Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Portugese Constitution distinguishes between the state of siege (a higher-degree emergency affecting public order and security of the country) and the state of emergency (a lower-level calamity). In addition, certain emergency measures can be ordered either by virtue of the special legislation on health risks, on the civil protection etc., Finally, some measures can be ordered by the legislative decrees of the executive.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The constitutional provisions on the state of emergency are specified in the Organic Law on the State of Siege and the State of Emergency No. 1/2012, of 11 May 2012, that modified and republished the Law nº 44/86, of 30 September 1985, which has the status of an organic law (for the text in Portuguese click here. For the text in English click here.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
In a situation where there are serious health risks, or in other case that require a prompt contingency response, outside the exceptional conditions of declaration of the state of siege or emergency, the ordinary law (Framework Law of Civil Protection - Law nº 27/2006, of 3 July 2006) foresees three levels of intervention according to the seriousness of the situation: alert situation, contingency situation, and public calamity.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Some original measures were taken by the executive on the basis of the legislation on health risks (see Q3) or by virtue of the Government's decree-laws (click here for the March 2020 Decree Law, in Portuguese.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The declarations of a state of emergency by the President of the Republic were approved by the Assembly of the Republic, after debate , and in the constitutional form of Resolution (art. 166, (5) of the Constitution), and preceded by consultation with the Government, in accordance with the procedure established in the Constitution and the Organic Law.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The declaration of a state of emergency was issued in the exercise of a political competence of the President of the Republic provided for in the Constitution, and is not, as such, subject to judicial control, as it has the nature of a constitutional political act enabling the exercise of the competence of the Government through legislative or administrative implementing acts; the Government acts are subject, in general terms, to judicial review by the Constitutional Court, which oversees the constitutional conformity of legislative acts and asses the legality of rules on grounds of infringement of superior law (those laws which require a qualified majority for approval). In the concrete application, the implementation acts by the Government or by competent public entities, are subject to concrete constitutionality assessment by the competent courts (by ordinary courts if it concerns rules or Regulations; by administrative courts if it concerns administrative acts) in general terms, with recourse to the Constitutional Court restricted to the issue of constitutionality.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
The declaration of a state of emergency allows the competent authorities to provide for rules determining certain limitations in the exercise of fundamental rights, under the terms defined by the content of the declaration.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Pursuant to the Presidential Decree declaring a state of emergency in the context of the pandemic COVID 19, as well as renewal declarations, some rights have been restricted.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Outside the period of validity of the state of emergency (see Q1), the Government has special powers granted by the Framework Law of Civil Protection (Law No. 27/2006, of July 3), namely the declaration of the calamity situation, when, in face of occurrence or danger of the occurrence of a serious situation likely to cause damage or victims , which severely affects living conditions and the socio-economic capacity in areas or in the entire national territory.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The executive does not have any power or possibility to change or derogate from the normal allocation of powers : the Organic Law provides that the declaration of a state of emergency may only alter constitutional normality under the terms laid down by the Constitution itself and by the Organic Law, and may not affect the application of constitutional rules on the competence and functioning of sovereign bodies and organs of self-government of the autonomous regions, as well as the rights and immunities of their holders.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
During the state of emergency, the Assembly of the Republic functions normally, exercising its usual powers.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
During the state of emergency determined by COVID-19 , the courts maintained all their powers, functions and responsibilities. Some new rules/procedures were introduced for sanitary reasons; procedural deadlines were suspended to avoid prejudice to the interested parties. However, all claims related to the exercise of fundamental rights during the state of emergency could be submitted to the courts in the usual manner. Where possible, the law provides for the use of means of remote communication, such as videoconferencing.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Constitutional and legal framework concerning states of emergency, as defined in the Constitution and in the Organic Law, has not been subject to any modification during face the pandemic.
14. Was this additional legislation subject to judicial review?
Not applicable - see Q13
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
The declaration of the state of emergency by the President of the Republic fixed the duration of fifteen days, and was renewed twice by the President of the Republic, with minor changes, for periods of fifteen days; the renewal procedure is the same as the procedure for the declaration.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
The individual remedies available are the usual ones and ensure full access to courts; the state of emergency and the extraordinary situation of public calamity add nothing to the current regulations, and do not remove emergency measures from the general system of access to courts.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
During the period of the state of emergency there has been no elections at national, regional or local level.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No elections at the local level
Portugal
Article 19 of the Constitution ("Suspension of the exercise of rights") provide for the constitutional basis for a declaration of states of exception:
"1. Entities that exercise sovereignty may not jointly or separately suspend the exercise of the rights, freedoms and guarantees, save in the case of a state of siege or a state of emergency declared in the form provided for in the Constitution.
2. A state of siege or a state of emergency may only be declared in part or all of Portuguese territory in cases of actual or imminent aggression by foreign forces, a serious threat to or disturbance of democratic constitutional order, or public disaster.
3. A state of emergency is declared when the preconditions referred to in the previous paragraph are less serious, and may only cause the suspension of some of the rights, freedoms and guarantees that are capable of being suspended.
4. Both the choice between a state of siege and a state of emergency and the declaration and implementation thereof must respect the principle of proportionality and limit themselves, particularly as regards their extent and duration and the means employed, to that which is strictly necessary for the prompt restoration of constitutional normality
5. Declarations of a state of siege or a state of emergency shall set out adequate grounds therefore and specify the rights, freedoms and guarantees whose exercise is to be suspended. Without prejudice to the possibility of renewals subject to the same limits, neither state may last for more than fifteen days, or when it results from a declaration of war, for more than the duration laid down by law.
6. In no case may a declaration of a state of siege or a state of emergency affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, accused persons' right to a defence, or the freedom of conscience and religion.
7. Declarations of a state of siege or a state of emergency may only alter constitutional normality in accordance with the provisions of the Constitution and the law. In particular, they may not affect the application of the constitutional rules concerning the competences and modus operandi of the entities that exercise sovereignty or of the self-government organs of the autonomous regions, or the rights and immunities of the respective officeholders.
8. Declarations of a state of siege or a state of emergency grant the public authorities the competence to take the steps that are necessary and appropriate for the prompt restoration of constitutional normality.
With regard to procedures , Article 134 provides in p. d) that it is within the President's powers "to declare a state of siege or a state of emergency, in compliance with the provisions of Articles 19 and 138". Article 138 of the Constitution provides that the "declaration of a state of siege or a state of emergency requires prior consultation of the Government and authorization by the Assembly of the Republic [Parliament], or, if the Assembly is not sitting and it is not possible to arrange for it to sit immediately, by its Standing Committee; when a declaration of a state of siege or a state of emergency is authorized by the Assembly of the Republic's Standing Committee, that declaration will then to be confirmed by the Plenary as soon as it is possible to arrange to it for sit".
The organic law contains the rules related to nature and purposes of a state of emergency, sets the limits to the exercise of rights and guarantees by citizens, introduces the requirements of adequacy and proportionality, governs territorial coverage and duration of the state of emergency and guarantees the right of access to courts. This organic law also regulates the powers and constitutional competences for declaration and implementation of the state of siege or the state of emergency.
In addition, certain measures are described by the Framework Law on the Health Protection (for the text in Portugese click here and the Law on Law on Public Vigilance of Health Risks, which provides for measures which can be adopted by the executive in case of a public health emergency (including the closure of businesses or isolation of sick persons) - for a text in Portugese click here.
Quick spread of the COVID 19 disease required the adoption of exceptional containment measures that could only be taken within the constitutional framework defined for the state of emergency.
The state of emergency was first declared by a Decree of the President of the Republic, nº 14-A/2020, of March 18, with the duration of fifteen days, and, by declarations of the President of the Republic (Decrees nº 17-A/2020, of April 2 and 20-A/2020, of April 17), it was renewed twice for periods of fifteen days each.
The declarations of a state of emergency by the President of the Republic were authorized by the Assembly of the Republic, after debate and approval, and in the constitutional form of Resolution (art. 166, 5 of the Constitution), and preceded by consultation with the Government, in accordance with the procedure established in the Constitution and the organic law.
For the English text of the Decree and the Resolution by Parliamnet click here.
None of the Government decrees in the context of the state of emergency has been subjected to abstract judicial review of constitutionality or legality.
The circumstances and grounds for declaring a state of emergency are set out in the Constitution and in the Organic Law.
The Portuguese Republic did not use the measure provided for in Article No. 15 of the ECHR or other international instrument.
During a state of siege or a state of emergency, the Constitution and the Organic Law guarantee the absolute inviolability of the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, accused persons' right to defence, or the freedom of conscience and religion, and the state of exception cannot affect the application of the constitutional rules concerning the competences and modus operandi of the entities that exercise sovereignty or of the self-government organs of the autonomous regions, or the rights and immunities of the respective office holders.
The Constitution and the Law Organic, directly and explicitly impose that the choice and application of the measures should be made according criteria of appropriateness and proportionality - See Article 19, paragraph 4, of the Constitution, and, in the event of a state of siege or state of emergency, citizens shall retain their full right of access to courts, in accordance with general law, to defend their rights, freedoms and guarantees damaged or threatened with damage by any unconstitutional or illegal measures – See Article 3 of the Organic Law.
The Decrees of declaration and renewal of the state of emergency set out, in a direct and very detailed way, the rights that could be subject to limitations, as well as the possible scope of those limitations.
The first renewal declaration decree was the most detailed, in face of circumstances that existed at that time.
Under the terms of the Decree of the President of the Republic, the Government could determine, whenever necessary and appropriate in accordance with the principle of proportionality, restrictions on the right to circulate and to remain anywhere in the national territory; to property and private economic initiative rights; workers' rights; the right of international movement; the right to assemble and demonstrate; freedom of worship in its external dimension; freedom to learn and teach.
In exercising its powers to determine and implement the necessary measures to face the spread of the epidemic and control its effects, the Government, regarding the limitations, used criteria of minimum intervention and opted, to the extent possible, for the creation of some duties, with appeal citizens to respect them, but without direct sanction.
In Enforcement Decrees (nº 2-A/2020 of March 20; 2-B/2020, of April 2 and 2-C/2020, of April 17), restrictions on the right to circulate were established at various levels of intensity: mandatory confinement of the infected person at home in another appropriate location; special duty of self-protection of certain categories of people at greater risk of suffering severe health consequences in case of contamination (citizens over 70; immuno-depressed, diabetic, patients with chronic, cardiovascular or respiratory diseases) with the obligation to remain at home and only with the possibility of displacing in cases expressly provided for; and a general duty of confinement at home for other people, albeit with an extensive list of exceptions justified by objective reasons.
Property and private economic initiative rights have been limited by the mandatory opening and functioning of establishments or companies essential to community life and the provision of health services, as well as by the imposition of temporary closure or limitation to the functioning of certain activities that, due to their nature, were likely to create high contagion risks in the context of the pandemic situation (listed in Annex II of Decrees); safety rules were established for the operation of the activities allowed during the exception. Within the scope of the restrictions on the right to use the property and relative rights, it was determined that certain contents of the non-housing lease agreement were suppressed (the closure of facilities and establishments cannot be invoked as a basis for resolution, denunciation or other contractual forms of real estate use); and the civil requisition of establishments or services necessary to combat the disease COVID-19.
Workers' rights were conditioned by the obligation to accept changes in working conditions due to public interest requirements (working hours, jus variandi, workplace); the right to strike was limited with regard to essential and unavoidable services.
With regard to international movement, border controls on persons and goods, including health checks, could be determined, in articulation with the European authorities and in compliance with the Union Treaties, as well as all measures necessary to ensure the international movement of essential goods and services.
Concerning freedom of worship, celebrations of a religious nature and other worship events involving a gathering of people were prohibited; in the case of funerals, the obligation to respect a maximum attendance limits to be determined by the competent local authorities, with respect for safety distances between people were foreseen.
In order to prevent the risk of contagion, school activities with physical presence were suspended and replaced, in technically possible conditions, either through teaching activities by remote means or transmitted through public television.
The specific measures were taken by the Governmental Decrees, implementing the President's declaration of the state of emergency (as approvide by Parliament). An example of such decree can be found here and here.
In first phase of the fight against the pandemic, the government has determined some specified restrictions (Decree-Law nº 10-A/2010 of March 13): suspension of teaching and formative activities with physical presence, interdiction of tours organized by finalist students, access restrictions or conditions imposed on some establishments (restaurants and bars), prophylactic isolation determined by health authorities, and the possibility of unilateral imposition of teleworking regime; in the context of public calamity , a “sanitary fence” was delimitated in the territory of a municipality affected by an epidemiological situation with active community transmission through the adoption of exceptional measures for two weeks: interdiction of circulation on the public roads and spaces, except for necessary and urgent cases (buying food, pharmacies, health reasons, access to the workplace, if located in the area of the municipality, assistance to elderly, minors etc.); closure of commercial or industrial establishments, except those that provide essential services ; interdiction of entering or leaving the municipality, except in specifically defined cases (Resolution of the Council of Ministers nº. 10-D/2020, of March 19) .
Judicial management bodies (Superior Councils and the Attorney General's Office) determined procedures regarding the use of means of remote communication, in order to limit the physical presence of magistrates, bailiffs or people in the court buildings.
The legislation implementing the state of emergency, as determined by specific reasons resulting from the pandemic, applies only to the emergency situation imposed by COVID 19 in terms defined by emergency laws.
There is no information about the invalidation of emergency measures by the courts; however, it is not excluded that individuals who consider themselves affected may complain about the effects of those measures.
A case of mandatory quarantine in a hotel the person who entered the territory of an Autonomous Region of Azores was decided in a request for habeas corpus. A citizen was placed in prophylactic confinement in a hotel, after disembarking at the airport, coming from the mainland of Portugal. This measure was determined by the regional health authorities. The court noted that there was no consent from the person concerned, the situation occurred outside the period of the state of emergency, and the legal provisions emanating from the Autonomous Region's bodies that authorized the measure did not respect the powers provided for in the Constitution for the Region. The court decided that the compulsory confinement of a person, without sufficient evidence that this person was infected, without weighing the values of public health against personal freedom, and without the possibility of staying at home (while in other parts of Portugal it was possible to spend the quarantine at home), violates the principle of proportionality. By decision of May 16, the court ordered the immediate termination of the measure.
In the July 30 decision, the Constitutional Court examined this situation and said that the authorities had treated visitors of the Azores Islands like prisoners serving short sentences. Visitors were required to quarantine even if they had no symptoms, and it was unconstitutional to impose the mandatory quarantine on all visitors. Travelers to the Azores Islands now have the option to take a COVID-19 test either before they arrive, or on arrival before they are admitted. If a traveler chooses not to take the test, they will be required to return to an area outside of the Azores.
The next electoral event in the electoral calendars are the regional elections in the Autonomous Region of Azores, which have not yet been scheduled, and the election for President of the Republic in January 2021.