Fundamental Rights - Deprivation of Liberty
Civil and political rights
Ruling No. 87/2022 - Appeal
Subject Matter – Fundamental Rights - Deprivation of Liberty
Keywords of the Alphabetical Index:
Civil and political rights
The Constitutional Court decided that the rule contained in the Article 3, no. 1, subparagraph b), of Decree no. 9/2020, of 21 November, of the Presidency of the Council of Ministers (establishing a measure of mandatory confinement) was not unconstitutional, because it was approved while the state of emergency was in force.
I - The Constitutional Court was summoned to decide an appeal lodged against a decision handed down by the Criminal Investigation Court of Sintra which, granting the request for habeas corpus presented by the applicant, had refused to apply the rule contained in the Article 3, no. 1, subparagraph b), of Decree no. 9/2020, of 21 November, of the Presidency of the Council of Ministers. The provision in question had the following content: “Mandatory confinement in a health establishment, at home or, if that is not possible, in another place defined by the competent authorities is imposed to: (…) b) Citizens that were subject to active surveillance by the health authority or by other health professionals”. This rule was considered unconstitutional by the abovementioned Court in the context of the assessment of a request for habeas corpus presented by a person who was in prophylactic isolation at his home by imposition of the health authorities, due to a contact with a person infected with Covid-19.
II - The Constitutional Court began by assessing the claim of organic unconstitutionality raised by the Criminal Investigation Court of Sintra. This argument was based on the premise that the state of emergency cannot affect the constitutional distribution of powers between the different sovereign bodies (article 19, no.7, of the Portuguese Constitution), which led that Court to conclude that the restrictive measure of the right to individual liberty provided for in the provision at stake had violated the legislative competence of the Portuguese Parliament (Article 165, no. 1, subparagraph b), of the Portuguese Constitution). In evaluating this argument, the Constitutional Court stressed that the situation under analysis was different from the one that had been assessed in a previous landmark decision (Ruling 424/2020). In fact, that decision had focused on provisions that imposed the measure of mandatory confinement when the state of emergency was not in force. Instead, at the time it was only in force a “situation of disaster”, which is a framework that has no specific constitutional relevance for the purposes of suspension of rights, freedoms and guarantees, contrary to what happens with the state of emergency, configured as a constitutional state of exception.
III - The Constitutional Court underlined that, in the present case, the controlled Decree had not only been approved following a Decree issued by the President of the Republic to renew the state of emergency, but was also aimed at regulating it. Bearing in mind that the Decree issued by the President of the Republic had expressly established the partial suspension of the right to individual liberty, it was considered that the controlled provision still fell within the normative scope of the suspension of rights established by the President of the Republic. In the Court’s view, that provision simply aimed to clarify the alternative location of the confinement and that the competence to designate the group of citizens subject to active surveillance pertained to health authorities or other health professionals. Consequently, the Court concluded that the controlled provision was still within the limits outlined in the presidential Decree that had instituted the state of emergency, and therefore could not be considered unconstitutional from an organic standpoint.
IV - Having said this, the Constitutional Court then proceeded to assess the claim of formal unconstitutionality presented by the abovementioned Court, which was based on the premise that the controlled norm should had been provided in a legislative act of the Government (decree-law) and not in a simple decree of the Presidency of the Council of Ministers, which lacks legislative value. Here again, the Court disagreed with this reasoning. After comparing the controlled Decree with the Presidential Decree that had instituted the state of emergency, the Court concluded that the controlled norm did not have an innovative scope, but rather sought to clarify that the situation of active surveillance was defined by the health authorities and other professionals. In the Court's view, such densification did not introduce any material requirements regarding the content of the suspension of the fundamental right, and therefore did not have a materially innovative nature. Instead, the controlled norm simply aimed to regulate and execute the content of the primary regulation contained in the Presidential Decree.
IV - Therefore, the Constitutional Court ruled that the controlled norm was not unconstitutional.
Constitutional Court Rulings nos: 424/20, Bulletin 2021/2 [POR-2021-2-005]