TRIBUNAL CONSTITUCIONAL Portugal

RULING N. 5/2023

Summary

I – The Constitutional Court was summoned by the President of the Portuguese Republic to assess, in anticipatory review, the conformity with the Constitution of some of the rules contained in Decree 23/XV of Parliament , ‘which regulates the conditions under which medically assisted death is not punishable and amends the Criminal Code’, in particular “the rules contained in Article 2(d), insofar as it defines ‘serious and incurable illness’, when combined with other rules, for violating the principle of determinability of the law as a corollary of the principles of the democratic rule of law and the exclusive legislative power of Parliament, by reference to the inviolability of human life.

II – Provisions that use indeterminate legal concepts have a vague content, and consequently a scope of application that is unclear. By using indeterminate legal concepts, the legislator allows a considerable margin of freedom in the application of these rules.

III - Even if it is vague, the indeterminate legal concept must result in an interpretative canon that is a suitable expression of the legislator's will and that guarantees a uniform interpretation of the rule in line with that will. This will ensure that laws are intelligible and complete, which is a fundamental value in a democratic state governed by the rule of law, and a corollary of two of its principles: the principle of legality, and the principle of legal certainty and the protection of trust.

IV - Article 2(d) of Decree no. 23/XV, in part 23/XV defines "serious and incurable illness". The legislator chose to use an indeterminate legal concept, since it is impossible to list all serious and incurable clinical conditions and since it is impossible to exhaustively define a clinical situation that requires technical knowledge that the ordinary legislator does not have. It will, however, not be very difficult for health professionals and the Verification and Evaluation Commission involved in the reasonably long clinical procedure of authorising medically assisted death to clarify it.

V - By the very nature of things, it is not always possible to formulate explicit rules with a clear content, so it is necessary to resort to indeterminate legal concepts. In this case, we are dealing with a legally indeterminate concept, which is not manifestly vague, and which allows law enforcers to fill it in relatively easily without the danger of misrepresenting the will of the legislator or making political choices for the legislator.

VI - Regarding the "norms contained in Article 2(e) and (f), when combined with the rules contained in Article 3(1) and (3)(b)", we believe that this is a typical case of bad legislative technique, which does not however intolerably impair the intelligibility of the law, given that Article 3 clearly states that there must be severe suffering.

VII - The possibility of this Court deciding on the basis of a different cause of action makes it possible to carry out a constitutionality review of the definitional rule contained in Article 2(f) of Decree no. 23/XV. Interpretative doubts as to its exact scope of application may arise, with the following segment being of particular interest: "(f) 'Suffering of great intensity' means physical, psychological and spiritual suffering".

VIII - The question that may arise from reading the segment in question is whether we are dealing with cumulative or alternative conditions, an option that leads to different results in terms of the situations which allow medically assisted death. The choice of one of these options has consequences that are not only quantitative, but also qualitative. Everything seems to indicate that physical, psychological and spiritual suffering would have to be cumulatively verified in order to resort to medically assisted death, but our legal system shows that the use of the conjunction "and", particularly in definitional rules, does not always imply or equate with cumulative verification.

IX - In addition to this abstract observation, in order to justify the doubts that the segment of the rule being analysed may specifically generate for legal operators, there are two aspects that this interpreter/applicator of the Constitution and its highest guardian cannot fail to take into consideration: i) the preparatory work that led to the approval of Parliament Decree no. 23/XV; ii) the comparison of this decree with the law regulating access to palliative care, as an indisputable "parallel place", which also raises doubts as to what the ordinary legislator really wanted.

X - The point here is not to say that a certain normative concept – in this case, that of "suffering of great intensity" - is indeterminate and indeterminable, but rather that it is undeniable that the segment under analysis allows possible and plausible interpretative alternatives to be legitimately drawn from it, leading to substantially different, if not antagonistic, practical results: i) reserving access to medically assisted death to people who, as a result of a definitive injury of extreme severity or a serious and incurable illness, report suffering that corresponds cumulatively to the typologies of physical, psychological and spiritual suffering; or ii) guaranteeing access to medically assisted death to people who, as a result of one of the aforementioned clinical situations, suffer intensely, whatever the typology of suffering, namely physical, psychological or spiritual. The existence of these alternatives is fraught with a legal uncertainty that the Constitutional Court could not allow to pass unnoticed, otherwise it would leave it up to the Administration (or, more precisely, the administrations) and the courts to make choices that fall exclusively to Parliament.

XI - The judgement of unconstitutionality with regard to the rule contained in Article 2(f) of Decree 23/XV entails a consequent judgement of unconstitutionality of the other norms mentioned in the request for review – namely, those contained in Articles 5, 6 and 7, and 28 - insofar as they refer to it, expressly or by reference, for the fulfilment of the requirements or conditions laid down in the same decree.

Cross references:

ECLI:AT:VFGH:2020:G139.2019. AC TC Colômbia C-233/21 C-164/22 C-239/97. ECLI:DE:BVerfG:2020:rs20. ECLI:IT:COST:2018:207. ECLI:IT:COST:2019:242. ECLI:IT:COST:2022:50. ECLI:CE:ECHR:2022:1004JUD007801717

Constitutional Court: Ruling 123/201

Language:

Portuguese