Whether the status of disabled ex-serviceman or equivalent should be restricted to Portuguese nationals
Scope of the principle of equal treatment.
Legality of restrictions
Principle of equality
Arbitrary criterion for discrimination
RULING Nº 423/2001
9 of October of 2001
Article 15 of the Constitution enshrines the principle of equal rights and duties for all, by making it possible for foreigners (or stateless persons) living in Portugal to enjoy the same rights and be subject to the same duties as Portuguese nationals. This equality is nonetheless restricted by two constitutional provisions: it cannot include political rights or the performance of public duties not predominantly technical in nature, and the Constitution empowers parliament to confer certain rights solely on Portuguese nationals, that is to say to rule out the equality principle's application to certain rights.
Extending the applicability of legislation concerning rights to assistance or benefits to foreigners living in Portugal who, as members of police forces or in a civilian capacity, became invalid as a result of participating in military operations in support of the armed forces, is justified on grounds of justice. The principle of justice means that any discrimination in this field, for which there is no justification on grounds of either necessity or adaptation of the relevant rules, qualifies as arbitrary.
The Ombudsman (Provedor de Justiça) applied to the Constitutional Court for a generally binding finding of unconstitutionality concerning the provisions of legislative Decree no. 43/76 of 20 January and legislative Decree no. 319/84 of 1 October, which restricted to Portuguese nationals the status of invalid member of the armed forces or the equivalent. Legislative Decree no. 43/76 recognised that invalid members of the armed forces were entitled to pecuniary and non-pecuniary compensation and introduced ways and means of furthering their full integration into society. Legislative Decree no. 319/84 extended the applicability of legislative Decree no. 43/76 to Portuguese nationals who, as members of police forces or other similar bodies or in a civilian capacity, had participated in military operations in support of the armed forces in the former overseas territories and had suffered an accident resulting in a reduction in their overall earning capacity.
In his application the Ombudsman argued that these provisions breached Articles 13 and 15 of the Constitution, since they restricted to Portuguese nationals the status of invalid member of the armed forces or the equivalent.
The Court was asked to determine whether:
a. the principle of equality established in Article 15.1 of the Constitution applied to the rights in question (those enjoyed by invalid members of the Portuguese armed forces);
b. those rights were excluded from the principle of equality under the same Article 15.2 of the Constitution or reserved for Portuguese nationals under the Constitution;
c. parliament, availing itself of the possibility afforded at the end of Article 15.2 of the Constitution, could restrict these rights solely to Portuguese nationals.
The Court noted that, since the difference in treatment resulted from adoption of an arbitrary, discriminatory criterion, a breach of the principle of equality was at issue. However, because parliament had defined a separate legal solution on the basis of a nationality condition and since, as regarded that nationality requirement, the principle of equality was discussed and given specific form in Article 15 of the Constitution, the question of constitutionality was examined in the light of that article and the specific rules defined therein, as this special principle absorbed the general principle of equality.
The Portuguese Constitution made membership of the armed forces, which, according to Article 275.2, were to be composed solely of Portuguese nationals, subject to a requirement of citizenship and thereby settled in a completely clear, conclusive manner an issue which had long been a matter of dispute under military law. All this ruled out any possibility of foreigners' choosing to join the Portuguese army because that would entitle them to the invalid status granted under legislative Decree no. 43/76. However, the fact that they were deprived of any choice in this matter did not necessarily mean that they were deprived of the rights to assistance or benefits provided for in the remaining legislation under consideration.
The principle of equality could be seen to apply to the entitlements and privileges granted to all invalid members of the Portuguese armed forces, although these were not rights, freedoms or guarantees and could be deemed not to qualify as fundamental rights; it was doubtful whether it could be said that these rights were guaranteed by the Constitution and did not simply derive from statute law.
By reason of the circumstances in which they became invalid, at a time when they had Portuguese nationality, and the circumstances of their losing that nationality, discrimination against the foreigners in question, who were living in Portugal, was incompatible with the principle of justice that necessarily prevailed in a democratic state governed by the rule of law. There was no justification for it on grounds of either necessity or appropriateness, and it was consequently arbitrary and disproportionate, constituting a breach of the principle of equality enshrined in Article 15.1 of the Constitution.
This part of the legislation under consideration was therefore unconstitutional.
However, given the considerable time that had already elapsed, the difficulty of remedying past situations and the related uncertainty, in many cases, as to how to eradicate the effects of the legislation deemed unconstitutional, a situation which would seriously disrupt public services, the Constitutional Court decided to limit the consequences of this finding of unconstitutionality solely to the period following official publication of the judgment.
The Constitutional Court has a large body of case-law concerning invalid members of the armed forces. Mention can be made of:
Judgment no. 46/86, whereby it found that legislation concerning simultaneous receipt of an army invalidity pension and income from the performance of new duties was not unconstitutional;
Judgment no. 330/93, whereby it found that legislation on calculation of parachutists' service bonuses for retirement pension purposes was not unconstitutional;
Judgment no. 563/96, whereby it found that legislation making it possible, through a revision of benefits granted to invalid members of the armed forces, to apply those benefits to persons who had not requested the revision was not unconstitutional. The aim was to ensure that all army invalids had the possibility of opting for active service (this case-law was moreover recently upheld in Judgment no. 414/01);
Judgments nos. 319/00 and 378/00 concerning the automatic return to active service of invalid members of the armed forces.
The Constitutional Court has also established a line of decisions (not very numerous) on the Constitution's treatment of foreigners (at least as regards the subject in the case under consideration):
in a series of judgments the Court found that legislation which did not require civil servants and public-sector employees in the former overseas territories to have Portuguese nationality in order to be granted a retirement pension was not unconstitutional;
in Judgment no. 54/87, concerning the legal definition of exceptions to the principle of equality between nationals and foreigners, the Court held that the Constitution made it possible for certain rights to be restricted to Portuguese nationals by law, but the law clearly could not do so in an arbitrary, pointless or disproportionate manner, if it was not to invalidate the principle of equality between foreigners or stateless persons and Portuguese nationals.