Civil and Political Rights – Right to dignity
The Constitutional Court of Portugal decided that the legal provisions that regulate the publicity of the so-called “assisted adult” (maior acompanhado) procedures are not unconstitutional. Indeed, even if these provisions pose a restriction to the right to informational self-determination of the person subject to the procedure, that restriction pursues a legitimate goal and is adequate, necessary and proportional to achieve it.
I – In these Rulings, the Constitutional Court was called upon to assess the constitutionality of article 153 of the Civil Code (CC) and article 893 (1) of the Civil Procedure Code (CPC), which regulate the publicity of the so-called “assisted adult” (maior acompanhado) procedure, in its different stages. This procedure was approved by Law 49/2018, of 14 August, and allows any person who, for reasons of health, disability or own behavior, is unable to exercise their personal rights fully and consciously or to fulfil their duties, to request the necessary assistance measures from the Court. Assistance measures may also be requested by the Public Prosecutor's Office, the spouse, the unmarried partner or any successor relative of the person lacking such measures.
II - Article 153 (1) of the CC provides that the publicity to be given at the beginning, during the course and at the end of the procedure is limited to what is strictly necessary to defend the interests of the beneficiary or third parties, being decided, in each case, by the court. On the other hand, Article 893 (1) of the CPC states that the judge decides, in the light of the case, what type of publicity should be given at the beginning, during the course and at the end of the procedure.
III – In both cases, the ordinary courts had refused to apply these provisions on the grounds of their unconstitutionality. According to their point of view, the establishment of a principle of publicity for this type of procedures, conceived as a solution to be mandatorily considered by the judge and not as an exception, would constitute a violation of the right to informational self-determination enshrined in article 26 (1) of the Constitution of the Portuguese Republic (CRP), as a manifestation of the right to the free development of the personality. The courts considered that publicizing the existence of this type of procedures had the effect of revealing to the public sensitive information concerning the person at stake, namely their health and characteristics of their personality, regardless of their opinion. They also found that this solution implied a discriminatory treatment regarding disabled people, in violation of article 13 (2) of the CRP.
III- Both arguments were dismissed by the Constitutional Court. Regarding the alleged violation of the right to informational self-determination enshrined in article 26 (1) of the CRP, the Court recognized that the solution at stake posed an effective restriction to this right. However, it was considered that this restriction complied with the general requirements provided in the CRP for the limitation of fundamental rights, particularly the ones imposed by the principle of proportionality, provided in Article 18(2) of the CRP.
IV- In the first place, the Court underlined that this restriction pursued a legitimate goal: the protection of the patrimonial interests of the person concerned and of third parties. In fact, the publicity of the existence of an “assisted adult” procedure works as a pre-requirement for the application of a protective framework regarding the validity of the legal acts (especially contractual statements) carried out by the person concerned. During the pendency of this procedure, the legal acts performed by that person may be annulled on the simple grounds that they caused damage to him/her, which constitutes a regime much more protective and favorable than the general regime applicable to legal acts issued by persons who are in a state of temporary incapacity. Thus, publicizing the existence of this procedure serves both the patrimonial interests of the person concerned (by functioning as a pre-condition for the application of this protective framework) and the patrimonial interests of third parties (by making known to the general public the legal status of the persons that they are dealing with, and the possible invalidity of the acts performed by them).
V – In the second place, the Court also stated that the solution at stake satisfied the tests of suitability and necessity comprised by the principle of proportionality. On the one hand, it was considered that publicizing the existence of an “assisted adult” procedure was adequate to achieve the goal at stake, since it clearly contributed to protect the patrimonial interests of the person concerned and of third parties. On the other hand, the Court concluded that there was no evidence that another means could have been adopted for that purpose, with a similar degree of effectiveness and a less harmful impact to the affected right.
VI – In the third place, the Court assessed whether the controlled provisions were, in itself, proportional, and gave an affirmative answer. In fact, it was considered that, by limiting the publicity of the procedure to what is "strictly necessary to defend the interests of the beneficiary or third parties" (Article 153 (1) of the CC) and by attributing to the judge the power to decide “what type of publicity should be given at the beginning [and] during the course [...] of the proceeding, according to the case" (Article 893 (1) of the CPC), the legislator had limited the scope of the regime that was previously in force in three different ways. Firstly, in terms of the existence of the publicity itself, insofar as it delegated that decision to the judge, who may take into account the specific circumstances of the case. Secondly, the legislator limited it in terms of the content of the information that may be disclosed, since it limited it to the dissemination of essential data to make known to third parties the pending of a procedure against a certain person whose outcome may have consequences on the validity of the legal acts carried out by him/her, and hence guaranteeing to that person a facilitated means of annulment of the acts of disposal of assets that are harmful to his/her patrimony. And, thirdly, the legislator restricted it in terms of the means of publicizing the procedure, since it eliminated the two obligations that were previously in force to make the procedure known to the public - the obligation of posting a notice in the court and at the headquarters of the parish council of the defendant's residence and the obligation of publishing an advertisement in one of the most read newspapers in the corresponding judicial district; instead the judge has now the flexibility to choose the appropriate means, according to the specific circumstances of the case.
VI- Lastly, the Constitutional Court also dismissed the argument that the controlled provisions implied a discriminatory treatment regarding disabled people, in violation of article 13 (2) of the CRP. The Court pointed out that, even in cases where the assistance is required “for reasons of health” (Article 138 of the CC), it is not a question of restricting the right to privacy of disabled people because of their condition — that is to say, by assigning them a status of lesser social dignity — but only to enable the application of a special annullability regime essentially aimed at protecting their patrimonial interests against legal acts that they might practice to their detriment during the pendency of the procedure.