TRIBUNAL CONSTITUCIONAL Portugal

CONSTITUTIONAL COURT OF PORTUGAL

Ruling 577/2022

Headnotes

I – The Constitutional Court was summoned, by an appeal made by the Public Prosecutor against a decision of the Generic Competence Court of Póvoa de Lanhoso, to assess the constitutional conformity of the article 3, number 2, of the Decree no. 2-A/2020, of March 20, of the Government, that punishes the breach of the confinement obligation as a crime of disobedience, as that Court refused to apply this article due to considering it to be organically unconstitutional, acquitting the defendants that were accused of that crime.

Summary

II - On 03.08.2020, a state of emergency was declared, which would be in force between 03.19.2020 and 04.02.2020, based on the verification of a situation of public calamity (Resolution of the Assembly of the Republic no. 15-A/2020, of March 18, and the Decree of the President of the Republic no. 14-A/2020, of the same date), and the relevant facts occurred during the validity of the declared state of emergency (so that the underlying situation is different to the Ruling no. 921/2021 of this Court, which concerns the subsequent renewal of that state of emergency).

III - At the time of the facts, the Decree n.º 2-A/2020 provided for the punishment, as a crime of disobedience, of the violation of the obligation of confinement, but the Resolution of the Assembly of the Republic no. 15 -A/2020, and the Decree of the President of the Republic no. 14-A/2020, made no reference to this crime, although article 7 of the State of Siege and State of Emergency Regime already prescribed, in general terms, that the violation of the provisions of the declaration of the state of emergency would be punished as a crime of disobedience

IV - The generic provision of article 7 of the State of Siege and State of Emergency Regime is not sufficient, by itself, to legitimize such innovative normative action by the Government, given that although the crime foreseen in the article 7 of the RESEE, in the wording introduced by the Organic Law 1/2012, of May 11, is now addressed to any person who violates the provisions of the State of Siege and State of Emergency Regime, it happens that, in this case, the declaration of the state of emergency, the resolution of the Assembly of the Republic and the presidential decree, didn’t make any reference to the subsequent legislative governmental action under consideration, as embodied in the norm contained in article 3, number 2, of Decree n.º 2-A/2020.

V - As a result, the Constitutional Court concluded that the rule in question deserves constitutional censure, insofar as it suffers from organic unconstitutionality, with no normative continuity between the parliamentary resolution, the presidential decree and, finally, the government decree, corresponding rather to a legislative intervention by the Government with an innovative character in criminal matters that are of partially exclusive legislative competence of the Assembly of the Republic.

Language

Portuguese