OPPOSITION TO THE ACQUISITION OF PORTUGUESE NATIONALITY | NATURALIZATION | AUTOMATIC EFFECTS OF CRIMINAL CONVICTION | FUNDAMENTAL RIGHT OF ACCESS TO PORTUGUESE CITIZENSHIP
Constitutional Court, judgment no. 497/2019, 26.09.2019
JURISDICTION: Constitutional
CASE: 321/17
SUBJECT: Constitutional appeal
RAPPORTEUR: Lino Rodrigues Ribeiro
RULING: The Constitutional Court decides to hold as unconstitutional the norm in Article 6(1)(d) of the Nationality Act and in Article 19(1)(d) of the Nationality Regulation according to which Portuguese nationality may not be granted by naturalization to a person who has committed a criminal offense punishable with a prison sentence up to three years or more, when the penalty applied was suspended in its execution and it was decided not to enter the conviction in the person’s criminal record. Therefore, the Constitutional Court rejects the appeal.
DOMESTIC LAW:
Portuguese Constitution [Articles 4, 15(3), 16(2), 18, 26, 30(4), 36, 64(2)(b), 67]
Law no. 28/82, of 15 November 1982 [Article 70(1)(a)]
Law no. 37/81, of 3 October 1981, as amended by Organic Law no. 9/2015, of 29 July 2015 [Articles 6(1)(d), 11, 12]
Law no. 37/81, of 3 October 1981, as amended by Organic Law no. 2/2018, of 5 July 2018 [Articles 6(1)(d), 9(1)(b)]
Organic Law no. 2/2018, of 5 July 2018 (Articles 4, 5)
Criminal Code [Articles 50(1), 210(1)]
Law no. 57/98, of 18 August 1998, as amended by Law no. 114/2009, of 22 September 2009 (Article 17)
Law no. 37/2015, of 5 May 2015 (Article 13)
Decree-Law no. 237-A/2006, of 14 December 2006 [Articles 2, 12, 19(1)(d)]
Decree-Law no. 237-A/2006, of 14 December 2006, as amended by Decree-Law no. 71/2017, of 21 June 2017 [Article 19(1)]
Constitutional Court, judgment no. 599/2005, 02.11.2005
Constitutional Court, judgment no. 281/2010, 05.07.2010
Constitutional Court, judgment no. 106/2016, 24.02.2016
Constitutional Court, judgment no. 331/2016, 19.05.2016
Constitutional Court, judgment no. 426/2018, 20.09.2018
INTERNATIONAL LAW:
Universal Declaration of Human Rights, 1948 (Article 15)
European Convention on Nationality, 1997 (Article 6
FOREIGN LAW: n.a.
KEYWORDS: Opposition to acquisition of Portuguese nationality; naturalization; automatic effects of criminal conviction; fundamental right of access to Portuguese citizenship; principle of proportionality; indicative of the applicant’s good standing; objective, egalitarian and impartial assessment of the naturalization claims; diversity of treatment; egalitarian treatment of the cases; acquisition of the status of Portuguese nationality; loss of civil, political and professional rights; other circumstances surrounding the conviction; intervening repeal of the provision; attribution of nationality by origin; “good standing” requirement; abstract penalty criterion; penalty applied in the instant case; fundamental right not to be deprived of Portuguese citizenship; legally based expectation; international law principles; “real and effective nationality”; citizens who hold the nationality of another state; indication of effective life ties to the state that grants the nationality; habitual and permanent residence; citizens of Portuguese speaking countries; blatant disregard for constitutional principles and values; core of the right to citizenship; specific bond of integration in the Portuguese community; residence in Portugal since childhood; criminal record; suspension of the prison sentence; entitlement to Portuguese citizenship; effective ties to the national community; states’ power to determine who their nationals are
COMMENTS: Coming soon.
REFERENCES IN THE LITERATURE: n.a.
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