Legal experts divided over whether police can disperse protesters during the night.

Legal experts are divided over whether the police are entitled to disperse housing protesters after 12:30 a.m., as they have been doing, following a ruling by the Lisbon Administrative Court recognising protester Renata Cambra’s right to demonstrate overnight and to erect a tent until the 24th, the date of the final overall vote on the 2027 State Budget.

This is conditional on her demonstrating peacefully, making no noise between midnight and 6:30 a.m., and refraining from lighting fires or using pyrotechnic devices.

The judge who issued the ruling rejected the argument that the 1974 decree, which the Public Security Police (PSP) have relied on to put an end to protests, could establish “an absolute and automatic time limit on the exercise of the fundamental right to demonstrate”. She ordered the PSP to refrain from “taking measures to disperse, terminate or remove” Renata Cambra’s protest, provided she complies with the conditions laid down by the court.

The controversial issue is whether the ruling applies exclusively to the protester who brought the legal action or to anyone in the same circumstances. Some legal experts are categorical in arguing that, if the PSP continues to disperse protesters during the night, it is abusing its powers and violating a judicial decision. Others believe the ruling merely grants Renata Cambra the right to protest overnight in a tent.

João Correia, a lawyer and former Secretary of State for Justice, acknowledges that, formally, the ruling only has legal effect in relation to that particular protester. “However, in substantive terms, it applies to everyone in the same circumstances. Unequal treatment of equal situations is not permissible,” he points out. He adds: “The right to demonstrate cannot be guaranteed to one person while being denied to others under the same conditions.”

Praising the legal reasoning underpinning the ruling, João Correia insists: “If the protesters comply with the conditions laid down in the judgment, particularly those concerning noise, the police cannot and should not intervene.” If they do, he adds, they “abuse their powers and undermine the authority of the judiciary”.

João Pacheco Amorim, a lawyer and Professor of Administrative Law at the University of Porto, disagrees. “The judgment is very clear in stating that it applies only to that woman,” he argues. Indeed, the State had contended that the claimant lacked standing to defend collective interests, and the judge emphasised that the proceedings concerned only that protester's individual right. Pacheco Amorim nevertheless acknowledges that, in practice, this could create an “absurd situation” in which the police could disperse all protesters during the night except Renata Cambra. “The judgment has symbolic value, but the State and the police are not legally bound to comply with it,” he maintains.

Pacheco Amorim’s position is consistent with that of the Ministry of Internal Administration (MAI), which stated in a press release that the judgment “clearly concerns an individual and specific situation, limited to the claimant’s request, thereby establishing the conditions under which the different rights and interests at stake may be reconciled”.

In the view of the ministry, headed by Luís Neves, the court “does not assess the legality of police interventions, nor does it recognise a general right to establish permanent encampments in public spaces”. Furthermore, the ruling “also safeguards the authorities’ ability to intervene in situations involving objective danger or non-compliance with the conditions imposed”. A ministry source confirmed that the MAI will not appeal the decision.

Nevertheless, Pacheco Amorim has no doubt that the ruling represents a defeat for the MAI, since, for the first time, a court has stated that the decree governing the right to demonstrate cannot be applied as rigidly as the PSP has been applying it.

The PSP takes a different view. At a press conference, its spokesperson, Sérgio Soares, assured reporters that the police would comply with the court's decision. However, he stressed that the force had previously attempted to negotiate the continued presence of a “symbolic number” of tents, both in Lisbon and Porto, but that the protesters had shown no “capacity to engage” in dialogue.

Pedro Costa Gonçalves, a full professor at the University of Coimbra, believes that the police should neither ignore nor disregard the court’s ruling, although he acknowledges that the MAI’s argument is not incorrect. “There would only be a breach of the judgment in relation to the claimant. Everyone else cannot invoke the decision because they are not parties to the proceedings,” he explains.

Even so, the academic believes that the judgment has implications extending beyond the claimant to the other protesters, since the balancing of competing rights is the same. “Everyone has the right to demonstrate. If the court considers that one person enjoys that right under certain conditions, we can say that everyone enjoys the same right under those same conditions,” argues Pedro Costa Gonçalves, an expert in Administrative Law. He adds: “The right that has been recognised does not depend on the claimant’s particular circumstances; it applies to any citizen.” However, the University of Coimbra professor believes that only Renata Cambra would be in a position to file a criminal complaint in the event of non-compliance with the judgment.

Constitutional law expert Luís Meneses do Vale argues that the right of assembly is, by definition, a right exercised collectively. “If a judge rules, for example, that an order to close an encampment or a time restriction imposed by a local authority or the police is unlawful and infringes fundamental rights, the conduct that the public administration (the police) is ordered to adopt or refrain from is indivisible,” he argues. The police could not act against some protesters while allowing others to remain, since dispersing the protest would violate the court order requiring it to remain in place.

Lawyer Pedro Sousa, who specialises in Administrative Law, takes a different view. He considers that, from a formal standpoint, the court’s decision applies only to the protester who initiated the proceedings, and that the judge makes this clear. However, he acknowledges that implementing the ruling in practice would not be straightforward.

“The police would have to ask everyone who Renata Cambra was, and she alone would be allowed to remain at the protest. Putting this into practice would be extremely difficult.” — Pedro Sousa

Judge Ana de Campos considers that requiring someone to end a demonstration at 12:30 a.m. without any further assessment violates not only the Portuguese Constitution but also the European Convention on Human Rights.

“Maintaining public order in a democratic society requires the authorities to demonstrate a certain degree of tolerance towards peaceful demonstrations, precisely because their effectiveness often depends on their visibility and their ability to draw attention to a particular cause,” she observes. She emphasises that constitutional protection is not limited to demonstrations expressing consensual or socially accepted views.

“On the contrary, in a democratic society, the right to demonstrate is particularly important precisely when it serves to express controversial, inconvenient or critical opinions about the actions of public authorities,” the judge points out.