The law invoked, and the doubts
An unlawful charge
The police rely on a decree-law passed in August 1974, four months after the 25 April revolution, when Portugal did not yet have a democratic constitution. Several jurists say that decree does not fit what the Constitution came to guarantee.
Why we believe it is unlawful, in five steps
- The Constitution guarantees the right of assembly without authorisation and sets no time limit (article 45).
- A fundamental right can only be restricted in the cases the Constitution itself provides for (article 18).
- Laws older than 1976 only remain in force if they do not contradict the Constitution (article 290(2)). The August 1974 decree is older.
- So the 00:30 limit cannot be applied to a peaceful demonstration in a public space.
- A dispersal order based on that limit is not a lawful order, and without a lawful order there is no crime of disobedience (article 348 of the Penal Code).
Note: this is the reading of several jurists, but no court has confirmed it. The Constitutional Court has never assessed the decree and, until it does, the police consider it in force. Staying after a dispersal order can lead to arrest and a disobedience charge, as it already has for 86 people. Before you decide, talk to the movements' legal teams.
What the Constitution says
Our own translations; the official text is in Portuguese.
1. Citizens have the right to assemble peacefully and without arms, even in places open to the public, without need of any authorisation.
2. All citizens are recognised the right to demonstrate.
2. The law may only restrict rights, freedoms and guarantees in the cases expressly provided for in the Constitution, and restrictions must be limited to what is necessary to safeguard other constitutionally protected rights or interests.
Ordinary law from before the Constitution only remains in force insofar as it does not contradict it or the principles it enshrines. This is the rule that makes the 1976 Constitution prevail over the 1974 decree.
Police measures may not go beyond what is strictly necessary.
What the police invoke
The 00:30 limit
"Meetings of other gatherings covered by this decree may not continue beyond 0:30 am", except in enclosed venues or buildings without residents. Written in 1974, before the Constitution, it is the basis of every dispersal order.
Article 45 sets no time limits. For several jurists, a restriction created before 1976 that the Constitution does not authorise is no longer in force.
Prior notice
Organisers notify the city council two working days in advance. The organisations say they did.
It is a notice, not a request for a licence: the council neither authorises nor bans.
Stopping a demonstration
The authorities may only stop a demonstration that departs from its purpose "through acts contrary to the law or to morality, or that seriously and effectively disturb public order and tranquillity, the free exercise of people's rights […]". They must draw up a written record of the reasons and hand it to the organisers.
In Lisbon, on 25 October, the lawyers supporting the camp asked for that record and the police refused to write it, minutes before charging. The conversation was filmed: see the video (Instagram).
Unlawful occupation
Prohibits the unlawful occupation of public or private buildings.
A square is not a building.
Licence to camp
Occasional camping outside campsites requires a municipal licence. The camps did not have one.
The tents are a form of protest, not camping.
Disobedience
Disobeying a lawful order from the authorities is a crime, punishable by up to one year in prison or a fine. It was for disobedience that the police arrested 86 people.
If the order rests on an unconstitutional rule, the order is not lawful.
What jurists say
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Read literally, some provisions of the decree are unconstitutional. Occupying public space is not enough to restrict the right: there must be a serious and prolonged threat to other fundamental rights. Peaceful camps are protected by international case law.
Article 45 allows no restrictions, and a decree-law does not override the Constitution. An order given under an unconstitutional rule is unlawful, so he considers the arrests in Rossio unlawful and wants those who gave the order held accountable.
Laws from before 1976 that contradict the Constitution were tacitly repealed. The tents did not block roads or traffic, which is what the decree is concerned with.
What organisations say
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Had observers on the ground on the night of 25 October, speaks of excessive and disproportionate use of batons and calls for an urgent investigation. On 16 October, about Porto, it had already called for an independent investigation and for anyone who used unlawful force to be held accountable, recalling that dispersing a peaceful protest must be a last resort and that the right to demonstrate must be protected at night too.
Urgently asked the national police command for information and documents on the 15 October charge in Porto, to assess whether it was compatible with the right of assembly and demonstration in article 45.
Considers the operation disproportionate, violent and unlawful. Demands an IGAI inquiry, the resignation of the Interior Minister, explanations of who gave the order and on what grounds, and the dropping of the disobedience cases.
Distinguishes the right to demonstrate from a right to camp in the city. But says that, faced with a peaceful camp, the police must act with restraint and any indiscriminate aggression must be investigated. The Bar is open to examining whether the operations were lawful.
Ask the Constitutional Court to decide
A petition asks the Ombudsman to take the 00:30 limit to the Constitutional Court.
Sign the petitionNext: An unjust charge →