1.  Brazil is a presidential federal republic of approximately 210 million inhabitants, divided into a federal union (União), a federal district (Distrito Federal), 26 states (estados), and 5.570 municipalities (municípios), all autonomous (Brazilian Federal Constitution of 1988, Article 18). The federal, state, and municipal executives are headed respectively by a president, governors, and mayors, all directly elected by the population every four years with the right of running for re-election once. In each of these federative units there is a legislature, also directly elected by the population every four years. The federal legislature (Congresso Nacional) is bicameral, composed of a lower chamber (Câmara dos Deputados) with 513 members and a Senate (Senado Nacional) with 81 members, three representing each state and another three representing the federal district. State and municipal legislatures are unicameral. There are also federal and state courts with the power to invalidate legislation and administrative acts that do not conform with the constitution or the laws and a high level of judicialization.

2.  The Constitution allocates legislative competences among all federative units and between the executive and the legislature. As well as areas of exclusive legislative competences of the federal union (Article 22), the Constitution also establishes a long list of concurrent legislative competences of the federal union, the federal district, and states (Articles 23 and 24), eg education and health. These concurrent competences are not as well harmonized as would be desirable, leading to uncertainties and conflict about whose responsibility and power it is to deal with certain issues. Article 23, II of the Constitution establishes that ‘to care for health and public assistance’ is a ‘common competence’ of all spheres of government. Article 24, XII of the Constitution establishes that ‘social providence, the protection and defence of health’ is a concurrent legislative competence of the federal union and the states. After a dispute between the federal government, states, and municipalities at the beginning of the Covid-19 pandemic, the Supreme Federal Tribunal (Supremo Tribunal Federal) (STF) decided that all federative units had the concurrent competence to adopt measures to address the health crisis (see Part IV below).

3.  Article 21, XVIII of the Constitution ascribes to the federal union the responsibility to ‘plan and promote the permanent defence against public calamities, especially droughts and floods.’ Public health is not expressly mentioned. In another section of the Constitution (Title V), Articles 136 and 137 confer on the President the power to decree, with approval from Congress, a state of defence (estado de defesa) or a state of siege (estado de sítio), with significant further coercive powers to restrict rights, in cases of threat to the ‘public order and social peace caused by grave and imminent institutional instability … or natural calamities of great proportion.’ Again, public health is not mentioned expressly.

4.  So far, no such declaration has been issued by the President. The health crisis has been dealt with within the regular framework of infra-constitutional laws, federal, state, and municipal, and no constitutional rights or guarantees have been suspended, nor any international treaties derogated from. The only constitutional right that the government has tried to limit at the beginning of the pandemic was the right of access to information, but this was suspended by the Supreme Federal Tribunal.¹ There was also an attempt, by a political party aligned with the government (Partido Progressista) (PP), to reduce Parliament’s ability to scrutinize executive provisional measures during the health emergency, but the STF again rejected it (see Part IV below).² No international law provision was derogated from.

5.  No constitutional declaration of a state of emergency (state of defence and state of siege) has been issued in Brazil to deal with the pandemic to date. A state of defence can be declared by the President for the ‘preservation or prompt reestablishment of public order or social peace, within limited geographical areas, in cases of grave and imminent threat of institutional instability or in case of great environmental calamities’ (Article 136 of the Constitution). The corresponding presidential decree has to specify in detail its duration, geographic scope, and coercive measures imposed such as restrictions to rights of assembly and to confidentiality of correspondence (Article 136 of the Constitution). No other right can be suspended, and any arrests and detentions have to be brought immediately before a judge and not last beyond 10 days without judicial approval (Article 136(3) of the Constitution). A state of siege can be declared by the President in cases of ‘grave commotion of national repercussion or occurrence of facts that demonstrate the inefficacy of measures adopted during a state of defence’ (Article 137, I of the Constitution) or ‘declaration of a state of war or response to foreign armed aggression’ (Article 137, II of the Constitution). Similarly to the state of defence, the decree has to specify its duration and all specific measures adopted, including the suspension of constitutional guarantees (Article 138 of the Constitution). More rights can be suspended during a state of siege than during a state of defence, including freedom of movement, freedom of the press, and the inviolability of home (Article 139 of the Constitution). No suspension of the activities of Congress, nor censorship of the pronouncements of its members is allowed (Article 139 of the Constitution).

6.  A Public Health Emergency of National Importance (Emergência em Saúde Pública de Importância Nacional) (‘ESPIN’), was declared by the health secretary via Ordinance 188 of 3 February 2020, which implements Executive Decree 7.616 (17 November 2011). Decree 7.616 sets out in significant detail what the health secretary ought to do in cases of public health emergencies, limiting considerably the scope of that power-duty. There must be a need for ‘urgent measures of prevention, control and limitation of risks, damages and hazards to public health’ (Article 2 of Executive Decree 7.616).

7.  Ordinance 188 makes express reference to the World Health Organization (WHO) declaration of a public health emergency of international importance (‘PHEIC’) three days earlier. A Centre for Emergency Operations in Health (Centro de Operações de Emergências em Saúde Pública) (‘COE’) was set up to manage a coordinated national response to the crisis.³ Ordinance 188 also established the possibility of the COE to recommend, if the need was justified, the temporary hiring of additional health professionals, the acquisition of additional equipment and hiring of services, and the requisition of private goods and services (Article 3 of Ordinance 188).

8.  Three days after Ordinance 188 of 3 February 2020 was issued, a more elaborate and detailed statute sailed through the Brazilian Congress in less than 48 hours: Federal Law 13.979 of 6 February 2020 (‘Quarantine Act’). As Brazil is a federal state and health is a concurrent responsibility of all levels of government (federal, state, and municipal), the Quarantine Act simply established the basic legal framework, in accordance with Article 24 of the Constitution, for the future adoption of necessary measures by each of these governmental entities as required.

9.  Within another six weeks, all of Brazil’s 26 states and the federal district (Brasília) had adopted executive orders and legislation, often declaring a temporary state of public emergency or calamity and adopting comprehensive social distancing measures such as the closure of schools, shops, beaches and parks, restrictions on public transport, and the recommendation that people stay at home. At the time of writing, there were 1,838 federal normative acts, 2,195 state and almost 45,083 municipal normative acts issued to address the Covid-19 crisis in Brazil (see Part IV below for details). ⁴ It is expressly established in the Federal Law 13.979 of 6 February 2020 (‘Quarantine Act’) that its validity will expire when the WHO’s PHEIC is revoked.

10.  As the speedy approval in Congress of the Quarantine Act testifies, there was little political opposition to it, although important amendments were added at the Chamber of Deputies (the lower house of Congress). These amendments included: a sunset provision conditioning its effects to the continuation of the WHO declaration of a PHEIC (Article 1(3) of the Quarantine Act); an express guarantee of respect for dignity, and human rights and liberties in the implementation of quarantine laws (Article 3(2), III of the Quarantine Act); a weakening of the responsibility of individuals to supply information to public authorities, replacing the word ‘duty’ with ‘collaboration’ and deleting from the Bill the obligation to ‘report to authorities symptoms of Covid-19’ (Article 5 of the Quarantine Act); and a strengthening of the duty of the state to keep ‘public and updated information on case numbers, confirmed, suspected and under investigation, on the sanitary crisis’ (Article 6(2) of the Quarantine Act). But once state governors and municipality mayors started to implement quarantine measures based on the Quarantine Act, via executive decrees, the President himself fiercely opposed them, leading to a legal battle at the Supreme Federal Tribunal that ended up in favour of states and municipalities (see Part I above). Interestingly, thus, a ‘power grab’ by the executive, especially at the federal level, has not been an issue in Brazil, but rather the omission of and objection to public health measures by the President against efforts of governors and mayors (see Part IV below).

11.  The large territorial extension of Brazil and its federative system leads to a complex regulatory situation in the health crisis. State governors have by and large the main powers to adopt measures by state executive decree, which have to be renewed from time to time and follow the framework of the Quarantine Act,⁵ as interpreted by the Supreme Federal Tribunal. But the federal legislature can also take the initiative of legislation and have done so with laws to impose the use of masks and to establish a system of protection for vulnerable groups (indigenous people, black communities). The federal government retains concurrent competence to issue executive decrees but, as already mentioned, has not used this power often, and has the exclusive competence to issue ministerial ordinances regarding international and interstate travel, vaccination, isolation, and quarantine. Municipalities’ mayors can also adopt more local measures in harmony with state regulations.

12.  Any of these multiple measures can be, and have been, challenged in courts, which simply fits the culture of intense judicialization that has been occurring in Brazil in all areas in the past two decades. At the time of writing, the Supreme Federal Tribunal reported the existence of 5,240 cases related to Covid-19 in its docket.⁶

13.  Most of the measures in Brazil have been adopted through binding regulation, such as ordinary legislation, executive (federal, state, and municipal) decrees, and ordinances, which impose civil, administrative, and criminal liability on individuals. A joint Ordinance by the health and justice secretaries established that non-compliance with public health measures would attract civil, administrative, and criminal liability, in particular the sanctions of Articles 268 and 330 of the Criminal Code, which punish the propagation of contagious diseases and non-compliance with legal orders of public officials respectively.⁷ Enforcement has been attributed to medical doctors, health authorities, and the police. According to Article 4 of Interministerial Ordinance n. 5, non-compliance with public health measures may attract the sanctions of Articles 268 and 330 of the Criminal Code, if the infraction does not constitute a more serious crime. There has also been non-binding guidance conveyed in documents of the Health Ministry and also inserted in binding instruments, for instance, in Amazonas (one of the two states highlighted in Part IV below) the governor decreed the compulsory closure of state schools but only recommended the closure of private ones in the same instrument.⁸ In Sao Paulo, there has never been a binding imposition of movement restrictions on the population, but only a recommendation that people stay at home and leave only to satisfy basic necessities such as the purchase of food and medical care.⁹

14.  Article 49, X of the Constitution establishes that one of the exclusive competencies of the National Congress is to ‘oversee and control, directly or through one of the houses, the acts of the Executive Power, included those of the indirect administration’. Other articles of the 1988 Constitution specify further how this control can be performed, eg through the summoning of ministers and other authorities to give explanations, whose disobedience is considered a crime of responsibility (Article 50) and the establishment of parliamentary inquiry commissions (Comissões Parlamentares de Inquérito) (‘CPIs’), (Article 58(3) of the Constitution). This power extends to the scrutiny of states and municipalities, public authorities in general, and also private entities and individuals whenever resources are transferred to them from the federal level, which takes place regularly.¹⁰ The federal legislature also has the competence to scrutinize and approve or reject the executive’s accounts (Articles 70–75 and 84, XXIV of the Constitution), with the assistance of the Federal Audit Tribunal (Tribunal de Contas da União).¹¹ As Brazil adopts a presidential regime (see Part I above), the legislature has no power to bring a government down through a vote of no confidence, but it can use the procedure of impeachment (Article 85 of the Constitution) and has done so twice already in the relatively short period of just over three decades of the current Constitution. Although supposed to be an exceptional and difficult to implement measure, conditioned on the existence of ‘high crimes’ (crimes de responsabilidade), two out of the five presidents elected after the 1988 Constitution have been removed through impeachment. At the sub-national level, identical or very similar roles are attributed to states and municipalities’ legislatures. This is established both generically, in the Federal Constitution (Article 31 for municipalities) and in more detail in state constitutions and organic laws of municipalities.¹²

15.  As regards control of more specific executive normative acts such as decrees and regulations, the situation is complex and depends on the type of normative act in question. The federal executive has the power to issue different types of normative acts. Perhaps the most important is the power to enact so-called provisional measures (medidas provisorias) (‘MPs’). These are general norms with the force of legislation and immediate effect that the President can enact in cases of ‘relevance and urgency’ (Article 62 of the Constitution). MPs are valid for 60 days, automatically extendable by an equal period, after which they lapse if not confirmed or rejected by Congress. As the agenda of Congress is automatically blocked if it doesn’t accept or reject MPs after 45 days of their enactment, it is a powerful and often abused instrument in the hands of the Brazilian executive. Congress can, and often does, reject fully or partially MPs, yet its business can be significantly disrupted by them. See in Part I above the dispute about the processing of MPs during the health crisis decided by the STF as an example.

16.  As well as MPs, the executive has the power to issue, in very specific and exceptional cases, delegated legislation (leis delegadas) (Article 68 of the Constitution) and also, much more frequently, decrees (decretos) and regulations (regulamentos) to enable the implementation of the laws enacted by Congress (Article 84, IV of the Constitution). These executive normative acts must follow the limits imposed by the Constitution and ordinary legislation, and are subject to judicial review in the courts. They are also subject to nullification by the legislature (the so-called ‘political control’) through legislative decrees (decretos legislativos) (Article 49 V of the Constitution).¹³ However, the term ‘nullification’ may be a little too strong. The Portuguese term used in the constitution is ‘sustar’, which may be understood as simply ‘suspend’ rather than ‘make void’. Some claim there are limits on this legislative power: (i) it can only be used to control strict illegality (contra legem, extra legem, or ultra legem) and not unconstitutionality; (ii) it only applies to normative acts that implement legislation and not to decrees in areas entrusted to the executive (so-called ‘regulamentos autônomos’) as specified in Article 84, VI of the Constitution; and (iii) it can only be used against acts of the President, and not ministers.¹⁴ The use of Article 49, V powers by Congress has not been frequent, unlike resort to the courts which has all but exploded in the past two decades including during the pandemic. So far, although many members of Congress have initiated legislative decrees’ bills proposing the suspension of several executive acts related to the coronavirus crisis, none has yet been voted on, let alone approved, in Congress. At the state and municipal levels, local legislatures have similar powers.

17.  Last but not least, and especially relevant in the case of pandemics and other crises, the legislative branches of each federal unit have the prerogative of approving declarations of a state of public calamity (estado de calamidade pública) by the executive, which confers on the latter the ability to spend resources, on an emergency basis, beyond those approved in the budget.¹⁵

18.  On paper at least, the executive at all levels of the federation is subject to a reasonably high degree of scrutiny by the legislature. In reality, however, whether and how this scrutiny is exercised depends, of course, on the willingness of the particular legislature in question, which, in turn, depends on a host of factors among which the most relevant is perhaps the party-political makeup of the legislature. A city mayor, state governor, or President whose party or coalition has a majority in the legislature will likely face less scrutiny than one without it.

19.  In the specific case of the Covid-19 crisis, the legislative branches (at national and subnational levels) across the country exercised variable degrees of oversight over normative acts of the executive, as would be expected in such a large and diverse federation.

20.  At the federal level, there was a reasonable degree of scrutiny through the debate and amendment of MPs and bills proposed by the federal executive and the independent initiation of bills by legislators which set the legal limits for the enactment of executive decrees and regulations. As we saw in Part II above, the Quarantine Act received several amendments in Congress and the imposition of the use of masks came from Congress against the wishes of the Executive (see Part IV.A.6 below). As regards scrutiny of more specific pandemic response measures enacted through decrees and regulations, it also varied across the country. A good example here is a decree issued by the President including in the list of essential services, ie activities that could remain open, barber and beauty shops and gyms (Decree 10.344 of 11 May 2020). In Congress, a legislative decree bill (PDL 213/2020) was initiated to make that executive decree void but remains pending. In the meantime, however, a large number of state governors simply rejected to implement the decree based on a decision of the Supreme Court confirming their competence to adopt more restrictive measures than those proposed by the federal executive.¹⁶

21.  At the state and municipal levels, there has also been scrutiny by local legislatures, though with significant variation across the country. The state and municipal legislatures of São Paulo, for instance, both passed laws with measures to combat coronavirus, enacted legislative decrees recognising a ‘state of public calamity’, and created Covid-19 working groups to oversee the performance of the executive branch.¹⁷ How well they exercised this scrutiny function is of course debatable.

22.  At least one governor and one mayor of an important capital have had impeachment procedures started due to acts related to the health crisis. In Rio de Janeiro, governor Wilson Witzel has been accused of misappropriating funds through emergency purchases for acquisition of medical equipment; in Porto Alegre, mayor Nelson Marchezan has been accused of diverting resources from the health fund to combat Covid-19 to spend on the marketing of his government.¹⁸

23.  Last but not least, the executives at all levels cannot extend indefinitely, and without legislative approval, their powers to address the health crisis through decrees and regulations. As already mentioned, these powers derive from legislation that recognises the existence of a health emergency and a state of public calamity. This legislation has expiry dates and can be curtailed or extended at any time by the legislature.

24.  The legislature has been able to meet during the period of pandemic disruption. The Congress was never closed, but debating and voting procedures have been virtual for six months and are currently ‘semi-presential’. There has been no interruption in the work of the legislature, whether in the form of ‘suspension’, ‘recess’, ‘adjustment period’, or ‘extension’. On the contrary, the usual two-week recess in July 2020 was cancelled, due to the urgency of some Covid-19-related legislation.

25.  The two Houses—the Senate and Chamber of Deputies—and their respective committees were able to maintain their agenda with virtual meetings, which involves the passage of legislation and parliamentary committee meetings. There were no abnormal constraints on the process of voting, on the number of persons permitted to participate in plenary debates, or on the process for posing questions and offering rejoinders to answers. The measures to adapt the sessions to virtual meetings affected the parties that support the government and the opposition parties in the same way.

26.  Similar adjustments were made at the state and municipal levels across the country with similar effects.

27.  The operation of the courts was not interrupted during the pandemic, yet wide-ranging measures were taken to minimise the perceived health risk that being in the courtrooms entailed and those may have affected access to justice. Resolution 313 (19 March 2020) of the Brazilian National Council of Justice (Conselho Nacional de Justiça) put all courts around the country on an Extraordinary On-call Regimen (Plantão Extraordinário) during which courts ‘essential services’ would continue yet no presential work by judges, clerks, trainees, and collaborators would take place (Article 2). The same resolution sets a list of minimum services that ought to remain open and directs each tribunal to determine how to organise them, preferentially in remote form. It also determines that individuals with high risk and those returning from places with a high prevalence of Covid-19 should not be required to work presentially, even in essential services. The resolution also sets a list of cases that should be decided during the on-call period, such as habeas corpus, interim injunctions, urgent issues related to prison orders, search and seizure, cremation of bodies, and authorization of travel (Article 4), and suspends all deadlines (Article 5). It was also left to each tribunal to institute and regulate remote work and virtual sessions (Article 6).

28.  Virtual sessions have been held both in the higher courts’ sessions and in first-instance hearings (both civil and criminal proceedings), and were regulated by Resolution 329 (30 July 2020), of the National Council of Justice. In general, petitioning was already fully digital in all Brazilian courts, being mandatory in higher courts.

29.  The use of advanced technology certainly poses challenges in terms of access to justice, especially in highly unequal countries like Brazil. Whether it enhances significantly the current obstacles such as lack of education, resources, access to legal counsel, etc is an interesting question. Article 3(1) of Resolution 329 establishes that virtual hearings will not take place if any of the parties involved declare a ‘technical or instrumental impossibility’ of participation. Some complaints have been made against virtual hearings, especially in criminal proceedings, as being harmful to the right to a fair trial. In civil proceedings more than 90% of cases are decided without a hearing based on documentary evidence and those few that require a hearing are often not urgent, so many judges have decided to wait for the reopening of courts rather than use virtual hearings.¹⁹ The Brazilian Bar Association (Ordem dos Advogados do Brasil) petitioned the National Council of Justice requiring that virtual hearings be made voluntary only, so long as all parties agreed.²⁰ The issue remains controversial and has been the subject of litigation across the country.

30.  Brazilian courts do have review powers over declarations of states of emergency and exception, yet only when provoked by a claimant. As seen in Part II above, there has been no constitutional state of emergency declared in Brazil. As regards declarations of a health emergency and of states of public calamity, there have been no court challenges to those, although, as we will see in Part IV below, there has been rampant judicialization related to the specific measures adopted to fight the pandemic.

31.  The only elections so far impacted by the pandemic were those for mayors and local legislators, which take place in all 5,570 municipalities of the country on the same day, every four years. These elections were originally scheduled for 4 October 2020 and were postponed by Constitutional Amendment n. 107 (2 July 2020) to 15 November 2020. The elections took place following a health protocol (Health Safety Plan) issued by the Brazilian Superior Electoral Court, but had a record rate of abstentions, attributed to the fear of the virus.²¹ Some have argued that the elections have caused a rise in the number of infections and deaths, including those of candidates, some of whom became infected during the campaign and died.²²

32.  There is an express requirement in the Quarantine Act (Federal Law 13.979/2020) that all measures adopted to combat the pandemic ‘can only be implemented based on scientific evidence and on analysis of strategic information’ (Article 3(1)) The level of compliance with such obligation is, however, debatable and difficult to measure. At the federal level, the main provider of scientific information to the executive is normally the Ministry of Health. The dismissal and resignation of two health secretaries during the pandemic due to disagreements with the President shows how controversial the topic can be and how the executive has ample scope to decide whether to follow scientific advice or not. At the state and municipal levels, governors and mayors have set up scientific committees to aid in their responses to Covid-19, yet, again, the independence and power of such committees are very limited and their influence on policy is debatable.²³

33.  The government sought to suspend the deadlines for answering access to information requests during the health crisis through amendments to the Access to Information Law (Federal Law 12.527, of 18 November 2011) via a provisional measure (MP 928 of 23 March 2020). The MP received 51 amendment proposals in the lower chamber of Congress, but simply lapsed without further deliberation on 20 July 2020. The MP has not produced any effects as during this period its effects had been suspended by the Supreme Federal Tribunal by interim injunctions in three constitutionality challenges brought by political parties and the Brazilian Bar Association (ADI 6.347, ADI 6.351, ADI 6.353).

34.  There has been no direct and frontal generalised attempt by the government to obstruct reporting on Covid-19 by the media, but some measures and incidents have made reporting more difficult. More noteworthy has been the botched attempt by the federal government to exclude from its official webpage the accumulated number of deaths, in early June 2020, which made Brazil disappear from the renowned Johns Hopkins University world database for a few hours.²⁴ The attempt failed as states and press vehicles immediately started to divulge the numbers on alternative webpages and the domestic and international outcry was so strong that the government backtracked. There was also a court challenge and an interim injunction at the Supreme Federal Tribunal ordering the state to resume publication of data according to the original methodology (ADPF 690). Also concerning was the discovery that the mayor of Rio de Janeiro was financing disruptions of TV live broadcasts outside municipal hospitals by ‘passers-by’.²⁵

35.  There is a mosaic of numerous oversight bodies in Brazil with different names, remits, composition criteria, institutional locations, and independence levels, being simply impossible to describe and analyse the individual work of any of them during the pandemic.²⁶ Judged simply by what is publicised in the press, one is led to think that they have not played a key role in the pandemic, but this could be a false impression due to the traditional focus of the press on the legislatures and courts. A notable exception is the Federal Accounts Tribunal (Tribunal de Contas da União) (TCU), an independent oversight body whose remit is to aid Parliament in the so-called external control of the executive, ie in the scrutiny of its accounts. The TCU adopted a Special Plan to Monitor Actions to Combat Covid 19 and has already issued two critical reports, highlighting the lack of ‘strategic planning’ and ‘coordinated management and communication’ on the part of the federal government.²⁷ Similar initiatives can be found at state and municipal levels.

36.  No special reviewer of legislation has been appointed to monitor the response to Covid-19 in Brazil.

37.  As seen in Part II above, the federal government of Brazil reacted swiftly to the pandemic in terms of normative activity. A health emergency was declared on 3 March 2020, ie within 72 hours of the declaration of a PHEIC by the WHO, three weeks before the first confirmed case of Covid-19 arrived in Brazilian territory (imported from Italy), and six weeks before the first death, which occurred in the state of São Paulo. A framework Quarantine Act (Federal Law 13.979 of 6 February 2020) sailed through the Congress in less than 48 hours, setting out what health authorities of all levels of the Brazilian federation (federal, state, and municipal) could do to address the impending health crisis.

38.  Within six weeks of the Quarantine Act, all of Brazil’s 26 states plus the federal district (Brasília) had adopted executive orders and legislation, often declaring a state of public emergency and/or state of calamity (see Part II above) and adopting public health measures to try to tackle the health crisis. At the time of writing, there were 2,195 state and almost 45,083 municipal normative acts issued to address the crisis in Brazil.²⁸ Notwithstanding this regulatory effort, Brazil has experienced one of the highest levels of reported infections (13.2 million cases) and one of the highest numbers of reported deaths (345,000) in the world according to official, and likely underreported, figures.²⁹

39.  Article 3 of the Quarantine Act is the crucial provision in that regard and worth quoting in full:

40.  Several provisions in the Quarantine Act allocate, not always very clearly, competence among authorities to adopt the measures listed in its Article 3. Previous authorization of the Health Secretary is required for the imposition of isolation and quarantine (see Part IV.A.7 below), compulsory use of masks (Article 3, III-A of the Quarantine Act), exhumation, necropsy, cremation, and corpse manipulation (V); exceptional and temporary restriction, by road, ports or airports (VI). As regards determination of medical exams; lab tests; the collection of clinical samples; vaccination and other prophylactic measures, and specific medical treatment (III); epidemiological studies or investigations (IV); and requisition of assets and services (VII), local administrators are free to adopt those measures autonomously. To complicate matters, Article 4 of Ordinance 356 (11 March 2020), allocates to all spheres of government, concurrently, the power to adopt ‘quarantine’, defined broadly as aiming to ‘guarantee the maintenance of health services’.

41.  This complex web of measures and overlapping responsibilities generated significant political conflict between the federal level, in particular the President, and many states and municipalities. The President has been fiercely against any public health measures to combat the pandemic (eg mobility restrictions, closure of premises, etc) and has repeatedly denied the gravity of the crisis, most notably dismissing Covid-19 as a ‘little flu’ in an official national broadcast, urging people not to stay at home, and appearing in public repeatedly in the middle of crowds of supporters without a mask and shaking hands.³² He has also dismissed the health secretary who devised the initial response to the pandemic for being in favour of social distancing measures, and is thought to have practically forced the second one to resign for being against the President’s request that unproven drug Chloroquine be used in the public system, a request that his new (third) Minister of Health, a military official with no experience in health, Eduardo Pazuello, immediately complied with.³³ After 10 months in the post, Pazuello too was dismissed and is currently the subject of an investigation to determine his liability for the dire situation Brazil currently faces with record infections and deaths, and in particular for the oxygen shortages that led to many deaths in the state of Amazonas.³⁴

42.  The conflicts between the President and states and municipalities were inevitably judicialized and reached the Supreme Federal Tribunal in three separate proceedings. In all of them, the Court confirmed the concurrent competence of states and municipalities to adopt and keep public health measures in place to combat the pandemic.³⁵ After the decision in the first two proceedings, the President retreated from his threat to attempt to revoke, via presidential decree, the measures adopted by states and municipalities, but continued to consistently deny the relevance of the pandemic, to breach public health rules himself, such as social distancing and the use of masks, and to use his decree and veto powers whenever possible to try and undermine public health efforts of the federal legislative and states and municipal executives.³⁶ Most of these vetoes have been overturned by Congress and/or the Supreme Court.

43.  As a result of the opposition of the Brazilian president to public health measures to combat Covid-19 and the federalist structure of the Brazilian state (see Parts II and III above), most of the public health measures adopted in Brazil have been taken at the state and municipal levels, with some important exceptions indicated below.

44.  To fully understand the response to Covid-19 across the whole Brazilian territory it would be necessary to analyse all of the responses of each individual political-administrative unit of the federation, ie the Federal Union, the federal district, 26 states, and 5,570 municipalities, which is not feasible in the limited space of this report. This report will thus focus on two representative states, São Paulo and Amazonas, and refer to the Federal Union, other states, and municipalities only occasionally, if relevant.

45.  The state of São Paulo is the most populous (46 million) and the richest of Brazil in GDP terms (second in GDP per capita). Covid-19 was first detected there on 26 February 2020, with the first death on 17 March 2020, and has grown to become the state with the highest number of infections (2,597,366) and deaths (80,742), reaching a mortality rate of 175.8/100,000, one of the highest in the world. The governor of Sao Paulo decreed a ‘quarantine’ in late March 2020 (State Decree 64.881 of 22 March 2020 (‘Quarantine Decree’)), ordering the closure of non-essential activities, including schools and suspending public events, but not imposing strict mobility restrictions (ie ‘lockdown’). These measures were to last originally until 7 April 2020 but were extended several times through executive decrees and were still in place at the time of writing, with some variations reported in detail below. On 15 June 2020, State Decree 64.994 of 28 May 2020 created the São Paulo Plan to coordinate the state and municipalities in the fight against Covid-19, and manage the flexibilization of quarantine measures according to four phases (red, orange, yellow, and green), attributing to municipalities with sufficient capacity the competence to gradually reopen non-essential services.

46.  It is not helpful to talk of waves of infection and deaths in São Paulo as is common in Europe, for instance, as in São Paulo cases and deaths have never brought down significantly, ie anywhere close to zero, since the beginning of the pandemic, apart from a very brief period of a few days in the beginning of November 2020, when things started to worsen significantly and achieved the worst peak, with over 1,000 deaths per day in late March and early April 2021.

47.  Critics have observed a lack of consistency in public health measures and the gravity of the crisis. Already on 1 June 2020, a flexibilization plan was put in place, allowing municipalities to enable non-essential activities to reopen according to pre-established public health criteria related to the occupation rate of Covid-19 intensive care unit (ICU) beds, the number of new admissions of infected patients, and the number of infections and deaths, all supposedly based on scientific evidence. This so-called São Paulo Plan operated according to a five phase spectrum of seriousness, ranging from ‘maximum alert’ (red), passing through ‘control’ (orange), ‘flexibilization’ (yellow), ‘partial opening’ (green), and ‘normal controlled’ (blue).

48.  The Plan was heavily criticised by academics and public health experts for being implemented to soon, and in particular for being implemented without an efficient testing strategy, and even the Secretary of State for Health criticised mayors for reopening non-essential activities without supporting data.³⁷

49.  On 3 March 2021, with the significant worsening of infections and deaths and the fast depletion of the capacity of the health service, all 645 municipalities of the state were put under the most restrictive, red phase of the plan from 6 March 2021 for two weeks.³⁸ With a further worsening of the situation, the state governor decided to add another, more restrictive phase to the Plan on 11 March 2021,³⁹ the ‘emergency phase’, which the whole state was placed under on 15 March 2021, which lasted till 11 April 2021, when the whole state moved back to the red phase.⁴⁰

50.  The State of Amazonas has the largest territorial area in Brazil (1,559,167,889 km² in 2019), and an estimated population of 4,207,714 people (in 2020), with the second lowest demographic density in the country (2.23 inhabitants per square metre).⁴¹ Its territory is home to an important part of the Amazon—Amazon means the vast complex of ecosystems located in the hydrographic basin of the Amazon River, which has a total surface area of just over 7 million km² (that is, approximately 40% of the South American continent)—the largest tropical forest in the world. The arrival of the pandemic coincides with the worsening of chronic problems in the region, such as the invasion of protected lands, the increase in illegal logging, and the deforestation of forest areas to create space for agribusiness,⁴² in addition to what some argue is the genocide of indigenous populations (see Part VI below).

51.  The response to Covid-19 in the State of Amazonas is considered one of the most disastrous in Brazil, with 355,987 confirmed cases and 12,202 deaths at the time of writing, and a mortality rate that is a staggering 294.4 deaths/100,000,⁴³ the highest in Brazil and higher than the any country in the world.⁴⁴ Epidemiological studies unequivocally reveal the high excess mortality in Manaus and the epidemic’s severity in contexts of great social inequality, weak effectiveness of public policies, and fragility of health services.⁴⁵

52.  Amazonas was the first Brazilian state to suffer the collapse of its health system.⁴⁶ In the absence of care, at the height of the pandemic in Manaus, 30% of deaths occurred at home or on the street.⁴⁷ The scarcity of ICU beds (7 per 100,000 inhabitants, one of the worst rates in Brazil)⁴⁸ is compounded by the fact that they are concentrated in the capital, Manaus, forcing the State to transfer patients from the interior to the capital in aerial ICUs.⁴⁹ In many cases this transfer was determined by court decisions.⁵⁰ There was also a collapse of the funerary system in several cities, including Manaus.⁵¹

53.  In Amazonas—mostly Manaus, the capital city, where most of the population live and most Covid-19 cases concentrate—unlike in São Paulo, it is perhaps more appropriate to talk in terms of waves, with a first peak happening in May 2020 and the second one, much more severe, in January 2021, resulting in significantly more deaths and an even worse collapse of the health system, this time with horrific scenes of patients dying of asphyxia due to the severe shortages of oxygen in the hospitals.⁵² What puzzled most experts was the fact that studies had shown that Manaus had achieved herd immunity with more than 70% of the population having been infected, but it was later discovered that a new variant, the P1 variant, was likely the main cause of the new surge.⁵³

54.  At the time of writing, no mobility restrictions had been imposed on the whole territory of Brazil at the same time, despite many calls from public health experts and some local politicians. This would have been legally possible according to the Quarantine Act (Article 3) but would have required a federal order, either by the President or by his Health Secretary, which was never forthcoming.

55.  As we saw in the introduction to Part III, the first Health Secretary was dismissed from office in April 2020 for being in favour of more restrictive measures than the President, and the second for disagreeing with the President about the prescription of the drug hydroxychloroquine. The following (so far) two health secretaries are widely regarded as having been carefully chosen for their alignment with the views of the President, or their willingness to simply obey them.⁵⁴ The current Health Secretary, Marcelo Queiroga, has expressly stated that the ‘[health] policy is that of Bolsonaro, not the Health Secretary’s’, and that the Secretary ‘executes the government’s policy’.⁵⁵ Some thought that the President would change course when he invited doctor Ludhmila Hajjar to be the Health Secretary in March 2021, but she alleges to have declined the invitation precisely because of divergences with the President’s views on the topic.⁵⁶

56.  Also in March 2020, when Brazil surpassed 250,000 deaths and the health system collapsed in some states (most notably in Amazonas) and approached collapse almost everywhere, all Health Secretaries published a letter emphasising that the lack of a ‘unified and coherent national leadership made the adoption and implementation of measures to reduce social interaction more difficult’, aggravating the crisis. They also mention that the suspension of the emergency grant in late January 2021 aggravated both the health and the social crisis.⁵⁷

57.  Mobility restrictions were therefore imposed only at the state and municipal levels and were highly variable across Brazil. As a general rule, during the whole of 2020, they were not very strict with the exception of a few municipalities and a couple of states, did not last very long in the few places where they were imposed, and were often resisted and not adhered to by significant parts of the population. Some states and municipalities adopted, for some period, stricter prohibitions of circulation, including the closure of public spaces such as parks, squares, beaches, the erection of barriers and checkpoints in roads, and the imposition of fines to those caught breaching the rules (see Part IV.2 and IV.4 below). Amapá was the first, and one of the few states, to adopt such measures in all municipalities. The state of Pará also adopted ‘lockdown’ measures in the Capital, Belém, and a few other municipalities. The cities of São Luis (MA) and Recife (PE) also adopted stricter ‘lockdowns’.⁵⁸

58.  With the significant worsening of the situation in 2021, especially after the calamitous scenario of Manaus (Amazonas), stay-at-home and curfew measures became more widespread, but still fiercely resisted. By 14 March 2021, 15 of the 27 states had imposed curfews (toque de recolher) between 8–10pm and 5–6am. By 18 March 2021, another three states had imposed such measures.⁵⁹ Yet, as far as we were able to establish, strict enforcement of these measures is not the norm and no restrictions on visitors or the number of people able to meet inside households have been imposed with the exception of a few municipalities. In gated residential compounds (condomínios), very common in Brazil, residents’ councils have themselves imposed some restrictions on the use of communal barbecue and leisure areas. In one municipality in the south region of Brazil, Criciúma, a municipal decree forbade private parties and events in individuals’ homes and imposed fines.⁶⁰

59.  For the whole first year of the pandemic circulation was never legally forbidden in Sao Paulo. Rather, a non-binding recommendation was made on 22 March 2020 that individuals should only leave home for ‘immediate necessity of nourishment, healthcare and exercise of essential activities.’⁶¹ On 23 April 2020, a sentence was added to the decree recommending the use of masks.⁶² Another relevant change took place to clarify that hairdressers, barber shops, and all modes of sports facilities were suspended, contrary to what the President announced and tried to impose via decree.⁶³ It was only on 3 March 2021 that a ‘soft curfew’ (toque de restrição) was adopted, ie only as a recommendation that ‘circulation of people … be limited to the exercise of essential activities, in particular from 8pm to 5am.’⁶⁴ On 11 March 2021, when hospital ICUs occupancy reached alarming levels across the state (87.6%), the governor imposed the first mandatory work from home order (yet limited to administrative activities), and forbade take away services in restaurants (but allowed drive-thru from 5am to 8pm and home deliveries 24 hours a day).⁶⁵ The effects of such recommendations on actual mobility varied with time (see Part IV.B.2 below on compliance).

60.  Stricter mobility restriction measures were considered and at times imposed in several municipalities. In the capital city of São Paulo, the most populous of Brazil and one of the highest in infections and deaths, due to a surge in hospitalizations in April 2020 the mayor tried to block roads and avenues, to stop the circulation of 50% of vehicles on alternate days, and then declared a bank holiday of almost a week (megaferiado),⁶⁶ all of which were attempts to avoid an even stricter lockdown.⁶⁷ Resistance was so fierce, however, that he had to backtrack. In Araraquara, a city of 238,000 inhabitants 285km away from the capital, and where the strictest mobility restrictions of the state of Sao Paulo were adopted in February 2021, the mayor was subject to death threats.⁶⁸ The ‘lockdown’ in Araraquara involved a complete restriction of the circulation of people and vehicles in public roads, first for two days (21–23 February 2021), then extended for a whole week (until 27 February 2021), and the closure of all premises outside the health sector, including the closure of supermarkets for the public (deliveries were allowed), and the suspension of public transport, for 10 days (from 20 February 2021).⁶⁹

61.  The picture was similar in the state of Amazonas, with no state wide strict mobility measures implemented until 2021, but with some individual municipalities enacting more stringent temporary measures, such as a total blocking of the circulation of people in public roads and spaces. For example, Barreirinha, São Gabriel da Cachoeira, Silves, and Tefé during part of the month of May 2020.⁷⁰ The State Public Prosecutors Office was also very active and filed lawsuits demanding a judicially imposed lockdown decree in several municipalities, including Manaus,⁷¹ but failing in all apart from Tefé.⁷²

62.  With the surge in infections, hospitalizations, and deaths in December 2020, the governor tried to introduce stricter restrictions through a decree on 23 December 2020 to last through the whole post-Christmas and New Year celebrations period (26 December 2020 to 10 January 2021).⁷³ The reaction of the public, in particular businesses for whom the period is the most lucrative in the year, was so fierce that the governor backtracked barely two days after the new restrictions had come into force (28 December 2021).⁷⁴ With the surge in cases, hospitalizations, and deaths of early January 2021, and prompted by a court injunction,⁷⁵ the decree of 23 December was reinstated on 4 January 2021.⁷⁶ With a further worsening of the situation, a curfew was implemented on 14 January 2021 between 7pm and 5am.⁷⁷ Ten days later, the curfew was extended to 24 hours, initially until 31 January 2021 and then extended to 8 February 2021, when it went back to between 9pm and 6am, remaining so until 5 April 2021,⁷⁸ when it was further reduced to between midnight and 6am.⁷⁹ Exceptions were allowed for essential services such as food and health related services.

63.  According to studies that try to measure the effectiveness of social distancing rules and recommendations across Brazil through Google maps and surveys, adherence was never very high and decreased gradually, reaching around 40% in September 2020 (see Part IV.B.2 below).⁸⁰

64.  Restrictions on international travel are the competence of the federal government, through joint Ordinances of the Civil House, Infra-structure, Justice, and Health ministries, based on recommendations of the National Sanitary Vigilance Agency (ANVISA). Foreigners without permanent residence or relatives in Brazil were forbidden from entering the country from 17 March 2020 until the time of writing.⁸¹ But there is a lot of variation regarding nationalities and means of transport used (water, air, land). Restrictions were applied firstly to Venezuelans (17 March 2020), then to most South Americans, to nationals of China, the European Union, many European countries, Australia, Japan, Malaysia, and South Korea (19 March 2020), then to Uruguayans (22 March 2020), and finally to all foreigners via water, air, and land by 29 March 2020. Water and land entry restrictions remain in place to the time of writing. Entry by air was completely allowed again, without any quarantine or testing restrictions, on 29 July 2020, making Brazil an exception among most countries,⁸² and restrictions reintroduced to flights from the United Kingdom, Northern Ireland, and South Africa—due to variants of Covid-19 that emerged in those countries—on 25 January 2021.⁸³

65.  As regards internal (ie inter-state and inter-municipal) travel, restrictions varied significantly across the country. Some states prevented internal travel for short periods of time, leading to protests and challenges in courts. In the state of Bahia, for example, 83% of the territory was affected.⁸⁴ In at least 22 of the 26 states some restriction was imposed, often closing state borders and generating significant controversy.

66.  In the state of São Paulo, for instance, there was significant concern from mayors about coastal municipalities during extended bank holidays such as New Year and Easter, when millions of people tend to travel to the beach. Some of these municipalities (eg Mongaguá, Itanhaém, Peruíbe, and Itariri e Pedro de Toledo) even erected sanitary barriers to prevent entrance into their territory, but these actions were quashed in interim injunctions by the President of the state of São Paulo Court of Appeal for causing deleterious economic effects.⁸⁵

67.  In the state of Amazonas, all inter-municipal travel by public servants outside the health and public security systems was suspended for 15 days on 17 March 2020.⁸⁶ On 19 March 2020, all river transport within the state was suspended.⁸⁷ On 20 March 2020, all road transport between municipalities was also suspended for 15 days.⁸⁸ These restrictions were quashed by the Federal Court of Appeal on 30 March 2020, but reconsidered by a different judge on the same day.⁸⁹ On 4 April 2020, all intermunicipal and interstate terrestrial transport (ie bus, vans, taxis, and transport apps) was suspended for 15 days by a decree from the state governor.⁹⁰

68.  With the second and more severe peak in January 2021, the Public Defensory, which had been very active in the judicial saga to protect the governors’ measures of the first peak, urged the governor of Amazonas to suspend internal transport again, noting the findings of a study arguing that such measure may have prevented 123,000 infections and 1,200 deaths in 2020.⁹¹ The governor eventually did so on 12 January 2021.⁹²

69.  It is important to note that Brazil’s continental dimensions and extensive rural and forest areas make the closing of internal and external borders rather challenging to implement. Moreover, the closing of internal borders in such a large federal state inevitably gave rise to conflict between different administrative units.

70.  Restrictions on internal travel have generated conflict between the federal union and several states and municipalities over ‘lockdown’ measures in particular inter-municipal and inter-state transport. In an attempt to stop governors from restricting travel, the President issued a decree including inter-municipal and inter-state transport in the list of essential activities.⁹³ The decision was declared unlawful by courts in Amazonas and confirmed by the Supreme Court, leading to the exclusion of inter-municipal transport from the list of essential activities.⁹⁴ This lead to a provisional measure by the President in March 2020 declaring such transport an essential activity with a view to impeding measures such as those of the Amazonas state reported above.⁹⁵

71.  Limitations of gatherings and events in public spaces were the earliest and most widespread measure adopted across Brazil.

72.  In the state of São Paulo, events with more than 500 people were already forbidden by a provisional decree in mid-March 2020 (State Decree 64.682 of 13 March 2020), and were completely suspended when the Quarantine Decree came into force nine days later. These measures were to last originally until 7 April 2020 but were extended several times through new state decrees and were eventually replaced on 28 May 2020 by the five-phase system (the Sao Paulo Plan) explained in Part IV above. According to that system, events and public gatherings are forbidden in cities in phase 1 (red), and can take place with time restrictions and protective measures (eg social distancing) in phases 2 (orange) and 3 (yellow) with a maximum of 40% capacity. The capacity is raised to 60% in phase 4 (green) and all restrictions are removed in phase 5 (blue).

73.  As already mentioned, the whole state of Sao Paulo was back to the most restrictive phase (red plus, or emergency phase) at the time of writing. During the first year of the pandemic, municipalities moved up and down phases. In September 2020, for instance, of the 22 administrative regions of the state of São Paulo, no region was in the most restrictive phase 1, only one (Barretos) was in phase 2, 10 were in phase 3, and 11 were in phase 4, including the capital city, São Paulo.

74.  In the state of Amazonas, limitations on public gatherings and events were also the first measure taken, on 16 March 2020. Unlike in São Paulo, all events were suspended irrespective of size so long as they took place in state premises, as were, in the same decree, visits to prisons and detention centres and trips by civil servants (Executive Decree 42.061 of 16 March 2020). One day later, any agglomerations of more than 100 people was forbidden.⁹⁶ Events in private venues were suspended only in September 2020, when cases started to surge again. Social events were restricted to 50% of capacity, a limit of 200 people, and a midnight curfew. Conferences were limited to 40% capacity and a maximum of 500 people, so long as social distancing was possible.⁹⁷

75.  Interestingly, neither São Paulo nor Amazonas, and so far as we could check any other state, has introduced limits on private gatherings inside peoples’ homes, with the exception of individuals in isolation (see Part IV.A.7 below). Some private residential compounds have established their own restrictions, often leading to disputes and judicialization.⁹⁸

76.  The other group of measures adopted ubiquitously across Brazil was the closure of premises and facilities for all activities regarded as non-essential. School, shops, beaches, and parks have been closed, for varying periods of time, across the whole country.

77.  In the state of São Paulo, the Quarantine Decree suspended the operation of all presential commerce and services with the exception of essential ones (health, food, fuel, security, and communications), and of construction and certain industries from 24 March 2020.⁹⁹ When the state moved to the five-phased system in late May, total closure as instituted in the Quarantine Decree applied only to phase 1 (red) cities, and gradual reopening, with varying degrees of limitations, applied to all other phases, up to normal unlimited reopening in cities in phase 5. As already mentioned, cities have moved up and down phases since the beginning of the pandemic, but none has ever reached phase 5. At the time of writing (April 2021) all cities were back to phase 1 (red), the most severe, and Brazil as a whole was the epicentre of the pandemic. The table below summarises the rules for phases 2–4.

78.  Similarly to São Paulo, the state of Amazonas already implemented comprehensive closure of premises in March 2020. On 23 March 2020, Amazonas declared a state of public calamity,¹⁰⁰ and determined the suspension of all non-essential activities,¹⁰¹ which was extended by successive decrees,¹⁰² and then started to gradually reopen in early June. Unlike São Paulo, however, it adopted a plan¹⁰³ based on criteria of relevance of the economic sector and risks of transmission to be applied only to the capital, Manaus,¹⁰⁴ and to be implemented in so-called ‘four cycles’, starting on 1 June 2020 at midnight (cycle 1), then 15 June 2020 (cycle 2), 29 June 2020 (cycle 3), and 6 July 2020 (cycle 4). In each cycle a set of activities were allowed to reopen (see table below). Manaus concentrates more than 53% of the population of the state of Amazonas (2.2 million people out of 4.2 million in the state as a whole). The other municipalities were given autonomy to implement their own responses.

79.  The cycles also applied to shopping malls according to the nature of the activity involved, and they could operate only at 50% capacity (Article 8 of Decree 42.330/2020). Interestingly, throughout the crisis shopping malls were able to operate drive-thru systems so long as clients did not step out of their vehicles and the purchase lasted no longer than 15 minutes (Article 9 of Decree 42.330/2020).

80.  With the new surge in cases in December 2020, which worsened in early 2021, a new and more restrictive package of closures was enacted on 23 December 2020,¹⁰⁵ which were backtracked barely two days after the new restrictions came into force (28 December 2021),¹⁰⁶ and, prompted by a court injunction,¹⁰⁷ reinstated on 4 January 2021.¹⁰⁸

81.  The closure of schools was one of the most contentious issues in Brazil’s response to Covid-19.¹⁰⁹ Given the high level of inequality and functional illiteracy, as well as limited access to the internet, education was significantly affected in Brazil, in particular for the vast majority (over 80%) enrolled in state schools. At the other end of the spectrum, there was discontent among upper middle-class parents who had to keep paying high tuition fees.¹¹⁰ Some claim that Brazil was among the countries with the highest average number of weeks of school closure across the world.¹¹¹

82.  In the state of São Paulo, state and municipal schools closed fully on 23 March 2020, affecting 3.5 and 1 million students respectively.¹¹² There was some debate about whether private schools were legally obliged to shut but they followed the government’s recommendation, affecting another 2.3 million students spread across 10,000 schools.¹¹³

83.  On 13 July 2020, the governor issued a decree specifying rules for a gradual reopening of schools (35%, 70%, and 100% of capacity) according to complex epidemiological criteria tied to the phases of the Sao Paulo Plan explained above, but allowed municipal and private schools autonomy to decide whether to reopen or not.¹¹⁴ State and private schools started to reopen at reduced capacity (35%) in September and municipal ones in October 2020.¹¹⁵ Some private schools decided to shut again in November 2020 due to a surge in infections.¹¹⁶

84.  Resumption of enhanced presential schooling was planned for the start of the academic year in February 2021 but the new surge in infections again disrupted the plan. Some private schools decided to remain closed despite the possibility of reopening,¹¹⁷ and the mayor of Sao Paulo city, for instance, suspended all presential schooling from 14 March to 1 April 2021.¹¹⁸

85.  As in most of Brazil, suspension of education in Sao Paulo has been a very controversial matter and often ended up in the courts. With an increase in the pressure from parents to reopen schools,¹¹⁹ the governor of Sao Paulo allowed the gradual reopening of schools in early 2021 even in cities in phase 1 (red),¹²⁰ and later issued another decree including education on the list of essential activities.¹²¹ Teachers unions went to court and managed to suspend both decisions, but it was promptly reversed by the Court of Appeal.¹²²

86.  In Amazonas, state schools in the capital, Manaus, were first closed for 15 days on 16 March 2020 and the same was recommended for private schools (Executive Decree 42.061 of 16 March 2020). A day later closure was extended to all municipalities of Greater Manaus and also to the municipalities of Parintins and Tabatinga (Executive Decree 42.063 of 17 March 2020) and to all municipalities of the state on 19 March 2020 (Executive Decree 42.087 of 19 March 2020). During the period of closure, which lasted until 6 July 2020 in private schools (the earliest place in Brazil to resume presential teaching) and until 10 August 2020 in state schools, the state secretariat for education set up a scheme for remote teaching.¹²³ Municipal schools were the last to resume, in September 2020, yet only for students and teachers without access to the internet at home.¹²⁴ It is believed that the reopening of schools led to a significant increase in infections (342 teachers were already infected 20 days after reopening),¹²⁵ as a study by the Oswaldo Cruz Foundation (Fiocruz) had already predicted,¹²⁶ yet the governor refused to shut the schools again.¹²⁷ Schools remained opened in Amazonas for the whole of the remaining 2020 academic year. With the surge of early 2021, only remote schooling was allowed at the time of writing in state schools.¹²⁸ No prohibition seemed applicable to private schools, prompting a request from the public prosecutors for the governor to extend the prohibition to them.¹²⁹

87.  Mandatory physical distancing was not implemented as a general rule, but rather as protocols for the functioning of private and public facilities. At the federal level, the Ministry of Health recommended a minimum distance of one metre in public spaces.¹³⁰ It was set at 1.5 metres both in the state of São Paulo¹³¹ and the state of Amazonas. In both states, it has always been publicised alongside measures of personal hygiene such as handwashing and respiratory etiquette, such as the use of masks. In the state of Amazonas, minimum physical distancing was set at 1.5m ‘preferably’, or the use of a physical barrier such as a facial protector or screen and, as already mentioned in Part IV.A.3 above, no limit on the number of people gathering was established, but rather a vague ‘avoidance of agglomeration’ in public and private facilities (Article 13 of Decree 42.330/2020).

88.  The mandatory use of masks in public and private places is perhaps the best example of a measure introduced by federal legislation against the opposition of the President, which went through the Congress entirely via the new remote system implemented due to the pandemic (see Part III above). Several bills were proposed by members of the lower house, the first as early as 3 April 2020.¹³² After receiving several amendments and being approved in the Lower House, PL-1562/2020 was sent to the Senate on 20 May 2020, where it received further amendments and returned to the Lower House, which approved it on 9 June 2020.¹³³

89.  The Bill was then sent to the sanction of the President on 12 June 2020. On 3 July 2020, the President sent the Bill back to Congress with no less than 25 vetoes,¹³⁴ including the obligation to use masks in: prisons, commercial and industrial premises, religious temples, educational premises, and other closed spaces; the obligation of employers to provide masks to employees in the place of work; the imposition of fines; and the destination of fines’ revenues to the health services. Most of the presidential vetoes (18 out of 25) were not accepted by the Congress and PL-1562/2020 became Federal Law 14.019/2020.¹³⁵ Another two vetoes (the obligation of premises to display informational posters on the correct use of masks and the maximum number of people allowed, and the obligation of use of masks in prisons) were quashed by the Supreme Court as they were exercised by the President outside of the deadline of 15 days established by the Constitution.¹³⁶

90.  The use of masks was also made compulsory at the state and municipal levels. In the state of São Paulo, it was made compulsory by State Decree 64.959 (4 May 2020) in all spaces where there is access to the public and fines are imposable to both citizens and the owners of the facilities (Resolution SS 96 of 29 June 2020). In the state of Amazonas masks were made compulsory in public and private facilities (Article 13, II of State Decree 42.330/2020) and also in schools and educational settings by members of staff involved in transportation of students and teachers working in close proximity with young children.¹³⁷

91.  Article 2 of the Quarantine Act (Federal Law 13.979/2020) defines isolation and quarantine in the precise terms set in the WHO’s International Health Regulations, ie isolation applies to infected individuals and quarantine for those suspected of infection. Article 2(5), I of the Quarantine Act empowers the Health Secretary to determine the duration and conditions of isolation and quarantine, which he did through Ordinance 356 (11 March 2020), setting out that such measures can be imposed only by a ‘medical prescription’ or by a ‘recommendation by an epidemiological surveillance agent’ and can last only for 14 days, and be extended by the same duration (Article 3(1) of Ordinance 356). Article 3(2) of Ordinance 356 states that isolation should take place preferably in the patient’s home but also in public or private hospitals, depending on clinical assessment. It must be based on a positive result for Covid-19 (Article 3(3)) and must be accompanied by an informed consent form (Article 3(4)). Isolation determined by a public health agent can take place only in cases of the contact with symptomatic individuals or asymptomatic carriers and should take place at home (Article 3(5)). Where no public health agents exist, the Secretary of State should determine isolation (Article 3(6)). On 20 March 2020 the Health Secretary issued another ordinance allowing the isolation of individuals with symptoms and those living in the same household.¹³⁸

92.  On 17 March 2020, an inter-ministerial ordinance issued jointly by the Health and Justice secretaries affirmed the compulsory nature of the public health measures adopted to combat the pandemic and alerted for the potential civil, administrative, and criminal liability of those who disrespect those measures (see also Part IV.B.1 below).¹³⁹ Unlike data on infections and deaths, data on the number of people in isolation and quarantine is not often publicised nor widely available, making it harder to scrutinise.

93.  The Quarantine Act enables the state to adopt the compulsory realization of medical examinations, testing, collection of samples, vaccination and other preventive measures, and medical treatment (Article 3). This general power was further regulated by Ministerial Ordinance 5 (17 March 2000),¹⁴⁰ which emphasises that disrespect of public health measures adopted to combat the pandemic may result in civil, administrative, and criminal liability.¹⁴¹ As regards testing and treatment, however, there are no reports that compulsory measures have been used so far.

94.  As regards vaccination, due to statements by the Brazilian president that everyone had the right to refuse to be vaccinated,¹⁴² three proceedings ended up in the Supreme Court, which ruled by a majority that compulsory vaccination was constitutional and could therefore be imposed, including by states and municipalities (ADI 6586, ADI 6587, and ARE 1267879, decided on 17 December 2020).¹⁴³ By ‘compulsory’ vaccination it is not meant forced vaccination, but rather the possibility of imposition of sanctions such as fines, exclusion from certain places, enrolment in schools, etc. ARE 1267879 invoked the right to freedom of religion as the basis for vaccination refusal. The president of the Supreme Court sped up the processing of these cases to avoid uncertainty and the potential growth of vaccination hesitancy.¹⁴⁴

95.  Another interesting and controversial issue that erupted in Brazil in relation to vaccination was the possibility of private providers offering vaccines outside of the public immunization programme, creating what many saw as ‘queue jumping’ by those with the economic means. After a vigorous public debate,¹⁴⁵ Congress passed Law 14.125 (10 March 2021),¹⁴⁶ determining that, before all priority groups in the National Immunizations Programme (PNI) had been vaccinated (approximately 77 million people), any vaccines acquired by private companies ought to be donated to the PNI and, after that, half of the doses ought to be donated to the PNI (Article 2). A first instance judge in Brasilia declared the unconstitutionality of Article 2 of Law 14.125, yet, at the time of writing, his decision had been suspended by the Federal Regional Tribunal. It is likely that the case will reach the Supreme Court in the near future.¹⁴⁷

96.  Contact tracing, as it is known, is strongly dependent on testing. According to the data, Brazil has done neither well. In July 2020, testing was very low at 7500 tests per million people, almost 10 times lower than in the United States (74,927 per million), and was described as a ‘major failure’ by the organisation Medecins sans Frontiers.¹⁴⁸ The situation improved slightly and achieved a peak of 65,000 daily tests in December 2020 (still way below other countries, eg 1 million daily tests in the US) but worsened again, going down to 44,000 daily tests in early March 2021.¹⁴⁹

97.  With such low numbers of testing, any policy of contact tracing is significantly limited, but Brazil’s reasonably well developed and well distributed primary care network in the national health system (SUS), which reaches almost all areas of Brazil, provided another good opportunity for tracing based on symptoms rather than testing. In September 2020, the Ministry of Health issued Ordinance 2.358 (2 September 2020) establishing a programme of financial incentives to help municipalities strengthen their tracing and monitoring capacities.¹⁵⁰ An important part of that programme was the obligation of each municipality to feed information to a centralised system at the federal Ministry of Health (s-SUS Notifica). How well municipal tracing and monitoring is working is hard to know given the paucity of available data, but the explosion of infections and deaths in Brazil since January 2021 seem to provide some indication that either the programme is not working or, if it is, tracked individuals are not complying with isolation (see Part IV.A.7 above).

98.  States have also implemented tracing programmes. The Department of Health of the State of São Paulo published a Protocol for the Tracing and Monitoring of Contacts of Confirmed and Suspected Cases of Covid-19 on 25 August 2020.¹⁵¹ The State of Amazonas adopted an App on 6 April 2020.¹⁵² Again, how well such programmes work is hard to establish due to lack of data but not difficult to presume given the significantly high levels of death in both states (see the introduction to Part IV above).

99.  As in most countries, in Brazil the greatest burden of infection and death has been born by the elderly, although at a lower rate than in European countries. A study published in September 2020 estimated that almost 50% of deaths would occur in long-term care facilities for the elderly.¹⁵³ No reliable data exists on the actual number of deaths in such facilities, which were estimated to be home to approximately 90,000 people in the latest study available.¹⁵⁴

100.  As regards measures adopted to prevent infections and deaths, the Department of Social Assistance of the Citizenship Ministry published an ordinance on 6 May 2020 with detailed guidance and recommendations for institutions caring for the elderly and the disabled.¹⁵⁵ Among the recommendations were the realization of testing in all symptomatic persons, the maintenance of close communication with the local primary health unity, reduction of agglomeration through transfer of patients and personnel to local hotels or to the home of relatives able to care for them during the pandemic, temporary suspensions of visitors, etc.¹⁵⁶

101.  How well these measures have been implemented is, again, difficult to know for lack of available information. Non-governmental organizations that work in the field were far from optimistic at the beginning of the pandemic, noting the lack of structure and resources in most care homes, in particular the lack of personal protective equipment (PPE).¹⁵⁷

102.  The enforcement of the public health measures was attributed to health authorities, the civil guard, and the police.

103.  In the state of Sao Paulo, from 1 July 2020 to 24 March 2021, the Department of Health Surveillance conducted 230,515 inspections and imposed 5,019 fines for breaches of agglomeration rules (eg parties), use of masks, and opening time limitations in bars and restaurants. These numbers rose significantly in 2021, as from July to August 2020 there had been 1,786 fines.¹⁵⁸ The fine for not using a mask is R$551 (USD $100) for an individual, and R$5,278 (USD $1,000) for a company for each individual not wearing a mask. The maximum amount of a fine is R$290,000 (USD $60,000).¹⁵⁹

104.  In the state of Amazonas, with the second surge in infections, hospitalizations, and deaths at the end of 2020, the governor issued a decree establishing a fine of R$50,000 (USD $10,000) for premises that breached the limits to opening times.¹⁶⁰ The fine for not wearing a mask in Manaus (Amazonas), is R$108 (USD $20).¹⁶¹

105.  In March 2021, ANVISA established a new fine for those not wearing masks in airport terminals of R$2,000 (USD $400).¹⁶²

106.  Although non-compliance with public health measures are crimes according to the Criminal Code (Articles 268 and 330), which punishes the propagation of contagious diseases and non-compliance with legal orders of public officials respectively, there have been only a few reports of arrests, often for aggression to police officers trying to enforce the rules.¹⁶³

107.  As there have not been strict mandatory ‘lockdowns’ in Brazil apart from very temporary and geographically circumscribed ones (see Part IV.A.1 above), compliance here refers to adherence of the population to stay at home recommendations and to compulsory use of face covering and isolation. As regards mobility, the Brazilian government has received aggregated and anonymised information from telecommunications companies, specifically data on geo-mobility of the 220 million mobile phones registered in the country, since April 2020. At first the Health Secretary requested individualized personal data, including name, national insurance number, and address, but this was regarded as unlawful by the Federal Advocate General as an undue intrusion on the right to privacy, only possible with judicial order.¹⁶⁴

108.  Data collected through this method indicates that the highest adherence to stay at home recommendations occurred at the beginning of the pandemic, in March 2020, but then fell gradually and never went up again to those levels, not even during the latest more deadly surge—with the exception of the few places that adopted a more rigorous ‘lockdown’, such as in Araraquara, Sao Paulo. (see Part IV.A.1 above).

109.  Google’s Community Report, which assesses mobility through its apps Waze and Maps, shows that at the end of March 2020, it recorded significant reductions in agglomerations in restaurants, shopping malls, cinemas, and parks (70%), workplaces (34%), and pharmacies and bakeries (30%).¹⁶⁵ In its latest report of 7 April 2021, parks were down 38%, retail and recreation across Brazil was down 34%, transit stations (public transport) were down 28%, and workplaces were down 12%, but groceries and pharmacies were up 17%.¹⁶⁶

110.  In the state of Sao Paulo, an agreement between the state and mobile phone companies led to the creation of the Sao Paulo Intelligent Monitoring System (Sistema de Monitoramento Inteligente de São Paulo (‘SIMI-SP’), which has been measuring mobility since mid-March 2020. Consistently with national averages, the highest level of adherence was recorded from the end of March 2020 to the beginning of April 2020, when the index achieved its highest point (59% on Sunday, 46–7% during the week), falling gradually to a low of 39% towards the end of 2020, and going back up a little in 2021 with the surge in infections and strengthening of restrictions, but not much (51% on Sundays, 42–3% during the week).¹⁶⁷

111.  In Manaus, Amazonas, a similar pattern appears. The highest level of adherence to mobility restrictions was reported at the beginning of the pandemic (60% in April 2020) and again in January 2021 (61%), but these were both recorded on Sundays. When the week average is taken into account, it was 48% in January 2021 and as low as 35% in October 2020.¹⁶⁸

Octávio Luiz Motta Ferraz (School of Law, King’s College London)

Danielle Rached (School of Law, Fundação Getúlio Vargas)

Deisy Ventura (School of Public Health, University of São Paulo)

Conrado Hubner Mendes (School of Law, University of São Paulo)

Marco Antônio Moraes Alberto