OPPOSITION TO THE ACQUISITION OF PORTUGUESE NATIONALITY | EFFECTIVE TIES TO THE NATIONAL COMMUNITY | AUTOMATIC EFFECTS OF CRIMINAL CONVICTION | FUNDAMENTAL RIGHT TO CITIZENSHIP
Constitutional Court, judgment no. 106/2016, 24.02.2016
JURISDICTION: Constitutional
PROCESSO: 757/13
SUBJECT: Constitutional appeal
RAPPORTEUR: Maria José Rangel de Mesquita
RULING: The Constitutional Court decides to interpret the norms of Article 9(b) of the Nationality Act and Article 56(2)(b) of the Nationality Regulation with the meaning that the opposition to the acquisition of Portuguese nationality based on conviction in prison sentence of three years or more must bear in mind the way in which the legislator regulated the termination of the effects of a criminal conviction entered in a person’s criminal record, its cancellation and the corresponding legal rehabilitation. Therefore, the Constitutional Court grants the appeal, albeit on different grounds, and orders the amendment of the appealed judgment so that the disputed provisions are interpreted and applied in accordance with the aforementioned meaning.
DOMESTIC LAW:
Portuguese Constitution [Articles 4, 8(2), 12, 13, 15(1), 16(2), 18, 19(6), 20, 26, 30, 112(3), 161(i), 164(f), 166(2), 168, 278]
Law no. 28/82, of 15 November 1982 [Articles 70(1)(a), 72(3), 80(3)]
Law no. 37/81, of 3 October 1981, as amended by Organic Law no. 2/2006, of 17 April 2006 (Articles 1 to 6, 9, 10, 26)
Law no. 25/94, of 19 August 1994
Law no. 27/96, of 1 August 1996 (Article 13)
Law no. 57/98, of 18 August 1998 (Article 15)
Organic Law no. 1/2004, of 15 January 2004
Law no. 43/2013, of 3 July 2013
Organic Law no. 1/2013, of 29 July 2013
Law no. 37/2015, of 5 May 2015 (Article 11)
Organic Law no. 8/2015, of 22 June 2015
Organic Law no. 9/2015, of 29 July 2015
Law no. 2098, of 29 July 1959
Decree-Law no. 322-A/2001, of 14 December 2001
Decree-Law no. 237-A/2006, of 14 December 2006, as amended by Decree-Law no. 43/2013, of 1 April 2013 (Articles 56 to 60)
Constitutional Court, judgment no. 187/2001, 02.05.2001
Constitutional Court, judgment no. 345/2002, 11.07.2002
Constitutional Court, judgment no. 599/05, 02.11.2005
Constitutional Court, judgment no. 73/2009, 11.02.2009
Constitutional Court, judgment no. 473/2009, 23.09.2009
Constitutional Court, judgment no. 605/2013, 24.09.2013
Supreme Administrative Court judgment, proc. 129/15, 21.05.2015
INTERNATIONAL LAW:
Universal Declaration of Human Rights, 1948 (Article 15)
New York Convention relating to the status of stateless persons, 1954 (Article 32)
Convention on the reduction of statelessness, 1961 [Articles 1(1), 8(1)]
International Convention on the elimination of all forms of racial discrimination, 1965 (Article 5)
International Covenant on Civil and Political Rights, 1966 [Article 24(3)]
Convention on the elimination of all forms of discrimination against women, 1979 (Article 9)
Convention on the Rights of the Child, 1989 (Article 7)
International Convention on the protection of the rights of all migrant workers and members of their families, 1990 (Article 29)
European Convention on Nationality, 1997 (Article 4)
Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, 2006 (Article 2)
Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon, 2007 (Articles 20 to 24)
Charter of Fundamental Rights of the European Union, as amended by the Treaty of Lisbon, 2007 (Articles 39 to 46)
Treaty on European Union, as amended by the Treaty of Lisbon, 2007 [Article 6(1)]
International Law Commission Draft Articles on Nationality of Natural Persons in relation to the Succession of States, 1999 (Article 1)
FOREIGN LAW:
Italian Citizenship Act – Legge 5 febbraio 1992, n. 91 – Nuove norme sulla cittadinanza (Article 6)
French Civil Code (Section 21-27)
KEYWORDS: Opposition to acquisition of Portuguese nationality; effective ties to the national community; automatic effects of criminal conviction; fundamental right to citizenship; right to acquire Portuguese nationality ex novo; right not to lose one’s Portuguese nationality; legally based expectation of acquiring the status; weight the factual context of the criminal conviction; Portuguese citizen; Mozambique; unknown nationality; acquisition of nationality based on marriage; friends and family ties in Portugal; structured life in Portugal; perfectly integrated in Portuguese society for many years; inclusive citizenship; human right to nationality; member of the civitas; human dignity; hate to the Portuguese as a people; classic definition of nationality; fundamental ties between the individual and the state; nationality; citizenship; idea of belonging; ties to the historical or sociological reality of a nation; citizenship-participation; citizenship-belonging; citizenship as a right; nationality as a right of the human being; statelessness; children of migrant workers; succession of states; principle of equality; principle of assimilation of foreigners and stateless persons to Portuguese citizens; importance of the ties between the individual and the state, symbolic, cultural and in terms of belonging; rights reserved to Portuguese citizens; EU Member States nationals; third country nationals; European Union citizenship; national citizenship; importance of family ties; strong indication of the individual’s ties to the national community; foreign citizens held as unwelcome; terrorism; consideration of the time passed over the conviction; International law principles; foreigner; Portuguese national; effective and genuine ties of the applicant to the national community; idea of effective citizenship; legal ties of citizenship; perpetuity of the penalty; criminal record; principle of proportionality; definition of the national community; integration in the national community; full integration and resocialization of the convicted person in his or her society; belonging to the political community; intra-systemic contradiction; legal rehabilitation; disrespect for community values; interpretative ruling
COMENTÁRIO: A adicionar brevemente
REFERENCES IN THE LITERATURE: n.a.
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