Constitutional Court, judgment no. 232/2004, 31.03.2004

ACCESSORY PENALTY OF EXPULSION | PROHIBITION OF ENTRY | FOREIGNERS WITH UNDERAGE CHILDREN OF PORTUGUESE NATIONALITY | NON-IMPUTABLE FOREIGNER

 

Constitutional Court, judgment no. 232/2004, 31.03.2004

 

JURISDICTION: Constitutional

CASE: 807/99

SUBJECT: Constitutional review

RAPPORTEUR: Benjamim Rodrigues

RULING: Declares the unconstitutionality, with general binding force, of the norms in Article 101(1)(a)(b)(c)(2) and Article 125(2) of Decree-Law no. 244/98, of 8 August 1998, in their original version, of the norm in Article 68(1)(a)(b)(c) of Decree-Law no. 59/93, of 3 March 1993, and of the norm in Article 34(1) of Decree-Law no. 15/93, of 22 January 1993, when applicable to foreign citizens who have in their charge their underage children of Portuguese nationality residing in national territory. It sets the effects of the unconstitutionality declaration so that not to safeguard the res judicata of accessory penalties of expulsion not yet executed by the time the judgment is published. Does not declare the unconstitutionality of the norm in Article 97 of the Criminal Code. Does not take cognisance of the request with regard to the norm in Article 25(2)(c) of Decree-Law no. 244/98, of 8 August 1998, in its original wording.

DOMESTIC LAW:

Portuguese Constitution [Articles 15(1), 30(4), 33(1), 36(6), 281(2)(d), 282]

Constitutional Court Act [Articles 39(2), 51(5), 54, 55(3), 63(1)]

Criminal Code, original version (Article 96)

Criminal Code, as amended by Decree-Law no. 48/95, of 15 March 1995 (Article 97)

Decree-Law no. 15/93, of 22 January 1993 [Article 34(1)]

Decree-Law no. 59/93, of 3 March 1993 [Articles 68(1), 90(2)]

Decree-Law no. 244/98, of 8 August 1998 [Articles 25(2)(c), 101, 125, 162]

Decree-Law no. 244/98, of 8 August 1998, as amended by Decree-Law no. 34/2003, of 25 February 2003 [Articles 25(2)(c),136-B]

Decree-Law no. 4/2001, of 10 January 2001

Decree-Law no. 34/2003, of 25 February 2003 (Articles 1, 6)

Constitutional Court, judgment no. 17/83, 03.11.1983

Constitutional Court, judgment no. 238/88, 25.10.1988

Constitutional Court, judgment no. 465/91, 11.12.1991

Constitutional Court, judgment no. 442/93, 14.07.1993

Constitutional Court, judgment no. 116/97, 18.02.1997

Constitutional Court, judgment no. 181/97, 05.03.1997

Constitutional Court, judgment no. 31/99, 13.01.1999

Constitutional Court, judgment no. 470/99, 14.07.1999

Constitutional Court, judgment no. 673/99, 15.12.1999

Constitutional Court, judgment no. 98/2000, 16.02.2000

INTERNATIONAL LAW:

European Convention on Human Rights (Article 8)

ECtHR, Abdulaziz, Cabales and Balkandali v. United Kingdom, 1985

ECtHR, Berrehab v. The Netherlands, 1985

ECtHR, Moustaquim v. Bélgica, 1991

TEDH, Beldjoudi c. França, 1992

ECtHR, Nasri v. France, 1995

ECtHR, Ahmut v. The Netherlands, 1996

ECtHR, Boughanemi v. France, 1996

ECtHR, C. v. Belgium, 1996

ECtHR, Gül v. Switzerland, 1996

ECtHR, Bouchelkia v. France, 1997

ECtHR, Boujlifa v. France, 1997

ECtHR, El Boujaïdi v. France, 1997

ECtHR, Mehemi v. France, 1997

ECtHR, Dalia v. France, 1998

ECJ, Rutili, 1975

ECJ, Sagulo, 1977

ECJ, Watson, 1977

ECJ, Giagounidis, 1991

FOREIGN LAW:

German Constitutional Court judgment of 12 May 1987

US Federal Supreme Court judgment Plyer v. Doe, 1982

KEYWORDS: Accessory penalty of expulsion; prohibition of entry; foreigners with underage children of Portuguese nationality; non-imputable foreigner; principle of guilt; proportionality of the penalty; right to enter or remain in national territory; non-resident foreigners; valid residence permit in Portugal; so-called illegal immigrant; forced exit of Portuguese citizens from national territory; exile; need to separate parents and children; conditions for the exercise of parental responsibilities; separation of parents and children due to imprisonment; underage children of foreign nationality; expatriation; discrimination based on nationality when sanctioning crimes; prohibition of expulsion of national citizens; identical punishment irrespective of the defendant’s nationality; principle of equality; constitutional and international framework for the protection of human rights; legitimate sovereign act of the Portuguese state; Schengen Information System; international convention; protection to foreigners and stateless persons who are denied entry into national territory; loss of civil, professional or political rights; principle of human dignity; social reintegration of the offender; competent authorities of the foreigner’s country of nationality; family unity; right to live together; principle of assimilation of foreigners and stateless persons to national citizens; rules on entry, stay, exit and expulsion of foreigners from national territory; foreigner with underage children in his/her charge; concept of family life; interest in preserving the relation between parents and children; fundamental obligations vis-à-vis the children; real social ties with the territory of the state; status of undocumented foreigners; illegal immigrants; principle of proportionality; defence of the family unit’s integrity; comparative law; reasons of justice, equality and fairness; family environment consolidated by the presence of the parents, even if foreigners; family reunification; relevant ties with the Portuguese legal system; interest in returning to national territory to join the underage children; conviction in a foreign country

COMMENTS: Coming soon.

REFERENCES IN THE LITERATURE:

CANOTILHO, J.J. Gomes, e MOREIRA, Vital, Constituição da República Portuguesa Anotada [Annotation to the Portuguese Constitution], vol. I, 4.ª ed. revista, Coimbra, Coimbra Editora, 2007.

MIRANDA, Jorge, e MEDEIROS, Rui, Constituição Portuguesa Anotada [Annotation to the Portuguese Constitution], tomo I, 2.ª ed., Coimbra, Wolters Kluwer/Coimbra Editora, 2010.

 

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