Portuguese Court Rules PCR Tests "Unreliable": They Cannot Be Used to Unlawfully and Forcibly Quarantine or Deprive of Freedom
November 20, 2020 Report on the INCAPABILITIES of the PCR Tests Eludes Western MainStream Media
In November of 2020, the Portuguese Court ruled that PCR tests are “unreliable”.
We need to know that they are “unreliable” for any and every diagnosis, whether it's Covid, Avian bird flu, RSV, or anything else. And be CONFIDENT in this knowledge!
Source: https://off-guardian.org/2020/11/20/portuguese-court-rules-pcr-tests-unreliable-quarantines-unlawful/
The Article
An appeals court in Portugal has ruled that the PCR process is not a reliable test for Sars-Cov-2, and therefore any enforced quarantine based on those test results is unlawful.
Further, the ruling suggested that any forced quarantine applied to healthy people could be a violation of their fundamental right to liberty.
Most importantly, the judges ruled that a single positive PCR test cannot be used as an effective diagnosis of infection.
The specifics of the case concern four tourists entering the country from Germany – all of whom are anonymous in the transcript of the case – who were quarantined by the regional health authority. Of the four, only one had tested positive for the virus, whilst the other three were deemed simply of “high infection risk” based on proximity to the positive individual. All four had, in the previous 72 hours, tested negative for the virus before departing from Germany.
In their ruling, judges Margarida Ramos de Almeida and Ana Paramés referred to several scientific studies. Most notably this study by Jaafar et al., which found that – when running PCR tests with 35 cycles or more – the accuracy dropped to 3%, meaning up to 97% of positive results could be false positives.
The ruling goes on to conclude that, based on the science they read, any PCR test using over 25 cycles is totally unreliable. Governments and private labs have been very tight-lipped about the exact number of cycles they run when PCR testing, but it is known to sometimes be as high as 45. Even fearmonger-in-chief Anthony Fauci has publicly stated anything over 35 is totally unusable.
You can read the complete ruling in the original Portuguese here, and translated into English here. There’s also a good write up on it on Great Game India, plus a Portuguese professor sent a long email about the case to Lockdown Sceptics.
The media reaction to this case has been entirely predictable – they have not mentioned it. At all. Anywhere. Ever.
The ruling was published on November 11th, and has been referenced by many alt-news sites since…but the mainstream outlets are maintaining a complete blackout on it.
The reddit Covid19 board actually removed the post, because it was “not a reliable source”, despite relying on the official court documents:
Lookout for a forced and disingenuous “fact-check” on this issue from HealthFeedback or some other “non-partisan” outlet in the near future. But until they find some poor shlub to lend their name to it, the media blackout will continue.
Whatever they say, this is a victory for common sense over authoritarianism and hysteria.
Source: https://off-guardian.org/2020/11/20/portuguese-court-rules-pcr-tests-unreliable-quarantines-unlawful/
Originally in Portuguese, here is the English translation:
The Original Document Content
Source: https://www-dgsi-pt.translate.goog/jtrl.nsf/33182fc732316039802565fa00497eec/79d6ba338dcbe5e28025861f003e7b30?_x_tr_sl=pt&_x_tr_tl=en&_x_tr_hl=en-US
0.7T8PDL.L1-3
Reporter: MARIA MARGARIDA ALMEIDA Descriptors: HABEAS CORPUS
INTEREST IN ACTING
SARS-COV-2
RT-PCR TESTS
DEPRIVATION OF FREEDOM
ILLEGAL DETENTION
Document No.:RLAgreement Date:11/11/2020Voting:UNANIMITYFull Text:Partial Text:NProcedural Means:CRIMINAL
APPEAL Decision:DISMISSED
Summary: I. The ARS cannot appeal a decision that ordered the immediate release of four people, due to illegal detention, within the scope of a habeas corpus process (art. 220 als. c) and d) of the CPPenal), requesting that the confinement be validated mandatory for applicants, as they carry the SARS-CoV-2 virus (A….) and are under active surveillance, due to high-risk exposure, decreed by the health authorities (B…, C…. and D…..) for not having legitimacy or interest in acting.
II. The request made would also be manifestly unfounded because:
A. Prescription and diagnosis are medical acts, the sole responsibility of a doctor, registered with the Medical Association (Regulation no. 698/2019, of 5.9).
Thus, the prescription of auxiliary diagnostic methods (as is the case with viral infection detection tests), as well as the diagnosis of the existence of a disease, in relation to any and all people, is a matter that cannot be carried out by Law, Resolution, Decree, Regulation or any other normative means, as these are acts that our legal system reserves to the exclusive competence of a doctor, given that he, when advising his patient, must always try to obtain his informed consent ( nº1 of article 6 of the Universal Declaration on Bioethics and Human Rights).
B. In the case at hand, there is no indication or proof that such a diagnosis was actually carried out by a professional qualified under the terms of the Law and who had acted in accordance with good medical practice. In fact, what follows from the facts as established is that none of the applicants was even seen by a doctor, which is frankly inexplicable, given the alleged severity of the infection.
C. The only element that appears in the proven facts, in this regard, is the carrying out of RT-PCR tests, one of which showed a positive result in relation to one of the applicants.
D. In view of the current scientific evidence, this test alone proves to be incapable of determining, without a reasonable margin of doubt, that such positivity corresponds, in fact, to a person's infection with the SARS-CoV-2 virus, for several reasons, of which we highlight two (plus the issue of the gold standard which, due to its specificity, we will not even address):
Because this reliability depends on the number of cycles that make up the test;
Because this reliability depends on the amount of viral load present.
III . Any diagnosis or any act of health surveillance (as is the case with the determination of the existence of a viral infection and high risk of exposure, which are covered by these concepts) carried out without prior medical observation of the patients and without the intervention of a doctor registered with the OM (who would carry out the assessment of their signs and symptoms, as well as examinations that he considered appropriate to his condition), violates Regulation no. 698/2019, of 5.9, as well as the provisions of article 97 of the Statute of the Medical Association, being liable to constitute the crime of functions, e.g. and p. by article 358 al.b), of the C.Penal.
IV. Any person or entity that issues an order, the content of which leads to the deprivation of physical, ambulatory, or other people's freedom (whatever nomenclature this order assumes: confinement, isolation, quarantine, prophylactic protection, health surveillance, etc.), which does not comply with the legal provisions, namely the provisions of article 27 of the CRP , you will be carrying out an illegal detention, because it was ordered by an incompetent entity and because it was motivated by a fact for which the law does not allow it. (Summary prepared by the rapporteur)
Decision Partial Text:
Decision Full Text: They agree in a conference in the 3rd Criminal section of the Lisbon Court of Appeal
*
I – report
1. By decision of 26-08-2020, the request for habeas corpus formulated was granted , as his detention was shown to be illegal , determining the immediate return to the freedom of Claimants SH__SWH___, AH___ and NK___.
2. The REGIONAL HEALTH AUTHORITY, represented by the Regional Health Directorate of the Autonomous Region of the Azores, then filed an appeal against that decision, ultimately asking for the mandatory confinement of the applicants to be validated, 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 the health authorities (SH__, SWH__ and NK___).
4. The appeal was admitted.
5. Mº Pº, in his response, argues that the present appeal must be considered unfounded.
6. In this court, the Exº PGA approved it.
II – previous point. Since the appeal filed by the appellant must be rejected, the court will limit itself, in accordance with paragraphs 1, paragraph a), and 2 of article 420 of the Criminal Procedure Code, to summarily specifying the grounds of the decision.
III – justification.
1. The decision given by the court a quo has the following content: Facts proven:
1. On 01/08/2020 the applicants arrived on the island of São Miguel, coming by plane from the Federal Republic of Germany, where, in 72 ( seventy-two) hours prior to arrival, they had carried out a COVID19 test, with a negative result and copies of which they presented and delivered to the Regional Health Authority, upon arrival at the airport, in Ponta Delgada.
2. On 08/07/2020 and during their stay on the island of São Miguel, applicants AH___ and NK___ underwent a second COVID19 test.
3. On 08/10/2020 and also during their stay on the island of São Miguel, applicants SH___ and SWH___ underwent a second COVID19 test.
4. On 08/08/2020, the applicant AH___ was, by telephone, informed that her test carried out the previous day had indicated “detected”.
5. From that day on 08/08/2020, the applicant AH___ stopped living with the remaining three applicants, having always maintained a distance of no less than 2 (two) meters from them.
6. On 08/10/2020, applicants SH___, SWH___ and NK___ were, by telephone, informed that their tests had returned “negative”.
7. On 08/10/2020, the document was sent to all applicants via email, including pages. 25, 25 verso, 26 and 26 verso, signed by the Health Delegate of the municipality of Lagoa, in office, Dr. Magno José Viveiros Silva, called Notification of Prophylactic Isolation – Coronavirus SARS-CoV-2/COVID Disease – 19, and two annexes (only one of them in English) and which reads (the same 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 Health Authority of Lagoa
In accordance with the Normative Circulars ns DRSCINF/2020/22 of 2020/03/25 and DRS CNORM2020/39B of 2020/08/04 of the REGIONAL HEALTH AUTHORITY (attached) and the Standard No. 015/2020, of 07/24/2020 of the General Directorate of Health (attached) I determine the
PROPHYLACTIC ISOLATION
OF
(...)
Holder of Citizen Card/PASSPORT No. (...), with validity ... until ... with the social security identification number for the period from 08/08/2020 to 08/22/2020 due to the danger of contagion and as a measure to contain COVID 19 (SARS-Cov-2)
Date 2020/08/10 (...)
8. The Claimants requested that the said results be sent to them, and the test report carried out was sent to the Claimants AH___ and NK___ via email on 08/13/2020 and to the Applicants SH___ and SWH___ yesterday, 08/24/2020, via email, reports written in Portuguese.
9. Between the 1st and 14th of August, the applicants were accommodated at the Marina Mar II accommodation, in Vila Franca do Campo.
10. From August 14th onwards, applicants are accommodated at “THE LINCE AZORES GREAT HOTEL, CONFERENCE & SPA”, in Ponta Delgada (where they are currently located), by order of the Health Delegate under the terms described in 7 as follows:
- In room 502 are applicants SH___ and SWH___.
- In room 501 is the applicant AH___.
- In room 506 is the applicant NK___.
11. The applicants tried at least 3 times to contact the telephone support line they know (296 249 220) to receive clarification in their language or, at least, in English, but they never had any success, as they only answer and They respond in Portuguese, which the applicants do not understand.
12. At the hotel, meals are delivered to the room, by hotel services, at pre-determined times and according to a choice made by third parties, except during the first 3 days at Hotel Lynce when breakfast was served and the remaining meals through room service.
13. On August 15th, while undergoing prophylactic isolation determined by the Health Delegate, the applicant AH___ began to suffer from inflammation in her mouth, apparently resulting from the dental appliance she uses.
14. Having, by telephone, at 296 249 220, shared this situation with the Regional Health Authority, from whom he requested the necessary medical support.
15. This request was ignored by the aforementioned helpline, which did not provide the defendant AH___ with the necessary support.
16. Not seeing any support, two days later, on August 17th, duly protected by a mask and gloves, the applicant SWH___ left her room, went to the pharmacy closest to the hotel, where she purchased an ointment to temporarily alleviate the situation, having immediately returned to the hotel and his room.
17. On 19/08/2020, the Health Delegate, Dr. JMS___, sent an email to the Claimants, which reads:
“(...) AH___ is only considered cured after having a negative test and a 2nd negative cure test, when this happens the health delegation will get in touch (...) (sic).
18. On 08/21/2020, the following message was transmitted to the four applicants, by the Health Delegate Dr. JMS___, via email:
“In other words, when they finish the quarantine they must take a test and if it is negative they can leave the house” (sic)
19. On the same day, August 21st, the applicant SH___ questioned the aforementioned doctor and Health Delegate, Dr. JMS___, via email message that he sent, the following (translated into Portuguese freely):
“Dear Dr. JMS___ ,
We have already done two COVID tests/person, all were negative (SH___, SWH___, NK___). ..and after that we spent 2 weeks in isolation, and none of us reported any symptoms!!
We have Dr. MMS___'s documents, confirm.
Nobody told us anything about the new tests after the isolation period?!
We have already rebooked our flights and plan to leave the island.
Explain the reason for your statement.
Why wasn't AH___'s COVID test done yesterday?
Greetings,
SH___”
20. The applicants did not receive any response to this email message, with the exception of Applicant AH___, who was notified of the schedule to carry out a new screening test, specifically, for the next 29/08/2020.
21. On 08/20/2020, the applicant AH___ carried out a third COVID19 test, and on the following day (08/21/2020), only by telephone, she was informed that the result had been “detected”.
22. The applicant AH___ requested written evidence of this positive result be sent to her, which was sent to her via email yesterday, 08/24/2020.
23. The Claimants questioned the reception staff at the hotel where they were staying, and were told that none of the four claimants, without exception, would be able to leave their rooms.
24. The applicants do not present, nor have they ever presented, any symptoms of the disease (fever, cough, muscle pain, sneezing, lack of smell or taste).
25. The applicants were not explained the content of the two documents that were sent to them with the writings listed in point 7.
26. The applicants have their habitual residence in the Federal Republic of Germany, identified in these files.
Rationale:
The question that arises here is based on the fact that the Claimants have been deprived of their freedom (since the 10th of August until the present date, as can be seen from the proven facts) and, consequently, are able to avail themselves of the present institute of habeas corpus - as we will now explain -, involves knowing whether or not there is a legal basis for this deprivation of liberty.
In effect, without even questioning the organic constitutionality of Resolution of the Regional Government Council No. 207/2020, of July 31, 2020, currently in force within the scope of the procedures approved by the Government of the Azores to contain the spread of the SARS-COV virus- 2 in this Autonomous Region, in the situation in question, the detention/confinement of the Claimants since the 10th of August is materialized by a communication made via email, in Portuguese, under the terms 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 ns 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 24/07/2020 of the General Health Directorate. a communication with the aforementioned support, it should be noted, in normative circulars and a standard from the General Directorate of Health, that the Regional Health Authority deprived the Claimants of their freedom, as the proven facts derive from the satiety that these, in the strictness 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 to the present date confined, and therefore detained, in a hotel room in this city of Ponta Delgada. We cannot forget, especially because it stands out from the list of proven facts, that the power of movement and right of mobility of the Claimants - or any other individual who finds themselves in an identical situation - are so limited that the first exit from the rooms where they are they found was to go to this court and make statements (with the exception of going to the pharmacy of the Claimant SWH___ in clear desperation to help her daughter's pain in the terms proven).
In short, having analyzed the facts found, it is inexorable to conclude that we are facing a true deprivation of personal and physical freedom of the applicants, not consented by them, which prevents them not only from moving, but also from being with their family, living for approximately 16 days separated (applicants SH___ and SWH___ and their daughter, here Applicant, AH___) and, in the case of Applicant NK___, completely alone, without any physical contact with anyone. To say that there is no deprivation of liberty because at any time they can be absent from the respective rooms in which they are located is a fallacy, simply paying attention to the communications that were made to them after August 10th, none of them in German, and the conditions in which they have lived (not forgetting that they are foreign citizens with an inherent language barrier) or requesting their return to their place of origin is a fallacy, and, for such a conclusion, it is enough to pay attention to the latest communications made in Portuguese, underline- of which the one given as proven under point 8 stands out, specifically
“In other words, when they finish the quarantine they have to take a test and if it is negative they can leave the house, i.e. the hotel where they are confined in 3 rooms.
Therefore, as the Claimants are deprived of their freedom, given the proven circumstances, it is necessary to trace the path in which we move, starting the journey with the guiding light of the Portuguese legislative system: the Constitution of the Portuguese Republic.
Thus, in terms 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 the popular will and committed to building a free, fair society and supportive.”
It follows, unequivocally, that the unity of meaning on which our system of fundamental rights is based is based on human dignity – the principle of human dignity is the axial reference of the entire system of fundamental rights.
One of them, one of the most relevant given its structuring nature of the democratic state itself, is the principle of equality, provided for in article 13 of the CRP, where it is stated, in 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 convictions, education, economic situation, social status or sexual orientation.”
And, what is particularly important 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 to José Lobo Moutinho, in an annotation to this article, that
“Freedom is an absolutely decisive and essential moment – not to say, the very and constitutive way of being – of the human person (Ac. no. 607/03: “ontic requirement”), which lends him that dignity in which finds its granite foundation in the Portuguese legal (and, above all, legal-constitutional) order (article 1 of the Constitution). In this sense, it can be said to be the cornerstone of the social building” (Ac. no. 1166/96)” (aut.cit., in op. Cit., page 637).
Since human freedom is not one-dimensional, and can take on multiple dimensions, as is the case 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, the freedom to walk or move, providing in paragraph 2 of this last article that
“No one may be totally or partially deprived of freedom, except as a result of a judicial sentence condemning the practice of an act punished by law with a prison sentence or judicial application of security measure.” – our emphasis.
The exceptions to this principle are typified in paragraph 3, which states that:
“ Deprivation of liberty is excluded from this principle, for the time and under the conditions determined by law, in the following cases:
a) Arrest in flagrante delicto;
b) Arrest or preventive detention due to strong signs of committing an intentional crime that carries a prison sentence with a maximum limit of more than three years;
c) Arrest, detention or other coercive measure subject to judicial control, of a person who has entered or remains irregularly in the national territory or against whom extradition or expulsion proceedings are underway;
d) Disciplinary imprisonment imposed on military personnel, with guarantee of appeal to the competent court;
e) Subjection of a minor to protection, assistance or education measures in an appropriate establishment, decreed by the competent judicial court;
f) Detention by court decision due to disobedience to a decision taken by a court or to ensure appearance before the competent judicial authority;
g) Detention of suspects, for identification purposes, in the cases and for the time strictly necessary;
h) Admission of a person with a psychic anomaly in an appropriate therapeutic establishment, decreed or confirmed by a competent judicial authority.”
Finally, it is important to remember that, if there is a deprivation of liberty against the provisions of the Constitution and the Law, the State has the duty to compensate the injured party under the terms established by law, as stated in paragraph 5 of article 27, highlighting that , in line with article 3 of the CRP:
(...) 2. The State is subordinate to the Constitution and is based on democratic legality.
3. The validity of laws and other acts of the State, autonomous regions, local authorities and any other public entities depends on their compliance with the Constitution.
Having arrived here, with the legal territory outlined, let's take a closer look at the framework 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 resulting for Claimant AH___, which led to the aforementioned order of prophylactic isolation and consequent stay of them under the terms set out. and proven.
Therefore, given 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 for the four Claimants.
As follows from the definition given by the General Directorate of Health,
“Quarantine and isolation are essential social distancing measures in public health. They are especially used in response to an epidemic and aim to protect the population from person-to-person transmission. The difference between quarantine and isolation starts from the disease state of the person who wants to be socially distanced. I.e:
“quarantine is used on people who are assumed to be healthy, but may have been in contact with an infected patient;
Isolation is the measure used for sick people, so that through social distancing they do not infect other citizens.” (at https://www.sns24.gov.pt/tema/doencas-infecciosas/covid-19/isolamento/?fbclid=IwAR34hD77oLCpxUVYJ9Ol4ttgwo4tsTOvPfIa3Uyoh0EJEbCs3jEihkaEPAY#sec-0 ).
Returning to the case at hand, the Regional Health Authority decided to make a blank slate of essential concepts, because they delimit the differentiated treatment (because different, pass for pleonasm), of the situations of infected people and those who have been in contact with them, in light of the order of prophylactic isolation for all applicants, despite only one of them having positive results to the aforementioned screening test.
And, moreover, he decided to make a dead letter of the Government Council Resolution No. 207/2020 of 31 July itself, interfering with the mandatory submission to judicial validation by the competent court decreed that it is mandatory quarantine, when it leads to satiety of the facts proven that Claimants SH__SWH__ and NK___, at most, are subject to mandatory quarantine.
He did not do so within the 24 hours provided for in point 6 of the aforementioned Resolution, nor even in a longer period - such as in the 48 hours provided for in article 254, no. 1, paragraph a), of the Criminal Procedure Code, or in article 26, no. 2, of the LSM – continuing to make any communication and, in this way, the evident restriction of the freedom of 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 its point 4 that in cases where the SARS-CoV-2 virus test result is positive, the authority of Local health, within the scope of its competences, will determine the procedures to be followed. The AH___ Applicant, positive in the screening test for the virus in question, was notified, reiterating in the same terms as the other Applicants, of the prophylactic isolation order between 08/10/2020 and 08/22/2020.
At this point, it is necessary to make it clear that the notification made as proven under point 7, is based on what is contained in the DGS015/2020 Standard, a rule referred to therein, 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 tells us, as far as we are concerned: (... ) Contacts with High-Risk Exposure
15. A contact classified as having high-risk exposure, under the terms of Annex 1, is subject to:
a. Active surveillance for 14 days, from the date of the last exposure;
b.Determination of prophylactic isolation, at home or another location defined at local level, by the Health Authority, until the end of the active surveillance period, in accordance with the model of Orders no. 2836-A/2020 and/or no. .º 3103-A/20202 (model accessible at http://www.seg-social.pt/documents/10152/16819997/GIT_70.docx/e6940795-8bd0-4fad-b850-ce9e05d80283 )
Following this rule from the General Directorate of Health, reads, among others, the normative circular no. DRSCNORM/2020/39B, dated 2020-08-04 (available for consultation at http://www.azores.gov.pt/NR/rdonlyres/25F80DC1 -51E6-4447-8A38-19529975760/1125135/CN39B_signed1.pdf ),
(...)
a. High-risk close contacts
High-risk close contacts are treated as suspected cases until the laboratory result of the suspected case. These close contacts should be screened for SARS-CoV-2. The following are considered high-risk contacts:
i. Cohabitation with a confirmed case of COVID-19; (...)
ii. Surveillance and Control of Close Contacts
3. High-risk close contacts, given that, currently, it is estimated that the incubation period of the disease (time elapsed from exposure to the virus until the appearance of symptoms) is between 1 and 14 days, they must complete 14 days of prophylactic isolation, even if they present negative screening tests during that period, and a test must be carried out on the 14th day. If the test result on the 14th day is negative, they are discharged. If high-risk close contacts coexist with the positive case, they should only be discharged when the positive case has been cured, and their prophylactic isolation should therefore be extended.
(...)
13. Compliance with prophylactic isolation.
All people identified as a suspected case, until the negative results are known, undergo prophylactic isolation;
All people who tested positive for Covid-19 and who are discharged after a cure test (hospitalization or home) do not need to undergo a new 14-day isolation period or repeat a new test on the 14th day.
All passengers arriving at airports in the Region from airports located in areas considered to be areas of active community transmission or with active transmission chains of the SARS-CoV-2 virus must comply with the procedures in force in the Region at the time.
Having arrived here, let us analyze the legal value of standards/guidelines from the General Directorate of Health and normative circular 39B, dated 04/08/2020, from the Regional Directorate of Health, leaving no doubt that we enter the sphere of administrative guidelines.
In this regard, with the specificity of reporting to the Tax Authority - which has the same administrative legal position as the National Health Authority in the State's ius imperium -, CASALTA NABAIS (Tax Law, 6th ed., Almedina, page. 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 common in tax law constitute “internal regulations that, as they are only addressed to the tax administration, only the latter owes them obedience, and they are therefore mandatory only for bodies located hierarchically below the body that authored them.
Therefore, they are not binding on individuals or the 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 interpretive regulations, which interpret legal (or regulatory) precepts.
It is true that they densify, explain or develop legal precepts, previously defining the content of the acts to be carried out by the administration when applying them. But this does not make them a standard of validity for the acts they support. In fact, the assessment of the legality of tax administration acts must be carried out through direct comparison with the corresponding legal norm and not with the internal regulations, which are interposed between the norm and the act”.
Now, the problem of the normative relevance of the Administration Circulars (Tax) has already been raised and assessed in the Constitutional Court Rulings nº 583/2009 and 42/14, of 18.11.2009 and 09.012.2014, respectively, with that Court having decided, with which we agree, that the prescriptions contained in the Tax Administration Circulars, regardless of their persuasive irradiation in the practice of citizens, do not constitute standards for the purposes of the constitutionality control system committed to the Constitutional Court.
As highlighted in that section (Judgment 583/2009) “(...) These acts, which include “circulars”, emanate from the power of self-organization and the hierarchical power of the Administration. They contain generic service orders and it is for this reason and only in the respective subjective scope (of the hierarchical relationship) that 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 modes, adopted to rationalize and simplify the functioning of services. This is to say that, although they can indirectly protect legal certainty and ensure equal treatment through uniform application of the law, they do not regulate the matter on which they deal with individuals, nor do they constitute a decision rule for the courts.”
Consequently, as they lack heterogeneous binding force for individuals and are not imposed on the judge except for the doctrinal value they may possess, the prescriptions contained in the “circulars” do not constitute standards for the purposes of the constitutionality control system within the jurisdiction of the Constitutional Court.
What has been said allows us to conclude that the administrative guidelines published in the form of a normative circular, as in the present case, do not constitute provisions of legislative value that can be the subject of a declaration of formal unconstitutionality - see Ruling of the Supreme Administrative Court, of 06/21/2017, available for consultation at www.dgsi.pt. And, this is to make it clear that the regulations invoked by the Regional Health Authority that supported the deprivation of liberty imposed on the Claimants through notification of prophylactic isolation are non-binding administrative guidelines for the Claimants. Indeed. just pay attention to who they are addressed to respectively:
Normative Circular no. DRSCNORM/2020/39B: “To: Health Units of the Regional Health Service, Municipal Health Delegates (C/c Regional Civil Protection and Fire Service of the Azores, Linha of Health Azores) Subject: Screening for SARS-CoV-2 and approach to suspected or confirmed cases of SARS-CoV-2 infection Source: Regional Health Directorate (...) Standard 015/2020, of 24/07/2020 : “SUBJECT: COVID-19: Contact Tracing KEYWORDS: Coronavirus, SARS-CoV-2, COVID-19, Contact Tracing, Epidemiological Research FOR: Health System (...).
In this sequence, and, by way of summary, this court cannot fail to emphasize that the present case, let us say aberrant, of deprivation of liberty of persons, absolutely lacks any legal basis, and will not come again with the argument that the defense of public health is at stake because the court always acts in the same way, that is, in accordance with the law, in fact, hence the need for judicial confirmation enshrined in the Mental Health Law in the case of compulsory hospitalization, as From the facts found and the above, it follows:
- The Claimants have been confined to the space of a room for approximately 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 is illegal as a means of detaining people for the reasons already explained (suffice it to pay attention to the constitutional norms set out above), has expired;
- The Claimants were never given any information, communication, notification, as required, in their mother tongue, nor were they provided with an interpreter, in flagrant violation of the European Convention on Human Rights (articles 5, no. 2 and 6, no. 3, al. a) and criminal procedural rules (cf. art. 92 of the Criminal Procedure Code), that is, in our legal system a foreign person without knowledge of the law is detained. Portuguese language is immediately appointed interpreter, and, in the case of the Claimants who limited themselves to traveling to this island and enjoying its beauty, they were never granted this possibility;
- The Claimants after 08/22/2020 are confined to the space of a room based on the following communications:
- On 08/19/2020, an email was sent to the Claimants by the Health Delegate, Dr. JMS___ , which specifically reads:
“(...) AH___ is only considered cured after having a negative test and a 2nd negative cure test, when this happens the health delegation will get in touch (...) ( sic).
- On 08/21/2020, the following message was transmitted to the four applicants, by Health Delegate Dr. JMS___, via email: “In other words, when they finish the quarantine they have to take a test and if it is negative they can leave from home” (sic);
- The deprivation of liberty of the Claimants was not subject to any judicial scrutiny.
As we said initially, we could still consider the organic constitutionality of Government Council Resolution No. 1207/2020, of June 31st, however, we believe it to be an irrelevant issue for the purpose of the decision to be made, which is intended to be swift, as even at the In light of such a resolution, the decision cannot be different, based on the decision of the Constitutional Court, of 31/07/2020, within the scope of process no. 424/2020, and, because the position of the Regional Health Authority in the present circumstances leads the application of normative circulars, with the value explained above.
Lastly, and because this court has been ruling successively and recently within the scope of this institute of “habeas corpus” in light of the orders issued by the Regional Health Authority, we allow ourselves to endorse and underline the following excerpt from the first decision of this Criminal Instruction 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 does not find support in article 27, no. 3, of the CRP, namely in its paragraph h), which only envisages the hospitalization of a person with a mental anomaly in an appropriate therapeutic establishment, decreed or confirmed by a competent judicial authority. It is urgent to legislate on this matter, clearly establishing the fundamental principles that it must comply with, leaving the detailed aspects for secondary law - and only those.
Because, as Professor Gian Luigi Gatta says, who we quote here in a free translation, “at this moment, the country's energies are focused on the emergency. But the need to protect fundamental rights, also and above all in case of emergency, requires the Courts to do their part. Because, in addition to medicine and science, also law - and human rights law in the first place - must be at the forefront: not to prohibit and sanction - as is being emphasized too much these days - but to guarantee and protect all us. Today the emergency is called 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 addressed the coronavirus test. Perché è necessaria una legge sulla quarantine”,)”.
It will not be difficult to admit and accept that the legislative turbulence generated around the containment of the spread of COVID-19 had – and will continue to have – the protection of public health as its reason for being, but this turbulence could never kill 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 Claimants SH__SWH___, AH___ and NK___ is illegal, I decide to consider the present request for habeas corpus to be valid and, consequently, I order their immediate return to freedom.
“
I judge this request for habeas corpus to be valid and, consequently, I order their immediate return to freedom.”;
2. Simply for the sake of procedural economy, that is, because it is of little relevance to the assessment of the merits of the case, the factuality considered as proven is not appealed, not forgetting, however, to mention that it was based solely on the statements of the applicants themselves.
3. The decision appealed by claiming that the appellant did not comply with point 6 of the Resolution of the Council of the Regional Government of the Azores no. 207/2020, of 31 July 2020, violated the scope of application of the same Resolution, defined in point 1 of the same Resolution;
4. Judicial validation of mandatory quarantine, provided for in point 6 of the said resolution, only applies to mandatory quarantine decreed for passengers who do not accept, as an alternative, any of the procedures, provided for in point 1 of the aforementioned Resolution;
5. The applicants complied with the procedure set out in paragraph a) of point 1 of Resolution ° 207/2020, of 31 July 2020, and therefore could never be subject to mandatory quarantine, under that Resolution and, consequently, there is no place for judicial validation, provided for in point 6 of Resolution no. 207/2020, of 31 July 2020.
6. Contrary to what was defended in the contested decision, the Portuguese legal system allows the adoption of exceptional measures, including separation of people, resulting in the mandatory confinement of infected people and those with a high probability of being infected, through the mechanism provided for in article 17 of Law no. 81/2009, of 21 August;
7. The Council of Ministers legitimately made use of the exceptional regulatory power, provided for in article 17 of Law no. 81/2009, through Resolutions of the Council of Ministers no. 55-A/2020, of 31 July 2020 and no. 63-A/2020, of August 14;
8. No. 2 of Resolution of the Council of Ministers no. 55-A/2020, of 31 July 2020, ordered exceptional measures to be applied throughout the national territory, necessary to combat COVID-19, namely those provided for in the regime attached to that resolution;
9. Article 2 of the Annex decreed that:
“Article 2
Mandatory confinement
1 — The following are in mandatory confinement, in a healthcare establishment, at their respective home or in another location defined by the health authorities:
a) Patients with COVID -19 and those infected with SARS -CoV-2;
b)Citizens for whom the health authority or other health professionals have determined active surveillance.
2 – (...)”
10. The applicant AH___ upon being infected with the SARS-CoV-2 virus, in compliance with article 2, paragraph 1, paragraph a) of Annex I of the Resolution of the Council of Minister No. 55-A/2020, had to be in mandatory confinement;
11. The Court a quo, by decreeing habeas corpus for AH___ and allowing his free movement, violated article 17 of Law no. 81/2009, of 21 August, by reference to article 2, no. 1, paragraph a) of Annex I of Council of Minister Resolution no. 55-A/2020;
12. Applicants SH__SWH__ and NK_, in accordance with the rules stipulated by the National Health Authority, contained in Standard 015/2020, of 24/07/2020, are contacts with High Risk Exposure, and must be subject to:
a. Active surveillance for 14 days, from the date of the last exposure;
b.Determination of prophylactic isolation, at home or another location defined at local level, by the Health Authority, until the end of the active surveillance period, in accordance with the model of Orders no. 2836-A/2020 and/or no. .° 3103-A/20202”
13. Applicants SH__SWH__ and NK_ when subject to active surveillance, in compliance with article 2, no. 1, paragraph b) of Annex I of Resolution of the Council of Minister no. 55-A/2020, had to be in mandatory confinement;
14. The Court a quo, by decreeing habeas corpus for 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, n. 1, paragraph b) of Annex I of Resolution of the Council of Ministers no. 55-A/2020.
15. It is necessary that the appealed decision be revoked and replaced by another 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___).
3. In its response, the MºPº drew the following conclusions:
1 — The ruling of the Constitutional Court of 31-07-2020 (Proc. 403/2020;1.' Section; Cons. José António Teles Pereira), after concluding that Mandatory confinement, whether through quarantine or prophylactic isolation, constitutes a true deprivation of freedom not provided for in art. 27.°, no. 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 that imposed a mandatory quarantine, considered the organic unconstitutionality of the aforementioned norms to be verified.
2 — These norms, declared unconstitutional by the Constitutional Court, are in every way materially identical to those contained in Resolutions of the Council of Ministers no. 55-A/2020, of 31-07, 63-A/2020, of 14-08 , and 70-A/2020, of 11-09, and no. 88-A/2020, of 14-10, insofar as they provide for deprivations of liberty not provided for in an appropriate legal instrument issued by the competent entity, as well as do not fall within the exceptions provided for in art. 27.°, no. 3, of the CRP, so these must also be disapplied due to violation of art. 27.°, no. 1, of the CRP.
3 — Predicting art. 5th, no. 1, al. e), of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms — Rome, 04-11-1950), relating to the Right to liberty and security, that “Everyone has the right to freedom and security" and that "No one may be deprived of their freedom, except in the following cases and in accordance with legal procedure: (...) "If it involves the legal detention of a person likely to spread a contagious disease, of a mentally ill person, an alcoholic, a drug addict or a vagrant", we can conclude that the deprivation of liberty of a person likely to spread a contagious disease is a form of detention and that, according to the Convention, it is possible States provide in their domestic legislation for the detention of these people.
4 — Taking into account the constitutional principle of typicality of measures depriving liberty, and not providing for art. 27th, of the CRP, in none of the subparagraphs of its number 3, the deprivation of liberty of a person "susceptible to spreading a contagious disease",
5 — And with subparagraph h) — which provides for the hospitalization of a person with a mental anomaly in an appropriate therapeutic establishment — added by art. 11.0, no. 6, of Constitutional Law no. 1/97, of 20 September (4th constitutional revision), at a time when the European Convention on Human Rights already expressly provided for the detention of a person likely to spread contagious disease,
6 — And that the constitutional legislator, neither in the aforementioned constitutional revision nor in any subsequent one, added another paragraph to paragraph 3 of art. 27° to provide for this possibility, as it did in relation to the hospitalization of a person with a psychic anomaly, we can conclude that we are facing a conscious decision by the constitutional legislator not to allow the deprivation of liberty of a person susceptible to spreading 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 therefore conclude that it is not possible for the legislator, even through the Assembly of the Republic or the Government authorized by it, to create deprivations of liberty that are not provided for in no. 3 of the aforementioned constitutional regulation, particularly with regard to people suffering from infectious and contagious diseases, whether these are deprivations of liberty, confinement, quarantine or prophylactic isolation, without any rules created for this purpose incurring material unconstitutionality due to violation of the aforementioned constitutional regulation.
8 — Returning now to the legal regime for the hospitalization of people with contagious diseases, Law No. 2036 of 09/08/1949 provided for the possibility of promoting the isolation or hospitalization of people with infectious diseases, but only, in this last case, in situations where there was a serious danger of contagion, with an appeal to an authority regarding the decision of isolation or hospitalization.
9 — In turn, art. 17th of Law No. 81/2009, of 21-08, which repealed Law No. 2036 of 09-08-1949, allows the member of the Government responsible for the health area a special regulatory power, in accordance with that stipulated by base XX of Law no. 48/90, of 24-08 (Basic Health Law), namely, “taking essential exceptional measures in the event of a public health emergency, including restriction, suspension or closing activities or separating people who are not sick, means of transport or goods that have been exposed, in order to avoid the possible spread of infection or contamination”.
10 — It follows, from the outset, that the possibility of promoting the isolation or hospitalization of people carrying infectious diseases is not foreseen in this law, as was foreseen in Law no. On the other hand, as the measures taken by health authorities must respect the Constitution and the law and the Constitutional Law does not provide for the deprivation of freedom of people carrying infectious diseases, the interpretation to be given to the expression "separation of people who are not patients, means of transport or goods, which 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 must not constitute a total deprivation of freedom.
11 — On the other hand, the current Basic Health Law — Law no. 95/2019, of 04-09 — provides in Base 34, relating to the defense of public health, that the public health authority may “b) Trigger , in accordance with the Constitution and the law, the hospitalization or compulsory provision of health care to people who otherwise constitute a danger to public health».
12 — Law no. 82/2009, of 02-04, which regulates the legal regime for the designation, competence and functioning of entities that exercise the power of health authorities, also provides in its art. 5° the powers of the health authority, namely, «c) Trigger, in accordance with the Constitution and the law, the hospitalization or compulsory provision of health care to individuals in situations of harm to public health».
13 — It follows that, as the measures taken by the health authorities must respect the Constitution and the law, and the Constitutional Law does not provide for the deprivation of liberty of people suffering from infectious diseases, if the interpretation to be given to the expression “internment or the compulsory provision of healthcare to individuals in a situation of harm to public health" whether in the sense that health authorities may order hospitalization, or another measure restricting freedom of movement, or the compulsory provision of healthcare to people carrying infectious diseases, such interpretation of the law is materially unconstitutional due to violation of art. 27.°, no. 1, of the CRP.
14 — Defining Law No. 27/2006, of 03-07 (Basic Civil Protection Law) "Serious accident" as an unusual event with relatively limited effects in time and space, capable of affecting people and other beings living things, goods or the environment, but establishing in art. 5th, no. 1, al. a), the principle of priority of the public interest relating 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 relating to civil protection, therefore, are not included in the concepts of "serious accident" and "catastrophe" referred to in art. 3rd of the Civil Protection Law.
15 — From this it can also be concluded that the Resolutions of the Council of Ministers — and the Resolutions of the Regional Government Council — 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 provide in point 2 for “mandatory confinement, in the establishment of health, at their home or in another location 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 therefore conclude that 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, of 29-09 — revoked the latter by Resolution of the Council of Ministers no. 88-A/2020, of 14-10, currently in force —, and respective Annex, which were issued by the Government, in use of administrative powers, created a regime that restricts the freedom of citizens suffering from infectious-contagious diseases (quarantines, prophylactic isolation, etc.) and, to reinforce the application of a deprivation of freedom neither permitted by the Constitution nor provided for in enabling law for situations of carriers of a contagious disease or a danger to public health, established the commission of a crime of disobedience for such violations and the aggravation of the penalty provided for such a crime, directly violate art. 27.°, no. 1, of the CRP, therefore, as unconstitutional, they should be disapplied in the specific case, contrary to the request by the appellant,
17 — Maintaining the decision sub judice.
4. The applicant is the regional health authority, represented by the Regional Health Directorate of the Autonomous Region of the Azores.
Decree-Law no. 11/93, of 1993-01-15, in its current version (Statute of the National Health Service) determines that (emphasis added):
Article 1.
The National Health Service, hereinafter referred to as SNS is an ordered and hierarchical set of institutions and official services providing health care, operating under the supervision or tutelage of the Minister of Health.
Article 3.
1 - The SNS is organized into 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, distributing resources, guiding and coordinating activities, managing human resources, technical and administrative support and also evaluating the functioning of institutions and services providing health care.
4 – (…).
In turn, it stipulates Decree-Law no. 22/2012
Article 1.
1 - The Regional Health Administrations, IP, referred to as ARS , IP for short , are public institutes integrated into the indirect administration of the State , endowed with autonomy administrative, financial and own assets.
2 - The ARS, IP, continue their duties, under the supervision and supervision of the member of the Government responsible for the health area.
3 - The ARS, IP, are governed by the rules contained in this decree-law, by the provisions of the framework law for public institutes and the Statute of the National Health Service and by other rules that are applicable to them.
Article 3.
1 - The ARS, IP, have the mission of guaranteeing the population of the respective geographical area of intervention access to the provision of health care, adapting available resources to needs and complying with and enforcing health policies and programs in their intervention area.
2 - The duties of each ARS, IP, within the scope of their respective territorial districts, are:
a) Execute the national health policy, in accordance with global and sectoral policies, aiming at its rational ordering and optimization of resources ;
b) Participate in the definition of intersectoral planning coordination measures, with the aim of improving the provision of health care;
c) Collaborate in the preparation of the National Health Plan and monitor its implementation at regional level;
d) Develop and promote activities within the scope of public health, in order to guarantee the protection and promotion of the health of populations;
e) Ensure the implementation of local intervention programs with a view to reducing the consumption of psychoactive substances, preventing addictive behaviors and reducing dependencies;
f) Develop, consolidate and participate in the management of the National Integrated Continuous Care Network in accordance with the defined guidelines;
g) Ensure regional planning of human, financial and material resources, including the execution of necessary investment projects, of institutions and services providing health care, supervising their allocation;
h) Prepare, in line with the guidelines defined at national level, the installations and equipment chart;
i) 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 , who provide health care or act within the areas referred to in paragraphs e) and f);
j) Enter into, monitor and review contracts within the scope of public-private partnerships, in accordance with the guidelines defined by the Central Administration of the Health System, IP, and allocate the respective financial resources;
l) Negotiate, conclude and monitor, in accordance with the guidelines defined at national level, regional contracts, protocols and conventions, as well as carry out the respective evaluation and review, within the scope of the provision of health care as well as in the areas referred to in paragraphs e) and f);
m) Guide, provide technical support and evaluate the performance of institutions and services providing health care, in accordance with the defined policies and the guidelines and regulations issued by the services and central bodies competent in the different areas of intervention;
n) Ensure adequate coordination between health care provider services in order to guarantee compliance with the referral network;
o) Allocate financial resources, through the conclusion, monitoring and review of contracts within the scope of integrated continued care;
p) Develop functional programs for health establishments;
q) Licensing private units providing health care and units in the area of addictions and addictive behaviors in the social and private sector;
r) Issue opinions on master plans for health units, as well as on the creation, modification and merger of services;
s) Issue opinions on the acquisition and expropriation of land and buildings for the installation of health services, as well as on projects for the facilities of health care providers.
3 - To carry out their duties, ARS, IP, may collaborate with each other and with other entities in the public or private sector, whether profit or non-profit, in accordance with current legislation.
5. The habeas corpus requested is part of the provisions of article 220 of the CPPenal, which has the following wording:
Habeas corpus due to illegal detention
1 - Those detained under the order of any authority may petition the investigating judge of the area where if they are found to order their immediate judicial presentation, on any of the following grounds:
a) The deadline for delivery to the judiciary has been exceeded;
b) Keep detention outside legally permitted locations;
c) The arrest was carried out or ordered by an incompetent entity;
d) The detention is motivated by a fact for which the law does not allow it.
2 - The application can be signed by the detainee or by any citizen enjoying their political rights.
3 - Any authority that raises an illegitimate obstacle to the presentation of the application referred to in the previous paragraphs or to its referral to the competent judge is punishable by the penalty provided for in article 382 of the Penal Code.
6. Appreciating.
Article 401 of the Penal CP stipulates the following:
1 - The following are entitled to appeal:
a) The Public Prosecutor's Office, against any decisions, even if in the exclusive interest of the accused;
b) The defendant and the assistant, of decisions made against them;
c) The civil parties, in terms of the decisions made against each one;
d) Those who have been ordered to pay any amounts, under the terms of this Code, or have to defend a right affected by the decision.
2 - Anyone who is not interested in taking action cannot appeal.
7. The first question that arises here is the legitimacy of the appellant, in the context of an appeal in criminal proceedings.
i. We are within the scope of a criminal jurisdiction, whose purpose is to ensure the effective exercise of the State's jus puniendi , that is, which is dedicated to investigating and deciding on behaviors that constitute a crime or administrative offense.
It is, in this context and with this purpose in mind, that the Law determines who has the legitimacy to discuss the goodness of a decision made by a criminal court.
ii. In this case, we found that the appellant is not a defendant, is not an assistant and did not make any civil request that, in view of the principle of adhesion, would determine her position as plaintiff or defendant.
iii. Therefore, in view of the Law and taking into account the list of intervenors that the legislator understood to have the legitimacy to intervene in a process in this type of jurisdiction, on appeal, we must immediately conclude that the appellant lacks the legitimacy to be able to discuss the content of a court decision in this context.
iv. In fact, the practice of any crime, nor any offense of an administrative nature, is not discussed here, given that the issue of possible criminal consequences, of recognizing the existence of an illegal detention, is a matter that will have to be discussed. in its own headquarters – that is, in an investigation that may be opened for this purpose, being completely unrelated to the decision of the present case.
v. We therefore conclude that the appellant lacks standing to appeal the decision given by the court a quo.
8. Regardless of the question of legitimacy, it appears that, equally, the appellant lacks an interest in acting.
i. As follows from the peaceful jurisprudence and doctrine in this regard, the interest in acting means the need for someone to have to use the appeal mechanism as a way of reacting against a decision that brings them a disadvantage to the interests they defend or that has frustrated one of their interests. legitimate expectation or benefit.
ii. Now, in the present case, the question is – did the decision given cause any disadvantage to the interests that ARS defends? Or your legitimate expectation or benefit?
The answer is clearly negative.
Otherwise, let's see.
iii. The ARScontinues its duties, under the supervision and supervision of the member of the Government responsible for the health area.
Therefore, and from the outset, whether in view of the functions assigned to it, or in view of the manifest hierarchization of the same, in view of the guardianship, it will have to be concluded that no ARS pursues its own and autonomous interest, which it must defend. The person who will continue it, eventually, will be the respective Minister or the Government in which it operates, as the “interests” of the ARS will not be its own, but will be included in the health policy of the ministry that oversees that entity.
It should be noted, in fact, that in the definition of its duties [1] , it is not determined to have any specific function of defending, autonomously and in its own name, in court, any interests that fall within its functions which, insofar as regarding criminal or administrative activities, there are none...
iv. In turn, the interest that the appellant herself intends to defend and which appears in the application, at the end of this appeal - the validation of the mandatory confinement of the applicants, as they are carriers of the SARS-CoV-2 virus (AH___) and because they are in active surveillance, due to high-risk exposure, decreed by health authorities (SH__SWH__ and NK___) – is something in itself contradictory and goes beyond the purpose and scope of powers of a criminal court.
Contradictory because the appellant does not accept that confinement corresponds to deprivation of liberty. If this is so, it is unclear where the appellant bases the jurisdiction of a criminal court to validate “confinements ”. And outside the scope of action of a criminal court, because it is not responsible for making declaratory decisions validating infections or diseases…
v . Finally, we cannot see what legitimate expectation or benefit an entity under the supervision of a Government body has, as it is frustrated, by the decision now being criticized. saw. It follows from this that the appellant has no interest in taking action, which is why, under the provisions of paragraph 2 of article 401 of the Penal CP, she cannot appeal the decision made. 9. The decision given by the court a quo to receive this appeal does not bind this court (article 414 of the CPPenal), so there is nothing to prevent it from being rejected.
10. However, for peace and quiet of conscience, the following will be added: Even if this were not understood, the appeal presented would be manifestly unfounded, for the following succinct reasons : i. Firstly, due to the exhaustive and correct reasoning set out in the decision, by the court a quo, the content of which is fully endorsed. In truth,
In view of the Constitution and the Law, health authorities do not have the power or legitimacy to deprive any person of their freedom - even under the label of “confinement”, which effectively corresponds to detention - since such a decision can only be determined or validated by a judicial authority, that is, the exclusive competence, in view of the Law that still governs us, to order or validate such deprivation of liberty, is vested exclusively in an autonomous power, the Judicial Magistracy.
It follows that any person or entity that issues an order, the content of which leads to the deprivation of physical, ambulatory, or other person's freedom (whatever nomenclature this order assumes: confinement, isolation, quarantine, prophylactic protection, etc. ), that does not fall within the legal provisions, namely the provisions of article 27 of the CRP and without having been granted such decision-making power, by force of Law - originating from the AR, within the strict scope of the declaration of a state of emergency or siege, respected that the principle of proportionality is demonstrated - that it mandates and specifies the terms and conditions of such deprivation, it will be carrying out an illegal detention, because ordered by an incompetent entity and because motivated by a fact for which the law does not allow it ( say In fact, this issue has been debated over time in relation to other public health phenomena, particularly with regard to HIV and tuberculosis infection, for example. And, as far as we know, 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 context that the situation under consideration in this case falls, without a shadow of a doubt, and it is certain that the appropriate means of defense against illegal detentions is subsumed by the request for habeas corpus , provided for in article 220, als. c) and d), from CPPenal.
And, correctly, the court a quo ordered the immediate release of four people who were illegally deprived of their liberty.
ii. Secondly, because the request formulated in the appeal itself proves to be impossible to justify .
Otherwise, let's see:
11. In fact, it is requested that “the mandatory confinement of applicants be validated, 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 the authorities of health (SH__SWH__ and NK_).”
12. It is with great surprise that this court is faced with such a request, especially if we take into account that the appellant carries out her activity in the health sector.
Since when is it up to a court to make clinical diagnoses, on its own initiative and based on the possible results of a test? Or to ARS? Since when has the diagnosis of a disease been made by decree or by law?
13. As the appellant has more than an obligation to know, a diagnosis is a medical act, the exclusive responsibility of a doctor.
This is what results unequivocally and peremptorily from Regulation no. 698/2019, of 5.9 (regulation that defines doctors' specific acts), published in DR.
It is imperatively determined (which requires compliance by everyone, including the appellant) that (emphasis added):
Article 1
Object
This regulation defines the professional acts of doctors, their responsibility, autonomy and limits , within the scope of their respective performance.
Article 3.
Qualification
1 — The doctor 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 level of health.
2 — Doctors who are registered with the Medical Association are the only professionals who can perform the acts typical of doctors , in accordance with the Statute of the Medical Association, approved by Decree-Law No. 282/77, of 5 July, with the changes introduced by Law no. 117/2015, of 31 August and this regulation.
Article 6.
Medical act in general
1 — The medical act consists of diagnostic , prognostic , surveillance , investigation, medico-legal expertise, clinical coding, clinical auditing, prescription and execution of pharmacological and non-pharmacological therapeutic measures. pharmacological, medical , surgical and rehabilitation techniques, health promotion and disease prevention in all its dimensions, namely physical, mental and social of people, population groups or communities, respecting the deontological values of the medical profession. Article 7. Act of diagnosis The identification of a disorder, disease or the state of a disease by studying its symptoms and signs and analyzing the tests carried out constitutes a basic health procedure that must be carried out by a doctor and, in each specific area , by specialist doctor
and aims to establish the best preventive, surgical, pharmacological, non-pharmacological or rehabilitation therapy.
14. Even under the Mental Health Law, Law no. 36/98, of 24 July, the diagnosis of pathology that can lead to compulsory hospitalization is obligatorily carried out by specialist doctors and their technical-scientific judgment - inherent clinical-psychiatric evaluation - is exempt from the judge's free assessment (see articles 13 nº3, 16 and 17 of the said Law).
15. Thus, any diagnosis or any act of health surveillance (as is the case of determining the existence of a viral infection and high risk of exposure, which are covered by these concepts) carried out without prior medical observation of the applicants, without the intervention of a doctor enrolled in the OM (who carried out the evaluation of his signs and symptoms, as well as the examinations he considered appropriate to his condition), violates this Regulation, as well as the provisions of article 97 of the Statute of the Medical Association, being liable to constitute a crime P. and p. by article 358 al.b) (Usurpation of functions) of the C.Penal, if dictated by someone who does not have such quality, that is, who is not a doctor registered with the Medical Association.
It also violates paragraph 1 of art. Declaration imposes. It is therefore clear that the prescription of auxiliary diagnostic methods (as is the case of viral infection detection tests), 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 means, as these are acts that our legal system reserves to the exclusive competence of a doctor, given that he, when advising his patient, must always try to obtain the your informed consent.
16. In the case at hand, there is no indication or proof that such a diagnosis was actually carried out by a qualified professional under the terms of the Law and who had acted in accordance with good medical practice. In fact, what follows from the facts as established is that none of the applicants was even seen by a doctor, which is frankly inexplicable, given the alleged severity of the infection.
17. In fact, the only element that appears in the proven facts, in this regard, is the carrying out of RT-PCR tests, one of which showed a positive result in relation to one of the applicants.
i. Now, given the current scientific evidence, this test appears, on its own, incapable of determining, without a reasonable margin of doubt, that such positivity corresponds, in fact, to a person's infection with the SARS-CoV-2 virus, for several reasons, of which we highlight two (plus the issue of the gold standard which, due to its specificity, we will not even address):
Because this reliability depends on the number of cycles that make up the test;
Because this reliability depends on the amount of viral load present.
ii. In fact, RT-PCR tests (Polymerase Chain Reaction), molecular biology tests that detect the RNA of the virus, commonly used in Portugal to test and enumerate the number of infected people (after nasopharyngeal collection), are carried out by amplification of samples , through repetitive cycles.
The number of cycles of such amplification results in greater or lesser reliability of such tests.
iii. And the problem is that this reliability appears, in terms of scientific evidence (and in this field, the judge will have to rely on the knowledge of experts in the field) to be more than debatable.
This is what results, among others, from the very recent and comprehensive study Correlation between 3790 qPCR positive samples and positive cell cultures including 1941 SARS-CoV-2 isolates, by Rita Jaafar, Sarah Aherfi, Nathalie Wurtz, Clio Grimaldier, Van Thuan Hoang, Philippe Colson, Didier Raoult, Bernard La Scola, Clinical Infectious Diseases, ciaa1491, https://doi.org/10.1093/cid/ciaa1491 , at https://academic.oup.com/cid/advance-article/doi/10.1093 /cid/ciaa1491/5912603, published at the end of September this year, by Oxford Academic, carried out by a group that brings together some of the greatest European and global experts on the subject.
This study concludes [2] , in free translation:
“At a cycle threshold (ct) of 25, around 70% of the samples remain positive in cell culture (ie they were infected): at a ct of 30, 20 % of samples remained positive; at 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 happens in most US and European laboratories), the chances of the person being infected are less than 3%. The probability of a person receiving a false positive is 97% or higher.”
iv. What follows from these studies is simple – the eventual reliability of the PCR tests carried out depends, from the outset, on the threshold of amplification cycles that they involve,such that, up to the limit of 25 cycles, the reliability of the test will be around 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%.
v. Now, in the present case, the number of amplification cycles with which PCR tests are carried out in Portugal, including the Azores and Madeira, is unknown, since we were unable to find any recommendation or limit in this regard saw. In turn, in a very recent study by Elena Surkova, Vladyslav Nikolayevskyy and Francis Drobniewski, 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 accuracy of the test itself raises, regarding the specific detection of the sars-cov 2 virus, due to strong doubts regarding compliance with the so-called gold standard ) that ( free translation):
“Any diagnostic test must be interpreted in the context of the actual possibility of the disease, existing before its performance.
For Covid-19, this decision to perform the test depends on the prior assessment of the existence of symptoms, previous medical history of Covid 19 or presence of antibodies, any potential exposure to this disease and the likelihood of another possible diagnosis. ” [3] “One of the potential reasons for the positive results may be the prolonged shedding of viral RNA, which is known to last for weeks after recovery in those who were previously exposed to SARS-CoV-2. However, and more importantly, there is no scientific data to suggest that low levels of viral RNA by RT-PCR equate to infection, unless the presence of infectious viral particles has been confirmed through laboratory culture methods . In summary, Covid-19 tests that report false positives are increasingly likely, in the current epidemiological climate scenario in the United Kingdom, with substantial consequences on a personal level, on the health system and society .” [4]
18. Thus, with so many scientific doubts, expressed by experts in the field, which are the ones that matter here, regarding the reliability of such tests, ignoring the parameters of their performance and there being no diagnosis carried out by a doctor, in the sense of the existence of infection and risk, it would never be possible for this court to determine that AH___ was a carrier of the SARS-CoV-2 virus, nor that SH__SWH__ and NK_ had had high-risk exposure.
19. In a final summary, it will be said that, since the appeal lodged appears to be inadmissible, due to lack of legitimacy and lack of interest in acting on the part of the appellant, as well as manifestly unfounded, it will have to be rejected, in accordance with the provisions in articles 401 nº 1 al. a), 417 nº6 al. b) and artº420 nº1 als. a) and b), all from CP 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 from the Criminal Procedure Code, the appeal filed by the REGIONAL HEALTH AUTHORITY, represented by the Regional Health Directorate of the Autonomous Region of the Azores, is rejected .Pursuant to paragraph 3 of article 420 of the CPPenal, the appellant is sentenced to a procedural sanction of 4 UC, as well as a TJ penalty of 4 UC and costs. Immediately inform the court a quo of the content of this ruling. Lisbon,
November 11, 2020
Margarida Ramos de Almeida Ana Paramés __________________________________________________________ [1] [1] 2 - The duties of each ARS, IP, within the scope of the respective territorial circumscriptions are:
a) Execute the national health policy, in accordance with the global and sectoral policies, aiming at their rational ordering and optimization of resources;
b) Participate in the definition of intersectoral planning coordination measures, with the aim of improving the provision of health care;
c) Collaborate in the preparation of the National Health Plan and monitor its implementation at regional level;
d) Develop and promote activities within the scope of public health, in order to guarantee the protection and promotion of the health of populations;
e) Ensure the implementation of local intervention programs with a view to reducing the consumption of psychoactive substances, preventing addictive behaviors and reducing dependencies;
f) Develop, consolidate and participate in the management of the National Integrated Continuous Care Network in accordance with the defined guidelines;
g) Ensure regional planning of human, financial and material resources, including the execution of necessary investment projects, of institutions and services providing health care, supervising their allocation;
h) Prepare, in line with the guidelines defined at national level, the installations and equipment chart;
i) 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 , who provide health care or act within the areas referred to in paragraphs e) and f);
j) Enter into, monitor and review contracts within the scope of public-private partnerships, in accordance with the guidelines defined by the Central Administration of the Health System, IP, and allocate the respective financial resources;
l) Negotiate, conclude and monitor, in accordance with the guidelines defined at national level, regional contracts, protocols and conventions, as well as carry out the respective evaluation and review, within the scope of the provision of health care as well as in the areas referred to in paragraphs e) and f);
m) Guide, provide technical support and evaluate the performance of institutions and services providing health care, in accordance with the defined policies and the guidelines and regulations issued by the services and central bodies competent in the different areas of intervention;
n) Ensure adequate coordination between health care provider services in order to guarantee compliance with the referral network;
o) Allocate financial resources, through the conclusion, monitoring and review of contracts within the scope of integrated continued care;
p) Develop functional programs for health establishments;
q) Licensing private units providing health care and units in the area of addictions and addictive behaviors in the social and private sector;
r) Issue opinions on master plans for health units, as well as on the creation, modification and merger of services;
s) Issue opinions on the acquisition and expropriation of land and buildings for the installation of health services, as well as on projects for the facilities of health care providers.
[2] “that at a cycle threshold (ct) of 25, about 70% of samples remained positive in cell culture (ie were infectious); 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 methods.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).
WHAT I REALLY THINK
The inventor of the PCR tests emphatically stated that the PCR test was not appropriate to use to diagnose ANYTHING.
People were fooled into thinking that if they had symptoms, all they had to do was run and take a PCR test - and then BELIEVE IT.
I never once used a NEGATIVE CR test for anything on anyone. If you were sick, I treated. If you were exposed to someone who was sick, I treated. If you were not sick, I gave prevention support.
Absolutely the tip of the PCR nasal swab is the same spiral point used for DNA samples. Couple that with the illegal Chinese lab:
https://therebelpatient.substack.com/p/illegal-infectious-chinese-laboratory
And with what they did in Israel, you can bet there's a huge warehouse somewhere with DNA samples:
https://therebelpatient.substack.com/p/gal_g____-contract-lawyer-israeli
After all, they have been offering DNA sampling freebies to our Veterans:
https://therebelpatient.substack.com/p/data-sharing-of-veterans-dna-million
The Golden Rule Still Applies:
1. Don’t Touch Bat Shit.
What ? You Need More Rules …
Okay. Don’t Inject Anything Into Your Body That Is Derived From The Bacteria Found In Bat Shit.
This Is Not Complicated People.
How Do We Know This ?
Because If Every Caveman Had Been This Bat Shit Stupid - You Wouldn’t Be Here.