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OPPOSITION TO THE ACQUISITION OF PORTUGUESE NATIONALITY | MARRIAGE TO PORTUGUESE NATIONAL | AUTOMATIC EFFECTS OF CRIMINAL CONVICTION | FUNDAMENTAL RIGHT OF ACCESS TO PORTUGUESE CITIZENSHIP

 

Constitutional Court, judgment no. 534/2021, 13.07.2021

 

JURISDICTION: Constitutional

CASE: 987/2019

SUBJECT: Constitutional appeal

RAPPORTEUR: Gonçalo de Almeida Ribeiro

RULING: The Constitutional Court decides to hold Article 9(b) of the Nationality Act as unconstitutional, to the extent that it establishes as grounds for opposing the acquisition of Portuguese nationality the applicant’s unappealable conviction for a criminal offense punishable with a prison sentence up to three years or more, when the prison sentence was replaced by a fine. The Constitutional Court therefore grants the appeal, ordering that the appealed judgment be amended in accordance with the unconstitutionality ruling.

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 [Articles 70(1)(a), 84]

Law no. 37/81, of 3 October 1981, as amended by Organic Law no. 8/2015, of 22 June 2015 [Articles 3(1), 6(1)(d), 9, 10(1)]

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)]

Criminal Code [Articles 43, 50(1), 145(1)]

Law no. 57/98, of 18 August 1998 [Article 17(1)]

Law no. 37/2015, of 5 May 2015 (Article 13)

Constitutional Court, judgment no. 599/2005, 02.11.2005

Constitutional Court, judgment no. 605/2013, 24.09.2013

Constitutional Court, judgment no. 106/2016, 24.02.2016

Constitutional Court, judgment no. 331/2016, 19.05.2016

Constitutional Court, judgment no. 497/2019, 26.09.2019 (amended by judgment no. 589/2019, 21.10.2019)

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; marriage to Portuguese national; automatic effects of criminal conviction; fundamental right of access to Portuguese citizenship; replacement of prison sentence by fine; foreign citizens’ basic right to apply for Portuguese nationality; Angolan nationality; foreign citizens; principle of proportionality; abstract penalty criterion; penalty applied in the instant case; naturalization; duly weight the offender’s guilt and the seriousness of the offense; fundamental right not to be deprived of Portuguese citizenship; legally based expectation; “real and effective nationality”; citizens who hold the nationality of another state; indication of effective life ties to the state that grants the nationality; citizens of Portuguese speaking countries; blatant disregard for constitutional principles and values; core of the right to citizenship; duly weight the factors that objectively confirm or dispute the specific bond of integration in the Portuguese community; residence in Portugal since childhood; criminal record; right to Portuguese citizenship; safeguard of the core of the fundamental right; relevant constitutional and international factors

COMMENTS: Coming soon.

REFERENCES IN THE LITERATURE: n.a.

 

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Posted inMARRIAGE TO PORTUGUESE NATIONAL FUNDAMENTAL RIGHT OF ACCESS TO PORTUGUESE CITIZENSHIP AUTOMATIC EFFECTS OF CRIMINAL CONVICTION OPPOSITION TO THE ACQUISITION OF PORTUGUESE NATIONALITY
Tags“Real and Effective Nationality” Duly Weight the Factors That Objectively Confirm or Dispute the Specific Bond of Integration in the Portuguese Community Marriage to Portuguese National Criminal Record Citizens of Portuguese Speaking Countries Foreign Citizens Citizens Who Hold the Nationality of Another State Abstract Penalty Criterion Right To Portuguese Citizenship Fundamental Right Not to be Deprived of Portuguese Citizenship Fundamental Right of Access to Portuguese Citizenship Foreign Citizens' Basic Right to Apply for Portuguese Nationality Automatic Effects of Criminal Conviction Legally Based Expectation Relevant Constitutional and International Factors Indication of Effective Life Ties to the State That Grants the Nationality Blatant Disregard for Constitutional Principles and Values Angolan Nationality Naturalization Core of the Right to Citizenship Opposition to Acquisition of Portuguese Nationality Penalty Applied in the Instant Case Duly Weight the Offender's Guilt and the Seriousness of the Offense Safeguard of the Core of the Fundamental Right Principle of Proportionality Residence in Portugal Since Childhood Replacement of Prison Sentence by Fine