TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 224/10

2 of June of 2010

Headnotes:

The attribution to the mayor of a municipality of the competence to hear and decide cases involving administrative offences related to the exercise of the rights associated with the freedoms of expression and information, when what is at stake is propaganda, is not in breach of the constitutional precept that reserves the competence to hear and decide cases involving such offences to an independent administrative entity.

Summary:

This case involved a request by the Ombudsman for a successive abstract review. He asked the Constitutional Court for a declaration with generally binding force of the unconstitutionality of the norm contained in an article of a Law, which (the norm) regulates the display of advertising and propaganda in public places, when applied to propaganda. He argued that it violates the constitutional precept under which infractions committed during the exercise of the right to the freedom of expression and information are subject to the general principles of either the criminal law, or the law governing administrative offences, and that in the case of the latter, the competence to hear cases pertains to an independent administrative entity.

The Constitutional Court’s jurisprudence is clear that constitutional law characterises propaganda – particularly political propaganda – as a manifestation of the freedom of expression, inasmuch as the latter is considered to encompass both the right to manifest one’s own thoughts (substantive aspect), and the right to the free use of the means by which those thoughts can be disseminated (instrumental aspect).

The Law in which the norm in question was incorporated had already been held to be unconstitutional in a concrete review case, when the Court considered that the legal solution took the competence to hear and decide cases involving such infractions away from the courts of law, and thus implicitly removed them from the protection of the general principles of criminal law, including all the guarantees applicable to criminal procedure. However, the Law was passed while the 1982 version of the Constitution of the Portuguese Republic (CRP) was in effect, and at the time the applicable article of the CRP was written in such a way as to subject infractions related to the rights associated with the freedom of expression and information to the general principles of criminal law, and the competence to hear cases with regard to them pertained to the courts of law. There was no mention (one was introduced in the 1997 constitutional review) of the general principles governing administrative offences and the attribution of the competence to hear such cases to an independent administrative entity. The express provision made in the 1997 review of the Constitution, that infractions committed during the exercise of the rights of expression and information are not only sanctionable under the criminal law, but also under the law governing administrative offences, was a move that matched the interpretation which the Constitutional Court was already applying to the previous text of the article. The Court was already holding that not all infractions committed during the exercise of the rights of expression and information should be the object of criminal sanctions. The most significant change in the article in question was thus that which extended the competence to hear and decide cases involving infractions to an independent administrative entity, thereby contradicting the original text of the constitutional precept. It also contradicted the Constitutional Court’s interpretation up until the 1997 constitutional review, whereby the imposition of fines for infractions committed during the exercise of the rights of expression and information was also reserved to the courts of law.

In the light of the current text of this constitutional precept, the Court felt that the latter means that there is no guarantee of the jurisdictionalisation of proceedings for infractions committed during the exercise of the rights of expression and information, and therefore that there is no requirement for the competence to hear the case to pertain to a court of law, regardless of the nature of the infraction (crime, or administrative offence).

The Constitution does not attribute a general competence to hear and decide cases involving infractions that constitute administrative offences to an independent administrative entity. The constitutional precept only requires that cases involving infractions that constitute administrative offences committed during the exercise of the rights of expression and information, via the media, be heard by the independent administrative entity with responsibility for regulating the media. The Court therefore decided not to declare the material unconstitutionality of the norm before it, when applied to propaganda, with generally binding force.

Supplementary information:

The Ruling was accompanied by two concurring opinions and four dissenting opinions, one of the latter being that of the President of the Court.

The author of the first concurring opinion agreed with the majority finding that the norm is not unconstitutional, but disagreed with the path that the rapporteur took in order to formulate that finding. She felt that the issue was not whether what is at stake are limits or restrictions on the freedom of expression and the legitimacy or otherwise of those limits, but rather the minimum rules for the policing of public spaces laid down by the Law in question – i.e. whether the ordinary legislator had fulfilled a number of constitutional duties to provide normative protection, themselves endowed with a certain degree of binding force. In her view, fulfilment by the legislator of those duties to protect is not a restriction or limit on the freedom of expression, but instead compliance with the minimum rules on the policing of public spaces, the competences for which pertain to the democratically legitimated local authorities.

The dissenting Justices particularly founded their opinions on the fact that they considered that the competence of the independent administrative entity which the constitutional precept in question entrusts with the responsibility to hear and decide cases involving administrative offences committed during the exercise of the freedom of expression and information encompasses all administrative-offence-type infractions committed by any means or form of expression. In their view, this competence is not restricted to administrative offences committed during the exercise of the freedom of expression and information via the media. Given that the case before the court involved propaganda, and as such fell within the reserved field of the right to express thoughts, the authors of the dissenting opinions felt that only the “independent administrative entity” has the competence to impose fines, and therefore the Court should have held the norm unconstitutional.

Cross-references:

See Rulings nos. 631/95 and 258/06.