Introduction

On 24 April 2026, the Chamber of Deputies definitively approved Bill A.C. 2886, converting Decree-Law 23/2026 (known as the “Security Decree”, Law 54/2026), which includes provisions relating to public order and security. This new law significantly impacts the principles of legality, proportionality and reasonableness, as well as the protection of fundamental rights. 

In a resolution dated 15 April 2026, the Superior Council of the Judiciary (CSM) issued a non-binding negative opinion on the conversion of the decree, highlighting several critical issues. The issues emphasised most strongly concern the excessively broad discretionary powers granted to law enforcement agencies, and the compatibility of the Security Decree with Article 5 of the European Convention on Human Rights (ECHR), which enshrines the right to liberty and security and prohibits arbitrary deprivation of liberty.

Rights of People on the Move and the Right to Defence

Law No. 54/2026 includes provisions relating to immigration and international protection, among other things. At the same time as the conversion law was enacted, the President of the Republic was compelled to issue a decree amending certain provisions relating to assisted voluntary returns. Article 30-bis of the Decree outlined a veritable deportation strategy, as noted by the Association of Criminal Defence Bar Associations: the provision called for the payment of an extraordinary fee to the defence attorney following the migrant's actual voluntary return (see 2026 Yearbook). The CSM highlighted in its opinion how this mechanism undermined the autonomy and independence of defence attorneys, transforming them into 'repatriation agents' and creating an irreconcilable conflict of interest between protecting the client's rights and the professional's economic interests. 

Another new development in this context, which has not been amended by any corrective legislation, is introduced by Article 29, paragraph 3. This imposes severe restrictions on access to state-funded legal aid (“free legal aid”) for appeals against expulsion and refusal-of-entry orders. The CSM’s opinion characterises these provisions as an attempt to remove migrants' protection from the courts' jurisdiction, rendering judicial appeal a purely theoretical remedy for those without means. This is in clear contrast to the principles of due process set out in Article 111 of the Constitution.

Administrative Sanctions, Bans on Participation in Demonstrations and a New Additional Penalty

Several new provisions regarding public demonstrations and dissent have been introduced. 

Article 9 of Law 54/2026 replaces the criminal penalty for organising a public demonstration without giving advance notice to the police headquarters with an administrative fine ranging from €1,000 to €10,000. The same applies to anyone who disrupts such demonstrations or uses items (e.g. helmets) to conceal their identity. The punishment is also extended to anyone who promotes such demonstrations using electronic communication services, even for private use (e.g. WhatsApp messages).

The CSM notes in its opinion that this provision raises a potential conflict with Article 15 of the Constitution. Since the Constitution protects free communication between private individuals, the question arises as to how promotional conduct can be ascertained without public security authorities violating the confidentiality of communications. Overall, the aim of the provision is to reorganise the penalty system for public demonstrations, prioritising administrative measures over criminal sanctions and thereby strengthening the powers of the public security authorities for the preventive management of public order. Criminal sanctions, which offer greater procedural safeguards, are reserved for the most serious offences.

Furthermore, Article 10 introduces a new ancillary penalty applicable to convictions for certain offences, including violence or resistance against a public official. This penalty consists of a prohibition on participating in similar public meetings and gatherings to those where the offence was committed, and the obligation to report to a police station on days when such gatherings are taking place. Failure to comply with these measures results in the penalty provided for in Article 389 of the Criminal Code being doubled. Doubts have also been raised regarding the compatibility of these provisions with the freedoms of expression and assembly (Articles 10 and 11 of the European Convention on Human Rights (ECHR)). The CSM has also noted a possible conflict with the constitutional right to peaceful assembly (Article 17 of the Constitution). While the CSM acknowledges that the conditions for application are formally consistent with the exceptions permitted under Article 17 (“proven reasons of public safety or security”), it emphasises the need for proportionality between the additional penalty, the seriousness of the offence and the actual danger posed by the individual.

“Initiative searches” and preventive detentions in the context of demonstrations

Article 7 of the Security Decree also falls within the same framework, that is, according to the CSM, the framework of “strengthening the preventive tools of administrative policing to protect public order and safety during demonstrations”. It extends the scope of police powers to conduct on-site searches to include demonstrations and establishes a new form of compulsory escort to police stations. This applies if there are reasonable grounds, based on specific factual evidence, to believe that the individuals being escorted may pose a concrete danger to the peaceful conduct of the demonstration. If the individual is a minor, their parents must also be summoned.

As the CSM has highlighted, these measures impact constitutionally guaranteed rights, the restriction of which can only be ordered by a judge. These rights include personal liberty (Art. 13 of the Constitution), freedom of assembly (Art. 17 of the Constitution) and freedom of expression (Art. 21 of the Constitution). The new law gives law enforcement agencies the power to restrict personal liberty and freedom of movement “outside the direct and preventive oversight of the judicial authority”, thereby expanding the already considerable discretion of police officers, which is not sufficiently constrained by specific regulatory parameters. In both cases, these measures are based on a prognostic assessment of individual dangerousness based on behaviour, criminal records and police reports. This leans towards a preventive security model grounded in abstract predictions of dangerousness rather than concrete actions.

Furthermore, the new regulations impact “the collective exercise of fundamental political rights”, not just freedom of movement. To prevent this from deterring citizens from participating in social and political life, it is essential to adopt a particularly restrictive judicial interpretation of the conditions for applying the law, in line with the guidance of the European Court of Human Rights (ECtHR). This is to ensure the effectiveness of the right to peaceful assembly under Article 11 of the ECHR and prevent its use as “a tool for the administrative management of political and social dissent”.

The CSM had recommended to Parliament that, in addition to providing judicial remedies against such detention (namely the immediate involvement of the Public Prosecutor), an obligation should be introduced for the judicial police to document and justify their actions. This would allow for effective judicial review of the legality of their actions. However, this suggestion does not appear to have been accepted. 

Urban DASPO, deferred arrest in flagrante delicto and presumption of innocence

Article 4 of the Decree introduces paragraph 3-bis to Article 9 of Decree-Law 14/2017, granting the Prefect authority to identify 'urban areas characterised by serious or repeated incidents of crime or illegal activity' and order removal and access prohibition measures against individuals who have been reported for intentional crimes against persons or property, or offences involving narcotics or weapons in the preceding five years. Therefore, the mere existence of a report could be used to justify a measure that restricts an individual's freedom of movement, even before any judicial determination of their criminal liability has been made. This raises questions regarding its compatibility with the principle of the presumption of innocence (Art. 27.2 of the Constitution; Art. 6.2 of the ECHR). 

The European Court of Human Rights (ECHR) has repeatedly affirmed that preventive measures affecting freedom of movement which do not require a criminal conviction must be based on concrete, objectively verifiable circumstances which can justify an individual assessment of dangerousness and which are not based solely on pending criminal proceedings. In Judgment No. 20/2026, the Constitutional Court declared a similar measure (the “aggravated anti-rioting DASPO”, which prohibited access to bars and other establishments throughout an entire province) unconstitutional, finding that its scope of application was excessively broad, lacked sufficient differentiation criteria and was not validated by a judicial authority, as required for the “sports DASPO”. This position is also supported in legal scholarship.

A second amendment to Article 4 extends the authority to make a “deferred” arrest in flagrante delicto, which was previously limited to offences committed during sporting events, to acts of vandalism committed during events taking place in a public place or a place open to the public. An arrest may be made within forty-eight hours of the incident occurring, based on video footage, photographs or other documentation. This represents a significant departure from the standard rules governing arrests in flagrante delicto, which generally require the suspect to be caught in the act of committing the offence (Article 382 of the Code of Criminal Procedure). The Constitutional Court recognised this as a legitimate tool in sporting contexts, provided the evidence "provides certain and unequivocal proof of individual responsibility". However, extending the possibility of a deferred arrest in flagrante delicto to those participating in demonstrations in venues that are far less confined than a stadium could result in the arrest of individuals who are not responsible for the damage caused by other demonstrators, which could discourage citizens from exercising their constitutional rights to freedom of assembly and expression.

Disproportionality of Penalties and Confiscations

Article 3 of the Decree introduces the offense of pickpocketing involving electronic payment methods (Article 624.2 of the Criminal Code) and the crime of “aggravated robbery committed by an organized group” (Article 628-bis of the Criminal Code). This latter new offense, in particular, raises significant constitutional concerns. In fact, the maximum penalty provided for is 25 years’ imprisonment, which exceeds that for the crime of murder (minimum: 21 years’ imprisonment). According to the CSM, equating a property crime with the taking of a human life in terms of punishment violates the principle of proportionality of punishment as set forth in Articles 3 and 27 of the Constitution. 

Equally problematic is the extension of mandatory confiscation of means of transportation and technological devices to “minor” drug offenses (Article 73, paragraph 5, Consolidated Law on Narcotics). The CSM has condemned the automatic nature of this measure, which deprives the judge of any margin of discretion in assessing the instrumental link between the property and the crime. This repressive rigor conflicts with the case law of the European Court of Human Rights (ECHR) regarding the protection of private property (Art. 1, Protocol 1 of the ECHR), constituting a financial sacrifice that is disproportionate to the actual offensiveness of the offense, which, by legislative definition, remains a “minor offense.”

Parental Responsibility

Article 2 of the Decree-Law imposes an administrative fine on individuals exercising parental responsibility for the actions of minors involving the possession of weapons or instruments capable of causing harm. This measure is applied solely on the basis that the minor was found in possession of such instruments, regardless of whether the minor has been convicted of a criminal offence. Instead, it is based on the factual determination made by law enforcement during routine checks in the community.

The CSM strongly contested the provision, as it establishes a form of “liability for the acts of others” that is difficult to reconcile with the principle of personal liability, even when applied in the administrative sphere.

From a technical standpoint, the provision constitutes a form of strict liability based solely on parental status, regardless of actual negligence in supervision or upbringing. This approach risks conflicting with Article 27 of the Constitution, as well as the rehabilitative and social functions of punishment and sanctions. It amounts to nothing more than a tool for the state to exert economic pressure on families who are likely to be vulnerable already, without having any real effect in deterring juvenile delinquency.

Conclusion and overall impact on the rule of law

According to the CSM and various observers and scholars in the field of criminal law, Law No. 54 of 24 April 2026 (converting Decree-Law 23/2026) is not merely a sectoral adjustment, but a systemic reform that fundamentally redefines the balance between authority and freedom. It outlines a security model that prioritises preventive measures based on prognostic assessments of dangerousness over the punishment of specific acts.

Attempts to transform the defensive function into a tool for assisted deportation, curtail the right to free speech and peaceful assembly, introduce forms of objective parental liability and excessively expand sanctions suggest a vision in which social control risks prevailing over individual safeguards. True democratic security must protect citizens without losing sight of limits and the principle of reasonableness.

When applying these laws, it will be the task of the courts to constantly strike a balance in order to prevent the legitimate demand for protection from resulting in an irreversible curtailment of fundamental rights. This would transform dissent or social vulnerability into mere public order issues to be managed administratively with few judicial safeguards.