The fundamental right at stake with the mandatory quarantine measure: contribution to the discussion, in light of the Judgment no. 490/2022 of the Portuguese Constitutional Court

Abstract

2020 and 2021 were challenging years for Constitutional Law and, above all, in terms of fundamental rights, as governments generally resorted to the measure of mandatory quarantine as a way of meeting the health requirements generated by the rapid spread of the SARS-CoV-2 virus. In Portugal, this measure was aimed, in 2021, at people subject to active surveillance on the advice of health professionals. The question that arose then, and that we are now readdressing, concerns the fundamental right at stake with this measure – whether the right to liberty (Article 27 of the Portuguese Constitution) or the right to free movement (Article 44 of the Portuguese Constitution) –, as these guarantees may take on different natures and levels of protection and, in this way, lead to different results when questioning whether the government’s actions were compliant with the Constitution within the framework of “constitutional normality” lived at the time.