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Quarantine V Habeas Corpus

An interesting debate has arisen in the Açores where The Judicial Court Comarca dos Açores has ruled that the alleged deprivation of a citizens’ freedom “ is outside the scope of competence” of the bodies of the Autonomous Regions, and should come under the governance of the Assembly and Government of the Republic.

This case has arisen after the Ponta Delgada Court granted a request for immediate release (‘habeas corpus’) made by a plaintiff, against the imposition of quarantine in hotels by the Government of the Azores.

At issue, is a complaint by a plaintiff who was placed in mandatory quarantine at a hotel in Ponta Delgada, who has declared that his human rights are being revoked due to the compulsory confinement.  The plea has been handed over to the criminal investigating judge of the Ponta Delgada Court, who in turn has triggered a debate over the legality of mandatory confinement outside a ‘State of Emergency.’

Since the 26th of March, all passengers arriving in the Açores have been required to spend 14 days in confinement in a designated hotel provided by the Açorean executive, as a preventative measure to stop the evolution of the Covid-19 pandemic.  Furthermore, the quarantine expense has to be paid by the quarantinee if they are a non-Azorean resident.  This ruling came into effect on the 8th of May.

The criminal investigating judge of Ponta Delgada wrote that he considers the question is one “of deprivation of liberty, among other reasons, because the consent of that person was waived, and that, the person was taken to a ‘confined’ space and kept under police surveillance.”

He went on to say that because the confinement takes place outside a ‘State of Emergency” the act becomes a ‘material unconstitutionality of the norms that authorise it. Even if there was no “organic unconstitutionality,” the judge understands that even when a national ‘State of Calamity” is declared “any national citizen can freely disembark at any airport on the continent and in the Autonomous Region of the Azores. Besides, non-residents have to pay for their compulsory confinement, something that residents are not subjected to, which in turn violates the principle of equality.

According to the criminal investigating judge of Ponta Delgada, the compulsory confinement of a person without being infected, and on which there is no suspicion of infection, compounded by the absence of the possibility of doing so at home while being forced to undergo quarantine in a facility that is housing people who may be infected violates the principles of Human Rights.

Currently, Ryanair and SATA have ceased operating flights to the Açores. However, TAP-Air Portugal is running a reduced scheduled service between Lisbon and Ponta Delgada and Lisbon and Angra do Heroísmo.

So far, the actions taken by the Autonomous Region of the Azores has resulted in 145 recorded cases of infection: 105 have recovered, 16 people have died, and there are still 24 positive cases  – 16 in São Miguel, 2 in Graciosa, 1 in São Jorge, 3 in Pico and 2 in Faial.

In Madeira, the announcement that the Ponta Delgada Court, in the Azores has been asked to grant a request for immediate release (‘habeas corpus’) made by a plaintiff, against the Azorean Government’s quarantine policy caused uproar yesterday afternoon, with the President of Madeira firmly stating that “Madeira would not change anything” and that if the Madeiran Regional Government is notified of a similar decision, “someone will have to assume that responsibility.” The warning is clear: “We do not have the resources to otherwise control the spread of Covid-19 AND guarantee the safety of our population.”

Miguel Albuquerque went on to say that there is a “false idea” that the pandemic “is under control”. That is the reason for the “great concern with what may come and that it would have been catastrophic for Madeira if the quarantine measures had not been imposed on passengers arriving in Madeira.  These “measures” have enabled the Autonomous Region of Madeira to remain the only Portuguese region who has not lost a citizen to Covid-19, as well as having only a small number of active cases.  Quarantine was the best solution in the face of the seriousness of the situation. This is not a prison situation, and we cannot play with the rules, and as such, the Madeirans and Portosantenses must understand why Madeira needs to have more Autonomy.”

Concluding, any decisions made, should be made for the common good and not just for the benefit of self-centred individuals

Samantha Gannon

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