\u00a0<\/strong><\/p>\n JURISDICTION: Constitutional<\/p>\n CASE: 402\/96<\/p>\n SUBJECT: Constitutional appeal<\/p>\n RAPPORTEUR: Lu\u00eds Nunes de Almeida<\/p>\n RULING: Grants the appeal, holding unconstitutional the norm in Article 34(1) of Decree-Law no. 15\/93, of 22 January 1993, when applicable to foreign citizens who have underage children of Portuguese nationality with whom they reside in national territory. Orders the amendment of the appealed judgment in accordance with the ruling on unconstitutionality.<\/p>\n DOMESTIC LAW:<\/p>\n Portuguese Constitution [Articles 30(4), 33(1), 36(6), 67, 68]<\/p>\n Constitutional Court Act [Article 70(1)]<\/p>\n Code of Criminal Procedure (Article 410)<\/p>\n Law no. 15\/94, of 11 May 1994<\/p>\n Decree-Law no. 430\/83, of 13 December [Articles 23(1), 34(2)]<\/p>\n Decree-Law no. 15\/93, of 22 January 1993 (Articles 21, 34)<\/p>\n Constitutional Court, judgment no. 284\/89, 09.03.1989<\/p>\n Constitutional Court, judgment no. 434\/93, 13.07.1993<\/p>\n INTERNATIONAL LAW:<\/p>\n European Convention on Human Rights (Article 8)<\/p>\n ECtHR, Moustaquim v. B\u00e9lgica, 1991<\/p>\n ECtHR, Beldjoui v. Fran\u00e7a, 1993<\/p>\n FOREIGN LAW:<\/p>\n France, Ordonnance of 2 November 1945, as amended by Law of 29 October 1981 [Article 25(5)]<\/p>\n KEYWORDS: Expulsion from national territory; foreigners with underage children who are Portuguese nationals; separation between parents and children; citizen of Portuguese speaking country; Cape-Verdean nationality; drug trafficking; accessory penalty; unity of the family; profound social imperative; fundamental rights of underage children; effective exercise of parental responsibilities; priority to public order and safety considerations; children\u2019s stability; ban from our society; foreigner who can\u2019t adapt to the ethical and moral values in force in the Portuguese society; expulsion of Portuguese citizens; weight of the defendant\u2019s personal, social and family situation; proportionality assessment; parents\u2019 entitlement not to be separated from their children; children\u2019s entitlement not to be separated from their parents; safeguard of children\u2019s rights; constitutional protection to the family; paternity; maternity; dependence of the harmonious development of the human being on the relations established with the family; development of one\u2019s personality; individual and collective conscience; worldview; core family; self-identification; their roots; first emotional ties; parents\u2019 primordial and irreplaceable role in their children education and upbringing; right to family life; imperative social needs; expatriation of underage children; avoid the separation of the family; indirect expulsion; British; Austrian; Swedish; Finish; separation between parents and children due to incarceration<\/p>\n COMMENTS: Coming soon.<\/p>\n REFERENCES IN THE LITERATURE:<\/p>\n CANOTILHO, J.J. Gomes, e MOREIRA, Vital, Constitui\u00e7\u00e3o da Rep\u00fablica Portuguesa Anotada [Annotation to the Portuguese Constitution], vol. I, 4.\u00aa ed. revista, Coimbra, Coimbra Editora, 2007.<\/p>\n MIRANDA, Jorge, e MEDEIROS, Rui, Constitui\u00e7\u00e3o Portuguesa Anotada [Annotation to the Portuguese Constitution], tomo I, 2.\u00aa ed., Coimbra, Wolters Kluwer\/Coimbra Editora, 2010.<\/p>\n <\/p>\n Download the ruling.<\/p>\n
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