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The new state of emergency that will come into force on Tuesday will have an explicit reference, at the request of António Costa, to the possibility of making compulsive confinement of a person without the need for a judge’s decision in this regard, the newspaper Público reported this Sunday. The President of the Republic reportedly agreed to the Prime Minister’s request and included in the declaration of state of emergency an explicit indication that health authorities have the power to order someone to be isolated based on a positive test for Covid-19, a delicate problem because it is a deprivation of liberty that, under normal circumstances, can only be resolved by a judge.
When Marcelo made the first three states of emergency, in March and April, there was an explicit indication of the possibility of mandatory confinements, but it was not clear in the decree of November 5, in which the state of emergency was again declared. In the decree of November 19, however, among the restrictions on the right to liberty, “to the extent strictly necessary and proportional, the mandatory confinement in a health facility, at home or, when not possible, in another place defined by the competent authorities, of people carrying the SARS-CoV-2 virus, or under active surveillance ”.
The issue has been controversial for several months, but it became a more pressing problem when a ruling from the Lisbon Court of Appeal was heard saying that a health authority has no legal capacity to determine the isolation of anyone. This was a case generated by a request for habeas corpus of four German tourists who were forced to stay in quarantine and isolation for 20 days in hotels in the Azores in summer. As there was no state of emergency, the Ponta Delgada court confirmed the Germans’ opinion that the deprivation of liberty was illegal because there was no state of emergency nor was it a decision of a judge.
Also in August, the Constitutional Court equated the mandatory quarantines determined by the Regional Government of the Azores with illegal prisons, considering them unconstitutional. In the opinion of the Ratton Palace, the prophylactic isolation in the hotel for two weeks was compared to a trip to jail, although it was a trip to jail with a “more pleasant environment” but “no recreational time to exercise”.
