Constitutional Court of Portugal

16 UNCONSTITUTIONALITY BY OMISSION Some principles, rights or guarantees that are instituted by the Constitution require legislative measures to put them into practice and make them enforceable. If the legislative authorities do not pass the necessary measures and it is thus impossible to enforce constitutional norms, there is a breach of the Constitution by omission . Who can ask for a review on the grounds of unconstitutionality by omission? – The President of the Republic – The Ombudsman – The President of the Legislative Assembly of an Autonomous Region (if the Region’s rights are at stake). What happens if the Constitutional Court finds that an unconstitutionality by omission does exist? If the Court finds that there is indeed an unconstitutionality by omission, it informs the competent legislative organ accordingly, so that the latter can pass the necessary measures. The principle of the separation of powers means that the Court can never take the legislator’s place and pass the missing legislative measures itself. CONCRETE REVIEW Concrete reviews address norms or normative criteria that have served as grounds for a decision in a concrete case . The concrete constitutional review uses a diffuse system (and not one that is concentrated within the Constitutional Court, as is the case with the ex post facto review). In other words, the concrete review organs include not just the Constitutional Court, but also each and every one of the courts . In this sense, every Portuguese court is a “constitutional court” , deciding the questions of constitutionality that are raised in the concrete cases that come before them; however, their decisions on questions of constitutionality can always be appealed to the Constitutional Court. Indeed, all the courts are under a duty not to apply norms that are unconstitutional, so if they consider that a norm is unconstitutional, they must therefore refuse to apply it. It is the concrete review that gives citizens in general access to the Constitutional Court. Thus, – If, in a concrete case that is being heard by a court, the latter refuses to apply a norm on the grounds that it is unconstitutional, there must be an appeal to the Constitutional Court (which the Public Prosecutors’ Office is obligatorily required to bring). The appeal is always lodged at the court where the decision was handed down, never directly at the Constitutional Court. – If, in a concrete case that is being heard by a court, one of the parties invokes the unconstitutionality of a norm and the court nevertheless applies that norm, because it takes the view that it is not unconstitutional, the party that raised the question can appeal to the Constitutional Court.