Powers of the legislative bodies
Scope of review
Distribution of powers
Civil and political rights
31th July 2020
The Constitutional Court 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; the Court decided to exclude the norms contained in Articles 9, 10, 11 and 12 of the Legal Regime governing the Azores Autonomous Region Civil Defence System (RJSPCRAA), as approved by Regional Legislative Decree (RLD) no. 26/2019/A of 22 November 2019, and in Points 5 and 6 of RGCR no. 77/2020, from the object of the appeal.
I – The court against whose decision the present appeal was brought denied the application of a number of norms, which can be divided into two groups. A first one, whose norms contain rules (formal material rules, and formal rules governing competence) linked to declarations of contingency and of regional public disaster, within the scope of the regional civil defence system (norms contained in Articles 9, 10, 11 and 12 of the RJSPCRAA, as approved by RLD no. 26/2019/A). And a second one, where the norms presuppose action on the part of the regional authorities within the framework of the norms in the first group, and established administrative measures that were designed to respond to the public health problem derived from the Covid-19 pandemic and specifically entailed a mandatory 14-day confinement in a hotel (norms contained in RGCR no. 77/2020, and in Points 3(e) and 11 of RGCR no. 123/2020).
II – The rules (formal material rules, and formal rules regarding competence) linked to declarations of contingency and of regional public disaster, within the scope of the regional civil defence system, were not the direct object of the lower court’s finding of unconstitutionality, which underpinned a decision in which it only targeted the norms that led to a restriction on the petitioner’s right to liberty. Those (potentially) restrictive norms were only to be found in the second group, and the objects of the appeal were thus those contained in Points 1 to 4 and 7 of RGCR no. 77/2020 and in Points 3(e) and 11 of RGCR no. 123/2020, under which passengers who landed in the Azores Autonomous Region were subjected to mandatory confinement for fourteen days.
III – In the case in question, the person who requested a 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.
IV – 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”.
V – At stake in Article 27, CRP, is “the right to physical freedom – the possibility of moving around without constraints. What is protected here is … a specific partial aspect of the various different dimensions in which human liberty, the right to physical liberty, seen ‘as a freedom of bodily movements or to come and go, the freedom to walk around or be transported or transport oneself’, or as a ‘right not to be detained, imprisoned, or in any way confined to a certain space, or prevented from moving around’ manifests itself”. This is the understanding that the Constitutional Court has repeatedly upheld, and includes “the right not to be imprisoned or physically prevented or constrained by someone else”.
VI – The Court said that, given that the norms were executed without any apparent deviation from their textual content, the factual context determined in the decision against which the present appeal was brought – a context of events that revealed the intensity with which the norms sought to affect that liberty or consented to its being affected – means the measures had a significant impact on citizens’ freedom. It was thus necessary to conclude that most of the restrictions described above – but above all, all of them taken as a whole – unequivocally represented a “total deprivation of liberty”. The Court based this conclusion in the following grounds. Firstly, because the norm “in its maximum abstract dimension” implied that its target was “restricted [to a] confined space [and was] entirely prevented from travelling and moving around freely”. Secondly, because, comparatively speaking, the implementation of a measure like the one described above was not very (and, setting aside the possibly more ‘friendly’ surroundings – a hotel room – was not significantly or substantially) different to that which would result from the imposition of a (hypothetical) short prison sentence, and perhaps even had some more harmful aspects (e.g. the lack of access to a common space for physical exercise). Lastly, the Court considered that the conclusion reached in Ruling no. 479/94 (in which the Court deemed being restricted to a confined space for up to six hours to be an unequivocal deprivation of liberty) was applicable in the present case, which involved a confinement that lasted fifty-six times longer than that. Therefore, the controlled norms provided for measures which entailed a deprivation of freedom 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.
VII – Every norm that imposes rules on a ‘right, freedom or guarantee’ must be authorised in advance by the Assembly of the Republic – a requirement that “becomes particularly relevant when compressions or conditionings of a right are at stake”. The Court said that 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, it was clear that their subject matter was encompassed by the reserved legislative competence provided for in Article 165(1)(b), CRP. This competence had not been delegated in the present case, and in any event could only be delegated to the national government (and not the regional government).
VIII – The Court said that the conclusion as to the existence of an organic unconstitutionality was not undermined by the sense adopted in other subsequent, peripheral discussions. Anyone who felt that the issue in the imposition of a quarantine – particularly in the form of a confinement – is not the right to liberty provided for in Article 27 of the Constitution, but rather the right to travel provided for in Article 44, CRP, would in any case conclude that what was at stake was a right referred to in Article 165(1)(b), CRP. Nor would a discussion about the constitutional viability with reference to Article 27, CRP, of being compulsorily admitted to a healthcare unit interfere with the above conclusion. Indeed, the present case did not entail forced internment in a healthcare unit. In addition, the view that such measures were valid would not obviate the requirement that they must 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.
Constitutional Court Rulings nos.:
418/03; 362/11; 479/94; 663/98; 471/01; 71/10; 181/10; 54/12; 204/15; 185/96; 83/01; 220/15; 228/15; and 463/16.
International: Case Law
Judgments of the German Federal Constitutional Court of: 2018/07/24 (2 BvR 309/15 and 2 BvR 502/16); and 2002/05/15 (2 BvR 2292/00).