TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 262/2020

13th May 2020

Headnotes

The Constitutional Court found not unconstitutional the rule establishing that minors can only take part in television programmes after a request for authorisation has been submitted to the Commission for the Protection of Children and Young Persons (CPCJ) and that authorisation has been granted, interpretively derived from Articles 2(1), 5(1) to (3), and 7(2) of Law 105/2009 of 14 September 2009.

Summary:

I – The rule under review by the Court concerned the matter of child labour – more specifically, participation by minors in activities of a cultural, artistic or publicity/advertising nature. It resulted from an interpretation of Law no. 105/2009 of 14 September 2009, which regulated and amended the Labour Code (CT) approved by Law no. 7/2009 of 12 February 2009. The constitutional parameters used were the principle of the separation of powers, the fundamental rights of freedom of expression and information, and the right of parents to educate their children without state interference in family life.

II – In the applicant’s submission, the interpretation of the legislation at issue constitutes an infringement of the principle of the separation of powers, in so far as it attributes to administrative bodies forming part of the State administration a power which materially corresponds to the exercise of judicial functions, conferring on the CPCJ the power to settle conflicts between fundamental rights and to declare the law, which constitutes the essential core of the judicial function.

III – The Court found that the rule under analysis did not deny access to the courts - nor did it prevent them from having the last word in the weighing up of conflicting fundamental rights. It only determines that the participation of minors in shows or other activities of cultural, artistic, or advertising nature - including participation in television programs - is dependent on the prior authorization provided by the CPCJ. It is true that they are administrative entities. However, the CPCJ’s decisions, namely the decision to reject the authorisation, may be challenged in the courts, which dispels the appellant’s argument that there was a violation of the judicial function.

IV – One can distinguish between two areas reserved for the courts. In some cases, specifically provided for in constitutional provisions, the judge will have both the first and the last word: absolute monopoly of judicial power. Outside of the scope of those constitutional provisions, only a ‘materially jurisdictional act’ or an ‘act that forms a core part of the jurisdictional function’ requires that a judge have such a monopoly. If there is a public interest that can be invoked, the Court cannot exclude the constitutional legitimacy of a decision-making intervention by a non-jurisdictional authority in order to balance that public interest.

V – In the case of this particular rule, there is a clear public interest in seeing the CPCJ intervene in order to control participation by minors in television programmes. The Constitution recognises children as subjects of fundamental rights, and simultaneously establishes a public duty to protect them from situations of need linked to their natural vulnerability. This is connected with the notion of the ‘development of personality’ – the guarantee of the dignity of the human person and the protection of the child that is becoming an adult. It is a matter of preventing the dangers arising from the exercise of an activity by the minor, considering his/her special vulnerability to circumstances that may compromise or condition his/her development process, as stated in the Constitution - and in the International Law that binds the Portuguese Republic, such as the Convention on the Rights of the Child or the Revised European Social Charter. To this effect, the participation of the minor is subject to a prior authorization to be granted by the competent authority, as imposed by article 5 of Directive 94/33/EC (or by article 8 of ILO Convention no 138, regarding the minimum age for admission to employment).

VI – The right of parents to educate their children is expressly recognised in the Constitution, but does not truly represent an individual right. According to Article 36(5) of the Constitution, "parents have the right and duty to educate and maintain their children". The powers are granted to parents to be exercised in the interest of their children within the framework of their family relationship. In order for there to be a relevant restriction on that right, it would be necessary to show that the rule affects the child’s interest; compression of the parents’ power to educate is not sufficient. In the present case, the aim of the rule is to enforce the superior interest of the children, even in those limited situations in which it may not fully coincide with the interest expressed by their parents.

VII - However, this conclusion does not mean that there is no constitutionality check on the legislative option in question. The intervention of public institutions in the supervision of the minor should be reserved for cases in which there is a serious risk that the parents are unable to meet the minor's needs. Articles 36(5) and 67(2)(c) of the Constitution attribute a subsidiary function to society and the State in relation to the development of children. Thus, the principle of proportionality or the prohibition of excess is still applicable to this case. It is from the prohibition of excess, of arbitrary or unjust State action, of the adoption of unnecessary or excessively burdensome or restrictive solutions, that the question of constitutionality may then arise. However, considering the legal framework in which it is inserted, it is not possible to see how the rule under analysis could disrespect any of the tests in which the application of the proportionality principle unfolds (adequacy, necessity and proportionality in the strict sense).

VIII – The Court does not envisage any other measure that would safeguard the interest of the child with the same degree of effectiveness. The alternative solution presented by the appellant, of imposing on the entities that promote television programmes in which minors participate, to ensure that they are monitored by a specialised independent psychologist, is not compatible with the minimum degree of compliance with the duty of the State to protect children established in the Constitution. This alternative would condition the intervention of the impartial authority in charge of enforcing the best interest of the child - in this case, the CPCJ - to the understanding of the psychologist payed by the promoting entities. The evaluation of the compliance of this rule with the principle of proportionality cannot ignore that the participation of the minor in shows or any activity of cultural, artistic, or advertising nature, represents an exception to the general principle of the prohibition of child labour enshrined in Article 69(3) of the Constitution. This should be read in conjunction with the special duties of the State to regulate the work of minors, when this is legally admissible (Article 59(2)(c) of the Constitution), and also in line with the various international instruments that the Portuguese State has subscribed.

IX – Freedom of expression and information occupies a central place in guaranteeing and developing a democratic and pluralistic society such as the Portuguese Republic. The rule under analysis, by making the participation of minors in television programs subject to the authorization of the CPCJ, does not inhibit any expression of thought, just as it does not inhibit or even hinder the possibility of transmitting or communicating information to others. From this rule one cannot derive the prohibition of any television program, the censorship of its contents, the limitation of the information transmitted, or even the suppression of a character, but only the prohibition of the participation of a minor in it without prior authorization, which attests that such participation does not occur to the detriment of his health and well-being. Or, to put it another way, from the decision of the CPCJ in itself considered, no impediment arises to the realization of a television program or its broadcast. It cannot be considered offensive to the freedom of expression of the television operator or the producer of the television program the fact that a minor cannot participate in an episode of that program because the State administration created to protect him understands that it is against his best interest, a consideration confirmed by the Courts of the Republic.

Cross-references:

Constitutional Court:

Summary Decision no. 873/19.

Rulings nos. 214/11; 365/91; 387/19; 382/17; 187/01; 205/00; 491/02; 73/09; 651/09; 387/12; 113/97; 292/08.

Other:

ECtHR Judgment of 1976/12/07 no. 5493/72 (Handyside v. United Kingdom).