Constitutional Court, judgment no. 365/00, 05.07.2000

LEGAL AID | PROOF OF PORTUGUESE NATIONALITY | OVERSEAS PUBLIC ADMINISTRATION | TIES TO THE NATIONAL COMMUNITY AND LEGAL SYSTEM

 

Constitutional Court, judgment no. 365/00, 05.07.2000

 

JURISDICTION: Constitutional

CASE: 91/00

SUBJECT: Constitutional appeal

RAPPORTEUR: Tavares da Costa

RULING: Rejects the appeal, confirming the appealed ruling, albeit on partially different grounds. Holds unconstitutional the norm in Article 7(2) of Decree-Law no. 387-B/87, of 29 December 1987, as amended by Law no. 46/96, of 3 September 1996, where it denies legal aid to a citizen of Angolan nationality who does not reside in Portugal and who, alleging having lost Portuguese nationality in the decolonisation process, wishes to exercise before the Portuguese courts his right to retirement benefits as a former employee of the overseas Public Administration.

DOMESTIC LAW:

Portuguese Constitution [Articles 12, 13, 15, 20, 165(1)(b), 201(1)(b), 268(4)]

Law no. 28/82, of 15 November 1982 [Article 70(1)(a)]

Administrative Courts Procedure Act (Article 116)

Law no. 41/87, of 23 December 1987

Law no. 46/96, of 3 September 1996 (Article 3)

Decree-Law no. 308-A/75, of 24 June 1975

Decree-Law no. 387-B/87, of 29 December 1987, as amended by Law no. 46/96, of 3 September 1996 [Articles 1(1), 6, 7, 39, 56]

Decree-Law no. 391/88, of 26 October 1988, as amended by Law no. 46/96, of 3 September 1996 (Article 1)

Constitutional Court, judgment no. 338/95, 22.06.1995

Constitutional Court, judgment no. 339/95, 22.06.1995

Constitutional Court, judgment no. 340/95, 22.06.1995

Constitutional Court, judgment no. 962/96, 11.07.1996

Constitutional Court, judgment no. 354/97, 30.04.1997

Constitutional Court, judgment no. 392/97, 20.05.1997

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Legal aid; proof of Portuguese nationality; overseas Public Administration; ties to the national community and legal system; Angolan nationality; pensioner status; right to equality; foreigners habitually residing in Portugal; conventional international law; Republic of Angola; distinction between resident and non-resident foreigners in Portugal; principle of non-discrimination based on economic situation; foreigner not residing in Portugal; foreigner not applying for asylum; loss of Portuguese nationality following Angola’s independence; right to retirement benefits; social or cultural condition; lack of economic means; legal protection; valid residence permit; regular and continued presence in Portugal; human dignity; idea of a Republic of individuals and not only of citizens; universalist basis underlying the constitutional text; principle of assimilation of foreigners and stateless persons to Portuguese citizens; identity of rights between Portuguese citizens and foreigners and stateless persons; right of access to the courts; State Pension Fund; employees and agents of the former overseas provinces; Portuguese citizen; independence of Angolan territory; minimum connection between the foreigner applying for legal aid and the national legal system; principle of universality; citizens of Portuguese speaking countries; European citizens; national treatment; not sporadic or accidental ties with national territory and community; decolonisation process

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, and MEDEIROS, Rui, Constituição Portuguesa Anotada [Annotation to the Portuguese Constitution], vol. I, 2nd ed., Coimbra, Wolters Kluwer/Coimbra Editora, 2010.

 

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