Is there a crime in the act of “jumping the queue” when vaccinating against Covid-19?

The Ministry of Health elaborated the National Plan for the Operationalization of the Vaccine against Covid-19, establishing a vaccination order for priority groups and Federal Law 14.125/21 was published, which provides for the acquisition and distribution of vaccines by private legal entities, as long as they are fully donated to the Unified Health System (SUS), in order to be used within the scope of the National Immunization Program (PNI).

After the end of the immunization of priority groups provided by PNI, private legal entities will be able to purchase, distribute and administer vaccines, provided that at least 50% of the doses are donated to SUS and the others are used for free, and all these data must be reported to the Ministry of Health.

After some situations in which politicians and businessmen from Minas Gerais would have violated the order of priority established in the applicable legislation, having acquired and received the the Pfizer immunizer against Covid-19, for their own benefit and of their families, the Federal Police launched the “Cabin Operation”, which investigates under what circumstances these situations actually occurred. The illegal application of vaccines was revealed by the magazine Piauí and one of the lines of investigation suggests that the false nurse would have deceived them and applied, in fact, saline.

Whoever participated in anyway in the organization or application of the vaccine could be held liable for the crime of counterfeiting of medicines, typified by article 273 of the Brazilian Penal Code, if proven they were aware that the vaccine was false.

However, if the nurse did not know that she was applying saline, she would not have committed any typical fact, since the counterfeiting of medicines requires intent, i.e., knowledge of adulteration to configure the crime.

The opposite would happen to those who sold the doses as a vaccine knowing that it was saline or another product, with the possibility of being held responsible for the crime of counterfeiting of medicines, for creating a health hazard for those who believed they were immune to the virus.

On the other hand, if the aforementioned investigation reveals that the vaccines applied were, in reality, saline, the businessmen will not answer for any crime, neither against public health nor for counterfeiting, and although they had the intention of jumping the queue of the vaccine, they would be only considered victims of the crime of fraud, committed by the nurse.

There is no uniform opinion on the conduct of people in “jumping the queue” of vaccination, in view of the legal structure related to health issues. Is it just a reprehensible question, which violates the morality and solidarity that is expected of all citizens, or is there, in fact, a specific typification for the conduct?

The criminal charge presented by the Congressmen of the Brazilian Socialist Party (PSB) to the Attorney-General from the State of Minas Gerais imputes the crime provided in article 268 of the Penal Code, which is, a violation of a preventive sanitary measure.

There are, however, 17 bills for specific criminalization of the act of breaking the vaccination line, since even the legislators themselves have doubts about the applicability of the aforementioned generic provision, since the situation that we are experiencing worldwide is new and there would be no specific typification for the act. The legal asset protected by article 268 is the public safety, particularly in relation to public health, being linked to the State’s duty to reduce the risk of diseases, provided for in article 196 of the Federal Constitution.

Bill n.º 25/2021 deserves special attention for uniting all other bills on the matter; having been approved by the House of Representatives, it is currently awaiting consideration by the Senate. Articles 268-A, 312-A and 317-A would be added to the Penal Code, to typify, respectively, the conduct of infraction of the immunization measures, embezzlement of vaccines, medicinal or therapeutic goods, as well as corruption in connection to immunization plans. Even if approved, to not violate the anteriority of criminal law principle, it would not be applied to past conducts.