Litigation in respect of fundamental rights and freedoms
Civil and political rights;
Ruling No. 490/2022 - Appeal
The Constitutional Court, in its Second Chamber, decided that the rule contained in Article 3, no. 1, subparagraph b), of the Regimes Attached to the Resolutions of the Council of Ministers no. 135-A/2021, of 29 September and 114-A/2021, of 20 August, under which citizens for whom the health authority or other health professionals have determined active surveillance stay in mandatory confinement, in a health establishment, at home or, if this is not possible, in another place defined by the competent authorities, was unconstitutional on formal and substantial grounds because it infringed Article 27, nos. 2 and 3 as well as Article 165, no. 1, subparagraph b) of the Constitution (CRP).
I - The Constitutional Court was summoned to decide an appeal lodged against a decision handed down by the Criminal Investigation Court of Santarém which, granting the request for habeas corpus presented by the applicants, had refused to apply the rule contained in Article 3, no. 1, subparagraph b), of the Regimes Attached to the Resolutions of the Council of Ministers no. 135-A/2021, of 29 September and 114-A/2021, of 20 August. The rule in question stated that citizens for whom the health authority or other health professionals have determined active surveillance stay in mandatory confinement, in a health establishment, at home or, if this is not possible, in another place defined by the competent authorities.
This rule was considered unconstitutional by the abovementioned Court in the context of the assessment of a request for habeas corpus presented by an applicant who had been in prophylactic isolation for 12 days, not being able to leave her home, due to having had a risky contact with a person infected with Covid-19.
II – The Constitutional Court began assessing the claim of organic unconstitutionality. According to the court of Santarém, there was a restriction over a self-executing fundamental right caused by an act of the government. In effect, restrictions of that type are under the legislative competence of the Portuguese Parliament [Article 165, no. 1, subparagraph b), of the Portuguese Constitution]. Hence, the restriction in place was deemed unconstitutional.
The Constitutional Court then recalled its case-law, specially Ruling No. 334/2022, and stated that - considering the absence of a legislative permission by the Parliament to the government - this restriction of fundamental rights disrespected the Constitution. As a consequence, in this part, the Court upheld the appealed decision.
III – Regarding the claim of substantial unconstitutionality, the Constitutional Court first addressed the issue of distinguishing the fundamental right of Article 27 (right to freedom) from the one in Article 44, no. 1 (right to free movement). Following an extensive analysis on both, including reflections about doctrinal thoughts and compared constitutional law (Sentenza n.º 127 of 2022, 7 Abril, of the Italian Constitutional Court; Application no. 49933/20 of the ECtHR), the Court said the expressly authorized restrictions on the right to liberty, contained in Article 27, no. 3 of the CRP, are prefigured as circumstances in which the person, in addition to being impeded from their freedom to move, in the terms defined therein, is placed, against their will, in the dependence of an authority with far reaching powers over their self-determination, something that has profound implications for the exercise of their freedom in realms that go beyond the simple freedom to come and go, enter or leave a public or private space.
In other words, the person – who, in practise, is institutionalized - loses a significant degree of control over their own life, and is unable to freely make a series of decisions that affect them (e.g. their schedules; their meals; with whom they share spaces; etc.). This is the reason why the Constitution only allows for a very limited, exhaustive, well-founded and exceptional set of situations of restriction of individual liberties
IV - The Constitutional Court stated that the most typical restrictive measure of confinement, i.e. the obligation to remain at home for a period of time previously fixed by the competent administrative authority and of short duration, entails a narrower sacrifice than other forms of deprivation of personal freedom. In the present case, the aforementioned interpretation certainly does not mean it equals detention or imprisonment. The person undergoing prophylactic isolation retains a large margin of discretion concerning the decisions about their life. So much so that Article 44, CRP could eventually serve as the standard of control in face of specific normative shapes, which constrain the freedom of movement per se.
Irrespectively, the Constitutional Court must also appraise the context of administrative emergency caused by the pandemic and the corresponding need to adopt measures to protect public health and the sustainability of the national health service (SNS). Article 64, no. 1, of CRP addresses the the problems caused by public health demands, by imposing duties upon the citizens, irrespectively of being directly disturbed by the disease, and by making the State constitutionally responsible for providing the protection of public health.
V - Notwithstanding, the indeterminable nature and extent of the constraint of personal liberty allowed by the controlled rule in casu were so evident (lack of a maximum time limit and conditions of prorogation; lack of procedures for judicial review; unclear surveillance means) that the standards to be observed must be extracted from right of freedom, enshrined in Article 27. In effect, the exceptions set in Article 27, no. 3, CRP encircle with precision the current situation of deprivation of liberty in a context of institutionalisation as is the mandatory confinement inter alia in a health establishment (see Ruling No. 424/2020). As a result, considering that the rule in question does not match any of the possibilities foreseen in Article 27 no. 3, said rule is unconstitutional.
All in all, in this case, mandatory confinement vis-à-vis prophylactic isolation represents a deprivation of freedom that falls under the scope of protection of Article 27, whereby – apart from condemnatory court sentences (no. 2) – solely the exceptions of its no. 3 are lawful.
VI - Therefore, the Constitutional Court ruled that the norm under scrutiny was unconstitutional.