Thoughts on economics and liberty

A Portuguese court’s ruling against improper use of PCR tests

[DO NOT FORGET TO DOWNLOAD AND SHARE MY 68,000 WORD COMPLAINT TO THE INTERNTATIONAL CRIMINAL COURT]

This extract is important. I’ll link it back to my main placeholder post on the tests (this one).

Addendum: someone’s sent this link; apparently it can be translated via google. [Link to the key study cited in the judgement]

==SOURCE: LOCKDOWN SCEPTICS==

In a recent decision, dated November 11, 2020, a Portuguese appeal court ruled against the Azores Regional Health Authority concerning a lower court decision to declare unlawful the quarantining of four persons. Of these, one had tested positive for Covid using a PCR test; the other three were deemed to have undergone a high risk of exposure. Consequently, the Regional Health Authority decided that all four were infectious and a health hazard, which required that they go into isolation. The lower court had ruled against the Health Authority, and the appeal court upheld that ruling with arguments that explicitly endorse the scientific case for the lack of reliability of the PCR tests (e.g., as extensively explained in Lockdown Skeptics by Dr. Mike Yeadon, Dr. Clare Craig and others).

The court’s ruling is a long text. I provide below a summary of the key passage.

The court’s main points are as follows:

  • A medical diagnosis is a medical act that only a physician is legally qualified to undertake and for which such physician will be solely and entirely responsible. No other person or institution, including government agencies or the courts, has such an authority. It is not up to the Azores Regional Health Authority to declare someone ill, or a health hazard. Only a physician can do that. No one can be declared ill or a health hazard by decree or law, nor as the automatic, administrative consequence of the outcome of a laboratory test, no matter which.
  • From the above, the court concludes that “if carried out with no prior medical observation of the patient, with no participation of a physician certified by the Ordem dos Médicos who would have assessed symptoms and requested the tests/exams deemed necessary, any act of diagnosis, or any act of public health vigilance (such as determining whether a viral infection or a high risk of exposure exist, which the aforementioned concepts subsume) will violate [a number of laws and regulations] and may configure a crime of usurpação de funções [unlawful practice of a profession] in the case said acts are carried out or dictated by someone devoid of the capacity to do so, i.e., by someone who is not a certified physician [to practice medicine in Portugal a degree is not enough, you need to be accepted as qualified to practice medicine by undergoing examination with the Ordem dos Médicos, roughly our equivalent of the UK’s Royal College of Physicians].”
  • In addition, the court rules that the Azores Health Authority violated article 6 of the Universal Declaration on Bioethics and Human Rights, as it failed to provide evidence that the informed consent mandated by said Declaration had been given by the PCR-tested persons who had complained against the forced quarantine measures imposed on them.
  • From the facts presented to the court, it concluded that no evidentiary proof or even indication existed that the four persons in question had been seen by a doctor, either before or after undertaking the test.

The above would suffice to deem the forced quarantine of the four persons unlawful. The court thought it necessary, however, to add some very interesting considerations about the PCR tests:

  • “Based on the currently available scientific evidence this test [the RT-PCR test] is in and of itself unable to determine beyond reasonable doubt that positivity in fact corresponds to infection by the SARS-CoV-2 virus, for several reasons, among which two are paramount (to which one would need to add the issue of the gold standard, which, due to that issue’s specificity, will not be considered here): the test’s reliability depends on the number of cycles used; the test’s reliability depends on the viral load present.”
  • Citing Jaafar et al. (2020; https://doi.org/10.1093/cid/ciaa1491), the court concludes that “if someone is tested by PCR as positive when a threshold of 35 cycles or higher is used (as is the rule in most laboratories in Europe and the US), the probability that said person is infected is <3%, and the probability that said result is a false positive is 97%.” The court further notes that the cycle threshold used for the PCR tests currently being made in Portugal is unknown [N.B. – I know from acquaintances that in at least some Portuguese labs the threshold is 35 cycles].
  • Citing Surkova et al. (2020; https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30453-7/fulltext), the court further states that any diagnostic test must be interpreted in the context of the actual probability of disease as assessed prior to the undertaking of the test itself, and expresses the opinion that “in the current epidemiological landscape of the United Kingdom, the likelihood is increasing that Covid 19 tests are returning false positives, with major implications for individuals, the health system and society.”

The court’s summary of the case to rule against the Regional Health Authority’s appeal reads as follows:

  • “Given how much scientific doubt exists — as voiced by experts, i.e., those who matter — about the reliability of the PCR tests, given the lack of information concerning the tests’ analytical parameters, and in the absence of a physician’s diagnosis supporting the existence of infection or risk, there is no way this court would ever be able to determine whether C was indeed a carrier of the SARS-CoV-2 virus, or whether A, B and D had been at a high risk of exposure to it.”

SOMEONE HAS TRANSLATED THE JUDGEMENT THROUGH SOME AUTO-TRANSLATE SOFTWARE

[Source] – I’ve put this into a Word document as well. It’s all pretty chaotic – need a better translation..

1783 / 20.7T8PDL.L1-3

Rapporteur: MARGARIDA RAMOS DE ALMEIDA

Descriptors: HABEAS CORPUS

INTEREST IN ACTING

SARS-COV-2

RT-PCR TESTS

DEPRIVATION OF FREEDOM

ILLEGAL DETENTION

RL

Date of Agreement: 11/11/2020

Voting: UNANIMITY

Full Text: S

Partial Text: N

CRIMINAL RESOURCES

Decision: Denied Providence

  1. The ARS cannot appeal against a decision that ordered the immediate release of four people, due to illegal detention, in the context of a habeas corpus process (art. 220 als. C) and d) of CPPenal), asking for the validation of the compulsory confinement of the applicants, for being carriers of the SARS-CoV-2 virus (A….) and for being under active surveillance, due to high risk exposure, decreed by the health authorities (B…, C…. and D… .. ) because it has no legitimacy or interest in acting.
  2. The request made would also be manifestly unfounded because:
  3. The prescription and diagnosis are medical acts, under the exclusive responsibility of a doctor, registered with the Ordem dos Médicos (Regulation No. 698/2019, of 5.9).

Thus, the prescription of auxiliary diagnostic methods (as is the case of tests for the detection of viral infection), as well as the diagnosis of the existence of a disease, in relation to each and every person, is a matter that cannot be performed by law , Resolution, Decree, Regulation or any other normative way, as these are acts that our legal system reserves to the exclusive competence of a doctor, being sure that, in advising his patient, he should always try to obtain his informed consent ( 1 of article 6 of the Universal Declaration on Bioethics and Human Rights).

  1. In the case that we are dealing with, there is no indication or proof that such diagnosis was actually carried out by a professional qualified under the terms of the Law and who had acted in accordance with good medical practices. In fact, what follows from the facts taken for granted, is that none of the applicants was even seen by a doctor, which is frankly inexplicable, given the alleged seriousness of the infection.
  2. The only element that appears in the proven facts, in this respect, is the performance of RT-PCR tests, one of which presented a positive result in relation to one of the applicants.
  3. In view of the current scientific evidence, this test is, in itself, unable to determine, beyond reasonable doubt, that such positivity corresponds, in fact, to the infection of a person by the SARS-CoV-2 virus, by several reasons, of which we highlight two (to which is added the issue of gold standard which, due to its specificity, we will not even address):

For this reliability depend on the number of cycles that make up the test;

For this reliability depend on the amount of viral load present.

III. Any diagnosis or any act of health surveillance (as is the case of determining the existence of viral infection and high risk of exposure, which are included in these concepts) made without prior medical observation to patients and without the intervention of a physician enrolled in OM ( that proceeds to the evaluation of its signs and symptoms, as well as the tests that it deems appropriate to its condition), violates Regulation no. liable to configure the crime of usurpation of functions, p. and p. by article 358 al.b), of C.Penal.

  1. Any person or entity that issues an order, the content of which leads to the deprivation of physical, ambulatory, freedom of others (whatever the nomenclature this order assumes: confinement, isolation, quarantine, prophylactic protection, health surveillance, etc.), which do not fit the legal provisions, namely in the provisions of article 27 of the CRP, you will be making an illegal detention, because ordered by an incompetent entity and because motivated by a fact for which the law does not allow it.

(Summary prepared by the rapporteur)

 

Agree in conference at the 3rd Criminal section of the Lisbon Court of Appeal

*

I – report

  1. By decision of 08/26-2020, the request for habeas corpus was granted, as it was illegal to detain them, determining the immediate restitution to the freedom of the Claimants SH__SWH___, AH___ and NK___.
  2. Then came the REGIONAL HEALTH AUTHORITY, represented by the Regional Health Directorate of the Autonomous Region of the Azores, to appeal against such decision, asking the final to validate the mandatory confinement of applicants, as they are carriers of the SARS-CoV-2 virus ( AH___) and for being under active surveillance, due to high risk exposure, decreed by the health authorities (SH__, SWH__ and NK___).
  3. The appeal was admitted.
  4. Mº Pº, in his reply, defends that the present appeal must be considered unfounded.
  5. In this court, the Former PGA after a visa.

II – previous point.

Once the appeal filed by the appellant must be rejected, the court will limit itself, under the terms of paragraphs 1, a), and 2 of article 420 of the Code of Criminal Procedure, to briefly specify the grounds of the decision.

III – justification.

  1. The decision rendered by the “a quo” court reads as follows:

Proven facts:

  1. On 08/01/2020, the applicants arrived on the island of São Miguel, coming by plane from the Federal Republic of Germany, where, in the 72 (seventy-two) hours before arrival, they had carried out a test to COVID19, with a negative result. and whose copies presented and delivered to the Regional Health Authority, upon arrival at the airport in Ponta Delgada.
  2. On 08/07/2020 and already while on the island of São Miguel, the applicants AH___ and NK___ carried out a second test to COVID19.
  3. On 08/10/2020 and also during their stay on the island of São Miguel, the applicants SH___ and SWH___ carried out a second test to COVID19.
  4. On 08/08/2020 the applicant AH___ was, by telephone, informed that her test carried out the previous day had accused “detected”.
  5. From that day 08/08/2020 the applicant AH___ stopped cohabiting with the remaining three applicants, having always maintained a distance never less than 2 (two) meters from them.
  6. On 08/10/2020, applicants SH___, SWH___ and NK___ were informed by telephone that their tests had been “negative”.
  7. On 08/10/2020, the document was sent to all applicants via email. 25, 25verse, 26 and 26 verse, signed by the Delegate of Health of the municipality of Lagoa, in office, Dr. Magno José Viveiros Silva, called Notification of Prophylactic Isolation – Coronavirus SARS-CoV-2 / COVID disease – 19, and two annexes (only one of them in English) and in which it reads (equal content except for the identification of each of the Applicants):

“Isolation (…)

Notification of

Prophylactic Isolation

Coronavirus SARS- CoV-2 / COVID disease – 19

Mário Viveiros Silva Lagoa Health Authority

Under the terms of the Normative Circulars nr DRSCINF / 2020/22 of 2020/03/25 and DRS CNORM2020 / 39B of 2020/08/04 of the REGIONAL HEALTH AUTHORITY (in annex) and Norm no. 015/2020, of 24 / 07/2020 of the General Health Directorate (attached) I determine the

PROPHYLACTIC INSULATION

IN

(…)

Holder of the Citizen Card / PASSPORT No. (…), valid … until … with the social security identification number for the period from 08/08/2020 to 08/22/2020 due to contagion hazard and as a containment measure for COVID 19 (SARS-Cov-2)

Date 2020/08/10 (…)

  1. The Claimants requested that these results be sent to you, and the test report sent to Claimants AH___ and NK___ was sent via e-mail on 8/13/2020 and to Claimants SH___ and SWH___ yesterday, 24 / 08/2020, via e-mail, reports written in Portuguese.
  2. Between the 1st and the 14th of August the applicants were accommodated in the accommodation Marina Mar II, in Vila Franca do Campo.
  3. From August 14th onwards, applicants are accommodated at “THE LINCE AZORES GREAT HOTEL, CONFERENCE & SPA”, in Ponta Delgada (where they are currently located), by order of the Health Delegate in the terms described in 7 as follows:

– In room 502 are the applicants SH___ and SWH___.

– In room 501 is the applicant AH___.

– In room 506 is the applicant NK___.

  1. The applicants tried at least 3 times to contact the telephone helpline they know (296 249 220) to be clarified in their language or, at least, in the English language, but they never had any success, since they only answer and respond in Portuguese, which applicants do not understand.

12.In the hotel, meals are delivered to the room, by hotel services, at predetermined times and according to a choice made by a third party, except during the first 3 days at Hotel Lynce where breakfast was served and the remaining meals through room service.

  1. On August 15th, while fulfilling the prophylactic isolation determined by the Health Delegate, the applicant AH___ started to suffer from an inflammation in the mouth, apparently resulting from the dental appliance she uses.
  2. Having, by telephone, to 296 249 220, I shared this situation with the Regional Health Authority, who requested the necessary medical support.
  3. This request was ignored by the aforementioned support line, which did not provide the required AH___ with the necessary support.
  4. Not seeing any support, two days later, on August 17, properly protected by a mask and gloves, the applicant SWH___ left her room, went to the pharmacy closest to the hotel, where she acquired an ointment to temporarily quell referred situation, having immediately returned to the hotel and to his room.
  5. On 08/19/2020 it was sent by the Health Delegate, Dr. JMS___, to the Requesters e-mail, where it reads:

“(…) AH___ is only considered cured after having a negative test and a 2nd negative cure test, when this happens, the health delegation will contact you (…) (sic).

  1. On 08/21/2020, the following message was transmitted to the four applicants, by Health Delegate Dr. JMS___, via email: “Namely, when the quarantine is over, you have to do a test and if it is negative, leave home ”(sic).
  2. On the same day, August 21, the applicant SH___ questioned the referred doctor and Health Delegate, Dr. JMS___, by e-mail that he sent, the following (translated into Portuguese in free regime):

“Dear Dr. JMS___,

We have already done two COVID / person tests, all of which were negative (SH___, SWH___, NK___). ..and after that we spent 2 weeks in isolation, and none of us have any symptoms !!

We have Dr. MMS ___ documents, confirm.

Nobody told us anything about the new tests after the isolation time ?!

We have already rescheduled our flights and plan to leave the island.

Explain the reason for your statement.

Why was the AH___ COVID test not done yesterday?

Greetings,

SH___ ”

  1. The applicants did not receive any response to this e-mail, with the exception of Applicant AH___, who was notified of a new screening test, specifically, for the next day 29/08/2020.
  2. On 08/20/2020 the applicant AH___ carried out a third test to COVID19, and on the following day (08/21/2020), only by phone, it was informed that the result had accused “detected”.

22.The applicant AH___ requested that they send him written evidence of this positive result, which was sent to him via e-mail yesterday, 08/24/2020.

23.The Claimants questioned the reception staff at the hotel where they are staying, and were told that none of the four claimants, without exception, will be able to leave the rooms.

  1. Applicants do not have, nor have they ever presented, any symptom of the disease (fever, cough, muscle pain, sneezing, lack of smell or palate).

25.The applicants were not explained the content of the two documents sent to them with the writings listed in point 7.

26.The applicants are habitually resident in the Federal Republic of Germany, identified in these documents.

Rationale:

The question that arises here is based on the fact that the Claimants are deprived of their liberty (from the 10th of August until the present date, as shown by the proven facts) and, consequently, being able to use the present habeas corpus institute. – as we will now explain -, it is asked whether or not there is a legal basis for this deprivation of liberty.

Indeed, without even questioning the organic constitutionality of the Resolution of the Council of the Regional Government No. 207/2020, of July 31, 2020, currently in force in the scope of the procedures approved by the Government of the Azores in containing the spread of the SARS-COV- virus 2 in this Autonomous Region, in the present situation, the detention / confinement of the Claimants since last 10 August is materialized by a communication made via e-mail, in Portuguese, in the terms given as proven under point 7.

Now, as is clear from point 7 of the proven facts, the regional health authority, through the respective Health Delegate of the territorial area where the Claimants were staying, determined their prophylactic isolation under the Normative Circulars No. DRSCINF / 2020 / 22 of 2020/03/2025 and DRS CNORM2020 / 39B of 2020/08/04 of the REGIONAL HEALTH AUTHORITY and Norm no. 015/2020, of 07/24/2020 of the General Directorate of Health. And, it was through a communication with the aforementioned support, it is emphasized, in normative circulars and a norm of the General Directorate of Health, that the Regional Health Authority deprived the Claimants of their freedom, because of the proven facts it derives to the satiety that these, in the rigor of the concepts , were detained from the 10th to the 14th of August 2020 in a hotel development in Vila Franca do Campo and from the 14th of August 2020 until the present date confined, and therefore detained, in a hotel room in this city of Ponta Delgada. We cannot forget, not least because it stands out from the list of proven facts, that the Claimant’s power of movement and right to mobility – or that of any other individual who is in the same situation – are so limited that the first exit from the rooms where they found was to go to this court and make statements (with the exception of the trip to the applicant’s pharmacy SWH___ in clear desperation to help her daughter’s pain in the proven terms).

In short, after analyzing the factuality found, it is inexorable to conclude that we are facing a true deprivation of the personal and physical freedom of the applicants, not allowed by them, which prevents them not only from moving, but also from being in family, living for about 16 days. separated (claimants SH___ and SWH___ and her daughter, Claimant here, AH___) and, in the case of Claimant NK___ totally alone, without any physical contact with anyone. To say that there is no deprivation of liberty because at any time they may be absent from their respective rooms, in which they find themselves is a fallacy, just look at the communications made to them after the 10th of August, none of them in the German language, and the conditions in which they have lived (not forgetting that they are foreign citizens with the inherent linguistic barrier) or requesting their return to their place of origin is a fallacy, and for this conclusion, just look at the latest communications made in Portuguese, underlining of which the one given as proven under point 8 stands out, in particular “Namely, when the quarantine is over, you have to do a test and if this is negative you can leave the house as the hotel where you are confined in 3 rooms. .

Therefore, if the Claimants are deprived of their liberty, in the face of proven circumstances, it is necessary to trace the path in which we move, beginning the journey through the guiding light of the Portuguese legislative system: the Constitution of the Portuguese Republic.

Thus, at the level of the hierarchy of norms, it is necessary to remember that, as stated in article 1 of the CRP, “Portugal is a sovereign Republic, based on the dignity of the human person and on the popular will and committed to the construction of a free, just society and supportive. ”. Hence, it is clear that the unity of meaning in which our system of fundamental rights is based is based on human dignity – the principle of the dignity of the human person is the axial reference of the entire system of fundamental rights.

One of them, the most relevant in view of its structuring nature of the democratic state itself, is the principle of equality, provided for in article 13 of the CRP, which states, in its paragraph 1, that “All citizens have the same social dignity and are equal before the law. ”, adding paragraph 2, that“ No one can be privileged, benefited, harmed, deprived of any right or exempt from any duty due to ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social status or sexual orientation. ”

And, in what matters particularly here, under the heading “right to freedom and security”, article 27, no. 1 of the CRP provides, “Everyone has the right to freedom and security”, referring José Lobo Moutinho, in annotation to this article, that “Freedom is an absolutely decisive and essential moment – not to say, the very constitutive way of being – of the human person (Ac. n ° 607/03:“ ontic demand ”), which lends him that dignity in The Portuguese legal order (and, above all, legal-constitutional) finds its granitic foundation (article 1 of the Constitution). In this sense, one can say the cornerstone of the social building ”(Ac. N ° 1166/96)” (aut.cit., In op. Cit., P. 637).

Since human freedom is not one-dimensional, and can take on multiple dimensions, as exemplified in articles 37 and 41 of the CRP, the freedom in question in article 27, is physical freedom, understood as freedom of bodily movement, of coming and going, ambulatory or locomotion freedom, stipulating in paragraph 2 of this last article that “No one can be totally or partially deprived of liberty, except as a result of a condemnatory judicial sentence for the practice of an act punishable by law with imprisonment or imprisonment. judicial application of a security measure. ” – our underline.

The exceptions to this principle are typified in paragraph 3, which provides that:

“Exception from this principle is deprivation of liberty, for the time and under the conditions determined by law, in the following cases:

  1. a) Arrest in flagrante delicto;
  2. b) Detention or preventive detention for strong indications of a willful crime that corresponds to a prison sentence with a maximum limit of more than three years;
  3. c) Arrest, detention or other coercive measure subject to judicial control, of a person who has entered or remains illegally in national territory or against whom extradition or expulsion proceedings are underway;
  4. d) Disciplinary imprisonment imposed on the military, with guarantee of appeal to the competent court;
  5. e) Subjecting a minor to protection, assistance or education measures in an appropriate establishment, decreed by the competent judicial court;
  6. f) Detention by judicial decision due to disobedience to the decision taken by a court or to ensure appearance before the competent judicial authority;
  7. g) Detention of suspects, for the purpose of identification, in cases and for the time strictly necessary;
  8. h) Internment of a patient with a psychic anomaly in an appropriate therapeutic establishment, decreed or confirmed by the competent judicial authority. ”

Finally, it should be remembered that, in case of deprivation of liberty against the provisions of the Constitution and the Law, the State is constituted with the duty to indemnify the injured party under the terms established by the law, as follows from paragraph 5 of article 27, noting that , in line with article 3 of the CRP:

(…) 2. The State is subordinate to the Constitution and is based on democratic legality.

  1. The validity of laws and other acts of the State, autonomous regions, local authorities and any other public entities depends on their compliance with the Constitution.

When we arrived here, having traced the legal territory, let us take a closer look at the situation in which the Regional Health Authority moved in the situation under analysis.

Claimants SH__SWH__ and NK_ underwent a screening test for the SARS-CoV-2 virus, the result of which was negative for all, with the same positive test for Claimant AH___, which led to the aforementioned order of prophylactic isolation and their consequent permanence in the terms set out and proven.

Therefore, in view of the content of the notification made to the Claimants, this court cannot fail to express, ab initio, its perplexity at the determination of prophylactic isolation to the four Claimants.

As is clear from the definition given by the General Directorate of Health, “Quarantine and isolation are measures of social isolation essential in public health. They are especially used in response to an epidemic and are intended to protect the population from transmission between people. The difference between quarantine and isolation stems from the state of illness of the person who wants to be away. That is:

“Quarantine is used in people who are assumed to be healthy, but may have been in contact with an infected patient; isolation is the measure used in sick people, so that through social distance they do not infect other citizens. ” (at https://www.sns24.gov.pt/tema/doencas-infecciosas/covid-19/isolamento/?fbclid=IwAR34hD77oLCpxUVYJ9Ol4ttgwo4tsTOvPfIa3Uyoh0EJEbCs3jEihkaEPAY#sec-0).

Turning to the present case, the Regional Health Authority decided to make a blank slate of essential concepts, because they delimit differentiated treatment (because different, pass the pleonasm), the situations of infected people and those who were in contact with it, in the face of the order of prophylactic isolation to all claimants, although only one of them has positive results to the aforementioned screening test. And, more decided, to make a dead letter of the Resolution of the Government Council no. 207/2020 of 31 of July, forbidding to the mandatory submission the judicial validation of the competent court decreed that it is mandatory quarantine, when it derives to the satiety of the facts proven that Claimants SH__SWH__ and NK___, at most, are subject to mandatory quarantine.

It did not do so within the 24 hours provided for in paragraph 6 of the aforementioned Resolution, not even within a broader period – as in the 48 hours provided for in article 254, paragraph 1, point a), of the Criminal Procedure Code, or in article 26, no. 2, of the LSM – continuing to make any communication and, therefore, the evident restriction of the freedom of Claimants SH__SWH__ and NK_ will always be illegal.

In this step, the aforementioned Government Council Resolution no. 207/2020, of July 31, 2020, provides in point 4 that in cases where the SARS-CoV-2 virus test result is positive, the local health, within the scope of its competences, will determine the procedures to be followed. The Applicant AH___ positive in the screening test for the virus in question, was notified, reiterate in the same terms as the other Applicants, of the order of prophylactic isolation between 10/08/2020 to 08/22/2020.

At this point, it is necessary to make it clear that the notification made as proven under point 7, is brought from what appears in the Standard of DGS015 / 2020, a rule referred to in it in addition to the normative circulars (available for consultation at https: //www.dgs.pt/directrizes-da-dgs/normas-e-circulares-normativas/norma-n-0152020-de-24072020-pdf.aspx), and tell us, in what matters here: (… ) Contacts with High Risk Exposure

  1. A contact classified as having high risk exposure, in accordance with Annex 1 is subject to:
  2. Active surveillance for 14 days, since the date of the last exposure;
  3. Determination of prophylactic isolation, at home or other place defined at the local level, by the Health Authority, until the end of the period of active surveillance, according to the model of Dispatch nº 2836-A / 2020 and / or n 310º-A / 20202 (model available at http://www.seg-social.pt/documents/10152/16819997/GIT_70.docx/e6940795-8bd0-4fad-b850-ce9e05d80283)

Following this rule from the General Health Directorate, one reads, among others, in the normative circular No. DRSCNORM / 2020 / 39B, from 2020-08-04 (available for consultation at http://www.azores.gov. pt / NR / rdonlyres / 25F80DC1-51E6-4447-8A38-19529975760 / 1125135 / CN39B_signed1.pdf),

(…)

  1. Close contacts of high risk

Close contacts of high risk are treated as suspect cases until the laboratory result of the suspected case. These close contacts should be screened for SARS-CoV-2. High risk contacts are considered: i. Cohabitation with confirmed case of COVID-19; (…)

  1. Surveillance and Control of Nearby Contacts
  2. Close contacts of high risk, given that, currently, it is estimated that the incubation period of the disease (time elapsed from exposure to the virus to the appearance of symptoms) is between 1 and 14 days, they must comply with 14 prophylactic isolation days, even if they have negative screening tests during that period, and a test should be performed on the 14th day. If the 14th day test result is negative, they are discharged. If close contacts of high risk cohabit with the positive case, they should only be discharged when determining the cure of the positive case, and, therefore, the respective prophylactic isolation should be extended.

(…)

  1. Compliance with prophylactic isolation

All persons identified as suspected cases, until the negative results are known, comply with prophylactic isolation;

All people who tested positive for Covid-19 and who are discharged after a cure test (internment or home), do not need to undergo a new isolation period of 14 days or repeat a new test on the 14th day.

All passengers disembarking at airports in the Region from airports located in areas considered to be zones of active community transmission or with transmission chains for the SARS-CoV-2 virus must comply with the procedures in force in the Region at the time.

Once we have arrived, let us analyze the legal value of norms / guidelines from the General Health Directorate and normative circular 39B, from 04/08/2020, from the Regional Health Directorate.

In this regard, with the specificity of reporting to the Tax Authority – which has the same administrative legal position as the National Health Authority in the ius imperium of the State-, CASALTA NABAIS (Tax Law, 6th ed., Almedina, p. 197), “the so-called administrative guidelines, traditionally presented in the most diverse forms such as instructions, circulars, circular-letters, circular-letters, normative orders, regulations, opinions, etc.”, which are very frequent in tax law, constitute “internal regulations that, as they have only the tax administration as their recipient, only the latter owes them obedience, being, therefore, mandatory only for the bodies located hierarchically below the agency that originated them.

That is why they are not binding on individuals or courts. And this is whether they are organizational regulations, which define rules applicable to the internal functioning of the tax administration, creating working methods or modes of action, or whether they are interpretative regulations, which proceed to the interpretation of legal (or regulatory) precepts.

It is certain that they densify, make explicit or develop the legal precepts, previously defining the content of the acts to be practiced by the administration when they are applied. But that does not make them the standard of validity for the acts they support. In fact, the assessment of the legality of the acts of the tax administration must be carried out through direct confrontation with the corresponding legal norm and not with the internal regulation, which interposed between the norm and the act ”.

Now, the problem of the normative relevance of Administration Circulars (Tax) was already raised and considered in the Constitutional Court Judgments No. 583/2009 and 42/14, of 18.11.2009 and 09.012.2014, respectively, having that Court decided, with which we agree, that the prescriptions contained in the Circulars for Tax Administration, regardless of their persuasive irradiation in the practice of citizens, do not constitute norms for the purposes of the constitutionality control system committed to the Constitutional Court.

As underlined in that note (Judgment 583/2009) “(…) These acts, in which the“ circulars ”are prominent, emanate from the power of self-organization and the hierarchical power of the Administration. They contain generic service orders and it is for this reason and only within the respective subjective scope (of the hierarchical relationship) that they are guaranteed compliance. They incorporate guidelines for future action, transmitted in writing to all subordinates of the administrative authority that issued them. These are standardized decision-making modes, assumed to rationalize and simplify the operation of services. This is worth saying that, although they can indirectly protect legal certainty and ensure equal treatment through uniform application of the law, they do not regulate the matter they deal with in relation to individuals, nor do they constitute a decision rule for the courts. ”

Consequently, lacking a heteronomous binding force for individuals and imposing themselves on the judge only because of the doctrinal value they may have, the prescriptions contained in the “circulars” do not constitute rules for the purposes of the constitutionality control system within the jurisdiction of the Constitutional Court.

What is said, allows us to conclude that the administrative guidelines conveyed in the form of normative circulars, as in the present case, do not constitute provisions of legislative value that can be the subject of a declaration of formal unconstitutionality – see Judgment of the Supreme Administrative Court, of 06/21/2017, available for consultation at www.dgsi.pt.

And, this to make it clear that the norms invoked by the Regional Health Authority that supported the deprivation of liberty imposed on Claimants through notification of prophylactic isolation are non-binding administrative guidelines for Claimants. By the way. just look at who they are addressed to respectively:

Normative Circular No. DRSCNORM / 2020 / 39B: “For: Health Units of the Regional Health Service, Municipal Health Delegates (C / c Azores Regional Civil Protection and Fire Service, Azores Health Line) Subject: Screening a SARS-CoV-2 and approach to suspected or confirmed cases of SARS-CoV-2 infection Source: Regional Directorate of Health (…)

Norm 015/2020, of 7/24/2020: “SUBJECT: COVID-19: Tracking Contacts KEYWORDS: Coronavirus, SARS-CoV-2, COVID-19, Tracking Contacts (Contact Tracing), Epidemiological Investigation

FOR: Health System (…).

In this sequence, and, in summary form, this court cannot fail to underline that the present case, we allow ourselves to say aberrant, of deprivation of liberty of persons, absolutely lacks any legal basis, and do not come up with again. argument that the defense of public health is at stake because the court always acts in the same way, that is, in accordance with the law, moreover, hence the need for judicial confirmation enshrined in the Mental Health Law in the case of compulsory internment, since the factuality found and the above results:

– The Claimants have been confined to the space of a room for about 16 days, based on a notification of “prophylactic isolation” until 08/22/2020, a period that has already been exceeded and the notification operated, which in any case it is illegal as a means of detaining people for the reasons already explained (just look at the constitutional rules set out above), it has lapsed;

– Claimants have never been given any information, communication, notification, as appropriate, in their mother tongue, nor have they been provided with an interpreter, from the outset in flagrant violation of the European Convention on Human Rights (art. 5º, no. 2 and 6, paragraph 3, paragraph a) and the criminal procedural rules (see article 92 of the Criminal Procedure Code), that is, in our legal system a foreign person is detained and without mastery the Portuguese language is immediately appointed interpreter, and, in the case of the Claimants who limited themselves to travel to this island and enjoy its beauty, they were never granted such a possibility;

– Claimants after 08/22/2020 are confined to the space of a room based on the following communications:

– On 19/08/2020 it was sent by the Health Delegate, Dr. JMS___, to the Requesters e-mail, where it reads:

“(…) AH___ is only considered cured after having a negative test and a 2nd negative cure test, when this happens, the health delegation will contact you (…) (sic).

– On 08/21/2020, the following message was transmitted to the four applicants, by the Health Delegate Dr. JMS___, via email: “Namely, when the quarantine is over, you have to do a test and if this is negative you can leave from home ”(sic);

– The Claimants’ deprivation of liberty was not subject to any judicial scrutiny.

As we said initially, we could still consider the organic constitutionality of the Resolution of the Government Council No. 1207/2020, of 31 June, however, we believe it is an unimportant question for the object of the decision to be made, which is to be swift, because even In the light of such a resolution, the decision cannot be different, based on the decision of the Constitutional Court, of 07/31/2020, in the scope of the process nº 424/2020, and, because the position of the Regional Health Authority in the present circumstances leads to the application of normative circulars, with the value explained above.

Finally, and because this court has been ruling successively and recently within the scope of this institute of “habeas corpus” in the face of orders issued by the Regional Health Authority, we allow ourselves to subscribe and underline the following excerpt from the first decision of this Criminal Investigation Court:

“The issue of compulsory confinement in the case of contagious diseases, and the terms under which it must occur, is a pressing issue, and which is not supported by article 27, paragraph 3, of the CRP, namely in its paragraph h), where only the hospitalization of patients with psychic anomalies is foreseen in an appropriate therapeutic establishment, decreed or confirmed by the competent judicial authority. It is urgent to legislate on this matter, establishing, in a clear way, the fundamental principles to which it must obey, leaving the detailed aspects to the derived law – and only these.

For, as Professor Gian Luigi Gatta says, which we quote here in a free translation, “right now, the country’s energies are focused on emergency. But the need to protect fundamental rights, also and above all in an emergency, the Courts are required to do their part. Because, in addition to medicine and science, law – and human rights law in the first place – must be at the forefront: not to prohibit and sanction – as is being emphasized too much today – but to guarantee and protect everyone we. Today the emergency is called a coronavirus. We don’t know tomorrow. And what we do or don’t do today, to maintain compliance with the fundamental principles of the system, can condition our future. ” (in “I diritti fondamentali alla evidence of the coronavirus. Perché a legge sulla quarantena is necessary”,) “.

It will not be difficult to admit and accept that the legislative turmoil generated around the containment of the spread of COVID-19 had – and will continue to have – in its raison d’être the protection of public health, but this turmoil can never harm the right to freedom and security and, ultimately, the absolute right to human dignity.

It remains to decide accordingly.

(…)

Therefore, in light of the above, as the detention of the Claimants SH__SWH___, AH___ and NK___ is illegal, I decide to uphold the present request for habeas corpus and, consequently, I determine their immediate restitution to liberty.

  1. The applicant made the following conclusions, which it drew from its motivation:
  2. The present appeal has as its object the decision issued by the learned Court to which it considered “the detention of the Claimants SH__SWH___, AH___ and NK___ to be illegal” and decided “to uphold the present request for habeas corpus and, consequently, determine the immediate restitution of them to freedom. ”;

2.Just for the sake of procedural economy, that is, because it is of little relevance for the assessment of the merits of the case, the factuality that has been proven is not appealed, however, it should be noted that it was based solely on the statements of the applicants themselves.

  1. The contested decision on the grounds that the applicant did not comply with point 6 of the Resolution of the Council of the Regional Government of the Azores No. 207/2020, of July 31, 2020, violated the scope of application of the same Resolution, defined in point 1 of the same Resolution;
  2. The judicial validation of mandatory quarantine, provided for in point 6 of the said resolution, only applies to the mandatory quarantine decreed for passengers who do not accept, alternatively, any of the procedures provided for in point 1 of the aforementioned Resolution;
  3. Applicants complied with the procedure provided for in paragraph 1 a) of Resolution No. 207/2020, of July 31, 2020, so they could never be subject to mandatory quarantine under that Resolution and, consequently, there is no place for judicial validation, provided for in point 6 of Resolution No. 207/2020, of 31 July 2020.
  4. Contrary to what is defended in the contested decision, the Portuguese legal system allows the adoption of exceptional measures, including separation of persons, consequent decree of mandatory confinement of infected persons and with a high probability of being infected, through the mechanism provided for in article 17. Of Law no. 81/2009, of 21 August;
  5. The Council of Ministers legitimately made use of the exceptional regulatory power, provided for in Article 17 of Law No. 81/2009, through the Resolutions of the Council of Ministers No. 55-A / 2020, of July 31, 2020 and No. 63-A / 2020, of August 14;
  6. Paragraph 2 of the Resolution of the Council of Ministers no. 55-A / 2020, of July 31, 2020, ordered measures of an exceptional nature, necessary to combat COVID -19, to be applied throughout the national territory, namely those provided for in the regime attached to that resolution;
  7. Article 2 of the Annex decreed that:

“Article 2

Mandatory containment

1 – Are in compulsory confinement, in a health establishment, at their home or in another place defined by health authorities:

  1. a) Patients with COVID -19 and those infected with SARS -CoV-2;
  2. b) Citizens for whom the health authority or other health professionals have determined active surveillance.

two – (…)”

  1. The applicant AH___ when infected with the SARS-CoV-2 virus, in compliance with article 2, paragraph 1, point a) of Annex I of the Resolution of the Council of Minister no. 55-A / 2020 , had to be in mandatory confinement;
  2. The Tribunal a quo, by decreeing the habeas corpus of AH___ and allowing its free movement, violated article 17 of Law no. 81/2009, of 21 August, by reference to article 2, no. 1, point a) of Annex I of the Resolution of the Council of Minister No. 55-A / 2020;
  3. Applicants SH__SWH__ and NK_ according to the rules stipulated by the National Health Authority, contained in Norm 015/2020, of 07/24/2020, are contacts with High Risk Exposure, and must be subject to:

a.Active surveillance for 14 days, since the date of the last exposure;

b.Determination of prophylactic isolation, at home or other place defined at local level, by the Health Authority, until the end of the period of active surveillance, according to the model of Dispatch no. 2836-A / 2020 and / or n . ° 3103-A / 20202 ”

  1. Claimants SH__SWH__ and NK_, when subject to active surveillance, in compliance with Article 2 (1) (b) of Annex I of Resolution of the Council of Minister No. 55-A / 2020, had to be in mandatory confinement;
  2. The Tribunal a quo, by decreeing the habeas corpus of SH__SWH__ and NK_ and allowing their free movement, violated Article 17 of Law No. 81/2009 of 21 August, by reference to Article 2, no. 1, paragraph b) of Annex I of the Resolution of the Council of Minister no. 55-A / 2020.
  3. It is imperative that the contested decision be revoked and replaced by one that validates the mandatory confinement of the applicants, as they are carriers of the SARS -CoV-2 virus (AH___) and because they are under active surveillance, due to high risk exposure, decreed by health authorities (SH__SWH__ and NK___).
  4. In his reply, the MºPº drew the following conclusions:

1 – The Constitutional Court ruling of 7/31-2020 (Proc. 403/2020; 1. ‘Section; Cons. José António Teles Pereira), after concluding that the mandatory confinement, either through quarantine or through prophylactic isolation , constitutes a true deprivation of liberty not provided for in art. 27 (2) of the CRP, and that all deprivations of liberty require prior authorization from the Assembly of the Republic, which was not the case with the Resolutions of the Regional Government of the Azores, which imposed a mandatory quarantine, considered verified the organic unconstitutionality of the referred standards.

2 – These rules, declared unconstitutional by the Constitutional Court, are in all materially identical to those contained in the Resolutions of the Council of Ministers no. 55-A / 2020, of 31-07, 63-A / 2020, of 14-08 , and 70-A / 2020, 11-09, and no. 88-A / 2020, 14-10, insofar as they provide for deprivations of liberty not provided for in an appropriate legal document emanating from the competent entity, as well as are not found in the exceptions provided for in art. 27, paragraph 3, of the C.R.P., for which reason they must also be disapplied for violation of art. 27. No. 1 of the C.R.P ..

3 – Providing for art. 5, paragraph 1, al. e) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms – Rome, 04-11-1950), concerning the Right to Freedom and Security, that “Everyone has the right to freedom and security “and that” No one can be deprived of their liberty, except in the following cases and according to the legal procedure: (…) “If it is the legal detention of a person liable to spread a contagious disease, of mental alien, alcoholic, drug addict or vagabond ”, we can conclude that the deprivation of liberty of a person liable to spread a contagious disease is a form of detention and that, according to the Convention, it is possible for States to provide for the detention of these persons in their domestic legislation.

4 – Bearing in mind the constitutional principle of the typicality of deprivation of liberty measures, and not providing for art. 27, of the C.R.P., in none of the paragraphs of number 3, the deprivation of liberty of a person “liable to spread a contagious disease”,

5 – And having the subparagraph h) – which foresees the admission of a patient with a psychic anomaly to an appropriate therapeutic establishment – added by art. 11.0, no. 6, of Constitutional Law no. 1/97, of 20 September (4. ‘constitutional revision), at a time when the European Convention on Human Rights already expressly provided for the arrest of a person liable to spread contagious disease,

6 – And that the constitutional legislator, neither in said constitutional revision nor in a subsequent one, added another paragraph to paragraph 3 of art. 27. to foresee this possibility, as he did with the internment of a patient with a psychic anomaly, we can conclude that we are facing a conscious decision by the constitutional legislator not to allow the deprivation of the freedom of a person liable to spread a contagious disease, just for that fact.

7 – Analysis of the constitutional regime of the right to freedom and security provided for in art. 27, no. 1, of the CRP, we can conclude, therefore, that it is not possible for the legislator, even though through the Assembly of the Republic or the Government authorized by it, to create deprivations of liberty that are not provided for in no. 3 of the aforementioned constitutional norm, namely with regard to persons with infectious and contagious diseases, whether these deprivations of liberty are confinements, quarantines or prophylactic isolations, without incurring any rules created for that purpose in a material unconstitutionality for violation of said constitutional norm.

8 – Returning now to the legal regime for the admission of people with contagious diseases, Law No. 2036 of 09-08-1949 provided for the possibility of promoting the isolation or internment of people with infectious diseases, but only, in this case. last case, in situations where there was a serious danger of contagion, with recourse to an authority of the isolation or internment decision.

9 – In turn, art. 17 of Law no. 81/2009, of 21-08, which revoked Law no. 2036 of 9/8/1949, allows the member of the Government responsible for health to have a special regulatory power, according to the stipulated by base XX of Law no. 48/90, of 24-08 (Basic Law of Health), namely, “to take necessary measures of exception in case of emergency in public health, including the restriction, suspension or the closure of activities or the separation of people who are not sick, means of transport or goods, who have been exposed, in order to avoid the possible spread of infection or contamination ».

10 – From here, it is clear that the possibility of promoting the isolation or internment of people with infectious and contagious diseases is not provided for in this law, as provided for in Law No. 2036 of 09/08/1949 . On the other hand, since the measures taken by the health authorities respect the Constitution and the law and the Constitutional Law does not provide for the deprivation of freedom of persons with infectious and contagious diseases, the interpretation to be given to the expression “separation of people who are not patients, means of transport or goods, that have been exposed ”, to be in accordance with the Constitution of the Portuguese Republic cannot reach the core of the right to freedom, that is, they should not constitute a total deprivation of freedom.

11 – On the other hand, the current Basic Law on Health – Law No. 95/2019, of 04-09 – provides in Base 34, regarding the defense of public health, that the public health authority can «b) Unleash , according to the Constitution and the law, internment or compulsory health care for people who would otherwise constitute a danger to public health.

12 – Law no. 82/2009, of 02-04, which regulates the legal regime for the designation, competence and functioning of the entities that exercise the power of health authorities, provides in its art. 5 ° the powers of the health authority, namely, “c) To trigger, in accordance with the Constitution and the law, the internment or compulsory provision of health care to individuals who are in a situation of harm to public health”.

13 – It follows that, since the measures taken by the health authorities respect the Constitution and the law, and the Constitutional Law does not provide for the deprivation of liberty of people with infectious diseases, if the interpretation to be given to the expression «internment or the compulsory provision of health care to individuals who are in danger of harming public health ‘either in the sense that health authorities may order internment, or another measure restricting freedom of movement, or the compulsory provision of health care. people with infectious and contagious diseases, such an interpretation of the law is materially unconstitutional for violation of art. 27. No. 1 of the C.R.P ..

14 – Defining Law No. 27/2006, of 03-07 (Basic Law for Civil Protection) “Serious accident” as an unusual event with relatively limited effects in time and space, capable of affecting people and other beings living, goods or the environment, but establishing in art. 5, paragraph 1, al. a), the principle of the priority of the public interest relative to civil protection over the interests of national defense, internal security and public health, we can conclude that serious public health situations, such as the current pandemic, are not included in the public interest regarding civil protection, therefore, are not included in the concepts of “major accident” and “catastrophe” referred to in art. 3 of the Civil Protection Law.

15 – From here it can also be concluded that the Resolutions of the Council of Ministers – and the Resolutions of the Council of the Regional Government – which were based on the Basic Law of Civil Protection to declare “the contingency and alert situation, within the scope of the disease pandemic COVID-19 “, namely Resolutions of the Council of Ministers no. 55-A / 2020, of 31-07, 63-A / 2020, of 14-08, 68-A / 2020, of 28-08, and 70-A / 2020, of 11-09 – revoked by Resolution of the Council of Ministers no. 88-A / 2020, of 14-10, currently in force -, which foresee in point 2 the “mandatory confinement, in establishment of health, in their home or in another place defined by the health authorities: (…) «a) Patients with COVID-19 and those infected with SARS-CoV-2; (…) “b) Citizens for whom the health authority or other health professionals have determined active surveillance”, have no legal basis, as the Civil Protection Law does not apply to situations of danger to health public.

16 – We can thus conclude that the Resolutions of the Council of Ministers no. 55-A / 2020, of 31-07, 63-A / 2020, of 14-08, 68-A / 2020, of 28-08 , 81/2020, 29-09 – the latter was revoked by Resolution of the Council of Ministers no. 88-A / 2020, of 14-10, currently in force -, and its Annex, which were issued by the Government, in the use administrative powers, created a regime that restricts the freedom of citizens with infectious and contagious diseases (quarantines, prophylactic isolation, etc.) and, to reinforce the application of a deprivation of liberty not allowed by the Constitution or provided for in a law empowering them. situations of people with contagious disease or danger to public health, established the combination of the practice of a crime of disobedience for such violations and the aggravation of the penalty provided for such crime, directly violate art. 27 (1) of the C.R.P., therefore, as unconstitutional, they should be disapplied in the specific case, contrary to the applicant’s request,

17 – Keeping the decision sub judice.

  1. The applicant is the regional health authority, represented by the Regional Health Directorate of the Autonomous Region of the Azores.

Decree-Law no. 11/93, of 1993-01-15, in its current version (Statute of the National Health Service) determines that (emphasis added):

Article 1

The National Health Service, hereinafter referred to as SNS, is an ordered and hierarchical set of institutions and official services that provide health care, operating under the supervision or supervision of the Minister of Health.

Article 3

1 – The NHS is organized in health regions.

2 – Health regions are divided into health sub-regions, integrated by health areas.

Article 6

1 – In each health region there is a regional health administration, hereinafter referred to as ARS.

2 – The ARS have legal personality, administrative and financial autonomy and their own assets.

3 – The ARS have the functions of planning, allocating resources, guiding and coordinating activities, managing human resources, technical and administrative support, and also assessing the functioning of institutions and services providing health care.

4 – (…).

In turn, it provides for Decree-Law No. 22/2012

Article 1

1 – The Regional Health Administrations, I. P., for short referred to as ARS, I.P., are public institutes integrated in the indirect administration of the State, endowed with administrative, financial and own assets.

2 – The ARS, I. P., continue their duties, under the supervision and supervision of the member of the Government responsible for the health area.

3 – The ARS, I.P., are governed by the rules contained in this decree-law, by the provisions of the framework law of public institutes and in the Statute of the National Health Service and by the other rules that apply to it.

Article 3

1 – The ARS, I. P., have the mission of guaranteeing the population of the respective geographical area of intervention access to the provision of health care, adapting the available resources to the needs and complying with and enforcing health policies and programs in their area of intervention.

2 – The attributions of each ARS, I. P., within the scope of the respective territorial circumscriptions:

  1. a) Execute the national health policy, in accordance with global and sectoral policies, aiming at its rational organization and the optimization of resources;
  2. b) Participate in the definition of intersectoral planning coordination measures, with the objective of improving healthcare provision;
  3. c) Collaborate in the preparation of the National Health Plan and monitor the respective execution at regional level;
  4. d) Develop and encourage activities in the field of public health, in order to guarantee the protection and promotion of the health of the populations;
  5. e) Ensure the execution of local intervention programs with a view to reducing the consumption of psychoactive substances, preventing addictive behaviors and reducing dependencies;
  6. f) Develop, consolidate and participate in the management of the National Integrated Continuing Care Network according to the defined guidelines;
  7. g) Ensure the regional planning of human, financial and material resources, including the execution of the necessary investment projects, of the institutions and services providing health care, supervising their allocation;
  8. h) To prepare, in accordance with the guidelines defined at national level, the list of facilities and equipment;
  9. i) To allocate, in accordance with the guidelines defined by the Central Administration of the Health System, IP, financial resources to institutions and services providing health care integrated or financed by the National Health Service and to private entities with or without profit making , who provide health care or act within the areas referred to in points e) and f);
  10. j) To celebrate, monitor and review contracts in the scope of public-private partnerships, in accordance with the guidelines defined by the Central Administration of the Health System, I. P., and allocate the respective financial resources;
  11. l) Negotiate, conclude and monitor, in accordance with the guidelines defined at national level, contracts, protocols and conventions of a regional scope, as well as carry out the respective assessment and review, in the scope of healthcare provision as well as in the areas referred to in points e) and f);
  12. m) Guide, provide technical support and evaluate the performance of health care institutions and services, in accordance with the defined policies and guidelines and regulations issued by the competent central services and bodies in the different areas of intervention;
  13. n) To ensure the adequate articulation between the health care services in order to guarantee compliance with the referral network;
  14. o) To allocate financial resources, through the signing, monitoring and review of contracts within the scope of integrated continuous care;
  15. p) Elaborate functional programs of health establishments;
  16. q) Licensing private units providing health care and units in the area of addictions and addictive behaviors in the social and private sector;
  17. r) Issue opinions on master plans for health units, as well as on the creation, modification and fusion of services;
  18. s) Issue opinions on the acquisition and expropriation of land and buildings for the installation of health services, as well as on projects of the facilities of health care providers.

3 – In order to carry out their duties, the ARS, I. P., may collaborate with each other and with other entities in the public or private sector, with or without profit, under the terms of the legislation in force.

  1. The required habeas corpus provision is part of the provisions of article 220 of the Penal Code, which reads as follows:

Habeas corpus due to illegal detention

1 – Those detained under the order of any authority may request the investigating judge of the area where they are found to order their immediate judicial presentation, on any of the following grounds:

  1. a) The deadline for delivery to the judiciary has been exceeded;
  2. b) Keeping detention out of places legally permitted;
  3. c) The detention was carried out or ordered by an incompetent entity;
  4. d) The detention is motivated by a fact for which the law does not allow it.

2 – The request can be signed by the detainee or by any citizen in the enjoyment of their political rights.

3 – Any authority that raises an illegitimate obstacle to the submission of the application referred to in the preceding paragraphs or to its referral to the competent judge is punishable with the penalty provided for in article 382 of the Penal Code.

  1. Enjoying.

Article 401 of the Penal Code stipulates the following:

1 – Are entitled to appeal:

  1. a) The Public Ministry, of any decisions, even if in the defendant’s exclusive interest;
  2. b) The accused and the assistant, of decisions against them rendered;
  3. c) The civil parties, on the part of the decisions against each one rendered;
  4. d) Those who have been ordered to pay any sums, under the terms of this Code, or have to defend a right affected by the decision.

2 – Anyone who has no interest in taking action cannot appeal.

  1. The first question that arises here is that of the applicant’s legitimacy, in the context of an appeal in criminal proceedings.
  2. We are within the scope of a criminal jurisdiction, the purpose of which is to ensure the effective exercise of the jus puniendi of the State, that is, which is dedicated to investigating and deciding on behavior that constitutes a crime or administrative offense.

It is in this context and with such purpose in mind that the Law determines who has the legitimacy to be able to discuss the goodness of a decision handed down by a criminal court.

  1. In this case, we note that the appellant is not a defendant, is not an assistant and has not formulated any request of a civil nature that, given the principle of accession, would determine her position as plaintiff or defendant.

iii. Thus, before the Law and taking into account the list of interveners that the legislator understood may have the legitimacy to intervene in a process in this type of jurisdiction, on appeal, we must immediately conclude that the applicant lacks legitimacy to be able to come and discuss the content of a judicial decision in this context.

  1. In fact, the practice of any crime, or any offense of an administrative nature, is not discussed here, being certain that the question of possible consequences at criminal level, of the recognition of the existence of an illegal detention, is a matter that will have to be discussed. in its own seat – that is, in an investigation that may be opened for this purpose, being completely foreign to the decision of the present case.
  2. We conclude, therefore, that the appellant lacks legitimacy to appeal against the decision rendered by the court “a quo”.
  3. Regardless of the question of legitimacy, it appears that, likewise, the applicant lacks interest in taking action.
  4. As is clear from peaceful jurisprudence and doctrine in this regard, the interest in taking action means the need for someone to have to use the appeal mechanism as a way of reacting against a decision that disadvantages the interests that he defends or that has frustrated his legitimate expectation or benefit.
  5. Now, in the present case, the question is – did the decision give rise to any disadvantage for the interests that the ARS defends? Or a legitimate expectation or benefit?

The answer is manifestly negative.

Otherwise, let’s see.

iii. ARS continues its duties, under the supervision and supervision of the Government member responsible for the health area.

Thus, and immediately, either in view of the functions that are committed to it, or in view of their manifest hierarchy, in the face of guardianship, it will have to be concluded that no ARS pursues its own and autonomous interest, which it must defend. Whoever will continue it, eventually, will be the respective Minister or the Government in which he / she is inserted, since the “interests” of the ARS will not be yours, but will be included in the health policy of the ministry that oversees such an entity.

It should be noted, moreover, that in the definition of its attributions [1], it is not assigned any specific defense function, independently and in its own name, in court, of any interests that fall within its functions which, in what concerns regards criminal or administrative offenses, there are none …

  1. For its part, the interest that the applicant itself intends to defend and that appears in the application, at the end of this appeal – the validation of the mandatory confinement of the applicants, for being carriers of the SARS -CoV-2 virus (AH___) and for being in active surveillance, for high-risk exposure, decreed by health authorities (SH__SWH__ and NK___) – is in itself contradictory and goes beyond the purpose and scope of a criminal court.

Contradictory because the applicant does not admit that confinement corresponds to deprivation of liberty. If so, there is no glimpse of where the applicant’s jurisdiction is based in the jurisdiction of a criminal court to validate “confinements”. And outside the scope of action of a criminal court, because it is not for the court to make declarative decisions to validate infections or diseases …

  1. Finally, it is not seen that a legitimate expectation or benefit has an entity under the tutelage of a Government body, seen frustrated by the decision now being criticized.

saw. It follows that the applicant does not have an interest in taking action, which is why, under the provisions of paragraph 2 of article 401 of the Criminal C.P., he cannot appeal the decision.

  1. The decision rendered by the court “a quo” to receive the present appeal does not bind this court (article 414 of the C.P.Penal), so there is nothing to prevent its rejection.
  2. Nevertheless, and for peace and quiet of consciences, the following will also be added:

Even if this were not understood, the appeal presented would be manifestly unfounded, for the following succinct reasons:

  1. First of all, due to the exhaustive and correct reasoning set out in the decision, by the “a quo” court, whose content is fully subscribed.

In fact, under the Constitution and the Law, health authorities do not have the power or legitimacy to deprive anyone of their freedom – even under the label of “confinement”, which effectively corresponds to detention – since such a decision is only it can be determined or validated by judicial authority, that is, the exclusive competence, in face of the Law that still governs us, to order or validate such deprivation of liberty, is exclusively affected by an autonomous power, the Judiciary.

Hence it follows that any person or entity that issues an order, the content of which leads to deprivation of physical, ambulatory, freedom of others (whatever the nomenclature this order assumes: confinement, isolation, quarantine, prophylactic protection, etc.), that does not fit the legal provisions, namely in the provisions of article 27 of the CRP and without having been given such decision-making power, by force of Law – coming from the RA, within the strict scope of the declaration of state of emergency or site, respected that the principle of proportionality is shown – that he mandates and specifies the terms and conditions of such deprivation, he is proceeding to an illegal detention, because ordered by an incompetent entity and because motivated by a fact for which the law does not allow it (say , moreover, that this issue has been debated, over time, regarding other public health phenomena, namely with regard to HIV and tuberculosis infection, for example . And, let it be known, no one has ever been deprived of their freedom, due to suspicion or certainty of suffering from such diseases, precisely because the Law does not allow it).

It is within this scope that, without any doubt, the situation under consideration in this process, being certain that the appropriate means of defense, against illegal detentions, is subsumed to the appeal at the request of habeas corpus, provided for in article 220, als. c) and d), of C.P.Penal.

And rightly, the “a quo” court ordered the immediate release of four people who were illegally deprived of their liberty.

  1. Secondly, because the request made in the appeal, proves to be impossible.

Otherwise, let’s see:

  1. In fact, it is requested to validate “the mandatory confinement of applicants, because they are carriers of the SARS-CoV-2 virus (AH___) and because they are under active surveillance, due to high risk exposure, decreed by the health authorities (SH__SWH__ and NK_). ”
  2. It is with great astonishment that this court is faced with such a request, especially if we take into account that the appellant is active in the health sector.

Since when is it up to a court to make clinical diagnoses, on its own initiative and based on possible test results? Or the ARS? Since when is the diagnosis of a disease made by decree or by law?

  1. As the applicant has more than an obligation to know, a diagnosis is a medical act, the sole responsibility of a doctor.

This is what results unequivocally and peremptorily from Regulation No. 698/2019, of 5.9 (regulation that defines the doctors’ own acts), published in DR.

There it is determined, in an imperative way (which requires its compliance by all, including the applicant) that (emphasis added):

Article 1

Object

This regulation defines the professional acts specific to doctors, their responsibility, autonomy and limits, within the scope of their performance.

Article 3

Qualification

1 – The physician is a professional legally qualified to practice medicine, qualified for the diagnosis, treatment, prevention or recovery of diseases and other health problems, and able to provide care and intervene on individuals, groups of individuals or population groups, sick or healthy, with a view to protecting, improving or maintaining their state and health level.

2 – Doctors with current registration with the Portuguese Medical Association are the only professionals who can perform the doctors’ own acts, under the terms of the Portuguese Medical Association’s Statute, approved by Decree-Law No. 282/77, of 5 July, with the changes introduced by Law 117/2015, of 31 August and these regulations.

Article 6

General medical act

1 – The medical act consists of diagnostic, prognostic, surveillance, investigation, medical-legal expertise, clinical coding, clinical audit, prescription and execution of pharmacological and non-pharmacological therapeutic measures, medical, surgical and rehabilitation, health promotion and disease prevention in all its dimensions, namely physical, mental and social of people, population groups or communities, respecting the ethical values of the medical profession.

Article 7

Diagnostic act

The identification of a disorder, disease or the state of a disease by studying its symptoms and signs and analyzing the tests performed is a basic health procedure that must be performed by a doctor and, in each specific area, by a specialist doctor and aims to institution of the best preventive, surgical, pharmacological, non-pharmacological or rehabilitation therapy.

  1. Even under the Mental Health Law, Law no. 36/98, of 24 July, the diagnosis of the pathology that can lead to compulsory internment is mandatorily performed by specialist doctors and their technical and scientific judgment – inherent clinical-psychiatric evaluation – it is subtracted from the judge’s free assessment (see articles 13, 3, 16 and 17 of the said Law).
  2. Thus, any diagnosis or any act of health surveillance (as is the case of determining the existence of viral infection and high risk of exposure, which are shown to be covered by these concepts) made without prior medical observation to applicants, without the intervention of a doctor enrolled in the OM (that proceeded to the evaluation of its signs and symptoms, as well as the examinations that it considered appropriate to its condition), violates such Regulation, as well as the provision of article 97 of the Statute of the Order of Doctors, being able to configure the crime P. and p. by article 358 al.b) (Usurpation of functions) of C.Penal, if dictated by someone who does not have this quality, that is, who is not a doctor enrolled in the Ordem dos Médicos.

It also violates paragraph 1 of article 6 of the Universal Declaration on Bioethics and Human Rights, which Portugal subscribed to and is internally and externally obliged to respect, since no document proving that the informed consent had been given to the case is shown. Declaration imposes.

It is thus clear that the prescription of auxiliary diagnostic methods (as is the case with tests for the detection of viral infection), as well as the diagnosis of the existence of a disease, in relation to each and every person, is a matter that cannot be be carried out by Law, Resolution, Decree, Regulation or any other normative way, as these are acts that our legal system reserves to the exclusive competence of a doctor, being sure that, in advising his patient, he should always try to obtain the your informed consent.

  1. In the case that concerns us now, there is no indication or proof, that such diagnosis was actually carried out by a professional qualified under the Law and who had acted in accordance with good medical practices.

In fact, what follows from the facts taken for granted, is that none of the applicants was even seen by a doctor, which is frankly inexplicable, given the alleged seriousness of the infection.

  1. In fact, the only element that appears in the proven facts in this regard is the performance of RT-PCR tests, one of which presented a positive result in relation to one of the applicants.
  2. However, in view of the current scientific evidence, this test is, in itself, incapable of determining, beyond reasonable doubt, that such positivity corresponds, in fact, to the infection of a person by the SARS-CoV-2 virus, by several reasons, of which we highlight two (to which is added the issue of gold standard which, due to its specificity, we will not even address):

For this reliability depend on the number of cycles that make up the test;

For this reliability depend on the amount of viral load present.

  1. Indeed, the RT-PCR (polymerase chain reaction) tests, molecular biology tests that detect the RNA of the virus, commonly used in Portugal to test and list the number of infected (after nasopharyngeal collection), are performed by amplifying samples , through repetitive cycles.

The number of cycles of such amplification results in the greater or lesser reliability of such tests.

iii. And the problem is that this reliability is shown, in terms of scientific evidence (and in this field, the judge will have to rely on the knowledge of experts in the field), more than debatable.

This is the result, among others, of the very recent and comprehensive Correlation study between 3790 qPCR positives samples and positive cell cultures including 1941 SARS-CoV-2 isolates, by Rita Jaafar, Sarah Aherfi, Nathalie Wurtz, Clio Grimaldier, Van Thuan Hoang, Philippe Colson, Didier Raoult, Bernard La Scola, Clinical Infectious Diseases, ciaa1491, https: //doi.org/10.1093/cid/ciaa1491,em https://academic.oup.com/cid/advance-article/doi/10.1093 / cid / ciaa1491 / 5912603, published at the end of September this year, by Oxford Academic, carried out by a group that brings together some of the greatest European and world experts in the field.

This study concludes [2], in free translation:

“At a cycle threshold (ct) of 25, about 70% of the samples remained positive in the cell culture (i.e. they were infected): in a ct of 30, 20% of the samples remained positive; in a ct of 35, 3% of the samples remained positive; and at a ct above 35, no sample remained positive (infectious) in cell culture (see diagram).

This means that if a person has a positive PCR test at a cycle threshold of 35 or higher (as in most laboratories in the USA and Europe), the chances of a person being infected are less than 3%. The probability of a person receiving a false positive is 97% or higher ”.

  1. What follows from these studies is simple – the possible reliability of the PCR tests performed depends, from the outset, on the threshold of amplification cycles that they support, in such a way that, up to the limit of 25 cycles, the reliability of the test will be about 70%; if 30 cycles are carried out, the degree of reliability drops to 20%; if 35 cycles are reached, the degree of reliability will be 3%.
  2. However, in the present case, the number of amplification cycles with which PCR tests are carried out in Portugal, including the Azores and Madeira, is unknown, since we were unable to find any recommendation or limit in this regard.

saw. For its part, in a very recent study by Elena Surkova, Vladyslav Nikolayevskyy and Francis Drobniewski, accessible at https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30453-7/fulltext, published in the equally prestigious The Lancet, Respiratory Medicine, it is mentioned (in addition to the multiple questions that the precision of the test itself raises, regarding the specific detection of the sars-cov virus 2, due to strong doubts about the fulfillment of the so-called gold standard) that ( free translation):

“Any diagnostic test must be interpreted in the context of the actual possibility of the disease, which existed before its realization. For Covid-19, this decision to perform the test depends on the previous assessment of the existence of symptoms, previous medical history of Covid 19 or the presence of antibodies, any potential exposure to this disease and no likelihood of another possible diagnosis. ”[3]

“One of the potential reasons for presenting positive results may lie in the prolonged shedding of viral RNA, which is known to extend for weeks after recovery, in those who were previously exposed to SARS-CoV-2. However, and more relevantly, there is no scientific data to suggest that low levels of viral RNA by RT-PCR equate to infection, unless the presence of infectious viral particles has been confirmed by laboratory culture methods.

In summary, Covid-19 tests that show false positives are increasingly likely, in the current epidemiological climate panorama in the United Kingdom, with substantial personal, health and social system consequences. ”[4]

  1. Thus, with so many scientific doubts, expressed by experts in the field, which are the ones that matter here, as to the reliability of such tests, ignoring the parameters of their performance and there being no diagnosis made by a doctor, in the sense of existence of infection and risk, it would never be possible for this court to determine that AH___ had the SARS-CoV-2 virus, nor that SH__SWH__ and NK_ had had high risk exposure.
  2. In a final summary, it will be said that, since the action brought is inadmissible, due to lack of legitimacy and lack of interest in acting by the applicant, as well as manifestly unfounded, it will have to be rejected, under of the provisions of articles 401 nº1 al. a), 417 nº6 al. b) and artº420 nº1 als. a) and b), all of the C.P. Penal.

iv – decision.

In view of the above, and under the provisions of articles 417, paragraph 6, al. b) and 420 nº1 als. a) and b), both of the Penal Procedure Code, the appeal filed by REGIONAL HEALTH AUTHORITY, represented by the Regional Health Directorate of the Autonomous Region of the Azores, is rejected.

Under the terms of paragraph 3 of article 420 of the Penal Code, the applicant is condemned in the procedural sanction of 4 UCs, as well as in the T.J of 4 UCs and costs.

Immediately inform the court “a quo” of the content of this judgment.

Lisbon, November 11, 2020

Margarida Ramos de Almeida

Ana Paramés

_______________________________________________________

[1] [1] 2 – The duties of each ARS, I. P., are within the scope of the respective territorial circumscriptions:

  1. a) Execute the national health policy, in accordance with global and sectoral policies, aiming at its rational organization and the optimization of resources;
  2. b) Participate in the definition of intersectoral planning coordination measures, with the objective of improving healthcare provision;
  3. c) Collaborate in the preparation of the National Health Plan and monitor the respective execution at regional level;
  4. d) Develop and encourage activities in the field of public health, in order to guarantee the protection and promotion of the health of the populations;
  5. e) Ensure the execution of local intervention programs with a view to reducing the consumption of psychoactive substances, preventing addictive behaviors and reducing dependencies;
  6. f) Develop, consolidate and participate in the management of the National Integrated Continuing Care Network according to the defined guidelines;
  7. g) Ensure the regional planning of human, financial and material resources, including the execution of the necessary investment projects, of the institutions and services providing health care, supervising their allocation;
  8. h) To prepare, in accordance with the guidelines defined at national level, the list of facilities and equipment;
  9. i) To allocate, in accordance with the guidelines defined by the Central Administration of the Health System, IP, financial resources to institutions and services providing health care integrated or financed by the National Health Service and to private entities with or without profit making , who provide health care or act within the areas referred to in points e) and f);
  10. j) To celebrate, monitor and review contracts in the scope of public-private partnerships, in accordance with the guidelines defined by the Central Administration of the Health System, I. P., and allocate the respective financial resources;
  11. l) Negotiate, conclude and monitor, in accordance with the guidelines defined at national level, contracts, protocols and conventions of a regional scope, as well as carry out the respective assessment and review, in the scope of healthcare provision as well as in the areas referred to in points e) and f);
  12. m) Guide, provide technical support and evaluate the performance of health care institutions and services, in accordance with the defined policies and guidelines and regulations issued by the competent central services and bodies in the different areas of intervention;
  13. n) To ensure the adequate articulation between the health care services in order to guarantee compliance with the referral network;
  14. o) To allocate financial resources, through the signing, monitoring and review of contracts within the scope of integrated continuous care;
  15. p) Elaborate functional programs of health establishments;
  16. q) Licensing private units providing health care and units in the area of addictions and addictive behaviors in the social and private sector;
  17. r) Issue opinions on master plans for health units, as well as on the creation, modification and fusion of services;
  18. s) Issue opinions on the acquisition and expropriation of land and buildings for the installation of health services, as well as on projects of the facilities of health care providers.

[2] “that at a cycle threshold (ct) of 25, about 70% of samples remained positive in cell culture (i.e. were infectious); at a ct of 30, 20% of samples remained positive; at a ct of 35, 3% of samples remained positive; and at a ct above 35, no sample remained positive (infectious) in cell culture (see diagram)

This means that if a person gets a “positive” PCR test result at a cycle threshold of 35 or higher (as applied in most US labs and many European labs), the chance that the person is infectious is less than 3%. The chance that the person received a “false positive” result is 97% or higher.

[3] Any diagnostic test result should be interpreted in the context of the pretest probability of disease. For COVID-19, the pretest probability assessment includes symptoms, previous medical history of COVID-19 or presence of antibodies, any potential exposure to COVID-19, and likelihood of an alternative diagnosis.1 When low pretest probability exists, positive results should be interpreted with caution and a second specimen tested for confirmation.

[4] Prolonged viral RNA shedding, which is known to last for weeks after recovery, can be a potential reason for positive swab tests in those previously exposed to SARS-CoV-2. However, importantly, no data suggests that detection of low levels of viral RNA by RT-PCR equates with infectivity unless infectious virus particles have been confirmed with laboratory culturebased methodss.7

To summarize, false-positive COVID-19 swab test results might be increasingly likely in the current epidemiological climate in the UK, with substantial consequences at the personal, health system, and societal levels (panel).

Sanjeev Sabhlok

View more posts from this author
3 thoughts on “A Portuguese court’s ruling against improper use of PCR tests

Leave a Reply

Your email address will not be published. Required fields are marked *