State of emergency – the basic measures you should be aware of

Much has been written over recent weeks about the state of emergency in Portugal. However, we still believe that many English-speaking foreign residents living in the Algarve would like to have clear information about what they can and cannot do, and to have specific information about the main measures now in place.

The WHO declared Covid-19 to be an international public health emergency and then, on 11 March, a pandemic. Following this, on March 18, the Portuguese government declared a state of emergency, which started on March 19 and was recently extended until April 17, 2020.

On April 2, by Decree-Law 2-B/2020, the Portuguese government updated and reinforced several measures to contain the transmission and spread of Covid-19.

The regulations and legal provisions set out in Decree-Law 2-B/2020 apply to the whole of Portugal and, therefore, to all individuals who are in the country, whether or not they are resident here.

MEASURES APPLICABLE TO INDIVIDUALS
Under the general duty to stay at home, we need to draw a distinction between compulsory self-isolation, the special and general duties to stay at home, and the reinforced measures applicable during the long Easter weekend.

Compulsory self-isolation:
The following groups of people must stay at home, or in a health care facility (or other place defined by the health authorities):
(i) Patients who have tested positive for Covid-19
(ii) People to whom the health authority or other health professionals have applied active surveillance (according to the “Saúde 24” instructions)

Special Protection Duty
The following people are subject to a special duty of protection:
(i) People over 70 years old
(ii) People with weakened immune systems and people suffering from a chronic illness who, according to the guidelines of the health authority, should be considered to be in a health risk group(1)

As a rule, the above groups of people cannot leave their homes other than to do the following things:
– Buy goods and services
– Travel for health reasons, in particular, to obtain health care
– Travel to post offices, bank branches and insurance brokers or insurance companies
– For physical exercise (for a short period). Exercising in groups is not allowed
– Short walks with pets
– Other activities of a similar nature or for other reasons of force majeure or imperative need, if they are properly justified

The only exceptions to this rule are:
– The people mentioned in (i) and (ii) above can also leave home:
– If they are health professionals or workers at health and social support institutions, as well as civil protection agents, to do their jobs;
– If they are members of the security forces and services, military and civilian personnel of the armed forces and inspectors, to do their jobs;
– If they are political officeholders, magistrates and leaders of employers’ association and trade unions to do their jobs.
– The people mentioned in (ii), except when on sick leave, can also leave home to do their jobs.

(1)Including people with hypertensive people, diabetics, cardiovascular patients, those with chronic respiratory disease and cancer patients.

General duty of all people to stay at home:
All people who are not included in any of the above categories or circumstances should also stay at home and may only leave their homes to:
– Buy goods and services
– Travel to work or similar
– Search for a job or answer a job offer by attending an interview
– Travel for health reasons
– Give support and health care to victims of domestic violence or human trafficking, as well as of children at risk, according to any measures issued by a judicial authority or commission for the protection of children, in a residential foster home or with a family
– Travel to help and care for vulnerable people, people with disabilities, children, parents, or elderly or dependent people
– Travel to accompany minors on short trips to enjoy time in the open air, or to attend school and day-care centres (the ones allowed to stay open)
– Short trips to do physical exercise, but exercising in groups is prohibited
– Travel to participate as a social volunteer
– Travels for imperative family reasons, namely to fulfil parental responsibilities as determined by an agreement or the court
– Supply essential goods to incapacitated people or to people with mobility difficulties
– Participate in procedural acts before judicial bodies
– Travel to post offices, bank branches and insurance brokers or insurance companies
– Short walks with pets and to feed animals
– Travel by veterinarians and animal keepers to provide medical care to animals
– Travel by anyone who has legally issued general travel pass that allows them to travel to do their jobs (such as doctors, diplomats, and security officers)
– Travel for diplomatic missions
– Travel necessary to exercise the right of freedom of the press
– Travel to return home
– Other activities of a similar nature or for other reasons of force majeure or imperative need, provided they are properly justified
– Private vehicles may be driven on the public road for the activities listed above or to refuel at petrol stations
– For the above purposes, the activities of high-performance athletes and their coaches, and professional sports coaches, are considered equivalent to professional activities

Special Measures during Easter weekend – from April 9 until April 13
In addition to the above rules, specific rules apply during the Easter period, between midnight on April 9 and 23:59 on April 13. Besides all the above restrictions that remain in force, all people are forbidden to leave the municipality where they have their habitual residence, except for reasons of health or extreme urgency.

As we read the law, the only exceptions to this rule apply to:
(i) health professionals or workers at health and social support institutions, as well as civil protection agents, to do their jobs;
(ii) members of the security forces and services, military and civilian personnel of the armed forces and inspectors, to do their jobs;
(iii) political officeholders, magistrates and leaders of employers’ association and trade unions to do their jobs.
(iv) professional activities allowed under the applicable law, in which case the individuals must have a declaration from their employer certifying that their travel is required to do their professional work.

However, it is important to note that all travel must still comply with the recommendations and orders determined by the health authorities and by the security forces and services, in particular, those relating to the distance to be observed between people and other safety measures.

In addition, during the Easter period defined above, commercial passenger flights to and from Portuguese airports is not permitted, except for emergency landings, humanitarian flights or repatriation flights.

WHAT IF I DO NOT COMPLY WITH THE ABOVE OBLIGATIONS?
It is important to know that any failure to comply with the applicable measures may lead to criminal charges of the crime of disobedience and the applicable penalties. Furthermore, the police authorities have powers to check whether people are complying with the measures and to enforce them.
In fact, the police authorities can:

– Raise the community’s awareness of the general duty to stay at home
– Order people to stay at home
– Recommend to all people subject to the measures apply to comply with the general duty to stay at home
– Report the crime of disobedience under article 348(1)(b) of the Portuguese Criminal Code and article 7 of Law 44/86 of 30 September, which regulates the crime of disobedience committed under the state of emergency rules
– Ensure that groups of people do not gather on public roads and in public places. The authorities can also order groups of more than five people to disperse, unless they belong to the same household

Additionally, any breach of the compulsory isolation measures in the various cases mentioned above and/or the violation of the limitations imposed during the Easter period will be considered a criminal offence of disobedience.

Under the applicable legislation, the crime of disobedience is committed by “anyone who fails to obey due to a legitimate order or warrant, regularly communicated and issued by a competent authority or official, is punished with a prison sentence of up to one year or with a fine”.

Portuguese law also provides for another type of crime that may apply in the current situation. This relates to the crime of disobeying an order to disperse, if a group or a gathering of people violates a legitimate order to withdraw from a public gathering or meeting, given by the competent authority, with the warning that such disobedience is considered a crime. In these cases, the person who disobeys may be punished with imprisonment for up to one year or with an appropriate fine, as above. However, the person who organises the meeting or gathering may be punished with a prison sentence of up to two years or double the usual fine. When committed during a state of emergency, the minimum and maximum limits of the applicable penalties for both crimes are increased by one third under article 6(4) of Law 27/2006 of 3 July.

Besides the above crimes, article 283(1)(a) of the Portuguese Criminal Code provides that it is a crime to spread a disease. The article applies to anyone who knowingly spreads a contagious disease and, in doing so, creates a danger to life or a serious danger to the health of another person. The punishment for this crime is imprisonment from one to eight years. However, if the crime is committed by negligence, the maximum prison sentence is five years.

Covid-19 has taught us that we are all in this together. For those of us who are lucky enough to only need to stay at home to do our part in trying to fight this terrible pandemic, we must do just that: stay at home.

PLMJ Faro
April 10, 2020
This informative note is intended for general information to clients and is provided as a general and abstract overview. Professional legal advise should be sought for specific cases. The contents of this informative note may not be reproduced, in whole or in part, without the express consent of the author. If you should require further information on this topic, please contact carmen.baptistarosa@plmj.pt or dearbhaile.banahan@plmj.pt.