Nationality Law – grounds for denying applications for Portuguese nationality
Automatic effects of penalties;
Loss of civil rights;
Interpretation in accordance with the constitution.
RULING No. 106/16
24 of February of 2016
The Court considered the norms in the Portuguese Nationality Law and the respective Regulations under which the prior conviction of an applicant for Portuguese nationality for an offence that is punishable by a prison term of three years or more constitutes grounds for denying the application. It said they must be interpreted in such a way as to take account of the legislator’s judgement that criminal convictions included on a person’s criminal record should lapse after a certain length of time and that the person should be legally rehabilitated accordingly. The Court took the view that if the norms were to make it impossible for whoever implements the law in question to weigh up whether or not these grounds for denying an application for nationality should apply in a concrete case, or to take account of the time that had passed since the conviction in question, then the norms would be unconstitutional. It said its interpretation of the norms as written is that they do not mean the conviction for a crime possesses an automatic effect – something that would be prohibited by the Constitution; they instead represent the exercise of the competence which the Constitution grants the ordinary legislator to define the criteria for access to Portuguese citizenship, naturally always subject to the limits imposed by the relevant International and Constitutional Laws.
The Court said that the ordinary legislator’s decisions with regard to the lengths of time which must pass before the inclusion of penal convictions on a person’s criminal record definitively lapses on the one hand, and to the objective criteria for acquiring nationality by an act of will on the other, are apparently contradictory. The judgement the legislator made in the first of these two areas would appear to be neutralised by its judgement in the second. It was therefore necessary to resolve this seeming intrasystemic contradiction in harmony with the Constitution and the fundamental right to Portuguese nationality, which is recognised to possess Constitutional-Law status.
The Court considered that it would not be constitutionally admissible to interpret the norms before it in a way that ignored the legislator’s judgement with regard to the lapse of penal convictions included on a person’s criminal record and the person’s ensuing legal rehabilitation. As such, in accordance with its own Organic Law the Constitutional Court handed down an interpretative decision, the terms of which the court a quo was then required to adopt in the concrete case in question.
This concrete review case was brought before the Constitutional Court when the Public Prosecutors’ Office was legally required to lodge an appeal against a decision in which the court a quo refused to apply norms on the grounds that they were unconstitutional. At issue was the fundamental right to a nationality and the constitutional prohibition on requiring penalties to have automatic effects. In this respect the Court said the norms in question cannot mean that a conviction for a crime which is punishable by a prison term of three years or more has any automatic consequences. These norms form part of the normative regime governing the acquisition of Portuguese nationality – an area in which the Constitution requires the ordinary legislator to establish the criteria and prerequisites for the award and acquisition of Portuguese citizenship. The Constitutional-Law nature of the right to gain access to citizenship means the legislator is obliged to create the conditions needed to exercise that fundamental right. Although it falls to the Portuguese State to define who its nationals are, the extent to which the ordinary legislator is free to shape the relevant legislation is conditioned by the imperatives derived from the content of the fundamental right to citizenship, which is a fundamental right of a personal nature and is subject to the regime applicable to constitutional rights, freedoms and guarantees. In addition, the legislator is under a duty to give due consideration to the rest of the values enshrined in the Constitution, and must respect a number of International-Law principles, one of which is that where the grant of nationality is concerned, there must be an effective link between the individual and the politically organised community of which he/she is a part.
The circumstances the law says constitute grounds for denying requests for Portuguese nationality constitute negative prerequisites for the right to acquire citizenship. One of them is any conviction capable of leading to a prison term of three years or more. Inasmuch as this negative prerequisite for denying applications for Portuguese nationality is an ex lege effect of the legal norms in question, it is not prohibited by the constitutional principle that penalties cannot have automatic consequences. As noted above, the Constitution expressly leaves it to the ordinary legislator to configure the legal bond implicit in citizenship. The legal definition of the respective criteria, prerequisites and regime is essential to the practical implementation of the fundamental right to citizenship. It is up to the legislator – and not the Administration or the courts – to weigh up and choose the criteria and prerequisites for awarding and acquiring Portuguese nationality.
In the case before it the Court said that prima facie, the choice of an objective criterion (based on conviction for crimes whose penal characteristics were determined with regard to a given limit) that results from a general, abstract evaluation made by the legislator and not from a case-by-case judgement by whoever applies the norm, was justified.
As such, the Constitutional Court found that there was no unconstitutionality in the norm, when interpreted in accordance with the Constitution.
One Justice concurred with the majority decision, but reached that conclusion by a different path.
Rulings nos. 345/02 (11-07-2002); 154/04 (16-03-2004); 599/05 (02-11-2005); and 605/13 (24-09-2013).