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Portugal / Constitutional Court / 106/2016

Appeal filed by the Public Prosecutor

Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:

Key facts of the case:

A non-EU citizen requested the acquisition of Portuguese nationality. The Public Prosecutor's Office filed an application to dismiss the request by alleging the applicant's lack of an effective link to the Portuguese community and the fact that he had been convicted of a crime punishable under Portuguese law by a prison term of three or more years. These prior legal conditions are laid down in the Portuguese Nationality Law and its respective Regulations. The court a quo refused to apply these norms on the grounds that they were unconstitutional. To substantiate its position, the court a quo referred to breaches of the fundamental right to nationality and the constitutional prohibition of penalties that were automatically applied. Concerning this issue, the court a quo said the norms in question did not mean that a conviction of a crime was able to induce any automatic consequences. The Public Prosecutor’s Office was legally required to appeal against this decision owing to the fact that the court a quo had refused to apply the conditions stipulated for acquiring nationality on the grounds that they were unconstitutional.

Outcome of the case: 

The Constitutional Court found that the regulations were not unconstitutional, when interpreted strictly in accordance with the Constitution. The Constitutional Court considered the legal criterion based on the conviction for crimes to be acceptable because it resulted from a general and abstract evaluation made by the legislator, and not from a case-by-case decision. However, it was necessary to solve this apparent contradiction (between the Portuguese Nationality Law and the Portuguese Constitution) in harmony with the Constitution and the fundamental right to Portuguese nationality. The Constitutional Court considered that it was necessary to interpret the rules in the Nationality Law in accordance with other principles and provisions laid down in common Portuguese law, such as the length of time that had elapsed since the criminal conviction, the lapsed time-bar placed on the criminal record and the subsequent legal rehabilitation of the person. As such, the Constitutional Court handed down an interpretative decision concerning the regulations in the Nationality Law, whereby the court a quo had to reformulate the judgement being contested in accordance with the Constitution and with the Constitutional Court’s interpretative judgement.