TRIBUNAL CONSTITUCIONAL Portugal

Relatórios Portugueses das Conferências dos Tribunais Constitucionais Europeus

XIIIª Conferência dos Tribunais Constitucionais Europeus
Os Tribunais Constitucionais Europeus, "os critérios da limitação de direitos humanos na aplicação da justiça constitucional".
Assessoras do Gabinete do Presidente, Cristina Máximo, Luisa Pinto e Mariana Canotilho, Assessor do Gabinete do Vice-Presidente António de Araújo e Assessores do Gabinete dos Juizes, Catarina Veiga, Luís Miguel Nogueira de Brito e Manuela Rodrigues - todos do Tribunal Constitucional, sob a orientação do Presidente do Tribunal, Conselheiro Artur de Faria Maurício
[Nicosia-Chipre, maio de 2005]

Questionnaire
Conference of the European Constitutional Courts

The Criteria of the Limitation of Human Rights in the Practice of Constitutional Justice

Cyprus, May 2005

1. The legal framework for the protection of human rights in your country. Are human rights entrenched in the constitution, basic law (charter), or by ordinary law?

In Portugal human rights are entrenched in the Constitution of the Portuguese Republic, approved on the 25^th April 1976. Notwithstanding the fact that the Portuguese Constitution has been amended several times (the last one, being the sixth amendment, was approved this very year) its deep commitment towards human rights has remained unchanged.

The measure of that commitment can be easily realised if one looks at the place of human rights in the systematisation of the Portuguese Constitution.

Human rights are the subject matter of Part I of the Constitution with the title “Fundamental Rights and Duties”. Part I has three Sections: Section I, “General Principles” (Articles 12 to 23); Section II, “Rights, Freedoms and Guarantees” (with a Chapter I, concerning “Personal Rights, Freedoms and Guarantees” and covering Articles 23 to 47[1]; a Chapter II, regarding “Rights, Freedoms and Guarantees of Political Participation and covering Articles 48 to 52[2]; and a Chapter III, related to “Rights, Freedoms and Guarantees of Worker”, including Articles 53 to 57[3]); Section III, “Economic, Social and Cultural Rights and Duties” (with three chapters concerning economic, social and cultural rights and duties respectively, from Articles 58 to 62, 63 to 72 and 73 to 79).

Two important and peculiar features of the human rights portuguese law, as specified by the Constitution, should be noted from the outset. The first one is the so called “open clause”: according to Article 16, paragraph 1, of the Constitution, the fundamental rights contained in it shall not exclude any other fundamental rights provided for in the laws or resulting from applicable rules of international law; furthermore, according to paragraph 2 of the same article, the constitutional and legal provisions relating to fundamental rights shall be construed and interpreted in harmony with the Universal Declaration of Human Rights.

The second important feature of the portuguese human rights constitutional law is the applicableness of the constitutional rules expressly related to “rights, liberties and guarantees” to fundamental rights of a similar kind, as foreseen in Article 17. According to this article the rules that apply to human rights contained in Section II of Part I can be extended to those constitutional rights that may be considered analogous to them. One of most important provisions that on the basis of Article 17 applies not only to human rights contained in Section II of Part I, but to fundamental rights of a similar kind is Article 18, which concerns the issue of the restraint of “rights, liberties and guarantees” and their direct applicableness.

2. Is the European Convention of Human Rights part of domestic law? Specify the rights guaranteed. Are the rights guaranteed applicable against everyone – erga omnes – or are they only operative against the State?

Portugal is a part to the European Convention of Human Rights since the 22^nd November 1976[4]. If one compares the catalogue and shaping of human rights in the Portuguese Constitution with the European Convention one must conclude that the first is generally more extensive and more detailed than the second[5]. On the other hand, as was mentioned, the “open clause” of Article 16, paragraph 1, acknowledges rights conferred to the individual by international law, including, of course, the European Convention of Human Rights.

As a consequence  there are a number of human rights which are essentially contemplated in the Portuguese Constitution and not (or, at least, not so completely) in the European Convention. As examples the following ones can be pointed out:

(i)           in the domain of personal, political and workers rights, liberties and guarantees, the right to resist (Article 21); the right to personal identity, personality development, civil capacity, citizenship, good name and reputation (Article 26); the rule establishing that no sentence shall involve, as an automatic consequence, the loss of any civil, occupational or political rights (Article 30, paragraph 4); the rules concerning Habeas corpus (Article 31); the rights related to the use of computerised data (Article 35); the special emphasis on the right to found a family and to marry (Article 36); the freedom to choose an occupation and enter the civil service (Article 47); the rules concerning the right to petition and the right of actio popularis (Article 52); the consecration of the principle of security of employment and prohibition of dismissals on political or ideological grounds (Article 53); the detailed ruling of trade union freedoms and rights of trade unions and collective agreements (Articles 54 and 56); the discipline of the right to strike and prohibition of lock-outs (Article 57);

(ii)         in the domain of economic, social and cultural rights, the right to work and rights of workers (Articles 58 and 59); the consumer rights (Article 60); the safeguards of private enterprise, co-operatives and worker-management (Article 61); the rules concerning social security, health and housing (Articles 63 to 65); the environment and quality of life (Article 66); the rules concerning the family, fatherhood and motherhood and childhood (Articles 67 to 69); the rules related to youth, citizens with disabilities and old people  (Articles 70 to 72); the rules regarding cultural enjoyment and creativity (Article 78), and physical education and sport (Article 79)[6].

The number of rights contained in the European Convention of Human Rights without express equivalent in the Portuguese Constitution is much smaller: the prohibition of debt incarceration (Article 11 and Article 1 of the Fourth Additional Protocol to the European Convention of Human Rights) and the right to the knowledge of the language in criminal procedure [Article 14, paragraph 3, a) and b), and Articles 5, paragraphs 2 and 6, paragraph 3, a) e e)], of the European Convention)[7]. However, according to Article 16 of the Portuguese Constitution, these rights are also acknowledged by our legal order.

As specified by Article 18, paragraph 1, of the Portuguese Constitution, the constitutional provisions relating to rights, freedoms and guarantees shall be directly applicable, and binding on, both public and private bodies. Article 18, which provides for the direct applicability and unconditionally binding force of the rights, liberties and guarantees enumerated in Part I, Section II, also applies to rights of a similar kind, as stated by Article 17.

Rights considered as of a “similar kind” include: access to law and effective judicial protection (Article 20); the right to resist (Article 21); the right to present complaints to the Ombudsman (Article 23); the right of workers to remuneration for their work, to a limit on the length of the working day, to a weekly rest day and regular holidays with pay, to assistance in case of involuntarily unemployment (Article 59)[8]; the right to private enterprise, co-operatives and worker-management (Article 61)[9]; the right to private property (Article 62)[10]; the right to a social minimum (Articles 1, 2 and 63)[11]; the right of women to an adequate period of leave from work without loss of remuneration and other privileges (Article 68); the right to free basic education [Article 74, pargraph 2, a)]; the right of owners of estates that are compulsory acquired to appropriate compensation and to retain an area that is sufficiently large to enable the land to be utilised in a rational and viable way (Article 94, paragraph 1); the right to registration of electors (Article 113, paragraph 2); the right to present nominations (Articles 124); the rights and guarantees of citizens towards the Public Service (Article 268); the right of public officials to be heard and to present a defence in disciplinary proceedings (Article 269, paragraph 3)[12].

It should be noted that in Portugal, as in several other countries, it is not quite accurate to envisage the problem of the range of human rights’ applicableness simply along the lines of the distinction between erga omnes relevance or enforcement only against the state. Leaving aside some more theoretically discussions, there seems to be in Portugal a practical consensus around the following points:

a)    Some human rights are foreseen by the Constitution in such a way as to be operative only against the State: for example the guarantees concerning Habeas corpus and criminal procedure (Articles 31 and 32) and the right to asylum (Article 33);

b)   Some other fundamental rights only apply in the relations among private persons: the right to reply and to make corrections (Article 37, paragraph 4), the right of journalists to elect editorial councils, in accordance with the law [Article 38, paragraph 2, b)], the right not to join an association or be compelled to remain in it (Article 46, paragraph 3), the right to strike (Article 57), and some cases in which the right to actio popularis applies (Article 52, paragraph 3);

c)    Provisions relating to rights, liberties and guarantees are immediately binding on the legislative body whenever it makes private law norms and on judges when they enforce them; this binding effect of human rights in the activity of the legislator and of the courts is specially relevant in matters concerning the principle of equality (Article 13);

d)   The applicableness of all human rights in relations between private persons should be admitted in cases in which one of those persons disposes of a disproportionate power in such a way as to enable her to take the traditional place of the state or public bodies as the addressees of human rights;

e)    A central core of personal autonomy must be acknowledged in the actions of every individual as an irreducible limit to the direct relevance of human rights among private persons[13].

3. Are guaranteed human rights subject to limitation? If so, where does authority to limit them stem from? Furthermore, are guaranteed human rights subject to limitation by a clause of general purport? Or are the limitations that may be imposed correlated to each guaranteed right?

Rights, liberties and guarantees contained in Section II of Part I of the Portuguese Constitution, as well as human rights of a “similar kind” (Article 17), are subject to limitation only according to Article 18, paragraphs 2 and 3.

Article 18, paragraphs 2 and 3, states as follows:

“2. Rights, freedoms and guarantees may be restricted in only those cases expressly provided for in this Constitution; restrictions shall be limited to the extent necessary to safeguard other rights or interests protected by this Constitution.

3. Laws restricting rights, freedoms and guarantees shall be general and abstract in character, shall not have retroactive effect and shall not limit, in extent or scope, the essential content of the constitutional provisions.”

In face of this provision a fundamental question immediately arises: considering the fact that there are many constitutional provisions containing rights, liberties and guarantees which do not expressly foresee any restrictions whatsoever[14] is it possible in those cases to appeal to Article 18 in order to consider unconstitutional any limitations by means of legislative act?

Before answering this question it must be recognised that legal restrictions expressly authorised by the Constitution are not the only kind of limitations to which constitutional rights may be subjected. On the one hand there are those limits immediately elapsing from the Constitution. For example Article 45, paragraph 1, states as a feature of the right to assemble and demonstrate it being exercised in a peacefully and unarmed way; Article 46, paragraph 4, does not allow armed associations, racist organisations or those that adopt fascist ideology. On the other hand it is generally recognised that some measure of limitation of constitutional rights, even if not expressly foreseen, must be admitted in order to obtain the safeguard of other rights or goods constitutionally guaranteed.

So the question that has been put a little while ago must be rephrased: under what grounds can a constitutional right (a “right, liberty or guarantee” or a right of a “similar kind”), for which no authorisation of legal restriction is foreseen in the Constitution, be limited in order to take account of the demands of other constitutional rights or goods? In answering this question two main positions can be distinguished in portuguese constitutional law. For some, those limits can be justified on the grounds of Article 29, paragraph 2, of the Universal Declaration of Human Rights[15] applicable according to Article 16 of the Portuguese Constitution[16] or on the ground of the idea of “inherent limits”, i. e., limits that arise out of the interpretation of the constitutional provisions which contain each right, liberty or guarantee or a right of a similar kind[17]. For others only the consideration of a fundamental right in the face of another fundamental right or a constitutional good, being both contained in the Constitution, can justify its limitation[18]. For the first ones the implicit limits of constitutional rights are a matter of interpretation, to be undertaken for each right involved[19]; for the second ones the implicit limits of constitutional rights can only be obtained a posteriori, after weighing the right concerned against other rights or goods involved, as each right, liberty or guarantee for which no legal restriction is foreseen in the constitutional text is prima facie a right, liberty or guarantee subjected to no limits[20].

A practical difference between these two more theoretical positions seems to be this: if a limit is inherent in a constitutional right this means that such a limit is not necessarily subjected to all provisions of Article 18, paragraphs 2 and 3[21]; on the contrary, if a limitation not expressly foreseen in the constitution can only be justified by means of the weighing of the right to be limited against other constitutional rights or goods involved the law operating this weighing is subject to all provisions of Article 18, paragraphs 2 and 3. Be that as it may no divergence exists concerning the following point: the authority to limit fundamental rights stems from the Constitution itself and can only obtain if the essential core of the right to be limited is not affected and if the limit is necessary to safeguard other rights or interests protected by the Constitution.

Considering more specifically the regime of “the limits to limits” of constitutional rights as established in Article 18, paragraphs 2 and 3, of the Constitution, some points must be stressed:

a)    Every limit to a “right, liberty or guarantee” or a right of a similar kind must have its grounds on the Constitution and can only be justifiable if it envisages the safeguard of other rights or interests protected by the Constitution;

b)   The term “law” in Article 18, paragraph 3, is meant to express a law of the Assembly of the Republic, according to Article 165, paragraph 1, b); no administrative norms can limit a constitutional right;

c)    Laws restricting rights shall be general and abstract in character and shall not have a retroactive effect;

d)   The essential or inalienable core of rights, liberties and guarantees can not be affected by restrictive laws[22].

4. Are the causes for which human rights may be limited specified in the constitution or other document guaranteeing their enjoyment?

See answer to question 3 above.

5. Indicate the prerequisites for the limitation of human rights for a cause in furtherance of which limitations are permissible. Must there be a dire necessity or a real and pressing need for the introduction of a limitation to a human right? If limitations are permitted which authority is the arbiter for the ascertainment of the existence of the necessity or need put forward in justification of the measure? Is the Constitutional Court or any other Court of the country vested with jurisdiction to adjudicate upon the existence of the necessity or need for limitation?

In Portugal only the judicial institutions (courts) are trusted with jurisdiction (in the sense of the latin word juris dictio, meaning “to say the law” or to decide on legal matters) to review complaints involving violations of human rights and vested with jurisdiction to adjudicate upon the existence of the necessity or neeed for limitation.

As specified by Article 202 of Portuguese Constitution “ 1. The courts are the organs with supreme authority that have the power to administer justice in the name of the people.

2. In administering justice, the courts are under a duty to safeguard the rights and interests of citizens that are legally protected, to punish breaches of democratic legality and to resolve public and private disputes.

3. In performing their functions, the courts are entitled to the assistance of other authorities.

4. The law may provide for alternative methods of dispute resolution that do not involve the courts.”

The most important aspect of Portuguese system is the fact that, according to Article 204 of Portuguese Constitution, “in matters brought before them for decision, the courts shall not apply any rules that contravene the provisions of this Constitution or the principles contained there”.

Every court (judicial, administrative and fiscal) is vested with jurisdiction to review complaints involving violation of humans rights. Moreover, every single judge is, in itself, a sort of “constitutional court”, since he must control the constitutionality of the rules that are applicable to the matters that are brought before him. If he thinks that those rules contravene the provisions of the Constitution he must refuse to apply them. However, the decisions in constitutional issues of other courts are not definitive, since there is always the possibility to appeal to the Constitutional Court.

The Constitutional Court is the only authority vested with ultimate jurisdiction to review of constitutionality, so that Article 221 of Portuguese Constitution states “The Constitutional Court is the court that has the specific power to administer justice in matters involving questions of legal and constitutional nature.”

It is need to be mentioned that Portugal does not have mechanisms like  the German Verfassunsgsbeschwerde or the Spanish recurso de amparo. Thus, the Portuguese Constitutional Court – as well as all the other Portuguese courts, which are vested with the power of judicial review of legislation, being their decisions subject to appeal to the Constitutional Court – only controls the constitutionality of legal norms, not the concrete decisions involving violations of human rights. For instance, it does not control the constitutionality of decisions of other courts qua tale, but only the constitutionality of the legal norms applied – or in which the application is denied on the grounds of its unconstitutionality – in those decisions, nor does it control political decisions as such, or administrative acts. The Portuguese system of judicial review is based on a pure control of legal norms, even if the Court has a very broad concept of «legal norm» when it defines its own competence of control.

It must also be emphasised that there are two main mechanisms of control: the concrete control and the abstract one. The concrete control is based in two main types of appeals: those against  decisions refusing to apply a legal rule on the ground of unconstitutionality; and those against decisions applying a legal rule, the constitutionality of which was challenged during the proceedings.  The abstract control, on the other hand, includes the anticipatory review of constitutionality[23] and the general (or ex post) review of constitutionality, in which the requests can be submitted to the Court by several entities, such as The President of the Republic, the President of the Assembly of the Republic, the Prime Minister, the Ombudsman, the Attorney-General or one-tenth of the Deputies of the Assembly of the Republic.

We can say that the Constitutional Court is the only authority of the country vested with ultimate jurisdiction to adjudicate upon the existence of the necessity for the limitation of a right, liberty or guarantee contained in Section II Part I of the Constitution, or a right of a similar kind, as previously defined (see answers to questions 1 and 2 above).

A limitation is only justifiable in terms of constitutional law if it is necessary in order to safeguard other rights or interests protected by the Constitution. This necessity is evaluated in terms of the principle of proportionality.

According to the Constitutional Court the principle of proportionality can be unfolded in three more specific principles: (i) the principle of adequacy, according to which limitations to rights, liberties and guarantees must be recognised as a mean to the pursuit of the ends envisaged, with the safeguard of other constitutional rights or goods involved; (ii) the principle of exigency, which requires that restrictive measures must be demanded in order to obtain the ends envisaged, as there are no other restrictive means available for achieving the same end; (iii) the principle of just measure, or proportionality in the strict sense, according to which no excessive measures can be adopted in order to obtain the ends envisaged[24].

Other substantial limits to restrictive laws of rights, liberties and guarantees are the general and abstract character of the legislative measure, the prohibition of retroactive effect and the safeguard of the essential core of the restricted right, as mentioned above.

6. Explain the institutional means through which a limitation to a human right may be imposed. Can limitation to human rights be introduced in any way other than through legislation?

The means through which a limitation to a fundamental right may be imposed are regulated by Article 18 of the Constitution of the Portuguese Republic, which rules: 

“1. The constitutional provisions relating to rights, freedoms and guarantees shall be directly applicable to, and binding on, both public and private bodies.

2. Rights, freedoms and guarantees may be restricted by law in only those cases expressly provided for in this Constitution; restrictions shall be limited to the extent necessary to safeguard other rights or interests protected by this Constitution.

3. Laws restricting rights, freedoms and guarantees shall be general and abstract in character, shall not have retroactive effect and shall not limit, in extent or scope, the essential content of the constitutional provisions”.

The concept of «law» used by Article 18 is equivalent to a law created by Parliament (Assembly of the Republic), since Article 165 of the Constitution rules that «the Assembly of the Republic has exclusive legislative powers with respect to the following matters, except where legislative power is delegated to the Government: b) Rights, freedoms and guarantees». Therefore, the Government may limit or restrict a human right but only if it has an authorisation from the Parliament to do it. The specific regime of delegation of legislative powers is a very strict one, since laws delegating powers of legislation (to the Government) shall determine the subject, the purpose, the extent and the period of the delegation, and any power to extend that period (Article 165, paragraph 2). On the other hand, delegated powers of legislation shall not be used more than once, but may be exercised in stages (Article 165, paragraph 3). Moreover, delegated powers to legislate lapse when the Government to which they were granted is dismissed [25], when the term of the Assembly ends or when the Assembly is dissolved (Article 165, paragraph 4).

It must be taken in account that in Portugal the system of human rights (or fundamental rights, considered by commentators as the rights that are explicitly or implicitly protected by the Constitution) is based on a fundamental distinction between the «classical» fundamental rights («rights, freedoms and guarantees», to use the precise language of Portuguese Constitution), like the right to life or the right to personal integrity, and the so-called «second generation rights» («economic, social and cultural rights» as the Constitution call them), like the rights of people with disabilities or the right to public health care. The strict regime described above applies only to «rights, freedoms and guarantees». In a certain way, the social rights have a less rigid protection by the Portuguese Constitution.

There are, notwithstanding, some rules that in a certain way «soften» the sharpness of that distinction between «classical» and «second generation» rights. According to Article 17 of the Constitution, «the general system of rights, freedoms and guarantees comprises those set out in Section II and fundamental rights of a similar kind». Therefore, if a «social right» has a «similar kind» of rights, freedoms and guarantees it will have the high level of protection granted to these rights, namely the protection granted by Article 18, which rules, as we have seen, that limitations to fundamental rights must be imposed only by law of the Parliament or by a decree-law of the Government following an authorisation of Assembly of the Republic. In any case, it is absolutely forbidden to restrict fundamental rights through other means, such as administrative regulations or decisions taken by administrative bodies.

7. Are there any entrenched human rights inamenable to limitation? For example the right to equality, the right to a fair trial and such rights as are associated with the protection of the dignity of the individual and his bodily and mental integrity.

In a very simple way, it can be answered that in the Portuguese legal system there are no human rights inamenable to limitation[26]. All rights may be limited since Article 18 of Portuguese Constitution, which rules this matter, neither distinguishes between certain kinds of rights nor specifies rights inamenable to limitation. See answers to questions 3 and 6.

However, the limitation of fundamental rights must be done according to Article 18.

And we must also analyse the specific level of protection that is connected with every single right. For instance,  according to Article 24 and Article 25 of  Portuguese Constitution

“Article 24

Right to life

1. Human life is inviolable.

2. In no case shall the death penalty be applied.

Article 25
Right to personal integrity

1. The moral and physical integrity of the person is inviolable.

2. No one shall be subjected to torture or to cruel, degrading or inhuman treatment or punishment.”

Therefore, it’s absolutely clear that it’s almost impossible to limit the right to life, for instance (and we don’t need to enter in the very controversial question of abortion to take that conclusion). The Portuguese Constitution doesn’t accept, without exceptions, the sole existence of death penalty, which is absolutely forbidden in all cases, including, for instance, crimes committed during war. So, it’s possible to conclude that, in practice, the right to life is inamenable to limitation.

Furthermore, Article 34 states

“Inviolability of home and correspondence

1. An individual's home and the privacy of his or her correspondence and other means of private communication are inviolable.”[27]

In other articles[28], Portuguese Constitution rules that, for example, “4. A person may be deprived of citizenship or subjected to restrictions on his or her civil capacity only in the cases and under the conditions laid down by law, and never on political grounds” (see Article 26, “Other personal rights”) (our underline mark).

Also the Article 34, paragraph 4, about inviolability of home and correspondence[29], rules as follows:

“4. Interference by public authority with correspondence, telecommunications or any other means of communication is prohibited, except in the cases laid down by the law relating to criminal procedure.” (our underline mark).

Therefore, it’s possible to conclude that, in global overview, all rights can be limited, but this limitation must respect the general principles contained in Article 18 and the specific rules of protection of the right that we intend to restrict.  

8. Does the Constitution or basic law restrict the period during which a guaranteed human right may be limited?

9. Can the limitation of a human right last longer than the necessitous circumstances that led to its introduction last? Are the judicial authorities entrusted with jurisdiction to review the justification of a limitation to a human right for any given period of time?

According to Article 18, paragraphs 2 and 3 of the Portuguese Constitution, “2. Rights, freedoms and guarantees may be restricted by law in only those cases expressly provided for in this Constitution; restrictions shall be limited to the extent necessary to safeguard other rights or interests protected by this Constitution. 3. Laws restricting rights, freedoms and guarantees shall be general and abstract in character, shall not have retroactive effect and shall not limit, in extent or scope, the essential content of the constitutional provisions”.

Therefore, except for the constitutional provisions concerning the suspension of the exercise of rights during a state of siege or a state of emergency (Article 19; see below question 11), there is no constitutional provision concerning the period of time of restrictions on fundamental rights. Answering question 8, the response is clearly a negative one: the Constitution does not restrict the period during which a guaranteed fundamental right may be limited.

However, by its own nature, limitations to fundamental rights must last only during the circumstances that have led to its introduction.

It is a difficult question to know if the judicial authorities have the power to control or  review the justification of a limitation to a human right for any given period of time. The Portuguese Constitutional Court doesn’t have any decisions on this issue. The Court has said, several times, that constitutional jurisdiction must respect the liberty of the legislative bodies, since they have democratic legitimacy. Meanwhile, the Court has also said that the discretionary power of the legislator must be exercised according to constitutional rules, which, obviously, include the rules concerning fundamental rights. The jurisprudence of the Portuguese Constitutional Court does not apply the so-called «political-question doctrine» of the U.S. Supreme Court, but there is always a special difficulty in the definition of the limits of judicial review concerning the freedom of the legislative bodies.

However, there is no doubt that the Court is entrusted with jurisdiction to review the justification of a limitation to a human right for any given period of time. When doing so, the Court must, notwithstanding, exercise its judicial power without interfering with the political aspects of a decision taken by the legislative organs that restricts a fundamental right. In a certain way, it must exercise a «broad scrutiny», not a «strict» one, to use again the concepts developed by the U.S. Supreme Court. The constitutional jurisdiction must decide only on a legal ground, not on a political one.

10. Does the Constitution make provision for preemptive control of the constitutionality of any given law importing limitations to human rights? Furthermore, is there provision in the constitution or the law for a sequential or remedial control of the constitutionality of a law limitative of the applicattion of human rights?

The Portuguese Constitution has, indeed, a special provision for preemptive control of any laws, with no exception. Thus, including laws importing limitations to human rights. According to Article 278, paragraph 1, of the Constitution of Portuguese Republic,  the President of the Republic may request the Constitutional Court to undertake an anticipatory review of the constitutionality of any provision of an international treaty that has been submitted to the President for ratification, or of an instrument sent to the President for promulgation as a law (from the Parliament) or a decree-law (from the Government), or of an international agreement where the decree giving approval has been presented for the signature of the President. And, according to Article 279, paragraph 1, if the Constitutional Court rules that a provision of a decree or international agreement is unconstitutional, the instrument must be vetoed by the President of the Republic or the Minister for the Republic, as the case may be, and shall be returned to the organ that approved it. The decree may not be signed or promulgated unless the organ that approved it deletes the provision ruled to be unconstitutional or, as appropriate, confirms it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote.

However, since anticipatory review of constitutionality is seldom used, the main instrument of control of the constitutionality of laws importing limitations to human rights is the sequential or remedial one, which covers either the abstract review or the concrete review of legislation. From a statistic point of view, the concrete control is, far large, the main instrument of control of the constitutionality of legal limits to human rights. In this field, the Constitutional Court has jurisdiction to hear appeals against any of the following court decisions:

(b)     Decisions applying a legal rule, the constitutionality of which was challenged during the proceedings. The guarantee of human rights is assured through the mechanism of the appeal, since the Portuguese Constitution doesn’t have instruments similar to the German Verfassungsbeschwerde or the Spanish recurso the amparo.

11. Is there power to suspend, as opposed to limiting, a human right? If there is such a power, which authority is entrusted with competence to suspend the application of human rights? Are the criteria for suspension specified in the constitution or basic law? If suspension is permissible is any decision to that end subject to judicial control?

The Portuguese Constitution has a special provision concerning suspension of human rights. Its Article 19 rules as follows:

“1. The organs with supreme authority shall not, jointly or separately, suspend the exercise of rights, freedoms and guarantees, except where a state of siege or a state of emergency has been declared in the manner laid down by this Constitution.

2. A state of siege or a state of emergency may be declared in all or any part of the national territory, but only in the event of actual or imminent aggression by foreign forces, of serious threat to, or disturbance of, the democratic constitutional order or of a public disaster.

3. A state of emergency may be declared where the circumstances mentioned in paragraph 2 are of a less serious nature; it shall at the most give rise to the suspension of some of the rights, freedoms and guarantees that are capable of suspension.

4. When the choice is made between a state of siege and a state of emergency, the principle of proportionality shall be respected in making the decision in favour of one or other state and in giving effect to that decision; in particular, the extent of application, the duration and the measures provided for shall be limited to those strictly necessary for the prompt restoration of the constitutional normality.

5. A declaration of a state of siege or a state of emergency shall be based on properly substantiated grounds, and shall specify those rights, freedoms and guarantees, the exercise of which is to be suspended; it shall be in force for a period of not more than 15 days or, where the declaration results from a declaration of war, for the period laid down by law, but it may from time to time be renewed subject to the same time limits.

6. A declaration of a state of emergency or a state of siege shall in no case affect the rights to life, personal integrity and identity, civil capacity, and citizenship, of the person, the non-retroactivity of criminal law, the defence rights of accused persons and the freedom of conscience and religion.

7. A declaration of a state of siege or a state of emergency may affect constitutional normality only within the limits set out in this Constitution and in law; in particular, it may not affect the enforcement of the constitutional provisions with respect to the powers and operation of the organs with supreme authority and the organs of self-government of the autonomous regions, nor the rights and immunities of their members.

8. A declaration of a state of siege or a state of emergency shall vest the authorities with the powers to take the action necessary and appropriate for the prompt restoration of the constitutional normality.”

As we see, the suspension of the exercise of human rights is permitted only during a state of siege or a state of emergency, and the Constitution specifies the criteria for that suspension. The legal aspects of the decisions concerning the suspension of human rights are not excluded from judicial control.  

12. Make reference to the jurisprudence of the constitutional and other national courts on the interpretation and application of human rights with particular reference to decisions enlightening on the subject of their limitation and its implications.

The answer to this question will focus on the most relevant category of fundamental rights protected by the Portuguese Constitution, the so-called “rights, freedoms and guarantees”. These rights benefit from a special protection system (Article 17)[30], that includes various rules of protection against any restriction or limitation. According to the Portuguese constitutional jurisprudence, a restriction on rights, freedoms and guarantees is only possible in the following terms:

a)             The regulation (including the restrictions) of matters of rights, freedoms and guarantees is an exclusive legislative power of the Assembly of the Republic, except if the legislative power is delegated to the Government [Article 18, paragraph 2 and Article 165, paragraph 1, b)]. The Constitutional Court frequently decrees the organic unconstitutionality of restrictive laws, based on the violation of the provisions mentioned above. One of these numerous cases is decision no. 278/95[31], that judged unconstitutional an unauthorised governmental law that regulated the banking secret and its exceptions (restricting the right to privacy, protected by Article 26, paragraph 1 of the Constitution).

b)            The possibility of restrictions or limitations on rights, freedoms and guarantees is limited to the cases foreseen by the Constitution (Article 18, paragraph 2). This constitutional provision must be interpreted in a wide sense, including, at least[32], three possibilities[33]: (1) restrictions expressly foreseen by the Constitution, (2) restrictions expressly authorised by the Constitution, and (3) restrictions without express constitutional provision, but yet implicitly grounded on the Constitution.

The first two types of restrictions are clearly accepted and commonly referred by the constitutional jurisprudence (see, for example, decision no. 479/94[34], that emphasised that the restrictions expressly foreseen by the Constitution leave the legislator only a small space of action to impose limits on rights[35], and decision no. 241/02[36], that reaffirmed that public authorities mustn’t interfere in private correspondence, telecommunications or any other means of communication, except in the cases regulated by the criminal procedure law).

In this group of cases, the Constitutional Court tends to also admit restrictions indirectly authorised by the Constitution: decision no. 244/85[37] considered that there was no violation of the Constitution in the case of a law that established ineligibilities in local elections, although the Constitution only authorises the creation of ineligibilities in legislative elections – Article 154.

The third type of restriction (the one that implicitly derives from the Constitution) is based on the idea that fundamental rights have inherent restraints. There are many decisions of the Constitutional Court that use this kind of argument to justify the admissibility of laws that affect fundamental rights. For example, decision no. 113/97[38] referred to the inherent restraints of the freedom of expression and information (protected by Article 37 of the Constitution). In the same context, decision no. 7/87[39] considered that the right to private propriety is not unlimited and that the seizure of objects in criminal procedure is an inherent restraint of that right. This type of argument is used by other superior courts, in matters of limitations on fundamental rights (see, for example, the Supreme Administrative Court’s decision of January 26^th, 1986[40]).

c)             Restrictions must respect the principles of adequacy, exigency and just measure, or proportionality in the strict sense (Article 18, paragraph 2)[41]. The constitutional jurisprudence frequently uses this parameter[42] to evaluate restrictions and has already established a relation between all the principles mentioned above. On this matter, one of the most important decisions is related to the problem of the limitations on the propriety of pharmacies, which can only be owned by graduated pharmacists (decision no. 187/01). The Constitutional Court said that when a restrictive legal measure is necessary or exigible it also must be considered adequate and that the evaluation of exigency is a complex task, involving, most times, an appraisement, in the concrete case, of the relation between the measure and its effects - considering the pursued objective – to find out which of the available alternatives is preferable.

d)            The restrictions on rights, freedoms and guarantees are reserved to the law, in a substantial sense: they must be contained in a legal act, that must have general and abstract character (Article 18, paragraph 3). According to the constitutional jurisprudence, the legislator is forbidden to create individual and concrete restrictions on rights, freedoms and guarantees. This constitutional demand has been recognised and applied by the Constitutional Court in many occasions, ever since the activity of the Constitutional Comission[43], as we can see from Parecer (Opinion) no. 3/78[44]. This also means that a restrictive measure must have a legal base leading the constitutional jurisprudence to consider that a restrictive law is not susceptible of analogic application[45].

e)             Laws restricting rights, freedoms and guarantees mustn’t have retroactive effect (Article 18, paragraph 3). The constitutional jurisprudence, though, usually connects the prohibition of retroactive restrictions with the principle of the protection of confidence of citizens. Therefore, the Constitutional Court considers that only an intolerable retroactivity, (affecting in an inadmissible and arbitrary way the rights and legitimate expectations of citizens), violates the principle of the protection of confidence, contained in the idea of a Democratic State based on the rule of law, established in Article 2 of the Constitution[46].

The Court also distinguishes two types of prohibited retroactivity: (1) restrictive laws totally retroactive, that apply to situations that occurred completely in the past[47], and (2) restrictive laws partially retroactive, that apply to situations that started in the past but are not yet finished[48].

f) Finally, the restrictions mustn’t affect the core aspects of the constitutional provisions (Article 18, paragraph 3)[49].

Another important issue analysed by the Constitutional Court in what concerns the limitations on fundamental rights is the distinction between situations that are similar but not equal to restrictions (in a specific sense). One of those situations has to do with the need of conciliating different rights or principles. In this matter, the Court admits the existence of “harmonising laws”. See, for example decisions no. 7/87[50], no. 458/93[51], no. 254/99[52] (the later two, about the right to information, access to information and confidentiality) and decision no. 205/00[53] (on the right to the propriety of the soil and to the propriety of the constructions lying above it, made by a third person).

Finally, it must be stated that the Court also distinguishes restrictive from conditioning[54] and conformating[55] laws.

13. The impact of the jurisprudence of international and supranational courts especially that of the European Court of Human Rights on the case law of the country in the area under consideration, (limitation of human rights) and the country; the impact, if any, of national case law on the jurisprudence of international and supranational courts on matters concerning human rights and their limitation.

There is quite a considerable impact of the jurisprudence of international and supranational courts, namely of the ECHR, on Portuguese constitutional case-law. However, ECHR decisions’ are usually followed only in specific matters, such as guaranties of defence during criminal procedure and limitations on fundamental rights (especially on the right to freedom, right to privacy and to respect for family life).

In what concerns the guaranties of defence during criminal procedure, the Portuguese Constitutional Court shares the ECHR’s views on the importance of the impartiality of the courts and of the due process of law. The Portuguese constitutional jurisprudence defends the need of equality of arms and of respect for the right of the accused to make full answer and defence, in accordance not only to the Portuguese Constitution (Article 20, paragraph 4), but also to the European Convention of Human Rights (Article 6, paragraph 1).

The right to face an independent and impartial court, established by law, is one of the guaranties attached to the right to due process, as the ECHR has ruled in cases De Cubber v. Belgium (1984) and Hauschildt v. Denmark (1989)[56]. The Portuguese Constitutional Court has also adopted this position, underlining the importance given to appearances and the increased sensitivity of the public to the fair administration of justice, following the decisions in ECHR’s cases like Borgers v. Belgium (1991), Vermeulen v. Belgium (1996) and Van Orshoven v. Belgium (1997)[57].

Moreover, both jurisprudences (Portuguese and European) share the understanding that the concept of impartial court implies the existence of both an objective and a subjective dimension, as it has been stated in ECHR’s cases Golder v. United Kingdom (1975) and Saraiva de Carvalho v. Portugal (1994)[58].

Furthermore, the Portuguese Constitutional Court has highlighted, after ECHR’s decisions in cases Borgers v. Belgium (1991), Lobo Machado v. Portugal (1996) and Van Orshoven v. Belgium (1997)[59], the fact that the right to due process necessarily implies the right to make full answer and defence. The connection between the former and the need to ensure equality of arms and an adequate participation of the accused in the criminal process was also underlined by our constitutional case-law[60], reaffirming what the ECHR had already stated in case Lamy v. Belgium (1989).

Still regarding the problem of the guaranties of defence, the Portuguese Constitutional Court has followed the ECHR’s decisions in matters such as the need of providing the accused, for him to have the benefit of a fair trial, free assistance of an interpreter for the translation or interpretation of all the documents or statements in the proceedings against him. On this subject, our case-law refers[61] to ECHR’s case Kamasinski v. Austria (1989).

Moreover, the Portuguese case-law also reaffirms[62], after ECHR’s decisions in cases Fox, Campbell and Hartley, X v. United Kingdom (1990) and Van der Leer v. Netherlands (1990), the right of an individual deprived of his liberty to be informed promptly of the reasons for his being taken into custody, which constitutes a safeguard of personal liberty, of great importance in any democratic system founded on the rule of law.

Other than the guaranties of defence during criminal procedure, and as we have said before, the Portuguese Constitutional Court has closely followed the ECHR’s jurisprudence on limitations on fundamental rights. A good example of this is our national case-law on the restrictions on the right to family life due to the expulsion of foreigners. On this matter, the Constitutional Court has frequently invoked Article 8 of the European Convention of Human Rights to limit the application of the Portuguese legislation on the expulsion of foreigners. Following ECHR’s decisions in cases Moustaquim v. Belgium (1991) and Beldjoudi v. France (1992) – among many others – it has been stated[63] that the expulsion of foreigners cannot cause, either in a direct or indirect manner, the separation of parents and children or the subsequent expulsion of the children (minors and at the parents’ charge), in order to follow the expelled parent.

Another matter in which the impact of the ECHR’s jurisprudence on Portuguese case-law is quite remarkable is the right to privacy. In fact, the Constitutional Court[64] has imposed several demands in order to consider legal the interception of telephone calls during a criminal investigation, namely authorisation and following by a judicial authority. To justify his position, the Court mentioned, among other arguments, the ECHR’s decisions in cases Valenzuela Contreras v. Spain (1998), Klass and others v. Germany (1978), Malone v. United Kingdom (1984), PG and JH v. United Kingdom (2001), Prado Bugallo v. Spain (2003), Kruslin v. France (1990) and Huvig v. France (1990).

Regarding the right to liberty, the Constitutional Court has closely followed[65] the ECHR’s jurisprudence, with special attention to case Guzzardi v. Italy (1980), to establish a distinction between deprivation of liberty, within the meaning of Article 5 of the European Convention, and restrictions on liberty of movement and freedom to choose one's residence. It has been said that there is a difference of intensity between the two, to be evaluated having in mind all the factors of a concrete case, taken cumulatively.

The Portuguese Constitutional Court has also invoked the ECHR’s jurisprudence[66] on forced or compulsory labour. Resorting to the European Court’s decisions in the case Van der Mussele v. Belgium (1983), our national case-law has underlined the fact that one has to regard to all the circumstances of a case in order to determine whether a service required of an individual falls within the prohibition of compulsory labour. Furthermore, it is important to bear in mind that the person’s prior consent is not, in itself, sufficient to consider that the required work is not compulsory, because it can have been determined by the menace of a penalty or comparable risks. Therefore, and as it has been stated, a broader evaluation has to be done.

In what regards to the impact of national case law on the jurisprudence of the ECHR, it is, obviously, quite scarce. However, one can nevertheless find a few ECHR’s decisions in which Portuguese courts’ decisions have been taken into account. In case Teixeira de Castro v. Portugal (1998), the ECHR bears in mind the distinction drawn by Portuguese legal writers and jurisprudence, under the generic term ‘infiltrators’, between ‘undercover agent’ and ‘agent provocateur’. It also acknowledges that the Supreme Court[67] accepts the use of “infiltrators” in the fight against drug-trafficking, subject to certain conditions. In case Almeida Garrett, Mascarenhas Falcão and others v. Portugal (2000), the ECHR takes into account previous Constitutional Court’s decisions[68] on the system of payment of compensation following a nationalisation or expropriation. Another Constitutional Court’s decision, on the distinction, under Portuguese criminal law, between the indictment – which is the responsibility of the public prosecutor’s office – and the despacho de pronúncia – which designed solely to verify the probability of guilt in order to avoid a trial where there was no prima facie evidence - was also considered by the ECHR in case Saraiva de Carvalho v. Portugal (1994). Finally, the ECHR has made reference, in case Lopes Gomes da Silva v. Portugal (2000), to a Constitutional Court decision that states that both the Constitution and Article 10 of the Convention provide for certain limits on the exercise of freedom of expression.

The influence of the jurisprudence of the European Court of Justice on our national case-law on human rights is considerably smaller than that of the ECHR, for reasons that can be easily understood (namely, the lack of competence of the ECJ in matters regarding restrictions on human rights). Nevertheless, the Portuguese Constitutional Court has made reference[69] to some of the ECJ’s cases, in decisions on the right to respect for private and family life (establishing that the expulsion of foreign citizens from national territory must observe the principles of proportionality and necessity).

Moreover, the Constitutional Court has mentioned a decision of the ECJ regarding freedom to choose an occupation. Our national case-law[70] has underlined the fact that the ECJ’s jurisprudence admits that prostitution can be considered an economic activity of self-employed persons, but also highlighted that this does not prevent member States from out-lawing activities that favour prostitution.

14. The enforceability and implementation of decisions of the constitutional court of the country on issues bearing on human rights with special reference to their limitation.

The enforceability of the Constitutional Court’s decisions takes a very different bias (?) in concrete and in abstract control.

a) As far as the concrete control is concerned, the implementation of the decisions of the Court depends solely – but totally – on the attitude adopted by the courts that have taken the decisions submitted to Constitutional Court. The Court does not have the power to assure ex officio that its decisions are well applied by other courts. This includes all the decisions of the Constitutional Court, including those who deal with human or fundamental rights. And the citizens, it must be said again, do not have direct access to the Court in order to protect their own rights. A citizen must previously file a complaint in other courts and then, through the mechanism of the appeal, obtain access to the Constitutional Court. 

It must be said that there is a very high level of general compliance to the Constitutional Court decisions by the other courts. It is very difficult to measure this level of compliance, but some empirical studies have shown that it’s very high[71].

If there are no direct and specific mechanisms in order to assure the enforceability and implementation of the decisions of the Portuguese Constitutional Court, the law has created, however, specific appeals which may induce, in a very effective manner, that enforceability. In fact, according to Article 70 of the Law of the Constitutional Court it is possible to appeal to the Court from the following decisions of other courts: (i) those rejecting the application of a rule which has previously been judged unconstitutional or illegal by the actual Constitutional Court; (ii) those rejecting the application of a rule which has previously been judged unconstitutional by the Constitutional Committee[72]  according to the exact terms in which it has been submitted for examination by the Constitutional Court; (iii) those rejecting the application of a rule appearing in a legislative act on the grounds that it contradicts an international convention, or that not apply a rule accordingly to what has been previously decided on the matter by the Constitutional Court. Furthermore, the most recent jurisprudence of the Court adopted a quite broad conception of its own power to control the respect of its decisions by other courts (decision no. 340/2000, in Acórdãos do Tribunal Constitucional, vol. 47, p. 541).

         b) In what concerns the abstract control, we must distinguish between the anticipatory review of constitutionality and general (or ex post) review.

The effects of a Court’s decision in the domain of anticipatory review are regulated by Article 279 of Portuguese Constitution, which rules:

“1. If the Constitutional Court rules that a provision of a decree or international agreement is unconstitutional, the instrument must be vetoed by the President of the Republic or the Minister for the Republic, as the case may be, and shall be returned to the organ that approved it.

2. In the circumstances described in paragraph 1, a decree may not be signed or promulgated unless the organ that approved it deletes the provision ruled to be unconstitutional or, as appropriate, confirms it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote.

3. If the instrument is revised, the President of the Republic or the Minister for the Republic, as the case may be, may request an anticipatory review of the constitutionality of any of its provisions.

4. Where the Constitutional Court rules that a provision of a treaty is unconstitutional, that treaty shall be ratified only if the Assembly of the Republic approves it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote”.

15. Indicate the judicial and any other institution of your country, if any, trusted with jurisdiction to review complaints involving violation of human rights.

As we have seen at answer to question 5, the Constitutional Court is the only authority vested with ultimate jurisdiction to review of constitutionality, so that Article 221 of Portuguese Constitution states “The Constitutional Court is the court that has the specific power to administer justice in matters involving questions of legal and constitutional nature.”

The Constitutional Court has the power to decide questions of unconstitutionality and illegality as provided in the Article 277 and following articles, and more other important powers as ruled by Article 223.

“Article 277
Positive unconstitutionality

1. Rules of law that contravene any provision of this Constitution or the principles contained in it are unconstitutional.

2. International treaties that are unconstitutional, in substance or form, but have been duly ratified may nonetheless be applied as part of Portuguese law, provided that the provisions are applied as part of the law of the other treaty party, unless the unconstitutionality arises from the contravention of a fundamental principle.”

About “Anticipatory review of constitutionality” and legitimacy to require, Article 278 of Portuguese Constitution states

“Article 278
Anticipatory review of constitutionality

1. The President of the Republic may request the Constitutional Court to undertake an anticipatory review of the constitutionality of any provision of an international treaty that has been submitted to the President for ratification, or of an instrument sent to the President for promulgation as a law or a decree-law, or of an international agreement where the decree giving approval has been presented for the signature of the President.

2. Ministers for the Republic may also request the Constitutional Court to undertake an anticipatory review of the constitutionality of any provision of a regional legislative decree or a regulative decree for the implementation of the general law of the Republic that has been sent to them for signature.

3. An anticipatory review of constitutionality shall be requested not later than 8 days after the date on which the instrument is received.

4. The President of the Republic, the Prime Minister or one-fifth of the Deputies of the Assembly of the Republic, entitled to vote may request the Constitutional Court to undertake an anticipatory review of the constitutionality of any provision of any decree submitted to the President for promulgation as an organic law.

5. On the same day as the President of the Assembly of the Republic submits to the President of the Republic a decree for promulgation as an organic law, he or she shall inform the Prime Minister and the parliamentary parties in the Assembly of the Republic.

6. An anticipatory review of constitutionality of the kind described in paragraph 4 shall be requested not later than 8 days after the date referred to in paragraph 5.

7. Without prejudice to paragraph 1, the President of the Republic may not promulgate decrees of the kind described in paragraph 4 before 8 days have elapsed from the date on which they were received, or before a requested ruling of the Constitutional Court is handed down.

8. The Constitutional Court shall hand down its ruling within 25 days; where paragraph 1 applies, this time limit may be reduced by the President of the Republic for reasons of urgency.”

Effects of rulings are fixed in Article 279 of Portuguese Constitution, which rules as follows:

“Article 279
Effects of rulings

1. If the Constitutional Court rules that a provision of a decree or international agreement is unconstitutional, the instrument must be vetoed by the President of the Republic or the Minister for the Republic, as the case may be, and shall be returned to the organ that approved it.

2. In the circumstances described in paragraph 1, a decree may not be signed or promulgated unless the organ that approved it deletes the provision ruled to be unconstitutional or, as appropriate, confirms it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote.

3. If the instrument is revised, the President of the Republic or the Minister for the Republic, as the case may be, may request an anticipatory review of the constitutionality of any of its provisions.

4. Where the Constitutional Court rules that a provision of a treaty is unconstitutional, that treaty shall be ratified only if the Assembly of the Republic approves it by a majority of two-thirds of the Deputies present, provided that the majority exceeds an absolute majority of the Deputies entitled to vote.”

About general review of constitutionality and legality, see Article 281 which states:

“Article 281
General review of constitutionality and legality

1. The Constitutional Court has jurisdiction to undertake review, and to make rulings that are generally binding, in the following matters:

a. Unconstitutionality of any legal rule;

b. Illegality of any provision of legislation, on the ground that it contravenes superior law;

c. Illegality of any provision of a regional legislative instrument on the ground that it contravenes the statute of the region or the general law of the Republic;

d. Illegality of any instrument made by an organ with supreme authority on the ground that it contravenes the rights of a region as set out in its statute.

2. The following persons are entitled to request the Constitutional Court to make generally binding rulings on questions of unconstitutionality and illegality:

a. The President of the Republic;

b. The President of the Assembly of the Republic;

c. The Prime Minister;

d. The Ombudsman;

e. The Attorney-General;

f. One-tenth of the Deputies of the Assembly of the Republic;

g. The Ministers for the Republic, the regional legislative assemblies, or their presidents, the presidents of the regional governments or one-tenth of the Deputies of a regional legislative assembly, in any case of unconstitutionality on the ground of a contravention of the rights of an autonomous region or in any case of illegality on the ground of contravention of the statute of the region or the general law of the Republic.

3. The Constitutional Court also has jurisdiction to review and give generally binding rulings on the unconstitutionality or illegality of a legal rule, the application of which it has held to be unconstitutional or illegal in three appeals.”

Effects of rulings of unconstitutionality or illegality are fixed in Article 282:

“Article 282
Effects of rulings of unconstitutionality or illegality

1. A generally binding ruling of unconstitutionality or illegality shall be given effect from the date when the provision ruled unconstitutional or illegal came into force and shall require that any provisions that may have been revoked shall be reinstated, with retroactive effect.

2. However, where unconstitutionality or illegality derives from contravention of a constitutional or legal provision that has been subsequently made, the ruling shall be given effect only from the date when that provision came into force.

3. Cases already decided shall hold good, except if the Constitutional Court rules otherwise in respect of a legal rule relating to penal or disciplinary matters or an illegal act under a regulatory ordinance or a provision that is disadvantageous to the accused.

4. When required in the interests of legal certainty, or for reasons of equity or public interest of exceptional importance, which shall be justified if requested, the Constitutional Court may prescribe effects of unconstitutionality or illegality that are more restrictive than those specified in paragraphs 1 and 2.”

Article 283 rules about unconstitutionality by omission 

“Article 283
Unconstitutionality by omission

1. At the request of the President of the Republic, the Ombudsman or, in a case where the rights of an autonomous region have been contravened, the presidents of the regional legislative assemblies, the Constitutional Court shall review and verify whether there has been an omission, in contravention of this Constitution, to enact legislation that is necessary to implement the provisions of this Constitution.

2. If the Constitutional Court verifies that there has been unconstitutionality by omission, it shall communicate that fact to the competent legislative organ.”

About appeals on constitutionality and legality, Article 280 states as follows

“Article 280
Appeals on constitutionality and legality

1. The Constitutional Court has jurisdiction to hear appeals against any of the following court decisions:

a. Decisions refusing to apply a legal rule on the ground of unconstitutionality;

b. Decisions applying a legal rule, the constitutionality of which was challenged during the proceedings.

2. The Constitutional Court also has jurisdiction to hear appeals against any of the following court decisions:

a. Decisions refusing to apply a legislative provision on the ground of illegality arising from contravention of some superior law;

b. Decisions refusing to apply a provision of a regional legislative instrument on the ground of illegality arising from contravention of the statute of an autonomous region or the general law of the Republic;

c. Decisions refusing to apply a provision of an instrument made by an organ with supreme authority on the ground of illegality arising from contravention of the statute of an autonomous region;

d. Decisions applying a provision, the legality of which was challenged during the proceedings on any of the grounds specified in sub-paragraphs (a), (b) or (c).

3. Where a court refuses to apply a provision of an international convention, any legislation or a regulatory decree, any appeal under paragraph 1(a) or 2(a) must be brought by the Public Prosecution.

4. An appeal under paragraph (1)(b) or (2)(d) may be brought only by the party who raised the question of unconstitutionality or illegality; the law shall prescribe the requirements and procedure with respect to the bringing of these appeals.

5. The Constitutional Court also has jurisdiction to hear appeals against court decisions which apply provisions that it has previously ruled to be unconstitutional or illegal; the Public Prosecution must institute an appeal in all such cases.

6. Appeals may only be made to the Constitutional Court on questions of unconstitutionality or illegality, as the case requires.”

The Constitutional Court has jurisdiction to hear appeals against decisions refusing to apply a legal rule on the ground of unconstitutionality or decisions applying a legal rule, the constitutionality of which was challenged during the proceedings.

So, the Law of the Constitutional Court, Law no. 28/82, of 15^th November (modified by Law no. 143/85, of 26^th November, Law no. 85/89, of 7^th September, Law no. 88/95, of 1^st September and by Law n. 13-A/98, of 26^th February), says 

“Article 70

(Decisions that may be appealed)

1. An appeal may be made to the Constitutional Court, in section, regarding the following courts decisions:

a)     Those rejecting the application of a rule on the grounds of unconstitutionality;

b)    Those applying a rule the unconstitutionality of which has been raised during the proceedings;

c)     Those rejecting the application of a rule which is included in a legislative act based on the grounds of its illegality in violating a law of reinforced value;

d)    Those rejecting the application of a rule appearing in regional legislation based on grounds of its illegality in violating the statute of na autonomous region or the general law of the Republic;

e)     Those rejecting the application of a rule issued by na organ of supreme national authority with grounds based on its illegality in violating the statute of na autonomous region;

f)     Those rejecting the application of a rule the illegality of which has been raised during the proceedings based on any of the grounds mentioned in sub-paragraphs c), d) and e);

g)             Those rejecting the application of a rule which has previously been judged unconstitutional or illegal by the actual Constitutional Court;

h)             Those rejecting the application of a rule which has previously been judged unconstitutional by the Constitutional Committee according to the exact terms in which it has been submitted for examination by the Constitutional Court;

i)              Those rejecting the application of a rule appearing in a legislative act on the grounds that it contradicts an international convention, or that apply it contrary to what has been previously decided on the matter by the Constitutional Court.

2. The appeals envisaged in sub-paragraph b) and f) of the previous number only apply to decisions that admit no ordinary appeal because the law does not provide for this, or because all those available to the case have been exhausted, except those aimed at standardising jurisprudence.

3. Claims made to presidents of the superior courts are deemed similar to ordinary appeals in cases where appeals are not admitted or are withheld, as are claims against orders of reporter judges for discussion.

4. All ordinary appeals are understood to be exhausted, under the terms of paragraph 2, when there has been renunciation, be it that the respective period has passed without the appeal being filed or the appeals filed can not proceed for procedural reasons.

5. Decisions subject to obligatory ordinary appeal, according to the terms of the respective procedural law, may not be admitted for appeal to the Constitutional Court.

6. If the decision admits an ordinary appeal, even for standardising jurisprudence, not submitting an appeal to the Constitutional Court does not preclude the right to submit it for a later decision to confirm the first.”

Besides courts, there are institutions in our country that can receive citizens’ complaints concerning acts or omissions on the part of public bodies, such as the Ombudsman, created in 1976 by  Portuguese Constitution. According to Article 23 of Portuguese Constitution

“Article 23
Ombudsman

1. Citizens may present complaints concerning acts or omissions on the part of public bodies to the Ombudsman, who shall undertake a review, without power of decision, and shall make such recommendations to the competent organs as are necessary to prevent or make good injustice.

2. The actions of the Ombudsman shall be independent of any acts of grace or legal remedies provided for in this Constitution or the law.

3. The office of the Ombudsman shall be an independent organ; the Warden of Justice shall be appointed by the Assembly of the Republic, for a term established by law.

4. The organs and personnel of the Public Service shall co-operate with the Ombudsman in the discharge of the Ombudsman's responsibilities.”

The Ombudsman[73] is entitled to request the Constitutional Court to make generally binding rulings on questions of unconstitutionality and illegality [see Article 281, paragraph 2, d)] and to request the Constitutional Court  to review and verify the unconstitutionality by omission (see Article 283).