[ad_1]
Through a judgment of November 9, to which Lusa had access today, said court highlights that, according to the Constitution, “the classification of criminal typologies is a matter of relative reserve of the Assembly of the Republic (AR).”
“There is no doubt that the creation of new crimes is the responsibility of the RA in the first line, and it may also be the responsibility of the Government, but only with the authorization of the RA,” he adds.
It concludes, therefore, that “the Government did not show that it was capable of defining what was criminal,” so that the decree that makes the violation of compulsory confinement a crime “is wounded by organic unconstitutionality” and “is void.”
This is the decree of March 20 of the Council of Ministers, which carries out the declaration of the state of emergency made by the President of the Republic.
In the decree, the Government determines that patients with covid-19 and those infected by SARS-Cov-2, and those with whom the health authority or other professionals remain in mandatory confinement, in a health facility or at their home, Health professionals have determined active surveillance.
It also says that “the violation of the obligation of confinement, in the cases provided for in the preceding paragraph, constitutes a crime of disobedience.”
In the Court of Chaves (Vila Real), a man was sentenced, based on that decree, to a 120-day fine, the daily rate of 15 euros, for a crime of disobedience, for having violated the prophylactic isolation that had been determined by authority. sanitary location.
The defendant appealed to the Guimarães List, which now acquitted him on the grounds that this decree, in its genesis and with respect to the crime of disobedience, “does not respect the Constitution, for violating the relative reserve of competence of the Assembly of the Republic.”
The Relação emphasizes that the concern to contain the spread of the virus cannot make us forget “the respect due to the democratic foundations of society”, because “democracy cannot be suspended”.
He also says that the creation of a new type of crime “obviously goes far beyond the administrative jurisdiction invoked to regulate the state of emergency.”
The court warns that, taking into account the content of the resolution of the Assembly of the Republic of March 18 that authorized the President of the Republic to declare a state of emergency, “it is not withdrawn from it that it contains an authorization for the Government to create a new kind of crime. “
“It is not enough to stipulate that some rights are partially suspended, namely, the right to travel, to withdraw from there without further acceptance that the suspension of rights automatically implies the criminalization of the conduct,” the sentence reads.
