Because it is elementary justice in a Democratic Rule of Law.

It was stated in the STJ Judgment, delivered in proc. no. 610/16.4JAAVR-A.S1, of the 3rd Criminal Section, of 23/07/2020, and which we reproduce here as it reflects our understanding:

The right to ambulatory individual freedom is a fundamental right of the person, proclaimed in international legislative instruments on fundamental rights and in the majority of constitutional regimes of civilized countries.

The Universal Declaration of Human Rights, “considering that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice…”, in Article III (3rd) proclaims the universal validity of the right to individual freedom.

It proclaims in Article IX (9th) that no one shall be arbitrarily detained or imprisoned.

In Article XXIX (29th) it is admitted that the right to individual freedom may suffer “limitations determined by law” aiming to ensure the due recognition and respect of the rights and freedoms of others and to meet the just requirements of public order.

The International Covenant on Civil and Political Rights, in Article 9, enshrines; “everyone has the right to personal liberty”. Prohibiting arbitrary detention or imprisonment, it establishes that “no one shall be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law”.

It also establishes: “anyone who is deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful”. 

The European Convention on Human Rights/ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms), in Article 5, recognizes that “everyone has the right to liberty”. No one shall be deprived of their liberty, except in the case of lawful detention after conviction by a competent court, in accordance with the legal procedure.

It recognizes that a person deprived of their liberty by arrest or detention has the right to take proceedings before a court, in order that that court may decide, in a short period of time, on the lawfulness of their detention and order their release if the detention is not lawful.

The European Court of Human Rights (ECHR) “emphasizes from the outset that Article 5 enshrines a fundamental human right, namely, the protection of the individual against arbitrary interference by the State in their right to liberty. The text of Article 5 makes it clear that the guarantees contained therein apply to “everyone”. Subparagraphs (a) to (f) of Article 5 §1 contain an exhaustive list of permissible reasons on which people can be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 §1 unless it is covered by one of these reasons or is provided for by a legal derogation under Article 15 of the Convention (see, inter alia, Ireland v. United Kingdom, January 18, 1978, § 194, Series A no. 25, and A. and Others v. United Kingdom, cited above, §§ 162 and 163, in Grand Chamber, Case of AL-JEDDA v. THE UNITED KINGDOM, (Application no. 27021/08). JUDGMENT, in July 7, 2011). It interprets: “with regard to the ‘legality’ of detention, the Convention essentially refers to national legislation and establishes the obligation to observe its substantive and procedural rules. This term requires, first of all, that any arrest or detention has a legal basis in domestic law”. And that “the ‘regularity’ required by the Convention presupposes compliance not only with domestic law but also – Article 18 confirms – with the purpose of the deprivation of liberty authorized by Article 5 §1 (a). (Bozano v. France, December 18, 1986, § 54, Series A no. 111, and Weeks v. United Kingdom, March 2, 1987 § 42, Series A no. 114). However, the preposition ‘after’ does not imply, in this context, a mere chronological sequence of succession between ‘conviction’ and ‘detention’: the second must also result from the first, occur ‘following and as a result of’ – or ‘by virtue of’ – this. In short, there must be a sufficient causal link between them (Van Droogenbroeck, cited above, §§ 35 and 39, and Weeks, cited above, § 42. – in Grand Chamber, Case of KAFKARIS v. CYPRUS. (Application no. 21906/04), JUDGMENT of February 12, 2008).

In turn, the Charter of Fundamental Rights of the European Union recognizes, in Article 6, the right to individual liberty. Although it does not expressly enshrine habeas corpus, it recognizes in Article 47 the right to judicial action against the violation of rights or freedoms guaranteed by Union law.

The Constitution of the Republic, in Article 27 §1, recognizes and guarantees the right to individual liberty, physical liberty, and freedom of movement.

The right not to be detained, imprisoned, or totally or partially deprived of liberty is not an absolute right.

Similar to the ECHR, the Constitution of the Republic, in Article 27 §2, expressly admits that the right to personal liberty may suffer restrictions. Any person may be totally or partially deprived of liberty as a result of a judicial conviction for an act punishable by law with imprisonment or the judicial application of a security measure.

Regarding the habeas corpus remedy:

The Constitution of the Republic, in line with the ECHR, also in a way, following the two Constitutions that precede it (the 1911 and 1933 Constitutions), adhering to the Anglo-Saxon tradition (initiated, or at least since the ‘Habeas Corpus Act’ of 1679), enshrines in Article 31, habeas corpus as an extraordinary, expeditious, and privileged guarantee against arbitrary or illegal imprisonment (and detention).

The deprivation of the right to liberty through imprisonment only does not constitute an abuse of power and, consequently, will be legal, contained within the strict parameters of Article 27 §§ 2 and 3 of the Constitution.

 Not every abuse of power justifies habeas corpus. This remedy requires the cumulative verification of two requirements: abuse of power; the existence of illegal imprisonment or detention. The abuse of power is manifested, namely, in the existence of illegal measures of imprisonment and detention decided under especially arbitrary or burdensome conditions.

Imprisonment is illegal when it has not been decreed by the competent court in a judicial decision (reasoned) that applies a coercive measure verified the respective assumptions or in a final judicial conviction, for the practice of an act punishable by law with imprisonment or the application of a security measure; has been ordered by an incompetent authority; has been carried out irregularly; exceeds the duration of the applied coercive measure or the penalty specifically fixed by the court; occurs in places or establishments that are not officially intended for its execution; does not respect the legal regime of the execution of coercive measures or the penalties or security measures depriving liberty.

Among us, it is in the 1911 Republic Constitution (approved by the National Constituent Assembly, in the session of June 19, 1911), that for the first time habeas corpus is enshrined – in Title II (On Individual Rights and Guarantees), Article 3 §31 – influenced by the Brazilian Constitution of 1891 [31. Habeas corpus will be granted whenever the individual suffers or is in imminent danger of suffering violence, or coercion, by illegality, or abuse of power. The guarantee of habeas corpus is only suspended in cases of a state of siege due to sedition, conspiracy, rebellion, or foreign invasion. A special law will regulate the extent of this guarantee and its process.] (transcribing §22 of Article 72 [§22. Habeas corpus will be granted whenever the individual suffers or is in imminent danger of suffering violence, or coercion, by illegality, or abuse of power.] which, in turn, was inspired by the American Constitution, although the Brazilian Code of Criminal Procedure of 1832 already provided for this remedy (Article 340).

The 1933 Constitution reaffirmed habeas corpus as an exceptional remedy against abuse of power, referring its regulation to a special law (reference eliminated in the 1971 revision [Article 8, §4: “Against abuse of power, the exceptional remedy of habeas corpus may be used, under the conditions determined in a special law”].

Observing the constitutional imposition, Decree-Law no. 35.043, of October 20, 1945 [Diário do Govêrno no. 233/1945, Series I of 1945-10-20], established the legal regime of habeas corpus]

From the statement of reasons, due to the consistency of the justifications for the purpose of the remedy, it is transcribed that habeas corpus:

“(…) consists of the intervention of the judiciary to put an end to offenses against the right to freedom by abuses of authority.

An extraordinary remedy, it only finds an opportunity for application (…) when the normal operation of ordinary legal means can no longer effectively guarantee the freedom of citizens.

Habeas corpus is not a means of redressing violated individual rights (…). It is rather an exceptional remedy to protect individual freedom in cases where there is no other legal means to put an end to the illegitimate offense against that freedom. (…) Otherwise, it would be a simple duplication of legal means of appeal.”

Two types of liberatory habeas corpus were instituted, one against abusive detention, the other, differentiated, for illegal imprisonment.

Habeas corpus, in its normal function, is therefore nothing more than – a process intended to restore the person, illegally deprived of their physical freedom by the authority, to the protection of the common process [On Habeas Corpus, “Jornal do Fôro”, Year 9, nos. 70/73, 1945, pp. 228/229.].

A regime that, maintaining the conception and architecture [In the statement of reasons for DL no. 185/72, it was stated: “Because the guarantees of the legality of imprisonment should be inserted into the system of the Code of Criminal Procedure, the regulation of habeas corpus, which was carried out by Decree-Law no. 35043, of October 20, 1945, to comply with the final part of § 4 of Article 8 of the Constitution, was included in it, substantially unchanged. That is to say: at this point, a pure and simple ‘codification’ of existing norms is carried out, and not any change in content (…)], was transferred to the Code of Criminal Procedure of 1929 – Articles 312 to 324.

And it was also transferred to the current Constitution of the Republic, establishing an 8-day period for the decision of the remedy.

In the amendment of the CPP of 1929 that followed the proclamation of the 1976 Constitution, operated by Decree-Law no. 320/76 of May 4, it was established that the exhaustion of the period without a decision would immediately restore the detainee or prisoner to freedom.

And, although simplified (concentrated in two substantive articles, and two procedural ones), the regime passed to the current Code of Criminal Procedure (of 1987) which, in the substantive part concerning illegal imprisonment (Art. 222), did not undergo any changes.

Habeas corpus is, therefore, a guarantee (“right-guarantee”), not an autonomous fundamental right (“right-right”). The legal-constitutional good that habeas corpus aims to protect is the fundamental right to individual freedom, allowing immediate and expeditious reaction “against abuse of power, by virtue of illegal detention or imprisonment.”

Habeas Corpus – In summary, we conclude:

I. The habeas corpus remedy has an extraordinary nature and is independent of the criminal appeals system.

II. In line with its historical matrix, it is intended to put an end to serious situations of illegal detention or imprisonment that are most in need of urgent protection.

III. Included in the chapter “Rights, freedoms, and personal guarantees”, the habeas corpus remedy is a privileged fundamental guarantee (in the sense that it is a subjective right “right-guarantee” recognized for the protection of the right to personal freedom). 

IV. Being the only case of a specific and extraordinary guarantee constitutionally provided for the defense of fundamental rights, habeas corpus testifies to the special constitutional importance of the right to freedom.

V. It is a guarantee of the right to freedom enshrined in the Fundamental Law that governs us, provided for in Article 31 of the Constitution of the Portuguese Republic, with paragraph 1, in the wording given by the 4th constitutional revision – Article 14 of Constitutional Law no. 1/97, published in DR-I.ª Series – A, of 20-09-1997 – stating that “there shall be habeas corpus against abuse of power, by virtue of illegal imprisonment or detention, to be requested before the competent court”.

VI. Being the right to freedom a fundamental right – Article 27, paragraph 1, of the CRP – and deprivation of it may occur, “for the time and under the conditions determined by law”, only in the cases listed in paragraph 3 of the same provision, the remedy in question constitutes a reactive instrument directed at abuse of power by virtue of illegal imprisonment or detention.

 VII. Or, to use the expression of Faria Costa, in CJSTJ 2001, volume 3, page 202, given its nature, it is a “braking institute of the illegitimate exercise of power”.

 VIII. The habeas corpus remedy has the nature of an exceptional remedy to protect individual freedom, having an extraordinary and urgent character “expeditious measure” with the purpose of quickly putting an end to situations of illegal deprivation of liberty, resulting from the illegality of detention or imprisonment, exhaustively listed in the law: in the case of illegal detention, in the cases provided for in the four subparagraphs of paragraph 1 of Article 220 of the CPP and regarding habeas corpus by virtue of illegal imprisonment, in extreme situations of abuse of power or gross, patent, serious error in the application of the law, described in the three subparagraphs of paragraph 2 of Article 222 of the Code of Criminal Procedure.

 M Amélia Cruz