Fundamental Rights –Individual Liberty – Deprivation of Liberty
Civil and political rights;
Ruling No. 350/2022
In the Ruling no. 350/2022, of 12 May, the Constitutional Court – sitting in a composition of 5 judges, and by unanimous voting – ruled unconstitutional Article 5-B (2) of the Regime Attached to the Resolution of the Council of Ministers no. 40-A/2020, of 29 May, introduced by the Resolution of the Council of Ministers no. 45-B/2020, of 29 May, of 22 June, in conjunction with paragraph 4 of the latter Resolution and with Article 348 (1) (a) of the Penal Code.
This provision of the Penal Code provides for the offence of disobedience in its modality of so-called ‘improper disobedience’. In contrast with actual disobedience (or ‘disobedience sensu proprio’) – in which an authority or a civil servant issues an order to a person and formally warns him/her that he/she will be committing a crime of disobedience should he/she fail to act in the indicated manner –, in improper disobedience the prohibited behaviour is instead described in the law. It is ‘improper’ in the sense that the concept of ‘disobedience’ is deployed here by the legislator by reference to a behaviour that it has itself defined in a separate legal norm.
In turn, the Resolution of the Council of Ministers no. 45-B/2020 – issued during a situation of calamity enacted in the context of the Covid-19 pandemic – established that (inter alia) commercial establishments in the Metropolitan Area of Lisbon should close at 20h00. The question to be addressed by the Court was that as to whether the latter provision would enable the application of Article 348 (1) (a) of the Penal Code – viz., whether it could be deemed to be one such ‘legal norm which forewarns the punishment’ of disobedient behaviour.
It is worth recalling that, in the face of the Covid-19 pandemic, and for the first under the democratic Constitution of 1976, a state of emergency was declared in Portugal, through Presidential Decree no. 14-A/2020, of 18 March, based on the hypothesis of public calamity contemplated in Article 19 of the Constitution. However, at the time of the acts relevant for the purposes of this case, the country was no longer under such a (constitutional) state of emergency, but rather under a less strict (merely administrative) situation of calamity, where restriction of fundamental rights is much more narrowly admitted.
It constitutes a settled understanding by the Court that the ‘legal norm’ presupposed in Article 348 (1) (a) of the Penal Code is co-constitutive of the criminally prohibited behaviour and that, as such, it must itself meet the requirements of the principle of legality (nullum crimen). In the case, it was from the outset clear that the mentioned Resolution of the Council of Ministers did not satisfy the organic dimension of the principle of legality (nullum crimen sine lege parlamentaria), because it been enacted neither by the Parliament nor by the Government under the authorisation of the Parliament – as required by Article 165 (1) (c) of the Constitution –, but rather by the Government alone.
However, it was yet necessary to ascertain whether that provision of the Council of Ministers indeed established an innovative prohibition, or whether it merely replicated a prohibition stemming from already existing norms that in themselves satisfied the legality principle. In the latter event, the provision of the Council of Ministers would probably not even constitute an actual ‘norm’ whose constitutionality could be assessed by the Court. Only in the former event (innovative prohibition) would there be an actual norm whose organic constitutionality should be assessed.
The obvious candidate among already existing norms was Article 6 (4) of Law no. 27/2007 (Law on the Bases of Civil Protection), as last amended by the Law no. 80/2015, of 3 August, which provides: “Disobedience and resistance to legitimate orders by the competent authorities, when committed during a situation of alert, contingency or [as was the case here] calamity, are sanctioned in the terms provided for in the criminal law and their penalties are always elevated in one third in their minimum and maximum limits”.
However, this provision practically limits itself to calling for application of general ‘criminal law’, to which it adds no innovative content, its apparent purpose being only to elevate the applicable penalties. The fact that such Article 6 (4), unlike the general ‘criminal law’ to which it refers, indicates the administrative situations of alert, contingency and calamity does not constitute a specification of the prohibited behaviour as such, but serves only to denote its context: for the purposes of that Article 6 (4), the prohibited behaviour (whichever it is) is that which is committed during one of those exceptional administrative situations and this is why the applicable penalties are elevated. It was clear that such a provision could not encompass each and every act of disobedience committed during a situation of alert, contingency or calamity, including those (e.g. refusing to cease noise emission after a certain hour) that bear no connection whatsoever to the reasons (in the case, the outburst of a pandemic situation) why such an administrative situation had been declared.
The Government itself had given clear signals that, in its view, the prohibition to close commercial establishments at 20h00 was not already encompassed by Article 6 (4) of Law on the Bases of Civil Protection. Not only, but most notably of all, in paragraph 4 of the Resolution of the Council of Ministers no. 45-B/2020, where it established that “the publication of this Resolution constitutes sufficient forewarning for all legal purposes, including for the purposes of the offence of disobedience”. Were the legislator convinced that Article 6 (4) of Law on the Bases of Civil Protection was a sufficient norm for the purposes of the offence of disobedience established in Article 348 (1) (a) of the Penal Code, and it would have found superfluous to declare that such a Resolution was supposed to give sufficient forewarning for the purposes of that offence.
In sum, the prohibition to close commercial establishments at 20h00 in the Metropolitan Area of Lisbon during that situation of calamity, if taken as a relevant norm for the purposes of the offence of disobedience of Article 348 (1) (a) of the Penal Code, would give rise to an innovative criminal prohibition. Its constitutionality would therefore require that the Resolution where such a prohibition was provided for had been approved by the Parliament or by the Government under the authorisation of the Parliament. Since this had not been the case, the Court held that prohibition to be unconstitutional on organic grounds.