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The president of the STJ (Superior Court of Justice), Minister Humberto Martins, denied this Saturday (January 2, 2021) the return of Brazilians to the country without an examination that detects the coronavirus. Here is the full text (146 KB).
The action is part of a mandamus order in which 2 Brazilian travelers requested the suspension of the section of the federal government decree (No. 648/2020) that requires passengers on international flights, bound for Brazil, to present proof to The airline. Negative or non-reactive RT-PCR for covid-19.
According to the rule, the exam must be taken within 72 hours prior to departure. The new rule came into force on December 30, in an ordinance signed by the ministers Braga Netto (Civil House), André Mendonça (Justice and Public Security) and Eduardo Pazuello (Health).
The restriction imposed by the government is based on the recommendation of Anvisa (Sanitary Surveillance Agency) and the different sanitary and public health protocols.
In this case, the Brazilian couple filed a mandamus order to be able to return to the country. They are in Punta Cana, in the Dominican Republic. They claim that they cannot return to Brazil due to the lack of availability of laboratories in the region to perform the RT-PCR test.
For this reason, the defense requested that the 2 travelers be able to board the return flight scheduled for this Saturday, proceeding to the laboratory examination for covid-19 upon arrival in São Paulo, in a laboratory located inside the Guarulhos International Airport.
The RT-PCR test is the only one capable of detecting the presence of the new coronavirus during infection. Checks for the presence of the virus’s RNA (ribonucleic acid). It is made from the collection of mucus from the nose and throat with a flexible rod (cotton swab). It even identifies those who are asymptomatic in the first days of the disease. The negative point is that the result takes many hours (from 24h to 72h, depending on the place of the exam).
For Humberto Martins, it is not reasonable to allow the boarding of passengers without complying with the restrictions imposed exceptionally and temporarily by the coercive authorities, to the detriment of the community.
Thus, the president of the STJ considered that there is no illegality or abuse of power by the public powers, to justify the entry of the order of mandamus, “Considering that the specific case is only a generic and abstract rule, which has a presumption of constitutionality until a judicial decision to the contrary, in the appropriate procedural manner.”
The merit of the injunction will be judged by the 1st Section of the STJ. The rapporteur is Minister Assusete Magalhães.
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