TRIBUNAL CONSTITUCIONAL Portugal

Ruling No. 489/2022 - Appeal

 Headnotes

The Constitutional Court, in its Second Chamber, decided that the rule contained in Article 5, no. 3, subparagraph c), of Decree no. 82/2009, of 2 April, amended by Decree no. 135/2013, of 4 October and as provided for by points 12 and 26 of Norm no. 15/2020 of the General Health Directorate (DGS), of July 24, 2020, updated on February 19, 2021 (establishing prophylactic isolation, by order of the public health authority, to students of an educational institution and their respective households, when a positive case of the covid-19 disease has been detected in such institution) was unconstitutional on formal and substantial grounds because it infringed Article 27, nos. 2 and 3, as well as Article 165, no. 1, subparagraph b) of the Constitution (CRP).

Summary:

I - The Constitutional Court was summoned to decide an appeal lodged against a decision handed down by the Criminal Investigation Court of Setúbal, which, granting the request for habeas corpus presented by the applicants, had refused to apply the rule contained in Article 5, no. 3, subparagraph c), of Decree no. 82/2009, of 2 April, amended by Decree no. 135/2013, of 4 October and in points 12 and 26 of the Norm no. 15/2020 of the General Health Directorate, of July 24, 2020, updated on February 19, 2021. The rule in question stated that a prophylactic isolation may be determined by order of the public health authority to students of an educational institution and their respective households, when a positive case of the covid-19 disease has been detected in such institution.

This rule was considered unconstitutional by the abovementioned Court in the context of the assessment of a request for habeas corpus presented by persons who were in a 14-days prophylactic isolation (mandatory confinement) at their home by imposition of the health authorities. The reason of such was the contact that one of the applicants had had, in his/her school, with another student who had a positive test for Covid-19.

II – After analysing the accuracy of subject-matter of the appeal, the Constitutional Court began assessing the claim of organic unconstitutionality. According to the court of Setúbal, there was a restriction over a self-executing fundamental right caused by an act of the government and the National Health Authority (DGS). In effect, restrictions of that type are under the legislative competence of the Portuguese Parliament [Article 165, no. 1, subparagraph b), of the Portuguese Constitution]. Hence, the restriction in place was deemed unconstitutional.

The Constitutional Court then recalled its case-law, especially Ruling No. 334/2022, and stated that - considering the absence of a legislative permission by the Parliament to the government - this restriction of fundamental rights disrespected the Constitution. As a consequence, in this part, the Court upheld the appealed decision.

III – Regarding the claim of substantial unconstitutionality, the Constitutional Court first addressed the issue of distinguishing the fundamental right of Article 27 (right to freedom) from the one in Article 44, no. 1 (right to free movement). Following an extensive analysis on both, including reflections about doctrinal thoughts and compared constitutional law (Sentenza n.º 127 of 2022, 7 Abril, of the Italian Constitutional Court; Application no. 49933/20 of the ECtHR), the Court said the expressly authorized restrictions on the right to liberty, contained in Article 27, no. 3 of the CRP, are prefigured as circumstances in which the person, in addition to being impeded from their freedom to move, in the terms defined therein, is placed, against their will, in the dependence of an authority with far reaching powers over their self-determination, something that has profound implications for the exercise of their freedom in realms that go beyond the simple freedom to come and go, enter or leave a public or private space.

In other words, the person – who, in practise, is institutionalized - loses a significant degree of control over their own life, and is unable to freely make a series of decisions that affect them (e.g. their schedules; their meals; with whom they share spaces; etc.). This is the reason why the Constitution only allows for a very limited, exhaustive, well-founded and exceptional set of situations of restriction of individual liberties.

IV – However, the aforementioned interpretation does not mean the reviewed rule equals detention or imprisonment, as the isolation took place at home, for a short duration and without further obligations. In addition, the Constitutional Court considered the importance of the context of administrative emergency caused by the pandemic and the corresponding need to adopt measures to protect public health and the sustainability of the national health service (SNS). Article 64, no. 1 of CRP addresses the the problems caused by public health demands, by imposing duties upon the citizens, irrespectively of being directly disturbed by the disease, and by making the State constitutionally responsible for providing the protection of public health.

Notwithstanding, the indeterminable nature and extent of the constraint of personal liberty allowed by the controlled rule in casu were so evident (lack of a maximum time limit and conditions of prorogation; lack of procedures for judicial review; unclear surveillance means) that the standards to be observed must be extracted from right of freedom, enshrined in Article 27. Therefore, the Court ruled that in this case mandatory confinement vis-à-vis prophylactic isolation represented a deprivation of freedom that falls under the scope of protection of Article 27, whereby – apart from condemnatory court sentences (no. 2) – solely the exceptions foreseen in its no. 3 are lawful.

V - Therefore, the Constitutional Court ruled that the norm under scrutiny was unconstitutional.

Cross-references:

ECLI:IT:COST:2022:127

ECLI:DE:BVerfG:2022:rs20220427.1bvr264921

ECLI:DE:BVerfG:2021:rs20211119.1bvr078121

ECLI:CE:ECHR:2017:0223JUD004339509

ECLI:CE:ECHR:1980:1106JUD000736776

ECLI:CE:ECHR:2016:0705JUD002375507

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