According to the complaint, the defendant and six other people were clustered on a beach on the north coast of the state, without the use of masks, around midnight on May 23, 2020, when the first wave of covid-19 reached the country.
In the 1st degree trial, the man was sentenced to detention, but the custodial sentence was replaced by the cash payment of a minimum wage.
The sentence framed the defendant for ‘infringing a determination of the public power to prevent the introduction or spread of a contagious disease’, a crime that carries a penalty of one month to one year of detention, in addition to a fine.
However, when evaluating the appeal filed against the 1st degree decision, Judge Alexandre Morais da Rosa, rapporteur, saw ‘lack of typical suitability for the specific case’.
In his assessment, there was ‘spurious use’ of the criminal offense in which the defendant was framed. According to the judge, this provision protects ‘diverse legal interests’ and there was, in this case, ‘over-inclusion of behaviors not foreseen in the due legislative process’.
Thus, for the judge, the eventual failure to comply with sanitary measures implemented by state and municipal regulations cannot be classified as a typical fact under the terms of article 268 of the Penal Code.