TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 128/12

7 of March of 2012

Headnotes:

The Portuguese Criminal Code was deliberately given the form of the criminal-legal order of an open society and a democratically legitimated state, with a conscious decision to maximise the areas of tolerance towards forms of conduct or ways of life that do not display a potential to offend which, notwithstanding the principle of minimum intervention, would be sufficient to require the imposition of a penalty. None of this means that the legislator went beyond the limits imposed by the principles enshrined in the Constitution when it criminalised the conduct of someone who personally insults someone else by saying that they are responsible for certain facts, or even that they are suspected of such responsibility, or by saying things to them that offend their honour or the consideration due to them. The legal asset that is protected by the criminalisation of the act of insulting someone, whatever concrete form the action which typifies it takes, is honour. The relevant norm protects this necessarily complex – because it simultaneously represents each person’s self-esteem and the value of the fact that society does not think ill of the person – asset by establishing the legal types ‘insult’ and ‘defamation’. The use of penal means to protect legal assets that possess the dignity of personal honour is a tradition in our criminal-law order which does not injure any constitutional principle, on condition that it is not reflected in a legislative solution that is manifestly arbitrary or excessive.

Summary:

The object of this appeal to the Constitutional Court was whether a Criminal Code norm that typifies a ‘simple insult’ as a crime is unconstitutional. The norm reads as follows: “Anyone who insults another person by attributing facts to them, or even saying that they are suspected of being responsible for those facts, or by addressing words to them that offend their honour or the consideration due to them, shall be punished by a prison term of up to three months or a fine of up to one hundred and twenty days”. The appellant alleged that the norm is unconstitutional because it violates the constitutional principles of proportionality, the subsidiarity of the criminal law, and that penalties must be necessary.

The Court recalled its own jurisprudence on the need for penal protection, and particularly the principle of proportionality in this respect. Over the years the Court has based its position on recognition of the fact that the Constitution grants the ordinary legislator a broad freedom to individualise the legal assets that require penal protection, and to decide the forms of behaviour which legally injure rights or interests that are protected by constitutional law and need to be defended by the threat of penal sanctions.

While there can be no doubt that the purpose of the Criminal Law of a state based on the rule of law is to protect legal assets that are essential to life in a community, which are the only ones that possess dignity in penal terms, the Court nonetheless emphasised that the Constitution does not contain any prohibition on criminalisation and that – subject to certain principles, such as those of justice, humanity, and proportionality – it is up to the legislator to individualise legal assets that require penal protection.

The Court was of the view that in the concrete case before it there was no situation that could clearly and safely be said not to need penal protection (either because the interests which the norm seeks to defend do not actually require defence from the point of view of the current ethical/social standpoint, or because, if they do require protection, it could easily be provided by establishing non-criminal sanctions or imposing controls that employ non-penal means).

These days, in its quality as an object of penal protection, honour – which is the legal asset that is protected by making insult a crime – must be seen as being directly derived from the dignity of the human person, and thus as warranting protection to that extent. Acting in accordance with the tradition of the Portuguese legal order and in a way that is neither arbitrary nor excessive, the legislator took the view that this protection should be of a criminal-law nature.

Cross-references:

See Rulings nos. 634/93 (04-11-1993), 83/95 (21-02-1995), and 1142/96 (06-11-1996).