TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 325/2023

Headnotes

As for the violation of the principle of separation of powers, the interpretation and concrete application of the part of Article 152(1)(b) of the Criminal Code concerning the “dating relationship” is part of the ordinary hermeneutical task entrusted to criminal courts and compatible with Article 29(1) of the Constitution. In effect, the judge is not granted legislative powers and the legislator fully discharged its legislative function when it established the provision as it did, leaving the task of judging to the judge

Summary

1. The Local Criminal Court of Porto sentenced the applicant for a crime of domestic violence, and the applicant lodged an appeal against the final decision with the Porto Court of Appeal. The decision was reformed and the defendant received a suspended sentence, lower than the one passed by the lower court, and also a lower fine for non-patrimonial damages.

2. The defendant claimed the nullity of this last decision, alleging that it had reviewed the constitutionality of Article 152(1)(b) of the Portuguese Criminal Code in light of the principle of legality and typicality, whereas the question had been raised from the perspective of the prohibition of excess and of the principle of guilt.

3. The Porto Court of Appeal rejected the claimed nullity, and confirmed the appealed decision. The defendant made a request for review to the Constitutional Court, arguing that Article 152(1)(b) of the Criminal Code was unconstitutional because it made the incrimination dependent on a dating relationship without there being a definition of what such a relationship is, and because it treated a “dating relationship” similarly to a marriage or civil union (with cohabitation), punishing crimes of domestic violence with the same penalty in both cases. It would thus breach the established in the Articles 2(1), 13, 18(2) (principle of prohibition of excess or of proportionality), and 29(1), (3), and (4) of the Constitution, notably of the principles of guilt, legality and typicality.

4. The Constitutional Court– by means of a summary decision – considered the request inadmissible on the grounds that its object was not a norm.

5. The applicant filed a complaint against the decision with the conference (a 3-judge panel, including the judge responsible for the summary decision) and that complaint was upheld.

6. The Constitutional Court, based on its previous Ruling no. 76/2016, concluded that although “dating relationship” is an indeterminate concept, it is compatible with the principle of criminal legality. “Dating relationship” has, for any person of common sense, a clear meaning which can be easily grasped. In other words, the notion of “dating relationship”, in general, is not so broad that what it may entail becomes incomprehensible for any person of common sense. In other words, the law is clear, and there is no violation of the principle contained in Article 29(1) of the Constitution.

The Court stated that the expression “dating relationship” is sufficiently clear, objective, well-defined and clear to allow the public to understand the set of forbidden actions and, in particular, to include, without any doubt, the interpretation according to which a person who acted as the applicant herein commits a crime.

7. As for the violation of the principle of separation of powers, the interpretation and concrete application of the part of Article 152(1)(b) of the Criminal Code concerning the “dating relationship” is part of the ordinary hermeneutical task entrusted to criminal courts and compatible with Article 29(1) of the Constitution. In effect, the judge is not granted legislative powers and the legislator fully discharged its legislative function when it established the provision as it did, leaving the task of judging to the judge.

8. The applicant alleged that treating equally a dating relationship and marriage or civil unions (with cohabitation), punishing with the same penalty the crime of domestic violence in both cases, was a violation of the principles of proportionality, of prohibition of excess and of guilt. However, the Court recalled that the crime of domestic violence is included in the so-called “relationship crimes”. For the purpose of those crimes, a dating relationship, a marriage or a civil union (with cohabitation) are identical in nature. What is relevant here is the special relationship of proximity between agent and victim, if not physical, at the very least existential, i.e. a relationship where affection and trust are shared (either in the present or in the past).

9. The Constitutional Court stated that it is not clear, therefore, that the actions that constitute the crime of domestic violence are less worthy of censure if they are performed in a dating relationship than, for example, in a marriage. It all depends on the concrete facts and, notably, their seriousness. Since the penalty for the crime of domestic violence may vary within a broad range (from one to five years imprisonment), the specific penalty will necessarily take into account the degree of guilt and unlawfulness shown by the agent. The Court deemed that there was no violation of the principle of proportionality whatsoever, notably in terms of the prohibition of excess.

10. The Constitutional Court did not deem the norm in question unconstitutional.

Language:

Portuguese