Urban Planning Law – Legal Regime governing Urban Development and Building (RJUE)
Right to the inviolability of the home;
Partial reservation of legislative competence to Parliament;
Legislative authorisation law;
Urban development interventions;
Exclusive competence of judges
RULING No. 271/17
31 of May of 2017
The Court found no organic/formal unconstitutionality in a norm inferred from the Legal Regime governing Urban Development and Building (RJUE), nor did it find any evidence of material unconstitutionality in the same norm. The norm in question says that for certain purposes, municipal building inspectors are entitled inspect anyone’s residence with or without the householder’s consent, albeit they need a court order to do so. The latter is a special type of warrant – a procedural guarantee embodied in a court order permitting entry to the domicile of a person who has not given his/her consent to that entry. This is a particularly complex normative field, and in reaching its decision the Court considered both the types of municipal intervention that would justify local authority staff entering people’s domiciles, and the articulation of this norm with others that address the same area. One of the factors the Court took into account is that only a judge can issue such warrants. It decided that despite the multiplicity of types of urban-planning intervention that local authorities are empowered to conduct, this requirement for a court order guarantees the inviolability of the home, as configured by the Constitution.
The Public Prosecutors’ Office requested this concrete review of a decision in which the Leiria Administrative and Fiscal Court (TAF-L) refused to apply a norm because it followed jurisprudential guidelines issued by the Constitutional Court itself. In previous Rulings dated 2016, 2012 and 2009, the Constitutional Court found norms identical to the one before it in the present case to be organically unconstitutional. The Constitution situates the matter of rights, freedoms and guarantees among the areas in which the competence to legislate is partially reserved to the Assembly of the Republic (Parliament). This means the government can only issue legislation on this matter when Parliament has authorised it to do so, and this applies to legislation which affects the right to the inviolability of people’s homes. In other words, for the government to legislate on this matter, Parliament must have specifically authorised it to do so in a Law. In this case, the old authorising Law was not couched in terms that would have allowed the government to issue a norm enabling a district judge to grant a warrant empowering the authorities to enter the domicile of a person who did not consent to that entry, albeit they knew that there were activities there which were subject to inspection by municipal officials.
It is accepted constitutional jurisprudence that for a norm to be deemed organically unconstitutional because Parliament has not authorised the government to legislate on the matter in question, the norm must innovate in relation to legislation that was so authorised in the past.
A 1999 RJUE article was amended by a 2015 Executive Law (DL – a type of law that is issued by the government). Unlike the version which preceded this amendment and which the Court found unconstitutional in the earlier Rulings, the new text of the norm is duly covered by an earlier authorising Law, which expressly says that the purpose of the warrant in question is to legitimate entry into the domicile of a person who does not consent thereto and in which activities that are subject to inspection by municipal officials are taking place.
The question of the competence to issue legislation on the organisation and competence of the courts, which is also reserved to the Assembly of the Republic unless it authorises the government to legislate, is a separate one. The Constitutional Court has repeatedly been taking the position that this restriction encompasses all matters concerning judicial competence, including defining which matters can only be heard by the ordinary courts of law and which ones pertain to the administrative and fiscal courts.
In the present case, the Court said that the authorising Law applicable to the original version of the RJUE did authorise the government to legislate on matters concerning the competence of the courts, but that the content and extent of the authorisation were insufficient to allow the government to issue norms granting district judges the competence to issue warrants to enter the domicile of householders who do not consent to that entry and where there are activities that are subject to inspection by municipal officials. This is why the Court had reached findings of unconstitutionality in the earlier Rulings.
However, the authorising Law applicable to the new version of the RJUE norm – i.e. the one under whose authority the government amended the original version – does make provision for this. In organic/formal terms, the government thus now possesses the credentials to make such an amendment.
When it issues legislation under the terms of a parliamentary authorisation, the government is exercising a competence that now pertains to it, and not one that belongs to another entity – i.e. Parliament. In other words, it is not exercising someone else’s competence on its own behalf.
The Court also considered the possibility that the norm before it violated other constitutional parameters. The Organic Law governing the Constitutional Court only allows it to issue findings of unconstitutionality in relation to norms which the court a quo has either actually applied or refused to apply, but does permit those findings to be based on breaches of constitutional or ordinary-law norms or principles other than those on which the lower court relied in its decision.
In casu, the court a quo refused to apply the norm for strictly organic/formal reasons. The Constitutional Court said that if it were to instead evaluate the norm against material constitutional principles, it would thus itself have to directly establish the meaning of the norm in the first place, in a situation analogous to that in which the Court acts in abstract review cases (as opposed to the present concrete review procedure). The Court deemed that this would be neither desirable nor appropriate here, and thus concluded that it was unable to find any sign of material unconstitutionality in the norm.
Two Justices dissented from the Ruling. One was of the opinion that the new authorising Law has not eliminated the organic unconstitutionality to which the Court objected in its 2016 Ruling, in that it doesn’t say anything about the admissibility of restrictions on the right to the inviolability of the home in the shape of inspections designed to verify the legal conformity of building work and the prevention of dangers to public health and safety.
The other dissenter (the Court’s President) also considered that the new authorising Law has not remedied the issue of organic unconstitutionality in relation to the right to the inviolability of the home, because it does not specifically authorise the government to legislate on the matter in question. He based his position on the view that the central argument underlying the majority position was that when Parliament authorised the government to determine which courts are competent to issue the warrant needed to enter a person’s domicile, it thereby simultaneously authorised it to legislate on the question of actually entering a home without consent. The majority found that there is a “teleological and material-law unity” between the two moments in time – the issue of the warrant, and the forcible entry. The dissenting Justice disagreed with this, preferring the position the Court took in the 2016 Ruling – that these are two distinct moments on both the ‘normological’ and the normative levels. He said that it is one thing to legitimate forcible entry into a home as a territorial space in which the householders’ privacy and intimacy are protected; it is another altogether to decide which courts should be competent to issue warrants that are a procedural precondition for that form of invasiveness and breach of privacy.
Rulings nos. 195/16 (13-04-2016); 160/12 (28-03-2012); 145/09 (24-03-2009); and 211/07 (21-03-2007).