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The measures announced by the Government, within the scope of the State of Emergency, are according to the Portuguese Bar Association (OA), “a very strong restriction of the right to rest”, recreation and “weekly rest for workers.”
The Order considered the decree of the President of the Republic on the state of emergency and the measures announced by the Prime Minister and recalls that the diploma says that “it has a very limited scope and has mainly preventive effects.”
However, OA understands in a note sent to the Lusa agency, that this is not what happens, “since its art. 4th, although vaguely, it establishes strong limitations on the rights to freedom and movement, private, social and cooperative initiative, the rights of workers and the right to free development of the personality and the negative aspect of the right to freedom. Health “.
For this reason, the Government has already announced “the curfew in 121 municipalities of the country, which covers seven million people, that is, around 70% of the population.” This measure constitutes “a very strong restriction of the right to rest and recreation and weekly rest for workers, guaranteed by art. 59, paragraph 1, d) of the Constitution of the Portuguese Republic (CRP) ”.
In practice, “a large part of the Portuguese population was left with the right to leave home and go to work,” he says. For the Order, the partial curfew is “clearly contrary to the principle of proportionality, which governs the declaration of a state of exception (…), and in any case it is evident that there are very harsh measures and that there is nothing limited or preventive, contrary to what is said ”.
According to the CRP, the state of exception “can only determine the suspension of some of the rights, freedoms and guarantees susceptible to suspension” and that it must “respect the principle of proportionality and limit itself, that is, with regard to its extension and duration and means used, to what is strictly necessary for the prompt restoration of constitutional normality ”, recalls the Order.
The Constitution also establishes that “in no case may it affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, non-retroactivity of criminal law, the right to defense of the accused and freedom of conscience. and of religion ”.
The Lawyers’ Order draws attention to the fact that Decree (51-U / 2020) does not expressly establish that the effects of the declaration of the state of exception do not affect, in any case, the rights to life, to personal integrity, to personal identity, civil capacity and citizenship, non-retroactivity of criminal law, defense of the accused and freedom of conscience and religion, and freedom of expression and information.
Nor does the diploma mention that in no case “can the principle of the unitary State or the territorial continuity of the State be questioned and that the Attorney General’s Office and the Ombudsman’s Office must remain in permanent session during the State’s mandate?” emergency ”, reservations in previous releases.
“Its omission (…) is a worrying indication of a lower protection of the fundamental rights of citizenship in the face of an extremely vague declaration of a state of exception and that can be considered a carte blanche to excessively restrict constitutional rights,” he observes the order. .
