TRIBUNAL CONSTITUCIONAL Portugal

Ruling No. 90/2022 - Appeal

Subject Matter – Fundamental Rights - Deprivation of Liberty

Keywords of the Alphabetical Index:

COVID-19

Civil and political rights

Pandemic

Mandatory Confinement

Headnotes

The Constitutional Court found Article 25(1)(4) of the “regulation of public disaster” appended as Annex to the Council of Ministers Resolution no. 45-C/2021 to be unconstitutional, insofar as allowing that any Portuguese or foreign citizen, either resident in Portugal or not, that enters Portugal in a flight departing from a country included in a list of countries set by members of Government responsible for foreign affairs, defense, internal affairs, health and aviation, can be deprived of his/her freedom for 14 days based on an administrative order, without any judicial control.

Summary:

I – A citizen with dual nationality (Portuguese/Brazilian) entered Portugal in a flight originated in Brazil. Upon his arrival, he was contacted by the Foreigners and Borders Service notifying him of a decision determining that he was subjected to mandatory confinement for 14 days in his Portuguese residence. The day before entering Portugal, he took a PCR test with negative result, providing Portuguese authorities with said information and the supporting document. That citizen then requested the lower court for him to be released immediately by means of a habeas corpus order provided for in Article 220 of the Code of Criminal Procedure. The lower court ordered the immediate release of the claimant and in order to decide as so it refused to enforce the norm that provided for confinement, due to unconstitutionality.

II – In the case in question, the person who requested the habeas corpus order was subjected to mandatory confinement at a time when the declaration of a state of emergency was no longer in force, so the norms regarding states of emergency were not relevant to the constitutional-law framework surrounding the present case. Similarly, the so-called “disaster situation” is not constitutionally relevant when it comes to suspending ‘rights, freedoms and guarantees’, to which end only the actual ‘disaster’ that serves as grounds for a declaration of a state of emergency is relevant.

III – The Court began by referring to what it had stated in Ruling no. 424/2020, by which it had found the norms contained in Points 1 to 4 and 7 of Regional Government Council Resolution (RGCR) no. 77/2020 of 27 March 2020 and in Points 3(e) and 11 of RGCR no. 123/2020 of 4 May 2020, under which passengers who landed in the Azores Autonomous Region were subjected to mandatory confinement for fourteen days, to be unconstitutional. At that time it was stated that: (i) the provision set out in Article 165(1)(b) of the Constitution of the Portuguese Republic (CRP) “…certainly includes the regulation of all the rights listed in Title II of Part I of the Constitution…”, and the legislative competence of the Assembly of the Republic (Parliament) in this matter applies “not just to restrictions (…), but also to the whole of the legislative intervention within the scope of [those] rights, freedoms and guarantees”; (ii) at stake in Article 27, CRP, is “the right to physical freedom – the possibility of moving around without constraints, including “the right not to be imprisoned or physically prevented or constrained by someone else”; (iii) the measures had a significant impact on citizens’ freedom, representing a “total deprivation of liberty” that went against both the provisions of Article 27(2), CRP, and the personal freedom aspect of the right to liberty enshrined in paragraph (1) of the same Article; (iv) every norm that imposes rules on a ‘right, freedom or guarantee’ must be authorised in advance by the Assembly of the Republic; (v) inasmuch as the norms before the Court established measures which deprived the persons targeted by them of their liberty, contrary to the provisions of Article 27, CRP, their subject matter was encompassed by the reserved legislative competence provided for in Article 165(1)(b), CRP; (vi) the law should have been be adopted by either a parliamentary law passed directly by the Assembly of the Republic, or a legislative act issued by the national government under the terms of an authorisation given by that Assembly, hence the unconstitutionality.

IV – The Court held that the reasons behind Ruling no. 424/2020 may be generally transposed to this case, including that the right to personal freedom is affected by the imposed isolation on persons supposedly or confirmed infected by coronavirus. Thus, the norm in question has a significant impact on citizens’ freedom, which goes against both the provisions of Article 27(2), CRP, and the personal freedom aspect of the right to liberty enshrined in paragraph (1) of the same Article. Therefore, its subject matter is encompassed by the reserved legislative competence provided for in Article 165(1)(b), CRP. However, in this case, contrary to the one of Ruling no. 424/2020, there is a possibility of sufficient legal ground for a government regulation and action, which has to be assessed. In fact, in its Resolution, the Government referred to the Public Health Law and the Civil Protection Law as legal ground. The Court considered that article 17 of the Public Health Law and articles 8 and 19 of the Civil Protection Law could be potentially relevant.

V – Concerning Article 17 of the Public Health Law – which in turn refers to the Health Basis Law – the Court held that it is not a valid legal basis for confinement, since it only provides for (i) the internment or compulsory provision of healthcare to persons who otherwise constitute a danger to public health, (ii) health surveillance and (iii) in a very wide and general sense “essential exceptional measures”, but none of these provisions is specifically aimed at deprivation of personal freedom through confinement.

VI – Articles 8 and 19 of the Civil Protection Law in their turn are also insufficient legal basis for government’s regulation and action, being mere rules of competence, not aimed at deprivation of freedom, much less through a confinement.

VII – In conclusion, all norms affecting the right not to be imprisoned or physically prevented or constrained by someone else must be approved or specially authorized by the Assembly of the Republic. The norm before the Court established measures which deprived persons of their liberty, contrary to the provisions of Article 27, CRP, so its subject matter was encompassed by the reserved legislative competence provided for in Article 165(1)(b), CRP. The government had no legal ground and was not authorized to regulate or act, therefore the norm is unconstitutional.

Cross-references:

Constitutional Court Rulings nos.:

no. 479/94, 07.07.1994; no. 362/11, 12.07.2011; no. 424/20, Bulletin 2021/2 [POR-2021-2-005]

Languages

Portuguese