Grant of the benefit of legal aid to foreigners who do not reside in Portugal, are lacking in economic resources and are accused in penal proceedings before the Portuguese courts
Due process of law
Guarantees of an accused person’s defence
Human rights violation
Requirement for reciprocity
RULING Nº 433/03
29 of September of 2003
According to the principle enshrined in Article 32.1 of the Constitution, criminal procedure should be a due process of law; any procedural rules which unreasonably limit the means of defence of the accused should therefore be considered unlawful.
The rule under which a foreign national who does not reside in Portugal, has no financial means and is accused in criminal proceedings pending before the Portuguese courts is refused legal aid in the form of exemption from court fees and other procedural costs, is unconstitutional. However, this unconstitutionality is not derived from any incompatibility, in the abstract, between the reciprocity rule and either the principle of equality or that of non-discrimination. Rather, the unconstitutionality lies in the fact that the lack of such reciprocity results in the practical, unacceptable limitation of the means of defence of the accused and, consequently, the restriction of "legal protection as a right to the safeguarding of rights" or of certain fundamental rights.
This case concerns the constitutionality of the rule relating to the granting of the right to legal protection to foreign nationals who are not resident in Portugal. According to this rule, this right is only granted if the same right is granted to Portuguese nationals under the legislation of the countries concerned. In the present case, according to the decision appealed against, it is this requirement of reciprocity which is unconstitutional, insofar as it would deny a foreigner who had no financial means and was accused in criminal proceedings pending before the Portuguese courts legal aid in the form of total exemption from court fees and other procedural costs.
However, with regard to the decision appealed against, the restrictions based on issues of reciprocity and, in particular, the rule in question violate the principle of non-discrimination [Article 13.2 of the Constitution, which states that "nobody shall be [...] discriminated against [...] by reason of his or her [...] economic situation], the principle of equality [Article 15.1 of the Constitution, which states that "foreigners [...] resident in Portugal shall enjoy the same rights [...] as Portuguese citizens"] and the fundamental right of access to the courts [Article 20.1 of the Constitution, which states that "Everyone is guaranteed access to law and to the courts in order to defend his or her rights and legally protected interests; justice shall not be denied to a person for lack of financial resources"]. In view of the case-law of the Constitutional Court, it may be concluded that the rule in question is incompatible not only with the constitutional provisions governing the rights of the defence, including the right to appeal, but also with those guaranteeing access to the law.
The Constitutional Court has already ruled on the relationship between the constitutional provisions concerning foreign nationals and the question of legal aid. For example, in Judgment no. 962/96, it declared, with general binding force, that the rules prohibiting the granting of legal aid, in the form of legal assistance, to foreign nationals and stateless persons who seek to contest before the courts an administrative decision denying them asylum were unconstitutional because they violated the combined provisions of Articles 33.3, 20.1, 268.4 and 15.1 of the Constitution. It therefore considered, in substance, that since the right to legal protection was a right to the safeguarding of rights, the right of access to the courts incorporated the irreducible core of the principle of equal treatment for nationals, foreigners and stateless persons, enshrined in Article 15.1 of the Constitution. This principle of equality, although it may be limited by exceptions imposed by parliament (Article 15.2 of the Constitution), may not be limited to such an extent that the constitutional status of foreigners is distorted.
More recently, in Judgment no. 365/00, the Court declared unconstitutional the rule denying access to legal aid to an Angolan citizen (who had lost his Portuguese nationality through decolonisation), who took court action to exercise his right to a pension in Portugal, where he did not live, on the grounds that he had worked as an official for the former Portuguese public administration overseas. The Court held that the combined provisions of Articles 13.1, 15.1, 20 and 268.4 of the Constitution had been violated.