contrary, jurisdictions still under isolation measures (ASPO) were not invited to make such an assessment. Nevertheless, progressively after the distancing framework was introduced, some Provinces started to reopen schools,²¹⁷ with Formosa among those.²¹⁸ In the case of the City of Buenos Aires, although in-person classes were not fully reintroduced, the City implemented an in-person scheme to reconnect with students.²¹⁹

103.  As time went by, civil society began to organise and demand a return to face-to-face schooling.²²⁰ Likewise, the return to face-to-face education generated political tensions between those jurisdictions that had designed a staggered plan for the return to face-to-face education,²²¹ and the National State that refused to enable the return.²²² On 12 February 2021, a meeting of the Federal Education Council was held, attended by the President, the Minister of Education, the Ministers of Education of all the provinces, union representatives, legislators, representatives of UNESCO and UNICEF, and representatives of the national universities, among others, in which work was done to adapt the health indicators and determine the guidelines for a safe return to face-to-face education. It was resolved to prioritize the return to on-site classes at all levels and modalities of compulsory education according to the epidemiological situation of each locality.²²³ Likewise, the Framework Protocol for the return to on-site classes was ratified,²²⁴ which established a framework regulation for a comprehensive approach to Covid-19, recognising the possibility of modifications as a consequence of the development of epidemiological variables in the country, region, or jurisdiction. At the same time, it was stipulated that each province had to submit to the national Ministry of Education a plan for a return to classes, which had to comply with the guidelines established in the Framework Protocol and, in turn, be jointly approved by the highest provincial educational authority and the health authority designated as responsible for endorsing the health protocol of each jurisdiction. In effect, the final decision on the modality to be adopted was left in the hands of each governor.²²⁵

104.  In the City of Buenos Aires, the return to face-to-face classes took place on 17 February 2021, after the approval of the respective Protocol.²²⁶ In the province of Formosa, on-site classes began on 2 March 2021. However, in this jurisdiction the decision about the modality was delegated to the resolution of each school, its directors, teachers, and families, formalized by means of an act, stipulating that they must respect the general safety frameworks established by the Provincial Council and each Local Council.²²⁷ As a result, in certain cities, such as Formosa and Clorinda, classes continue to be taught only virtually.²²⁸

105.  As to universities, the majority still maintain virtual learning, with the exception of certain required practices for programs such as medicine.²²⁹

106.  On 14 April 2021, through DNU 241/2021 the federal government announced, among other measures (see Part IV.A.1 above), a new school closure in the metropolitan area of Buenos Aires—comprising the City of Buenos Aires and part of the province of Buenos Aires.²³⁰ After the federal government’s announcement, the mayor of the City of Buenos Aires, in a press conference, explained that the City had not been consulted to reach the decision and vowed to contest it before the Supreme Court. Finally, the political disagreement triggered a judicial battle.

107.  On 16 April 2021, the City presented before the Supreme Court a request for a declaratory judgement claiming that the closure of schools established in DNU 241/2021 was unconstitutional. Particularly, the City argued that the national authorities had interfered withing the local autonomy of the City and that, in any case, such measure should have been decided by Congress. Furthermore, the City challenged the data used as a basis by the national authorities to justify the decision and contended that the measure failed a necessity test. On its part, the national government argued that the measure was a sanitary regulation, established in accordance with the powers vested upon the federal government. The federal government explained that the measures were necessary in light of the dire sanitary situation, which could cause the collapse of the health system. It highlighted a 25% increase in the use of public transportation in the metropolitan area in Buenos Aires due to school related commutes. Additionally, federal authorities highlighted that young people (from 6–29 years old) were the group with the highest increase in contagion. Further, it remarked on the fact that the City had complied with similar previous decisions without arguing the alleged intromission with local competencies.

108.  On the same day, a public defender and a public guardianship advisor of the City of Buenos Aires sued the City’s government on behalf of families of the city before a local court on administrative matters. The plaintiffs claimed the violation of constitutional rights, particularly the right to education. They understood that the local government was failing in its duty to guarantee the right to education. Therefore, they requested the courts to order the local government to defend the autonomy of the City of Buenos Aires and maintain open schools. Additionally, they required DNU 241/2021, which established the closure of schools, to be declared unconstitutional. Prior to deciding on the matter, the Tribunal required the City’s government to answer the plaintiff’s claims. In its memorial, the City government argued that the closure of schools in 2020 had doubled the rates of failed courses, that open schools were not a high-risk factor for contagion, and that in-person schooling was key to guaranteeing the right to education. Considering that, it concluded that it coincided with the arguments of the plaintiff and required the tribunal to decide on the injunctive relief sought. After hearing both arguments, the Tribunal understood that it lacked jurisdiction to hear the case given it concerned a federal decree, and that in any case the matter was already to be decided by the Supreme Court.²³¹

109.  An hour prior to the decision on the lack of jurisdiction being rendered, a new case arguing on very similar grounds was lodged before another local court on administrative matters. The first instance understood it was related to the matter already decided and, therefore, it did not grant the relief sought by the plaintiffs.²³² Nevertheless, the matter was appealed and sent to a second instance to review the decision.

110.  On 18 April 2021, the judges of the Second Instance Court on Administrative Matters of the City of Buenos Aires unanimously decided to grant the injunctive relief requested, ordered the suspension of the DNU and instructed the government of the City of Buenos Aires, within the framework of its autonomy and competences, to provide for the continuity of on-site classes in the territory of the City of Buenos Aires.

111.  The court held that in this case the right to education of children and adolescents and the access to effective judicial protection were seriously compromised, which entails the need to provide the parties and society with a timely decision that responds to their claims. At the same time, it pointed out that since the government of the City of Buenos Aires was the defendant in the case, it was City’s justice system which had jurisdiction to decide on such issues, in accordance with the autonomy enshrined in Article 129 of the National Constitution. In this sense, and from a preliminary analysis of the DNU in question, it observed that the Decree directly violated the autonomy of the City of Buenos Aires and its competence to regulate local matters, such as the right to education. In turn, it referred to several normative provisions that reaffirm the competence of the City of Buenos Aires to regulate educational matters (Articles 5, 75(19), and 125 of the Argentine Constitution²³³ and National Education Law 26,206²³⁴). Therefore, it concluded that the Decree implied an encroachment on local autonomy by the national authority and, consequently, an affectation to the republican system of government. Finally, it argued that the Decree did not express in its foundations specific epidemiological data concerning the City of Buenos Aires that would justify the reasonableness of schools’ closure. Likewise, since the action was aimed at protecting the collective dimension of the right to education, it was appropriate to give its decision a general effect.²³⁵

112.  As a result of this decision, the mayor of the city of Buenos Aires held a press conference on Sunday, 18 April 2021 at 10pm, announcing the continuation of on-site schooling in the territory of the city.

113.  The legal battle went all the way to the Supreme Court. On 4 May 2021, the Supreme Court rendered its judgement in the case first presented by the City of Buenos Aires. The Court held that the autonomy of the City of Buenos Aires had been breached. Although the case did not concern the same matters as those presented on behalf of students, since it was related to the autonomy of the City to decide on the closure of schools without federal intervention, the cases were clearly connected. Therefore, given that the Supreme Court decided in favour of the claims of the City, the local government maintained schools opened.²³⁶

114.  Both national, provincial, and municipal authorities issued recommendations regarding hygiene and social distancing.

115.  Additionally, physical distancing was introduced at the local level, through the protocols required to reopen businesses.²³⁷

116.  With the introduction of the DISPO framework the federal government mandated distancing rules applicable in all jurisdictions affected by this regulation.²³⁸ These rules prescribed a minimum distance of 2 metres between individuals and the use of face coverings in all shared spaces, amongst other hygiene measures.

117.  Jurisdictions governed by different parties implemented mask mandates. The government of the city of Buenos Aires established the mandatory use of masks as of 15 April 2020 through Resolution 15/2020.²³⁹ In the case of Formosa, the measure was adopted on 10 May 2020 by the Council on Integral Attention of the Covid-19 Emergency,²⁴⁰ which was established by Decree 100/2020 of the Governor of Formosa.²⁴¹ Such swift action avoided some of the controversies that arose in other countries and, given that different political parties imposed it, the use of masks did not become politicized.

118.  On 7 June 2020, with the introduction of the DISPO framework, the mask mandate became federally imposed.²⁴²

119.  On 12 March 2020, the federal government decided to impose a mandatory 14-day quarantine period for confirmed Covid-19 cases, suspected Covid-19 cases—comprised of people presenting with a fever and one or more respiratory symptoms (cough, sore throat or respiratory distress) and who also had a history of travel to ‘affected areas’ or had been in contact with confirmed or probable cases—and, finally, people arriving in the country from areas affected by Covid-19.²⁴³ The federal government delegated upon local authorities the implementation of further prevention measures and the follow up of people under quarantine.²⁴⁴

120.  On 29 March 2020, the government of the City of Buenos Aires implemented a series of measures and directives to establish common Covid-19 procedures throughout all health facilities in the City.²⁴⁵ These measures established the isolation of confirmed and suspected cases.²⁴⁶ However, depending on the severity of the symptoms, the patient could be isolated in a hospital or in a non-medical quarantine facility.²⁴⁷ Additionally, the government also implemented a follow-up program with close contacts of confirmed cases in order to detect possible new infections.²⁴⁸ Some updates to the framework were made in light of changing definitions of what constituted a ‘suspected case’. Nevertheless, currently, under the updated protocol²⁴⁹ approved on 4 August 2020,²⁵⁰ suspected cases should remain isolated until they receive a negative Covid-19 test. Currently, patients are still quarantined in hospitals or non-medical facilities depending on whether they have mild, moderate, or severe symptoms.²⁵¹

121.  Moreover, on 21 March 2020, the City of Buenos Aires also implemented a plan to isolate people arriving in the country to avoid possible transmission of Covid-19.²⁵² The isolation included people arriving by plane or vessel from high-risk areas or those who had travelled with a confirmed case.²⁵³ Individuals not showing symptoms were generally transferred to hotels, where they stayed for 14 days and left after obtaining a negative Covid-19 test.²⁵⁴ Additionally, the measures imposed by the City’s authorities stipulated that those arriving from low-risk areas who had not been in close contact with a confirmed case could quarantine themselves for 14 days at home.²⁵⁵ These measures were in place until 1 June 2020.²⁵⁶

122.  In Formosa, through Resolution 2/2020, the Council on Integral Attention of the Covid-19 Emergency created ‘preventive isolation centers’, in which all those returning to the Province had to stay for up to two weeks. Furthermore, the Council set up the ‘Orderly Return Program to the Province of Formosa’ (Programa de ingreso ordenado y administrado de personas a la provincia de Formosa) (ORP). The ORP meant that those who were outside of provincial limits from 16 March 2020 had to ask authorities to allow them to return. Once they had been authorized to do so, they had to quarantine for two weeks in the isolation centers before being allowed to circulate in Formosa.²⁵⁷

123.  The situation led to a number of serious problems and alleged violations of human rights. For instance, on October 2020, Mauro Ledesma, a 23-year-old worker who had asked for a permit to return to the province in August but had received no reply, tried to swim across the river that separates Formosa from the province of Chaco. According to reports, he had a two-year old daughter waiting in his home, which was just a few blocks away from the provincial limit. Mr. Ledesma drowned.²⁵⁸ According to data given by the province of Formosa to the national Supreme Court, the programme had received over 13,000 requests by 31 October, of which around 6000 had been granted and nearly 7500 were pending authorization. The province had 1455 beds available for the quarantine in government quarters and those willing to pay for hotels adapted for those purposes were able to do so.²⁵⁹

124.  On 27 August 2020, Carlos Roberto Lee and Fabrizio Villaggi Nicora, two lawyers from Formosa, presented a collective amparo against the Council on Integral Attention of the Covid-19 Emergency and the Province of Formosa ‘in defense of the rights of all the people of Formosa who are deprived of returning to their respective homes’.²⁶⁰ The suit alleged that locally imposed measures were unconstitutional and violated federally recognised constitutional rights.²⁶¹ The applicants challenged the imposition of a ban on entry into the province that had left many Formosans stranded around the country.²⁶² Additionally, they argued that the entry restrictions were arbitrary and disproportionate since the authorities could implement measures such as testing and isolation to prevent the spread of the virus.²⁶³ The first instance judge decided he did not have jurisdiction to take the case, which should be sent directly to the national Supreme Court.

125.  The case reached the Supreme Court in October 2020. On 29 October, the Court gave the province three days to provide further information on the protocols to enter the province. Once the information was presented, the Court understood the measures implemented by Formosa as unreasonable limitations to citizens’ autonomy. Particularly, in its decision of November 2020, it held that the information provided showed unjustified delays in the process to enter the province.²⁶⁴ The Court highlighted that measures to tackle the pandemic that restricted human rights should be temporarily limited, legally imposed, follow scientific criteria, be reasonable, and strictly necessary and proportionate.²⁶⁵ It ordered the province of Formosa ‘to arbitrate the necessary means in order to guarantee the effective entry into the provincial territory, in compliance with the sanitary measures that it deems pertinent, of all citizens who have requested it, within a maximum period of fifteen business days from this date’.²⁶⁶

126.  In the Ibarrola case, the Supreme Court intervened yet again in a case involving the daughter of a cancer-patient receiving palliative care, who was required to fulfill the requirements of the ORP. The Court invoked its rationale in Lee to grant the plaintiff relief, claiming that the ORP was ‘unreasonable’.²⁶⁷ The Court cited for its rationale Decree 125/2021, which explicitly guaranteed the right of family members to be with their loved ones in the last days of their life.²⁶⁸

127.  In February 2021, the Court once again ruled on the situation in Formosa.²⁶⁹ This time, it intervened in a habeas corpus suit filed by a national senator from Formosa. In his brief, Senator Naidenoff denounced the living conditions at ‘care and isolation centres for mild, asymptomatic and suspected cases’ which were in an indoor stadium and two schools in the city of Formosa. The Senator presented ample evidence and argued that ‘those facilities would not meet the minimum standards of health and hygiene’. He mentioned that in these centres, to which people are taken by force if they fit the definition of a suspected case, the lights are turned on 24 hours a day and people constantly are guarded by police officers, as if they were imprisoned. He stated that there was no ventilation or sufficient distancing, putting people who are not infected with Covid-19 at risk. According to Naidenoff’s suit, even children had been separated from their families and placed in these facilities by force. In response to these claims, the Court cited a series of specific decisions it had rendered throughout the pandemic regarding various measures and reiterated a strong, principled commitment to the system of personal freedoms established by the Constitution. Citing the Inter-American Court and Commission of Human Rights, the Court concluded that ‘even in the emergency scenario prompted by Covid-19 … the measures adopted to face pandemics which entail the regulation of fundamental rights must be temporarily limited, legal, adjusted to the objectives defined according to scientific criteria, reasonable, strictly necessary and proportional’.²⁷⁰

128.  However, the specific order of the Court was less emphatic. It asked the province for more information regarding the situation of these centres, and then ‘urged’ the provincial government ‘about the need to carry out the control and prevention of the spread of the Covid-19 virus in accordance with the constitutional and conventional standards concerning human rights, as well as on the urgent duty that weighs on the courts of justice throughout the country, within the framework of their respective powers, to provide effective protection to people whose rights are threatened or have already been violated’.²⁷¹

129.  Meanwhile, Senator Naidenoff—and, independently, two nongovernmental organizations—also demanded that the Inter-American Commission of Human Rights intervene in relation to the situation of Formosa. The brief noted the violation of human rights in isolation centres and also the forceful removal of babies from parents suspected of being positive for Covid-19.²⁷² In a statement on Twitter, the IACHR referred to the claim and acknowledged its ‘particular concern’ for ‘information on compulsory and involuntary quarantines in Isolation or Health Care Centers (CAS) for an indefinite period in unsanitary and unsafe conditions; bad treatments; and the raid the home of a health professional’.²⁷³ In a different case, also regarding the province of Formosa, the IACHR mentioned ‘information received by the IACHR and its REDESCA on the measures adopted during the COVID-19 pandemic by the authorities of the province of Formosa, which would be disproportionate and could be contrary to inter-American human rights norms and standards’.²⁷⁴ However, the Commission has not yet made a decision on the request for precautionary measures made by Senator Naidenoff and others. The Commission had decided to grant provisional measures concerning the claims of the forceful removal of babies but later revoked the decision considering the lack of evidence to support the allegations.²⁷⁵

130.  On 28 March 2020, the federal government started distributing testing reagents to facilitate and speed up testing throughout the country.²⁷⁶ Nevertheless, at the initial stages of the response to the pandemic, testing was available only to those showing symptoms compatible with Covid-19. People wishing to get tested but not showing any symptoms had to do it privately. Only after the number of cases had risen considerably, the federal government, together with the City and the Province of Buenos Aires, launched the DETECTAr strategy, which actively looked for non-symptomatic Covid cases. The plan meant searching through the most affected neighbourhoods in both the City and the Province of Buenos Aires by interviewing citizens and testing them.

131.  On 29 September 2020, when the virus started to spread to different parts of the country, the federal government launched the Federal DETECTAr program. The program intended to triple the number of tests done outside the main focus of Covid-19 infections that had, up to that point, been the City and the Province of Buenos Aires.

132.  On 29 October 2020, after allowing the entry of tourists from bordering countries, the federal government required those travellers to have a negative PCR test received in the 72 hours prior to entering Argentina.²⁷⁷ This requirement was extended on 1 December 2020 to anyone entering the country.²⁷⁸

133.  Concerning vaccination, on 30 December 2020 the federal Ministry of Health approved its strategic vaccination plan with the objective of achieving a staggered, progressive vaccination of the Argentine population.²⁷⁹ The Ministry explicitly stipulated that vaccination is free and voluntary. The plan establishes a scheme of priorities, with health care workers at the top of the list. Furthermore, the Ministry calls on local jurisdictions to take the necessary measures to distribute, register, monitor, supervise, and evaluate the vaccination. It is worth mentioning that, currently, federal regulators have approved the application of Pfizer,²⁸⁰ Sputnik V,²⁸¹ AstraZeneca,²⁸² and Sinopharm²⁸³ vaccines.

134.  On 12 March 2020, the federal government established that citizens had an obligation to report Covid-19 symptoms to health professionals.²⁸⁴ Furthermore, on 31 March 2020, the Ministry of Health included Covid-19 within a list of diseases that must be notified by health professionals to authorities.²⁸⁵ Additionally, federal authorities launched the DETECTAr strategy,²⁸⁶ as a method to trace Covid-19 patients. As previously mentioned, it was first launched covering the City and the Province of Buenos Aires, the area most affected by Covid-19 in the country. Afterwards, when the virus spread throughout the country, authorities expanded the effort federally.

135.  At the local level, in the City of Buenos Aires, the government implemented a followup contact tracing program in order to detect close contacts and possible new infections.²⁸⁷ Under the program, notification of confirmed or suspected cases is mandatory for health professionals, in accordance with national Law 15,465.²⁸⁸ In turn, the sanctioned protocols for the reopening of activities included recommendations to prevent the spread of the virus. Such protocols did not include the obligation to collect visitors’ personal details.²⁸⁹ However, in some provinces and municipalities the authorities demanded to have a register of personal data of customers including the day and time of stay.²⁹⁰

136.  In the case of Formosa, through Provincial Decree 100/2020,²⁹¹ the provincial government adhered to national Decree 260/2020, which established the obligation to notify authorities of the existence of Covid-19-compatible symptoms. To this end, an official telephone line was set up. In addition, through various protocols created by the Council on Integral Attention of the Covid-19 Emergency, it was made compulsory for commercial premises and restaurants to inform the government in the event of any attendee showing symptoms.²⁹²

137.  Prior to the imposition of the isolation measures, at the local level authorities started to restrict the access of visitors to long-term care facilities or homes for the elderly.

138.  On 9 March 2020, the city of Buenos Aires prohibited visitors to long-term care facilities or homes for the elderly that had arrived in the country in the 14 days prior.²⁹³ On 21 March 2020, the City’s government extended the prohibition and banned all visitors to long-term care facilities or homes for the elderly.²⁹⁴ The prohibition was maintained for more than five months until a protocol²⁹⁵ for visits was approved by the Health Ministry of the City,²⁹⁶ which is still in place.

139.  The first set of measures implemented by the federal government on 12 and 19 March 2020—which expanded the sanitary emergency²⁹⁷ and established the first stay-at-home order²⁹⁸—included a reference to an article of the Criminal Code which foresees jail sentences for those who ‘violate the measures adopted by the competent authorities to prevent the introduction or spread of an epidemic’.²⁹⁹ The reference to this article was later maintained in the successive DNUs issued by the federal Executive.

140.  Additionally, the federal government delegated to the Ministry of Security and local authorities the enforcement of the stay-at-home order.³⁰⁰ Particularly, the Ministry was empowered to establish permanent control checkpoints in roads, highways, public spaces, and different strategic areas to oversee the compliance with the stay-at-home order.³⁰¹ Moreover, the Ministry was also empowered to seize vehicles if it found people breaking the stay-at-home order.³⁰²

141.  In the early days of the pandemic, some cases where people broke the stay-at-home order became national news. Throughout the country thousands of cases were reported, with possible implications for the administration of justice. With thousands of cases filed, federal prosecutors and criminal courts in the country were swamped.³⁰³ For instance, the Federal Appeals Court for the City of Buenos Aires had to review the schedule for the allocation of cases because of the hundreds of cases that were being started.³⁰⁴ Currently, some notorious cases have advanced, and sentences may end up being imposed on some of the people who broke the stay-at-home order.³⁰⁵

142.  In a country with a tragic history of institutional violence, empowering the police to scrutinize the daily activities of people led to significant abuses of power. In November 2020, Human Rights Watch warned that ‘Argentina’s response to Covid-19 has been marred by a violent police response towards people accused of breaking the rules.’³⁰⁶ The National Human Rights Secretary admitted receiving over 500 complaints of police abuse between March and August 2020.³⁰⁷ The tragic case of Facundo Astudillo Castro, who was detained by the police of the province of Buenos Aires for breaching the stay-at-home order and was later found dead, is probably the best-known example of these human rights violations.³⁰⁸

143.  With the relaxation of the measures, the progressive reopening of businesses and introduction of the distancing measures,³⁰⁹ local authorities became the main enforcers of the measures. This led, in turn, to significant disparities in their severity between jurisdictions, depending on the specific decision of each province and municipality. In the case of Formosa, for example, a doctor was put under arrest for not wearing a mask in his car.³¹⁰ In contrast, in the city of Buenos Aires, sanctions for non-compliance with the protocols were mainly of a pecuniary nature.³¹¹

144.  In September 2020, the President admitted on national television that many of the measures still in force were not being complied with. ‘We have not had 160 days of lockdown’, he said, ‘there is no lockdown’, he added.³¹² A few months later, members of the committee of experts acknowledged that the restrictions may have lasted for too long, ‘causing people to develop a tendency to fail to comply with the measures.’³¹³

145.  This generalized assessment of declining de facto compliance with the strict de jure measures is consistent with the data compiled by researchers in the region. Looking at information on lockdowns from 120 countries, Eduardo Levy Yeyati and Luca Sartorio have found ‘a generalized and increasing non-compliance over time, which is significantly higher in emerging and developing economies.’³¹⁴ According to their study, ‘lockdown compliance declines with time, and is lower in countries with stricter quarantines, lower incomes and higher levels of labour precariousness’.³¹⁵

146.  In the specific case of Argentina, an early study by UNICEF, carried out in April 2020, showed that while 75% of people saw that the stay-at-home order was being complied with in their neighbourhood, this number went down to 52% in the case of slums.³¹⁶ In another survey, conducted in July 2020, after four months of ASPO, 88% of people admitted having visited friends or relatives in violation of the measures.³¹⁷ Most people also said that they thought people had complied little or not at all with some stricter measures that had been imposed during those days.³¹⁸

Magdalena Rochi Monagas (Universidad de Buenos Aires)

Nahuel Maisley (Universidad de Buenos Aires/CONICET)

Maricel Asar (Universidad de Buenos Aires)

Roberto Gargarella (Universidad de Buenos Aires/CONICET)

Ramiro Álvarez Ugarte (Universidad de Buenos Aires)