TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 318/2023

Headnotes:

The Court highlighted that, as a rule, it is precluded from controlling the constitutionality of the interpretative process adopted by ordinary courts to determine the meaning and content of ordinary laws they may deem applicable to the disputes they have to decide, since that interpretative process is itself the act of judging. The Court stated that to control that interpretative process is to control the judicial decision and not the norm applied in that decision.

Summary:

1. This case was based on a civil claim deemed unfounded by a lower court. This decision was later confirmed by the Lisbon Court of Appeal. Notice of this decision was given to the plaintiff on 18 January 2021. However, the decision could still be appealed to the Supreme Court of Justice, which the plaintiff intended to do. During the time limit to lodge this appeal, Article 6-B(5)(d) of Law no. 1-A/2020, of 19 March, amended by Law no. 4-B/2021, of 1 February, came into force. This legislative act approved a set of exceptional and temporary measures to address the epidemic situation caused by the SARS-CoV-2 coronavirus and the Covid-19 disease. According to that provision, all time limits for performing procedural acts in pending court proceedings, notably in judicial courts. However, an exception was made for instances where the court was in a position to issue a final decision in the case without the need for further procedural steps. If that condition was met, the court could issue a final decision and the time limit to lodge an appeal was not suspended.

2. This provision entered into force on 2 February 2021, retrospective to 22 January 2021. Trusting that this provision would not be applicable to final decisions issued before its entry into force and the effectiveness of the new legislative act, the plaintiff deemed the time limit to have been suspended and only lodged the appeal after the cessation of that suspension. However, the Supreme Court of Justice deemed the appeal to have been lodged after the time limit, because it was of the opinion that the provision was applicable to final decisions issued before the entry into force and the effectiveness of the new legislative act.

3. The Constitutional Court was called to pronounce on the constitutionality of Article 6-B(5)(d) of Law no. 1-A/2020, of 19 March, as amended by Law no. 4-B/2021, of 1 February, interpreted to mean that time limits for lodging an appeal of final decisions issued in non-urgent proceedings are not suspended, regardless of the moment in which that decision is issued (either before or after the entry into force of Law no. 4-B/2021). The applicant considered that such interpretation breached the constitutional principles of trust and legal security, notably because: i. the wording of the law was relatively clear in that time limits were suspended in cases where the final decision had already been issued when the law entered into force and became effective; ii. a significant part of those affected by the law, including many courts, interpreted it in that sense; iii. the expectations created by the wording of the law were well-founded, considering the pandemic crisis then existing; and iv. there was no relevant public interest in not suspending the time limits for appeals of decisions already issued, as was the case with other time limits.

4. The Court first drew a line between norm and decision, recalling that the object of specific review of constitutionality is norms and not decisions. Although the Court considered that, in general, the distinction between the two is clear, there are cases where such distinction is less evident. One of those cases is that in which the applicant claims not the existence of a direct contradiction between a norm extracted from the law and one or more constitutional parameters, but a contraction with the Constitution resulting from the court adopting an interpretative process that is inadequate or incorrect when determining the meaning of the law.

5. The Court highlighted that, as a rule, it is precluded from controlling the constitutionality of the interpretative process adopted by ordinary courts to determine the meaning and content of ordinary laws they may deem applicable to the disputes they have to decide, since that interpretative process is itself the act of judging. The Court stated that to control that interpretative process is to control the judicial decision and not the norm applied in that decision. However, the Court admitted that there may be exceptional cases where that control is allowed, notably in those areas where the constitutional order binds judicial power to criteria of strict legality when interpreting the law, as is the case with criminal and tax law.

6. In this case, the Constitutional Court deemed that there was no such exception. On the contrary, it was of the opinion that reviewing the constitutionality of the legal interpretation adopted by the Supreme Court of Justice of the referred Article 6-B(5)(d) based on a possible violation of the principle of legitimate expectations, would presuppose an evaluation of the interpretative process adopted by that court in order to understand whether or not the end result was objectively unforeseeable for the appellant and one that was unexpectable. In reality, more than assessing a possible violation of a legitimate expectation regarding the stability of the legal system as a result of the legislator’s actions, what the request for review intended to ascertain was whether that violation had been the result of the interpretative action of the court, notably when such court veered from the more literal and predictable meaning of the law it chose to apply.

7. Thus, the Constitutional Court concluded that the claimed unconstitutionality was not based on a direct contradiction between the Constitution and the norm, resulting from the interpretation of the law made by the Supreme Court of Justice, but rather from the contradiction between that norm and the legal text from which it was extracted through the interpretative process. Such a contradiction, if it did indeed exist, is but an indirect breach of the Constitution and as such cannot be the object of constitutional review. The Court decided, therefore, to reject the request for review.

Languages:

Portuguese