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Mandatory confinement is now included in the state of emergency decree that will take effect on Tuesday following a request from the government, the PUBLIC learned. It was the Prime Minister who asked the President of the Republic to make this clarification, since the decree currently in force does not expressly say anything about compulsory isolation.
The attention to this issue, which since the beginning of the pandemic has been one of the most controversial in terms of the current legal framework, was carried out after the sentence of the Lisbon Court of Appeals in which the judges argue that it cannot be the health authority to determine the isolation of any person, solely on the basis of a positive test. And they insisted that, in the case of deprivation of liberty, it should be decided by a judge.
Aside from the question of the reliability of the evidence, the issue raised in this particular case concerned 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 August. At that time, there was no state of emergency, and the Ponta Delgada court gave reasons to German citizens regarding the illegal nature of this deprivation of liberty.
The same type of issue had also deserved, in August, a decision of the Constitutional Court, which equated the mandatory quarantines determined by the Regional Government of the Azores with illegal prisons, considering them unconstitutional. At the sentencing, the Ratton Palace judges compared prophylactic isolation in the hotel for two weeks in jail, albeit in a “nicer setting” but “no recreational time to exercise.”
In the opinion of the different judicial bodies and also of the constitutionalists, compulsory detention that is not determined by mental health issues (as provided for in a specific law) can only be compulsory in the context of the state of emergency. This is because it is a restriction on individual freedom and, therefore, outside of this exceptional framework, it would have to be decided by a judge.
In the first three decrees of the state of emergency, in March and April, Marcelo Rebelo de Sousa expressly provided for the possibility of mandatory confinement within the range of restrictions necessary to reduce the risk of contagion and implement measures to prevent and combat the epidemic. But he did not do so so clearly in the decree of November 5, when he declared a state of emergency again.
Restriction of freedom
Now, Marcelo explains this issue again in the decree of November 19. In the restrictions on the right to liberty, “to the extent strictly necessary and proportionally, mandatory confinement in a health facility, at home or, when not possible, in another place defined by the competent authorities, of the people with SARS-CoV-2 virus, or under active surveillance ”.
“It was a curious evolution”, analyzes Jorge Bacelar Gouveia, professor of Constitutional Law at the Universidade Nova de Lisboa, also linking the decision with the judgment of the Relação de Lisboa.
José de Melo Alexandrino, from the University of Lisbon, corroborates and adds that, for the first time, Marcelo Rebelo de Sousa places confinements within the scope of restricting the right to freedom, and no longer only the right of movement, as made in the first decrees. “It did well, it is safer and more extensive”, considers Alexandrino, since “the isolations affect the right to freedom and that was not explicit” in the first wave decrees.
Since the beginning of the pandemic, the issue of mandatory confinements has been controversial, with some jurists at the beginning arguing that the Basic Health Law, in its Base 34, granted autonomous power to the health authority to “shoot, according to the Constitution and the law, internment or compulsory medical care for people who would otherwise be a danger to public health ”.
However, constitutionalists understand that, in the absence of a sanitary emergency law that specifically limits the confinement caused by an infectious disease, it will be necessary to resort to the Constitution, and in particular to the state of emergency, to force someone, infected or in quarantine, to keep them at home or elsewhere. The various judicial decisions, in the Azores courts, in the Lisbon Court and in the Constitutional Court, confirmed this understanding.
Outside of the state of emergency, a court order will always be required to force someone to stay home. In the context of the state of emergency, the health authority now has this effective power, in accordance with the Basic Health Law. “That’s what the state of emergency is for, to restrict rights, otherwise it is useless.” , defends Bacelar Gouveia.
