External judicial review of punitive disciplinary decisions taken by political parties
Expulsion from a political party
Exhaustion of internal remedies
RULING Nº 421/02
15 of October of 2002
The system for "challenging decisions taken by the organs of political parties" (and the corresponding preventive measures) set up under the Act on the Organisation, Functioning and Procedure of the Constitutional Court does not lead to constitutionally inadmissible state interference in the free functioning of political parties because it merely provides for machinery that is essential to safeguard existing constitutional and legal principles. The protection of activists' rights, combined with the constitutional guarantee of access to the courts, demands that it should be possible to submit punitive disciplinary decisions to external judicial review, which, moreover, does not conflict with freedom within the party, provided that the degree of the review is differentiated and that, with a view to safeguarding party autonomy, internal legal remedies have first been exhausted.
Three Portuguese Communist Party (PCP) activists lodged applications challenging a decision taken by the Secretariat of the PCP's Central Committee on 19 July 2002, and ratified the same day by the party's Central Control Commission, and requested that the applications be given suspensive effect. This decision imposed (on two of them) the penalty of "expulsion from the party" and (on the third) the penalty of "suspension from activity within the party for 10 months".
In Judgment 361/02 of 21 August 2002 (delivered by its 2nd Division) the Constitutional Court decided not to hear the applications and the requests for suspensive effect because the internal remedies provided for under the party's statutes with regard to assessment of the validity and lawfulness of punitive decisions had not been exhausted, as required under the Constitutional Court Act; and, where one of them was concerned, because the punitive decision in question which had to be ratified by the PCP's Central Committee, was not in effect in the absence of such ratification.
The applicants' appeal against this judgment was heard by the Constitutional Court sitting in plenary. The applicants argued that "ratification" by the Central Control Commission and the "delegation of authority" by the Central Committee rendered the expulsion measure final and therefore meant that the internal remedies for assessing and reviewing the penalties imposed had been exhausted.
Under the terms of Articles 10.2 and 51.1 of the Constitution, political parties contributed to the organisation and expression of the will of the people, while respecting, inter alia, the principle of political democracy. Although the Constitution conferred certain rights on political parties, it had laid down as principles governing their operation "transparency, democratic organisation and management, and the participation of all its members" (Article 51.5 of the Constitution). These principles derived from the constitutional role played by political parties in the formation, organisation and expression of the citizens' political will: a largely party-based democracy could not dispense with the requirements of democracy within the parties too - this was its functional precondition.
The Act on the Organisation, Functioning and Procedure of the Constitutional Court (Constitutional Court Act) implemented Article 223.1.h of the Constitution (1997 revision) by introducing procedures for "challenging the election of the members of organs of political parties" and "challenging decisions taken by the organs of political parties" (and the corresponding preventive measures). With regard to the latter procedures, a distinction had to be drawn between, on the one hand, decisions that were challenged "on the basis of illegality or the violation of a statutory rule", punitive decisions taken by the organs of political parties in disciplinary proceedings, and decisions "directly and personally affecting" an activist's "rights of participation in the party's activities", and on the other hand, the right of "every activist" to challenge "the party organs' decisions on the grounds of a serious breach of the basic rules relating to the party's competence or democratic functioning".
The Constitutional Court sitting in plenary analysed the system for challenging decisions and the statutes of the PCP and found that the disciplinary decisions taken by the Secretariat of the Central Committee should be appealed against before the Central Committee as the body to which the PCP's Secretariat was subordinate. It considered that the fact that the empowering body and the empowered body were not only different but also held different positions was of political significance. The first of the two was the party's highest authority, vested with statutory powers in the area of punitive measures, and retaining those powers and (political) superiority in relation to the empowered body. The main purpose in delegating authority would simply be to decentralise functions without prejudice to the possibility open to the punished activists of applying to the Central Committee in accordance with the statutes and thus exhausting internal remedies. The intervention of the Constitutional Court was a last resort.
In the light of the foregoing, the Constitutional Court decided to dismiss the appeal and, therefore, upheld Judgment no. 361/02, delivered by its 2nd Division, in which it had decided not to hear the applications to set aside the impugned decision and the requests for suspensive effect (because it could still be challenged before the PCP's Central Committee).