Decision concerning the unconstitutionality of the rule contained in Article 348 paragraph 1-a) of the Criminal Code and Article 3 paragraphs 1-b) and 2 of Decree 2-B/2020 of the Presidency of the Council of Ministers, punishing the violation of the duty of confinement as a crime of disobedience
Rule of Law; Proportionality; Executive bodies; Powers
RULING No. 921/2021
9 December 2021
I – Facts and context of the proceedings before the Portuguese Constitutional Court
A person came into contact with a person infected with COVID-19. A State of Emergency had been declared and was then in force because of the pandemic.
The health authorities determined the prophylactic isolation of the citizen in his home for 14 days, but he left home during that period.
In Portugal, the State of Emergency is declared by the President of the Republic, after hearing the Government and being authorized by the Parliament, and is executed by the Government, through rules laid down in a Government decree. The Government established in its decree that the violation of the duty of confinement determined by the health authorities entailed the commission of a disobedience crime.
The above-mentioned person was tried in criminal proceedings, charged with disobedience.
However, the Criminal Court refused to apply the Government decree, considering that a new crime was at stake, which the Government had no competence to create. Therefore, the accused person was acquitted.
The Public Prosecutor appealed this decision to the Constitutional Court.
II – Question to be examined by the Constitutional Court
The unconstitutionality of the rule contained in Article 348 paragraph 1-a) of the Criminal Code and Article 3 paragraphs 1-b) and 2 of Decree 2-B/2020 of the Presidency of the Council of Ministers, punishing the violation of the duty of confinement as a crime of disobedience.
III – The Constitutional Court’s assessment
III.A. The Court began by giving some context, namely describing the emergence of the COVID-19 pandemic and the measures adopted by the constitutional bodies, including the declaration of the State of Emergency.
III.B. Next, the Court set itself to assess if the provision of a disobedience crime in the Government decree was truly innovative. The Law of the State of Siege and State of Emergency (hereinafter referred to as LSSSE) already provided, in its Article 7, for a crime of disobedience by «infringement of the provisions of the declaration of the state of emergency or of the state of emergency or of this law, in particular as regards its execution». Consequently, only if the Government had gone beyond that legal provision would it have exceeded its powers.
III.C. The Court noted that the legislator did not intend to restrict the crime provided for in the LSSSE. That crime can be committed by any person and includes acts of disobedience of rules approved by the Government executing the State of Emergency.
III.D. The compatibility of the decree with the principle of determinability of the law was also addressed by the Court. It held that the scope of the crime provided for in the LSSSE is broad and comprehensive but is not undetermined. There is a legal and logical continuity between the LSSSE, the authorization by Parliament, the Declaration of State of Emergency by the President of the Republic and the Government decree implementing it. The main issue is to determine whether such a continuity allows any average person to establish a connection between a prohibited conduct (leaving home) and the acts that prohibit it. The Court deemed the legal continuity especially important whenever a disobedience crime is at stake. This particular crime depends on the existence of other normative acts and its commission unfolds in different moments: a normative moment (the legal provision that a certain behavior entails the commission of a disobedience crime) and an afterwards moment when a human action takes place (failing to obey a rule or an order).
III.E. The Court stated that any person faced with Article 7 of the LSSSE who was aware of the suspension of the right of movement authorized by the Parliament and declared by the President of the Republic would easily relate these rules to the duty of confinement provided for in the Government decree. Therefore, the law is not indetermined. The sequence of relevant acts allows any person to understand the connection between the Declaration of the State of Emergency and its execution.
III.F. For the above reasons the Court concluded that the Government did not create a new crime by criminalizing the violation of the duty of confinement. Consequently, it has not exceeded its powers, so the rule is not unconstitutional. Thus, the decision of the Criminal Court was reversed.
RL 352/21. RL 123/21. RL 276/89. RL 729/14. RL 106/17. AC 261/20.