• Portuguese Court • Lisbon Court of Appeal on 11 November 2020 • Proc. Nº 1783/20.7T8PDL.L1 •
HIGHLIGHTS:
Lisbon Court of Appeal Concluded:
“In view of current scientific evidence, this test shows itself to be unable to determine beyond reasonable doubt that such positivity corresponds, in fact, to the infection of a person by the SARS-CoV-2 virus.”
KEY PUBLICATIONS JUDGES REFERRED TO:
- False-positive COVID-19 results: hidden problems and costs. The Lancet Respiratory Medicine, 8(12), 1167–1168. doi.org/10.1016/S2213-2600(20)30453-7
- Correlation Between 3790 Quantitative Polymerase Chain Reaction–Positives Samples and Positive Cell Cultures, Including 1941 Severe Acute Respiratory Syndrome Coronavirus 2 Isolates
COURT RULING
COURT REPORTER SUMMARY
PROCESS No. 1783/20.7T8PDL.L1-3
Date
November 11, 2020
Descriptors
Habeas corpus
Interest in bringing
SARS
coronavirus-2
Testing RT-PCR
deprivation of freedom
Illegal
detention
Summary I. The ARS cannot appeal a decision that
ordered the immediate release of four people, for illegal detention, in the
scope of a habeas corpus process (art. 220
als. c) and d) of the CPPenal), requesting that the mandatory confinement of applicants, for being carriers of the
SARS-CoV-2 virus (A….) and for being under active surveillance, for
high-risk exposure, decreed by the health authorities (B…, C…. and D….. ) for not having legitimacy or interest in acting.
II. The request made would also be manifestly unfounded
because:
A. Prescription and diagnosis are medical acts, the exclusive responsibility of a doctor, registered with the Medical Association (Regulation No. 698/2019, of 5.9).
Thus, the prescription of auxiliary diagnostic methods (such as viral infection detection tests), as well as the diagnosis of the existence of a disease, for any and all persons, is a matter that cannot be carried out by law. , Resolution, Decree, Regulation or any other way s , as they are acts of our legal system reserves the exclusive competence of a doctor, given that this, the advice of your sick, you should always try to get their informed consent ( nº 1 of article 6 of the Universal Declaration on Bioethics and Human Rights).
B. In the case we are dealing with, there is no indication or proof that such a diagnosis was actually carried out by a qualified professional under the terms of the Law and who had acted in accordance with good medical practices. In fact, what follows from the facts given as established is that none of the applicants was even seen by a doctor, which is frankly inexplicable, given the alleged seriousness of the infection.
C. The only element that appears in the proven facts, in this regard, is the performance of RT-PCR tests, one of which presented a positive result in relation to one of the applicants.
D. In view of the current scientific evidence, this test is, by itself, unable to determine, without a reasonable margin of doubt, that such positivity in fact corresponds to the infection of a person by the SARS-CoV-2 virus, by several reasons, of which we highlight two (in addition to the issue of the gold standard, which, due to its specificity, we will not even address):
Because this reliability depends on the number of cycles that make up the test;
Because this reliability depends on the amount of viral load present.
III. Any diagnosis or any act of health surveillance (such as the determination of the existence of viral infection
and high risk of exposure, which are covered by these concepts) made without prior medical observation of patients and without intervention of a physician registered
with the OM ( who proceeded with the evaluation of their signs and symptoms,
as well as the exams they deemed appropriate to their
condition), violates Regulation No. 698/2019, of 5.9, as well as the provisions of
article 97 of the Statute of the Medical Association, being liable to
configure the crime of usurpation of functions, p. and p. by
article 358 al.b), of the Criminal Code.
IV. Any person or entity that issues an order, the content of which
leads to the deprivation of physical freedom, ambulatory, of others (whatever the nomenclature this order takes: confinement, isolation,
quarantine, prophylactic protection, health surveillance, etc.), that does not fit the legal provisions, namely the provisions of art. 27 of
the CRP , will be carrying out an illegal detention ,
because ordered by an incompetent entity and because motivated by a fact for
which the law does not allow it.
(Summary prepared by the
reporter)
Source: https://crlisboa.org/wp/juris/processo-n-o1783-20-7t8pdl-l1-3/
COURT DECISION
They agree in a conference at the 3rd Criminal section of the Lisbon Court
of Appeal
*
I – report
1. By decision of 26-08-2020, the request for habeas corpus was granted , as its detention was illegal , and it
was determined that immediate return to freedom of Claimants SH__SWH___, AH___ and NK___.
2. Then came the REGIONAL HEALTH AUTHORITY, represented
by the Regional Directorate of Health of the Autonomous Region of the Azores,
to file an appeal against this decision, requesting that it be validated.
mandatory confinement of applicants, for being carriers of the SARS-CoV-2
virus (AH___) and for being under active surveillance, for high-risk
exposure, decreed by health authorities (SH__, SWH__ and NK___).
4. The appeal has been admitted.
5. The Mº Pº, in his answer, defends that the present appeal must
be considered unfounded.
6. In this court, the former PGA applied for a visa.
II – previous point.
Since the appeal filed by the appellant must be rejected, the court will limit
itself, pursuant to paragraphs 1, a) and 2 of article 420 of the Code of
Criminal Procedure, to summarily specifying the grounds of the decision.
III – reasoning.
1.The decision rendered by the “a quo” court has the following
content:
Proven facts:
1. On 01/08/2020 the applicants arrived on the island of São Miguel, coming
by plane from the Federal Republic of Germany, where, at 72 (seventy and
two) hours prior to arrival, they had performed a COVID test19, with a
negative result, copies of which were presented and delivered to the
Regional Health Authority, upon arrival at the airport in Ponta Delgada.
2. On 08/07/2020 and already during their stay on the island of São Miguel,
applicants AH___ and NK___ performed a second test to COVID19.
3.On 08/10/2020 and also during their stay on the island of São Miguel,
applicants SH___ and SWH___ performed a second test to COVID19.
4. On 08/08/2020, applicant AH___ was informed by telephone that her test
carried out the day before had accused her of being “detected”.
5. As of that day 08/08/2020, applicant AH___ no longer cohabits with the
other three applicants, having always maintained a distance of no less than
2 (two) meters from them.
6.On 08/10/2020 applicants SH___, SWH___ and NK___ were informed by
telephone that their tests had been “negative”.
7. On 08/10/2020, the document was sent to all applicants via e-mail,
attached to pages 25, 25verse, 26 and 26 verse, signed by the Health
Delegate of the municipality of Lagoa, in office, Dr. Magno José Viveiros
Silva, called Notification of Prophylactic Isolation – Coronavirus SARS-
CoV-2/COVID Disease – 19, and two attachments (only one of them in English)
and which reads (equal content except for the identification of each of the
Applicants herein):
“Isolation (...)
Notification of
Prophylactic Isolation
Coronavirus SARS- CoV-2/COVID Disease – 19
Mário Viveiros Silva Lagoa Health Authority
Pursuant to Normative Circulars No. DRSCINF/2020/22 of 2020/03/25 and DRS
CNORM2020/39B of 2020/08/04 of the REGIONAL HEALTH AUTHORITY (attached) and
of Standard No. 015/2020, of 24/ 07/2020 of the Directorate General of
Health (attached) I determine the
PROPHYLACTIC ISOLATION
OF
(...)
Holder of the Citizen Card/PASSPORT No. (...), valid ... until ... with the
number of social security identification for the period from 08/08/2020 to
22/08/2020 due to the danger of contagion and as a containment measure for
COVID 19 (SARS-Cov-2)
Date 2020/08/10 (... )
8. The Claimants requested that they send the said results, and the test
report was sent to Claimants AH___ and NK___ by email on 08/13/2020 and to
Claimants SH___ and SWH___ yesterday, 24/ 08/2020, by e-mail, reports
written in Portuguese.
9.Between August 1st and 14th, applicants were accommodated at the Marina
Mar II accommodation, in Vila Franca do Campo.
10. From August 14th onwards, applicants are accommodated at "THE LINCE
AZORES GREAT HOTEL, CONFERENCE & SPA", in Ponta Delgada (where they are
currently located), by order of the Health Delegate under the terms
described in 7 as follows:
- In room 502 are the applicants SH___ and SWH___.
- In room 501 is the applicant AH___.
- In room 506 is the applicant NK___.
11. The applicants have tried at least 3 times to contact the telephone
helpline they know (296 249 220) to be clarified in their language or at
least in English, but they have never had any success, as they only answer
and respond in Portuguese, which the applicants do not understand.
12.At the hotel, meals are delivered to the room, by hotel services, at
pre-determined times and according to a choice made by third parties, except
during the first 3 days at the Hotel Lynce in which breakfast was served and
the remaining meals through room service.
13.On August 15, while complying with the prophylactic isolation determined
by the Health Delegate, the applicant AH___ began to suffer from an
inflammation in her mouth, apparently resulting from the dental appliance
she was wearing.
14. Having, by telephone, to the number 296 249 220, I shared this
situation with the Regional Health Authority, who requested the necessary
medical support.
15.This request was ignored by the aforementioned helpline, which did not
provide the respondent AH___ with the necessary support.
16. Not seeing any support, two days later, on August 17th, duly protected
by a mask and gloves, the applicant SWH___ left her room, went to the
nearest pharmacy to the hotel, where she purchased an ointment to
temporarily overcome the situation, and immediately returned to the hotel
and to her room.
17. On 8/19/2020 the Health Delegate, Dr. JMS___, was sent to the Claimants
by e-mail, which specifically reads:
“(...) AH___ is only considered cured after having a negative test and a
2nd negative cure test, when that happens the health delegation will contact
you (...) (sic).
18. On 8/21/2020 the following message was sent to the four applicants by
the Health Delegate Dr. JMS___, via email: "In other words, when they finish
the quarantine they must take a test and if it is negative they can leaving
home” (sic).
19. On that same August 21st, the applicant SH___ questioned the
aforementioned physician and Health Delegate, Dr. JMS___, by email that he
sent the following (translated to Portuguese language free of charge):
“Dear Dr. JMS___ ,
We have already done two COVID/person tests, all were negative (SH___,
SWH___, NK___). ..and after that we spent 2 weeks in isolation, and none of
us report any symptoms!!
We have Dr. MMS___'s documents, confirm.
Nobody told us anything about the new tests after the isolation time?!
We have already rescheduled our flights and are planning to leave the
island.
Explain the reason for your statement.
Why wasn't the COVID test of AH___ done yesterday?
Greetings,
SH___”
20. The applicants did not receive any response to this email, with the
exception of the Claimant AH___, who was informed that a new screening test
was scheduled to be carried out, specifically, for the next day of
08/29/2020.
21. On 08/20/2020, applicant AH___ performed a third test to COVID19, and
on the following day (08/21/2020), only by telephone, she was informed that
the result had been "detected".
22. Applicant AH___ requested that written evidence of this positive result
be sent to her, which was sent to her by email yesterday, 08/24/2020.
23. The Applicants questioned the reception staff of the hotel where they
are located, having been told that none of the four applicants, without
exception, may be absent from the rooms.
24. Applicants do not have, and have never had, any symptoms of the disease
(fever, cough, muscle pain, sneezing, lack of smell or palate).
25. The applicants were not explained the content of the two documents sent
to them with the writings listed in point 7.
26. The applicants have their habitual residence in the Federal Republic of
Germany, identified in these records.
Rationale:
The question raised here is that the Applicants are deprived of their
liberty (from the 10th of August to the present date, as follows from the
proven facts) and, consequently, can avail themselves of the present
institute of habeas corpus - as we will go on to explain –, it leads to
knowing whether or not there is a legal basis for this deprivation of
liberty.
Indeed, without even questioning the organic constitutionality of Regional
Government Council Resolution 207/2020, of 31 July 2020, currently in force
within the scope of the procedures approved by the Government of the Azores
to contain the dissemination of the SARS-COV- virus 2 in this Autonomous
Region, in the situation in question, the detention/confinement of the
Applicants since the past 10th of August is materialized by a communication
carried out by e-mail, in Portuguese, in the terms given as proven under
point 7.
were detained from the 10th to the 14th of August 2020 in a hotel
development in Vila Franca do Campo and from the 14th of August 2020 to the
present date confined, and therefore detained, in a hotel room in this city
of Ponta Delgada. We cannot forget, not least because it stands out from the
list of proven facts, that the power of movement and the right of mobility
of the Applicants - or of any other individual in the same situation - are
so limited that the first exit from the rooms where they are they found it
was to go to this court and make statements (with the exception of the trip
to the Applicant SWH___'s pharmacy in clear desperation to attend to her
daughter's pains in the proven terms).
In short, after analyzing the ascertained factuality, it is inexorable to
conclude that we are facing a real deprivation of personal and physical
freedom of the applicants, not consented by them, which prevents them not
only from moving, but also from being with their family, living for about 16
days separated (applicants SH___ and SWH___ and her daughter, here
Applicant, AH___) and, in the case of Applicant NK___ all alone, without any
physical contact with anyone. To say that there is no deprivation of liberty
because they can leave their rooms at any time, in which they are, is a
fallacy, and it is enough to pay attention to the communications made to
them after August 10th, none of them in German,
Therefore, since the Applicants are deprived of their freedom, given the
proven circumstances, it is necessary to trace the path on which we are
moving, starting the journey through the guiding light of the Portuguese
legislative system: the Constitution of the Portuguese Republic.
Thus, in terms of the hierarchy of norms, it is important to remember that,
as provided for in article 1 of the CRP, “Portugal is a sovereign Republic,
based on the dignity of the human person and on the popular will and
committed to building a free, just society and solidary.”. Hence, it is
clear that the unity of meaning in which our system of fundamental rights is
based is based on human dignity – the principle of the dignity of the human
person is the axial reference of the entire system of fundamental rights.
One of them, the most relevant given its structuring nature of the
democratic state itself, is the principle of equality, provided for in
article 13 of the CRP, which states, in paragraph 1, that "All citizens have
the same social dignity and are equal before the law.”, adding paragraph 2,
that “No one may be privileged, benefited, harmed, deprived of any right or
exempt from any duty on account of ancestry, sex, race, language, territory
of origin, religion, political or ideological convictions, education,
economic status, social status or sexual orientation.”.
And, in what is particularly important here, under the heading “right to
freedom and security”, article 27, nº 1, of the CRP states, “Everyone has
the right to freedom and security”, referring to José Lobo Moutinho, in an
annotation to such article, that "Freedom is an absolutely decisive and
essential moment - not to say, the very and constitutive way of being - of
the human person (Ac. No. 607/03: "ontic demand"), which lends him that
dignity in which finds its granitic foundation in the Portuguese legal (and,
above all, legal-constitutional) order (Article 1 of the Constitution). In
this sense, it can be said the cornerstone of the social edifice” (Ac. n°
1166/96)” (aut.cit., in op. cit., p. 637).
Since human freedom is not one-dimensional, it can take on multiple
dimensions, such as articles 37 and 41 of the CRP, the freedom in question
in article 27 is physical freedom, understood as freedom of bodily movement,
of coming and going, freedom of movement or mobility, providing in paragraph
2 of this last article that " No one may be totally or partially deprived of liberty, except as a
result of a judgment condemning the practice of an act punishable by law
with the penalty of imprisonment or judicial application of security
measure.” – our underscore.
The exceptions to this principle are typified in paragraph 3, which
provides that:
“ The deprivation of liberty is excluded from this principle, for the time
and under the conditions that the law determines, in the following
cases:
a) Detention in flagrante delicto;
b) Detention or preventive detention for strong evidence of the commission
of a felony which corresponds to a prison sentence whose maximum limit is
greater than three years;
c) Arrest, detention or other coercive measure subject to judicial control,
of a person who has entered or remains illegally in the national territory
or against whom an extradition or expulsion process is in progress;
d) Disciplinary imprisonment imposed on military personnel, with a
guarantee of appeal to the competent court;
e) Subjection of a minor to measures of protection, assistance or education
in an adequate establishment, decreed by the competent judicial court;
f)Detention by court order due to disobedience to a decision taken by a
court or to ensure appearance before the competent judicial authority;
g) Detention of suspects, for identification purposes, in cases and for the
time strictly necessary;
h) Internment of a patient with a mental disorder in an appropriate
therapeutic establishment, decreed or confirmed by a competent judicial
authority.”
Finally, it should be recalled that, in the event of deprivation of liberty
against the provisions of the Constitution and the Law, the State is
constituted with the duty to compensate the injured party under the terms
established by the law, as follows from paragraph 5 of article 27, noting
that , in accordance with article 3 of the CRP:
(...) 2. The State is subordinate to the Constitution and is based on
democratic legality.
3. The validity of laws and other acts of the State, autonomous regions,
local authorities and any other public entities depends on their compliance
with the Constitution.
Having arrived here, having traced the legal territory, let's take a closer
look at the situation in which the Regional Health Authority moved in the
situation under analysis.
Claimants SH__SWH__ and NK_ performed a screening test for the SARS-CoV-2
virus, the result of which was negative for all of them, with the same
positive test being obtained for Claimant AH___, which led to the
aforementioned order of prophylactic isolation and consequent permanence of
these under the terms set out and tasted.
Therefore, given the content of the notification made to the Applicants,
this court cannot fail to express, ab initio, its perplexity at the
determination of prophylactic isolation to the four Applicants.
As follows from the definition given by the Directorate General of Health,
“Quarantine and isolation are essential measures of social distancing in
public health. They are especially used in response to an epidemic and are
intended to protect the population from person-to-person transmission. The
difference between quarantine and isolation stems from the state of illness
of the person who wants to be socially withdrawn. In other words:
“quarantine is used on people who are supposed to be healthy, but may have
been in contact with an infected patient;
isolation is the measure used in sick people, so that through social
distancing they do not infect other citizens.” (at https://www.sns24.gov.pt/tema/doencas-infecciosas/covid-19/isolamento/?fbclid=IwAR34hD77oLCpxUVYJ9Ol4ttgwo4tsTOvPfIa3Uyoh0EJEbCs3jEihkaEPAY#sec-0 ).
Returning to the present case, the Regional Health Authority decided to
erase essential concepts, as they delimit the differentiated treatment
(because it is different, pass the pleonasm), of the situations of infected
people and of those who were in contact with them, before the order of
prophylactic isolation to all applicants, despite only one of them having
positive results in the aforementioned screening test. Furthermore, it
decided to make a dead letter of the Government Council Resolution no.
207/2020 of 31 July, interfering with the mandatory submission to judicial
validation by the competent court decreed that it be mandatory quarantine,
when it comes to satiety of the facts proven that Claimants SH__SWH__ and
NK___, at best, are subject to mandatory quarantine.
It did not do so within the 24 hours provided for in point 6 of the
aforementioned Resolution, not even within a longer period - as in the 48
hours provided for in article 254, paragraph 1, subparagraph a) of the Code
of Criminal Procedure, or in article 26, no. 2, of the LSM – continuing to
make any communication and, in this way, the evident restriction of the
freedom of the Claimants SH__SWH__ and NK_ will always be illegal.
In this step, the aforementioned Resolution of the Government Council No.
207/2020, of July 31, 2020, provides in its point 4 that in cases where the
result of the virus test for SARS-CoV-2 is positive, the authority of within
its competences, will determine the procedures to be followed. The Applicant
AH___ positive in the screening test for the virus in question was notified,
reiterate in the same terms as the other Applicants, of the order of
prophylactic isolation between 08/10/2020 and 08/22/2020.
At this point, it must be made clear that the notification made as proven
under point 7, is brought from what is contained in the Standard of
DGS015/2020, a rule to which it alludes in addition to the normative
circulars (available for consultation athttps://www.dgs.pt/directrizes-da-dgs/normas-e-circulares-normativas/norma-n-0152020-de-24072020-pdf.aspx ), and tells us, in what matters here: (. ..) Contacts with High Risk
Exposure
15. A contact classified as having high risk exposure, under the terms of
Annex 1, is subject to:
a. Active surveillance for 14 days from the date of the last exposure;
b. Determination of prophylactic isolation, at home or in another place
defined at the local level, by the Health Authority, until the end of the
period of active surveillance, in accordance with the model of Dispatches
No. 2836-A/2020 and/or n. 3103-A/20202 (model accessible at http://www.seg-social.pt/documents/10152/16819997/GIT_70.docx/e6940795-8bd0-4fad-b850-ce9e05d80283 )
Following this standard of the General Directorate of Health, one can read,
among others, in normative circular No. DRSCNORM/2020/39B, of 2020-08-04
(available for consultation at http://www.azores.gov.
pt/NR/rdonlyres/25F80DC1-51E6-4447-8A38-19529975760/1125135/CN39B_signed1.pdf ),
(...)
a. High-risk
close contacts High-risk close contacts are treated as suspected cases
until the laboratory result of the suspected case. These close contacts
should screen for SARS-CoV-2. The following are considered high risk
contacts: i. Cohabitation with a confirmed case of COVID-19; (...)
ii. Surveillance and Control of Close Contacts
3. Close contacts of high risk, considering that, currently, it is
estimated that the period of incubation of the disease (time elapsed from
exposure to the virus until the onset of symptoms) is between 1 and 14 days,
they must comply with 14 days of prophylactic isolation, even if they
present negative screening tests during this period, and the test should be
performed on the 14th day. If the test result on the 14th day is negative,
they are discharged. If close high-risk contacts coexist with the positive
case, they should only be discharged when the positive case is cured, and,
in this way, the respective prophylactic isolation should be extended.
(...)
13. Compliance with prophylactic isolation
All persons identified as suspected cases, until the negative results are
known, undergo prophylactic isolation;
All persons who tested positive for Covid-19 and who are discharged after a
cure test (in-patient or at home) do not need to undergo another 14-day
isolation period or repeat a new test on the 14th day.
All passengers arriving at the Region's airports from airports located in
areas considered to be areas of active community transmission or with active
transmission chains of the SARS-CoV-2 virus must comply with the procedures
in force in the Region at the time.
Having arrived here, let us analyze the legal value of norms/guidelines
of the General Directorate of Health and normative circular 39B, of
08/04/2020, of the Regional Directorate of Health, leaving no doubt that we have entered the sphere of administrative
guidelines.
In this regard, with the specificity of reporting to the Tax Authority -
which has the same administrative legal position as the National Health
Authority in the State's ius imperium -, CASALTA NABAIS (Tax Law, 6th ed.,
Almedina, p. 197), "the so-called administrative guidelines, traditionally
presented in the most diverse forms as instructions, circulars, circular
letters, circular letters, normative orders, regulations, opinions, etc.",
which are very frequent in tax law constitute "internal regulations that, as
they are only addressed to the tax administration, only this one owes them
obedience, being, therefore, mandatory only for the bodies located
hierarchically below the authorizing body.
Therefore, they are not binding on individuals or on the courts. And this
is either organizational regulations, which define rules applicable to the
internal functioning of the tax administration, creating working methods or
modes of action, or interpretative regulations, which interpret legal (or
regulatory) precepts.
It is true that they densify, explain or develop the legal precepts,
previously defining the content of the acts to be performed by the
administration when they are applied. But that does not make them the
standard of validity of the acts they support. In fact, the assessment of
the legality of the acts of the tax administration must be carried out
through direct confrontation with the corresponding legal norm and not with
the internal regulation, which intervened between the norm and the act”.
However, the issue of the normative relevance of the Administration
Circulars (Tax) was already raised and analyzed in the Constitutional Court
Judgments No. 583/2009 and 42/14, of 11.18.2009 and of 12.09.2014,
respectively, and that Court decided, with which we agree, that the
prescriptions contained in the Tax Administration Circulars, regardless of
their persuasive effect on the practice of citizens, do not constitute norms
for the purposes of the constitutionality control system entrusted to the
Constitutional Court.
As that edge underlined (Judgment 583/2009) “(...) These acts, in which the
“circulars” loom large, emanate from the power of self-organization and the
hierarchical power of the Administration. They contain generic service
orders and it is for this reason and only in the respective subjective scope
(of the hierarchical relationship) that compliance is assured. They
incorporate guidelines for future action, transmitted in writing to all
subordinates of the administrative authority that issued them. They are
standardized decision-making modes, assumed to rationalize and simplify the
operation of services. This is worth saying that, although they may
indirectly protect legal certainty and ensure equal treatment through
uniform application of the law, they do not regulate the matter they deal
with in confrontation with individuals, nor do they constitute a decision
rule for the courts.”
Consequently, lacking heteronomous binding force for individuals and not
imposing themselves on the judge except for the doctrinal value they may
have, the provisions contained in the "circulars" do not constitute norms
for the purposes of the constitutionality review system within the
competence of the Constitutional Court.
What has been said, allows us to conclude that the administrative
guidelines conveyed in the form of a normative circular, as in the present
case, do not constitute provisions of legislative value that can be the
object of a formal declaration of unconstitutionality - see Judgment of the
Supreme Administrative Court, of 21/06/2017, available for consultation
in www.dgsi.pt .
And, to make it clear that the regulations invoked by the Regional Health
Authority that upheld the deprivation of liberty imposed on the Applicants
through notification of prophylactic isolation are non-binding
administrative guidelines for the Applicants. By the way. just pay attention to who they are addressed respectively
to:
Normative Circular No. DRSCNORM/2020/39B:“To: Health Units of the Regional
Health Service, Municipal Health Delegates (C/c Regional Civil Protection
Service and Azores Fire Service, Line de Saúde Azores) Subject: Screening of
SRAS-CoV-2 and approach of suspected or confirmed cases of infection by
SARS-CoV-2 Source: Regional Directorate of Health (...)
Standard 015/2020, of 07/24/2020: “TOPIC: COVID-19: Contact Tracing
KEYWORDS: Coronavirus, SARS-CoV-2, COVID-19, Contact Tracing,
Epidemiological Investigation
FOR: Health system (...).
In this sequence, and, in summary, this court cannot fail to emphasize that
the present case, we allow ourselves to say aberrant, of deprivation of
liberty of persons, absolutely lacks any legal basis, and do not come back
with the argument that the defense of public health is at stake because the
court always acts in the same way, that is, in accordance with the law, in
fact, hence the need for judicial confirmation enshrined in the Mental
Health Law in the case of compulsory internment, as from the facts found and
from the above results:
- The Applicants have been confined to the space of one room for about 16
days, based on a notification of "prophylactic isolation" until 08/22/2020,
a period that has already been exceeded and the notification operated, which
in any case it is illegal as a means of detaining people for the reasons
already explained (just paying attention to the constitutional norms set out
above), has expired;
- The Applicants were never transmitted any information, communication,
notification, as appropriate, in their mother tongue, nor were they provided
with an interpreter, immediately in flagrant violation of the European
Convention on Human Rights (articles 5, no. 2 and 6, paragraph 3, subsection
a) and the criminal procedural rules (cf. art. 92 of the Criminal Procedure
Code), that is, in our legal system, a foreign person detained and without
control of the Portuguese language is immediately appointed interpreter,
and, in the case of the Applicants who limited themselves to travel to this
island and enjoy its beauty, they were never granted such a possibility;
- Applicants after 08/22/2020 are confined to the space of a room based on
the following communications:
- On 08/19/2020, the Health Delegate, Dr. JMS___, sent an e-mail to the
Claimants, which specifically reads:
“(...) AH___ is only considered cured after having a negative test and a
2nd negative cure test, when this happens the health delegation will contact
you (...) (sic).
- On 8/21/2020, the following message was sent to the four applicants by
the Health Delegate Dr. JMS___, via email: “In other words, when they finish
the quarantine they have to take a test and if it is negative they can leave
from home” (sic);
- The deprivation of liberty of the Applicants was not subject to any
judicial review.
As we said initially, we could also consider the organic constitutionality
of Government Council Resolution no. 1207/2020, of 31 June, however, we
believe it to be a negligible issue for the object of the decision to be
rendered, which is intended to be swift, because even the In light of such a
resolution, the decision cannot be different, based on the decision of the
Constitutional Court, of 07/31/2020, in the scope of case No. 424/2020, and,
because the position of the Regional Health Authority in the present
circumstances leads to to the application of normative circulars, with the
value explained above.
Finally, and because this court has been pronouncing successively and
recently within the scope of this institute of "habeas corpus" in light of
the orders issued by the Regional Health Authority, we allow ourselves to
subscribe and underline the following excerpt from the first decision of
this Criminal Investigation Court:
"The issue of compulsory confinement in the case of contagious diseases,
and the terms under which it should occur, is a pressing issue, and one that
is not supported by article 27, paragraph 3, of the CRP, namely in its
subparagraph h), where only provision is made for the hospitalization of a
patient with a mental anomaly in an appropriate therapeutic establishment,
decreed or confirmed by a competent judicial authority. It is urgent to
legislate on this matter, clearly establishing the fundamental principles to
which it must comply, leaving the detailed aspects to secondary law - and
only these.
For, as Professor Gian Luigi Gatta, who we quote here in a free
translation, says,“Right now, the country's energies are focused on emergency. But the need
to protect fundamental rights, also and above all in an emergency,
requiring the Courts to do their part. Because, in addition to medicine
and science, also law - and human rights law in the first place - must be
at the forefront: not to prohibit and sanction - as is being stressed too
much these days - but to guarantee and protect everyone we. Today the
emergency is called a coronavirus. We don't know tomorrow. And what we do
or don't do today, to maintain compliance with the system's fundamental
principles, can condition our future.” (in “I diritti fondamentali all the proof of the coronavirus. Perché it is
necessary a legge sulla quarantine”,)”.
It will not be difficult to admit and accept that the legislative turmoil
generated around the containment of the spread of COVID-19 had - and will
continue to have - in its raison d'être the protection of public health,
but this turmoil can never harm the right to death. freedom and security
and, ultimately, the absolute right to human dignity.
It remains to decide accordingly.
(…)
Therefore, in light of the above, as illegal the detention of Claimants
SH__SWH___, AH___ and NK___, I decide to uphold the present request for
habeas corpus and, consequently, I order their immediate return to
freedom.
2. The appellant made the following conclusions, which he drew
from his motivation:
1. The object of the present appeal is the decision rendered by the learned
Court a quo considered "illegal the detention of the Claimants SH__SWH___,
AH___ and NK___" and decided to "uphold the present request for habeas
corpus and, consequently, I order the immediate restitution from them to
freedom.”;
2.Only for reasons of procedural economy, that is, because it is of little
relevance to the assessment of the merits of the case, the factuality given
as proven is not appealed, however, it should be noted that it was based
solely on the statements of the applicants themselves.
3. The contested decision, claiming that the applicant did not comply with
point 6 of the Resolution of the Council of the Regional Government of the
Azores no. 207/2020, of 31 July 2020, violated the scope of application of
the same Resolution, defined in point 1 of the same Resolution;
4. The judicial validation of mandatory quarantine, provided for in point 6
of said resolution, only applies to mandatory quarantine decreed to
passengers who do not accept, alternatively, any of the procedures, provided
for in point 1 of the aforementioned Resolution;
5. The applicants complied with the procedure provided for in subparagraph
a) of point 1 of Resolution 207/2020, of July 31, 2020, and therefore could
never be subject to mandatory quarantine, under that Resolution and,
consequently, there is no place for judicial validation, provided for in
point 6 of Resolution No. 207/2020, of 31 July 2020.
6. Contrary to what is defended in the contested decision, the Portuguese
legal system allows the adoption of exceptional measures, including
separation of persons, consequent decree of mandatory confinement of
infected persons with a high probability of being infected, through the
mechanism provided for in article 17 of Law No. 81/2009, of 21 August;
7. The Council of Ministers legitimately made use of the exceptional
regulatory power, provided for in article 17 of Law No. 81/2009, through
Resolutions of the Council of Ministers No. 55-A/2020, of July 31, 2020 and
No. 63-A/2020, of August 14th;
8.No. 2 of the Resolution of the Council of Ministers No. 55-A/2020, of 31
July 2020, ordered exceptional measures to be applied throughout the
national territory, necessary to combat COVID -19, namely those provided for
in the regime attached to that resolution;
9.Article 2 of the Annex decreed that:
“Article 2
Mandatory confinement
1 - They are in mandatory confinement, in a health establishment, in their
home or in another place defined by the health authorities:
a) Patients with COVID -19 and those infected with SARS -CoV-2;
b) Citizens for whom the health authority or other health professionals
have determined active surveillance.
2 – (...)”
10. The applicant AH___ being infected with the SARS-CoV-2 virus, in
compliance with article 2, paragraph 1, subparagraph a) of Annex I of the
Resolution of the Council of Ministers 55-A/2020, had to be in mandatory
confinement;
11. The lower court, by decreeing the habeas corpus of AH___ and allowing
its free circulation, violated article 17 of Law no. 81/2009, of 21 August,
by reference to article 2, no. 1, subparagraph a) of Annex I of the
Resolution of the Council of Ministers No. 55-A/2020;
12. Applicants SH__SWH__ and NK_ in accordance with the rules stipulated by
the National Health Authority, contained in Norm 015/2020, of 07/24/2020,
are contacts with High Risk Exposure, and shall be subject to:
a. Active surveillance for 14 days from the date of the last exhibition;
b. Determination of prophylactic isolation, at home or in another place
defined at the local level, by the Health Authority, until the end of the
period of active surveillance, in accordance with the model of Dispatches
No. 2836-A/2020 and/or n. º 3103-A/20202"
13. The applicants SH__SWH__ and NK_ are subject to active surveillance, in
compliance with article 2, paragraph 1, subparagraph b) of Annex I of the
Resolution of the Council of Ministers no. 55-A/2020, had to be in mandatory
confinement;
14. The lower court, by decreeing the habeas corpus of SH__SWH__ and NK_
and allowing their free circulation, violated article 17 of Law no. 81/2009,
of August 21, by reference to article 2, no. 1, subparagraph b) of Annex I
of the Resolution of the Council of Ministers No. 55-A/2020.
15. The contested decision must be revoked and replaced by another that
validates the mandatory confinement of the applicants, as they are carriers
of the SARS -CoV-2 (AH___) virus and because they are under active
surveillance, due to high risk exposure, decreed by the health authorities
(SH__SWH__ and NK___).
3. In his response, the MºPº drew the following conclusions:
1— The judgment of the Constitutional Court of 07/31/2020 (Proc. 403/2020;
1st Section; Cons. José António Teles Pereira), after concluding that
mandatory confinement, either through quarantine or through prophylactic
isolation, constitutes a true deprivation of liberty not provided for in
art. 27, no. 2, of the CRP, and that all deprivations of liberty require
the prior authorization of the Assembly of the Republic, which was not the case with the Resolutions of the Regional
Government of the Azores that imposed a mandatory quarantine, considered the
organic unconstitutionality of the aforementioned norms.
2 — These norms, declared unconstitutional by the Constitutional Court, are
in all materially identical to those contained in Resolutions of the Council
of Ministers nos. 55-A/2020, of 07-31, 63-A/2020, of 08-14 , and 70-A/2020,
of 09/11, and No. 88-A/2020, of 10-14, insofar as they provide for
deprivations of liberty not provided for in an appropriate legal diploma
issued by the competent entity, as well as are not found in the exceptions
provided for in art. 27, paragraph 3, of the CRP, so they must also be
unapplied for violation of art. 27(1) of the CRP.
3 — Foreseeing art. 5, no. 1, al. e) of the European Convention on Human
Rights (Convention for the Protection of Human Rights and Fundamental
Freedoms — Rome, 11-04-1950), on the right to liberty and security, which
states that “Everyone has the right to freedom and security" and that "No
one may be deprived of their liberty, except in the following cases and in
accordance with the legal procedure: (...) "If it is the legal detention of
a person liable to spread a contagious disease, a mentally insane person, an
alcoholic, a drug addict or a vagabond”, we can conclude that the
deprivation of liberty of a person likely to spread a contagious disease is
a form of detention and that, according to the Convention, States provide in
their domestic legislation for the detention of these persons.
4 — Taking into account the constitutional principle of the typicality of
measures depriving liberty, and not providing for art. 27, of the CRP, in
none of the paragraphs of its number 3, the deprivation of liberty of a
person "likely to spread a contagious disease",
5 - And having paragraph h) - which provides for the hospitalization of a
patient with a mental anomaly in an adequate therapeutic establishment —has
been added by art. 11.0, no. 6, of Constitutional Law no. 1/97, of 20
September (4th constitutional revision), at a time when the European
Convention on Human Rights already expressly provided for the detention of a
person liable to propagate contagious disease,
6 — And that the constitutional legislator, neither in the aforementioned
constitutional review nor in a subsequent one, added another paragraph to
no. 3 of art. 27th to provide for this possibility, as it did in relation to
the internment of a patient with a mental disorder, we can conclude that we
are facing a conscious decision of the constitutional legislator not to
allow the deprivation of the freedom of a person capable of spreading a
contagious disease to be carried out, just for that fact.
7 — From the analysis of the constitutional regime of the right to liberty
and security provided for in art. 27, no. 1, of the CRP, we can thus
conclude that it is not possible for the legislator, even through the
Assembly of the Republic or the Government authorized by it, to create
deprivations of liberty that are not provided for in no. 3 of the
aforementioned constitutional regulation, namely with regard to people with
infectious and contagious diseases, whether these deprivations of liberty
are confinement, quarantines or prophylactic isolation, without any rules
created for that purpose incurring material unconstitutionality for
violation of the aforementioned constitutional regulation.
8 — Turning now to the legal regime for the internment of patients with
contagious diseases, Law No. 2036 of 08-09-1949 provided for the possibility
of promoting the isolation or internment of people with infectious diseases,
but only, in this last case, in situations where there was a serious danger
of contagion, with an appeal to an authority for the decision of isolation
or internment.
9 — In turn, art. 17 of Law No. 81/2009, of 21-08, which repealed Law No.
2036 of 09/08-1949, allows the member of the Government responsible for the
health area a special regulatory power, in accordance with the stipulated by
base XX of Law No. 48/90, of 24-08 (Basic Health Law), namely, "take
essential exceptional measures in case of public health emergency, including
restriction, suspension or closure of activities or separation of people who
are not sick, means of transport or goods that have been exposed, in order
to avoid the possible spread of infection or contamination”.
10— From this, it follows, from the outset, that the possibility of
promoting the isolation or hospitalization of people with
infectious-contagious diseases is not provided for in this law, as was
provided for in Law No. 2036 of 09-08-1949. On the other hand, since the measures taken by the health authorities must
respect the Constitution and the law and the Constitutional Law does not
provide for the deprivation of liberty of people with infectious diseases,
the interpretation to be given to the expression «separation of people who
are not patients, means of transport or goods, who have been exposed”, in
order to comply with the Constitution of the Portuguese Republic, it cannot
reach the core of the right to liberty, that is, it must not constitute a
total deprivation of liberty.
11 — On the other hand, the current Basic Health Law — Law No. 95/2019, of
04-09 — provides in Base 34, on the defense of public health, that the
public health authority may «b) Unleash, in accordance with the Constitution
and the law, the internment or the compulsory provision of health care to
persons who otherwise constitute a danger to public health».
12 – Law No. 82/2009, of 02-04, which regulates the legal regime for the
designation, competence and operation of entities exercising the power of
health authorities, provides in its art. 5th the competences of the health
authority, namely, «c) To trigger, in accordance with the Constitution and
the law, the internment or the compulsory provision of health care to
individuals in a situation of harming public health».
13 — From this it follows that, since the measures taken by the health
authorities must respect the Constitution and the law, and the
Constitutional Law does not provide for the deprivation of freedom of people
with infectious diseases, if the interpretation to be given to the
expression «hospitalization or the compulsory provision of health care to
individuals in a situation of harming public health' either in the sense
that health authorities may order the internment, or other measure
restricting the freedom of movement, or the compulsory provision of health
care from people with infectious and contagious diseases, such
interpretation of the law is materially unconstitutional for violation of
art. 27(1) of the CRP.
14 — Defining Law No. 27/2006, of 03-07 (Basic Civil Protection Law)
"Serious accident" as an unusual event with relatively limited effects in
time and space, capable of affecting people and other beings living, goods
or the environment, but establishing in art. 5, no. 1, al. a), the principle
of priority of public interest relating to civil protection in relation to
the interests of national defense, internal security and public health, we
can conclude that serious situations of public health, such as the current
pandemic, are not included in the public interest relating to civil
protection, therefore, are not included in the concepts of "serious
accident" and "catastrophe" referred to in art. 3 of the Civil Protection
Law.
15 — From this it can also be concluded that the Resolutions of the Council
of Ministers — and the Resolutions of the Council of the Regional Government
— which were based on the Basic Civil Protection Law to declare "the
contingency and alert situation, within the scope of the disease pandemic
COVID-19", namely the Resolutions of the Council of Ministers No. 55-A/2020,
of 07-31, 63-A/2020, of 08-14, 68-A/2020, of 08-28, and 70-A/2020, of 11-09
— revoked by Resolution of the Council of Ministers No. 88-A/2020, of 14-10,
currently in force —, which provide in point 2 the «mandatory confinement,
in establishment of health, in the respective household or in another place
defined by the health authorities: (...) «a) Patients with COVID-19 and
those infected with SARS-CoV-2; (...the Civil Protection Law does not apply to situations of danger to public
health.
directly violate art. 27, paragraph 1, of the CRP, therefore, as
unconstitutional, they should be disapplied in this case, contrary to the
request made by the applicant,
17 — The sub judice decision being maintained.
4. The applicant is the regional health authority, represented by
the Regional Health Directorate of the Autonomous Region of the Azores.
Decree-Law No. 11/93, of 1993-01-15, in its current version (Statute of the
National Health Service) determines that (our underlining):
Article 1.
The National Health Service , hereinafter referred to as
NHS, is an ordered and hierarchical set of institutions and official services
providing health care, operating under the supervision or supervision of the
Minister of Health .
Article 3
1 - The NHS is organized in health regions.
2 - The health regions are divided into health sub-regions, integrated by
health areas.
Article 6
1 - In each health region there is a regional health administration,
hereinafter referred to as the ARS .
2-the ARS have legal personality, administrative and financial autonomy and
own assets.
3-the ARS have functions of planning, distribution of resources, guidance
and coordination of activities, management of human resources, technical and
administrative support and also evaluating the functioning of institutions
and services providing health care.
4 – (…).
In turn, Decree-Law No. 22/2012 stipulates
Article 1
1 - The Regional Health Administrations, IP, for short referred to
as ARS, IP., are public institutes integrated in the indirect administration of the
State , endwed with administrative and financial autonomy and their own
assets.
2 - The ARS, IP, carry out their duties, under the supervision and supervision
of the Government member responsible for the health area.
3-the ARS, IP, are governed by the rules contained in this decree-law, by
the provisions of the framework law of public institutes and the Statute of
the National Health Service and other rules that are applicable to it.
Article 3
1 - The ARS, IP, have the mission of guaranteeing the population of the
respective geographic area of intervention access to the provision of
health care, adapting the available resources to the needs and complying
with and enforcing health policies and programs in their area
ofintervention.
2 - The duties of each ARS, IP, within the scope of their respective
territorial constituencies:
a) To carry out the national health policy, in accordance with global and
sectoral policies, aiming at its rational ordering and the optimization of
resources;
b) Participate in the definition of intersectoral planning coordination
measures, with the objective of improving the provision of health care;
c) Collaborate in the preparation of the National Health Plan and monitor its
execution at the regional level;
d) Develop and promote activities within the scope of public health, in order
to guarantee the protection and promotion of the health of populations;
e) Ensuring the execution of local intervention programs with a view to
reducing the consumption of psychoactive substances, preventing addictive
behaviors and reducing dependence;
f) Develop, consolidate and participate in the management of the National
Network of Continued Integrated Care in accordance with the defined
guidelines;
g) Ensure the regional planning of human, financial and material resources,
including the execution of the necessary investment projects, of institutions
and services providing health care, supervising their allocation;
h) Draw up, in line with the guidelines defined at national level, the map of
facilities and equipment;
i) Allocate, in accordance with the guidelines defined by the Central
Administration of the Health System, IP, financial resources to institutions
and health care providers integrated or financed by the National Health
Service and private entities with or without profit , who provide health care
or act within the areas referred to in subparagraphs e) and f);
j) Entering into, monitoring and reviewing contracts within the scope of
public-private partnerships, in accordance with the guidelines defined by the
Central Administration of the Health System, IP, and allocating the respective
financial resources;
l) Negotiate, celebrate and monitor, in accordance with the guidelines defined
at national level, regional contracts, protocols and conventions, as well as
carry out the respective assessment and review, in the context of the
provision of health care as well as in the aforementioned areas in
sub-paragraphs e) and f);
m) To guide, provide technical support and assess the performance of
institutions and services providing health care, in accordance with the
defined policies and with the guidelines and regulations issued by the
competent central services and bodies in the various fields of
intervention;
n) Ensuring adequate articulation between health care services in order to
guarantee compliance with the referral network;
o) Allocate financial resources, through the signing, monitoring and review of
contracts within the scope of integrated continuous care;
p) Develop functional programs for health establishments;
q) Licensing private health care units and units in the area of dependencies
and additive behavior in the social and private sector;
r) Issue opinions on master plans for health units, as well as on the
creation, modification and merger of services;
s) Issue opinions on the acquisition and expropriation of land and buildings
for the installation of health services, as well as on projects for the
installations of health care providers.
3 - In order to carry out their duties, the ARS, IP may collaborate with each
other and with other entities in the public or private sector, with or without
profit, under the terms of the legislation in force.
5. The requested habeas corpus measure falls within the
provisions of article 220 of the CPPenal, which reads as follows:
Habeas corpus due to illegal detention
1 - Those detained at the order of any authority may request the investigating
judge of the area where they are located to order their immediate judicial
presentation, on any of the following grounds:
a) The deadline for delivery to the judiciary has been exceeded;
b) Keeping detention outside legally permitted places;
c) The arrest was made or ordered by an incompetent entity;
d) Be the detention motivated by a fact for which the law does not allow
it.
2 - The application can be signed by the detainee or by any citizen in the
enjoyment of their political rights.
3 — Any authority that raises an illegitimate obstacle to the submission of
the application referred to in the preceding paragraphs or to its referral to
the competent judge is punishable with the penalty provided for in article 382
of the Penal Code.
6. Appreciating.
Article 401 of the CP Penal stipulates the following:
1 - They have legitimacy to appeal:
a) The Public Prosecutor's Office, of any decisions, even if in the exclusive
interest of the accused;
b) The defendant and the assistant, of decisions rendered against them;
c) The civil parties, from the decisions rendered against each one;
d) Those who have been sentenced to pay any sums, under the terms of this
Code, or have to defend a right affected by the decision.
2 - Anyone who has no interest in acting cannot appeal.
7. The first question that arises here is that of the appellant's
legitimacy, in an appeal in criminal proceedings.
i. We are within the scope of a criminal jurisdiction, whose
purpose is to ensure the effective exercise of the State 's jus puniendi, that is, which is dedicated to investigating and deciding on behavior that
constitutes a crime or administrative infraction.
It is in this context and with such purpose in mind that the Law determines
who has the legitimacy to be able to discuss the goodness of a decision
rendered by a criminal court.
ii. In this case, we find that the appellant is not a defendant,
is not an assistant and has not made any civil claim that, in view of the
principle of adhesion, would determine her status as plaintiff or
defendant.
iii. Thus, under the Law and given the list of interveners that
the legislator understood may have legitimacy to intervene in a process in
this type of jurisdiction, on appeal, we must immediately conclude that the
appellant lacks legitimacy to be able to discuss the content of a court
decision in this context.
iv. In fact, the commission of any crime, nor any illicit offense
of an administrative nature is not discussed here, given that the issue of
possible consequences at the criminal level, the recognition of the existence
of an illegal detention, is a matter that will have to be discussed in its own
seat - that is, in an inquiry that may be opened for this purpose, being
completely foreign to the decision of the present case.
v. We conclude, therefore, that the appellant lacks legitimacy to
file an appeal against the decision rendered by the “a quo” court.
8. Regardless of the question of legitimacy, it appears that,
similarly, the appellant lacks an interest in bringing proceedings.
i. As follows from peaceful jurisprudence and doctrine in this
regard, the interest in acting means the need for someone to use the appeal
mechanism as a way of reacting against a decision that entails a disadvantage for the interests that it
defends or that has frustrated one of its legitimate expectation or
benefit.
ii. Now, in the present case, the question is – did the decision
rendered entail any disadvantage for the interests that ARS defends? Or a
legitimate expectation or benefit of yours?
The answer is manifestly negative.
If not, let's see.
iii. The ARS continues its attributions, under the supervision and supervision of the
member of the Government responsible for the health area.
Thus, and from the outset, either in view of the functions entrusted to it, or
in view of their manifest hierarchy, before the tutelage, it will have to be
concluded that no ARS pursues its own autonomous interest, which it is
responsible for defending. Eventually, it will be the respective Minister or
the Government in which it operates, since the “interests” of the ARS will not
be its own, but will be included in the health policy of the ministry that
oversees such entity.
It should be noted, moreover, that in the definition of its
attributions [1] , it is not assigned any specific defense function, autonomously and in
its own name, in court, of any interests that fall within its functions which,
in with regard to criminal or administrative offence activities, they are
none...
iv. In turn, the interest that the appellant itself intends to
defend and which appears in the application, at the end of this appeal - the
validation of the mandatory confinement of the applicants, for being carriers
of the SARS -CoV-2 (AH___) virus and for being in active surveillance, for
high risk exposure, decreed by the health authorities (SH__SWH__ and NK___) –
is something in itself contradictory and goes beyond the purpose and scope of
powers of a criminal court.
Contradictory because the appellant does not admit that confinement
corresponds to deprivation of liberty. If so, it is not clear in which seat
the appellant founds the competence of a criminal court to validate
"confinements”. And outside the scope of action of a criminal court, because it is not
responsible for making declarative decisions to validate infections or
diseases…
v. Finally, it is not seen that a legitimate expectation or benefit has
an entity under the tutelage of a Government agency, seen frustrated by the
decision now being criticized. saw. It follows from this that
the appellant has no interest in acting, which is why, under the provisions of
paragraph 2 of article 401 of the Criminal Code, it cannot appeal against the
decision rendered. 9. The decision rendered by the “a quo”
court to receive this appeal does not bind this court (article 414 of the
CPPenal), so there is nothing to prevent its rejection being determined.
10. Nevertheless, and for the peace and tranquility of
consciences, the following will be added:
Even if it were not understood that way, the appeal presented would be manifestly unfounded, for the following
succinct reasons :
i. First, for the exhaustive and correct reasoning set out in the
decision, by the “a quo” court, whose content is fully endorsed.
In fact,in view of the Constitution and the Law, the health authorities do not have
the power or legitimacy to deprive any person of their freedom - even under
the label of "confinement", which effectively corresponds to a detention -
since such a decision can only be determined or validated by a judicial
authority, that is, the exclusive competence, in view of the Law that still
governs us, to order or validate such deprivation of liberty, is assigned
exclusively to an autonomous power, to the Judiciary.
It follows that any person or entity that issues an order, the content of
which leads to the deprivation of physical freedom, ambulatory, of others (whatever the nomenclature this order takes: confinement, isolation,
quarantine, prophylactic protection, etc.), which does not comply with the legal provisions, namely the provisions
of art. 27 of the CRP and without having been granted such decision-making
power, by law - from the AR, within the strict scope of the declaration of a
state of emergency or siege , subject to the principle of proportionality - which mandates and specifies the terms and conditions of such
deprivation , will be carrying out an illegal detention, because ordered by an
incompetent entity and because motivated by a fact that the law does not
allow (it should be said, in fact, that this issue has been debated, over time, in
relation to other public health phenomena, namely with regard to HIV and
tuberculosis infection, for example. And, as far as is known, no one has ever
been deprived of their freedom, for suspicion or certainty of suffering from
such diseases, precisely because the law does not allow it).
It is within this scope that, without any shadow of doubt, the situation
under consideration in this case is included, given that the appropriate
means of defense against illegal detention is subject to the appeal
for habeas corpus, provided for in article 220, als. c) and d)
of the CPPenal.
And, correctly, the “a quo” court ordered the immediate release of four
people who were illegally deprived of liberty.
ii. Second, because the request made in the appeal proves to be impossible .
If not, let's see:
11. In fact, it is requested that “the mandatory confinement of
the applicants be validated, as they are carriers of the SARS-CoV-2 virus (AH___) and because they are under active surveillance, for high risk exposure , decreed by the authorities of health (SH__SWH__ and NK_).”
12. It is with great astonishment that this court is faced with
such a request, especially considering that the appellant is active in the
health sector.
Since when is it the responsibility of a court to make clinical diagnoses,
on its own initiative and based on the eventual results of a test? Or to
ARS? Since when is the diagnosis of a disease made by decree or by law?
13. As the appellant has more than an obligation to know, a diagnosis is a medical act, the sole responsibility of a doctor .
This is what results unequivocally and peremptorily from Regulation No.
698/2019, of 5.9 (regulation that defines the proper acts of physicians),
published in DR.
There it is determined, in an imperative way (which imposes its acceptance by
all, including the applicant) that (our emphasis):
Article 1
Object
This regulation defines the professional acts of physicians, their
responsibility, autonomy and limits, within the scope of their
performance.
Article 3
Qualification
1 — The doctor is the professional legally qualified to practice medicine , qualified for the diagnosis , treatment, prevention or recovery of diseases and other health problems , and able to provide care and intervene on individuals, groups of
individuals or population groups, sick or healthy, with a view to protecting,
improving or maintaining their state and level of health.
two -Physicians with current membership in the Medical Association are the only professionals who can practice the acts of physicians , under the terms of the Statute of the Medical Association, approved by Decree-Law No. 282/77, of 5 July, with the changes
introduced by Law No. 117/2015, of 31 August and this regulation.
Article 6
Medical act in general
1 — The medical act consists of the diagnostic , prognostic , surveillance , investigation, medico-legal expertise, clinical coding, clinical
audit, prescription and execution of pharmacological and non-pharmacological therapeutic measures.
pharmacological, medical techniques , surgical and rehabilitation, health promotion and disease prevention
in all its dimensions, namely physical, mental and social of people,
population groups or communities, respecting the deontological values of the
medical profession.
Article 7
Diagnosis
The identification of a disorder, disease or the state of a disease by
studying its symptoms and signs and analyzing the examinations carried out
constitutes a basic health procedure that must be carried out by a doctor
and in each specific area , by a specialist physician and aims to establish the best preventive, surgical, pharmacological,
non-pharmacological or rehabilitation therapy. 14.
Even under the Mental Health Law, Law No. 36/98, of 24 July, the diagnosis of
the pathology that can lead to compulsory hospitalization is obligatorily
carried out by specialist physicians and their technical-scientific judgment -
inherent to the assessment clinical-psychiatric - is excluded from the judge's
discretion (see articles 13 nº3, 16 and 17 of the said Law).
15. Thus, any diagnosis or any act of health surveillance (such as the
determination of the existence of viral infection and high risk of exposure,
which are covered by these concepts) made without prior medical observation
to the applicants, without the intervention of a doctor registered with the
OM (which carried out the assessment of its signs and symptoms, as well as
the exams it deemed appropriate to its condition), violates such Regulation,
as well as the provisions of article 97 of the Statute of the Medical
Association, being liable to configure the crime for. and p. by article 358
al.b) (Usurpation of functions) of the Criminal Code, if dictated by someone
who does not have such quality, that is, who is not a physician registered
with the Medical Association.
viola also paragraph 1 of article 6 of the Universal Declaration
on Bioethics and Human Rights, which Portugal has subscribed to and is
internally and externally obliged to respect, since there is no document in
the file proving that the informed consent that this Declaration imposes has
been given. .
It is thus clear that the prescription of auxiliary diagnostic methods
(such as tests for detection of viral infection), as well as the diagnosis
of the existence of a disease, in relation to anyone and everyone, is a
matter that cannot be carried out by Law, Resolution, Decree, Regulation or
any other normative means, as they are acts that our legal system reserves
the exclusive competence of a doctor, given that the doctor, in advising his
patient, should always try to obtain the your informed consent.
16. In the case we are dealing with, there is no indication or proof that such
diagnosis was actually carried out by a qualified professional under the
terms of the Law and who had acted in accordance with good medical
practices.
In fact, what follows from the facts given as established is that none of
the applicants was even seen by a doctor, which is frankly inexplicable,
given the alleged seriousness of the infection.
17. In fact, the only element that appears in the proven facts, in
this regard, is the performance of RT-PCR tests, one of which had a positive
result in relation to one of the applicants.
i. Now, given the current scientific evidence, this test is, by
itself, unable to determine, without a reasonable margin of doubt, that such
positivity corresponds, in fact, to the infection of a person by the
SARS-CoV-2 virus, by several reasons, of which we highlight two (in addition
to the issue of the gold standard which, due to its
specificity, we will not even address):
Because this reliability depends on the number of cycles that make up the
test;
Because this reliability depends on the amount of viral load present.
ii. In fact, the RT-PCR (Polymerase Chain Reaction) tests,
molecular biology tests that detect the RNA of the virus, commonly used in
Portugal to test and enumerate the number of infected (after nasopharyngeal
collection), are performed by amplification of samples , through repetitive
cycles.
From the number of cycles of such amplification, the greater or lesser
reliability of such tests results.
iii. And the problem is that this reliability proves, in terms of
scientific evidence (and in this field, the judge will have to rely on the
knowledge of experts in the field) more than debatable.
This is what results, among others, from the very recent and comprehensive
study Correlation between 3790 qPCR positive samples and positive cell cultures
including 1941 SARS-CoV-2 isolates , by Rita Jaafar, Sarah Aherfi, Nathalie Wurtz, Clio Grimaldier, Van
Thuan Hoang, Philippe Colson, Didier Raoult, Bernard La Scola, Clinical
Infectious Diseases, ciaa1491, https://doi.org/10.1093/cid/ciaa1491, at https://academic.oup.com/cid/advance-article/doi/10.1093
/cid/ciaa1491/5912603 , published at the end of September this year, by Oxford Academic , carried out by a group that brings together some of the greatest
European and world experts in the field.
This study concludes [2] , in free translation:
“At a cycle threshold (ct) of 25, about 70% of the samples remain positive in
cell culture (ie were infected): at a ct of 30, 20% of the samples remain
positive; in a ct of 35, 3% of the samples remained positive; and in a ct
above 35, no sample remained positive (infectious) in cell culture (see
diagram).
This means that if a person has a positive PCR test at a cycle threshold of 35
or higher (as is the case in most laboratories in the US and Europe), the
chances of a person being infected are less than 3%. The probability of the
person receiving a false positive is 97% or higher”.
iv. What follows from these studies is simple -the possible reliability of the PCR tests carried out depends, from the
outset, on the threshold of amplification cycles they support, such that, up to the limit of 25 cycles, the test reliability will be
around 70%; if 30 cycles are performed, the degree of reliability drops to
20%; if 35 cycles are reached, the degree of reliability will be 3%.
v. However, in the present case, the number of amplification cycles with which PCR tests are carried out in
Portugal, including the Azores and Madeira, is unknown, since we were unable to find any recommendation or limit in this
regard.
saw. In turn, in a very recent study by Elena Surkova, Vladyslav
Nikolayevskyy and Francis Drobniewski, available inhttps://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30453-7/fulltext , published in the equally prestigious The Lancet, Respiratory Medicine , refers (in addition to the multiple issues that
the Lancet itself). The accuracy of the test raises,
regarding the specific detection of the sars-cov 2 virus, strong doubts
regarding compliance with the so-called gold standard ) that
(free translation):
"Any diagnostic test must be interpreted in the context of the actual possibility of the
disease, existing before its realization . For Covid-19, this decision to perform the test depends on the prior assessment of the
existence of symptoms, a previous medical history of Covid 19 or the
presence of antibodies, any potential exposure to this disease and no
likelihood of another possible diagnosis. ” [3] “One of the potential reasons for presenting positive results could be
the prolonged shedding of viral RNA, which is known to extend for weeks after
recovery in those who were previously exposed to SARS-CoV-2. However, and more importantly, there is no scientific data to suggest that
low levels of viral RNA by RT-PCR equate to infection, unless the presence
of infectious viral particles has been confirmed by laboratory culture
methods .
In summary, Covid-19 tests that accuse false positives are increasingly
likely in the current epidemiological climate scenario in the UK, with
substantial consequences at the personal, health system and societal
level .” [4]
18. Thus, with so many scientific doubts, expressed by experts in the
field, which are the ones that matter here, as to the reliability of such
tests, ignoring the parameters of their performance and with no diagnosis
made by a physician, in the sense of the existence of infection and risk, it
would never have been possible for this court to determine that AH___ was a
carrier of the SARS-CoV-2 virus, nor that SH__SWH__ and NK_ had been exposed
to high risk.
19.In a final summary, it will be said that, since the appeal filed is
inadmissible, due to lack of legitimacy and lack of interest in acting on the
part of the appellant, as well as manifestly unfounded, it will have to be
rejected, pursuant to the provisions in articles 401 nº 1 al. a), 417 nº6 al.
b) and article 420 nº 1 paragraphs. a) and b), all from the Criminal
CP. iv – decision. In view of the foregoing, and pursuant to
the provisions of articles 417, no. 6, al. b) and 420 nº 1 als. a) and b),
both of the Code of Criminal Procedure, the appeal filed by the REGIONAL HEALTH AUTHORITY, represented by the Regional Directorate of Health of the Autonomous
Region of the Azores , is rejected .
Pursuant to paragraph 3 of article 420 of the CPPenal, the appellant is
sentenced to a procedural sanction of 4 UC, as well as in the TJ of 4 UC and
in the costs.
Immediately inform the “a quo” court of the content of this judgment.
Lisbon, November 11th, 2020 Margarida Ramos de Almeida Ana
Paramés _______________________________________________________
[1] [1] 2 - The duties of each ARS, IP, within the
respective territorial constituencies are: a) To carry out the national health
policy, in accordance with the global and sectoral policies, aiming at their
rational ordering and the optimization of resources;
b) Participate in the definition of intersectoral planning coordination
measures, with the objective of improving the provision of health care;
c) Collaborate in the preparation of the National Health Plan and monitor its
execution at the regional level;
d) Develop and promote activities within the scope of public health, in order
to guarantee the protection and promotion of the health of populations;
e) Ensuring the execution of local intervention programs with a view to
reducing the consumption of psychoactive substances, preventing addictive
behaviors and reducing dependence;
f) Develop, consolidate and participate in the management of the National
Network of Continued Integrated Care in accordance with the defined
guidelines;
g) Ensure the regional planning of human, financial and material resources,
including the execution of the necessary investment projects, of institutions
and services providing health care, supervising their allocation;
h) Draw up, in line with the guidelines defined at national level, the map of
facilities and equipment;
i) Allocate, in accordance with the guidelines defined by the Central
Administration of the Health System, IP, financial resources to institutions
and health care providers integrated or financed by the National Health
Service and private entities with or without profit , who provide health care
or act within the areas referred to in subparagraphs e) and f);
j) Entering into, monitoring and reviewing contracts within the scope of
public-private partnerships, in accordance with the guidelines defined by the
Central Administration of the Health System, IP, and allocating the respective
financial resources;
l) Negotiate, celebrate and monitor, in accordance with the guidelines defined
at national level, regional contracts, protocols and conventions, as well as
carry out the respective assessment and review, in the context of the
provision of health care as well as in the aforementioned areas in
sub-paragraphs e) and f);
m) To guide, provide technical support and assess the performance of
institutions and services providing health care, in accordance with the
defined policies and with the guidelines and regulations issued by the
competent central services and bodies in the various fields of
intervention;
n) Ensuring adequate articulation between health care services in order to
guarantee compliance with the referral network;
o) Allocate financial resources, through the signing, monitoring and review of
contracts within the scope of integrated continuous care;
p) Develop functional programs for health establishments;
q) Licensing private health care units and units in the area of dependencies
and additive behavior in the social and private sector;
r) Issue opinions on master plans for health units, as well as on the
creation, modification and merger of services;
s) Issue opinions on the acquisition and expropriation of land and buildings
for the installation of health services, as well as on projects for the
installations of health care providers.
[2] “that at a cycle threshold (ct) of 25, about 70% of samples remained
positive in cell culture (ie were infectious); up to a ct of 30, 20% of
samples remained positive; up to ct of 35, 3% of samples remained positive;
and at a ct above 35, no sample remained positive (infectious) in cell
culture (see diagram) This means that if the person gets a “positive” PCR test result at a
cycle threshold of 35 or higher (as applied in most US labs and many European labs),
the chance that the person is infectious is less than 3%. The chance that the person received a “false positive” result is 97% or
higher.
[3] Any diagnostic test result should be interpreted in the context of the
pretest probability of disease. For COVID-19, the pretest probability
assessment includes symptoms, previous medical history of COVID-19 or presence
of antibodies, any potential exposure to COVID-19, and likelihood of an
alternative diagnosis.1 When low pretest probability exists, positive results
should be interpreted with caution and a second specimen tested for
confirmation.
[4] Prolonged viral RNA shedding, which is known to last for weeks after
recovery, can be a potential reason for positive swab tests in those
previously exposed to SARS-CoV-2. However, importantly, no data suggests that
detection of low levels of viral RNA by RT-PCR equates with infectivity unless
infectious virus particles have been confirmed with laboratory culturebased
methods.7
To summarise, false-positive COVID-19 swab test results might be increasingly
likely in the current epidemiological climate in the UK, with substantial
consequences at the personal, health system, and societal levels (panel).
