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The Constitutional Court (CCR) rejected, this Tuesday, the notification of the Ombudsman’s Office on two articles of the Quarantine Law.
“On October 20, 2020, the Plenary of the Constitutional Court, in post-enactment control, by unanimous vote regarding the provisions of paragraphs 3 – 9 of article 8 and paragraphs 2 to 6 of article 19 of Law No. 136/2020 on the establishment of measures in the field of public health in situations of epidemiological and biological risk and with a majority of votes with respect to the provisions of article 19 paragraph 1 of the same law, to refuse, as unfounded, the unconstitutionality exception and found that the provisions of Article 8 paragraphs (3) – (9) with reference to the phrase “isolation in a sanitary unit or in an alternative place attached to the sanitary unitAnd article 19 of Law No. 136/2020 on the establishment of measures in the field of public health in situations of epidemiological and biological risk are constitutional in relation to the criticisms made. The decision is final and generally binding and is communicated to both Houses of Parliament, the Government and the Ombudsman’s Office ”, announces CCR.
CONTEXT
The Ombudsman argued in the complaint that the mandatory internment measure (compulsory isolation in a health unit), which has the characteristics of a measure that restricts freedom, should be a measure of last resort, once all other remedies have been exhausted. possible.
However, in the case of highly contagious diseases, this requirement established in principle in the jurisprudence of the European Court of Human Rights and the Constitutional Court is not met, with the legislator providing mandatory isolation for 48 hours, as a first resort measure, established by “Isolation, as defined in article 3 letter o) of the law, has the characteristics of a restrictive measure of the compulsory freedom of hospitalization, the considerations of Decision 458/2020 being applicable”, states the document.
Likewise, says the Ombudsman, the provisions of article 8 (3) to (9) do not meet the requirements in principle established in the recitals of Decision 458/2020 of the Constitutional Court on free access to justice, which emphasizes that a right of access to de facto justice, “is not only characterized by the possibility that the court examines all the means, arguments and evidence presented and pronounces itself, but also by the fact that the solution pronounced removes the alleged infraction and its consequences for the offender ”.
The Ombudsman’s Office considers that the regulation of the possibility of isolation at home and of diseases considered highly contagious (not only for low-risk diseases), as well as the right of the judge to order the replacement of isolation in a health unit by the isolation measure at home would have responded to the requirements established by the Constitutional Court and the European Court of Human Rights ”, it is also specified in the notification.
Regarding the provisions of article 19 of Law 136/2020, the Ombudsman’s Office mentions that they have a greater degree of unpredictability, given that, in the absence of provisions that limit the number of assignments of the same person during the alert, the assignment may be extended. , in fact, sine die.
“(…) The provisions relating to the ‘assignment’ of medical, paramedical and specialized auxiliary personnel of the public system are deficient, limiting themselves to expressly regulating only the possibility that the competent authorities order the ‘assignment’ / transfer, without establishing the specific conditions (…) Likewise, the lack of an express text that establishes the conditions for the termination of the commission of service before the order, leads to the unpredictability of the criticized text of law and, therefore, to the violation of article 1 paragraph (5) of the Constitution, because, from case to case, in an arbitrary manner, it is possible to decide, through administrative acts, on the labor relations of the professional categories provided for in the hypothesis of the norm ”. mentioned in the document.
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