Nationality Law – grounds for denying applications for Portuguese nationality
Fundamental right to citizenship;
National citizens' right to citizenship;
Right to acquire citizenship;
Prohibition on automatic effects of penalties;
Grounds for rejection of applications for portuguese nationality
RULING No. 331/16
19 of May of 2016
The Court found that norms in the Nationality Law (LN) and the Regulations governing Portuguese Nationality (RNP), according to which conviction and sentencing followed by transit in rem judicatam for commission of a crime punishable by a prison term of three or more years under Portuguese law, albeit with application of a mechanism whereby the penalty was dispensed with, constituted grounds for denying an application for Portuguese nationality, were unconstitutional.
Although what was at stake in the present case was not the imposition of a penalty, but rather an obstacle to the continuation of an administrative process designed to acquire Portuguese nationality, in past cases the Constitutional Court had generically held that the imposition of a penalty cannot lead to effects that automatically imply a loss of civic, political or professional rights – a constitutional norm on which it effectively also ended up relying on this occasion. The important element in this case was that the legislator cannot create legal criteria for access to the legal bond constituted by Portuguese citizenship which imply an automatic loss of civic, professional or political rights because of a penalty that was imposed in the past.
Any legal criteria that are linked to the imposition of penalties and are created as part of the process of gaining access to Portuguese citizenship must enable whoever applies the law to weigh up the circumstances in the concrete case at hand.
Whoever is responsible for judging whether the criterion under which applications for Portuguese nationality can be rejected on the grounds of a conviction (and its transit in rem judicatam) for commission of a crime punishable by a prison term of three years or more years is fulfilled or not, cannot be prevented from also attaching value to the other circumstances linked to that conviction and the ensuing sentence – particularly whether the penalty was effectively executed, the length of time between the commission of the crime and the decision, any repeat offences or continuation of criminal activities, and whether the prison term was served in full, or dispensed with.
This concrete review case came about because the Public Prosecutors’ Office is legally required to appeal to the Constitutional Court when other courts refuse to apply a norm on the grounds that it is unconstitutional.
The question of constitutionality here was not entirely new to the Court – something similar had already been the object of Rulings nos. 599/05 of 2 November 2005, and 106/16 of 24 February 2016 (available in Portuguese at www.tribunalconstitucional.pt/tc/acordaos/). In the latter, the Court (a different Chamber from the one that heard the present case) saw fit to use an option given to it by the Court’s Organic Law, thereby avoiding a finding of unconstitutionality: this organic norm allows the Court to base its view of the constitutionality of a norm which a court a quo has refused to apply on an interpretation ‘in conformity with the Constitution’, which the other court must then apply instead of its own original interpretation when the case is returned to it.
In the present Ruling the Court took the position that for the purposes of the concrete review of their constitutionality, the norm or normative interpretation before it should be taken as a given, and that regardless of whether the court a quo’s interpretation was the best one or not, it was not the Constitutional Court’s place to pronounce itself in that regard. The only exception to this would be if the interpretation clearly had no basis in law, which is the only situation in which its Organic Law enables the Court to interpret a norm in accordance with the Constitution. This would indeed have to be an exceptional situation, inasmuch as it would mean that the Constitutional Court was taking the place of the ordinary courts and effectively judging their interpretation of legal norms, as applied in their concrete decisions.
Quoting its own jurisprudence, the Court said that when the Constitution of the Portuguese Republic (CRP) talks about the concept of citizenship (a term it employs instead of nationality), it does not always refer to Portuguese nationality.
There is no doubt that when the CRP says that a declaration of a state of siege or emergency cannot affect the right to citizenship, the latter concept is applied in a broad sense that encompasses both Portuguese and foreign citizens, and one that is attentive to the radical connection the CRP makes between the right to citizenship and the principle of human dignity. However, when it says that everyone is recognised to possess the right to citizenship and can only be deprived of it in the cases and under the terms laid down in the ordinary law, it is referring to Portuguese citizenship. Among other things, this is clear from the fact that the CRP then goes on to say that citizenship can only be withdrawn and civil capacity can only be restricted in the cases provided for by law. Albeit they must respect the parameters set out in International Law, it is up to states to define who their citizens are, and it is up to the ordinary legislator to lay down the details of how people can gain access to Portuguese citizenship.
Portuguese constitutional jurisprudence takes the view that the right to citizenship possessed by nationals is a subjective right. The CRP recognises that other persons can possess a legal expectation to acquire Portuguese nationality, subject to the fulfilment of certain preconditions which the country’s legislator sees as expressing a bond based on effective integration into the Portuguese community.
The legal structure of the “right to gain access” to Portuguese citizenship is very different to that of the subjective right to Portuguese citizenship. According to constitutional jurisprudence, the former’s status as a legal expectation leaves the ordinary legislator much more freedom in which to shape the criteria governing that access, notwithstanding the fact that their definition must comply with the principles of appropriateness, necessity and proportionality, in such a way that the essential core of the right is preserved.
Among the various alleged violations of constitutional precepts that were argued before it, the Court focused on the constitutional norm which precludes any penalty from having the necessary effect of causing the loss of any civic, professional or political rights.
The respondent in the present case had been convicted of a crime of causing an injury to simple physical integrity, but was dispensed from any penalty. The Court said that the ordinary legislator seemed to have overlooked the mechanism whereby a judge can dispense a convicted person from a penalty. As such, the negative criterion whereby Portuguese nationality could not be granted following “conviction and sentencing followed by transit in rem judicatam for commission of a crime punishable by a prison term of three or more years under Portuguese law” required the automatic rejection of applications made by persons thus convicted and sentenced. This in turn meant that the entity with the competence to grant or deny an application for nationality was precluded from adequately evaluating the applicant’s situation in the light of the constitutional principle of proportionality.
The Court therefore found the norm before it unconstitutional.
One Justice dissented from the Court’s decision, arguing that the fact that the Constitution prohibits penalties from necessarily leading to the loss of any civic, professional or political rights cannot be used to gauge the constitutionality of this negative requisite for the acquisition of Portuguese nationality. In his view, when the majority mobilised this constitutional parameter, it disregarded a structural difference between a positive expectation (the “right of access” to Portuguese citizenship) and a negative subjective right (the right not to be deprived of Portuguese citizenship), in that one cannot lose – i.e. be deprived of – something one does not possess in the first place, in this case citizenship. He was also of the opinion that when seen from the viewpoint of the principle of proportionality, the requisite imposed by the norm was not inappropriate, unnecessary or excessive in relation to the intended purpose of ensuring the existence of effective ties to the Portuguese community.
Rulings nos. 327/99 (26-05-1999); 176/00 (22-03-2000); 154/04 (16-03-2004); and 599/05 (02-11-2005).