Brief History of the Constitutional
I – The antecedents
1. The “first collection” 1983-1989
2. The “second collection” 1989-1998
3. The “third collection” 1998-2003
4. The “fourth collection” 2003-2007
5. The “fifth collection” 2007-2012
6. The “sixth collection” 2012-2016
7. The «seventh composition» (2016-2021)
8. The «eighth composition» (2021-2023)
I – The antecedents
The monarchical constitutions of the 19th century did not make any provision for the courts to review constitutionality. This was thus an exclusively political prerogative, inasmuch as the bodies that were charged with ensuring compliance with the Constitution were political ones. Having said this, it should be noted that the issue of whether the courts should control constitutionality was hotly debated over the course of the 20th century, particularly in relation to the dictatorial decrees issued by the executive branch — that is to say, the legally binding decrees which the Government issued when the Cortes (a parliament under the monarchy) was dissolved. At the time a broad swath of opinion grew up in favour of making it possible for the courts to review structural unconstitutionality (when a legal rule is issued by the wrong body). This idea — which Silva Ferrão seems to have been the first to put forward — gained numerous supporters, including Afonso Costa (Lições de Organização Judiciaria, 1901), Judge Francisco José de Medeiros (Sentenças, 1904), Alberto dos Reis (Organização Judicial, 1905), and Marnoco e Souza (Direito Político, 1910). The possibility of giving the “courts the power to determine whether laws are valid” was even contained in the (unsuccessful) proposal for the reform of the Charter that was presented on 14 March 1900.
At the same time, 1907 saw the introduction of a sui generis system for a ‘concentrated’ control of constitutionality in the shape of the Decree of 1 July 1907, the goal of which was paradoxically to prevent the courts from assessing laws. The Decree was published because a judge of first instance had refused to accept that the very first measure issued by the João Franco dictatorship was binding. In order to overcome this problem the 1907 Decree permitted the Supreme Court of Justice, sitting in plenary at the mandatory initiative of the Public Prosecutors’ Office or the option of any party, to review decisions that refused to grant binding force to decrees issued by the Executive Authority. However, this Decree was itself declared null and void by Article 95(3) of the Law of 9 September 1908.
The principle of the jurisdictional control of the constitutionality of laws was born with the 1911 Constitution — the first time this had been done anywhere in Europe. Article 63 stated that “on condition that in the matters that are submitted to judgment, any party challenges the validity of a law or decree which was issued by the executive authority or any corporation with public authority and which has been invoked, the Judicial Authority shall assess its compliance with the Constitution and the principles enshrined therein”. This was thus a ‘diffuse’ system for controlling constitutionality, in which virtually all the ordinary courts were charged with this responsibility within the context of the specific cases before them. But only the ordinary courts (i.e. the ‘judicial authorities’) possessed the ability to refuse to apply unconstitutional laws; and what is more, issues involving constitutionality could not be assessed on a court’s initiative. This model was inspired by the American experience with judicial reviews and by the 1891 Constitution of the Brazilian Republic (which itself followed the US model). However, it was essentially adopted for internal reasons (e.g. the reaction against the previous regime’s practice of issuing dictatorial decrees).
However, proposals to concentrate the responsibility for controlling constitutionality in the hands of the Supreme Court of Justice appeared soon afterwards, during the Constituent Assembly of 1911. At the end of the day they were not accepted, and so the 1911 Constitution maintained a diffuse system for controlling the constitutionality of laws. This system appears not to have had much practical scope, for reasons that varied and were even somewhat contradictory. On the one hand it is said that it didn’t work because unconstitutionality was not automatically an issue and judges could only act on it if one of the parties asked them to; but on the other hand, some say that it was a judicial culture of respect for the law that eventually made any control of constitutionality unviable. In the words of a republican publicist and Member of the Constituent Assembly, the judiciary was “ferociously legalistic” (Fernão Botto-Machado, Crenças e Revoltas, 1908, p. 39); for this reason judges would never have dared to question the constitutionality of legally binding decrees, all the more so in that such an act of “insubordination” could lead to retaliation on the part of the executive branch (we only have to recall the case of the judges who were deported to Goa and Luanda because they went against the Government’s wishes in refusing to criminally indict the former President of the Ministry, João Franco).
Article 122 (later Article 123) of the Political Constitution of 1933 said that “in matters that are subjected to judgment, the courts cannot apply laws, decrees or other statutes which infringe the provisions of this Constitution or breach the principles enshrined herein”. Having said this, paragraphs 1 and 2 placed major restrictions on the extent of the principle of constitutionality:
“(1) — Where the competence of the body from which it emanates or the way in which it is drawn up are concerned, the constitutionality of a legal rule shall only be assessed by the National Assembly, acting on its initiative or that of the Government, and it is the Assembly that determines the effect of any unconstitutionality, which cannot be to the detriment of situations created by cases that have already been decided by the courts.
(2) — The exception contained in the previous paragraph shall only apply to decrees issued by bodies that exercise sovereign power.”
If we compare this system to the one established by the 1911 Constitution, we can see that there were some important steps forward, but at the same time one notorious step backwards. On the one hand the courts — all the courts and not just the ordinary ones — were given the power, without any need for a party to request it, to review the constitutionality of the rules that they had to apply to the concrete cases before them. But on the other hand, there was a clear retrograde move, inasmuch as the courts were not permitted to pronounce on issues concerning the structural and formal unconstitutionality of decrees that had been promulgated. Moreover, where constitutional practice is concerned, it is possible to say that in the dozens of years in which the 1933 Political Constitution remained in force, there were actually only a handful of cases in which the courts refused to apply rules on the grounds of their unconstitutionality.
For this and other reasons, under the 1933 Constitution there were various attempts to concentrate responsibilities for verifying constitutionality in the hands of a single body. Already in 1934, when interviewed in Paris by the Brazilian journalist José Jobim, and possibly inspired by the example of the Spanish Republic, Afonso Costa argued for the creation of a Court of Constitutional Guarantees (see Jobim, José, A Verdade Sobre Salazar, 1934, p. 111). Nor was concentrating the power to review an entirely new idea, inasmuch as since 1933 Article 199 of the Organizational Charter of the Colonial Empire had embodied an unusual experiment that concentrated the control of the constitutionality of the laws governing Portugal’s colonial possessions in the hands of the Overseas Council (Conselho Ultramarino). Marcello Caetano would later propose that this system be extended to the home country by concentrating review responsibilities in the hands of the Court of Conflicts (Tribunal de Conflitos).
In 1959 a Member of the National Assembly, Afonso Augusto Pinto, submitted a draft amendment to the text of Article 123 of the Constitution, which would have made the supreme court of each of the judicial branches (the Supreme Court of Justice, the Supreme Court Martial, and the Supreme Administrative Court) responsible for reviewing constitutionality. The draft was rejected by the Corporative Chamber (Câmara Corporativa)
in a formal opinion whose rapporteur was Afonso Queiró. In the face of the Corporative Chamber’s objections, Afonso Pinto changed his draft in a way that has something in common with the system implemented by today’s Constitution. In an initial phase all the courts would have decided issues of constitutionality, always subject to appeal to the supreme court of the judicial branch in question. However, the draft was rejected, practically without discussion.
Two years later, in 1961, the Democratic Opposition’s (OD) Programme for the Democratization of the Republic proposed that the Supreme Court of Justice form sections to deal with electoral disputes, and the guarantee of constitutional freedoms. In 1969 the lawyer António de Oliveira Braga, who was a Democratic Unity Electoral Committee (CEUD) candidate for the District of Braga, proposed the following addition to the Constitution: “In the event that any question of constitutionality is raised it shall pass to the Supreme Court of Justice as a separate issue, whereupon the said Court’s plenary shall hand down a decision which shall be binding on all courts and administrative authorities”.
Curiously it was to be the Government that opened the way for it to be possible to control constitutionality via the law. Among other things, the 1971 draft amendment to the Constitution added a paragraph 1 to Article 123, stating that “the law shall have the power to concentrate the responsibility for reviewing the unconstitutionality referred to in this Article in the hands of one or more courts, and to grant generally binding force to the decisions issued by such court or courts”. This proposal was clearly intended to liberalize the regime, but it also matched an idea that Marcello Caetano himself had long argued for.
Once the Government’s proposal had been approved, there was no lack of people who wanted to take the opportunity to finally bring in a body that would control the constitutionality of laws here in Portugal. One of them was José Magalhães Godinho, whose book Direitos, Liberdades e Garantias Individuais (1972) proposed the creation of a Court of Constitutional Guarantees. Funnily enough, just a few days before the Revolution on the 25th of April 1974, Marcello Caetano was still working on the text of an Executive Law that would have given the supreme court of each of the judicial branches the competence to review the constitutionality of laws (see Freitas do Amaral, Diogo, O Antigo Regime e a Revolução, 1995, p. 143). However, this law was never published and so the ideal of a concentrated control of the constitutionality of laws never became a reality.
The 25th of April did not do away with the system for reviewing constitutionality that had been enshrined in Article 123 of the Constitution, at least from a formal point of view. According to both legal theory and jurisprudence, that system precisely matched one of the precepts of the Constitution of the New State that were retained by Article 1 of Law no. 3/74 of 14 May 1974. Like the previous system — in which, alongside a control by the courts, there was a political control that was entrusted to the National Assembly — there thus coexisted both a political and a jurisdictional review of the constitutionality of laws. Under the post-revolutionary constitutional laws the former was exercised by the National Salvation Board (Junta de Salvação Nacional), the President of the Republic, and above all the Council of State, which could declare any law to be unconstitutional, with generally binding force; the jurisdictional review was still based on Article 123 of the 1933 Constitution, but, according to the legal theorists, had been extended to cases of organizational and formal unconstitutionality by the abolition of paragraph 2 of that Article.
However, the judicial authorities preferred to maintain a wait-and-see attitude in relation to the vicissitudes of the ongoing revolutionary process. With rare exceptions, the courts failed to wield the enormous power given to them by Law no. 3/74. At least in the period immediately after the Revolution, the 25th of April did not bring a significant increase in the effectiveness of the control of constitutionality — a control, it should be emphasized, which was that imposed by the previous regime’s legislation. This shows that for one reason or another, a purely diffuse system for reviewing constitutionality always found it very difficult to secure a firm foothold in this country. The fact is that a “culture of constitutionality” only began to pervade our judiciary’s practice when it was spread “from above”, by bodies that were specifically designed to defend the Constitution (the Constitutional Commission, and later the Constitutional Court).
It can thus come as no surprise that there were no significant reactions from judges when the First Constitutional Agreement Platform (or ‘Armed Forces Movement (MFA) / Parties Pact’) drastically reduced the courts’ power to review constitutionality in favour of a political control by the Council of the Revolution. In 1975 everything seemed to be leaning towards a concentration of the power to control constitutionality in the hands of this Council, which, under the terms of the MFA/Parties Pact, could decide with generally binding force about the constitutionality of laws and other legislation, while the courts only retained the competence to assess formal unconstitutionality.
Despite this, the same year saw the publication of two works that argued for the creation of constitutional court. In his draft Constitution, which he later gave to the Democratic Popular Party (PPD), Jorge Miranda proposed that there should be a constitutional court, which he defined as “the jurisdictional body that is specifically charged with defending the Constitution”. Besides controlling constitutionality, this court would exercise a variety of powers concerning electoral disputes, the registration of political parties, and the criminal liability of political officeholders. Where controlling constitutionality was concerned, at the request of the President of the Republic the court would be responsible for the prior review of laws or parliamentary resolutions, government decrees, and Council of State resolutions; at the same time, as part of its power to “conduct an exceptional review” (within a case that is being heard by another court), the court would also hear issues of constitutionality raised by the courts or by parties to cases; lastly, at the government’s request the court would hear cases involving the constitutionality of laws issued by autonomous regional bodies. Francisco Lucas Pires’ draft Constitution (A Constitution for Portugal, 1975) also indicated the need for a constitutional court, but did not go into concrete details about its structure or makeup.
As to the political parties, the draft Constitution presented by the Democratic and Social Centre (CDS) made provision for the creation of a constitutional court, which would share the review of constitutionality with the Council of the Revolution. The latter would have been able to review the constitutionality of laws and other forms of legislation and issue decisions with generally binding force where appropriate; the Constitutional Court on the other hand, would rule in concrete cases on the formal unconstitutionality of laws and other legislation, as well as on the organizational, formal or material unconstitutionality of any non-legislative rules and public legal acts.
The Democratic Popular Party’s (PPD) draft said nothing about creating a constitutional court, but still provided for a type of concentrated control of material unconstitutionality by the Supreme Court of Justice. The control of formal and organizational unconstitutionality would have been left to the courts as a whole, thereby maintaining the diffuse review system inherited from the previous regime, and before it, from the 1911 Constitution.
The Socialist Party’s (PS) draft was much less ambitious as regards the way in which the courts and the Council of the Revolution would work together, inasmuch as it simply said that questions of material unconstitutionality would be passed to the Council, while the courts would be fully empowered to decide questions of formal unconstitutionality. Having said this, it should be noted that the Socialist Party proposed the creation of a sui generis body with responsibilities in the field of the prior review of constitutionality — the Council for the Defense of Freedoms and Guarantee of the Constitution (CDLGC). This Council, which was to work with — and to be chaired by — the President of the Republic, was to be made up of eight members, four of whom would be appointed by the Council of the Revolution, and four by the Popular Legislative Assembly. Amongst other things it was to be responsible for issuing a formal opinion on the constitutionality of any draft law or draft executive law.
If we exclude that put forward by the Popular Democratic Union (UDP) — which did not even mention guaranteeing the Constitution — the drafts proposed by the Portuguese Democratic Movement (MDP) and the Portuguese Communist Party (PCP) were the ones that most severely restricted the jurisdictional review of constitutionality. The former limited itself to saying (Article 97): “The courts shall assess the formal constitutionality of legislation”. The latter empowered the Council of the Revolution to pronounce on the constitutionality of laws and other legislation with binding force, even when acting solely on its own initiative, and only allowed the courts the option of refusing to apply legislation on the grounds of its formal unconstitutionality.
Until the 25th of November 1975 (the end of a post--revolutionary crisis) the Constituent Assembly rarely looked at the question of reviewing constitutionality. Indeed, it would have done little good to have speculated about the ideal legal system for reviewing constitutionality when people were convinced that, at least in a transitional phase, the Council of the Revolution would have to play a central role in the task of guaranteeing the Constitution. It was as if the future control model was predetermined by that conviction.
In the meantime the First Constitutional Agreement Platform began to be questioned in the Constituent Assembly, to the extent that after the 25th of November the Socialist Party proposed that it should be renegotiated, and this was immediately accepted by the Democratic Popular Party. There was a broad consensus — at least among the more moderate members of the armed forces and the socialists, social-democrats and centrists — as to the need to rethink how political power, and along with it the review of constitutionality, were organized.
During the renegotiation of the MFA/Parties Pact the Socialist Party proposed the creation of a Supreme Constitutional Court (to be composed of equal numbers of representatives of the Council of the Revolution, the Legislative Assembly, and the Supreme Court of Justice).
The Council of the Revolution’s initial counterproposal — which was written with the support of Miguel Galvão Teles and Luís Nunes de Almeida — went further than the First Constitutional Agreement Platform and rehearsed solutions that were strangely not to be found in the draft Constitutions put forward by any of the different political parties. It provided for a prior constitutional review system that would be in the hands of the Council of the Revolution, while at the same time proposing a mechanism for reviewing unconstitutionality by omission. The Council was to have the ultimate responsibility for deciding issues of unconstitutionality that were raised in the courts. It would be accompanied by a Constitutional Commission chaired by a member of the Council of the Revolution and with the following composition: two thirds of the members would be judges appointed by the Supreme Court of Justice and the Supreme Administrative Court, while the Council of the Revolution would select the other third from among “jurists of recognized competence”. The Commission was to possess the following responsibilities: to issue formal opinions on the constitutionality of legislation that was subject to prior review; to issue formal opinions on any unconstitutionality by omission; to prepare and direct concrete review cases that were heard before the Council of the Revolution, to which the Commission would propose draft rulings.
The Democratic Popular Party put forward a counterproposal, in the drafting of which António Barbosa de Melo played a preponderant role. It pointed towards placing limits on the prior review process and creating a system of appeals to a Constitutional Court made up of the Ombudsman, five Justices from the Supreme Court of Justice, another five from the Supreme Administrative Court, and one member of the Council of Revolution, who would chair the Court and have a casting vote. The system that was embodied in the Second Constitutional Agreement Platform can perhaps be termed a compromise solution between the proposals that were successively made by the Council of the Revolution on the one hand and the objections that were raised by the political parties — especially the Democratic Popular Party — on the other. The solutions that were actually adopted in the Constitution did not stray far from the system proposed in the Second Platform. In reality the Assembly only spent part of the afternoon of the 9th of March 1976 discussing the whole of Title III of the 5th Commission’s text. Entitled “Council of the Revolution”, this included a chapter given over to guaranteeing the Constitution. This Chapter III was passed practically unanimously and without much debate. This was the birth of the Constitutional Commission.
The Constitutional Commission was specifically intended to help the Council of the Revolution control constitutionality. Its job was to issue formal opinions in cases of prior review, successive abstract review, and the review of unconstitutionality by omission. At the same time the Commission acted as the supreme jurisdictional body in matters involving the judicial review of constitutionality. Its rulings were the decision of last instance in appeals against court decisions which refused to apply rules on the grounds of unconstitutionality, or which applied rules that had previously been deemed unconstitutional by the Commission itself.
This “dual nature” (consultative body / jurisdictional body) gave the legal theorists some major headaches when they tried to characterize the Constitutional Commission. While some thought that in the concrete review field the Commission was like a real court, others hesitated to describe it as such. There are, however, two points on which everyone — or almost everyone — agrees: the Commission was not a real, “proper” constitutional court, but was created as a forerunner of such a body.
The Constitutional Commission was formed by a member of the Council of the Revolution, who chaired it and possessed a deciding vote, and eight members. Four of the latter were judges appointed by the Supreme Judicial Council and the Supreme Court of Justice, while four were “citizens of known merit” appointed by the President of the Republic, the Assembly of the Republic, and the Council of the Revolution. The members served for four years, although in practice a lot of them were replaced in mid-term. In fact, when the Commission was abolished, only its President (Ernesto Melo Antunes, who himself had been sporadically replaced by Vítor Alves) and one of the members had remained in office throughout its seven-year existence (1976-1983). However, it is possible to say that generally speaking, the numerous replacements did not have any obvious effects on the direction taken by the Commission’s jurisprudence. Another important element is that one of the members — Professor Isabel de Magalhães Collaço — was the first woman to occupy a jurisdictional post in Portugal.
It should be emphasized that with rare exceptions, there was a “satisfactory articulation” between the Council of the Revolution and the Constitutional Commission, to use the expression employed by one former member, Armindo Ribeiro Mendes. The Council of the Revolution only diverged from the guidelines set out in the 213 formal opinions given by the Commission in 13 cases (6.1 % of the total); and in some of these there were special reasons for doing so — problems of a military nature, politically sensitive matters, or legally controversial issues (cases in which the Commission took its decisions by a small majority).
The Commission produced a great deal of jurisprudence in the concrete review field (481 rulings), but it is not very varied — according to a study by Miguel Lobo Antunes it deals with around fifty different issues of constitutionality. This shows that for the first time in our constitutional history judges were beginning to absorb a “culture of constitutionality”, but were doing so in relation to a limited number of topics. Serving as it did as an instance of appeal, and then only in cases in which a ruling was based on unconstitutionality, we naturally cannot blame the Commission for the lack of diversity in its case law. The issues of unconstitutionality to which the courts proved most sensitive were those linked to their own organization, competences and procedures, and the principle of ‘exclusive jurisdiction’, which were thus the topics that dominated the Constitutional Commission’s casebook.
An overview reveals that the prior review process was employed in a quite moderate and prudent fashion between 1976 and 1983, and cases in which the Council of the Revolution pronounced decrees of the Assembly of the Republic unconstitutional were very rare indeed. In this respect we should note the parsimony with which the President of the Republic and the Council of the Revolution decided to initiate a prior review of legislation passed by the Government or the Parliament (1.5% of the 4,600 decrees sent to the President for signature or enactment between 1976 and 1983); while the Council of the Revolution only issued two recommendations concerning unconstitutionality by omission.
Finally, from the point of view of majority votes, the Constitutional Commission displayed an extremely high level of internal cohesion. It is enough to say that 90% of its formal opinions were approved either unanimously or by at least a two-thirds majority of its members.
At the end of the 1970’s, given that the Second MFA/Parties Pact had provided for a “transitional system”, following which the architecture and powers of the State were to be rethought, there was a broad consensus between the different political parties that the Council of the Revolution should be abolished. This became very clear in 1982, when the Democratic Alliance and the Socialist Party reached an understanding on the revision of the Constitution that provided for the abolition of the Council, the division of its responsibilities between the Constitutional Court, the Council of State, the Government, and the Assembly.
In 1979 Francisco Sá Carneiro presented his contribution to the constitutional review. In A Constitution for the 1980’s. Contribution to a draft revision, he described the creation of a Constitutional Court with the task of reviewing the constitutionality “of any rules issued and acts taken by the political authorities”. When it came to controlling constitutionality, the draft’s main novelty was undoubtedly that it did away with both the prior review and the review of unconstitutionality by omission.
In a 1980 article in the journal of the IDL (Institute Democracy and Freedom) Jorge Miranda also argued for the creation of a Constitutional Court, which he saw as a “nonjudicial court, albeit on the same level as the other courts”. This body’s responsibilities and composition were set out in the draft revision of the Constitution that Jorge Miranda published at the same time. Where the review of constitutionality was concerned, it essentially proposed the following: (a) the existence of a prior review of rules; (b) the existence of a concrete review of constitutionality and legality; (c) the existence of an abstract review of constitutionality and legality; (d) and the existence of a review of unconstitutionality by omission, to be entrusted to the Council of the Revolution, which would have to consult the Constitutional Court before taking its decisions.
In 1981 Barbosa de Melo, Cardoso da Costa and Vieira de Andrade published a study and draft review of the Constitution, in which they particularly proposed the creation of a Constitutional Court with the following makeup: nine justices to be appointed from among jurists of known merit — three by the President of the Republic, three by the Assembly of the Republic subject to an absolute majority of all Members in full exercise of their office, and three by and from among the justices of the senior courts. Prior review and the review of unconstitutionality by omission were to be taken away from the Court, which would retain abstract successive control (albeit an altered version), and concrete control, to include not only hearing appeals against court decisions that refused to apply rules on the grounds of their unconstitutionality, but also against those which applied any rule that a party to the case argued were unconstitutional due to a breach of rights, freedoms or guarantees In both cases all ordinary appeals would have to be exhausted first, while the Public Prosecutors’ Office would be obliged to appeal in the former situation. Lastly, the Court would control the legality of both regional legislation and legislation concerning the autonomous regions.
After the various political parties had published their draft constitutional revisions, in a talk that he gave at the Centre for Judicial Studies (CEJ) in February 1982, Messias Bento, who was a member of the Constitutional Commission, argued that there should be a partially concentrated review of constitutionality, the responsibilities for which would be split between a Constitutional Court and the other courts. He said that the Court should be made up of a mixture of judges and other jurists — the former appointed by the Supreme Judicial Council, and half of the latter each by the President of the Republic and the Assembly of the Republic (by a qualified majority of Members). Messias Bento said that: (a) the concrete review system should continue along lines similar to those of the appeals to the Commission; (b) it should be possible to appeal directly to the Court against decisions which applied rules that a party deemed unconstitutional due to a breach of rights, freedoms or guarantees; (c) an a posteriori abstract control should be retained, and the Court should inherit the responsibilities of the Council of the Revolution in this respect; and (d) the Court should possibly be given responsibilities in relation to electoral disputes and the control of the legality of regional legislation. Finally, Messias Bento thought that retaining the prior review process was “not very desirable”, and that the review of unconstitutionality by omission was “utterly undesirable”.
There were thus various ideas about a future constitutional court, its responsibilities and its composition. Except for the Portuguese Communist Party, which wanted to keep the Council of the Revolution, the various draft revisions put forward by the political parties generally matched the proposals that were being made in relation to the Constitutional Court’s makeup and responsibilities. As Jorge Miranda pointed out, the parties were initially divided on five main issues: (a) whether or not to maintain a prior review (the Democratic Alliance’s draft proposed to do away with it); (b) whether or not to retain a review of unconstitutionality by omission (the Democratic Alliance’s draft also proposed to eliminate this); (c) if the latter review were to be maintained, whether it should be entrusted to a Council of the Republic, which would consult the Constitutional Court (the Republican and Socialist Front’s draft), or whether it should be left entirely to the Court; (d) the system under which the Constitutional Court would take part in concrete reviews (the Republican and Socialist Front’s draft proposed that the Court should hear any appeal on the grounds of unconstitutionality that was not manifestly unjustified or irrelevant to the case, while the other drafts wanted to keep the 1976 appeal system, albeit with some changes); and (e) the composition of the Court, in relation to which the Republican and Socialist Front and the Democratic Alliance agreed that the justices should come from different origins and be appointed by different bodies, but suggested different ways of achieving this — the Republican and Socialist Front wanted fifteen justices (five appointed by the President of the Republic, five by the Assembly of the Republic, and five by the Supreme Judicial Council), whereas the Democratic Alliance proposed nine justices — the President of the Supreme Court of Justice, who would chair the Constitutional Court, two appointed by the President of the Republic, two appointed by the Assembly of the Republic, two chosen by and from among the Justices of the Supreme Court of Justice, and two selected by and from among the Justices of the Supreme Administrative Court. An inter-party summit between representatives of the Democratic Alliance and the Socialist Party came up with the solution to the problem of the composition of the Constitutional Court: it was to have thirteen members, ten of whom would be appointed by the Assembly of the Republic, and three co-opted by the ten. The President of the Republic was to have nothing to do with the choice of Constitutional Justices. This idea was vehemently contested in the Assembly of the Republic by Members like Jorge Miranda and Vital Moreira, while Members Almeida Santos and Francisco Sousa Tavares defended its merits.
Even before the revision of the Constitution was complete the Government was drafting the laws that were to follow it up: the National Defense Law on the one hand, and the Law Governing the Constitutional Court on the other. Prime Minister Francisco Pinto Balsemão and Deputy Prime Minister Diogo Freitas do Amaral gave the task of preparing the latter to two researchers from Coimbra University — António Barbosa de Melo and José Manuel Cardoso da Costa.
As José Manuel Cardoso da Costa was to say later on, writing the Law Governing the Constitutional Court was the culmination of a process that was “extremely simple” and “extremely fast”. Working with total independence and autonomy, Barbosa de Melo and Cardoso da Costa drew up an initial version of the draft, which they immediately put to the Government for consideration. They then presented a second version, which was discussed first at ministerial level and then by a small working party made up of the Deputy Prime Minister, the members of the Government who were most closely linked to the subject, and the authors of the draft themselves. Except for a few small details, the end product, which was embodied in Government Bill 130/II of 30 September 1982, is practically identical to Barbosa de Melo and Cardoso da Costa’s draft.
The constitutional revision resolved the most delicate problems facing the birth of the Constitutional Court: on the one hand, the maintenance of the prior review process and the review of unconstitutionality by omission, and on the other, the (non) intervention of the President of the Republic in the appointment of the Court’s Justices. Even so, many other issues were still pending and had to be resolved by the Law Governing the Court, particularly as regards the various processes for controlling constitutionality, the way in which the Parliament should appoint justices, and the possibility of giving the Court new responsibilities.
Government Bill no. 130/II of 30 September 1982 was presented to the Plenary of the Assembly of the Republic by Marcelo Rebelo de Sousa, in his role as Minister for Parliamentary Affairs. Once the Assembly’s Committee on Rights, Freedoms and Guarantees had concluded on 13 October 1982 that the Bill was fit to be submitted to debate on the general principles and to be put to the vote, the Plenary began its discussions in the presence of the Minister for Parliamentary Affairs and his Undersecretary of State, Luísa Antas.
The debate on the details was conducted by the Ad-Hoc Committee for the Constitutional Court, which was chaired by Almeida Santos and had the difficult job of finding a consensus solution within the short period of ten days. The Committee’s work was predominantly technical in nature and remained aloof from the inter-party negotiations that were going on in the meantime. Even so, it discussed problems that possessed an undeniably political scope, such as the way in which the Constitutional Court Justices were to be appointed.
Once the Law Governing the Constitutional Court was passed, it was still necessary to solve two problems: a political one — how the Parliament was to choose its Justices; and an organizational one — where to house the Court and its support services. It was not particularly hard to resolve the logistical issue: in 1982 the State acquired the Ratton Palace in the Bairro Alto area of Lisbon, and following remodeling and restoration works, the Constitutional Commission’s staff, library and archives were moved there.
Once the Assembly of the Republic had appointed ten of the Court’s Justices, it was necessary to co-opt the other three. This proved to be a long process, which only ended on 28 March 1983, which is when the formation of the Constitutional Court was completed. The Justices — all of them — were installed on 6 April 1983 and then elected the Court’s President and Vice-President the same day. A few weeks later, on 31 May, the Court discretely handed down its first ruling.
1. The “first collection” years 1983-1989
Even though from a legal/formal point of view it is not an absolutely rigorous criterion (inasmuch as a Constitutional Justice’s mandate is a personal one), it is possible to divide the Court’s history into “cycles”, not only in terms of significant changes in the occupants of the bench, but also to match alterations in the text of the Constitution itself and/or the Organizational Law Governing the Constitutional Court.
In this sense it is possible to talk about a “first cycle” of the Court’s life, beginning in April 1983 and lasting until August 1989. During this time the President of the Court was Counsellor Armando Manuel de Almeida Marques Guedes and the Vice-President was Counsellor José Maria Barbosa de Magalhães Godinho. There were several changes among the remaining justices. Initially they were Counsellors Armando Marques Guedes, José Magalhães Godinho, Antero Monteiro Diniz, Joaquim Costa Aroso, Jorge Campinos, José Manuel Cardoso da Costa, Luís Nunes de Almeida, Messias Bento, Raul Mateus and Vital Moreira (appointed by the Assembly of the Republic) and Counsellors José Martins da Fonseca, Mário Augusto Afonso and Mário de Brito (co-opted). Counsellor Costa Aroso died on 24 August 1984 and was replaced by Counsellor Costa Mesquita, who also died while still an active member of the bench on 26 August 1989. In the meantime two Counsellors resigned — Jorge Campinos in 1985 and Mário Afonso in 1988 — and were not replaced.
During this period the Public Prosecutors’ Office was represented at the Court by Assistant Attorneys-General José António Mesquita, Guilherme da Fonseca, Artur Maurício and Mário Torres. Funnily enough, the last three were later to become Constitutional Court Justices.
From a legislative point of view it is worth highlighting the passage of Law no. 143/85 of 25 November 1985, which changed the rules governing the election of the President of the Republic and had knock-on effects on the responsibilities of the Constitutional Court. Naturally, this period also saw the appearance of the first statutes on the Court’s organization and support services (particularly Executive Law no. 149-A/83 of 5 April 1983). The Court also made use of its self-regulatory powers to issue its first internal regulations, such as those on the library and archives.
It is not possible to talk about the whole of the jurisprudence the Court produced during these first six years. However, it is important to note that straight away in the second year of its life the Court faced one of the most delicate issues of all, and one that has confronted practically every constitutional judicial system: abortion. This topic, which was touched on by Ruling no. 25/84, was again taken up by Ruling no. 85/85, and later on, in relation to the constitutionality of a draft referendum on the matter, by Ruling no. 288/98 and by Ruling no. 617/08 recently.
Understandably, a considerable part of the jurisprudence from this period sought to determine the criteria and prerequisites for the admissibility of appeals concerning the concrete review of constitutionality. In this regard, the Uniform Law on Bills of Exchange and Promissory Notes even led to a split between two of the Court’s sections as to whether it was possible to control the extent to which legislative acts complied with international conventions. In 1989 the Law Governing the Court was altered in order to resolve this conflict, in the form of the addition of paragraph i) to Article 70(1). Other rulings addressed the definition of the concept of ‘rule’ for the purposes of the control of constitutionality (Rulings nos. 40/84, 26/85, 156/86, 8/87 and 156/88), the determination of the types of decision that could be appealed to the Court (Rulings nos. 151/85, 211/86, 238/86, 266/86 and 92/87), and other procedural issues (e.g. Rulings nos. 137/85, 170/85, 69/87, 75/87, 193/87, 388/87, 406/87, 123/88 and 227/88). Turning to the definition of the prerequisites for constitutional proceedings, the Court also dealt with the concept of the raising of a problem of constitutionality ‘during a case’ (e.g. Rulings nos. 3/83, 62/85, 90/85, 136/85, 206/86, 2/88, 94/88 and 176/88), and the notion of the ‘exhaustion of ordinary appeals’ (e.g. Ruling no. 8/88).
On the question of the prior review of constitutionality, in its very first year the Constitutional Court had to handle an issue that aroused great controversy at the time — the creation of an extraordinary income tax (Ruling no. 11/83). This case reflected something that was to become one of the characteristic features of the prior review — it is generally within the context of this kind of proceedings that the most polemical or most politically touchy issues are posed. It thus comes as no surprise that it was in this area that there were the greatest splits within the Court itself (as its most senior figures have come to recognize and as some studies have already demonstrated). The fact is — and quoting only Rulings from this six-year period — that while it was hearing preventive review cases the Court was confronted with issues like abortion (Ruling no. 25/84), the basic general elements of the status of public companies (Ruling no. 212/86), the new Code of Criminal Procedure (CPP, Ruling no. 7/87), corporate denationalizations (Ruling no. 102/87), the framework for the State Budget (Ruling no. 205/87), the rules governing labour contracts (Ruling no. 107/88), the delimitation of sectors of ownership (Ruling no. 186/88), the Agrarian Reform (Ruling no. 187/88), the rules governing elections to the European Parliament (Ruling no. 320/89), and the legislation on common land (Ruling no. 325/89). At the same time the prior control of constitutionality was the field in which from its creation onwards, the Court developed an important role in relation to the Portuguese State, producing a large amount of case law on the powers of the self-government bodies of the autonomous regions, and the relationship between regional and national laws.
Successive abstract control was the object of more than a hundred rulings, which can obviously not all be described here. Nevertheless, we can point to the Rulings on issues with a broad scope, such as prescription charges for medicines (Ruling no. 24/83), the staff of the armed forces’ manufacturing facilities (Ruling no. 31/84), the National Health Service (SNS, Rulings nos. 39/84 and 330/89), civil service careers (Ruling no. 78/84), the delimitation of sectors of ownership (Ruling no. 25/85), the ownership of pharmacies (Ruling no. 76/85), abortion (Ruling no. 85/85), teaching the Catholic religion and morals (Ruling no. 423/87), pensions for work-related accidents (Ruling no. 12/88), compensation for nationalizations (Ruling no. 39/88), the removal of organs or tissues from dead bodies (Ruling no. 130/88), expropriations (Ruling no. 131/88), a Defense Agreement with the United States (Ruling no. 168/88), national symbols (Ruling no. 192/88), the regulation of the application of the European Development Fund (Ruling no. 184/89), and fixed-term civil service employment contracts (Ruling no. 185/89).
Within this jurisprudential overview, which focuses on the Constitutional Court’s key responsibility (the review of constitutionality), we can see that right from the very first day one of the Court’s primordial tasks was to affirm and protect fundamental rights. Without attempting to specify the type of procedure involved in each case, we can say that the Court covered some of the most delicate and complex issues facing the doctrine of fundamental rights, such as the definition of rights that are ‘analogous’ to the rights, freedoms and guarantees specified in the Constitution (see Rulings nos. 38/84, 76/85, 156/85, 103/87 and 404/87), the possession of fundamental rights by bodies corporate (Ruling no. 198/85), the possession of fundamental rights by foreigners and stateless persons (Ruling no. 54/87), the immediate applicability of fundamental rights (Ruling no. 90/84), the binding of private bodies (Ruling no. 198/95), reserved legislative responsibility in the regulation of rights, freedoms and guarantees (Ruling no. 248/86), the restrictions on and mere ‘conditioning’ of rights (Rulings nos. 74/84, 248/86, 225/85, 244/85, 37/87, 103/87 and 99/88), the so-called “inherent limits” on fundamental rights (Rulings nos. 81/84, 236/86, 7/87 and 103/87), the assessment of the proportionality of restrictions (Rulings nos. 4/84, 25/84, 225/85, 244/85, 236/86, 282/86, 7/87, 35/87 and 103/87), respect for the ‘essential content’ of rights (Rulings nos. 76/85, 31/87 and 433/87), and the rules governing ‘social rights’ (Rulings nos. 39/84, 181/87 and 449/87). We should also mention the huge volume of jurisprudence that was generated on the principle of equality in the wake of the work of the Constitutional Commission — sometimes recognizing that this principle had been breached
(e.g. Rulings nos. 68/85, 143/85, 80/86, 336/86, 359/86, 341/86, 71/87 and 181/87), on other occasions denying the existence of any unconstitutionality (e.g. Rulings nos. 44/84, 76/85, 142/85, 324/86, 327/86, 423/87, 425/87 and 433/87).
It is possible to say that from the very beginning the Court’s jurisprudence was characterized by its diversity in terms of its subject matter. Even in this first phase, and even restricting ourselves to concrete reviews, we find decisions on fiscal offences and customs and excise disputes (Rulings nos. 13/83 and 29/84), the retirement pensions of ex-civil servants from Portugal’s overseas possessions (e.g. Ruling no. 20/83), driving bans (Ruling no. 28/83), the radio license fee (Ruling no. 29/83), the ‘colony system’ (rentals of agricultural land in Madeira, Ruling no. 1/84), ineligibilities (e.g. Ruling no. 4/84), public transport conductors’ obligation to wear uniform and shave (Ruling no. 6/84), military justice (Ruling no. 16/84), tax infractions (Ruling no. 37/84), extradition (Ruling no. 45/84), criminal process (e.g. Rulings nos. 40/84 on appeals in summary cases, and 219/89), the issue of professional credentials by trade unions (Ruling no. 46/84), self-management (Ruling no. 76/84), international members’ contributions to local social centres (Ruling no. 82/84), the firing of trade union officials (Ruling no. 126/84), the liability of directors of periodical publications (Ruling no. 63/85), the use of radars to police the roads (e.g. Ruling no. 201/85), expropriations (e.g. Ruling no. 341/86), pensions for work-related accidents (Ruling no. 354/86), smuggling (Ruling no. 356/86), political parties’ exemption from court fees (Ruling no. 30/87), the arbitration of disputes between the Electricity Company (EDP) and municipal authorities (Ruling no. 32/87), the statutes governing trade unions (Ruling no. 100/87), labour credits (Ruling no. 148/87), public defenders (Ruling no. 433/87), the sale of fish (Ruling no. 97/88), the investigation of paternity (Ruling no. 99/88), crimes for which bail is not permissible (Ruling no. 192/88), the updating of pensions for work-related accidents (Ruling no. 152/88), the minimum wage in the Azores (Ruling no. 296/88), the television license fee (Ruling no. 115/89), the Agrarian Reform (Ruling no. 280/89), the prohibition on entry into casinos in Macau (Ruling no. 284/89), and the statute governing primary and secondary teaching staff (Ruling no. 313/89).
It should also be mentioned that in 1985 the Court produced a great deal of case law on electoral disputes in the broad sense of the term (in this particular case, to do with local authority elections). This had far-reaching institutional implications, because it meant that for the first time there was a coherent, uniform definition of the rules on this matter.
A special place on the list of important events during this period goes to the holding at the Ratton Place in May 1986 of a formal session to commemorate the 10th anniversary of the Constitution of the Portuguese Republic, in the presence of the President of the Republic, Mário Soares.
Finally, it is worth noting that in the first phase of its existence the Court immediately developed a wide and diverse range of international contacts, the highlight of which was joining the Conference of European Constitutional Courts — an association that had been formed at the beginning of the 1970’s in order to deepen relations between the German, Italian, Swiss, Austrian and Yugoslav Constitutional Courts, and had since become the most representative forum for European constitutional justice. The Constitutional Court of the Portuguese Republic joined this organization almost as soon as it (the Court) began functioning — it started work in April 1983 and was admitted as a full member to the Conference of European Constitutional Courts at the latter’s Madrid meeting in 1984, when Lisbon was chosen as the host city for the Conference’s next gathering. The preparatory meeting took place here in April 1986 and was attended by delegations from Portugal, Austria, Germany, Italy, Spain, Switzerland and Yugoslavia. The 7th Conference of European Constitutional Courts was held at the Calouste Gulbenkian Foundation from 27 to 29 April 1987. Its theme was “Constitutional justice within the framework of the functions of the State, seen in the light of the types, content and effects of decisions on the constitutionality of legal rules”. In addition to the Conference’s members — to whose number the French Constitutional Council and the Turkish Constitutional Court were added on this occasion — the Lisbon meeting was attended by guest delegations from courts in Belgium, Finland, France, Greece, Ireland, Liechtenstein, Luxembourg, the Netherlands, Poland and Turkey, along with representatives from the European Commission on Human Rights and the European Court of Human Rights. In all, nineteen national reports were presented at the Conference. The Portuguese report was written by Counsellor Luís Nunes de Almeida, while the overall report on the meeting was drawn up by Counsellor José Manuel Cardoso da Costa.
[see “first collection”]
The “second cycle” of the Constitutional Court’s life began on 2 August 1989, when a significant group of new Justices was installed. The new President was Counsellor José Manuel Moreira Cardoso da Costa and the new Vice-President Counsellor Luís Manuel César Nunes de Almeida. Counsellors Monteiro Diniz, Messias Bento and Mário de Brito remained from the previous bench, while the new Justices were Counsellors António Vitorino, Armindo Ribeiro Mendes, José de Sousa e Brito, José Manuel Bravo Serra, Maria da Assunção Esteves and Vítor Nunes de Almeida (appointed by the Assembly of the Republic) and Counsellors Alberto Tavares da Costa and Fernando Alves Correia (co-opted). The Court’s makeup during this period was also affected by the resignation of Counsellor Mário de Brito (June 1993) and his replacement by Counsellor Guilherme da Fonseca (November 1993), and by that of Counsellor António Vitorino (March 1994) and his replacement by Counsellor Maria Fernanda Palma (May 1994). Counsellor Monteiro Diniz resigned in October 1997, but was not replaced. Lastly, it should also be noted that Counsellors Guilherme da Fonseca and Maria Fernanda Palma submitted their resignations on 4 March 1998, but their appointments were reconfirmed by the Assembly of the Republic five days later.
The Public Prosecutors’ Office was represented by Assistant Attorneys-General Mário Torres (until June 1993), Maria Adozinda Barbosa Pereira (from July 1991 to February 1992), Carlos Lopes do Rego (from March 1992) and Gustavo Rodrigues (from September 1993 to August 2003).
The passage of Constitutional Law no. 1/89 of 8 July 1989 meant that the Constitutional Court was thenceforth regulated by its own Title in the Constitution (Title VI of Part II), which defines it as the “court with specific responsibility for administering justice in matters of a legal and constitutional nature”. The system for co-opting Constitutional Justices and the list of the Court’s responsibilities were also changed (the latter due particularly to the institution of organizational laws and the national referendum), and a new rule was added in order to make it easier to standardize the jurisprudence of the different sections of the Court. The 1989 revision brought other detailed adjustments to the rules governing the prior review of constitutionality, including the extension of the deadline for requesting such a review from five to eight days, and that of the (normal) period in which the Court must pronounce on the request from twenty to twenty-five days; it determined the outlines of the procedure for decrees of the Assembly of the Republic concerning organizational laws; it made it harder for a reinforced majority in the Parliament to impose its will over a Presidential veto; and it reordered the rules for the successive review of unconstitutionality and extended them to the breach of laws that possess superior force.
Law no. 85/89 of 7 September 1989 altered the Law Governing the Constitutional Court. It revoked the original version of the Law’s rules on the Constitutional Commission; but it also transposed a change brought in by Constitutional Law no. 1/89, which resulted in a modification to the rule governing the recruitment of Constitutional Justices. From an operational point of view it did away with the requirement for weekly ordinary sessions. In procedural terms it transposed the changes In the prior review deadlines that had been made by Constitutional Law no. 1/89, and in the concrete review field created a new type of appeal in cases involving contradictions between legislation and international conventions. The most important changes were designed to introduce mechanisms that would rationalize court procedure, the most significant of which were the ‘preliminary exposé’ by the rapporteur, and the obligation to pay costs in the event that the Court refused to hear an appeal.
In jurisprudential terms this was the period in which there was a substantial increase in the cases brought before the Constitutional Court. It would not be going too far to say that it was during this phase that the country’s ‘legal operators’, beginning with the lawyers, “discovered” the constitutional jurisdiction. The numbers speak for themselves: between 1983 and 1988 the Court handed down 1,623 rulings, whereas in 1992 alone it issued 870, and in 1996 1,257. It was no coincidence that this was also the time when the most senior figures in the judicial system — beginning with the President of the Court himself, in a number of public speeches — warned of the dangers of an abusive use of the appeal on the grounds of constitutionality as a way of preventing court decisions from transiting in rem judicatam. As we will see, in 1998 recognition that this was a problem led to a far-reaching remodeling of the details of constitutional cases, with results that we can now confirm to have been positive.
The fact is that it was during the term of the “second collection” that the Court was faced with a growing number of cases in every area of the control of constitutionality. Suffice it to say that in the first ten years of its life (1983-1993) the Court handed down 3,666 rulings, while in the three years from 1993 to 1996 it gave practically the same number — 3,570. In other words, between 1993 and 1996 the Court issued almost as many rulings as it had done between 1983 and 1993. It was the concrete review that occupied most of the Court’s time — 96% of all the decisions given in relation to legal rules between 1993 and 1996 concerned the concrete control of constitutionality. Within the concrete review field it was the (optional) appeals against decisions that apply rules which a party says are unconstitutional [Article 70(1)b] that were taking pride of place instead of the (mandatory) appeals by the Public Prosecutors’ Office against decisions that refuse to apply rules on the grounds of their unconstitutionality [Article 70(1)a]. This trend started to become visible in 1993-1996, when for the first time since the Court began its work, the number of optional appeals exceeded that of mandatory ones. This sums up a tendency towards a greater use of the optional appeal on grounds of constitutionality by private individuals who are parties to lawsuits. The percentage of successes — i.e. the (total or partial) granting of an appeal —in these private cases was quite low (around 17.4% in 1995 and 10.4% in 1996), in contrast to the success rate of the appeals brought by the Public Prosecutors’ Office (41% in 1995; 82% in 1996).
Despite this significant rise in its case load, it is important to point out that the available statistics show that the “average time” that the Constitutional Court takes to rule on appeals on the grounds of constitutionality is to all extents and purposes the same as that taken both by the other Portuguese courts, and by similar European bodies. Looking once again at 1993-1996, the average duration of an appeal never exceeded 12 months — it was 10 months in 1993 and 12 in 1994 and 1995, before falling drastically to 7 in 1996.
In the jurisprudential field we should note that in 1989 (Ruling no. 182/89), in one of the rare cases involving unconstitutionality by omission that were brought before it, the Court ruled that the Constitution was being breached due to the absence of legislation needed to make the guarantee concerning the definition of the concept of personal data (in a computerized context) viable.
The prior review of constitutionality continued to be a major part of the issues that were capable of generating controversy on levels outside the purely judicial domain. Good examples of this include the Framework Law on Privatizations (Ruling no. 71/90), the incompatibilities affecting Members of the European Parliament (Ruling no. 256/90), regional elections (Ruling no. 1/91), the so-called “labour package” (Ruling no. 64/91), conscientious objection (Ruling no. 363/91), the local authority electoral law (Ruling no. 364/91), privatizations (Ruling no. 365/91), the statute governing the Public Prosecutors’ Office and the Attorney-General (Ruling no. 254/92), the so-called system of “available” (supernumerary) civil service staff (Ruling no. 185/92), the right to strike (Ruling no. 289/92), anti-corruption measures (Rulings nos. 457/93 and 334/94), the system for electing the members of the Supreme Judicial Council (Ruling no. 457/93), state secrets (Ruling no. 458/93), the obligation to carry identity documents (Ruling no. 479/94), the Press Law (Ruling no. 13/95), the control of political officeholders’ income (Ruling no. 59/95), the creation of additional higher education places (Ruling no. 1/97), the creation of computerized oncological records (Ruling no. 355/97), regionalization (Ruling no. 709/97), and the so-called problem of the “Western Tolls” (tolls on motorways in the West of the country, Ruling no. 24/98). Following a line of action that had already been pursued in the previous period, the prior review process provided the Constitutional Court with the opportunity to produce its most important case law in the domain of the powers of the Azores and Madeira Autonomous Regions.
Without trying to distinguish between the different types of case, we can look at some of the jurisprudence which the Court generated in this phase of the full consolidation of Portuguese constitutional justice.
The last quarter of 1989 (we may recall that the “second collection” began work in August of that year) was marked by the rulings that were handed down in relation to electoral disputes in the broad sense of the term (in this case, local authority elections). The next year, under the abstract review heading the Court looked at the Expropriation Code (Ruling no. 52/90), collecting debts owed by RTP (Portuguese Television, Ruling no. 72/90), eligibility to vote (Ruling no. 136/90), the incompatibilities to which lawyers are subject (Ruling no. 169/90), the minimum wage in Madeira (Ruling no. 170/90), RDP and RTP’s regional centres in the Azores and Madeira (Ruling no. 200/90), the statute governing the Inspectorate-General of Labour (IGT, Ruling no. 223/90), the Highway Code (Ruling no. 224/90), the careers of hospital staff (Ruling no. 254/90), working hours (Ruling no. 262/90), flotsam and jetsam (Ruling no. 280/90), teachers’ salaries (Ruling no. 303/90) and military discipline (Ruling no. 308/90). In the concrete review field we can mention the decisions on the end of the ‘colony system’ (Ruling no. 47/90), the responsibilities of courts composed of a single judge (Ruling no. 48/90), the rules governing divorce (Ruling no. 105/90), the updating of rents in the Azores (Ruling no. 133/90), reparation for damages suffered by users of the Portuguese Post Office (CTT, Ruling no. 153/90), contraband (Ruling no. 175/90), the promotion of members of the armed forces (Ruling no. 186/90), administrative disputes (Ruling no. 202/90), police (PSP) trade unions (Ruling no. 221/90), legal aid (Ruling no. 237/90), the rules governing the press in Macau (Ruling no. 245/90), the statute governing the staff of Rádio Clube Português (Ruling no. 269/90), trade union activities (Ruling no. 298/90), the rules governing jurisdictions by value of the suit (Ruling no. 302/90), and rural rentals (Ruling no. 305/90).
In 1991 the Court took important decisions on fundamental rights, the most significant of which included Rulings no. 64/91 (on social bargaining and the rights of workers and workers’ organizations), nos. 65/91 and 363/91 (on conscientious objection to military service), no. 80/91 (on agrarian reform, the principle of equality, access to the courts, and the suspension of the effectiveness of administrative acts), no. 232/91 (on social security), no. 359/91 (on the family and de facto unions), and no. 449/91 (on trade union freedoms). The same year also saw decisions on privatizations (Ruling no. 365/91), as well as on the Rules of Procedure of the Assembly of the Republic (Ruling no. 63/91), and local authority (Ruling no. 364/91). In the regional field the Court pronounced on the new Politico--Administrative Statute of the Madeira Autonomous Region (Ruling no. 1/91).
The following year there were again some important rulings on fundamental rights: Rulings no. 25/92 (access to public office), no. 94/92 (collective labour contracts), no. 107/92 (the State’s civil liability), no. 128/92 (personal rights), no. 151/92 (the right to housing), nos. 238/92 and 249/92 (electoral disqualifications), no. 250/92 (application of the criminal law and criminal procedural law), no. 255/92 (job security), no. 278/92 (state secrets), no. 285/92 (the civil service), and no. 319/92 (military crimes). Under the economic and financial part of the Constitution the Court looked at state intervention in company management (Ruling no. 257/92) and the end of the ‘colony system’ (Ruling no. 327/92). On the topic of the organization of political authority it ruled on the powers of the President of the Republic and the term of office of the Attorney-General (Ruling no. 289/92), as well as on legislative procedure (Ruling no. 289/92), and the problem of the typifying of rule-making acts (Ruling no. 1/92). It also handed down decisions on the organization of the judiciary (Rulings nos. 52/92 and 190/92), and the Public Administration (Rulings nos. 43/92, 53/92 and 177/92).
Carrying on along the lines of the previous years’ jurisprudence, 1993 was marked by the rulings given in the field of fundamental rights: Ruling no. 174/93 (the teaching of religion and morals), no. 264/93 (expropriations), nos. 311/93, 346/93, 381/93 and 806/93 (the right to housing), no. 442/93 (the deportation of foreigners), no. 445/93 (the statute governing Journalists), no. 451/93 (reformatio in pejus in criminal cases), no. 516/93 (civil process), no. 594/93 (public easements), no. 634/93 (working at sea), and no. 748/93 (the right to vote). Under the economic part of the Constitution the Court addressed the issue of the sectors of ownership of the means of production (Ruling no. 444/93). Various rulings dealt with the organization of political and judicial authority, covering areas such as the loss of seats on local authorities (Ruling no. 320/93), the principle of local autonomy (Ruling no. 432/93), the statute governing the remuneration of political officeholders (Ruling no. 448/93), jurisdictional responsibilities (Ruling no. 453/93), the statute governing judges and the Supreme Judicial Council (Ruling no. 457/93), state secrets (Ruling no. 458/93), and eligibility to vote in local authority elections (Ruling no. 689/93). Other leading decisions include those on amnesties (Ruling no. 152/93), the illegality of regulations (Ruling no. 160/93), and the ‘definitive rulings’ of the Supreme Court of Justice (Ruling no. 810/93). 1994 was noteworthy for Rulings that addressed a number of issues of considerable political import, such as the payment of fees for higher education (Ruling no. 148/94), parliamentary inquiries (Ruling no. 195/94), and the obligation to carry identity documents (Ruling no. 479/94). The Court also had the opportunity to pronounce on the issues of extradition and its subjection to the exclusion of the death penalty (Ruling no. 481/94). Other highlights in the field of fundamental rights included Rulings nos. 150/94 (tax infractions), 204/94 (the right to emigrate), 207/94 (appeals against a court order allowing criminal proceedings to proceed), 213/94 (evidence in criminal proceedings), 261/94 (appeals in criminal proceedings), 229/94 (collective labour contracts and participation in the drawing up of labour laws), 231/94 (surviving dependants’ pensions), 306/94 and 329/94 (expropriations), 353/94 and 355/94 (the lapsing of labour contracts), 442/94 (breaches of the Highway Code) and 507/94 (domiciliary searches). In the field of political, administrative and judicial organization the most important rulings included no. 203/94 (the Statute Governing Members of the Assembly of the Republic), no. 226/94 (the guarantee of disputed appeals), no. 235/94 (regional legislative autonomy), no. 303/94 (suspension of the effectiveness of administrative acts), no. 310/94 (the grounds for judicial decisions), no. 330/94 (the loss of local authority seats), and no. 679/94 (military crimes). 1994 was also marked by a case that was unprecedented in Portuguese judicial history — the Attorney-General asked the Constitutional Court to declare the abolition of the organization known as the “National Action Movement” (MAN), because it displayed a fascist ideology. After a number of public sessions that received substantial media coverage, the Court rejected the request due to the absence of an object, inasmuch it was proven that at the time when the request had been made the organization in question had already been definitively dissolved (Ruling no. 17/94).
Of the 761 rulings that were handed down in 1995, there were too many to do with fundamental rights to cover them all here, but some of the most significant were Rulings nos. 9/95 (disputed appeals), 13/95 (the press), 81/95 (gender equality), 83/95 (driving vehicles without being legally qualified to do so), 114/95 (investigating magistrate / trial judge in criminal cases), 152/95 (generic pardons), 156/95 (rentals), 160/95 (compensation for illegal imprisonment), 161/95 (penitentiary law), 174/95 (expropriations), 212/95 (the criminal liability of bodies corporate), 271/95 (civil process), 278/95 (banking secrecy), 339/95 (foreigners’ rights), 417/95 and 474/95 (extradition), 488/95 (minors), 581/95 and 747/95 (workers’ rights), 638/95 (popular action), and 694/95 (determining paternity). Taxes, agrarian reform, and compensation were just some of the subjects that were covered in relation to the economic headings of the Constitution (Rulings nos. 57/95, 225/95, 226/95, 410/95, 452/95 and 756/95). The constitutional organization of political authority and the courts was addressed in Rulings nos. 13/95 (veto), 59/95 (control of the income and wealth of political officeholders), 110/95 (local authority regulations), 115/95 (the Public Prosecutors’ Office), 213/95 (authorizations to legislate), 22/95 (the typifying of forms of law), 336/95 and 472/95 (the statute governing judges), and 637/95 (the remuneratory status of officeholders of the self-government bodies of the autonomous regions ).
With 1,256 rulings, from a purely quantitative point of view 1996 is the year in which the Constitutional Court produced the most case law in its first twenty five years of history. However, it should be said that to a large extent this number was attained due to the fact that the Court received hundreds of cases which addressed the same issue of constitutionality — conscientious objection to military service. It is difficult to choose just a few examples from such an abundant jurisprudence, but we would opt for Rulings no. 4/96 (right of ownership and right to housing), no. 34/96 (military criminal process), no. 115/96 (the right to appeal against administrative acts), no. 184/96 (appeals in criminal cases), no. 345/96 (footballers’ employment contracts), nos. 497/96 and 646/96 (civil process), no. 499/96 (war widows’ pensions) no. 505/96 (the Media Regulator), no. 563/96 (disabled ex-servicemen), no. 575/96 (payment of court fees and the right to appeal in criminal cases), no. 713/96 (gender equality), no. 746/96 (expropriations), no. 866/96 (hunting rules), no. 870/96 (paternal authority), no. 951/96 (workers’ rights) no. 962/96 (right to asylum), no. 966/96 (collective labour contracts), no. 967/96 (military crimes), and no. 1146/96 (extradition). In the economic field the Constitutional Court ruled on the issue of privatizations (Ruling no. 867/96), that of labour contracts for sportspeople (Ruling no. 929/96), and copyright-related tax benefits (Ruling no. 1057/96). Courts martial (Ruling no. 21/96), authorizations to legislate (Ruling no. 114/96), laws with superior force and the relationship between laws and treaties (Ruling no. 365/96), the loss of local authority seats (Ruling no. 573/96), the autonomous regions (Ruling no. 583/96), the ‘definitive rulings’ of the Supreme Court of Justice (Ruling no. 743/96), and parliamentary legislative procedure (Ruling no. 868/96) were a few of the subjects that the Court dealt with in relation to the constitutional organization of political authority and the authority of the courts.
In 1997, when cases lasted an average of around eight months, the Constitutional Court once again turned its attention to a number of issues that were the object of great public interest, such as police violence (Ruling no. 17/97), the right to good name and reputation (Ruling no. 113/97), the deportation of foreigners (Ruling no. 181/97), telephone tapping (Ruling no. 407/97), and access to higher education (Ruling no. 1/97). The Court also continued to look at questions that have repeatedly been put to it over the years: the right to belong to a trade union (Ruling no. 118/97), guarantees in criminal cases (Rulings nos. 121/97 and 604/97), expropriations (Ruling no. 261/97), the right to privacy (Ruling no. 263/97), equal rights in civil cases (Ruling no. 266/97), pardons (Ruling no. 301/97), computerized information and privacy (Ruling no. 355/97), the right to housing (Ruling no. 486/97), and access to the courts (Ruling no. 487/97). In the economic field there were two especially important rulings on tax matters (nos. 497/97 and 501/97). To offer a very brief summary of a large number of cases, the grounds for judicial decisions (Ruling no. 56/97), the decisions of the Supreme Judicial Council (Ruling no. 347/97), police regulations (Ruling no. 381/97), pardons (Ruling no. 444/97), the powers of the autonomous regions (Rulings no. 496/97 and 711/97), and the creation of administrative regions (Ruling no. 709/97) were areas related to the organization of the State in which the Court was called upon to act in 1997.
This period of the Constitutional Court’s life was marked by the commemorations to do with its tenth birthday. These included a ceremonial session in the Ratton Palace’s Grand Salon (or Audience Room) on 31 May 1993, which was attended by the President of the Republic, Mário Soares; and an international academic debate under the heading ‘Legitimacy and Legitimation of Constitutional Justice’, which took place at the Calouste Gulbenkian Foundation on 28 and 29 May and whose summaries were published in the form of a book. 31 May also saw the issue of a medal commemorating the Court’s birthday and a brochure on the main aspects of its work. The public prosecutors, Justices’ assistants and other members of the Court’s staff joined in the celebrations by publishing a monograph entitled Estudos Sobre a Jurisprudência do Tribunal Constitucional [(Studies on the Jurisprudence of the Constitutional Court), Lisbon, 1993].
Internationally the Court played an active part in supporting the constitutional courts or equivalent institutions of the new democracies in Eastern Europe. In doing so it continued the work that had begun during the presidency of Counsellor Armando Marques Guedes, who, among other initiatives, gave a talk in Budapest in April 1989 as part of an international conference on the institutional guarantees of constitutionality. This support for the constitutional courts in Eastern Europe was given in the shape of a large number of bilateral contacts and via the European Commission for Democracy through Law (Venice Commission), which was formed as the result of a broad agreement at the Council of Europe. In 1991 the Venice Commission decided to create a documentation centre (Centre on Constitutional Justice). Its purpose was to compile and disseminate the case law of the Various constitutional courts around Europe, particularly via the Bulletin de Jurisprudence Constitutionnelle, which was launched in 1993, and the CODICES database, which was created and based at the Commission’s Secretariat in Strasbourg. The Portuguese Constitutional Court’s representatives there are the staff of the Documentary Support and Legal Information Unit (NADIJ) — initially Miguel Lobo Antunes, and then António Duarte Silva e Manuela Baptista Lopes, who are currently the liaison officers to the Venice Commission’s Centre on Constitutional Justice. We should also note that three former Constitutional Court Justices (Counsellors Marques Guedes, Vital Moreira, Cardoso da Costa and Fernanda Palma) are or have been on the Venice Commission.
The Court also continued to belong to the Conference of European Constitutional Courts, and attended the meetings in Ankara in 1991 (8th Conference, on the hierarchy of constitutional rules and their function of protecting fundamental rights, which was the object of a report by Counsellor Cardoso da Costa), Paris in 1993 (9th Conference, entitled ‘Constitutional Protection and International Protection of Human Rights: competition or complementarity’, with a Portuguese report by Counsellor António Vitorino), and Budapest in 1996 (10th Conference, with two separate themes: the separation of powers, and freedom of expression, the reports on which were written by Counsellors Guilherme da Fonseca and Maria Fernanda Palma respectively).
In addition to actively participating in the development of constitutional justice in Europe, the Portuguese Constitutional Court took a close interest in the creation of an Ibero-American area of cooperation in the field of the control of constitutionality. On the occasion of the commemorations of the fifteenth birthday of the Spanish Constitutional Court in October 1994, there arose the idea of organizing periodic meetings of the constitutional courts and similar bodies from both sides of the Atlantic. In January 1995 this concept was refined at a meeting in Cartagena de Indias in Colombia, which was attended by the presidents of the founder courts. Lisbon was chosen to host the 1st Conference of Constitutional Justice of Ibero-America, Spain and Portugal, whose sessions took place in the Hall of the Senate at the Assembly of the Republic from 10 to 14 October 1995. Its theme was “Constitutionality review bodies: the constitutional system’s functions, responsibilities, organization and role in relation to the other State authorities”, and the meeting was attended by representatives from Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Paraguay, Portugal, Spain and Venezuela. The Ecuadorian Court of Constitutional Guarantees attended as an observer, and the Italian Constitutional Court as a guest. The Portuguese report was written by Counsellor Armindo Ribeiro Mendes and the general report by Counsellor Fernando Alves Correia. The 2nd Conference of Constitutional Justice of Ibero-America, Spain and Portugal was held in Madrid in 1998. The Portuguese report, which was entitled Critérios, condições e procedimentos de admissão no acesso à justiça constitucional na perspectiva da sua racionalidade e funcionalidade [Admission criteria, conditions and procedures for access to constitutional justice, seen from the perspective of their rationality and functionality], was drawn up by court assistants under the supervision of Counsellor Messias Bento.
Lastly, we should recall that it was during this phase —more precisely in 1990 — that the Court decided to implement Article 30-A of its Organizational Law, which deals with the Justices’ formal attire, by approving the models for the gown and collar to be worn by Constitutional Court Counsellors.
[see “second collection”]
The so-called “third mandate” of the Justices of the Constitutional Court began in 1998. On the 11th of March the Assembly of the Republic appointed Counsellors Artur Maurício, Guilherme da Fonseca, José de Sousa e Brito, José Manuel Bravo Serra, Maria Fernanda Palma, Maria Helena de Brito, Maria dos Prazeres Couceiro Pizarro Beleza, Messias Bento, Paulo da Mota Pinto and Vítor Nunes de Almeida to the position of Justice. On the 16th they in turn co-opted Counsellors José Manuel Cardoso da Costa, Luís Nunes de Almeida and Alberto Tavares da Costa. Counsellors José Manuel Cardoso da Costa and Luís Nunes de Almeida remained President and Vice-President of the Court respectively.
In order to stagger the terms of the Constitutional Justices — an objective that was shared by virtually all of Europe’s constitutional courts, so as to avoid the abrupt departure “en masse” of all or a significant proportion of the occupants of their benches — Law no. 13-A/98 of 26 February 1998 established a new ballot system for choosing which Justices should step down. This solution was all the more necessary following the 1997 revision of the Constitution, which said that the Justices should be appointed for a single term only and thus made it more urgent to create mechanisms for ensuring the Court’s continuity. Counsellors Messias Bento and Vítor Nunes de Almeida resigned on 11 September 2001 and were not immediately replaced, so under the terms of Article 5 of Law no. 13-A/98 it was only necessary to select two more Justices. The ballot was held at a public session of the Court on 30 July 2002 and resulted in the stepping down of Counsellors Guilherme da Fonseca and José de Sousa e Brito. In addition, Counsellor José Manuel Cardoso da Costa resigned on 12 August 2003, so there were then five empty seats on the bench and the process of staggering new appointments was underway.
The Public Prosecutors’ Office continued to be represented by Assistant Attorneys-General Carlos Lopes do Rego and Gustavo Rodrigues, who were joined at the PPO’s Office at the Constitutional Court in September 2002 by Assistant Attorney-General Luís Bonina.
The beginning of this new phase of the Court’s life was marked by the 1997 revision of the Constitution, which made some important changes to the Statute Governing the Constitutional Justices. In particular it extended their term from six to nine years, but simultaneously precluded the renewal of that term. To a certain extent, this move was made in response to the opinion that had been voiced by a number of people that this would tend to enhance the Justices’ independence.
Just as important was the alteration of the Law Governing the Constitutional Court by the aforementioned Law no. 13-A/98 of 26 February 1998. It is safe to say that this was the most far-reaching modification of the Court’s modus operandi since its creation. We will look at some of the changes — above all those designed to increase the speed of the Court’s procedures — in a moment. However, for now we can single out the fact that the Assembly of the Republic must now appoint the Justices from a predetermined list of candidates. At the end of the day this goes back to the idea in the original draft that Cardoso da Costa and Barbosa de Melo had presented in the run-up to the Court’s creation, but was turned down by the Assembly of the Republic on the grounds that it would limit Members’ freedom of choice.
Where the Court’s legislative framework is concerned we should also note the passage of Executive Law no.303/98 of October 1998, which regulated the system of Constitutional Court costs, and Executive Law no.545/99 of 14 December 1999, which dealt with the organization, composition and operation of the Court’s secretariat and support services (and revoked Executive Laws nos. 149-A/83 of 5 April 1983, 172/84 of 24 May 1984, 72-A/90 of 3 March 1990, and 91/92 of 23 May 1992). Organizationally, as it says in its own preamble, Executive Law no. 545/99 essentially limited itself to reordering the provisions of scattered earlier legislation and did not make any significant changes to the Court’s internal structure. The most important changes had already been made by Law no.13-A/98, particularly as regards the creation of the position of Secretary-General of the Constitutional Court, whose first occupant was António Baginha Miranda.
The Court’s internal organization currently comprises the Secretary-General, the Judicial Secretariat, the Administrative and Financial Division, the Documentary Support and Legal Information Unit, the IT Centre, and the Offices of the President, the Vice-President, the Justices and the Public Prosecutors. The number of support staff in the Justices’ offices (one assistant and one secretary each) has not changed, despite the significant rise in the number of cases brought before the Court.
Law no. 13-A/98 of 26 February brought in new tools to help make the concrete review process faster:
• the Court has been split into three non-specialized Sections;
• the Public Prosecutors’ Office’s ability not to appeal decisions that match guidelines which the Court has uniformly laid down in its existing case law has been widened;
• if an appellant does not respond to the rapporteur’s invitation/order (as described by Article 75-A of the Law Governing the Court), the appeal is now immediately deemed void;
• a rapporteur may now issue a ‘summary decision’ if he believes that the Court cannot hear the object of the appeal or that the issue is a simple one, particularly because it has already been the object of an earlier decision by the Court or is manifestly without grounds; this ‘summary decision’ can also be just a simple referral to the Court’s previous jurisprudence;
• a ‘summary decision’ can also be given when an appellant does not provide all the elements referred to by Article 75-A of the Law Governing the Court;
• the rapporteur’s powers have been broadened and made more precise;
• cases are sent to the other Justices in the same section to look at, with a memorandum or draft ruling already written by the rapporteur;
• if it is clear that a request has been made in order to prevent the fulfilment of the decision handed down in the appeal or the complaint, or to prevent the case from returning to the court a quo, the provisions of Article 720 of the Code of Civil Procedure will be observed, but the decision in the case will only be issued once the Court costs, the fines the Court has imposed and the compensation it has ordered have been paid;
• when the Court does hear the object of appeals covered by Article 70(1)b and f, it will now order costs to be paid by the losing party, whereas the previous system only required costs to be paid if the Court refused to hear the object of the appeal;
There are data which indicate that the mechanisms introduced by Law no. 13-A/98 (especially the rapporteur’s ‘summary decisions’) have been a success. Suffice it to say that a considerable number of appeals have been the object of decisions of this type; but more importantly, that the objections to those decisions have rarely been successful, and in a huge majority of cases the Conference has upheld the rapporteur’s summary decision. What is more, the decisions that have not been appealed to the Conference significantly outnumber those that have been objected to. This enables us to conclude that generally speaking, the rapporteur’s ‘summary decision’ is a useful way of furthering the speed of appeals, and has already made it possible to definitively close a very substantial number of cases in a fast and effective fashion.
Turning to the Court’s judicial work itself, it is interesting to note that the majority of the jurisprudence on procedural issues naturally became the object of ‘summary decisions’ by rapporteurs and only rarely of full rulings.
Another innovation introduced by Law no. 13-A/98 involved giving the Court’s President the task (which he can delegate to the Vice-President) of drawing up a ‘memorandum’ to serve as the basis for the Plenary’s discussion of successive abstract review cases. This mechanism not only made it possible to catch up on the backlog of such cases to a significant extent, but also to handle the influx of new ones that occurred particularly in 1999 and 2000, when the Court received 57 requests for successive abstract reviews. The main rulings handed down in this field during this period concern issues such as pardons for politically motivated infractions (Ruling no. 510/98), regional planning documents (Ruling no. 517/99), the electoral system in the Azores and Madeira (Rulings nos. 630/99 and 254/00), the status of casino employees (Rulings nos. 197/00 and 436/00), the regulatory authority of civil governors (Ruling no. 413/00), freedoms concerning trade unions (Ruling no.437/00), the limits on regional indebtedness (Ruling no.532/00), extradition (Ruling no. 1/01), police regulations (Ruling no. 83/01), the statute governing teachers (Ruling no. 153/01), the ownership of pharmacies (Ruling no. 187/01), the statute governing members of the Republican National Guard (GNR, Ruling no. 269/01), the status of foreigners (Rulings nos. 423/01, 72/02 and 345/02), the Council of Court Officials (COJ, Ruling no.73/02), the approval of the Audit Court (Ruling no.140/02), official press releases and press freedom (Ruling no.242/02), the private security business (Ruling no. 255/02), data on workers’ health and the right to privacy (Ruling no. 368/02), and the compulsory acquisition of minority shareholders’ stakes in companies (Ruling no. 491/02). We should point out that many of the parameters that have resulted from the redrawing of the powers of the autonomous regions in the 1997 review of the Constitution are now handled under the heading of the abstract review of constitutionality.
It is important to note a relative fall in the number of requests for prior reviews, and that those which were made, touched particularly on the issues of the public domain (Ruling no.330/99), international conventions (Ruling no.494/99), the rules governing the security forces (Ruling no.23/02), regional finances (Ruling no.36/02), ‘caretaker governments’ (Rulings nos. 36/02 and 65/02), alterations to the Law on Television (Ruling no. 254/02), the holding of bullfights in the Azores Autonomous Region (Ruling no. 473/02), and the ‘social insertion income’ (RSI, Ruling no. 509/02). The public impact they had means that the rulings in which the Court pronounced on the constitutionality of the Assembly of the Republic’s resolutions concerning draft referenda on the issue of abortion (Ruling no. 288/98), the Treaty of Amsterdam (Ruling no. 531/98), and the concrete implementation of administrative regions (Ruling no. 532/98) also deserve individual mentions.
From a thematic point of view (this section includes rulings issued by the previous collection of Justices, whose term ended in March 1998), and without trying to categorize them by type of case, we can point to a number of decisions that were taken in 1998 in relation to fundamental rights: Ruling no.13/98 (appeals in military criminal cases), Ruling no. 125/98 (appeals against contested administrative acts), Ruling no. 181/98 (suspension of the effectiveness of administrative acts), Ruling no. 191/98 (the use of fax communication in court cases), Ruling no. 222/98 (rural rentals), Ruling no. 274/98 (urbanistic criminal law), Ruling no. 372/98 (an accused’s duty to answer about his criminal record), Rulings nos. 383/98 and 384/98 (the guarantee of disputed appeals), Ruling no. 435/98 (petition for the recognition of a right), Ruling no. 506/98 (the bankruptcy process), and Ruling no. 663/98 (the crime of issuing a bad cheque; imprisonment for debt). In the economic field the Court addressed the problems of the retroactivity of tax laws (Ruling no. 275/98), the radio fee (Ruling no. 354/98), and the customs and excise release (Ruling no. 504/98). In relation to the organization of political authority and related matters (in this case, judicial authority in particular) the rulings on the separation of powers (Ruling no. 24/98), the Audit Court (Ruling no.255/98), arbitration tribunals (Ruling no. 262/98), and the Supreme Judicial Council (Ruling no. 510/98) deserve a special mention.
In 1999 the leading rulings on fundamental rights included decisions on criminal process and guarantees of a defense (Rulings nos. 15/99, 96/99, 135/99, 275/99, 285/99, 288/99, 298/99 and 533/99), the right to a decision in civil cases within a reasonable period of time (Ruling no. 228/99), the family (Rulings nos. 236/99 and 286/99), work and social security (Rulings nos. 73/99, 302/99, 318/99 and 683/99), the media (Rulings nos. 16/99 and 54/99), ownership, urbanism and town and country planning (Rulings nos. 194/99, 329/99 and 331/99) and finally, the rights of persons who are subject to administrative acts (Rulings nos. 104/99, 245/99 and 254/99). Two especially important rulings were those on electoral polls (Ruling no. 178/99) and the payment of benefits to former holders of political office (Ruling no. 545/99).
The following year criminal process continued to be one of the key areas for the Court under the fundamental rights heading (Rulings nos. 54/00, 88/00, 122/00, 363/00, 370/00 and 597/00), while there were also some important decisions on the right to housing, and rentals (Rulings nos. 24/00, 45/00 and 420/00), work-related accidents (Ruling no. 150/00), protection of confidence in the law (Ruling no. 160/00), the effects of sentences (Ruling no. 176/00), the principle of the right to pleading and counter-pleading in civil cases (Ruling no. 177/00), freedoms concerning trade unions (Ruling no. 197/00), the right of ownership (Ruling no. 205/00), the right to reputation (Ruling no. 249/00), mutualist association (Ruling no. 279/00), military justice (Ruling no. 291/00), and adoption (Rulings nos. 320/00 and 597/00). Under the heading of financial and tax matters we should note Rulings nos. 96/00, 185/00 and 312/00 in the fiscal domain, Ruling no. 4/00 (regional budgets), and Ruling no. 352/00 (regional finances). Apart from one on the electoral system in Madeira (Ruling no.199/00), in a tendency that has begun to form in the last few years, the largest number of decisions on the organization of the State concerned issues related to judicial authority. Ruling no. 2/00 addressed the Supreme Judicial Council, and Ruling no. 129/00 the statute governing judges. Besides criminal process — and during a certain phase, the labour law —administrative law and the guarantees available to those who are the object of administrative acts continued to be one of the areas on which the Court was frequently asked to pronounce. The Rulings in this domain include nos. 30/00, 124/00, 222/00, 248/00, 269/00, 287/00, 412/00 and 556/00.
In 2001 — and limiting ourselves now to the concrete review field — the Court’s jurisprudence continued to be heavily slanted towards civil and criminal procedural law. Examples include Rulings nos. 6/01, 19/01, 27/01, 30/01, 59/01, 66/01, 76/01, 77/01, 94/01, 97/01, 101/01, 116/01, 132/01, 137/01, 148/01, 169/01, 183/01, 189/01, 192/01, 202/01, 203/01, 205/01, 255/01 and 258/01, among many others. Other types of procedural law that also took up the Court’s time involved military justice (Ruling no. 64/01), labour law procedure (Ruling no. 330/01), and administrative and tax disputes (Rulings nos. 40/01, 63/01, 92/01, 99/01, 103/01, 185/01, 201/01 and 283/01). On other levels the Constitutional Court dealt with issues related to the statute governing members of the Republican National Guard (GNR, Rulings nos. 26/01 and 91/01), expropriations (Rulings nos. 29/01, 131/01, 219/01 and 243/01), the civil service staff remuneration system (Ruling no. 30/01), the crime of running an illicit gambling business (Ruling no. 93/01), the crime of fishing in the closed season (Ruling no. 95/01), the rules governing labour contracts (Rulings nos. 117/01 and 242/01), de facto separations (Ruling no.118/01), the property register (Rulings nos. 145/01 and 261/01), urban rentals (Rulings nos. 147/01, 280/01, 402/01, 465/01 and 543/01), the statute governing retirement from the civil service (Ruling no. 173/01), bankruptcies (Rulings nos. 194/01 and 471/01), notaries’ fees (Ruling no.200/01), fixed term labour contracts (Ruling no. 237/01), workers’ meetings (Ruling no. 276/01), Corporation Tax (IRC, Ruling no. 284/01), the liability of Portuguese Railways (CP, Ruling no. 301/01), the statute governing court officials (Ruling no. 316/01), the local rates (CA, Ruling no. 363/01), the loss of local authority seats (Ruling no. 382/01), the expiry of hunting licenses (Ruling no. 422/01), civil service careers (Ruling no. 426/01), the revaluation of corporate assets (Ruling no. 451/01), the demolition of unlicensed construction works in the Arrábida Park (Ruling no. 457/01), the statute governing judges (Ruling no. 460/01), ship berthing fees (Ruling no. 470/01), the Organization for the Wardship of Minors (OTM, Ruling no. 525/01), port labour (Ruling no. 550/01), and incompatibilities to which lawyers are subject (Ruling no. 588/01).
The beginning of 2002 was marked by a vast output of case law on electoral disputes and, where the Court’s key work — the review of the constitutionality of legal rules — is concerned, decisions on the committal of persons who cannot be held liable for their acts (Ruling no. 42/02), the regulation of paternal authority (Ruling no. 56/02), collective labour agreements (Ruling no. 58/02), the exemption of the minimum guaranteed income from attachment (Ruling no. 62/02), disabled ex-servicemen (Rulings nos. 63/02, 161/02, 175/02 and 233/02), court costs (Ruling no.77/02), the property register (Ruling no.78/02), the approval of the Audit Court (Rulings nos. 94/02 and 147/02), gambling (Ruling no. 99/02), collective labour contracts (Rulings nos. 101/02 and 123/02), tax credits (Rulings nos. 109/02, 128/02, 132/02 and 153/02, among others), notaries’ fees (e.g. Rulings nos. 115/02, 210/02, 273/02 and 274/02), expropriations (Rulings nos. 121/02, 155/02 and 172/02), taxpayers’ guarantees (Ruling no. 130/02), illegal fishing (Rulings nos. 171/02 and 485/02), social security credits (Ruling no. 193/02), military crimes (Ruling no.194/02), fixed term labour contracts (Ruling no. 201/02), rentals (Ruling no. 202/02), labour credits (Ruling no. 230/02), the right to privacy (Ruling no. 241/02), de facto unions (Ruling no. 275/02), the protection of maternity (Ruling no. 277/02), the crime of abuse of fiscal trust (Rulings nos. 307/02 and 383/02, among others), the classification of judges (Ruling no.331/02), the Agrarian Reform (Ruling no.332/02), court costs (Ruling no. 349/02), State property (Ruling no. 374/02), road accidents (Ruling no. 376/02), bankruptcies (Rulings nos. 377/02 and 414/02), the lump-sum payment of devalued pensions (Ruling no. 379/02), telephone tapping (Ruling no. 411/02), the competitive admission of teaching staff (Ruling no. 412/02), tax benefits (Ruling no. 416/02), the calculation of taxable profit (Ruling no. 451/02), civil service promotions (Ruling no. 455/02), the crime of false statement (Ruling no. 469/02), and Personal Income Tax (IRS) deductions (Ruling no. 489/02). In addition to all this, the numerous rulings on issues involving procedural law (criminal, civil, administrative, labour, and military) would be impossible to list here.
As it had done in the past, in this phase the Constitutional Court sought to keep a close eye on the developments in the theory of constitutional justice. It did so primarily by keeping in constant touch with the academic world — to which many of its Justices and assistants are linked. It is in this context that in addition to supporting publications on constitutional law and opening its valuable library — with more than 10,500 monographs and around 470 different journals — to teachers and researchers, the Court and its staff have helped with the holding of events like the Round Table of the International Association of Constitutional Law (June 2000), the Luso-Brazilian Constitutional Law Days (January 2001), and the Colloquium ‘25 Years of the Constitution / 25 Years of Constitutional Justice’. The latter took place at the Ratton Palace on 27 November 2001 and began with a formal ceremony attended by the President of the Republic, Jorge Sampaio. The Portuguese Association of Constitutional Law (APDC) is also based at the Court, as is the Association of Constitutional Court Assistants (AATRIC), which was founded in September 2002.
The Constitutional Court also pursues its policy of openness towards the legal community by widely disseminating its case law, both via its official journal and by publishing the Rulings of the Constitutional Court (Acórdãos do Tribunal Constitucional), of which 71 volumes have appeared to date At the same time the Court launched its own website in March 2000, where, among other information, it provides the full text of its jurisprudence. There have also been some major innovations in the IT field, such as the complete computerization of its library’s database and the creation of a computerized case management system.
It is worth noting that the Constitutional Court is entirely computerized and that all its staff have their own workstations, which are linked to one another via an internal network.
In terms of its physical facilities the Court inaugurated a new annexe to the Ratton Palace, which is designed to house the offices of the Public Prosecutors, the Justices’ assistants, and the staff of the Documentary Support and Legal Information Unit.
From the point of view of its international relations the Court continued to participate in the Conference of European Constitutional Courts. Representatives attended the 9th Conference (Warsaw, 1999) on freedom of worship and conscience, and the 12th Conference (Brussels, 2002). The Portuguese report on the former was written by Counsellor José de Sousa e Brito, and that on the latter (“As relações entre os tribunais constitucionais e as outras jurisdições nacionais, incluindo a interferência, nesta matéria, da acção das jurisdições europeias.” [The relations between constitutional courts and other national jurisdictions, including the interference in this respect of the action of the European jurisdictions]) by the assistants in the President’s Office, under the supervision of Counsellor Luís Nunes de Almeida.
At the same time the international contacts that had already been established in the past were deepened. Of particular import during this period — to mention only the contacts at the multilateral level — was the Court’s participation in the 3rd Conference of Constitutional Justice of Ibero-America, Spain and Portugal, which took place in Guatemala in November 1999, the Portuguese report on which was written by the assistants in the President’s Office.
It is important to recall that as part of the creation of what can be called an “area of Latinity” in the world of constitutional justice, there have been a number of tripartite meetings between the Spanish, Italian and Portuguese Constitutional Courts. These annual gatherings began in Madrid in 1999 (‘The interpretation of laws, between the constitutional jurisdiction and other jurisdictions’), followed by Lisbon in 2000 (‘Temporal effects of rulings of unconstitutionality’), Rome in 2001 (‘Effects and consequences of rulings of unconstitutionality’), and Madrid again in 2002 (‘The constitutional configuration of local autonomy’).
Finally, we should mention the decision that the Court’s Plenary took on 14 November 1995, to create a gallery of oil paintings of its former Presidents. On 4 June 1997 the Plenary decided to commission portraits of Counsellors Armando Marques Guedes and José Manuel Cardoso da Costa from the painter Luís Pinto Coelho. This decision formed part of a policy, which the Constitutional Court has pursued since its creation, of promoting the acquisition of works of art to enrich the interior of the Ratton Palace. The first step in this direction was taken in 1988, when a public request for competitive tenders resulted in the commissioning of Eduardo Batarda to produce a drawing to serve as the base for a tapestry which the Portalegre Tapestry Factory (MTP) was to make for the Audience Room. In addition to these works of art, the Palace is decorated with a variety of items that are on loan from a number of Portugal’s palaces and museums (particularly the National Museum of Antique Art [MNAA] and the Ajuda Palace).
[see “third collection”]
During this phase, on 28 November 2002 the Assembly of the Republic appointed Counsellors Benjamim Silva Rodrigues, Carlos Pamplona de Oliveira, Gil Galvão and Mário Torres, while Counsellor Rui Moura Ramos was co-opted on 2 April 2003. On the 23rd of that month Counsellors Luís Manuel César Nunes de Almeida and Rui Manuel Gens de Moura Ramos took over the Presidency and Vice-Presidency of the Constitutional Court of the Portuguese Republic, respectively. Counsellor Alberto Tavares da Costa resigned on 11 September 2003, and Counsellor Vítor Manuel Gonçalves Gomes was co-opted on 28 November of the same year.
[see “fourth collection”]
On 6 September 2004 the Constitutional Court suffered an unhappy occurrence — the death of its President, Counsellor Luís Nunes de Almeida.
In plenary session on 7 September 2004, the Justices praised Counsellor Luís Nunes de Almeida’s long and unrivalled contribution to constitutional justice in Portugal, first as a member of the Constitutional Commission, then in an outstanding presence as a Justice of the Court from the moment of its creation, and finally as its President since April 2003.
Government Decree no. 23-A/2004 of 7 September 2004 declared a national day of mourning in memory of the President of the Constitutional Court, whose qualities were underlined in the preamble to the text: “The death of Justice-Counsellor Luís Nunes de Almeida, President of the Constitutional Court, leaves the country a poorer place. A man of exceptional qualities, academic and eminent jurist, he had been a Justice of the Constitutional Court since 1983, its Vice-President since 1989, and its President since 2003. He served the Portuguese Republic in an outstanding manner, and his tenure at the Constitutional Court was marked by his impartiality and rigueur. Counsellor Luís Nunes de Almeida leaves an inestimable legacy at the Constitutional Court and a deep mark on the Portuguese judicial system. He deserves public homage. As such, the Government hereby decrees a national day of mourning”.
In a session on 18 October 2004, the Court’s Justices co-opted Counsellor Maria João Antunes to the seat left vacant by Counsellor Luís Nunes de Almeida. A few days later, on 21 October 2004, they elected Counsellor Artur Joaquim de Faria Maurício to the Presidency of the Court. Counsellor Artur Maurício — the first career judge to become President of the Constitutional Court — was installed on 28 October 2004.
The Court’s jurisprudence on the concrete review of constitutionality continued to address a variety of problems to do with constitutional procedure, particularly in the form of complaints to the Conference against summary decisions by rapporteurs. The most fundamental issues concerned the lump-sum payment of devalued pensions (Rulings nos. 21/03 and 60/03), labour law procedure (Rulings nos. 45/03 and 78/03), the deadline for disputed appeals (Ruling no. 46/03), commercial companies (Ruling no. 47/03), the right to holidays (Ruling no. 52/03), illicit foreign exchange acts (Ruling no. 57/03), bankruptcies (Ruling no. 64/03), expropriations (Ruling no. 86/03), legal aid (Ruling no. 89/03), the crime of false declaration (Ruling no. 91/03), the splitting of rural real estate (Ruling no. 106/03), campsites (Ruling no. 107/03), Personal Income Tax (IRS) deductions (Ruling no. 108/03), easements that preclude construction (Ruling no. 138/03), the crime of fraudulent receipt of benefits (Ruling no. 139/03), disabled ex-servicemen (Rulings nos. 153/03 and 277/03), pensions for work-related accidents (Ruling no. 155/03), tax benefits for the disabled (Ruling no. 173/03), public works contracts (Ruling no. 179/03), the effects of corporate privatizations on labour contracts (Ruling no. 194/03), co surviving dependants’ pensions in de facto unions (Ruling no. 195/03), video-surveillance (Ruling no. 207/03), Estate Duties (IS, Ruling no. 211/03), tax crimes (Ruling no. 225/03), debts to the health services (Ruling no. 233/03), labour law offences (Ruling no. 236/03), the labour agreement at the Lajes Airbase (Rulings nos. 273/03, 308/03, 309/03 and 330/03), the property register (Ruling no. 284/03), the rules governing summonses in civil cases (Ruling no. 287/03), forbidden advertising (Ruling no. 348/03), and the right of ownership (Ruling no. 374/03).
A brief list of the leading decisions handed down in 2004 includes subjects like the statute governing solicitors (Rulings nos. 7/04 and 15/04), maximum periods of remand in custody (Ruling no. 13/04), promissory contracts of purchase and sale (Ruling no. 22/04), the public telephone service and services that are subject to additional fees (Ruling no. 35/04), the abuse of fiscal trust (Ruling no. 54/04), access to the courts (Ruling no. 91/04), surviving dependants’ pensions and de facto unions (Ruling no. 88/04), the procedural issue of rejection of a judge (Ruling no. 143/04), prostitution and the crime of living on a prostitute’s earnings (Rulings nos. 144/04 and 303/04), the merger of commercial companies (Ruling no. 200/04), the crime of slander (Ruling no. 201/04), the separation between church and state (Ruling no. 268/04), the public water domain (Ruling no. 353/04), and health examinations at work (Ruling no. 403/04).
During this period the Court was asked to rule on some very important issues in the prior review domain — particularly the rules governing political parties (Ruling no. 304/03) and the Labour Code (CT, Ruling no. 306/03). It also dealt with questions such as the public maritime domain (Ruling no. 131/03) and the placement of teachers in the Azores Autonomous Region (Ruling no. 232/03). In the successive abstract review field the Court addressed issues such as the General Tax Law (LGT, Ruling no. 84/03), tax benefits for the disabled (Ruling no. 188/03), and finally, the State Budget (Ruling no. 360/03). Highlights in 2004 included topics like the Tax On Oil-related Products (ISPP, Ruling no. 70/04), the opening hours of trading establishments (Ruling no. 289/04), the Nurses’ Order (OE, Ruling no. 373/04), and the limits on regional indebtedness (Ruling no. 567/04).
In 2005 the Court handed down 723 Rulings a figure which clearly shows the case load that falls to the thirteen Constitutional Court Justices. Compared to the previous year, on the one hand we can see a decrease in the number of decisions given in abstract successive review cases, and on the other the existence of a significant number of decisions on electoral disputes, due to the holding of local authority elections in October 2005.
As the legal theorists have pointed out, the most important Rulings in this period were directly or indirectly related to issues concerning fundamental rights. In this respect we should particularly note the treatment given to questions about the State’s extra-contractual civil liability (Ruling no. 5/05), the right to personal identity (Ruling no. 11/05), the guarantee of ownership in the case of commercial rentals (Ruling no. 147/05), the award of pensions and subsidies in de facto unions (Rulings nos. 159/05 and 233/05), mutualist associations and the principle of equality (Ruling no. 236/05), the principle of the exclusive responsibility to legislate and social benefits (Ruling no. 289/05), the dignity of the human person in relation to the requirement for a “minimum subsistence living” (Ruling no. 306/05), appeals in civil proceedings (Ruling no. 310/05), extradition (Ruling no. 384/05, which considered a rule set out in an international treaty — the International Convention for the Suppression of Terrorist Bombing), the right to compensation and public works projects (Ruling no. 385/05), the right of asylum (Ruling no. 587/05), access to citizenship (Ruling no. 599/05), banking secrecy (Ruling no. 602/05), reservation of the intimacy of private life and the delicate problem of the right to knowledge and recognition of maternity and paternity (Ruling no. 631/05), freedom of profession (Ruling no. 653/05), and the right to health protection (Ruling no. 685/05).
There was no change in the panorama of previous years, in which matters related to the guarantees in criminal proceedings played a major part in the overall body of the Court’s jurisprudence. In this field Ruling no. 12/05 addressed a complex problem – that of the right to compensation for illegal or unjustified imprisonment; Ruling no. 44/05 looked at telephone wire-tapping; Ruling no. 135/05 at the maximum period for detention without a court ruling; Ruling no. 181/05 at witnesses in criminal proceedings; Ruling no. 225/05 at appeals to the Supreme Court of Justice; Ruling no. 242/05 at appealing interlocutory decisions; Ruling no. 298/05 at hearing official suspects; Rulings nos. 312/05 and 422/05 at deadlines for bringing appeals; Ruling no. 339/05 at acts involving the judicial questioning of witnesses in the investigatory phase; Ruling no. nº 387/05 at the adversarial principle; Ruling no. 425/05 at trial hearings; Ruling no. 426/05 at evidence obtained by telephone wire tapping; Ruling no. 501/05 at intervention by the injured party; and finally, Ruling no. nº 611/05 at the investigatory process in criminal proceedings.
However, while the subject of criminal proceedings was thus preponderant, the field of substantive criminal law was also the scene of some major and far-reaching decisions, among which we can particularly point to Ruling no. 375/05 (types of crime, real concurrence of infractions) and Rulings nos. 247/05 and 351/05 (homosexual acts with minors).
In addition to the guarantees in criminal proceedings, the jurisprudence on the guarantees available to citizens was also firmed up, particularly as regards information in the environmental field (Ruling no. 136/05), public associations and the right to registration (Ruling no. 355/05), and deadlines for disputed appeals and notification of administrative acts with efficacy in relation to third parties (Ruling no. 383/05). Similarly, taxpayers’ guarantees were the object of various decisions, the most significant of which included Ruling no. 46/05 (appeals in tax-related proceedings), Ruling no. 252/05 (the principle of the exclusive typification of fiscal infractions), Ruling no. 353/05 (taxpayer participation in tax-related proceedings), and Ruling no. 386/05 (impugnation of tax-related acts).
Even though it was less prominent that it had been the year before, the subject of workers’ rights continued to lead to a significant number of decisions by the Court. Of these, we can particularly mention those concerning the right to strike (Rulings nos. 15/05 and 199/05), safety at work (Ruling no. 160/05), the universality of the right to social security (Ruling no. 241/05), the protection of workers who have suffered accidents (Ruling no. 270/05), collective employment contracts (Ruling no. 282/05), appeals in labour-related proceedings (Ruling no. 304/05), the remuneration of employees and agents (Ruling no. 323/05), the lapsing of employment contracts (Ruling no. 598/05), and the transformation of state-owned companies (Ruling no. 639/05).
Besides fundamental rights — an area which, as we have said, is taking on a growing centrality in the Constitutional Court’s jurisprudence — the organization of political power was the object of four very important decisions: Ruling no. 96/05, which addressed the status of persons elected to local authority positions and the principle of equality; Ruling no. 376/05, which looked at the problem of subventions to political parties in the Madeira Autonomous Region (more precisely, to the parliamentary groups in the Madeira Regional Legislative Assembly); Ruling no. 428/05, which more firmly established jurisprudence about laws that are subject to special process; and Ruling no. 578/05, which addressed the issue of the dissolution of the Assembly of the Republic and defined the outlines of the constitutional concept of a legislative session. It should be noted that the latter Ruling was handed down within the scope of the (obligatory) preventive review of the constitutionality
of a draft referendum.
On 10 May 2005 the Court again looked at the field of the organization of political power, but this time at the level of regional autonomies, when it handed down Ruling no. 246/05, in which it pronounced the unconstitutionality of rules in Madeira Autonomous Regional legislation on the use of hospital resources. In this case the Court had the opportunity to consider the possible applicability of the amendments introduced by the 2004 constitutional revision.
Their specificity means that it is worth recalling that in 2005, in addition to decisions on the financing of political parties and on electoral disputes, the Court issued two Rulings on appeals against decisions taken by the governing bodies of political parties.
In 2006 the Court’s jurisprudence remained extremely stable in relation to the previous year — as indeed was noted by constitutionalists such as Jorge Miranda. There continued to be a great predominance of concrete reviews of constitutionality — an area in which the Court issued 673 decisions. Fundamental rights continued to be one of the main thematic hubs around which the Justices’ work was centred. It is possible to list a number of decisions in the field of rights, freedoms and guarantees: Ruling no. 5/06 (notification to protect rights, freedoms and guarantees); Ruling no. 18/06 (freedom of association, articles of association, voting by proxy); Ruling no. 23/06 (lapse of the time period in which maternity can be investigated); Ruling no. 104/06 (guarantees of defense in civil proceedings); Ruling no. 277/06 (family, marriage, divorce); Ruling no. 333/06 (freedom of expression, advertising and propaganda); Ruling no. 528/06 (principle of equality, Civil Service, equal compensation); Ruling no. 617/06 (abortion); and Ruling no. 658/06 (rights of defense in civil proceedings).
There was a large number of Rulings about criminal proceedings. Particularly worthy of note were Rulings nos. 4/06 (telephone wire taps, intervention by a judge, guarantees in criminal proceedings), 64/2006 (appeals in criminal proceedings), 67/06 (provisional suspension of proceedings, intervention by the Public Prosecutor’s Office), 145/06 (right of access to a court, intervention by the injured party), 208/06 (maximum periods of remand in custody), 321/06 (criminal tax-related proceedings, prejudicial issues), 381/06 (guarantees in criminal proceedings, burden of specification lies with the appellant), 404/06 (habeas corpus, remand in custody, maximum periods), 527/06 (application of the most favourable criminal law), 545/06 (deadlines for bringing appeals in criminal proceedings), 628/06 (appeals in criminal proceedings, principle of equality), and 638/06 (two layers of jurisdiction in cases involving the deprivation or restriction of fundamental rights).
In a way that was perhaps more accentuated than it had been in earlier years, 2006 saw quite a significant range of important decisions concerning workers’ rights. This was particularly the case of Ruling no. 34/06 (right to fair reparation for accidents at work or work-related illnesses), Ruling no. 147/06 (pensions for accidents at work), Ruling no. 276/06 (dismissals, injunctions for the suspension of dismissals), Ruling no. 302/06 (rules governing retirement from the Public Administration), Ruling no. 366/06 (social security), Ruling no. 437/06 (workers’ contribution histories), Ruling no. 438/06 (life pensions awarded as the result of death in accidents at work), Ruling no. 522/06 (subsistence pensions in de facto unions), Ruling no. 636/06 (trade union rights), and Ruling no. 654/06 (legal assistance, minimum income).
We should also mention – partly because it is an area in which the frequency of the Court’s interventions has been decreasing compared to the initial years of its existence — the Rulings that were handed down in the economic and financial field. They continued to address the issue of expropriations during the agrarian reform (Ruling no. 285/06), local authority finances (Rulings nos. 285/06 and 711/06), and the use of the public domain by private individuals (Ruling no. 105/06). Of particular significance in the fiscal field were Rulings nos. 345/06 and 646/06.
2006 was also marked by a number of decisions that it is important to single out: Ruling no. 130/06, which looked at the Rules of Procedure of the Council of Ministers and the right of the autonomous regions to be heard; Ruling no. 262/06, on the management of schools in Madeira and the principle of regional legislative autonomy; Ruling no. 563/06, on the accounts of political parties; Ruling no. 617/06, on the referendum on abortion.
At the same time, Organizational Law no. 2/2005 of 10 January 2005 created the Public Accounts and Financing Body (ECFP). Article 2 of the Law states that the ECFP “is an independent body that shall function under the authority of the Constitutional Court and whose responsibility shall be to provide the said Court with technical assistance with the consideration and review of the accounts of political parties and of campaigns to elect the President of the Republic, the Assembly of the Republic, the European Parliament, the Legislative Assemblies of the Autonomous Regions, and local authorities”. The Constitutional Court’s official website provides a range of more detailed information on this body, particularly as regards its composition, the legislation governing it, and both its regulations and its recommendations. It is composed of a President (José Miguel Antunes Fernandes) and two Members (Jorge Manuel Galamba Marques and Pedro Manuel Travassos de Carvalho), who took office on 31 January 2005.
During this period the legal community gained a new specialist publication on matters related to constitutional justice – the journal Jurisprudência Constitucional, which is published quarterly by the Association of Constitutional Court Assistants (AATRIC). The first issue came out in July 2004. In turn, the Court itself carried on with the work of publicizing constitutional jurisprudence and organizing its computerized treatment in the form of a standing, updated database. All the books in the Court’s library were the object of computerized treatment, while all the monographs and articles since at least the beginning of the 1990’s have also been treated and their contents listed by thematic area and description. There are plans to recover the non-computerized archives in the same way (although a manual file on these is already accessible to the public). Around 42,100 documents have thus been computerized to date. The Constitutional Court’s Documentary Support and Legal Information Unit (NADIJ) possesses an integrated library management system called PORBASE (currently version 1.5) which was developed by MIND in partnership with the National Library. At the moment the Unit has around 13,000 monographs and regularly receives about 140 periodical publications, which it buys, swaps with other institutions, or receives as gifts. This collection was further enriched by the addition of part of the personal library of Professor Isabel Maria Magalhães Collaço. This gift was made by her heirs and comprises around 3,100 works, which are fully surveyed and subjected to computerized treatment.
In 2007, at a ceremony presided over by Justice Artur Maurício, the Ratton Palace witnessed the inauguration of the Professor Isabel Magalhães Collaço Room, which has been specially adapted to house the library donated by the family of the illustrious Professor of Law and former member of the Constitutional Commission. On the same occasion the main courtroom hosted the launch of Estudos em Memória do Conselheiro Luís Nunes de Almeida — a collection of studies written by current and former members of staff of the Constitutional Commission and the Constitutional Court. This book — which was produced along the lines of a previous work dedicated to Justice José Manuel Cardoso da Costa, the two volumes of which appeared in 2003 and 2005 — is part of a set of initiatives which the Court undertook in memory of Justice Luís Nunes de Almeida, and which also included promoting the publication of the speeches he gave as President of the Constitutional Court. The outcome of these initiatives was the result of the work of a committee that was chaired by Justice Artur Maurício and also included Justices Rui Moura Ramos and Bravo Serra, together with Assistants António de Araújo and Luísa Pinto The latter two members of the committee were responsible for the editorial secretarial work on the collective work entitled Estudos em Memória do Conselheiro Luís Nunes de Almeida. It is also important to note that Estudos em Homenagem ao Conselheiro Cardoso da Costa (Coimbra, 2 volumes, 2003 and 2005) was published thanks to the work of a committee formed by Justices Luís Nunes de Almeida and Messias Bento and Assistant António de Araújo, with the latter carrying out the editorial secretarial tasks.
Among the Court’s other activities during this period, particular mention should be made of its participation in the XIII Conference of European Constitutional Courts (Nicosia, Cyprus, May 2005), and the IV and V Ibero-American Conferences on Constitutional Justice, which took place in Seville (October 2005) and Santiago do Chile (October 2006) respectively. At the same time the Court upheld the tradition of tripartite meetings between the Portuguese, Spanish and Italian Constitutional Courts, the reports on which are available on the Court’s official website.
Among other events, the Constitutional Court celebrated its twentieth birthday with a Formal Session at Mosteiro dos Jerónimos on 27 Novembre 2003 and a colloquium that was held in Lisbon the following day which enjoyed the participation of the constitutionalists Gustavo Zagrebelsky, J. J. Gomes Canotilho and Jorge Miranda.
Another specialist gathering in Lisbon, this time on 20 November 2006, recorded the thirtieth anniversary of the Constitution. It was organized by the Court and included interventions by José Manuel Cardoso da Costa, José Carlos Vieira de Andrade, Eduardo Paz Ferreira, Manuel Afonso Vaz and Maria Lúcia Amaral.
[see “fourth collection”]
The “fifth collection” was installed in April 2007 and remained in office until 1 October 2012, although the individual composition of the Court changed several times during this “fifth cycle” of its life.
The first bench resulted from a significant renewal of the body of Constitutional Court Justices in 2007, with the end of the terms of office of six existing members – Artur Maurício, José Manuel Bravo Serra, Maria Fernanda Palma, Maria Helena de Brito, Maria dos Prazeres Beleza and Paulo Mota Pinto – and the beginning of those of the same number of replacements. The latter – Ana Maria Guerra Martins, Carlos Alberto Fernandes Cadilha, João Eduardo Cura Mariano Esteves, José Manuel Cardoso Borges Soeiro, Maria Lúcia Amaral and Rui Carlos Pereira – were all appointed by the Assembly of the Republic. They were installed before the President of the Republic at a ceremony at Belém Palace on 4 April 2007. On the same day, Justices Rui Manuel Moura Ramos and Gil Galvão were respectively elected President and Vice-President of the Court. They were installed in those offices on 19 April 2007, at a formal session at Ratton Palace.
On 17 May 2007, Justice Rui Carlos Pereira resigned as Constitutional Court Justice. The Assembly of the Republic then appointed Justice Joaquim José Coelho de Sousa Ribeiro, who was installed on 13 July 2007.
On 31 August 2009, Justice Mário José de Araújo Torres resigned his seat on the Court. The Assembly of the Republic then appointed Justice Catarina Teresa Rola Sarmento e Castro, who was installed on 4 February 2010.
On 28 June 2010, it was Justice Benjamim Silva Rodrigues’ turn to resign from the Constitutional Court. The resulting vacancy was subsequently taken up by Justice José da Cunha Barbosa, who was appointed by the Assembly of the Republic on 6 April 2011.
2011 was marked by the renewal of Justices Rui Manuel Moura Ramos and Gil Galvão’s mandates as President and Vice-President of the Constitutional Court at a plenary session on 19 October, and by the resignation on 30 November 2011 of Justice José Manuel Cardoso Borges Soeiro, whose place was then filled in 2012.
In 2012, the Court’s membership changed again. Two Justices – Gil Manuel Gonçalves Gomes Galvão and Carlos José Belo Pamplona de Oliveira – reached the end of their term of office in December 2011. Three new Justices – Fernando Vaz Ventura, Maria de Fátima Mata-Mouros de Aragão Soares Homem and Maria José Reis Rangel de Mesquita – were subsequently appointed by the Assembly of the Republic. They were installed before the President of the Republic at Belém Palace on 12 July.
During this period, the Public Prosecutors’ Office appointed new representatives at the Constitutional Court. On 23 June 2009, Assistant Attorneys-General José Manuel de Morais Santos Pais and António Rocha Ferreira Marques were installed as representatives of the Attorney-General of the Republic.
The membership of the Entity for Political Accounts and Financing (ECFP) also changed. At a plenary session of the Constitutional Court on 4 February 2009, Professor Maria Margarida do Rego da Costa Salema d’Oliveira Martins was appointed President under the terms of Article 6(1) of Organic Law no. 2/2005 of 10 January 2005, while Jorge Manuel Senica Galamba Marques and Pedro Manuel Travassos de Carvalho were reappointed Members of the Entity.
In the prior review field the jurisprudential work of the “fifth collection” included Rulings nos. 258/07 (protocol and precedence in the autonomous regions), 382/07 (the status of Members of the Assemblies of the Autonomous Regions), 442/07 (tax secrecy), 620/07 (regime governing the careers of public servants), 10/08 (autonomous regions, statuses of Members of the Assemblies of the Autonomous Regions, competence of the government, principle of legality), 304/08 (exclusive and partially exclusive legislative competence), 402/08 (Political and Administrative Statute governing the Azores Autonomous Region), 423/08 (Madeira Autonomous Region, tobacco question); and 632/08 (labour contract, duration of trial period), 421/09 (legislative authorisation with regard to the legal regime governing urban rehabilitation), 427/09 (Code governing the Execution of Sentences and Measures Involving Deprivation of Liberty – CEPMPL), 119/10 (public information reports on the state of the environment, regulation of support for non-governmental environmental organisations), 121/10 (same-sex civil marriage), 214/11 (suspension of the model for appraising the performance of teaching staff and revocation of Regulatory Decree no. 2/2010), 179/12 (crime of illicit enrichment), 387/12 (Madeira Autonomous Region tourism spatial plan), 395/12 (reimbursement of contributions to a social fund made by Madeira Airport – ANAM – staff) and 397/12 (Madeira Autonomous Region, decree “approving norms for the protection of citizens and measures for reducing the offer of ‘legal highs’ ”).
Abstract ex post facto review
The abstract ex post facto rulings handed down during this period in the field addressed questions such as the fee charged for the concession of hunting zones (Ruling no. 497/07), regional administration (Ruling no. 551/07), regional autonomy and rights of the autonomous regions (Ruling 581/07), provisions regarding the status of independent Members of the Assemblies of the Autonomous Regions (Ruling no. 85/08), declaration of contumacy and prescription of criminal proceedings (Ruling no. 183/08), the kindergarten teacher career structure (Ruling no. 184/08), regional finances (Ruling no. 238/08), automatic effects of sentences (Ruling no. 239/08), the principle of equality and the Statute governing Survivors’ Pensions (Ruling no. 313/08), regional autonomy, regional budget and prohibition on retrocession (Ruling no. 346/08), parties’ costs in a case in which a court has homologated a settlement (Ruling no. 375/08), local finances (Ruling no. 499/08), State Budget for 2008 and Statute governing the Madeira Autonomous Region (Ruling 525/08), law governing medically assisted procreation (Ruling no. 101/09), Highway Code – CE (Rulings nos. 135/09 and 187/09), Insolvency and Corporate Recovery Code – CIRE (Ruling no. 173/09), criminal liability during hunting (Ruling no. 185/09), civil service retirement regime (Ruling no. 186/09), limits on retirement pensions (Ruling no. 188/09), healthcare and National Health Service user’s card (Ruling no. 221/09), Political and Administrative Statute governing the Azores Autonomous Region (Ruling no. 403/09), IRC corporate income tax and the Special Payment on Account – PEC (Ruling no. 494/09), public maritime domain of the Madeira Autonomous Region (Ruling no. 654/09), Statute governing Civil Service Retirement (Ruling no. 3/10), abortion (Ruling no. 75/10), regime governing the legal employment bond, career structures and remuneration of workers who exercise public functions (Rulings nos. 154/10 and 33/11), political propaganda messages (Ruling no. 224/10), maintenance and conversion of the legal public employment relationship (Ruling no. 256/10), Labour Code – CT (Ruling no. 338/10), Personal Income Tax Code – CIRPS (Ruling no. 399/10), Bar Association National Internship Regulations (Rulings nos. 3/11 and 89/12), reduction in the salary of political officeholders (Ruling no. 251/11), maintenance and conversion of the legal public employment relationship applicable to the workers of the Azores regional administration (Ruling no. 265/11), special protection regime applicable to persons in situations of invalidity arising from certain illnesses (Ruling no. 304/11), Statute governing the Public Prosecutors’ Office and Law governing the Organisation and Modus Operandi of the Law Courts (Ruling no. 305/11), real-estate property enlistment activities (Ruling no. 362/11), State Budget for 2011 and reduction in the remuneration of public sector workers (Ruling 396/11), Fund for Guaranteeing the Maintenance Due to Minors (Ruling no. 400/11), social sector entities and access to ownership of pharmacies (Ruling no. 612/11), Statute governing the Chamber of Solicitors (Ruling no. 25/12), legal regime governing exercise of the activity of private electrical installation installer (Ruling no. 88/12), Political and Administrative Statute governing the Azores Autonomous Region and regime governing the licencing of pharmacies (Ruling no. 187/12), Military Disciplinary Regulations and penalty of disciplinary imprisonment (Ruling no. 229/12), State Budget for 2012 and payment of the extra holiday and Christmas months (Ruling no. 353/12), regime governing complaints to the Ombudsman in matters regarding defence of the nation and the armed forces (Ruling no. 404/12), Statute governing the Career Structure applicable to Teaching Staff in the Madeira Autonomous Region (Ruling no. 411/12), State Budget for 2011 and extraordinary surtax levied in the autonomous regions (Ruling no. 412/12).
Among the jurisprudential decisions linked to the concrete review of constitutionality, it is particularly worth noting those regarding the inviolability of the domicile and domiciliary searches (Rulings nos. 274/07, 278/07 and 285/07), unemployment benefit and unconstitutionality of a time limit (Ruling no. 275/07), tax debts (Ruling no. 311/07), maintenance due to a minor child (Ruling no. 312/07), access to the courts when a lawyer ceases to represent a client (Ruling no. 314/07), using public transport without a ticket, administrative offences and criminal offences (Ruling no. 344/07), access to university, principle of equality (Ruling no. 353/07), legal persons and tax benefits (Ruling no. 370/07), value attached to witnesses’ testimonies at trial hearings (Ruling no. 378/07), sex crimes against minors (Ruling no. 403/07), right to honour and to consideration from third parties (Ruling no. 407/07), grounds for criminal actions (Ruling no. 408/07), length of service relevant to the calculation of a civil service retirement pension (Rulings nos. 432/07 and 460/07), duty to submit a declaration of assets and income (Rulings nos. 453/07, 455/07 and 503/07), costs owed by persons whose property has been expropriated (Ruling no. 470/07), revocation of parole (Ruling no. 477/07), incidental procedural issue of recusation of a judge, not subject to appeal in criminal proceedings (Rulings nos. 549/07 and 565/07), insolvency and civil capacity (Ruling no. 564/07), challenge by the supposed father against a presumption of paternity (Ruling no. 589/07), incidental procedural issue of suspicion of a judge’s lack of impartiality (Ruling no. 593/07), scope of the confidentiality of legal proceedings (Ruling no. 605/07), challenge by the supposed child against a presumption of filiation (Ruling no. 609/07), a spouse’s debts and the couple’s joint assets (Ruling no. 617/07), remand in custody, maximum duration (Ruling no. 2/08), regime governing access to the courts (Ruling no. 36/08), highway law (Rulings nos. 45/08 and 114/08), legal aid, calculation of relevant income (Rulings nos. 46/08, 125/08 and 272/08), experimental civil procedural regime (Ruling no. 69/08), selecting phone taps (Ruling no. 70/08), insufficient definition of a criminal offence (Ruling no. 115/08), admissibility of evidence (Ruling no. 157/08), legal aid, relevance of the monetary value of the suit (Rulings nos. 36 and 159/08), work-related accidents, obligatory transformation of a pension into a lump-sum payment (Ruling no. 163/08), application of penal law in time (Ruling no. 164/08), seizure of military-grade materials, Code of Military Justice – CJM (Ruling no. 165/08), contumacy and prescription of criminal proceedings (Ruling no. 183/08), criminal proceedings, competent court (Ruling no. 188/08), criminal proceedings, admissibility of evidence (Ruling no. 213/08), criminal proceedings, substantial change in charges during the trial phase (Ruling no. 226/08), right to honour and freedom of information (Ruling no. 292/08), destruction of phone-tap records (Rulings nos. 293/08 and 340/08), access to the courts in arbitration proceedings (Ruling no. 311/08), right to the creation of private schools (Ruling no. 398/08), confidentiality of legal proceedings (Ruling no. 428/08), control of the constitutionality of an international convention (Ruling no. 444/08), tax disputes (Ruling no. 457/08), admissibility of an appeal in criminal proceedings (Ruling no. 485/08), effects of a declaration of bankruptcy and legal position of the court-appointed liquidator (Ruling no. 486/08), pardon of a sentence and principle of equality (Ruling no. 488/08), notification of decision to convict in criminal proceedings (Ruling no. 489/08), pension for a work-related accident, time limits for review (Ruling no. 490/08), principle of equality, university autonomy (Ruling no. 491/08), right to property, right to build, and protection of the environment (Ruling no. 496/08), National Health Service user card, principle of proportionality (Ruling no. 512/08), time limit for tax inspection procedure (Ruling no. 514/08), remand in custody, declaration of exceptional complexity and right to a hearing (Ruling no. 555/08), special insolvency process and fair process (Ruling no. 556/08), unilateral termination of an urban rental contract (Ruling no. 569/08), right to strike, definition of minimum services and indispensable social needs (Ruling no. 572/08), principle of proportionality, principles of the subsidiarity of criminal law and of the need for the criminal sanction (Ruling no. 595/08), inviolability of professional domicile and legal persons (Ruling no. 596/08), expropriation in the public interest (Ruling no. 597/08), Media Regulatory Entity, fee regime (Ruling no. 613/08), change of use of a residential property included in the National Ecological Reserve (Ruling no. 14/09), civil service retirement pension and minimum length of service (Ruling no. 15/09), rental of rural properties for sporting activities (Ruling no. 22/09), accessory penalty of loss of office (Ruling no. 46/09), Statute governing Retirement from the Civil Service (Rulings nos. 54/09 and 271/09), general privilege in relation to movable assets, Social Security credits (Ruling no. 64/09), Statute governing the Career Structure of Polytechnic Higher Education Teaching Staff (Ruling no. 74/09), search warrants in inspections of construction work (Ruling no. 145/09), refusal to testify (Ruling no. 154/09), Statute governing Kindergarten and Basic and Secondary Education Teachers (Ruling no. 155/09), revision of a pension due in the wake of a work-related accident (Ruling no. 161/09), termination of a sportsperson’s labour contract (Ruling no. 199/09), value attached to evidence provided by a witness (Ruling no. 248/09), legal aid for for-profit legal persons (Rulings nos. 279/09, 307/09 and 216/10), loss of the life of a child in the womb (Ruling no. 357/09), Criminal Procedural Code – CPP – and access to detailed invoices and to the localisation of a mobile telephone (Ruling no. 486/09), payment of compensation for nationalisation (Ruling no. 493/09), status of judges (Rulings nos. 499/09 and 413/11), Value Added Tax Code – CIVA (Ruling no. 500/09), driving times and rest (Ruling no. 578/09), ‘norms’ for the purposes of the control of constitutionality (Ruling no. 583/09), accident on a motorway and burden of proof (Ruling no. 596/09), non aedificandi easement and “land suitable for construction” (Ruling no. 612/09), Code of Civil Procedure – CPC – and clause in a collective labour agreement (Ruling no. 19/10), award of unemployment benefit (Ruling no. 49/10), reconstitution of a military career (Ruling no. 63/10), competences of the Food Safety and Economic Security Authority – ASAE (Ruling no. 84/10), compensation due to a senior public manager (Ruling no. 99/10), General Regime governing Tax-related Infractions and de facto director (Ruling no. 128/10), declarations made by an accused person to the detriment of his co-accused (Ruling no. 133/10), appeal by the Public Prosecutors’ Office against a court decision that does not impose restrictive measures (Ruling no. 160/10), sale of diesel fuel at a lower rate (Ruling no. 176/10), parole and time in prison (Ruling no. 181/10), remand in custody and acquittal on the grounds of the principle of in dubio pro reo (Ruling no. 185/10), New Urban Rental Regime and transmission of a rental contract on the death of a tenant (Ruling no. 196/10), Food Safety and Economic Security Authority – ASAE – and the status of a criminal police body in criminal proceedings (Ruling no. 232/10), competitive recruitment procedure for full university professors, guarantees that the selection methods to be used and the final classification system will be disclosed in a timely manner, and the requirement to use objective evaluation methods and criteria (Ruling no. 248/10), attaching a salary whose amount is equal to the national minimum wage (Ruling no. 257/10), award of unemployment benefit and involuntary unemployment (Ruling no. 267/10), self-protection services and private security activities (Ruling no. 304/10), especially short time limits on the ability to correct invoicing errors made by the supplier (Ruling no. 352/10), suspended sentence and penalty involving deprivation of freedom (Ruling no. 353/10), new regime governing the exercise of parental responsibilities (Rulings nos. 407/10 and 398/11), Legal Regime governing Non-customs-related Fiscal Infractions and secondary liability of directors and managers (Ruling no. 481/10), Law governing Access to Administrative Documents and access to documents of public-sector companies formed with the corporate object of managing and disposing of public real-estate assets (Ruling no. 496/10), Municipal Regulations governing Licencing of the Exercise and Inspection of the Activity of Night Watchman (Ruling no. 25/11), Expropriation Code – CE – and structurally key forestry areas (Ruling no. 37/11), Fund for Guaranteeing the Maintenance Due to Minors and maintenance payments for a minor (Ruling no. 54/11), obligation to register with the Civil Service Retirement Pension Fund – CGA (Ruling no. 63/11), the media and the transmission of a sound recording of a trial hearing (Ruling no. 90/11), staff of NATO infrastructures (Ruling no. 107/11), conviction and document that was not referred to in the charges, although it was in the case file since the enquiries phase (Ruling no. 110/11), new court costs regime (Ruling no. 150/11), liability of the Work-Related Accidents Fund (Ruling no. 161/11), paternity investigation actions (Rulings nos. 164/11, 285/11 and 247/12), legal regime governing the prevention and control of air pollution emissions (Ruling no. 278/11), Statute governing the Administrative and Fiscal Courts and composition of the court that judges appeals on the grounds of conflicting judgements (Ruling no. 281/11), worker’s option to receive compensation based on length of service (Ruling no. 284/11), lack of capacity to make declarations at trial hearings of a person who has been disqualified due to a psychiatric abnormality (Ruling no. 359/11), collective labour agreement between the Non-Daily Press Association – AIND – and the Journalists’ Trade Union – SJ – and computerised newsrooms (Ruling no. 365/11), time limit for bringing a paternity investigation action (Ruling no. 401/11), jury trial for crimes involving economic participation in business dealings, corruption and abuse of power (Ruling no. 460/11), the Competition Authority – AC (Ruling no. 461/11), environmental infractions and the commission by natural persons of a very serious administrative offence (Ruling no. 557/11), crime of incitement to prostitution (Ruling no. 654/11), inability to challenge an administrative decision to keep an inmate under a security regime and the Code governing the Execution of Sentences and Measures involving Deprivation of Liberty – CEPMPL (Ruling no. 20/12), retroactive efficacy of new time limits for bringing paternity and maternity investigation actions (Ruling no. 24/12), Organic Law governing the Republican National Guard – GNR – and the Statute governing Members of the GNR (Ruling no. 54/12), principle of legality and the requirement that the conduct which constitutes an administrative offence against the Securities Code – CVM – must be clearly determined (Ruling no. 85/12), extent of and limits on the right to appeal in criminal proceedings (Ruling no. 107/12), commission by legal persons of a very serious environmental administrative offence (Ruling no. 110/12), constitutionality of the crime of insult (Ruling no. 128/12), crime of domestic violence (Ruling no. 158/12), judicial authorisation for a domiciliary search in situations where various individuals share a home (Ruling no. 216/12), obligation to continuously monitor sulphur dioxide emissions (Ruling no. 274/12), lack of legitimacy of a requesting state in extradition proceedings to appeal against a decision issued after the extradited person has been handed over to that state’s authorities (Ruling no. 360/12), Notarial Code – CN – nulla poena sine lege aspect of the principle of legality (379/12), compensation for non-material damage derived from a road accident (383/12), when the Public Prosecutors’ Office does not also bring charges, the time limit for the prescription of criminal proceedings is neither suspended nor interrupted by notification that private criminal charges have been brought (445/12).
During this period the Court also considered a number of proposals for local referenda (Rulings nos. 524/08, 559/08, 634/08, 635/08, 96/12, 384/12, 388/12, 391/12, 398/12, 400/12, 402/12, 405/12 and 409/12).
The Court exercised its various competences in the electoral administration field in the 2009 European elections and the 2011 presidential elections. It handed down a wide variety of rulings on electoral matters (119), especially with regard to the 2009 local authority elections (81). Of particular note is the decision on the ineligibility of candidates who are serving justices of the peace (Ruling no. 250/09).
It is important to note that the Court also exercised its other competences in this period. It issued rulings on the registration and the cancellation of the registration of political parties (17), political party funding (30), the financing of election campaigns (32), the scope of the requirement that political officeholders declare their income and assets (24), incompatibilities applicable to political officeholders (5), and matters related to challenges against internal decisions taken by political parties (31).
In numerical terms the Constitutional Court produced a large amount of jurisprudence between 2007 and 2011.
Although in 2007-2010, there was actually a reduction in the number of rulings and decisions, in 2011 the Court handed down 1,341 decisions, of which 660 were rulings issued in conference, chamber or plenary and 681 were summary decisions given by the rapporteur to whom the case had been distributed, making 2011 the year in which the Constitutional Court generated the most jurisprudence in its history.
The diversity of the topics that appear before the Court thus continues to be the dominant note in the jurisprudential register of its key function – that of reviewing the constitutionality of legal norms.
The Court’s 25th Anniversary
Indeed it was precisely this subject – the review of constitutionality – that was addressed at a colloquium which took place on 23-24 October 2008 as part of the celebration of the Constitutional Court’s 25th birthday. In addition to all the Court’s Justices, this event enjoyed the participation of Professors Jorge Figueiredo Dias, Anabela Miranda Rodrigues, Miguel Teixeira de Sousa, José Manuel Sérvulo Correia, José Xavier de Basto, Guilherme de Oliveira, Bernardo Lobo Xavier, João Loureiro, José Oliveira Ascensão, Jorge Miranda, Romano Orrù and Joaquim Gomes Canotilho.
Inasmuch as the construction work on Ratton Palace’s new auditorium was still underway at the time, the colloquium was held away from the Court, in the Great Hall of the Portuguese Trade Association (ACP) in Lisbon.
In the words of the Court’s President as he addressed the colloquium, by “evaluating the impact that the reading the Constitutional Court has been making of the Constitution has had on the various sectors of the Portuguese legal order”, this external look at the balance sheet of 25 years of constitutional jurisprudence also permitted “greater public scrutiny of the work of one of the seats of state power which, when it takes the form of a negative legislator, finds itself entrusted with a special responsibility for the interpretation of the Constitution”.
Besides the organisation of this colloquium, which as we have seen was an opportunity to reflect on the first twenty-five years of Portuguese constitutional jurisprudence, it is also appropriate to give a brief account of some other activities. The Court celebrated its actual anniversary – the 6th of April – with a Formal Session presided over by H.E. the President of the Republic, who gave an important speech. The session was attended by the highest officials of the Portuguese State, the Presidents of the Supreme Courts, former Justices of the Constitutional Court, the Presidents of the Constitutional Courts of Italy and Spain, the Vice-President of the Supreme Federal Court of Brazil, the President of the Constitutional Council of Mozambique and the Presidents of the Supreme Courts of Justice of Angola, Cape Verde, Guinea Bissau and São Tomé and Príncipe. The Court of Justice of the European Union, the European Court of Human Rights and the Venice Commission were also represented. After the formal session itself, the President of the Constitutional Court, Rui Moura Ramos, gave a dinner for all the guests, at which H.E. the President of the Republic kindly agreed to act as host.
While on this subject we should also mention that the sculptor Manuel Rosa was commissioned to produce a work evoking the Constitutional Court’s 25th anniversary.
The Court also took advantage of this special moment to celebrate twenty-five years of service on the part of three of its staff – Maria Lúcia Rodrigues, Teresa Vieira and Januário Jerónimo – to whom it paid homage at a gathering of former and current members and employees, which was held in the Ratton Palace gardens on the 24th of June, just a few months after the retirement of the ex-Director of the Legal Information Unit, Nadir Bicó, had also been marked by a public homage.
The initiatives that were organised to commemorate the Court’s 25th anniversary also resulted in the publication of two works: “Tribunal Constitucional – 25 anos”, which appeared in Portuguese and English (Constitutional Court – 25 Years), and “XXV Anos de Jurisprudência Constitucional Portuguesa”, which was launched in July at the Buchholz Bookshop in Lisbon, in a joint venture between the Constitutional Court and the publishers Coimbra Editora.
In-house activities and representation
The oil portrait of President Artur de Faria Maurício was unveiled on 23 May 2007, in the presence of family and friends, former and current judges and magistrates, assistants, clerks and other members of staff. It was unfortunately to be the last visit to the Constitutional Court by its previous President, who passed away on 13 April 2008.
The Constitutional Court made a point of opening its doors as organiser to, and marking its presence as a guest at, a wide range of occasions and events that were held on Portuguese soil between 2007 and 2012.
Besides the study visits to the Constitutional Court by students taking vocational courses linked to the Law and university students of all levels from a variety of law faculties, it is also important to highlight a number of other events that marked this period.
In February 2010, the President of the Constitutional Court, Justice Rui Moura Ramos, chaired the opening session of the international conference on “Regulating Political Financing”, which was organised by the University of Lisbon’s Institute of Social Sciences (ISCUL), in partnership with the Asia-Europe Foundation and the Council of Europe. The President of the Political Accounts and Financing Entity (ECFP), Professor Margarida Salema d’Oliveira Martins, also attended the conference and took part in the first round table, which discussed the current role of bodies that supervise political funding.
In the same month, the Court’s President moderated the opening panel at the colloquium on the Lisbon Treaty organised by the Law Faculty of New Lisbon University (FDUNL). Members of the panel also included former Justice António Vitorino and current Justice Ana Guerra Martins. The latter spoke on the subject of "The Treaty of Lisbon: a step forward or a step back in the constitutionalisation of the European Union?”
In April 2010, the President chaired the opening session of the Luso-Brazilian Congress on Constitutional Law, whose core theme was “Prospects for Constitutional Law Reform in Portugal and Brazil” and was organised by the University of Lisbon Law Faculty (FDUL). Justices Maria Lúcia Amaral and João Cura Mariano addressed the conference on the subjects of “The Constitutional Court and the performance of functions other than the control of constitutionality” and “Reform and simplification of the constitutional process in Portugal”, respectively.
In the same area, the President of the Court was invited to Leiria to talk about the Lisbon Treaty by the Department of Legal Sciences of the Leiria Polytechnic Institute (DCJIPL), as part of the commemorations for Europe Day on 24 May.
Also in 2010, on 19 November the President chaired both the First Francisco Lucas Pires Distinguished Lecture, which was organised by the Católica Global School of Law, and the conference on “The Decline and Fall of the American Republic”, at which the key speaker was Professor Bruce Ackerman from Yale University.
This aspect of the Court’s activities also included the holding on 27-28 April 2011, in the Court’s own auditorium (which had been inaugurated in 2009), of a colloquium to commemorate the first 35 years of the Constitution, entitled “Revisiting the Constitutional Consensus”.
At this colloquium, the opening address by the President, Justice Rui Moura Ramos, was followed by the first panel of the day, at which the Governor of the Bank of Portugal, Carlos Costa, and Professor Sérgio Ribeiro addressed the question of “Financing the State”. There were also panels on “Economic and Social Rights”, with Professor Paulo Otero and the Bishop of Porto, Dom Manuel Clemente; “Political Representation, with Professor António Barreto; and “Rights, Freedoms and Guarantees”, with António Vitorino. The final panel on “Transconstitutionality”, at which the speakers were Professor Marcelo Neves and Paulo Rangel, preceded the day’s conclusions, which were presented by Professor José Carlos Vieira de Andrade.
This initiative led to the publication on 20 March 2012 by Coimbra Editora of “35º Aniversário da Constituição de 1976 – Vol. I e II” (35th Anniversary of the 1976 Constitution – Vols. I and II). This work contains the talks given by the speakers at the colloquium and a varied set of studies by past and present legal and technical experts at the Constitutional Court.
The launch of this compilation was chaired by Justice Rui Moura Ramos, and volumes I and II were presented by Jaime Gama and the Vice-President of the Constitutional Court, Justice Gil Galvão, respectively.
Besides some conservation work and improvements to the Court’s premises, we should especially note the inauguration in 2009 of the Constitutional Court Auditorium, which is a polyvalent facility with seating for 100 and the infrastructures needed for multimedia presentations; and the fact that the Political Accounts and Financing Entity moved to the seat of the Constitutional Court in February 2012.
Between 2007 and 2012, a variety of measures were taken to help bring citizens in general and the legal community in particular closer to the work of the Constitutional Court.
To this end the Court’s rulings are now available electronically in an e-book format, beginning with those issued in January-April 2010. This means that the advantages offered by the earlier paper and CD versions – the fact that anyone could access the entire contents of a ruling and the additional information that accompanied it – are now complemented by the full range of functions offered by a digital version – the use of electronic readers, word searches, virtual markers and the ability to add personal notes and highlighting, all in an intuitive way that makes consultation easy.
The decision to start publishing Constitutional Court Rulings that are of interest from the legal doctrine point of view solely in an electronic format was accompanied by the production in April 2011 of a single CD containing all 76 of the volumes of rulings published between 1983 and 2009. This disk offers easy access to all of the Court decisions and the accompanying information – particularly summaries and indices – that were included in the paper versions.
Turning to the Constitutional Court website, it is important to mention some of the main modifications that were made during this period, when the site was restructured in May 2010. The result was the creation of a website that is more up-to-date, accessible and easy to use, and where it is possible to keep abreast of the Court’s work, especially its latest decisions and its representation activities. The website also offers a virtual visit of Ratton Palace, which shows the places in which the Court does its day-to-day work, in an interactive, attractive way.
It was also this remodelling that produced the Political Accounts and Financing Entity microsite, organised the contents of international congresses in a way that is more accessible to and understandable for the general public, and significantly improved the advanced search module for the jurisprudence section of the website.
In March 2012, the Constitutional Court decided to allow everyone cost-free access to a new tool for searching its jurisprudence in the database of the Court’s rulings, which had thus far been restricted to in-house users.
Finally, we should also mention the work done to preserve the audio recordings of the classes taught by Professor Isabel Maria Magalhães Collaço, which were given to the Court by one of her former students, who had become a Judge of the Administrative and Fiscal Courts. These recordings have made it possible to perpetuate the lectures given by someone who was both an illustrious Professor of Law and a member of the Constitutional Commission.
There are many contacts between the Court and the media. In additional to the normal daily provision of information via the Constitutional Court website(www.tribunalconstitucional.pt) or through the press officer, we should also note the declarations the President sometimes makes to the press, radio and television after the public reading of some of the most important rulings, as well the interviews he gave to the Primeiro de Janeiro, Expresso and Sol newspapers, the Advocatus legal journal, the radio station Rádio Renascença, and the television station RTP/Antena 1.
In 2007-2012, the Court increased the variety and depth of its multilateral external representation, particularly by taking part in the First World Conference on Constitutional Justice (2009) and the first two Assemblies of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries (2010 and 2012). It also maintained and deepened its ties with a number of foreign constitutional courts, ranging from the other members of the Conference of European Constitutional Courts and the Constitutional Courts of Italy and Spain in the Trilateral Conference, to its Latin American counterparts in the Ibero-American Conference on Constitutional Justice.
Trilateral Conference of the Constitutional Courts of Portugal, Spain and Italy
The Court was represented at the Trilateral Conference of the Constitutional Courts of Portugal, Italy and Spain in Rome in October 2007, which debated the topic "Human dignity as a constitutional principle" on the basis of the relevant jurisprudence of each of the member courts. Justice Maria Lúcia Amaral was the author of the Portuguese report, and the Court’s delegation also included Justices Rui Moura Ramos, Vítor Gomes and Maria João Antunes.
The 2008 conference took place in Madrid, on the subject of "Constitutional jurisprudence and the foreign citizen". The Portuguese report was written by Justice Carlos Pamplona de Oliveira, and the overall debate included the participation of the other members of the delegation, Justices Rui Moura Ramos, Maria Lúcia Amaral and Maria João Antunes.
The 2009 Trilateral Conference was held in Lisbon at Ratton Palace and addressed the subject of “The right to property in constitutional jurisprudence”. The Portuguese report was drawn up by Justice Joaquim de Sousa Ribeiro.
In 2010, once more in Rome, the delegations from the three constitutional courts debated “Legitimate family, natural children, adoption and de facto relationships”, with the Portuguese report presented by Justice João Cura Mariano.
The topic for 2011 was “The Constitution and penal principles” and was debated in Madrid. The Portuguese delegation comprised President Moura Ramos and Justices Antunes – who was responsible for the Portuguese report – and Mariano.
Ibero-American Conference on Constitutional Justice
The Portuguese Constitutional Court was represented at the Ibero-American Conferences on Constitutional Justice in 2007, 2009, 2010 and 2012.
The Sixth Conference met in Cartagena de Indias and debated the relations between the “Constitutional Jurisdiction and the Ordinary Jurisdiction” in the various participating countries. The Portuguese delegation was made up of President Moura Ramos and Justices Carlos Pamplona de Oliveira and Maria João Antunes.
The Seventh Conference, on the “Constitutional Sentence: the interpretative methods employed by the Ibero-American Constitutional Courts”, took place in Merida, Mexico. The Portuguese Constitutional Court was represented by President Moura Ramos, Justice Pamplona de Oliveira and the Court’s Secretary-General, Fátima Ribeiro Mendes.
In February 2010, in Cartagena de Indias, Colombia, the Assistant to the President’s Office, Joana Costa, took part in both the seminar entitled “Constitution and state power to impose sanctions”, and the preparatory meeting for the Eighth Ibero-American Conference on Constitutional Justice. Both events were jointly organised by the Conference’s Permanent Secretariat and the Spanish Agency for International Development Cooperation (AECID).
Managua was the scene of the Eighth Conference, which debated the topic of “Constitution and economic and social rights”. The Portuguese participants were President Rui Moura Ramos and Justices Carlos Pamplona de Oliveira and Joaquim de Sousa Ribeiro.
The Ninth Conference met in Cadiz on the occasion of the commemorations in honour of the bicentenary of the 1812 Spanish Constitution. The participants discussed “Presidentialism and parliamentarism in constitutional jurisprudence”. President Moura Ramos moderated one of the working sessions. The delegation from the Portuguese Constitutional Court also included the Vice-President, Justice Gil Galvão, Justices Carlos Pamplona de Oliveira and Maria João Antunes, and the Secretary-General, Teresa de Almeida Garrett.
Conference of European Constitutional Courts
The Portuguese Constitutional Court took part in the Fourteenth and Fifteenth Conferences of European Constitutional Courts, which were held in Vilnius, Lithuania, in 2008 and Bucharest, Romania, in 2011.
The Portuguese report to the 2008 Conference, on the "Legislative Omission in Constitutional Jurisprudence", was drawn up by a group of Assistants to the Justices’ Offices – Benedita Urbano, Joana Costa, Estrela Chaby, João Rodrigues, João Raposo and Francisco Xavier – and was coordinated by President Rui Moura Ramos.
In October 2009, the President of the Constitutional Court took part in the preparatory meeting of the Conference of European Constitutional Courts in Bucharest. Besides discussing matters regarding the preparation of the Conference’s Fifteenth Congress, the Circle of Presidents debated the Draft Statute of the World Conference on Constitutional Justice. This was followed in 2011 by the Fifteenth Congress itself, whose central theme was “Constitutional justice: functions and relations with the other public authorities”. The Portuguese report to the Fifteenth Congress was written by the Assistant to the President’s Office, Benedita Urbano, under the supervision of President Moura Ramos. The Portuguese delegation was composed of the latter, together with Justices Maria João Antunes, Ana Guerra Martins and Joaquim de Sousa Ribeiro. President Moura Ramos chaired the Congress’s third plenary session, which debated the “Execution of Constitutional Court Decisions”.
Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries
It was also during this period that, in partnership with the then President of the Supreme Federal Court of Brazil, Minister Gilmar Mendes, the President of the Portuguese Constitutional Court took the first steps towards the creation of closer, institutionalised ties between the constitutional jurisdictional bodies of the Portuguese-speaking countries.
The Declaration forming the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries (CJCPLP) was signed in Brasília on 21 November 2008 by the Presidents of the member bodies – Rui Moura Ramos for the Constitutional Court of Portugal; Gilmar Mendes, Supreme Federal Court of Brazil; Rui Constantino Ferreira, Constitutional Court of Angola; Benfeito Mosso Ramos, Supreme Court of Justice of Cape Verde; Maria do Céu Silva Monteiro, Supreme Court of Justice of Guinea Bissau; Rui Baltazar dos Santos Alves, Constitutional Council of Mozambique; and Maria Alice Rodrigues Vera Cruz de Carvalho, Supreme Court of Justice of São Tomé and Príncipe – together with Maria Natércia Gusmão Pereira, on behalf of the President of the Court of Appeal of Timor-Leste.
The signing ceremony took place during the Sixth Meeting of the Supreme Courts of Mercosur. Justice Moura Ramos chaired the 3rd panel, which debated the creation of a Mercosur Court of Justice.
The new Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries was presented to the public in Cape Town in late January 2009, during the first World Conference on Constitutional Justice, which was held under the aegis of the Venice Commission. The first CJCPLP meeting was scheduled for Lisbon in 2010.
The First Assembly of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries did indeed meet in the Portuguese capital on 20-21 May 2010. It enjoyed the presence of delegations from the Constitutional Court of Angola, the Supreme Federal Court of Brazil, the Supreme Courts of Justice of Cape Verde, Guinea Bissau and São Tomé and Príncipe, the Constitutional Council of Mozambique, the Constitutional Court of Portugal, and the Court of Appeal of Timor-Leste. In the final communiqué, the assembled bodies spoke of “their commitment to the deepening of a constitutional culture that is common to all the Portuguese-speaking countries and reflects the profound ties which history, culture and friendship have generated between the peoples for whom the Portuguese language is one of the fundamental elements of their identity”. The Assembly approved the Conference’s Statute and, working on the basis of national reports from each country, discussed the question of the “Review of Constitutionality and the Status of the Constitutional Jurisdictions of the Portuguese-Speaking Countries”. The overall report was drawn up by the Assistant to the Office of the President of the Portuguese Court, Benedita Urbano, while the Portuguese report was compiled by the then NADIJ advisor, Manuela Baptista Lopes.
It was under the CJCPLP banner that, in June 2011, representatives of the Portuguese Constitutional Court attended a seminar in Luanda on “The Right of Access to Constitutional Justice”. The seminar took place during the commemorations to mark the 3rd anniversary of the Angolan Constitutional Court, and Justice Maria Lúcia Amaral gave a talk on “Access by private individuals to constitutional court justices”.
In the wings of this gathering and chaired by the Constitutional Council of Mozambique, the Conference’s Council of Presidents took the opportunity to meet and talk about a number of matters. These included discussing and approving the core topic of the Second Assembly of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries.
The Second Assembly met in Maputo in May 2012. It addressed the question of the “Competence of Constitutional Courts and Supreme Courts in electoral matters”. The Portuguese report was written by the Assistant to the President’s Office, Maria Benedita Urbano. The Portuguese delegation was made up of the President of the Constitutional Court, Rui Moura Ramos, together with Justices Maria Lúcia Amaral, Catarina Sarmento e Castro, João Cura Mariano and Joaquim de Sousa Ribeiro. Justice Sarmento e Castro gave an address to the Assembly on the key topic.
World Conference on Constitutional Justice
As we have already mentioned, the First World Conference of Constitutional Courts took place in Cape Town in January 2009. It was jointly organised by the Constitutional Court of the Republic of South Africa and the Venice Commission. The Conference’s central theme was “The influence of constitutional justice on society and on global human rights jurisprudence”. The Portuguese delegation comprised President Rui Moura Ramos and Justices Maria Lúcia Amaral and Joaquim de Sousa Ribeiro. The occasion coincided with the 60th anniversary of the Universal Declaration of Human Rights, and the Conference was attended by representatives from more than a hundred constitutional courts and supreme courts with constitutional responsibilities, from a number of different regional groups. The Portuguese Constitutional Court took part in the work of both the Conference of European Courts Group and the Ibero-American Conference Group. The draft constitution and statute of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries were presented to the World Conference on this occasion.
On 5 June 2010, President Moura Ramos attended the ceremony to commemorate the 20th Anniversary of the European Commission for Democracy through Law – better known as the Venice Commission. He also participated in the meeting of the Bureau of the World Conference on Constitutional Justice that prepared the latter’s Second Congress.
The Second Congress of the World Conference on Constitutional Justice took place in Rio de Janeiro in January 2011, under the joint aegis of the Brazilian Supreme Federal Court and the Venice Commission. The Portuguese Constitutional Court was represented by its President, along with Justices Maria João Antunes and Ana Guerra Martins, and Teresa de Almeida Garrett.
The Congress debated the question of “The separation of powers and the independence of constitutional courts and equivalent bodies”. President Moura Ramos was the rapporteur of the working group that discussed “The independence of the individual judge”.
European Court of Human Rights
Throughout this period the Constitutional Court was represented at the highest level at the annual opening of the judicial year at the European Court of Human Rights.
A large number of bilateral contacts were established or strengthened in 2007-2012.
In 2007, among others we should mention the visit by a delegation composed of President Rui Moura Ramos and Justices Benjamim da Silva Rodrigues and Carlos Pamplona de Oliveira to Vilnius in early May, at the invitation of the Constitutional Court of Lithuania (which was chairing the Conference European Constitutional Courts at the time), and the participation in September in the international conference to commemorate the 15th anniversary of the Estonian Constitution, at which the Portuguese Court was also represented by its President.
Within the overall context of the relationship with the Brazilian Supreme Federal Court (STF), it is especially worth noting the speech on the control of constitutionality that President Moura Ramos gave on 30 May at the opening of the Conference Cycle commemorating the Bicentenary of Independent Judicial Power in Brazil. Justice Guerra Martins also took part in this important commemoration, giving a talk in October on “Brazil and Portugal within the context of the processes of integrating Mercosur and the European Union”.
Also in 2007, Vice-President Justice Gil Galvão represented the Court at the Twelfth International Yerevan Conference in Armenia in October, and at the 20th anniversary of the Constitutional Court of Tunisia in December.
Turning to the visits of foreign delegations to Ratton Palace, of particular note in 2007 were those by Justice Antonin Scalia of the United States Federal Supreme Court in September, by the then President and Vice-President of the Brazilian STF, Ministers Gilmar Mendes and César Peluso, in September, and by Minister Carlos Brito from the same court in July.
On 12 July 2007, under the umbrella of the Portuguese Presidency of the European Union, the Constitutional Court organised a working session on questions regarding the area of freedom, security and justice with a delegation of eighteen Judges of the Court of Justice of the European Communities.
In the same field, we should also mention an event that took place in January 2008, when the Constitutional Court’s Audience Chamber served as the stage for the inaugural session of the Fifth Luso-Brazilian Meeting on Constitutional Law, which was organised by the Portuguese Constitutional Law Association (APDC) and the Brazilian Association of Constitutionalists (ABC), in cooperation with the University of Lisbon Law Faculty (FDUL) and with the backing of the Constitutional Court.
The key theme of the meeting was "The jurisdictional control of political activity". The inaugural session was chaired by Justice Moura Ramos, and the speakers included Professors Manuel Gonçalves Ferreira Filho and José Joaquim Gomes Canotilho. The following sessions included speeches by Justices Mário Torres and Maria Lúcia Amaral, who talked about "The competence and jurisprudential action of the Constitutional Court in electoral matters" and "The Constitutional Court and conflicts between the State and the Autonomous Regions”, respectively. The past President of the Court, Justice José Manuel Cardoso da Costa, spoke to the meeting on the subject of "Political acts, constitutionality and Constitutional Court”, while Justice Paulo Mota Pinto gave a talk entitled “The competence and jurisprudential action of the Constitutional Court with regard to political parties”.
In June 2008, Justice Maria Lúcia Amaral, who also wrote the Portuguese report, took part in an international colloquium organised and hosted by the Constitutional Court of the Principality of Andorra, on the subject of "International Law and National Constitutions in the Jurisprudence of Constitutional Courts".
Also in June, the Court was represented by Justices Amaral and Sousa Ribeiro at an exchange gathering of judges and magistrates organised in Luxembourg by the Court of Justice of the European Communities; and by Justice Maria João Antunes and the Assistant to the President’s Office, Joana Costa, at a seminar in Buenos Aires on "The constitutional guarantees afforded to vulnerable groups". The latter was organised by the EUROsociAL Justice Project. Justice Antunes was the author of a paper on "The constitutional requirements for the committal of persons lacking legal capacity", while Joana Costa presented the Portuguese constitutional jurisprudence regarding the various topics that were discussed at the seminar.
In late July 2008, two of the Court’s Assistants, Teresa Violante and António Ulisses Cortês, attended a seminar at the Summer School of the University of Trento, at which they presented a report entitled "Concrete control of constitutionality as a means of achieving an effective protection of Fundamental Rights".
At the beginning of September, President Moura Ramos travelled to Seoul at the invitation of the Constitutional Court of Korea in order to take part in an international symposium entitled "Separation of powers and constitutional adjudication in the 21st century".
In the same month, the Director of NADIJ, António Duarte Silva, represented the Court at an international conference on religious freedom in Slovenia; the report that was presented on "Constitutional jurisprudence on matters of freedom of conscience, religion and worship" updated and developed an earlier text by Justice José de Sousa Brito.
In June, in Tirana, Albania, the then NADIJ advisor, Manuela Baptista Lopes, presented a paper on the “Fundamental social right to a minimum required for a dignified existence in Portuguese jurisprudence” to a meeting organised by the Venice Commission.
November 2008 witnessed two more events that deserve a special mention. At the beginning of the month, the President of the Constitutional Court attended the Colloquium for the 50th Anniversary of the Constitutional Council in Paris, where he gave a talk on “A particular system of access by citizens to constitutional justice” at a round table of the Mediterranean Constitutional Courts.
Towards the end of the month, the Portuguese Constitutional Court received a delegation from the Constitutional Court of the Republic of Korea, which was met by President Moura Ramos, Vice-President Galvão, Justices Torres, Gomes, Amaral and Cura Mariano and the Secretary-General, Fátima Ribeiro Mendes. At the working meeting between them, the two delegations analysed various topics of mutual interest on the organisation and functioning of constitutional jurisdictions.
In March 2009, the President of the Constitutional Court, Justice Moura Ramos, took part in the symposium which the Court of Justice of the European Communities organised in Luxembourg under the title “Reflection on preliminary procedure”. President Moura Ramos chaired the second session, which debated the issue “Limit references to the Court of Justice for a preliminary ruling to important questions?”.
While still in the bilateral relations field, we should also note the visit of President Moura Ramos and Justices Guerra Martins, Antunes and Sousa Ribeiro to Slovenia on 13-17 May 2009, at the invitation of the Constitutional Court of the Republic of Slovenia. In addition to working meetings on constitutional review matters at the Slovenian Court, the members of the Portuguese Court were received by the President of the Republic, the President of the Parliament, the President of the Supreme Court of Justice and the Ombudsman of the Republic of Slovenia.
In the same area, a delegation from the Portuguese Court travelled to Zagreb on an official visit to the Constitutional Court of Croatia that lasted from 16 to 20 September 2009. The delegation was led by President Moura Ramos and also included Justices Amaral, Antunes and Pamplona de Oliveira.
On 31 October and 1 November, Vice-President Galvão represented the Portuguese Court at the commemoration of the 20th anniversary of the creation of the Constitutional Court of the People’s Democratic Republic of Algeria in Algiers.
Also in November 2009, President Moura Ramos went to Budapest for the celebration of the 20th anniversary of the Constitutional Court of Hungary, where he was one of the speakers at the international conference on the 23rd of the month, together with the Presidents of the Constitutional Courts of Austria, Germany, Italy and the Russian Federation. Justice Moura Ramos talked about “The evolution of constitutional review in Portugal: from diffuse control to a concentrated system”. On the next day, he took part in the symposium on “Politics and Law in Constitutional Justice”.
Again in the bilateral field, an official delegation from the Constitutional Council of the French Republic visited Lisbon on 15-18 April 2010. During this time there were three working sessions: “The Portuguese concrete constitutional control system”, “Electoral disputes”, and “Relations between the national judge and the European judge”.
On 17-19 June, the Constitutional Court hosted an official visit by a delegation from the Constitutional Court of the Republic of Slovenia, comprising the latter’s President, Jože Tratnik, its Vice-President, Miroslav Mozetič, and Justices Marta Klampfer and Jan Zobec.
Also in June, the Court was visited by a delegation from the Commission against Corruption of the Macau Special Administrative Region, which was led by the Commissioner, Fong Man Chong. The goal of the visit was to acquire more in-depth knowledge and exchange information about the legal framework and the concrete procedures regarding declarations of income and assets made by political and senior public officeholders, and about processes involving political party and election campaign accounts.
After being received by President Moura Ramos and Vice-President Galvão, the members of the Macau delegation met the representatives of the Public Prosecutors’ Office at the Constitutional Court and the head of the Fourth Chamber, Registrar João Cardoso Manso.
Among the other official foreign visitors in 2010 were the President and Justices of the Constitutional Court of the Republic of Kosovo, who came to Ratton Palace between 30 September and 2 October. This visit included working sessions on topics of common interest – particularly “Specificities, goals and challenges of the Constitutional Court of Kosovo”, and “Evolution of the constitutional review by the Portuguese Constitutional Court”. Justice Armindo Ribeiro Mendes was invited to share his experience of the review of constitutionality in Portugal before the creation of the Constitutional Court, especially at the time of the Constitutional Commission.
The Court’s bilateral relations with the Angolan Constitutional Court included the first working visit to Angola by the Director of the Documentary Support and Legal Information Unit (NADIJ), António Duarte Silva, in April 2010. In October of the same year, a delegation comprising the NADIJ advisors Manuela Baptista Lopes and Cristina Pereira and the then clerk to the Court’s First Chamber, Francisco Sousa, also travelled to Luanda, as part of a programme agreed by the Presidents of the two Courts. This programme addressed topics such as the constitutional review system in Portugal, human rights and constitutional courts, publicising decisions and other constitutional court activities via the Internet, the importance of documentary management in modern organisations and its contribution to the dematerialisation of proceedings, and the practical aspects of the work of court clerks and of handling the procedural details of cases before constitutional courts.
In November, the President represented the Constitutional Court at the 7th Anniversary of the Constitutional Council of Mozambique. The Council of Presidents of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries took the opportunity presented by this commemoration to meet in order to prepare the Conference’s 2nd Assembly, which was to take place in Maputo in 2012.
In January 2011, a delegation from the Constitutional Court of Thailand led by its President, Chut Chonlavorn, accompanied by Justices Chalermpon Ake-uru, Charoon Intachan, Nurak Marpraneet, Suphot Khaimuk and Udomsak Nitimontree, was received by the President of the Portuguese Court and Justices Vítor Gomes, Carlos Pamplona de Oliveira and Maria Lúcia Amaral.
In June 2011, at the request of the Centre for Legal Studies (CEJ), the Court hosted a group of four judges from Timor-Leste. These “interns” spent a week at Ratton Palace experiencing some of the technical aspects of the Portuguese constitutional review system, looking at questions concerning human rights, constitutional procedure and the judicial secretariat of a constitutional control body. They were hosted by the then NADIJ advisor, Manuela Baptista Lopes, and came into first-hand contact with a variety of organisational aspects of the work of the Court’s staff.
A delegation of Justices of the Constitutional Court of the Republic of Croatia led by President Jasna Omejec visited Lisbon on 7-9 July 2011, at the invitation of the Portuguese Constitutional Court. The working sessions at Ratton Palace covered a number of topics of common interest, such as the relations between constitutional jurisdictions, and international jurisdiction in the European area.
Against the background of the 20th anniversary of the Constitutional Court of the Russian Federation, in October 2011 President Moura Ramos went to Moscow, where he attended the formal commemorative session at the Kremlin.
From 28-30 October, he took part in an international conference on the review of constitutionality that brought a large number of presidents of European, Asian and African constitutional jurisdictional bodies together at the seat of the Russian Constitutional Court in St. Petersburg. President Moura Ramos chaired one of the working sessions.
In 2012, the 50th anniversary of the Constitutional Court of Turkey caused President Moura Ramos to travel to Ankara and Istanbul from 26-28 April, in order to participate in the commemorations there and attend the international colloquium on “Movements of rights and Freedoms in the 21st Century and the Role of Constitutional Courts”.
2012 also marked the first visit of a foreign President of the Republic to the Constitutional Court.
As part of his first state visit to Portugal, on 12 June H.E. the President of the Republic of Cape Verde, Jorge Carlos Fonseca, visited the Court, where he was received by President Rui Moura Ramos, the Justices and a number of Court staff.
The Court’s work over the course of this period was not limited to the situations described above, diverse though they may be. The President’s functions included receiving a large number of leading figures from both Portugal and abroad. Of particular note in the latter category were the audiences with the President of the Assembly of the Republic of Mozambique, the Presidents of the Supreme Courts of Justice of Angola, Cape Verde and Guinea-Bissau, members of the Constitutional Council of Mozambique and the Supreme Court of Justice of Angola, Justices from South Korea, Members of the Parliament of the Republic of Hungary, directors of the legal departments of various ministries of the Kingdom of the Netherlands, delegations from the Public Prosecutors’ Office of the Republic of Bulgaria, judges and prosecutors from the German Federal Republic and the Republic of Turkey, and the Executive Secretariat of the Community of Portuguese-Speaking Countries. From Portugal, President Moura Ramos met the President of the Court of Auditors, leaders of various political parties – the Hope Portugal Movement (MEP), the Socialist Unity Workers’ Party (POUS), the Social Democratic Party (PSD) and the Socialist Party (PS) – and representatives of judges and magistrates’ associations.
The President also took part in the official award ceremonies for the Council of Europe’s North-South Prize and the Gulbenkian Prizes, and in a number of homages – to his predecessor, Artur Maurício, which was organised by the Mário Soares Foundation, to Justice Mário Torres, which was arranged by the publication “Cadernos de Jurisprudência Administrativa”, and to Professor Francisco Lucas Pires at the Assembly of the Republic. He also participated in the annual ceremonies at the Supreme Court of Justice that mark the opening of the judicial year, and in congresses of the Public Prosecutors’ Office Union (SMMP) and of the Portuguese Bar Association, and chaired or took part in a wide variety of events in the scientific, academic and legal fields.
The "Sixth Collection" of Constitutional Court Justices was formed in October 2012 and lasted until July 2016.
The seat left vacant by the end of Justice Rui Moura Ramos’ term of office was filled by co-opting Pedro Manuel Pena Chancerelle de Machete, who was installed as Justice of the Constitutional Court on 1 October 2012.
Sitting in Plenary on the 2nd of October, the Justices then elected Joaquim José Coelho de Sousa Ribeiro as President of the Constitutional Court and Maria Lúcia da Conceição Abrantes Amaral as Vice-President. The new President and Vice-President were installed at a public session of the Plenary on the 11th of October.
There were three changes to the membership of the Court during this four-year period. Following the departure of Justice Vítor Gomes at the end of his term, on 7 June 2013 the ten Justices appointed by the Assembly of the Republic co-opted the then Justice of the Supreme Administrative Court, Lino José Baptista Rodrigues Ribeiro, who was installed before the President of the Republic on the 20th of June. In 2014, the vacancy created when Justice Maria João Antunes reached the end of her term was filled by co-opting Professor João Pedro Barrosa Caupers, whose installation before the President of the Republic took place on the 6th of March. On 12 June 2015, Justice José da Cunha Barbosa resigned his seat on the Constitutional Court for health reasons. In order to fill the resulting vacancy, on the 3rd of July the Assembly of the Republic appointed the then Appeal Court Judge José António Pires Teles Pereira, who was installed as Justice of the Constitutional Court before the President of the Republic on the 9th of July.
The portrait of the former President of the Court, Justice Rui Moura Ramos, which was painted by Michael de Brito, was unveiled on 19 February 2013 and now hangs in the Presidents’ Gallery on the first floor of the Palace. On the same date, Professor Moura Ramos was awarded the Grand Cross of the Order of Christ (Ordem Militar de Cristo) by the President of the Republic.
The Constitutional Court decided to celebrate the memory of Justice Artur Maurício, who was a member of the Court from 1998 to 2007 and its President from October 2004 to April 2007, by organising a commemorative book. This task was undertaken by a former Justice, Professor Maria João Antunes, and the Legal Assistant to the President’s Office, Marta Cavaleira. In all, 55 authors contributed to Estudos em Memória do Conselheiro Artur Maurício (Studies in Memory of Justice Artur Maurício), which was published in December 2014.
Also worthy of note during the period was the decision by the Portuguese Bar Association to award its Gold Medal to the Constitutional Court, for its “great merit and important work in defence of citizens’ rights, freedoms and guarantees”. The President of the Court accepted the Medal on its behalf at the Session Commemorating the 65th Anniversary of the Universal Declaration of Human Rights, which was held in the Bar Association’s Great Hall on 10 December 2013.
The Public Prosecutors’ Office continued to be represented at the Court by Assistant Attorneys-General José Manuel de Morais Santos Pais and António Rocha Ferreira Marques. On 13 October 2015, they were joined by Assistant Attorney-GeneralJoão Manuel Cabral Tavares, who was appointed by the Attorney-General of the Republic.
In 2012, the President decided that the Constitutional Court should thenceforth publish annual activity reports designed to tell both the legal community and society in general about its work. These concise documents cover the current term of office and are available in Portuguese on the Court’s website at https://www.tribunalconstitucional.pt/tc/tribunal-relactividades.htmlRelevant legislative amendments
In 2015 there were some significant amendments to the legislation applicable to the Constitutional Court.
The first change was made by Organic Law no. 5/2015 of 10 April 2015, which gave the Court the competence to consider and review the accounts of the parliamentary groups. Organic Law no. 11/2015 of 28 August 2015 then approved the seventh amendment to the Law governing the Financing of Political Parties and Election Campaigns, expressly clarifying the fact that the Court enjoys financial autonomy.
Where the Court’s internal organisation and functioning are concerned, Executive Law no. 197/2015 of 16 September 2015 made the first amendment to Executive Law no. 545/99 of 14 December 1999, which lays down the composition and modus operandi of the Constitutional Court’s support services. The progressive increase in the volume of the Court’s jurisdictional work over the years and the expansion of the range of competences that are successively being entrusted to it meant that it was necessary to partially reconfigure the support services.
There had long been a need for a permanent body of legal assistants similar to those attached to Constitutional Courts in other countries. The new law has thus made it possible to recruit highly qualified academics and legal specialists on secondment to assist the Court with legal studies and research. Attaching them to the Documentary Support and Legal Information Unit (NADIJ) has equipped it with the human resources it needs to fulfil its task of “undertaking research or studies of a legal nature”. The first NADIJ adviser recruitment process took place in 2016, in the form of an open procedure. 249 applicants replied to the formal notice advertising the position, thereby providing the Court with a pool of qualified candidates for future reference. By means of an Order dated 7 July 2016, the President of the Constitutional Court appointed António Manuel de Carvalho Abrantes, who holds a Master’s Degree in Criminal Law from Coimbra University, to be the first holder of this post.
The combination of the importance of communication in contemporary society and the Court’s intense participation in the standing international conferences organised by a variety of constitutional jurisdictions meant that it was absolutely necessary to create an external relations office to assist the Court in its contacts with foreign Constitutional Courts, the media and the general public.
The Court also took the opportunity to make some adjustments to the rules governing its different offices. These included improving the rules on how the Head of the President’s Office should be substituted during absences and other inabilities to perform his/her functions, and clarifying the fact that the staff of the various offices possess the same remuneratory status as that of the offices of members of government (a measure that was already in place at the other supreme courts).
At the proposal of the President of the Court, these changes were complemented by the issue of Joint Ministerial Order no. 789/2015 of 19 October 2015 of the Prime Minister and the Minister of State and Finance, which permitted an increase in the number of Legal Assistants attached to the President’s Office from 3 to 4 and that of the Legal Assistants attached to the Public Prosecutors’ Office at the Court from 2 to 3.The Court’s 30th anniversary
The Constitutional Court celebrated its 30th anniversary in 2013.
A deliberate decision – one that also took account of the budgetary constraints at the time – was made to commemorate the occasion with a set of initiatives that shared the goal of “breaking down distances” between citizens and “their” Constitutional Court.
This led to the creation of a booklet entitled “Tribunal Constitucional – o que é, para que serve e como funciona”, whose goal was to use simple but rigorous language to provide citizens with information about the Court’s nature, competences and function. The brochure was distributed to libraries, schools, universities, the media, visitors to the Court, sister courts in other countries and a variety of public bodies, NGOs and so on. An English version under the title “The Constitutional Court of Portugal – What it is, what it’s for and how it works” was presented to equivalent courts abroad, foreign visitors to the Court and embassies, and the brochure was also made available in an e-book format on the Court’s website.
With the same objective, the Court held a public open day on the 30th of May. Around a hundred citizens of all ages and from a number of professions were able to take part in four guided tours designed to get to know both the Constitutional Court, how it is organised, what its competences are, how it works and the details of its procedure, and Ratton Palace, which is where the Court is based.
The Constitutional Court also chose to mark its thirtieth anniversary by rewarding the students who had completed their Bachelor’s Degree (“licenciatura”) in Law in 2013 with top marks, by offering each of them an internship at the Court. The recipients were: Inês Viterbo Vicente Ferreira, from Católica Porto Law School (EDP-UCP); Filipa de Sousa Teixeira Vicente da Silva, from the Faculty of Law at the NOVA (New) University of Lisbon (FDUNL); Diogo Gonçalo Figueira Costa de Almeida Calado, from the University of Lisbon School of Law (FDUL); Joana Raquel Pires Rebelo, from the Faculty of Law of the University of Coimbra (FDUC); Ângela Cristiana Antunes Vieira, from the University of Minho School of Law (EDUM); and Maria Eduarda Varzim Berrance, from the Faculty of Law of the University of Porto (FDUP). The internship lasted a month, from 16 September to 15 October 2013, and sought to teach the interns about the Constitutional Court’s competences, organisation, modus operandi, procedure and case law by enabling them to see first-hand how the Court works on a daily basis. Each participant was supervised by a Justice of the Court, and over the course of the internship was able to experience the Court’s work and contact the Legal Assistants and the various departments and services.
Also as part of its thirtieth anniversary celebrations and in pursuit of the policy of openness to the legal community that has always guided its activities, the Court decided to offer free access to all the e-books of its Collection of Case Law, simply by registering on the Court’s website. Public interest in this initiative was so great that 1,076 subscribers registered in the first week following the announcement of the free access.
The Court’s Justices and staff also celebrated the anniversary with a lunch in the Palace gardens on the 31st of May – the day marking the thirtieth anniversary of the first Ruling handed down by the Constitutional Court.
40th Anniversary of the Constitution of the Portuguese Republic
April 2016 saw the celebrations for the 40th anniversary of the passage of the Constitution of the Portuguese Republic. The Constitutional Court took part in the commemorations by organising a colloquium that took place on the 21st of the month in the Court’s Auditorium.
The formal opening session was chaired by the President of the Republic, Professor Marcelo Rebelo de Sousa, while other speakers included the President of the Assembly of the Republic, Eduardo Ferro Rodrigues, the Prime Minister, António Costa, and the President of the Constitutional Court itself.
The colloquium debated two topics in particular: The role of the Constitution in the 21st century, with a panel at which the speakers were Dieter Grimm, Professor at the Humboldt University of Berlin and a former Justice of the Federal Constitutional Court of Germany, and the former President of the Portuguese Republic, Jorge Sampaio; and The role of the Constitutional Court in putting the Constitution into practice, where the panel was made up of Miguel Nogueira de Brito, Professor at the University of Lisbon School of Law, and Luís Meneses do Vale, Lecturer at the Faculty of Law of the University of Coimbra. The closing conference was given by Pedro Cruz Villalón, Professor at the Autonomous University of Madrid and former President of the Constitutional Court of Spain, who gave a talk on The Challenges of contemporary constitutionalism.
The colloquium’s work was compiled into an e-book, which is available in Portuguese at: www.tribunalconstitucional.pt/tc/discursos-tc_ebook_crp40.html.Political Accounts and Financing Entity
The term of office of the Members of the Political Accounts and Financing Entity (ECFP) reached its end. Under the applicable Organic Law, at least one of the Members must be a Chartered Accountant (ROC), so the Court decided to publicly invite applications for the position from ROCs. Following a selection procedure, Leonel Vicente was chosen for inclusion on the list which the President of the Court proposed to the Plenary.
Sitting in Plenary on 2 April 2013, the Constitutional Court elected the new Members of the Political Accounts and Financing Entity. Professor Maria Margarida do Rego da Costa Salema d'Oliveira Martins was reappointed President, and José Paulo Magalhães Gamito Carrilho and the Chartered Accountant Leonel Dias Vicente were appointed Members of the Entity. The new Members were installed on the 9th of April, again before the Plenary of the Constitutional Court.
This independent body, which operates under the aegis of the Constitutional Court and assists it in fulfilling its competences regarding the review of the accounts of both political parties and election campaigns, was ten years old in 2015. In order to mark the occasion, the Entity organised a colloquium on the topic of “Party and Election Funding in Portugal: Balance Sheet and Prospects”, which took place at the Court’s Auditorium on the 6th of February, and produced a brochure designed to inform the public about its responsibilities and procedures and the work it had done during the first ten years of its existence.Jurisdictional activity
The Sixth Collection continued the Court’s practice of producing a large volume of case law. Indeed, 2014 stood out as the year in which the Court handed down the largest number of decisions in its history (a total of 1,738, of which 890 were Rulings and 848 were Summary Decisions).
Its judicative work was marked by the so-called “crisis case law” – i.e. the significant set of decisions given in a range of prior, ex post facto and concrete review cases concerning the constitutionality of legislative measures passed or approved within the framework of the Financial Assistance Programme (EFAP) to which Portugal was subject during this period. This body of case law had already begun to take shape under the previous Collection of Justices, with Rulings nos. 396/11 (State Budget for 2011 and public sector staff pay cut) and 353/12 (State Budget for 2012 and payment of the extra holiday and Christmas months of pay).
Prior abstract review
In the prior review field, during this period the Court handed down Rulings nos. 230/13 (the impossibility of appealing to the state courts against decisions taken by the Sports Arbitration Tribunal [TAD] as part of its jurisdiction over obligatory arbitrations), 296/13 (the part of the new legal regime governing local authorities applicable to intermunicipal communities), 374/13 (legal regime applicable to new psychoactive substances in the Azores Autonomous Region), 474/13 (requalification of public sector staff), 793/13 (normal working hours of Regional Public Administration staff in the Azores), 862/13 (social protection convergence mechanisms), 55/14 (Azores Autonomous Regional Budget for 2014 – regional complementary pay), 176/14 (prior review of a national referendum on the possibility of co-adoption by a same-sex spouse or cohabiting partner and adoption by married or cohabiting same-sex couples), 574/14 (regime establishing the mechanisms for temporary pay cuts and the conditions under which they would later be reversed), 575/14 (regime creating the so-called Sustainability Contribution), 578/14 (adaptation of the regime governing attendance at moral and religious education activities to the Madeira Autonomous Region), 377/15 (crime of “unjustified enrichment”), and 403/15 (Legal Regime governing the Portuguese Republic’s Intelligence System – SIRP).
Ex post facto abstract review
In cases involving the abstract review of constitutionality and legality, during this period the Court issued numerous Rulings linked to measures taken within the overall framework of the so-called “economic and financial crisis”. Of particular note are Rulings nos. 568/12 (State Budget for 2012 – collecting Personal Income Tax [IRS] revenue in the Azores Autonomous Region), 187/13 (Law governing the State Budget for 2013), 767/13 (State Budget for 2013 and Political/Administrative Statute governing the Azores Autonomous Region), 794/13 (length of the normal working hours of public sector staff), 252/14 (reversion of the IRS surcharge collected in the autonomous regions to the National Budget), 413/14 (2014 State Budget norms on public-sector staff pay cuts, subjection of sickness and unemployment benefits to contributions of 5% and 6% respectively, new ways of calculating and cutting survivors’ pensions received in accumulation with other pensions, and suspension of payment of pension supplements at enterprises in the state-owned business sector that had declared net losses in each of the last three financial years), 572/14 (the Extraordinary Solidarity Contribution [CES]), 745/14 (increase in the contributions paid to the Social Protection Service for Public Servants [ADSE], the in-house Health Service of the Republican National Guard and Public Security Police [SAD], and the Armed Forces Health Service [ADM]), and 576/15 (cut in the base monthly pay of staff of enterprises in which the majority of the capital is state-owned).
Outside this particular crisis context, we should also point to Rulings nos. 86/13 (legal regime governing the administrative reorganisation of local-authority territories), 602/13 (amendments to the Labour Code [CT]), 781/13 (Law governing the Sports Arbitration Tribunal), 174/14 (applicability of summary criminal procedure to offences punishable by more than five years in prison), 801/14 (competence of the Constitutional Court to review public subsidies awarded to parliamentary groups, Members of the Assembly of the Republic, or Members of the Legislative Assemblies of the Autonomous Regions), 141/15 (requirement to have legally resided in Portugal for at least one year in order for Portuguese citizens to be entitled to the Social Integration Income [RSI]), 296/15 (requirement to have legally resided in Portuguese territory for at least one year in order for citizens of a European Union Member State, of a state belonging to the European Economic Area or of another state that has an agreement with the EU allowing the free movement of persons, in order to be recognised to enjoy the right to the RSI), 494/15 (legitimacy of the Members of the Government with responsibility for Finance and the Interior to conclude and sign collective public-sector labour agreements for local government staff), and 429/2016 (impossibility of appealing against Appeal Court decisions that overturn not-guilty verdicts handed down at first instance and instead sentence the accused to effective prison terms of not more than five years).
The concrete review of constitutionality continued to be the area in which the Court decided the largest number of cases.
As in previous periods, it is worth mentioning that a significant proportion of the Rulings on procedural questions was due to the Court’s rejection of cases that do not meet one of the requirements to which the admissibility of appeals on the grounds of unconstitutionality are subject – i.e. that a question of the alleged unconstitutionality of a norm that was applied by the lower court must have been raised in an appropriate and timely manner during the proceedings concerned.
The lists of Rulings in which the Court was able to address the actual merit of new questions can be found in its annual activity reports.
Other types of proceedings
The Court’s other competences also led to numerous Rulings, with regard to both political parties and electoral matters, and declarations of assets and income by public officeholders.
The 2013 local authority elections gave rise to a number of questions, especially those linked to the law establishing a limit on the number of terms of office, as well as the process regarding the administrative reorganisation of municipalities. As a result, the Court was called on to issue a particularly substantial number of Rulings (179) related to electoral disputes and electoral coalitions.
A number of new political parties were included on the applicable register during this period: JPP – Juntos pelo Povo(Together for the People, Ruling no. 51/15); PDR – Partido Democrático Republicano (the Republican Democratic Party, Ruling no. 104/2015); NC – Nós, Cidadãos! (We, Citizens!, Ruling no. 331/15); and PURP – Partido Unido dos Reformados e Pensionistas (the United Party of Retirees and Pensioners, Rulings nos. 332 and 370/15). Changes were made to the names, initials, symbols or articles of association of the political parties LIVRE (FREE, Ruling no. 283/15), and Partido Pró Vida (the Pro-Life Party, PPV), which is now Partido Cidadania e Democracia Cristã – PPV/CDC (the Party for Citizenship and Christian Democracy, Ruling no. 386/15). Three political parties were also abolished: Partido Humanista (the Humanist Party, Ruling no. 281/15), Partido Democrático do Atlântico (the Democratic Party of the Atlantic, PDA) (Ruling no. 404/15), and Partido da Nova Democracia (the New Democracy Party, PND) (Ruling no. 409/15).
During this period, the Constitutional Court maintained and further deepened the cooperative ties that link it within both the bilateral and multilateral frameworks to the constitutional jurisdictions in other countries.
Trilateral Conference of the Constitutional Courts of Portugal, Italy and Spain
The Portuguese Constitutional Court hosted two Trilateral Conferences during the Sixth Collection – in 2012 and 2015.
The 14th Trilateral Conference took place in Lisbon on 15-17 November 2012 and discussed the topic of “Extradition, the European arrest warrant and other forms of cooperation in penal affairs”. The delegations from the Spanish and Italian Constitutional Courts were headed by their respective Presidents, Pascual Sala Sánchez and Alfonso Quaranta. The Portuguese Court’s report was presented by Justice Maria José Rangel de Mesquita.
The 15th Conference was held in Rome on 24-27 October 2013. Its primary topic was “The principle of proportionality and reasonableness in constitutional case law, also in relation to the case law of the European courts”. The Portuguese rapporteur was Justice Pedro Machete.
In 2014, the Conference met in Santiago de Compostela, Spain, on 16-18 October. The topic for discussion on that occasion was “The multilevel protection of the fundamental rights”. Each of the three Constitutional Courts presented a report (the author of the Portuguese contribution was Justice Ana Maria Guerra Martins), and the meeting adopted a new format that has also been followed at subsequent gatherings: a working session devoted to exchanging information about the three Courts’ recent case law, at which each of the delegations summarises a number of important decisions, followed by a debate.
It was again the Portuguese Court’s turn to organise the next Conference – the 17th, which took place in Lisbon on 15-17 October 2015. The central topic was “Labour Law in Constitutional Case Law: recent developments”. The discussion was based on the reports prepared by the participating Courts, which in the Portuguese case was drawn up and presented by Justice João Caupers. As at the previous Conference, the work included a session at which the Courts exchanged information on their latest case law, with each of the delegations presenting a ruling, followed by a debate. The delegation from Spain was led by the President of the Spanish Court, Francisco Pérez de los Cobos, while the head of the Italian Court’s delegation was its Vice-President, Marta Cartabia.
Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries
The 3rd Assembly of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries met in Benguela, Angola, on 2-5 June 2014. The delegations from the Constitutional Court of Angola, the Supreme Federal Court of Brazil, the Supreme Courts of Justice of Cape Verde and São Tomé and Príncipe, the Constitutional Council of Mozambique, the Constitutional Court of Portugal and the Court of Appeal of Timor-Leste debated the subject of the “Constitutional Jurisdiction and Protection of Fundamental Rights”. The Portuguese delegation comprised the President of the Constitutional Court, Joaquim de Sousa Ribeiro, and Justices Maria José Rangel de Mesquita, Lino Rodrigues Ribeiro and João Pedro Caupers.
The 4th Assembly took place in Brasilia on 7-8 April 2016, where it was hosted by the Supreme Federal Court of Brazil and addressed the topic of the “Effectiveness of Constitutional Guarantees”. The delegation from the Portuguese Constitutional Court was made up of President Joaquim de Sousa Ribeiro and Justices Fernando Vaz Ventura and João Pedro Caupers.
Also of note in this context is that, at the request of the Conference’s Council of Presidents, the Constitutional Court of Portugal arranged for the design of an autonomous website for the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries. The website’s objective is to inform the public about the work of the Conference itself and of the constitutional jurisdictions that belong to it, with particular emphasis on their case law. The website was completed in December 2015 and can be accessed at: http://cjcplp.org.
Conference of European Constitutional Courts
“Cooperation between Constitutional Courts in Europe – the current situation and prospects for the future” was the topic of the 16th Congress of the Conference of European Constitutional Courts, which took place in Vienna on 12-14 May 2014. The Congress was organised by the Austrian Constitutional Court, and the Portuguese Court was represented by its President and by Justices Catarina Sarmento e Castro, Ana Guerra Martins and José da Cunha Barbosa.
Ibero-American Conference on Constitutional Justice
The President, Joaquim de Sousa Ribeiro, and Justice Maria de Fátima Mata-Mouros represented the Constitutional Court at the 10th Ibero-American Conference on Constitutional Justice, which was held in Santo Domingo, Dominican Republic, on 12-15 March 2014. The main topic for discussion was “Normativity and legal primacy of the Constitution”.
The 11th Conference was organised by the Constitutional Court of Peru and took place on 28 June – 1 July 2016, this time on the subject of “Constitutional State and Economic Development”. The Constitutional Court of Portugal was represented by its President, Joaquim de Sousa Ribeiro, and Justice Catarina Sarmento e Castro. The President presented a paper to the panel on the “Constitutional jurisdiction and economic development”, while Justice Sarmento e Castro took part in the panel on “Gender dynamics and their impact on the economic regime”.
In the field of Ibero-American cooperation, the Court also participated in the Ibero-American Seminar on the Fundamental Rights of People Deprived of their Freedom, which was organised by the Conference’s Permanent Secretariat and the Spanish Agency for Cooperation and Development. The Seminar was held in Guatemala on 28-30 September 2014, and the Portuguese Court was represented by the Head of the President’s Office, Inês Horta Pinto.
World Conference on Constitutional Justice
The President of the Court, Joaquim de Sousa Ribeiro, and Justices João Cura Mariano and Fernando Vaz Ventura together represented the Portuguese Court at the 3rd Congress of the World Conference on Constitutional Justice, which was held in Seoul on 28 September – 1 October 2014. The Congress was hosted by the Constitutional Court of the Republic of Korea and debated the topic of “Constitutional Justice and Social Integration”.
Other international meetings
President Joaquim de Sousa Ribeiro took part in the first Summit of Presidents of Supreme, Constitutional and Regional Courts, which was held in Mexico City on 8-9 November 2012. The Summit discussed the jurisdictional protection of human rights, together with the influence which the case laws of various jurisdictions with national, regional and world scopes have on one another. The President of the Portuguese Court presented a report entitled “ ‘Human rights’ as ‘fundamental rights’ in the Constitution of the Portuguese Republic”.
At the invitation of the Court of Justice of the European Union, President Sousa Ribeiro also represented the Constitutional Court at the celebrations to mark the CJEU’s 60th anniversary, which took place in Luxembourg on 3-4 December 2012. He also participated in the Judges’ Forum, along with other representatives from the Member States’ most senior jurisdictional instances. The Forum addressed the topic of “60 Years of Cooperation between the Court of Justice and National Courts: Achievements and Perspectives”.
Either the President or the Vice-President represented the Court at each of the formal sessions to mark the opening of the judicial year at the European Court of Human Rights in Strasbourg.
At the invitation of the Constitutional Court of the Republic of Angola, President Joaquim de Sousa Ribeiro participated in the celebrations to commemorate the Angolan Court’s 5th Anniversary, which took place on 24-25 June 2013. At the formal opening ceremony, President Sousa Ribeiro presented a paper on “The role of the key structural constitutional principles in protecting the economic and social rights in times of crisis: the recent case law of the Portuguese Constitutional Court”.
At the invitation of the Constitutional Court of the Republic of Armenia, President Sousa Ribeiro and Justice Maria José Rangel de Mesquita participated in the European conference on “The European Legal Standards and the Scope of Discretion of Powers in the Member-States of the Council of Europe”, which took place in Yerevan on 3-5 July 2013. Justice Rangel de Mesquita presented a report on “Guaranteeing the rule of law and the legislator’s margin of appreciation: examples of application in the Portuguese legal order”.
The President of the Constitutional Court was invited to be the main speaker at the formal ceremony marking the opening of the 4th judicial year of the Constitutional Court of the Republic of Kosovo, which took place in Pristina on 14 October 2013. President Sousa Ribeiro gave a talk on “The public interest as an element to be weighed up in constitutional decisions”.
The Venice Commission invited the Portuguese Constitutional Court to take part in a seminar on “Preliminary requests before Constitutional Courts”, which was jointly organised by the Constitutional Court of Jordan and the Commission itself and took place in Amman on 27 November 2013. The Portuguese Court was represented by Justice Maria João Antunes, who spoke on the topic from the Portuguese constitutional point of view.
On 5 March 2014, the President of the Constitutional Court, Joaquim de Sousa Ribeiro, received José Bandeira, the President of the Supreme Court of São Tomé and Príncipe and ex officio President of the country’s Constitutional Court.
On the 31st of October of the same year, President Sousa Ribeiro received the President of the Supreme Federal Court of Brazil, Minister Ricardo Lewandowski, for an informal meeting that enabled them to exchange opinions about questions of mutual interest and increasing the cooperation between the two Courts, namely within the framework of the Conference of Constitutional Jurisdictions of the Portuguese-Speaking Countries.
At the invitation of the Constitutional Court of the Republic of Macedonia, Vice-President Maria Lúcia Amaral represented the Portuguese Constitutional Court at the celebrations to mark the Macedonian Court’s 50th Anniversary, which included an international conference that was devoted to the subject of “Current challenges facing constitutional justice” and was held in Skopje on 18-21 September 2014.
At the invitation of the Constitutional Council of the Republic of Algeria, the President of the Portuguese Court participated in a conference on the developments in the field of Constitutional Law in Africa. The conference took place on 24-25 November 2014 and formed part of the celebrations marking the 25th Anniversary of the founding of the Constitutional Council.
In 2015, the Constitutional Court of the Czech Republic invited a delegation from its Portuguese counterpart to a bilateral meeting, which was held in Brno on 15-17 April. The Portuguese delegation was led by President Joaquim de Sousa Ribeiro and also included Justices Maria José Rangel de Mesquita and João Cura Mariano. The working meeting served to discuss matters of common interest, with particular emphasis on the review of the constitutionality of social reforms – a topic that was proposed by the Czech Court.
On 24-26 June of the same year, and at the invitation of the Federal Constitutional Court of Germany, a delegation from the Portuguese Constitutional Court took part in a bilateral meeting at the German Court’s seat in Karlsruhe. The delegation was made up of President Joaquim de Sousa Ribeiro, Justices Ana Maria Guerra Martins, Maria de Fátima Mata-Mouros, Maria José Rangel de Mesquita and Pedro Machete, and the Head of the President’s Office, Inês Horta Pinto. The working sessions discussed questions of interest to both Courts: the normative structure of the principle of equality, and particularly the differentiated treatment of certain groups of people; the relationship between national Constitutional Law and European Union Law; and the powers of constitutional courts to model the legal effects of their decisions.
On 10 December 2015, the Constitutional Court received the President of the Constitutional Court of the Republic of Cape Verde, João Pinto Semedo. This was President Pinto Semedo’s first official visit to a counterpart court in another country, following the installation of the members of the Cape Verdean Court in October that year. The Portuguese participants in the working meeting were President Joaquim de Sousa Ribeiro, Vice-President Maria Lúcia Amaral and Justices Maria José Rangel de Mesquita and Pedro Machete. Together, they discussed the competences and modus operandi of the two Courts in general and their competences in electoral matters in particular. In an atmosphere of close institutional friendship, the Courts agreed to further develop and deepen the relationship between them in the future.
The President of the Constitutional Court, Joaquim de Sousa Ribeiro, represented the country at the official commemorations of the 500th anniversary of the first Portuguese presence in Timor, which took place on 27-28 November 2015 in Oecusse, Timor-Leste.
In 2016, the Court received a delegation from the Constitutional Court of the Czech Republic on 16-17 March. The delegation was led by the President of the Czech Court, Pavel Rychetský, and also included Vice-President Jaroslav Fenyk, Justice Vojtěch Cimíček and the Director of External Relations, Vlastimil Göttinger. This bilateral working meeting followed the Portuguese visit to the Czech Court in 2015 and primarily addressed the competence of constitutional courts to review the constitutionality of referenda, although it also touched on other matters of common interest linked to the competences exercised by each of the two Courts.
The Constitutional Court also received a delegation from the Federal Constitutional Court of Germany, from 30 March to 1 April 2016. The delegation was headed by the President of the German Court and also comprised Vice-President Ferdinand Kirchhof and Justices Johannes Masing, Peter M. Huber, Monika Hermanns and Susanne Baer. The working meeting at Ratton Palace was designed to exchange information and discuss some of the Courts’ recent case law.
At the invitation of the Constitutional Court of the Russian Federation, the President of the Constitutional Court, Joaquim de Sousa Ribeiro, took part in the international conference to commemorate the 25th anniversary of the creation of the Russian Court. The conference took place in St. Petersburg on 17 May 2016 and was devoted to the topic of “Modern Constitutional Justice: Challenges and Prospects”. Attendees also included numerous Presidents and Judges from a variety of constitutional courts and equivalent bodies across Europe, as well as from the European Court of Human Rights.
Vice-President Maria Lúcia Amaral represented the Portuguese Constitutional Court at an international conference in Riga on 26-27 May 2016, whose purpose was to celebrate the 20th anniversary of the Constitutional Court of the Republic of Latvia. Justice Amaral gave a talk on the “Judicial Activism of Constitutional Courts in a Democratic State”.
Justice Amaral also represented the Court at an international conference on the “History of the role of Constitutional Courts in the development of the Rule of Law and future challenges facing those Courts”, which was held in Bled, Slovenia on 22-24 June 2016 and was organised by the Constitutional Court of the Republic of Slovenia as part of its 25th anniversary celebrations.
One of the Legal Assistants of the President’s Office, Dr Mariana Canotilho, attended an international conference on “The role of legal assistants and clerks at Constitutional Courts”, which took place in Bucharest, Romania, on 31 May and 1 June 2016. The conference, which was organised by the Constitutional Court of Romania, brought together legal assistants and clerks from the constitutional courts of a large number of countries.
At the invitation of the President of the Constitutional Court of Spain, President Sousa Ribeiro, and the Head of his Office, Inês Horta Pinto, visited the Spanish Court on 19 July 2016. The President of the Portuguese Court gave a conference on “Modelling the effects of the declaration of unconstitutionality”, which was attended by the Judges and Legal Assistants of the host Court.Visits to the Court
Of particular note during this four-year period was the growing number of requests to visit the Court made both by groups of legal students and professionals, and by other civil society groups. Especially noteworthy was the large number of requests from foreign institutions. Aided by the personal involvement of Justices, legal assistants and members of staff alike, the Court always sought to respond favourably to such requests. The visits generally included a presentation about the Court and its composition, competences, modus operandi and procedural statistics that was adapted to the make-up of each group, along with a guided tour of the Palace that included information about the Court’s history and function.Institutional communication
The Constitutional Court’s website remained a privileged means of communicating with both the legal community and citizens in general. It continues to offer access to all of the Court’s Rulings, along with an English summary of the most important ones, as well as information on the Court and its composition and modus operandi, legislative information, statistics on the Court’s work, the Library catalogue and significant news about the Court’s life.
The Court also continued to maintain its relationship with the media, in the form of clarifications provided to journalists by the Press Officer, the information available on the Court’s website, and explanations which the President of the Court occasionally gave after Rulings were publicly announced.Premises
The Ratton Palace’s collection of heritage assets was further enriched with two works of art during this period.
The Porto-based painter, Armanda Passos, decided to donate her work entitled “Balança” (Scales) to the Constitutional Court, where it is displayed at the entrance to the Auditorium.
In addition, the Court acquired the oil painting “A Família Ratton” (The Ratton Family) by the Italian painter, Domenico Pellegrini, which dates from 1807. The painting, which portrays the family who had the Palace built and were its first owners, hangs on the main staircase.
In 2015, substantial work was done to the Court’s Library. This included several repairs, a new floor, and the installation of floor sockets to serve seven workstations in the reading area and administrative section.
We should also mention that the Court signed a protocol with the Portuguese National Press (INCM), under which Constitutional Court staff can now use the INCM canteen in the National Press building, which is located near the Court’s premises.
The eighth composition began on 9 February 2021 with the election of Justice João Caupers as President of the Court. On the same day, Justice Pedro Machete was also elected Vice-President. On 15 February, Justice Manuel da Costa Andrade renounced his office, and later in 2021 Justices Fernando Vaz Ventura, Maria de Fátima Mata-Mouros and Maria José Rangel de Mesquita ended their terms in office. Four new justices were elected on 1 October: Afonso Patrão, António Ascensão Ramos, José Eduardo Figueiredo Dias and Maria Benedita Urbano, who took office before his Excellency the President of the Republic on 12 October.
Until the end of 2021, the Public Prosecution Service was represented at the Constitutional Court by Public Prosecutors José Manuel de Morais dos Santos Pais, António Manuel da Rocha Ferreira Marques, João Manuel da Silva Possante, José Manuel Ribeiro de Almeida and Carlos Sousa Mendes. In May, the Prosecutor General appointed Public Prosecutor Jorge Reis Bravo to replace Public Prosecutor Joana Marques Vidal.
In 2022, with the new composition of the Public Prosecution Service’s representation at the Constitutional Court, the Prosecutor General appointed as coordinator Public Prosecutor João Manuel da Silva Possante.
The Political Accounts and Financing Commission also underwent changes in its composition. In a plenary session on 13 October 2021, Appeal Court Judge Maria de Fátima Mata-Mouros was elected President and Lígia Ferro da Costa and Pedro Roque were elected members.
The portrait of the previous president of the Court, Justice Manuel da Costa Andrade, painted by António Macedo, was unveiled on 28 September 2021 and it is on display in the Presidents Gallery located on the first floor of the Palace.
5th Anniversary of the Constitution of the Portuguese Republic
On 7 May 2021, as part of the celebrations of the 45th anniversary of the enactment of the Portuguese Constitution, the Constitutional Court organized a conference which took place mostly online due to the pandemic.
Two main subjects were discussed at the conference: Defending Rights and Liberties in a State of Exception and The Constitutional Jurisdiction of the European Union.
Renowned experts spoke in the two panels: Joaquim de Sousa Ribeiro, José Carlos Vieira de Andrade, Jorge Reis Novais, José Teles Pereira, Nuno Piçarra and Ana Maria Guerra Martins.
In 2021, the Court issued the highest number of rulings in the last 25 years – 948 rulings. 769 summary decisions were also issued.
These 948 rulings included 2 anticipatory abstract review decisions, 11 successive abstract review decisions, 712 specific review decisions (appeals and complaints), 31 rulings concerning political parties, 168 concerning electoral matters, 22 concerning accounts of political parties and electoral campaigns and 2 concerning political office-holders and senior public officials.
Here are some of the more salient rulings: 72/2021 (crime of procuring), 123/2021 (medically assisted dying), 173/2021 (mandatory quarantine in the context of COVID-19), 318/2021 (Labour Code), 352/2021 (stay-at-home order in the context of COVID-19), 474/2021 (self-determination of gender identity), 500/2021 (limitation periods for crimes and administrative offences related to COVID-19 measures), 522/2021 (By-laws of Casa do Douro), 545/2021 (social benefits – exceptional measures in the context of COVID-19), 687/2021 (Cybercrime Law) e 921/2021 (mandatory confinement in the context of COVID-19).
In 2022, the Court issued 886 rulings and 806 summary decisions.
These 886 rulings included 3 anticipatory abstract review rulings, 12 successive abstract review rulings, 810 specific review rulings (appeals and complaints), 7 rulings concerning political parties, 7 concerning electoral disputes, 14 rulings concerning political accounts and electoral campaigns, and 5 concerning political office holders and high-ranking officials, 18 rulings concerning appeals of decisions of political party organs and 10 concerning local referenda.
The following rulings are particularly relevant: 87/2022 (mandatory confinement), 88/2022 e 89/2022 (administrative deprivation of freedom), 90/2022 (deprivation of freedom ordered by the Immigration and Borders Service), 132/2022 (adoption of a person older than 18 as of the date when the application by the person pursuing the adoption is filed, when the adoption concerns the offspring of the spouse of the applicant), 133/2022 (legislative elections – European constituency), 268/2022 (metadata), 350/2022 (crime of disobedience), 477/2022 (crime of disobedience – lockdown), 489/2022 (precautionary isolation), 490/2022 (mandatory confinement), 507/2022 e 508/2022 (publicity to be given to the start and progress of the proceedings concerning an unaccompanied adult) and 540/2022 (legal framework of the European arrest warrant regime).
Specific review of constitutionality continued to represent the bulk of the Court’s cases.
As regards rulings on the merits, more information may be found on the annual activity reports, where the more salient rulings are referred.
Other powers of the Court
The Court exercised its powers in electoral matters concerning the 2021 presidential and local elections. As regards these two elections, the Court issued 129 decisions, of which 86 concerned coalitions. The remaining decisions concerned appeals.
The Transparency Commission created by Organic Law no. 4/2019, of 13 September, was during this composition in the process of being set up, which required two separate tasks: the development and operation of an electronic platform and the selection of its physical headquarters.
Thus, after President João Caupers took office, a company was hired to provide consulting services regarding electronic security, data, information technology, and communication, for the preparation of the tender documents for the development of the Transparency Commission’s electronic platform.
Once the tender documents had been completed, the corresponding proposal was discussed and approved in a plenary session on 21 July 2021 and made public in the Official Gazette on 16 August.
In 2022, the electronic platform started being developed, and it started undergoing testing in early 2023.
The Government is legally responsible for its physical headquarters, and Colégio de Santa Rita in Coimbra was selected by the Secretary of State of the Treasury for such purpose. Renovation works were necessary for setting up the Transparency Commission in the referred building, and the first phase of those works was concluded in the first quarter of 2023.
The members of the Transparency Commission – President Ana Raquel Moniz and members Mónica Maria Bessa Correia and Pedro Mascarenhas Nunes – took office on 15 February 2023 at the Constitutional Court.
Management of the Court
The Plenary discussed and approved several internal management documents during this time, such as the rules concerning concurring and dissenting opinions and the distribution of cases, also as a result of amendments to the law. The Code of Conduct, the Regulation on Data Protection, the Regulation of the Management Board, and the Regulation on the Circuit of Decisions were also discussed and approved.
The rules governing car parking in the Court’s courtyard were changed to ensure greater safety and accessibility.
For safety reasons concerning the premises and the Court’s staff, the National Board of the Public Security Police (PSP) was asked to prepare a safety plan. A tender was launched for the provision of services concerning building fire safety and a company was hired as a result.
Given the age of the Court’s car fleet and the scrapping of five cars who had been in use for approximately 20 years, a tender was launched and two electric city cars were purchased.
The garden was maintained and improved, its species catalogued and identification plaques placed.
Various restoration and remodelling works were also carried out, notably in the buildings of the Court’s courtyard. As a result, the services of the Court were reorganized, so that the different sections of the Registry would be located in the same area of the Court, thus providing a more pleasant working space not only for the Court’s staff, but also for the various people that come to the Court, notably to the referred sections of the Registry.
Inventory of the Court’s works of art
The Constitutional Court has various works of art on loan from different national museums. An exhaustive inventory of all works of art at the Court was made and some agreements were renegotiated and new ones were entered into for the loan or exchange of works of art.
Site of the Court
With new justices taking office in October 2021, the Constitutional Court updated its site with the new composition. In 2022, it remodelled its homepage so as to improve its usability.
Document management software
In order to optimize the services and the information circulating between the various departments, a document management software was installed, and the staff of the Court attended several training sessions.
Scanning pilot project
An agreement was entered into with Imprensa Nacional Casa da Moeda (INCM) for the scanning of the most important case files and documents of the Constitutional Court. Nine case files and a file on a relevant matter were scanned under this pilot project.
In March 2023, an agreement was entered into for the Provision of Services for the Scanning and Digital Processing of the Archives of the Constitutional Court. 27 584 pages were sent to the INCM for scanning, which will allow the preservation of emblematic case files of the Court.
In late 2021, the Court consulted with the national archive (Torre do Tombo – DGLAB) to organize a historical archive of the Constitutional Court and to include the Court in the CLAV platform.
During 2022, the Court collaborated with the General Department of Books, Archives and Libraries (DGLAB) in the preparation of a report assessing the accumulated documents, which was approved by DGLAB at the end of the year. Data collection sheets concerning the accumulated documents were also prepared, describing in detail the documents to be destroyed.
Several sustainability measures were implemented at the Court, such as the recycling of paper, plastic and glass, with appropriate bags having been distributed throughout the building for such purpose, and the separation of waste in common areas. Water, electricity and gas-saving measures were also implemented.
To save electricity, a plan was devised to purchase LED lights for the entire building, to reduce by one third the lights switched on in the building, to raise awareness among the people working at the Court of the importance of turning off equipment and lights when not in use, and also to turn off the lights of the façade and the garden at midnight.
The purchase of two electric cars and the installation of the corresponding chargers was also part of this policy, as well as the dry wash of the car fleet, whenever appropriate.
During the pandemic that started in 2020 and lasted until 2022, the Court discussed and approved various internal measures to adjust its operation to the new circumstances. All visits to the Court were cancelled. The Library was closed to the public and at a later stage open by appointment only.
In order to ensure the operation of the Plenary, remote work tools were implemented and all necessary equipment was purchased and installed. In order to comply with social distancing rules, plenary sessions were relocated to the Court’s auditorium.
Dialogue with the public
President João Pedro Caupers defined as one of his main goals for this term in office a greater exchange with the public. To that effect, several projects were carried out which are listed below.
Brochure of the Constitutional Court – Guardian of the Constitution
The Constitutional Court published a new brochure intended to provide the public with more information about its activity. Its main goal was to provide that information in a simple but accurate language on the nature, powers and operation of the Court.
Documentary series - Guardian of the Constitution
In 2022, the Constitutional Court released a documentary series titled Guardian of the Constitution which is a unique portrait of its activity and history. Its four episodes allow the public to learn more about the features of this constitutional body and its powers and operation. Another video, aimed at teenagers, is meant to spark their curiosity and make them want to visit the Constitutional Court and discover more about the guardian of the fundamental rights contained in the Constitution, such as the right to education, to health and to freedom of expression.
Open Gardens Festival – Spring Edition
The Constitutional Court has partnered in the last few years with the Open Gardens Festival, organized by the Lisbon City Council, and has opened the doors to the garden of the Palace. On 29 May 2021, 325 people visited the garden, and on 28 May 2022, 251 people.
Open House (Lisbon Architecture Triennial)
On 14 May 2021, the Constitutional Court welcomed approximately 90 visitors to Ratton Palace within the scope of the Open House project of the Lisbon Architecture Triennial on the subject of "The Rebelliousness of the Invisible".
Studies in Honour of Justice President Manuel da Costa Andrade
The Constitutional Court honoured Justice Manuel da Costa Andrade, who was president of the Court from July 2016 to February 2021, with the presentation of the book Studies in Honour of Justice President Manuel da Costa Andrade (Estudos em Homenagem ao Conselheiro Presidente Manuel da Costa Andrade), which took place on 23 March 2023.
The book was co-edited by the Vice-President of the Court, Pedro Machete, Justice Gonçalo de Almeida Ribeiro, Justice Mariana Canotilho and the legal advisor Cláudia Saavedra Pinto, and included papers by 74 national and foreign authors.
40 years of the Constitutional Court
In 2023, the Court celebrated its 40 years. The celebrations included an international conference on Constitutionalism in the 21st Century, which took place on 2 and 3 March 2023. World-renowned experts on constitutional law discussed the future of constitutionalism, fundamental rights and duties, separation of powers, constitutional justice and constitutional pluralism in this century.
Publication of the book The Constitutional Court 40 years on
Published as part of the celebration events of the 40th anniversary of the Constitutional Court, this book focuses on a selection of rulings which were especially relevant for the public. The book, by the president of the Constitutional Court João Caupers, was launched on 20 March 2023 and was presented by former Justice João Cura Mariano.
Publication of the book Collegiality and Deliberation in the Constitutional Court
Also as part of the celebration events, the book Collegiality and Deliberation in the Constitutional Court was launched. The general aim of this paper is to describe and explain constitutional scrutiny as a deliberative process. The book was launched on 12 April 2023 and two of the authors, Raquel Barradas de Freitas and Miguel Won, and António Araújo presented the book.
Preparation of the book RATTON PALACE e os fidalgos da rua Formoza
Professor Helder Carita was commissioned to tell the history of Ratton Palace. It seeks to integrate the building into the history of the Cardais area and the old rua Formoza, focusing on the urban development of the area. It also looks at the historical and architectural background of a salient set of surrounding building and their proprietors, the most eminent of whom were the Melo Castro and the Carvalho families of rua Formoza. When President João Pedro Caupers left office, the book had been finished and was expected to come out in May 2023.
Publication and launch of the children’s book The Guardian of the Constitution
The Constitutional Court, in collaboration with the publisher Planeta Tangerina, published a children’s book titled The Guardian of the Constitution. The book is intended for 8 to 12-year-olds, and was written by Isabel Minhós Martins and illustrated by Yara Kono.
On 24 April 2023, the book was launched at the Constitutional Court. Children and grandchildren of the staff of the Court as well as students from two classes from a local school attended the event. The book launch included a reading of the book and a workshop with the illustrator Yara Kono.
New guided tours for new publics, including schools
The guided tour of the Court was redesigned with new educational contents, including videos, to make it more dynamic and interesting, which resulted in an increased number of visitors. Three different guided tours were designed: one for the general public, one for those with a special interest in constitutional law and one for 8 to 12-year-olds.
New brochure in Portuguese and English with a new design
In 2023, as part of the celebrations of the 40 years of the Constitutional Court, a new brochure was published, in both Portuguese and English, with some changes and references to the celebrations.
Celebratory formal dinner
On 20 March, a formal dinner celebrating the 40 years of the Constitutional Court took place at Ajuda Palace.
Celebratory staff dinner
On 14 April, a dinner celebrating the 40 years of the Constitutional Court took place at Darwin’s Café with the staff of the Court.
Auditorium José Manuel Cardoso da Costa
As part of the celebrations of the 40th Anniversary of the Constitutional Court, in a ceremony presided by the President of the Constitutional Court, João Pedro Caupers, the auditorium of the Court was named after José Manuel Cardoso da Costa, who was president of the Constitutional Court from 1989 to 2003.
The pandemic led to the cancellation and rescheduling of various international events. However, the Court continued its cooperation activities with its counterparts both at a bilateral and multilateral level.
During this period, the Court resumed the sending of rulings to the Venice Commission, as well as translated summaries of selected rulings. A point of contact was also established with the Court of Justice of the European Union for the regular contribution of translated rulings.
XVIII Congress of the Conference of European Constitutional Courts
On 24 and 25 April 2021, the XVIII Congress of the Conference of European Constitutional Courts, organized by the Constitutional Court of the Czech Republic, took place online.
The subject of the congress was Human Rights and Fundamental Freedoms: the Relationship of International, Supranational and National Catalogues in the 21st Century.
Joint Council on Constitutional Justice of the Venice Commission
In September 2021, the Court participated in the 19th meeting of the Joint Council on Constitutional Justice of the Venice Commission, in which it made a presentation on the activities of institutional cooperation of the Venice Commission.
Visit to the German Federal Constitutional Court
At the invitation of the German Federal Constitutional Court, a delegation of the Portuguese Constitutional Court went to Karlsruhe on 18 and 19 October 2021 for a bilateral work session.
The delegation included the President of the Constitutional Court João Pedro Caupers and also Vice-President Pedro Machete, justices Gonçalo de Almeida Ribeiro, José João Abrantes and Mariana Canotilho, and also the legal advisor to the president Adriana Correia Oliveira. They were welcomed by President Prof. Dr. Stephan Harbarth, LL.M. (Yale) and Vice-President Prof. Dr. Doris König, and also other justices of that court.
The work sessions included discussions on rulings of both courts on euthanasia and EU law. The ruling of the German Federal Constitutional Court on climate change was also discussed.
Visit of a delegation from the Constitutional Court of Indonesia
The Constitutional Court welcomed a delegation from the Constitutional Court of Indonesia for a bilateral work session on 3 December 2021. The work session consisted of a presentation on the types of constitutional review and on the operation of the Constitutional Court, and also of a conversation concerning the organization of the 5th Congress of the World Conference of Constitutional Justice to take place in Indonesia in October 2022.
30th anniversary of the creation of the Constitutional Court of Romania
On 10 May 2022, the 30th anniversary of the Constitutional Court of Romania was celebrated in Bucarest with an international conference on The Constitutional Court – the guarantor of the supremacy of the Constitution, an element of balance and stability and the foundation of democracy and rule of law.
Justice José Figueiredo Dias represented the Constitutional Court in this conference and made a presentation on the subject.
XIV Ibero-American Conference of Constitutional Justice
The President of the Constitutional Court, João Pedro Caupers, and Justice Maria Benedita Urbano participated in the XIV Assembly of the Ibero-American Conference of Constitutional Justice which took place in Punta Cana between 15 and 18 May 2022. The topic of the Assembly was Constitutional jurisdiction: citizenship and freedom.
President João Pedro Caupers made a presentation on The value of constitutional decisions.
Conference of the Constitutional Jurisdictions of Portuguese-Speaking Countries
The V Assembly of the Conference of the Constitutional Jurisdictions of Portuguese-Speaking Countries took place at the Constitutional Court in Lisbon on 30 June and 1 July 2022. Delegations from the Constitutional Court of Angola, from the Constitutional Court of Cape Verde and from the Constitutional Court of Sao Tome and Principe, from the Supreme Court of Justice of Guinea-Bissau, from the Constitutional Council of Mozambique and from the Court of Appeal of East Timor debated The guarantee of protection of fundamental rights in times of pandemic.
The Constitutional Council of Mozambique assumed the presidency of the Conference for the 2022-2024 biennium.
Visit of a delegation from the Constitutional Court of Angola
On 4 July 2022, the Constitutional Court welcomed a delegation from the Constitutional Court of Angola. The delegation was welcomed by President João Pedro Caupers, by Justice José João Abrantes, by the Registrar Victor Mendes, and by Cristina Pereira, of the External Relations Office.
During the work session, experiences were shared concerning the organization and operation of the constitutional courts of Portugal and Angola.
International conference celebrating the 100 years of the Constitution of the Republic of Latvia and the 25 years of its Constitutional Court
At the invitation of the Constitutional Court of the Republic of Latvia, the President of the Constitutional Court João Pedro Caupers participated in the international conference celebrating the 100 years of the Constitution of the Republic of Latvia and the 25 years of its Constitutional Court on Sustainability as a constitutional value: future challenges.
The conference took place in Riga on 15 and 16 September 2022.
5th Congress of the World Conference of Constitutional Justice
The 5th Congress of the World Conference of Constitutional Justice took place in Bali from 4 to 7 October 2022. The Court’s delegation included President João Pedro Caupers, Justice Joana Fernandes Costa and Chief of Staff Bárbara Churro.
Conference of the Presidents of the Constitutional Courts of the European Union
The Conference of the Presidents of the Constitutional Courts of the European Union took place in Brussels on 7 October 2022. The Constitutional Court was represented by its Vice-President Pedro Machete.
The Conference included two work sessions on Contribution of constitutional jurisdictions to the protection of the Rule of Law in the EU and Exchange on bilateral and multilateral relations (best practices) between constitutional jurisdictions in the EU, including in view of a future more regular dialogue.
30th Anniversary of the Constitutional Court of Albania
At the invitation of the Constitutional Court of Albania, the Constitutional Court was represented by Justice Afonso Patrão at the international conference celebrating its 20th anniversary, which took place in Tirana on 20 and 21 October 2022. The subject of the conference was Role of Constitutional Courts in New Democracies.
70th Anniversary of the Court of Justice of the European Union
The celebrations of the 70th anniversary of the Court of Justice of the European Union took place in Luxembourg from 4 to 6 December 2022 and included a Meeting of Judges, intended for the presidents of the highest courts of the Member States, on the theme of Bringing justice closer to the citizen. The Portuguese Constitutional Court was represented by its president, João Pedro Caupers.
Visit of a delegation of the Constitutional Court of Kosovo
On 31 January and 1 February 2023, the Constitutional Court welcomed a delegation of the Constitutional Court of Kosovo.
The delegation, presided by President Gresa Caka-Nimani, was welcomed by President João Pedro Caupers. In this bilateral meeting, which was part of a cooperation project with the Council of Europe, participants had the opportunity to discuss the operation and powers of both courts, with a focus on rulings concerning restrictions to rights and freedoms in a state of exception.
100th anniversary of the Constitution of Romania
At the invitation of the Constitutional Court of Romania, the President of the Constitutional Court, Justice João Caupers, and Justice José João Abrantes attended the assembly celebrating the 100th anniversary of the enactment of the Constitution of Romania, which took place in Bucharest on 27 March 2003.