Note: The court document is in Portuguese. The quotes below are translated with the help of an online translation tool. The original document can be found here: https://drive.google.com/file/d/1t1b01H0Jd4hsMU7V1vy70yr8s3jlBedr/view

On November 11th, 2020, the Court of Appeal in Lisbon, Portugal found the PCR test to be unreliable. It concerned a decision by the regional health authorities on the quarantine of four people, which a lower court had overturned. The Court of Appeal upheld this decision and declared the quarantine illegal. Of the four people, one person had tested positive for COVID-19 using a PCR test. All four were sent into quarantine.

The court makes it clear that it considers the quarantine as a deprivation of liberty. The court writes:

“The question that arises here is based on the fact that the applicants are deprived of their freedom (from August 10 to the present date, as evidenced by the proven facts) and can therefore use the current ‘habeas corpus’ act.”

The habeas corpus act is regulated in art. 220 of the Criminal Code. In the event of illegal detention, a petition for habeas corpus may be filed, with these two fundamentals being important to the case: The detention was carried out or ordered by an incompetent entity and the detention is motivated by a fact for which the law does not allow it.

The medical aspects of the verdict are also far-reaching. The question of additional illegality due to the lack of consent of the applicants to the tests performed (a violation also of the Universal Declaration of Bioethics and Human Rights), the inadmissibility of the performance of the tests by non-physicians and the unsuitability of the PCR test are indicative.

The judgment states:

“Since when is it up to a court to make clinical diagnoses, on your own initiative and based on possible test results? Or the ARS? Since when is the diagnosis of a disease made by decree or by law?”

“A diagnosis is a medical act for which only a doctor is responsible.”

“Thus, any diagnosis or any act of surveying health (as is the case with the determination of the existence of viral infection and high exposure risk, which are covered in these concepts) made without prior medical observation of applicants, without the intervention of a doctor registered with the OM (to evaluate their signs and symptoms, as well as the exams that it deems appropriate to its condition), violates such Regulation, as well as is provided for in article 97 of the Statute of the Order of Physicians, being liable to constitute the crime p. and p. by article 358 al.b) (Usurpation of functions) of the Criminal Code, if dictated by someone who does not have such quality, that is, who is not a registered physician in the Order of Physicians.”

According to the court, the health authority concerned also violated Article 6 of the Universal Declaration on Bioethics and Human Rights, to which Portugal subscribed, by failing to prove that the informed consent required was given by the tested persons.

The court also made some basic considerations regarding the PCR tests:

“On the basis of the currently available scientific evidence, this test is not in itself capable of determining beyond doubt whether the positivity actually corresponds to an infection with the SARS-CoV-2 virus, for several reasons, two of which are of primary importance (to which is added the issue of the gold standard which we will not address specifically:
The reliability depends on the number of cycles that make up the test;
The reliability depends on the amount of viral load present.”

The court’s further comments are very interesting:

“if a person is tested positive by the PCR test when a threshold of 35 cycles or higher is used (as applied in most US labs and European labs), the probability that this person is infected is less than 3%. The probability that the person received a false positive result is 97% or higher.”

The court further states that the threshold value for the cycles used for the PCR tests that are currently carried out in Portugal is unknown.

The court also expressed the fear that “there is an increasing likelihood that COVID-19 tests give false positive results in the current epidemiological landscape, with significant implications for individuals, the health care system and society”.