Provision of legal aid to a foreigner for the purpose of appealing against a ministerial decision turning down his request for asylum
Principle that Portuguese citizens, foreign citizens and stateless persons all enjoy the same rights
Access to the law
Discrimination based on economic situation
RULING Nº 338/95
22 of June of 1995
The right of asylum is guaranteed by the Constitution for foreigners and stateless persons who are persecuted or in serious danger of persecution on account of their activities in favour of democracy, social or national liberation, peace among peoples and human rights and freedoms; the status of political refugee is defined by law. The right of asylum has three dimensions: an international dimension, through the commitment of a third State, a subjective dimension, for the person persecuted, and an objective dimension, as a means of protecting constitutional values.
The denial of legal aid to a foreigner who wishes to enter an appeal against a ministerial decision turning down that foreigner's request for asylum strikes at the practical core of the fundamental right of appeal as a means of having one's case heard before the administrative courts, in that it discriminates against persons in a situation of financial need.
The right to have one's case heard in court is inherent in the principle of equality.
The Constitutional Court was asked to review a judgment of a court that had found unconstitutional those provisions of the Legal Aid Act which prevented the granting of legal aid, i.e, bearing the lawyer's fee, to a foreigner who, having requested political asylum, wishes to appeal against the administrative decision denying refugee status.
As a result, in practice asylum-seekers in economic or social need are deprived of the right to appeal against an unfavourable administrative decision, given that the presence of a lawyer in the administrative proceedings is obligatory. What is more, the right of appeal is frequently the applicant's last chance to acquire the status of political refugee.
The Constitutional Court ruled that the provision in question was unconstitutional because it violated the principles of equality and of the extension of rights - and above all fundamental rights - to foreigners staying or residing in Portugal, as well as being a breach of the right to have one's case heard in court.
Decisions 316/95, 317/95, 318/95, 339/95 and 340/95 are in line with this decision.