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Portugal: Legal Response to Covid-19

Portugal [pt]

Rui Lanceiro, Teresa Violante, Mariana Melo Egídeo

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 05 December 2021

General editors: Prof. Jeff King; Dr. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: R Lanceiro, T Violante, M Melo Egídeo, ‘Portugal: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e23.013.23

Except where the text indicates the contrary, the law is as it stood on: 20 April 2021

As of 19 April 2021, in Portugal there has been an aggregate total of 831,221 infected and 16,946 deaths from Covid-19. The number of active cases is 25,059.

The first two cases of Covid-19 were reported on 2 March 2020, but Covid-19 first entered Portugal on 21 February 2020, imported from Spain and Italy. On 12 March 2020, the Government announced the closing of schools until the Easter holidays. At that time, there were only a little more than 100 cases in Portugal. The first death occurred on 16 March 2020. A day later, Covid-19 was confirmed to have officially arrived in all regions of Portugal. On 18 March 2020, the first state of emergency in Portuguese democracy was declared. The most critical week of this first wave of the pandemic was observed between 30 March and 5 April 2020, with over 700 new daily cases. At the end of April, and with numbers declining sharply, the Government presented a three-part plan to ease the lockdown. The situation stabilized during the summer 2020, except for the Lisbon and Tajo Valley region, where several outbreaks worried the Government.

The second wave arrived in October 2020 and lasted until the beginning of December 2020. On 19 October 2020, Portugal surpassed 100,000 confirmed cases of Covid-19 since the beginning of the pandemic, and on 7 December, the country reached 5,000 pandemic-related deaths. Vaccination against Covid-19 started on 27 December 2020 in hospitals and immunised many health professionals from the most critical services.

The third wave, which started after Christmas 2020 and lasted through February 2021, reached its peak of 16,432 new cases and 303 deaths in a single day on 28 January, dwarfing all the figures of the previous waves and bringing the Health Care System to the brink of collapse. The number of people in hospitals, with a high of 6,869 people admitted on 1 February and 904 patients in intensive care on 5 February, forced Portugal to accept aid from other European countries, such as Germany, Austria, and Luxembourg. Only the new general confinement declared on 21 January 2021 managed to stop an escalation that made Portugal one of the countries most affected by Covid-19 worldwide. The number of daily deaths from 12 January until February 2021 exceeded, on average, that of countries such as Spain or the United States.

After the end of the third wave, the number of daily cases declined sharply. As of April 2021, Portugal is one of the European Union (EU) Member States with the fewest new cases per million inhabitants. The country is currently experiencing fewer deaths per day than the average of its European counterparts. Since the start of the pandemic, around 8% of the population living in Portugal has been diagnosed positive for SARS CoV-2.

I.  Constitutional Framework

1.  The Portuguese Republic is a democratic state that follows the rule of law and has a semi-presidential system of government, under its Constitution.

2.  The President of the Republic is the head of state, directly elected by universal suffrage for a five-year term and may only serve two consecutive terms. The Presidential duties include serving as supreme commander of the armed forces, appointing and dismissing the Prime Minister (who must be able to command majority support in the Parliament), appointing and dismissing other members of the Government at the proposal of the Prime Minister, and convening or dissolving the Parliament as necessary. The Parliament comprises the unicameral Assembly of the Republic, which has 230 deputies elected every four years. Its powers include debating and voting upon legislation, approving the budget, and dismissing the Government.

3.  The Government is politically accountable to the Parliament and to the President of the Republic. The Constitution designates the Council of Ministers as Portugal’s chief policy-making body.1 The Government consists of the Prime Minister, who presides, the ministers, and secretaries of state (ministers without portfolios). The Prime Minister directs, coordinates, and implements government policy.

4.  The executive power is vested in the Government, which is the head of the civil service, although the President also intervenes in some cases related with the armed forces and the diplomatic corps.

5.  Portugal is a unitary state with two autonomous regions in the Madeira and Azores archipelagos with self-governing bodies and legislative, executive, and international powers. In these regions, health and civil protection matters have been devolved, although within the powers provided by the Framework Law of Civil Protection 2006,2 the Framework Law of Health 2019,3 and the Law Instituting a Public Health Surveillance System 2009.4 As regional legislative powers are limited, most of the measures to respond to the pandemic were adopted through executive regulations approved by the regional governments.

6.  Both the Parliament and the Government enjoy legislative power, although some matters are reserved for the Parliament. Legislative powers in matters of health protection belong to the Parliament, although the Government may also legislate if it respects the Framework Law of Health. In continental Portugal, the national health system is centralized. The Government and, more specifically, the Minister of Health leads the executive response to the pandemic, which has been mainly centred in the Directorate General of Health (DGS) and the Regional Health Administrations (ARS). However, local authorities have some devolved powers on primary health care and significant powers on civil protection, such as closing parks and other public areas. In the autonomous regions there are regional health systems directed by the regional governments. Resource allocation and priority setting rest mainly in the hands of the Government and, in the case of the autonomous regions, of the regional governments.

7.  The responsibility for response to emergencies lies with the Government under the powers provided by the Framework Law of Civil Protection 2006, the Framework Law of Health 2019, and the Law Instituting a Public Health Surveillance System 2009. Under the Portuguese Constitution, the President holds power to declare the state of emergency, but he must first consult the Government and seek binding parliamentary authorization.5 Once declared, it is for the Government to execute the state of emergency. In theory, this would mean that the President of the Republic would take the lead during the state of emergency. However, the declarations have been very broad in scope, leaving the Government with a wide margin of discretion while executing them. This means that the main responsibility in terms of response to the pandemic also lied with the Government, even during these periods.

8.  The implementation of the state of emergency in the regions has been problematic. According to the Law on the State of Siege and the State of Emergency 1986, the Representatives of the Republic in the regions—who are public officials, appointed by the President—are the competent authorities.6 However, in practice, the declarations of state of emergency have been implemented by the regional governments, through administrative regulations, in the face of inertia by the Representatives of the Republic.7

II.  Applicable Legal Framework

A.  Constitutional and international law

9.  The Portuguese Constitution establishes a specific framework governing the constitutional state of exception.8 It distinguishes between a state of siege and a state of emergency, whereby the former applies in case of physical aggression or insurrection. Situations of public calamity fall under the state of emergency and only allow for partial suspensions of fundamental rights.

10.  The Constitution expressly states that the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, the accused persons’ right to a defence, and the freedom of conscience and religion are off-limits and can never be suspended.9

11.  The President of the Republic has the power to declare the state of emergency, but only after consulting the Government and seeking parliamentary authorization.10 Once declared, it is for the Government to execute the state of emergency. However, it must keep the Parliament and the President informed of its actions as expressly required by the Law on the State of Siege and the State of Emergency 1986.11 Moreover, this Law expressly guarantees full access to courts to individuals that are harmed or threatened by any illegal or unconstitutional measure. Parliament oversight and judicial review of the state of emergency are envisaged, and the institutional design of the state of emergency promotes the engagement of all the branches of state power. The state of emergency can only be declared for 15 days, subject to renewals following Government consultation and binding parliamentary authorization.12

12.  For the first time since the coming into force of the democratic Portuguese Constitution, in 1976, the state of emergency was declared in order to respond to the Covid-19 pandemic. Portugal went through a first period of state of emergency, during the first wave, and is currently under a second period of state of emergency since 9 November 2020.13 There was a political divide about the need to declare the first period of state of emergency, between the President of the Republic, who thought it was necessary to combat the pandemic, and the Government, which disagreed.14 This was intensified by the disagreement among constitutionalists as to whether the existing legal framework allowed quarantines of those infected with the new coronavirus without a judicial order.15 Despite this, the President of the Republic initiated the relevant proceedings to declare a state of emergency on 18 March 2020, for the first time under the democratic Constitution.16 During the proceedings, the Government issued a favourable opinion on the declaration and the Parliament authorized it with no votes against it.17 The second period of state of emergency was not preceded by a similar division of opinions between the Government and the President.18 However, this time, three political parties and an independent Member of Parliament voted against the authorization.19

13.  The first period of state of emergency began with the presidential Decree declaring the state of emergency and suspending several rights for 15 days, starting at midnight on 19 March 2020.20 The President of the Republic renewed the state of emergency on 2 and 18 April 2020,21 lasting until 2 May 2020.

14.  During the first period of state of emergency, the number and type of fundamental rights suspended evolved. In the original declaration of the state of emergency, the following rights were partially suspended: the freedom to travel and settle within the Portuguese territory, allowing public authorities to impose the compulsory confinement at home or in a medical facility; the freedom to cross the national borders; right to private property and the freedom of enterprise, giving the Government the power to requisition property, material, and facilities, to issue orders to the private sector; some workers’ rights, including the right to strike in some circumstances; the right to assembly and to demonstrate, as well as the freedom of worship in its collective dimension, allowing the restriction of gatherings; and the right of resistance against unlawful orders. The renewals of the declaration built upon the previous suspension of rights, adding powers to the executive to restrict dismissals, control prices and hoarding, and to interfere in the operation of companies and production units. The right to education and freedom to learn was suspended for the first time, even though schools were closed on 16 March 2020, allowing for the prohibition of face-to-face classes and the changing of the school year limits. The right to data protection was also suspended, allowing the authorities to require telecommunications operators to send written messages to their customers. In the renewals of the original declaration, the right of resistance was no longer formally suspended but regulated to prevent any act exclusively directed against lawful orders issued by public authorities in the execution of the state of emergency.22

15.  During the first period of state of emergency, the Decrees also expressly stated which rights are not affected by the state of emergency, reproducing the list of Article 19(6) of the Constitution, and adding to them the ‘freedom of expression and information’. It was also stated that ‘in no case may the principle of the unitary State or the territorial continuity of the State be put into question’, which is related to claims by the two archipelagic autonomous regions to suspend flights from continental Portugal, and that the Public Prosecution Service (Ministério Público) and the Ombudsperson would continue to operate.23

16.  The second period of state of emergency started on 9 November 2020 and is ongoing. It was declared on 6 November and has been renewed 11 times so far.24

17.  From November 2020 to January 2021, the fundamental rights suspended were fewer in comparison with the first period, but the list grew longer over time. They included: the right to freedom and the freedom to travel within the Portuguese territory; the freedom of enterprise, allowing the mobilization of resources from the private sector; workers’ rights, allowing the mobilization of medical and non-medical personnel from the public and private sector; and the right to the free development of personality and the defensive side of the right to health against intrusion from State action, allowing the imposition of non-invasive body temperature checks and diagnostic tests for SARS-CoV-2. In the first renewal some other dimensions were added, with the power given to authorities to impose the use of masks in public and the suspension of the right to data protection of workers, namely, to allow the recording of body temperature. The suspension of these rights was maintained until the fifth renewal of the state of emergency in January 2021, which broadened the suspension of the right to work, establishing the power to impose telework, and of the freedom of enterprise, allowing the imposition of price controls.25 In the sixth renewal of the state of emergency, invoking the worsening of the pandemic situation, the right to education was also suspended allowing the prohibition of face-to-face classes and the suspension of the right to data protection was broadened to include online classes.26 The latter suspension of a fundamental right was further broadened in the 11th renewal, to include the processing of data for vaccination purposes.27

18.  In both periods of state of emergency, under the principle of proportionality, the Presidential Decrees have only suspended the aforementioned fundamental rights to the extent considered necessary by the competent public authorities to make decisions deemed essential to reduce the risk of contagion and to implement measures to prevent and combat the epidemic. The Decrees gave a wide margin of discretion for the Government to execute them.

19.  There has been a specific concern with compliance with EU law throughout the process and one can find references to the EU and to the other EU Member States. For instance, the provisions of the Decrees suspending the right to cross the national borders, allowing the imposition of border controls on persons and goods expressly stated that this should be done ‘in articulation with European authorities and in strict compliance with the European Union Treaties’.28 The opinions of the European Center for Disease Control (ECDC) were quoted in the preamble of several Presidential Decrees declaring the state of emergency.29

20.  During the first period of state of emergency, one of the Presidential Decrees expressly urged the Government to consider the recommendations of the High Commissioner on Human Rights concerning the need to adopt urgent measures to prevent Covid-19 ‘rampaging through places of detention’.30 The Parliament approved a legal regime detailing exceptional and urgent measures for detainees, including pardons.31

21.  The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention)32 has also inspired a program to tackle domestic violence during the lockdown.33

22.  The declaration by the World Health Organization (WHO) of a public health emergency of international concern, on 30 January 2020, and the classification on 11 March 2020 of the disease Covid-19 as a pandemic, was invoked several times in the state of emergency Decrees34 and legislative acts passed during this period.35 The official guidance documents issued by the DGS directly quote standards developed by the World Health Organization.36

23.  Portugal has not legally derogated from any international conventions because of the pandemic.

B.  Statutory provisions

24.  In the fight against the pandemic, the Government relied mainly on legislation that predated the pandemic for the primary public health measures.

25.  The initial legislation and administrative regulations and ordinances were mainly based on three legal instruments. First, the Framework Law of Civil Protection 2006, which allows for nuanced centralization of powers and substantial restrictions of fundamental rights, namely imposing limits on the circulation of persons and vehicles, fixation of cordons sanitaires, rationalization of transports and communication services and the possibility of access to private property, and temporary requisition of products and services.37 This act was expressly framed as a middle option between the state of constitutional normality and the state of constitutional exception. It establishes three levels of reaction to risk situations: the state of alert, the state of contingency, and the state of calamity, the latter corresponding to the more severe risk. Second, the Framework Law of Health 2019, which assigns powers to central health authorities in case of health risks to individuals and communities.38 Such powers include suspending or closing public and private facilities or spaces, confinement of individuals ‘in accordance with the Constitution and the law’, and requisition of health facilities and workers in cases of severe epidemics. Third, the Law Instituting a Public Health Surveillance System 2009, which allows the Government to adopt exceptional and necessary measures in cases of public health emergencies.39 They include the suspension or closure of activities or the separation of non-sick persons or transports that have been exposed, to prevent further infection or contamination and the power to enact ordinances and regulations to render the efficacy of contingency norms as well as any other measures necessary to contain the epidemics. Moreover, in the framework of a public health emergency, the Government may request a declaration of the state of emergency. Other legal bases were used: eg, the restriction on flights from and to Italy was enforced,40 based on the Regulation (EC) No 1008/2008.41

26.  Even before the declaration of a state of emergency, the Ministers of the Interior and of Health had declared a ‘state of alert’ under the Framework Law of Civil Protection 2006 and Framework Law of Health 2019.42 After the end of the first period of state of emergency, at midnight on 2 May 2020, it was replaced with a less severe state of calamity, governed by the aforementioned Framework Laws of Civil Protection and Health and the Law on Public Vigilance of Health Risks, which was declared by the Council of Ministers.43 This can be considered analogous to a declaration of public health emergency. Neither the Parliament nor the President of the Republic play any role in these declarations.

27.  This transition from state of emergency under the Constitution to state of calamity under the law did not entail significant substantial changes, because the administrative powers provided to the executive are extremely broad. Still, it allowed the Government to regain ownership of the situation, not being bound by the initiative and the framework defined by the President and the need to present periodic reports to the Parliament.

28.  During the summer of 2020, the territory was divided between areas under the state of alert, state of contingency, and state of calamity.44 In October 2020, as the second wave began to hit the country, a state of calamity was once again declared for the whole of the mainland territory.45 This was eventually replaced by the second period of state of constitutional emergency, which came into force on 6 November 2020.

29.  No new general law was introduced to provide emergency powers to respond to Covid-19, although the Government is conducting a study on a sanitary emergency law that can bring flexibilization to the easing of the ‘lockdown’ measures.46

C.  Executive rule-making powers

30.  In Portugal, at the national level, both the Parliament and the Government enjoy legislative power, and their legislative acts—the Parliament approves laws (leis) while the Government decree-laws (decretos-leis)—have equivalent value. However, the power to legislate in some areas is reserved, by the Constitution, to the Parliament and, in other areas, the Government can only legislative if authorized to do so by the Parliament.

31.  The legislative powers of the Government played a significant role in providing the rules for dealing with the crisis. In the period from 13 March to 24 June 2020, which corresponds to the first wave of the pandemic, the Government approved 52 decree-laws and the Parliament only 23 laws.47

32.  Most of the measures adopted were introduced through decree-law. The first of these legislative acts and one of the central pieces of Covid-19 legislation in Portugal is the Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus 2020, Decree-Law No 10-A/2020, which has been amended 30 times since its coming into force.48 It was enacted under the Government’s general legislative power. However, since competence for the legal restriction on fundamental rights lies exclusively in the hands of the Parliament, this act raises serious concerns. In fact, under the tagline of promoting social distance, the Government, among other initiatives, approved the closure of all schools, banned school holiday trips, and enabled future partial or total restrictions of access to restaurants and bars. It also framed access to teleworking as mandatory in case either the worker or the employer unilaterally required so. The Parliament later ratified the Decree-Law through an ex post ‘ratification’ act claiming to produce effects at the initial date of the Decree-Law.49

33.  Under the Constitution, the Government also has administrative rule-making powers, which were extensively used during the pandemic. These include the power to approve regulations in the Council of Ministers, such as resolutions of the Council of Ministers (resoluções do Conselho de Ministros) or decrees (decretos), or through individual Ministers acting alone or collectively such as ordinances (portarias) or orders (despachos). The regulations should make express mention of the legislation that they are intended to regulate, or that define the competence to issue them, and independent regulation issued by the Government should take the form of regulatory decrees (decretos regulamentares).50

34.  The state of emergency was declared under a Presidential Decree, which is one of the few rule-making powers attributed by the Constitution to the President of the Republic. According to the Law on the State of Siege and the State of Emergency, the Presidential Decrees are to be implemented, at the national level, by the Government.51 However, the type of act is not specified. The Government chose to implement the Presidential Decrees declaring a state of emergency through decrees that are approved by the Council of Ministers and need to be signed by the President of the Republic. The Presidential Decrees only suspended fundamental rights to the extent considered necessary by the competent public authorities to make decisions deemed essential to reduce the risk of contagion and to implement measures to prevent and combat the epidemic. This means that they gave a wide margin of discretion to the Government to execute them.

35.  The state of emergency can only be declared for 15 days, subject to renewals, after which the Presidential Decrees and the Governmental decrees that implement them expire.

36.  The Government has issued specific exceptional legislation and regulations to answer the pandemic, instead of amending existing legislation and regulations, which makes it easier to revoke them, after the end of the pandemic. Several of these measures have already been amended or substituted by others. Besides, several of the legislative acts and regulations have sunset clauses, but their general duration varies from six months to a year.

37.  The constitutional review of legislative acts of the Government by the Constitutional Court is possible, at the request of the President of the Republic, the President of the Parliament, the Prime Minister, 23 Members of Parliament, the Ombudsperson, and the Prosecutor General.52 The constitutionality of the legislative acts of the Government may also be controlled through the courts, when they are addressing a dispute involving the act in question.53 Judicial decisions addressing this matter can be appealed to the Constitutional Court.54 The Constitutional Court has not yet reviewed any of these legislative acts of the Government.

38.  The executive regulations may be challenged before administrative courts, in general. There have been challenges on the constitutionality of Resolutions of the Council of Ministers limiting the inter-municipal circulation55 and restricting freedom of assembly,56 without success. The regional regulations imposing mandatory quarantines have been challenged before the civil courts, under habeas corpus writs, and were found unconstitutional by the Constitutional Court.57 The constitutionality of a criminal prosecution in cases of disobedience for breach of emergency requirements established in one of the governmental Decrees implementing the state of emergency was questioned by a civil court of appeal for lack of parliamentary delegation.58 There are pending cases at the courts, including the Constitutional Court, and many more are expected in the months (and perhaps years) to come.

39.  The Government has relied on its direction-giving powers, especially in terms of issuing directives and orders to the public administration, under pre-existing laws or the Decrees declaring a state of emergency.59 Another example was the civil requisition of dockworkers that were on strike in the beginning of the pandemic.60

D.  Guidance

40.  The Government and the health authorities have relied on non-mandatory directions or non-statutory guidance for the implementation of Covid-19 responsive measures. There have been a significant number of ‘guidelines’ (orientações) and ‘communications’ (comunicados) by the DGS.61 The reliance on soft-law instruments was more significant at the beginning of 2020, addressing incoming travellers, prevention and control of infection by SARS-CoV-2 in hotels and similar lodging establishments, as well as surveillance of people infected with SARS-CoV-2 in hotels and other accommodations, or the cleaning and disinfection of surfaces in customer service establishments.

41.  In some cases, especially during the state of emergency, activities are only permitted if they follow the ‘guidelines’ of the DGS, which lends them a degree of bindingness.62

42.  Several public service campaigns were launched on respiratory hygiene/cough etiquette, handwashing, social distancing, mask wearing, and the use of a contact tracking smartphone application.63

43.  Under the pre-existing legal framework, the system of warnings to the population64 was activated by the declaration of a state of alert on 13 March 2020.65 The system is intended to provide information, warnings, and advice to the public in general or those located in a specific area. This allowed the Civil Protection Authority (ANEPC), in collaboration with the DGS, to ask telecommunications operators to send text messages (SMS) related to the Covid-19 pandemic to the population.66

44.  In October 2020, the use of masks or visors in public spaces was made compulsory by law.67 The Government also intended to render the Stayaway Covid smartphone application mandatory. Still, it could not reach parliamentary consensus in the face of constitutional concerns over privacy issues.

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

45.  We must distinguish between the period encompassed by the declarations of state of emergency under the Constitution and the periods covered by the state of calamity governed by the aforementioned Framework Laws of Civil Protection 2006 and Health 2019 and the Law Instituting a Public Health Surveillance System 2009, which was declared by the Council of Ministers. As mentioned in Part II above, the state of emergency is agreed between the three main political institutions: it is declared by the President, after hearing the Government, and must be authorized by the Parliament—and is executed by the Government. It is declared for a maximum period of 15 days and can be renewed through the same procedure. The declaration of the state of emergency can be amended or revoked at the sole initiative of the President. This power is free from the input of the other powers if the amendment aims at narrowing the extension of the emergency. Should the President wish to broaden the scope of the measures, the Government and the Parliament must also be involved.

46.  During the constitutional state of emergency, both the legislature and the President of the Republic are competent to supervise the executive action. According to the Law Governing the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), the Government must keep the legislature and the President informed of the execution of the state of constitutional emergency.68 Moreover, and in accordance with the same act, at the end of each state of emergency, the Government must provide the Parliament a documented report of the arrangements and measures adopted in the execution of the emergency.69 Based on said report, the Parliament evaluates the execution of the declaration of the state of emergency by the Government.70 This means that during the period covered by the regime of quarterly declarations of state of emergency (between 18 March–2 May 2020 and 6 November 2020 until now), the Government has been subject to the effective supervision of the legislature, by giving notice of the emergency measures and presenting interim reports to Parliament at the end of each period. These reports were subject to discussion in parliamentary plenary debates.

47.  The execution of the state of emergency has been translated in detailed regulations enacted by the Government in the framework of the presidential declarations that have been previously authorized by the Parliament. Hence, both the Parliament and the President have the power to define the scope for the executive action during the state of emergency. However, they are mere authorizations, giving the power to act to the Government, and are not necessarily binding upon it. For example, a number of Presidential Decrees stated that ‘Lower noise levels in decibels or at certain times of the day may be determined, by Government decree, in residential buildings, so as not to disturb teleworking workers’.71 The Government, however, has never implemented this provision. This is a clear example that the declaration of the state of emergency, previously authorized by the Parliament and enacted by the President has the effect of defining the limits of the Government’s action, most importantly the fundamental rights that can be affected and suspended. But it does not translate into the power of determining in detail the concrete implementation of the state of emergency as the Government is afforded a wide margin of discretion in its execution.

48.  It should be stressed that the declaration of the state of emergency has the effect of disempowering the Parliament from its natural role of leading legislator in situations concerning restrictions of fundamental rights.72 Although the Parliament is competent to authorize the declaration of the state of emergency, this framework shifts the normative competence to restrict fundamental rights from the Parliament to the Government.73 Some have argued that the declaration of the state of emergency led to ‘reduced parliament intervention as the legislature refrained from producing the norms that should frame the executive action.74

49.  The oversight mission of Parliament was affected, during the first phase of the state of emergency (18 March–2 May 2020) by reduction in parliamentary works (see Part III.B below).

50.  On the other hand, under the national state of administrative exception, governed by the Framework Law of Civil Protection 2006, the Framework Health Law 2019, and the Law Instituting a Public Health Surveillance System 2009, the Government is not bound by the initiative and the framework defined by the President and did not need to present periodic reports to the Parliament. From 2 May 2020 to 6 November 2020, when the national state of calamity was in force, the Government operated free from checks and balances from the legislature and the President. This freedom of action was also due to the fact that Parliament allowed the Government to remain the chief normative conductor of emergency action, abdicating its constitutional function as the primary legislator on matters related to fundamental rights.75

B.  The functioning of the legislature where its ordinary business is disrupted

51.  Article 19(6) of the Constitution ensures that the declaration of a state of emergency may not affect the application of the constitutional rules concerning the competences and functioning of the Parliament—as well as the President, Government, and the courts. Other than that, the Constitution does not provide for any explicit rules ensuring, during times of crisis, the functioning of Parliament. There were no formal amendments to the rules of procedure of the Parliament to cope with the demands posed by the Covid-19 pandemic. At the beginning of the pandemic, the Parliament adopted a deliberation maintaining face-to-face plenary meetings but only once per week and decided to operate with just one-fifth of the members, reflecting the proportion of the Parliamentary Groups.76 Plenary deliberations are taken in the presence of more than half of the members (the constitutional quorum limit),77 so at least 116 members must be present to vote. Remote voting in plenary sessions is not possible.

52.  Together with reducing the number of representatives present, the Parliament also decided to maintain parliamentary committee meetings only if absolutely necessary and limited these to the coordinators. Parliamentary committees have also switched some meetings to videoconference, using Skype.

53.  These conditions have affected the individual rights of parliamentarians. Moreover, the reduced role of Parliament endangers political deliberation. The symbolism of keeping the Parliament’s doors open came at a democratic cost: by reducing plenary meetings and the committee’s works, the Parliament’s oversight role was effectively curtailed during this period.78

54.  However, these rules have not caused significant political turmoil nor criticism and have been fairly accepted by all the parliamentarian groups. Moreover, during the later stages of the pandemic, plenary meetings were resumed under their normal conditions, sticking to social distancing requirements. These require that MPs are spread between the plenary hall and their offices, but the reduction of works is not enforced anymore.

C.  Role of and access to courts

55.  According to the Law on the State of Siege and the State of Emergency 1986, ordinary courts remain fully operational during the state of emergency.79 Moreover, a transitory and exceptional procedural regime was introduced. This regime allowed online proceedings when face-to-face proceedings were not possible for sanitary reasons. Unless otherwise agreed by the parties, the defendant’s or parties’ testimonies must always be given in court except if the person was aged 70 or older, a chronic disease patient, or from a high-risk group. The provisional regime ensured that the criminal defendant is always allowed to join the court during certain stages of the criminal proceedings. It also determined the suspension of certain deadlines such as the deadline of a debtor to require the insolvency and eviction orders. The regime was terminated in June 2020 and reinstated at the end of January 2021, when the number of Covid-19 cases was reaching its peak. An amendment was then introduced to suspend all the judicial proceedings in every court, except for the Court of Auditors. The proceedings related to fundamental rights or involving any unconstitutional or illegal measure were not included in the suspension.80

56.  The declaration of the constitutional state of emergency according to Article 19 of the Constitution can become the subject matter of scrutiny by the Constitutional Court in abstract or concrete review proceedings.81 Abstract review is initiated by certain institutional petitioners (the President of the Republic, the President of Parliament, the Prime Minister, the Ombudsperson, the Prosecutor General, or one-tenth of MPs). On the other hand, concrete review arises during judicial disputes. All courts that are to apply the measures taken in the scope of the declaration of the state of emergency are competent to check their legality or constitutionality. Since all courts have direct access to the Constitution, should a court find any measure to be unconstitutional then it would be bound to refuse its application, this decision being subject to mandatory appeal to the Constitutional Court.

57.  Courts can also review the declaration of administrative exception, as well as the measures adopted in said context. Under this context, it is expected that judicial restraint in this area is less intensive as the framework of the administrative exception is not triggered by the combined action of three sovereign organs (the President, the Parliament, and the Government) and is not subject to interinstitutional oversight.

D.  Elections

58.  The first election campaign of the Covid-19 era in Portugal took place in the Azores. On 25 October 2020, elections were held to determine the composition of the Legislative Assembly of the Autonomous Region of the Azores. The campaign took place during the period when the rules were more relaxed, allowing some political campaign activities, if masks were used, with fewer street actions and no crowds at rallies.82 In a region where abstention is traditionally high, the turnout in these elections actually increased compared to the previous one, with 45.4% of voters casting a ballot, compared with the record-low 40.9% in 2016.

59.  On 24 January 2021, the presidential elections were held, during the second lockdown. In the previous weeks, there was an intense debate about whether they should be postponed. However, both the President and the Government concluded that there were constitutional obstacles preventing the postponement of the elections.

60.  Infected individuals, as well as individuals who had been declared under active surveillance after 14 January 2021, were unable to register to vote at home, and were therefore prevented from voting.83 The electoral campaign was not suspended but it was subjected to the guidelines of the health authorities and severely constrained by the lockdown. The major winner was the low turnout—60% of the voters abstained, the highest figure in the Portuguese history—as people feared going to the polls amid record numbers of Covid-19 infections.84

61.  Local elections are scheduled for autumn 2021. It will strongly depend on the development of the pandemic and vaccination rates by that time, and especially on whether complying with general rules of hygiene will be sufficient, or whether additional measures will be necessary, some of which, such as a recourse to postal voting or the spread of elections over more days, are controversial.85

E.  Scientific Advice

62.  The National Public Health Council is one of the pillars of the Public Health Surveillance System and is the Government’s advisory body for the prevention and control of communicable diseases and, in particular, for the analysis and assessment of serious situations, namely large-scale epidemic outbreaks and pandemics. The National Public Health Council comprises representatives of the public, private, and social sectors, including the academic and scientific areas.86

63.  However, the leading source of scientific advice to the Government has not been the National Public Health Council. The primary role of giving advice and providing information not only to the Government but also to the President of the Republic, MPs, and other public officials such as the Ombudsperson has been assigned to an informal structure comprising academics, members of the National Institute of Health Doutor Ricardo Jorge, and other experts. The National Institute of Health Doutor Ricardo Jorge is a public body integrated in the indirect administration of the State, under the tutelage of the Ministry of Health, endowed with scientific, technical, administrative, and financial autonomy. This informal structure became known as ‘meetings of the Infarmed’ (reuniões do Infarmed), because they took place in the building of the Infarmed - National Authority of Medicines and Health Products. They were, at first, held quarterly, behind closed doors, at the end of which a press conference would summarise the main topics addressed. After being suspended during the Summer of 2020, they were reconvened on 19 November 2020. There are no public records of the minutes of the meetings. The lack of transparency has been strongly criticized and led to the most recent meetings being broadcasted live.87

64.  The absence of a permanent scientific body with competence to provide structured scientific advice on the pandemic has been strongly criticized.88

F.  Freedom of the press and freedom of information

65.  While the work of journalists is impacted by general rules like distancing measures, Portuguese authorities have not implemented special legal restrictions on the media, which would be, with regard to the freedom of press (Article 36 of the Constitution), highly objectionable. In most regulations, the press is explicitly exempted from general restrictions that could interfere with the freedom of press like mobility provisions. During the first period of state of emergency, the Presidential Decrees expressly stated that the ‘freedom of expression and information’ was not affected.89

G.  Ombuds and oversight bodies

66.  The Ombudsperson is appointed by the Parliament and is competent to handle complaints of all persons who feel harmed by unfair or illegal acts of the public administration, or who claim infringements of their fundamental rights. During the pandemic, the Ombudsperson has been a relevant check on emergency measures, having issued several requests for information and recommendations to the executive authorities. It has also handled several complaints related, for example, to tax issues,90 social protection of individual workers, and assistance to the family of Covid-19 patients and deceased. Moreover, the Ombudsperson has challenged before the Constitutional Court the constitutionality of a legislative provision that exempts tenants in shopping malls from the payment of minimum rents.91 According to the review request, the measure breaches the right to property and private enterprise.

67.  Several measures combatting the pandemic raise crucial questions regarding data protection.92 The Portuguese Data Protection Authority has issued several opinions, which are publicly available.93

68.  By contrast, a special reviewer of legislation is unknown to the Portuguese legal order. The task of supervising both legislation and law enforcement is attributed to the courts.

IV.  Public Health Measures, Enforcement and Compliance

69.  Although Portugal is a unitary State, public health measures regarding the pandemic were not strictly the same throughout the country, since the executive regulations adopted in the autonomous regions of the Azores and Madeira varied, as well as the enforcement policies of local authorities. Some measures to address the pandemic were even stricter in Madeira and the Azores than in continental Portugal. In this section, the main continental public health measures regarding the pandemic will be outlined.

A.  Public health measures

70.  The Portuguese approaches to combatting the pandemic can roughly be categorized in four chronological stages. Between 2 March 2020–18 March 2020, the Government adopted strict restrictive measures to contain the epidemic based on previous legislation such as the Framework Law of Civil Protection 2006, the Framework Health Law 2019, and the Law Instituting a Public Health Surveillance System 2009 (see Part I above), namely through legislation regarding the adoption of exceptional and temporary measures concerning the epidemiological situation of the new coronavirus, Covid-19,94 and administrative orders. The restrictions included the closure of schools, limited access to restaurants and bars, and mandatory teleworking. The country initiated a first ‘lockdown’ on 18 March 2020 when, as explained in Part II.A above, the first constitutional state of emergency was then declared—with the initial declaration and two renewals lasting between 18 March 2020–2 May 2020. Stricter suspensions of fundamental rights were thus enforced, such as a generalized ban on movement and the shutdown of an extensive list of economic activities.

71.  After the state of emergency expired, a ‘civic duty’ of confinement replaced the ban on movement, even though most of the remaining restrictions of fundamental rights were at first maintained through regulatory instruments, and then were gradually relaxed between May and September 2020.

72.  From September 2020 onwards, as the infection rates increased, the Government was forced to abandon its easing of the ‘lockdown’ strategy, hence reintroducing restrictions on social gatherings, cultural events, and the working hours of restaurants and bars.

73.  Finally, on 6 November 2020, a new constitutional state of emergency was declared and stricter restrictions implemented, although with differences throughout the country based on the number of cases each municipality registered. As cases exploded in the beginning of 2021, on 15 January 2021 a new lockdown was adopted, which was still in force in July 2021, even though from 15 March onwards a strategy for lifting restrictions has been taking place, following the setup of a Lockdown Easing Plan based on several scientific criteria.95 The plan is divided into four stages with a two-week interval between each one (15 March, 5 April, 19 April, and 3 May 2021) in order to assess the impact of the measures on the pandemic’s evolution. It has been established that the schedule can still be amended if certain epidemiologic criteria show a loss of control of the pandemic, which happened on 15 April 2021 when the Government decided that some municipalities could not yet proceed to the third stage due to the increasing number of infections.96 In fact, the relevant decrees and regulations have frequently been amended as the health crisis evolved, resulting in a complex body of legal and administrative regulations.97

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

74.  The declaration of Covid-19 as a global pandemic by the WHO, in the face of the high number of countries affected by the disease, as well as the speed with which the disease evolved globally, determined, on the part of the Government, the adoption of a set of measures—even before the declaration of the state of emergency in 18 March 2020—during the Council of Ministers of 12 March 2020, when a state of alert was declared under the Framework Law of Civil Protection 2006, as explained in Part II.A above.98 This first set of measures consisted mainly of an adaptation of public procurement rules to the exceptional pandemic situation, the creation of rules concerning the social protection of workers and their families, as well as measures regarding the functioning of public services and other types of establishments, namely the suspension of all classroom activities and non-teaching activities in schools at all levels of education as of 16 March 2020, the restriction of the functioning of discos and similar establishments, the imposition that shopping centers and supermarkets had to establish entrance limitations to ensure the possibility of keeping a safe distance, the prohibition of disembarking passengers from cruise ships, except those residing in Portugal, and the suspension of visits to elderly care homes. No ‘stay at home’ orders or curfews were imposed at first.

75.  A second set of measures was in force between 18 March and 2 May 2020, during the first state of emergency and its renewals stay-at-home measures were in place but not curfews. Whereas a binding duty of mandatory confinement was imposed on infected individuals in isolation and individuals suspected of infection in quarantine (see Part IV.A.7 below), regarding the generality of the population, a ‘general stay-at-home duty’ was imposed, requiring people to leave their homes only when strictly necessary and in accordance with the exceptions covered by the decree.99 Hence, a Governmental Decree established rules that aimed at reducing contacts between people, allowing limited outings justified by basic needs, such as going to grocery shops, accessing health care, conducting physical outdoor activities alone, or going to work when working remotely was not possible due to the nature of the activity.100 Going outside for a walk was also allowed, alone or with the members of one’s own household—this permission eventually had to be amended, allowing only a walk by foot in the vicinity of one’s home, due to a broad interpretation by citizens and to the lack of a rule stating how far from one’s home citizens were allowed to go for a walk. Nevertheless, there were no rules concerning a maximum number of outings allowed per person, nor a maximum limit of time per outing. To try and prevent further abuses, the Minister for Home Affairs signed an order, which instructed police officers to require citizens to provide proof of their address, including for the practice of sports or the walking of pets.101

76.  Remote working was compulsory whenever possible,102 even without the employer’s consent.103

77.  Until 2 May 2020, individuals over 70 years of age, as well as the immunosuppressed and those with a chronic disease who, according to health authority guidelines, should be considered high-risk individuals, namely hypertensive, diabetic, cardiovascular patients, people with chronic respiratory disease, and cancer patients were also subject to a special ‘duty of protection’. These citizens could only leave their homes in very specific situations, such as to purchase goods, to access health care, or walk their pets.104

78.  During the administrative state of calamity—which lasted initially from 30 April 2020 till 14 July 2020, and was again reinstated from 14 October 2020 to 23 November 2020, overlapping the second state of emergency—through a Resolution of the Council of Ministers, the Government opted for a less intense list of restrictions, without neglecting the need to comply with the physical distancing measures that were essential to contain the pandemic.105 The mandatory stay-at-home duty evolved into a civic stay-at-home duty, meaning citizens were advised to stay at home when no exception applied, although this duty was not mandatory, and therefore not enforceable.106 Even though remote work remained mandatory whenever possible, the gradual reopening of diverse facilities from 5 May 2020 onwards increased the possibilities for citizens to circulate.

79.  From 9 November 2020 during the second state of emergency, Portugal introduced a curfew across most of the country, in the municipalities deemed to be most at risk of new Covid-19 infections, in an effort to combat surging Covid-19 case numbers. The measures were in effect on weeknights (between 11pm and 5am) and from 1pm on weekends, except for the purpose of urgent travel in the cases allowed for by the decrees and applied to around 70 per cent of the population.107 Authorities classified each mainland municipality as being at one of four Covid-19 risk levels—extremely high, very high, high, or moderate—based on local disease activity. Most of the municipalities on the Portuguese mainland also endured a ban on travel between municipalities (see Part IV.A.2 below).

80.  One of the most restrictive measures in terms of freedom of movement was the imposition of a cordon sanitaire in the municipality of Ovar adopted on 17 March 2020, even before the declaration of a state of emergency, which lasted for a month.108 The isolation of a single municipality in the whole country was due to the recognition of an epidemiological situation compatible with active community transmission, which meant that the risk of transmission was widespread and could give rise to new transmission chains in neighbouring areas, at a time where in other municipalities every transmission chain could still be traced. This decision was strongly criticised by the community and especially by the mayor of Ovar when the number of cases escalated in the Lisbon area around June 2020 and no similar measure was enforced.

81.  Though challenged before the Supreme Administrative Court, the restrictions on mobility were not found to be unconstitutional by the Court—there was not a breach of the principle of proportionality or equality on the ban of travelling between municipalities.109

2.  Restrictions on international and internal travel

82.  The presidential decrees declaring the state of emergency suspended, among other fundamental rights, the freedom to travel and settle within the national territory, as well as the freedom to cross national borders.

83.  Drawing on lessons from neighbouring countries hit earlier by the crisis, the Government enforced restrictions on flights and cruise disembarkations, based on, respectively, Article 21 of Regulation (EC) No 1008/2008 and the Framework Law of Civil Protection.110 On 16 March 2020, control at internal borders was reintroduced, and, two days later, air traffic with non-EU countries was suspended (except for Schengen, Portuguese speaking, and other countries with relevant diaspora).111 These measures were adjusted in July 2020.112 In May 2020, the Government imposed some rules concerning a maximum passenger limit for air transport as well as some exceptions, in order to guarantee distance between passengers and to guarantee their safety, which was later revoked in that same month.113 The Government also imposed the obligation of temperature measurement of travellers at airports.114

84.  Bans on international travel varied throughout the pandemic: as stated above, the Government prohibited nonessential foreign travel to and from Portugal—exemptions applied for freight transport, residents returning from Schengen countries, and travel for professional or study purposes. In addition, a ban on flights connecting with Brazil, South Africa, and the UK was put into place and extended until April 2021 in response to the identification of new Covid-19 variants in these countries. During this time, only humanitarian and repatriation flights were allowed and travellers returning from these locations had to be in possession of a negative result from a Covid-19 polymerase chain reaction (PCR) test taken no more than 72 hours prior to departure and must self-isolate for 14 days upon arrival.115 Travel from other countries remained prohibited in April 2021, except for limited essential reasons, including EU citizens and residents returning home, reuniting with family, and commuting for essential work or study. All such arrivals are also required to submit a negative result from a Covid-19 test taken no more than 72 hours before boarding.116

85.  Authorities have also extended the closure of the border with Spain to nonessential travellers until at least 30 April 2021, which also includes cross-border rail traffic, except for the transport of goods and the suspension of inland waterway transport between Portugal and Spain, establishing that the definition of the authorized crossing points at the border would be determined by order of the Minister for Home Affairs.117

86.  Regarding internal travel, the greatest restrictions were the imposition of a travel ban across municipalities not only on special holidays (Easter 2020, Labour’s Day 2020, and Easter 2021 from 26 March until 5 April 2021) but also on the weekends—in areas with a high number of cases from November until January 2021 and later in all of continental Portugal from January until April 2021.118 Social unrest followed the exception in the decree of the President renewing the state of emergency for the Communist Party to organize a demonstration on Labour’s Day 2020, which led to the permission to celebrate religious events on the 13 May, which is extremely important for Catholics in Portugal.119

87.  Travel across municipalities was allowed during Christmas between 23–26 December 2020.

88.  Judicial review of emergency measures has validated limitations on inter-municipal circulation—the Supreme Administrative Court considered that the difficult task of managing the pandemic, with an exponential and differentiated growth of cases in the territory, particularly in certain municipalities (which is a public and notorious fact), is a justification that can be accepted as a criterion that blocks the unconstitutionality of the measure, namely because there was not a breach of the principle of proportionality or equality on the ban of travelling across municipalities.120 By and large, the administrative courts, in numerous proceedings, affirmed the constitutionality of those measures because the request was found inadmissible on procedural grounds. That is the case with the writ for the protection of rights, freedoms, and guarantees proposed by right-wing political party Chega against the travel ban between municipalities (ordered by Resolution of the Council of Ministers 89-A/2020 on 26 October 2020), which was not admitted because the legitimacy of the party to propose such actions, which aim to protect individual rights, was not recognised.121

3.  Limitations on public and private gatherings and events

89.  Cancelling events with more than 1,000 attendees was one of the first measures taken by the Government at the very beginning of the crisis, even before the declaration of the state of emergency took place. As of 13 March 2020, all gathering and events with more than 1,000 people were prohibited, as well as open-air events with more than 5,000 people.122 Subsequently, on 15 March 2020, additional measures were taken, including, among others, the prohibition of events, meetings, or gatherings, regardless of the reason or nature, with 100 or more people.123 However, as it turned out, these restrictive measures of the right to assemble and demonstrate were not sufficient. Therefore, during the first state of emergency, prohibitive measures were enacted of all types of gathering and assembly of people, which necessarily included meetings and demonstrations of any kind.

90.  Despite the ban on collective manifestations of religion and worship in order to prevent gatherings, freedom of conscience and religion, in its individual dimension, was guaranteed pursuant to Article 19(6) of the Constitution and Article 5(1) of the Decree of the President of the Republic No 14-A/2020 of 18 March 2020, which declared the state of emergency for the first time—the protection of individual religious freedom continued to figure in the renewals of the state of emergency.124 Funerals could be held, even though under very strict sanitary measures.

91.  While a ban on domestic travel was not imposed between 23 and 26 December 2020 (see Part IV.A.2 above), the Prime Minister urged people to avoid spending too long in large festive gatherings without wearing a facemask. There was no limit imposed on how many people could gather per household for Christmas and the night-time curfew was pushed back from 11pm to 2am on 24 and 25 December 2020. This relaxation of measures around Christmas time led to the worsening of the health situation in January 2021 and the need to reinstate the state of emergency, as described in Part II.A above.

92.  Differently from the Christmas period, there were specific New Year’s Eve ‘lockdown’ rules—the traditional street parties were banned, while any other outdoor gatherings were limited to a maximum of 6 people, curfew imposed from 11pm, and travelling across municipalities forbidden between midnight on 31 December 2020 and 5am on 4 January 2021.

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities)

93.  The most significant measures in this respect were firstly introduced by Decree-Law 10-A/2020, enacted by the Government on 12 March 2020, and which has by now undergone more than 30 amendments to adapt the measures to the evolution of the pandemic.125 Under the tagline of promoting social distance, it approved the closure of all schools (Article 9) and enabled future partial or total restrictions of access to restaurants and bars (Article 12). On 9 April 2020, the Government announced schools would not reopen in the third term for Grades 1 to 9. In January 2021, schools of all levels (including Universities) were again closed, and started to reopen gradually from 15 March 2021 onwards, according to the Lockdown Easing Plan approved by the Government.

94.  The Government also continued to act based on the Framework Law on Civil Protection 2006 and the Framework Law of Health 2019, issuing administrative orders that required the suspension of some economic activities and limitation of access to restaurants and bars.126

95.  Decree 2-A/2020 (20 March 2020) which regulated the first state of emergency, suspended the majority of the activities open to the public, with the exception of those that provided essential services (listed in Annex II to this decree), and allowed for restaurants and cafes to operate a take away regime.127 The operation of premises such as swimming pools, sports facilities, cinemas, libraries, museums, theatres, or nightclubs was prohibited as well. Parks were not closed, except for playgrounds, although some local authorities decided to close parks as well.128 In April 2021, even under a reopening strategy, some of these establishments remain closed. Others were allowed to reopen in May 2020, provided they complied with hygiene measures ensuring the reduction of physical encounters between the attendants, but were again closed in January 2021 with the declaration of the state of emergency.

96.  As seen above, at weekends, a lockdown was in place in some municipalities from 1pm to 5am from November 2020 onwards, and from January–April 2021 throughout the entire country, during which all commercial outlets and restaurants had to shut, although some exceptions were allowed (for instance, pharmacies and local grocery shops).

97.  Challenges brought before the Supreme Administrative Court—interim injunctions concerning the protection of civil liberties, including the demand for the lifting of the suspension of teaching and non-teaching activities determined by Decree No 3-C/2021 (22 January 2021)129 or the restriction on private property and freedom of enterprise invoked by night club owners who were forced to keep their establishments closed—were found inadmissible by the Court, mainly on procedural grounds.130 On this last case, the Supreme Administrative Court ruled that the losses suffered by the business activity of a night club/disco due to the Government shutdown could not be considered an ‘abnormal damage’, which is a legal requirement to compensate a citizen for a law enacted by the State.131 On the contrary, they corresponded to normal social charges of living in society, as a counterpart to the benefits obtained in containing the pandemic.

98.  On other cases, the Court considered there was not a violation of any right or freedom. That was the case in a writ for the protection of rights and freedoms, regarding freedom of assembly, where the Supreme Administrative Court considered there were no legal grounds for the request, namely because there was not a breach of the principle of proportionality or equality.132

5.  Physical distancing

99.  At the beginning of the pandemic, on 15 March 2020, the Minister of State, Economy and Digital Transition, issued an ordinance in order to restrict access and to allocate spaces in commercial establishments and services of catering and drinks, imposing a maximum occupancy indicative rule of 0.04 people per square metre of area.133 The administrative orders issued under the state of calamity entail the adoption of measures that ensure a minimum distance of two metres between people, except when a special provision or guidance from the DGS states otherwise. The different administrative orders issued determine that while the state of emergency or the state of alert, contingency, or calamity determined in accordance with the Framework Law of Civil Protection lasts, the rules of physical distance, as defined in the decree that regulates the declaration of the state of emergency or in each declaration of the state of alert, contingency, or calamity, shall be respected.134

100.  Nevertheless, there is not exactly a general mandatory physical distancing provision, although the Government and DGS recommend a minimal distance of 1.5–2 metres between individuals ‘wherever possible’.135 The impossibility to respect a minimal distance is one of the reasons for mandatory use of facemasks, when physical distancing recommended by health authorities cannot be complied with.136

6.  Use of face coverings and personal protective equipment (PPE)

101.  Although at the beginning of the pandemic the use of facemasks was not imposed nor recommended by public authorities, as there was no available stock of appropriate facemasks, due to the evolution of the epidemiological situation verified in Portugal, in May 2020 the Government decided to implement the mandatory use of masks or other face coverings for certain public areas, in particular for shops, schools, and public transportation from the age of 10 years old, with some exceptions, namely medical advice.137 Failure to comply is punishable by a fine and the due amount was even increased when the state of emergency was renewed in January 2021.138 Some protests against the use of facemasks increased from October 2020 onwards, and in March 2021 a judge was suspended for not wearing a facemask when in court and requiring other legal actors to take the mask off during court hearings.139

102.  From 28 October 2020, wearing facemasks also became mandatory in public spaces.140 According to Law 62-A/2020 (27 October 2020), the mandatory use of masks in public spaces covers people from 10 years of age for ‘access, circulation or permanence in public spaces and roads whenever the physical distance recommended by the health authorities proves to be impractical’. However, the aforementioned law establishes exceptions, namely for individuals of the same household when they are not in the proximity of third parties. The enforcement of the law is the responsibility of the security forces and municipal police, who must, in the first place, make people aware of the importance of wearing a mask on public roads, and awareness campaigns were also carried out. The initial period of 70 days was extended until 5 January 2021, then 5 April, and more recently until July 2021.141

103.  In October 2020, a court accepted an interim injunction presented by the parents of a seven-year-old against the use of facemasks and social distancing while in school, claiming it was a violation of his wellbeing. This child was scolded by the school for comforting a classmate who was crying, while another student had been suspended because he had shared a snack with another friend during a school break, which was widely reported in the national news.142

104.  In March 2021, Lisbon saw hundreds of people demonstrating against the law obliging masks to be worn in public where the majority of protesters were not wearing mask or mintaining social distance. The leader of the protest turned out to be infected by Covid-19 some days later.143

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

105.  One of the biggest legal discussions was whether citizens could be isolated or quarantined against their will, namely if such measures are compatible with the constitutional right to freedom. Although Article 27(3)(h) of the Constitution only allows compulsory internment in an appropriate therapeutic establishment in the case of a ‘person suffering from a psychological anomaly’ when ordered or confirmed by a competent judicial authority, Article 17 of the Law Instituting a Public Health Surveillance System 2009 allows the Minister of Health to adopt measures considered necessary in the case of public health emergencies, along with Article 34 of the Framework Health Law, which allows for the isolation of infected individuals or quarantine of those suspected of being ill.

106.  Portuguese legal terminology does not sharply distinguish between ‘isolation’ and ‘quarantine’. From the first decree regulating the state of emergency in March 2020, until the most recent one in April 2021, Article 3 refers to ‘confinement’ (confinamento),144 which covers both those infected with SARS-CoV-2 or ill with Covid-19 and those individuals who are only suspected of infection and are therefore considered ‘cases of active vigilance’ when substantial evidence for the possibility of an infection exists and they must be under ‘prophylactic isolation’.145 Isolation and quarantine are ordered individually by the local health authority. The length of isolation and quarantine has varied through the months, depending on the recommendations of the DGS—following the most recent recommendations, quarantine at home lasts for 14 days after an individual has either had close contact with persons who tested positive or was exposed to high virus concentrations, whereas those with a positive test are isolated at home but are considered ‘cured’ after 10 days.146 Health authorities must communicate to the police the identity and place of residence of those under isolation or quarantine.

107.  In April 2021, passengers returning from ‘red zones’ (see Part IV.A.2 above) must fulfil a period of prophylactic isolation of 14 days, at home or at a location designated by the health authorities. They are exempt from complying with the prophylactic isolation only if they are on essential journeys or if the period of stay in national territory, attested by a return ticket, does not exceed 48 hours.147

108.  Some of the most interesting cases concern the constitutionality of the implemented mandatory quarantines and tests for incoming passengers, namely by the authorities of the Azores, which lead to habeas corpus requests. Courts have censored regional regulations imposing mandatory confinements and criminal prosecution in cases of disobedience for breach of emergency requirements for lack of parliamentary delegation, including the Constitutional Court.148

8.  Testing, treatment, and vaccination

109.  Although in general the authorities may not order mandatory medical treatment, since the right of the patient to freely consent to any medical intervention is guaranteed, in the case of a contagious disease, it can be argued medical examinations can be imposed under legislation—Article 34(2)(b) of the Framework Health Law expressly states that mandatory medical treatment may be imposed when a risk to public health is at stake. Nevertheless, there are no general rules on mandatory testing for the generality of citizens, even though the presidential decrees allow for body temperature controls to be imposed, by non-invasive means, as well as diagnostic tests for SARS-CoV-2—namely for the purpose of working from the workplace or as a condition of access to certain services or public institutions.149

110.  However, the governmental decrees which regulate the state of emergency state that the imposition of diagnostic tests is determined in each case by the maximum authority of each service or institution and is limited to certain situations, such as healthcare access, schools, and prisons.150

111.  Testing capacities in Portugal proved inefficient, namely during the peak of the pandemic in January 2021,151 but the Government stated that mass testing would start in April/May 2021, following the easing of the lockdown measures.152

112.  Regarding vaccination, the campaign started on 4 January 2021, and vaccination was according to specific criteria and a timeline divided in three groups, following the ‘Vaccination plan against Covid-19 in Portugal’.153 Firstly, residents and staff of care homes, health care professionals, people with essential functions such as military and police officers will receive the vaccine, as well as people from 50 years of age with comorbidities. The second phase will target people over 65 years of age and people between 50–64 years old with comorbidities. Thirdly, the rest of the population will be able to receive the vaccine when sufficient doses are available.

113.  A general mandatory obligation for vaccination against Covid-19 does not exist and the question was not discussed. Citizens receive a text message and are free to accept or reject the vaccine. In April 2021, 2,679,813 vaccine doses had already been administered.154 Of these doses, 2,015,225 citizens had taken the first dose—which represents about 20% of the population—while 689,329 had already taken the second dose (7% of the population).155 Some citizens who were vaccinated without bring in a priority group are now facing criminal charges, namely of embezzlement and abuse of power, and a specific type of crime for undue vaccinations was even proposed in the Parliament.156

9.  Contact tracing procedures

114.  When services re-opened in May 2020, completing contact forms was not adopted, but a contact tracing procedure concerning travellers entering Portugal was implemented, under international legislation (International Health Regulations 2005) and through a joint guidance.157 The Portugal Passenger Locator Card is a travel screening required for all international travellers who want to travel to Portugal and it was designed to help the Portuguese public health authorities contact passengers who may have been exposed to Covid-19. The information is intended to be held by the Portuguese public health authorities in accordance with applicable law and to be used only for public health purposes.

115.  With the aim of combating the pandemic, the DGS developed a platform (Trace COVID-19), which consists of a set of measures adopted for clinical and epidemiological surveillance, and can only be used by health care professionals, hospitals, as well as public health authorities, since it contains detailed records of specific information on cases, respective contact tracking, surveillance, and clinical follow-up of patients with suspected or confirmed Covid-19.158

116.  A ‘Coronavirus warning app’ for smartphones (Stayaway COVID) was also developed by the Institute for Systems and Computer Engineering, Technology and Science (INESC TEC), an associated laboratory of the public system, based on the DP^3T protocol, ruled by the principles of voluntary use, protection of individual privacy, and no collection of personal information and was recommended and adopted by the Government once the system was proven ready for deployment in September 2020. People who have tested positive are given a numerical code (valid for 24 hours) to enter into the app. After validation by the DGS, the application will alert other users who have been close to the infected user for 15 minutes or more. Once installed, the app on the mobile phone indicates its presence to all nearby devices using random identifiers but without ever disclosing any personal information. The information shared between devices allows the app to know the mobile phones one has been close to, how close, and for how long. The identity of users and their contacts will never be revealed.159

117.  Under the applicable legislation, a data processing impact assessment was carried out, concluding it could be useful and help contain the expansion of the pandemic through data from users who tested positive for Covid-19.160 In October 2020, the Government submitted to the Parliament a proposal to make use of the app mandatory, but following wide national discussion regarding privacy issues and compliance with EU law, which involved the Portuguese data protection authority and the promise of legal actions by a digital rights defence association, the Government withdrew the proposal.161 Even the name of the app was criticized, since it was not in Portuguese.

118.  Even though scientific studies about contact tracing apps in Europe concluded they could help in decision-making and combating the pandemic, 60% of the users (around 1.8 million citizens) had already deleted the app by January 2021. The main problem was that six months after it was launched, the app had only been used to send contagion alerts 14,600 times, less than 2% of the total number of infected citizens. The developer complained about lack of organization, lack of training of the medical staff, and the bureaucracy attached.162

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc.

119.  An extensive restriction on visiting people in long-term care facilities and homes for the elderly was one of the first measures implemented as of mid-March 2020 through administrative orders, even before the state of emergency was declared, when all the visits were prohibited—a measure which lasted till 18 May 2020, when one visitor once per week was allowed.163

120.  On October 2020, the DGS informed the public that elderly people residing in nursing homes would be able to receive more than one visit per week, with the possibility of a new suspension of visits, depending on the evolution of the epidemiological situation, at the discretion of the local health authorities. Visits to long-term care facilities had to be scheduled and could not exceed 90 minutes.164

121.  Among the restrictions adopted, visitors had to respect physical distance rules, adopt respiratory etiquette and hand hygiene, and wear a surgical mask during the entire period of the visit, and they could not take personal objects, foodstuff, or other products nor circulate through the facility. The space must be sanitized between visits, and visitors with signs or symptoms suggestive of Covid-19 or who had contact with a suspected or confirmed case in the previous 14 days should not make or receive visits. Visitors who tested positive for Covid-19 should inform the local health authority if the visit occurred within 48 hours prior to the onset of symptoms.

122.  From January until April 2021, even though the state of emergency was in force and successively renewed, one of the exceptions admitted by the governmental decrees that regulated the state of emergency were visits to residential facilities for the elderly and disabled, which were therefore allowed.165

123.  The outbreaks that occurred in nursing homes were responsible for the death of more than 3,750 elderly people since the beginning of the pandemic until 4 February 2021. Of the total deaths in homes for the elderly, 1,583 (42%) occurred between 4 January and 4 February 2021.166 In March 2021, as a result of testing programs and vaccination, the number of outbreaks dropped by 75% and the number of deaths dropped by 98%.167

B.  Enforcement and Compliance

1.  Enforcement

124.  In general, public health officials have the important task of discovering local outbreaks of the disease and tracing infection chains to contain the spread of the virus, either by targeted testing or by issuing individual isolation and quarantine orders.

125.  The legislation and regulations adopted and described above are self-executing, which means that its rules do not need for the most part to be further implemented by local authorities, even though some discretion exists regarding the application of fines and criminal procedures, requiring a case-to-case analysis. In fact, the police forces have the responsibility of monitoring compliance with the enacted regulations.

126.  Between 27 June 2020 and 7 January 2021, the Republican National Guard (GNR) and the Public Security Police (PSP) imposed 1,522 fines for non-compliance with the use of a mask on public roads or in enclosed spaces, according to the data published by the Ministry of Home Affairs. Of these, only 142 administrative fines are related to ‘non-compliance with the use of a mask on public roads and spaces’, which was made mandatory at the end of October, as seen above.168

127.  With the declaration of the state of emergency, police forces have monitored the compliance with the different rules and measures, focusing on compliance with the Articles imposing mandatory confinement, stay-at-home duties, the closing of facilities, and suspension of activities and shutting down of establishments. Apart from a pedagogical approach to the population carried out through personal contact, there were several major enforcement operations, even using drones, namely traffic monitoring actions on the main roads, as well as public transportation hubs, directed to ensure compliance with the recommendations and regulations in force and to ensure unnecessary outings did not take place. Local government authorities played an important role in recommending and advising citizens and, in some cases, allowing for the opening of establishments or closing facilities such as public parks or access to beaches.

128.  A close collaboration also took place between different authorities, such as the Homeland Security System (Sistema de Segurança Interna), National Emergency and Civil Protection Authority (Autoridade Nacional de Emergência e Protecção Civil), National Institute of Medical Emergency (Instituto Nacional de Emergência Médica -INEM), the Portuguese Red Cross (Cruz Vermelha Portuguesa), the Portuguese Civil Aviation Authority (Autoridade Nacional de Aviação Civil), health authorities, Social Security, as well as firemen, local government authorities, the Public Prosecution Service, and the Ombudsperson

129.  As for the military, they played an important role, namely in the first state of emergency, and provided for technical, logistical, and human resources, in support of the effort to combat the Covid-19 epidemic, maintaining its staff at a high level of readiness. For instance, by helping with the transport of goods and infected people and the cleaning and disinfection of infected facilities, and through the military supply of beds in several military units, which helped strengthen the capacity of the national health service in hospitalizations.

130.  Civil fines, some quite expensive, also aim at ensuring compliance with the different regulations. Failure to comply is sanctioned with a fine from 100 euros to 500 euros, in the case of natural persons, and from 1,000 euros to 10,000 euros, in the case of legal persons.169 The Government has enacted catalogues defining the amount of such fines with regard to the disrespect of certain mandatory rules, whose amounts were increased during the new state of emergency declared in January 2021, as stated in Part IV.A.6 above, and it was determined they should be paid immediately, which gave rise to some social unrest and declarations of disapproval by the Portuguese Bar.170

131.  The legislation of the state of emergency states that the non-compliance with certain legal commands, namely isolation and the closing of establishments or activities, can be considered a crime of disobedience, under Article 348 of the Criminal Code, which applies to whoever fails to obey a lawful order or warrants. The Law on the State of Siege and the State of Emergency 1986 also states that the disrespect for the obligations arising from the execution of the declaration of a state of emergency is considered a crime of disobedience. This means that the disregard for the duties imposed legitimizes the issuance of an order by the elements of the Security Forces and Services, which, in the case of refusal by the warned citizen, necessarily results in the comission of a crime of disobedience. The right of resistance cannot be invoked when a legitimate order issued by a public authority is at stake. In November 2020, an appeals court (Tribunal da Relação de Guimarães) ruled that violating isolation and quarantine orders could not be considered a crime of disobedience,171 since it had been created by a governmental decree which lacked the necessary parliamentary authorisation under the Portuguese Constitution, which was immediately followed by other courts.172 The Government has nevertheless preferred advising instead of punishing citizens whenever possible. Some courts have censored criminal prosecution in cases of disobedience for breach of emergency requirements, while others considered that a second breach of mandatory rules by the same person could be punished through that crime.173

132.  Data from the Ministry of Home Affairs shows that since the beginning of the pandemic almost 6,000 fines were applied—with a large number of almost 2,000 fine being applied due of alcohol consumption in the street, followed by 848 fines for the violation of the requirement for the use of face masks in closed spaces—and 687 arrests were made for non-compliance with the rules to combat Covid-19—212 relating to non-compliance with rules of mandatory isolation or quarantine.174 On Easter weekend (3–4 April 2021), more than 650 citizens were fined, due to the breach of stay-at-home orders and prohibition of movement to other municipalities without a valid reason. Three individuals were arrested, an establishment was closed, and six events were interrupted.175

2.  Compliance

133.  The mobility of Portuguese citizens during the crisis showed that the restrictions imposed forced a huge change in people’s habits. Based on geographic location data, Google compared the number of visits and their duration by location and weekday. The use of transportation and travel was, on 21 March 2021, 51% below the ‘normal’ pre-pandemic activity and access to commerce, restaurants, and leisure was down 47%. Travel to workplaces remained 30% below normal and, on the other hand, presence at home was still 15% higher than usual.176

134.  No official surveys to assess compliance with the lockdown and social distancing measures were carried out, but some statistics can be found on the social and economic impact of the pandemic.177

135.  Since March 2020, private enterprise PSE is the only entity that studied the mobility of the Portuguese on an hourly basis, continuously. It measures, on a daily basis, the level of confinement at home and the displacement of the Portuguese people throughout the pandemic, which allowed for studying how mobility affects the expansion of the pandemic. This uses an app installed on the mobile phones of the participating sample and is highly accurate because it records the location via GPS and also because it is based on a statistically representative sample of the group under study.178

136.  According to the PSE findings, there was a significant drop in mobility after the restrictions of March 2020 took effect. Mobility normalized during the relaxation of measures in summer 2020. In November and December 2020, when new restrictions were implemented, mobility again decreased, but less significantly. It was therefore possible to register a progressive easing of the compliance with the law on the part of citizens, especially in sensitive urban areas, with the increase of people traveling on public roads and crowds during the night making it necessary to exercise active vigilance to prevent disorder on the public roads and advise people to return home. The data collected by PSE found that even though it was mandatory to stay at home during the Easter period, only 57% of the Portuguese complied with this rule over the Easter weekend in 2021—in 2020, the number was 79%. Regarding mobility, 91% of Portuguese citizens were found to leave their homes during the week. On the contrary, compliance with the night curfew was between 85%–90%. With the reopening of kindergartens and schools on 15 March 2021, the mobility rates approached the ‘normal pre-Covid-19’ levels—59.4% of the Portuguese took to the streets—something that has not happened since 18 January 2021, which was the last Monday with the schools open. The value is equivalent to 84% of the normal preCovid-19 rate. The day with the highest mobility of the week was 1 April 2021, with a percentage that reached 81%. On 5 April 2021, first day of the easing of lockdown measures, circulation increased to 90%, exceeding the mobility values registered on 15 March 2021 when the Government lifted the first restrictions. The findings concluded that the Portuguese returned to a new normality that is characterized by a change in daily habits and routines.179

Prof. Rui Lanceiro, University of Lisbon School of Law, Lisbon Centre for Research in Public Law

Dr. Teresa Violante, Friedrich Alexander University of Erlangen-Nürnberg, Max Planck Institute for Comparative Public Law and International Law

Dr. Mariana Melo Egídio, University of Lisbon School of Law, Lisbon Centre for Research in Public Law

Footnotes:

2  Framework Law of Civil Protection 2006 (Lei de Bases da Protecção Civil).

3  Framework Law of Health 2019 (Lei de Bases da Saúde).

4  Law Instituting a Public Health Surveillance System 2009 (Lei que institui um sistema de vigilância em saúde pública).

6  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), art 20(2).

11  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência).

12  P Lomba, ‘The Constitutionalized State of Emergency: The Case of Portugal’, VerfassungsBlog (15 April 2020).

13  T Violante and R Lanceiro, ‘Coping with Covid-19 in Portugal: From Constitutional Normality to the State of Emergency’, Verfassungsblog (12 April 2020); T Violante and R Lanceiro, ‘The Response to the COVID-19 pandemic in Portugal: A success story gone wrong’, Verfassungsblog (4 March 2021).

14  Negócios, ‘António Costa against state of emergency at this stage’ Jornal de Negócios (Online, 16 March 2020).

15  L Botelho and M Berenguer, ‘Coronavirus: Basic Health Law does not provide coverage for national quarantine’ Público (Online, 14 March 2020).

16  Presidency of the Portuguese Republic, ‘President of the Republic proposes state of emergency’ (18 March 2020).

17  D Santiago ‘Parliament approves state of emergency with no votes against’ Jornal de Negócios (Online, 18 March 2020).

18  L Botelho, ‘State of emergency comes into force on Monday’ Público (Online, 5 November 2020).

19  RTP, ‘Parliament approves state of emergency decree’ RTPNotícias (Online, 6 November 2020).

22  C Santos Botelho, ‘COVID-19 and Stress on Fundamental Rights in Portugal: An Intermezzo between the State of Exception and Constitutional Normality’ (2020) Revista Catalana de Dret Públic – Especial sobre el dret en temps d’emergència sanitària 183–194.

24  The second period started with the Decree of the President of the Republic which declares a state of emergency, based on a situation of public calamity (51-U/2020) (6 November 2020); it was renewed by Decree of the President of the Republic which renews the declaration of a state of emergency (59-A/2020) (20 November 2020); Decree of the President of the Republic which renews the declaration of a state of emergency (61-A/2020) (4 December 2020); Decree of the President of the Republic which renews the declaration of a state of emergency (66-A/2020) (17 December 2020); Decree of the President of the Republic which renews the declaration of a state of emergency (6-A/2021) (6 January 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (6-B/2021) (13 January 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (9-A/2021) (28 January 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (11-A/2021) (11 February 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (21-A/2021) (25 February 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (25-A/2021) (11 March 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (31-A/2021) (25 March 2021); Decree of the President of the Republic which renews the declaration of a state of emergency (41-A/2021) (14 April 2021).

31  Exceptional regime of relaxation of the enforcement of sentences and measures of amnesty in the context of the pandemic disease COVID-19 (Regime excecional de flexibilização da execução das penas e das medidas de graça, no âmbito da pandemia da doença COVID-19) (Law 9/2020) (10 April 2020).

33  Commission for Citizenship and Gender Equality (Comissão para a Cidadania e Igualdade de Género) (CIG), ‘Safety during isolation’ (accessed 11 April 2021).

35  Eg Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus - COVID 19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020), preamble; Exceptional and temporary regime for compliance with tax obligations and social contributions, in the context of the COVID-19 disease pandemic (Decree Law 10-F/2020) (Decreto-Lei No 10-F/2020, de 26 de março, estabelece um regime excecional e temporário de cumprimento de obrigações fiscais e contribuições sociais, no âmbito da pandemia da doença COVID-19) (26 March 2020), preamble.

36  Eg Guidance for school community screening campaigns with laboratory tests for SARS-COV-2 (Orientação Conjunta DGEstE/DGS) (20 January 2021) (Campanha de Rastreio com Testes Laboratoriais para SARS-CoV-2 na Comunidade Escolar); Informative Circular No 004/CD/100.20.200 on COVID-19 Diagnostic - Antigen Tests (No 004/CD/100.20.200) (14 October 2020) (Diagnóstico COVID-19 – Testes de pesquisa de antigénio); Guidance No 005/2021 Covid-19: Use of Masks (21 April 2021) (Orientação nº005/2021 de 21/04/2021 COVID-19: Uso de Máscaras).

37  Framework Law of Civil Protection 2006 (Lei de Bases da Protecção Civil).

38  Framework Law of Health 2019 (Lei de Bases da Saúde).

39  Law Instituting a Public Health Surveillance System 2009 (Lei que institui um sistema de vigilância em saúde pública).

46  R Dinis and L Valente, ‘Governo prepara lei especial para confinamento de seis meses’ Expresso (Online, 10 March 2021).

47  R Lanceiro, ‘Breves notas sobre a resposta normativa portuguesa à crise da Covid-19’ (2020) LXI(1) Revista da Faculdade de Direito da Universidade de Lisboa 729–746.

48  Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020).

50  Constitution of the Portuguese Republic, art 112(6)–(7).

51  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), art 17.

55  Judgment Case No 0122/20.1BALSB (10 September 2020) (Supreme Administrative Court).

56  Judgment Case No 088/20.8BALSB (31 October 2020) (Supreme Administrative Court).

57  Judgment No 424/2020 (Constitutional Court); Judgment No 687/2020 (Constitutional Court); Judgment No 173/2021 (Constitutional Court).

58  Judgment Case No 119/20.1PBCHV.G1 (9 November 2020) (Guimaraes Court of Appeal).

61  A list is available at Directorate General of Health, ‘Guidelines’ (accessed 11 April 2021).

62  Eg, establishing that the permission for low-risk physical activity and sports is only given ‘under the terms of the specific guidelines of the Directorate-General for Health (DGS)’, Decree that regulates the state of emergency decreed by the President of the Republic (6/2021) (3 April 2021), Art 1(2)(j); this corresponds to Guideline No 036/2020 COVID-19: Sports and Sports Competitions (25 August 2020, updated 31 March 2021) (Orientação No 036/2020 de 25/08/2020, atualizada a 31/03/2021, COVID-19: Desporto e Competições Desportivas).

63 STAYAWAY COVID’ (accessed 11 April 2021).

66  R Lanceiro, ‘Covid-19 and data protection in Portugal’ Blogdroiteuropéen (Online, 2 July 2020).

67  Law on the temporary imposition of the compulsory wearing of mask in public spaces (62-A/2020) 2020 (Lei No 62-A/2020, de 27 de outubro, Imposição transitória da obrigatoriedade do uso de máscara em espaços públicos).

68  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), art 17.

69  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), art 28(1).

70  Law on the State of Siege and the State of Emergency 1986 (Regime do estado de sítio e do estado de emergência), art 28(2).

73  P Lomba, ‘The Constitutionalized State of Emergency’, Verfassungsblog (15 April 2020).

74  P Costa Gonçalves, ‘Abdicação parlamentar na emergência e continuação da abdicação na normalidade’ Observatório Almedina (Online, 21 May 2020).

75  P Costa Gonçalves, ‘Abdicação parlamentar na emergência e continuação da abdicação na normalidade’ Observatório Almedina (Online, 21 May 2020).

76  This deliberation is not public, however see Assembly of the Republic, ‘Message from the President of the Assembly of the Republic to the Assembly of the Republic and the Country on the epidemiological situation of COVID-19’ (16 March 2020).

78  T Violante and R T Lanceiro, ‘Coping with Covid-19 in Portugal: From Constitutional Normality to the State of Emergency’, Verfassungsblog (12 April 2020).

81  J J G Canotilho and V Moreira, Constituição da República Portuguesa Anotada – Volume I (4th edn Coimbra Editora 2007) 404.

82  National Electoral Commission (Comissão Nacional de Eleições), ‘Election campaign activities - in a pandemic context’ (8 September 2020).

83  T Violante and R T Lanceiro, ‘The Response to the Covid-19 Pandemic in Portugal: A Success Story Gone Wrong’, Verfassungsblog (4 March 2021).

84  André Kosters, ‘Presidenciais: investigadores admitem abstenção recorde, entre os 60% e os 70%’ Observador (Online, 20 January 2021).

86  See Law on Public Vigilance of Health Risks 2009, art 4.

87  S Capelo, ‘Não existem atas das reuniões de peritos no Infarmed’ Sábado (Online, 2 August 2020).

92  R Lanceiro, ‘Covid-19 and data protection in Portugal’ Blogdroiteuropéen (Online, 2 July 2020).

93  Portuguese Data Protection Authority, ‘Covid-19: Pareceres, orientações, deliberações e outros documentos’ (accessed 11 April 2021).

94  Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020).

95  See Covid19estamoson, ‘Lockdown Easing Plan’ (accessed 11 April 2021).

97  The Official Journal has setup a special website to keep track of the Covid-19 related legislation and regulations, see ‘Covid-19 Legislation’ (accessed 11 April 2021).

100  See Government of Portugal, Press Release (23 January 2021); and Order (Despacho) of the Minister for Home Affairs ‘Orientações de fiscalização relativamente ao dever geral de recolhimento’ (22 January 2021), namely arts 3(d), 5.

101  See Government of Portugal, Press Release (23 January 2021); and Order (Despacho) of the Minister for Home Affairs ‘Orientações de fiscalização relativamente ao dever geral de recolhimento’ (22 January 2021), namely arts 3(d), 5.

103  See Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020), art 29, which was revoked in May 2020.

109  Judgment Case No 0122/20.1BALSB (10 September 2020) (Supreme Administrative Court).

120  Judgment Case No 0122/20.1BALSB (10 September 2020) (Supreme Administrative Court).

121  Judgment Case No 01958/20.9BELSB (31 October 2020) (Supreme Administrative Court).

125  Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020).

130  Judgment Case No 012/21.0BALSB (5 February 2021) (Supreme Administrative Court); Judgment Case No 0136/20.1BALSB (18 February 2021) (Supreme Administrative Court).

131  State Liability Law 2007 (Regime da responsabilidade civil extracontratual do estado e demais entidades públicas), arts 2, 15(1).

132  Judgment Case No 088/20.8BALSB (10 September 2020) (Supreme Administrative Court).

135  Directorate General of Health, Social distancing manual (3 April 2020).

136  Law on the temporary imposition of the compulsory wearing of mask in public spaces (62-A/2020) 2020 (Lei No 62-A/2020, de 27 de outubro, Imposição transitória da obrigatoriedade do uso de máscara em espaços públicos), art 1.

137  Decree-Law No 20/2020 which amends the exceptional and temporary measures in the context of the Covid-19 disease pandemic (1 May 2020); and introduced Exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus – COVID-19 (Decree Law No 10-A/2020) (Decreto-Lei No 10-A/2020, de 13 de março, estabelece medidas excecionais e temporárias relativas à situação epidemiológica do novo Coronavírus - COVID 19) (13 March 2020), art 13-B, subject to several later amendments.

139  R Penela and B Ferreira, ‘Anti-mask judge suspended’ Observador (Online, 25 March 2021).

140  Law on the temporary imposition of the compulsory wearing of mask in public spaces (62-A/2020) 2020 (Lei No 62-A/2020, de 27 de outubro, Imposição transitória da obrigatoriedade do uso de máscara em espaços públicos).

142  N Marques, ‘School in Sintra suspends a student for sharing a snack with schoolmates’ Público (Online, 14 October 2020).

148  Judgment No 424/2020 (Constitutional Court); Judgment No 687/2020 (Constitutional Court).

152  Governo anuncia reforço da testagem e fiscalização’ Sic Notícias (Online, 6 April 2021).

153  COVID Vaccination Plan (3 December 2020); which is constantly under evaluation by the taskforce created by Order No 11737/2020, from the Ministers of National Defense, Home Affairs and Health (26 November 2020).

154  National Service for Health, ‘Covid-19 Vaccines’ (accessed 11 April 2021).

155  For further details, see Vaccination Plan (18 April 2021).

157  International Health Regulations (23 May 2005); and Directorate General for Health, Joint guidance DGS/SPMS/ANAC/Turismo on the Passenger Locator Card – PLC (2 October 2020).

158  For more information, see ‘Trace Covid-19’ (accessed 11 April 2021); see also the Deliberation of the Portuguese Data Protection Authority 2020/262 on data breaches of the Trace Covid app (Comissão Nacional de Protecção de Dados - CNPD) (17 June 2020).

159  For more information, see ‘STAYAWAY COVID’ (accessed 11 April 2021).

160  Stayaway Covid, Data Protection Impact Assessment on the Stayaway COVID System (11 August 2020).

167  Número de mortes em lares baixou 98 % no último mês’ Sic Notícias (Online, 17 March 2021).

168  J Fonseca, ‘More than 1,500 people fined for lack of a mask, only 10% on the street’ Eco (Online, 13 January 2021).

171  Judgment Case No 119/20.1PBCHV.G1 (9 November 2020) (Guimaraes Court of Appeal).

172  Lusa, ‘Court says lockdown violation is not a crime of disobedience’ RTP Notícias (Online, 19 November 2020).

173  Judgment Case No 119/20.1PBCHV.G1 (9 November 2020) (Guimaraes Court of Appeal); Judgment Case 166/20.3PCLRS.L1-9 (11 March 2021) (Lisbon Court of Appeal).

174  R Antunes, ‘212 detained for breach of mandatory confinement and isolation’ Visão (Online, 18 January 2021).

176  Graphic: one year of limited mobility. Where did the Portuguese (not) go’ Jornal de Notícias (Online, 27 March 2021).

177  ‘‘A year of pandemic: a brief overview - 2020 / 2021’ INE (Online, 2021).

179  PSE, ‘Evolution of Confinement and Mobility’ (2021).