Litigation in respect of fundamental rights and freedoms
Civil and political rights;
Ruling No. 477/2022
The Constitutional Court judged the unconstitutionality of article 43 (6) of Decree no. 2-B/2020 of the Presidency of the Council of Ministers, of 2 of April, which aggravated, in one third, the maximum and the minimum limits of the penalty of the crime of disobedience provided in Article 348(1)(b) of the Criminal Code (CC), regarding acts of disobedience and resistance against legitimate orders issued by a competent authority in accordance with the provisions of this Decree.
I – Following the declaration of the State of Emergency by the President of the Republic, through the approval of the Presidential Decree no. 14-A/2020, of 18 march, the Government approved the Decree no. 2-B/2020 of the Presidency of the Council of Ministers, of 2 of April, with the purpose of executing this declaration. Article 43 (6) of this Decree aggravated, in one third, the maximum and the minimum limits of the penalty of the crime of disobedience provided in Article 348(1)(b) of the Criminal Code (CC), regarding acts of disobedience and resistance against legitimate orders issued by a competent authority in accordance with the provisions of the Decree.
II – During the term of the State of Emergency, the Public Prosecutor's Office accused a person of committing a crime of disobedience, provided by Article 348(1)(b) of the CC, aggravated in accordance with article 43 (6) of Decree no. 2-B/2020 of the Presidency of the Council of Ministers, of 2 of April, following his violation of the general duty of home confinement that was in force and his refusal in complying with an order issued by a police agent to return home.
II - The lower court convicted the defendant for the commission of a crime of disobedience without applying the aggravation provided in article 43 (6) of Decree no. 2-B/2020, of 2 of April, for considering that this provision was unconstitutional from an organic and formal standpoint, due to violation of Article 165(1)(c) of the Constitution of the Republic of Portugal (CRP), which determine that the competence to regulate criminal penalties belongs to the Parliament.
III – In the assessment of the case, the Constitutional Court started by clarifying that the main question at stake was to determine whether the Government has invaded the sphere of competence of the Parliament, by establishing an aggravation of the penalty for the crime of disobedience regarding acts of disobedience and resistance against legitimate orders issued by a competent authority in accordance with the provisions of the governmental decree.
IV - The Court then analyzed the legal framework provided for the state of emergency and underlined that this framework is based on the separation between two different activities: its declaration, by the President of the Republic, and its execution, by the Government. It was noted that the dichotomous relationship between the two activities is based on a conception of the presidential decree as a normative act of authorization of the suspension of fundamental rights, which must be expressly specified (article 19(5) of the CRP).
V- In this regard, the Court refereed to its previous case law (Rulings 921/2021 and 87/2022), where was pointed out that the presidential decree has the important function of delimiting the executive competence of the Government. Therefore, there must be a normative continuity between the discipline enshrined in the declaration of the state of emergency and the regulation issued by the Government in execution of the state of emergency. It was observed that, in this specific case, the presidential decree only authorized the Government to apply the crime of disobedience to the non-compliance or resistance against orders that would be provided in the governmental decree of execution of the state of emergency, without making any reference to the possibility of aggravating the penalty provided in the CC for this offence. The Court further clarified that, even if the presidential decree would have authorized the Government to do so, that authorization would not be valid, because the declaration of a state of emergency cannot affect the constitutional rules of competence and functioning of sovereign bodies (Article 19(7) of the CRP).
VI – Having said this, the Court elaborated on the role of the principle of separation of powers within the framework of the constitutional state of exception, applying a combined interpretation of paragraphs (7) and (8) of article 19 of the CRP. Whereas paragraph (8) states that “Declarations of a state of siege or a state of emergency grant the public authorities the competence to take the steps that are necessary and appropriate for the prompt restoration of constitutional normality”, paragraph (7) has the following content: “Declarations of a state of siege or a state of emergency may only alter constitutional normality in accordance with the provisions of the Constitution and the law. In particular, they may not affect the application of the constitutional rules concerning the competences and modus operandi of the entities that exercise sovereignty or of the self-government organs of the autonomous regions, or the rights and immunities of the respective officeholders”.
VII – The Court underlined that paragraph (8) of article 19 of the CRP must necessarily be interpreted in the light of paragraph (7) of the same provision. It departed from the position previously expressed by its 3rd Section in Ruling 352/2022 and stated that the separation of powers and the definition of the competences of sovereign bodies constitute negative limits to the regime of the constitutional state of exception, which remain intact during its term. This status quo can only be changed by the Constitution. According to the Court, a different interpretation recognizing sufficient legal authority in paragraph 8 of Article 19 for the Government to legislate on matters that the CRP reserves to the competence of another sovereign body would distort the objective and the purpose for which the reservation of competences of the sovereign bodies was enshrined, as a negative and insurmountable limit of the constitutional state of exception. In short, this view would enable a suspension of this guarantee, which was peremptorily refused by the Court.
VIII – In the light of this, the Court concluded that the controlled norm was unconstitutional, because the Government lacked the competence to establish the aggravation of a criminal penalty, in accordance with Article 165(1)(c) of the CRP.