TRIBUNAL CONSTITUCIONAL Portugal

Jurisdiction and Procedure

• 1. Prior review
• 2. Successive abstract review
• 3. Concrete review
• 4. Review of unconstitutionality by omission

• 1. Procedures concerning the President of the Republic
• 2. Procedures concerning Members of Assemblies
• 3. Procedures concerning elections
• 4. Procedures concerning parties and coalitions
• 5. Procedures concerning organisations that display a fascist ideology
• 6. Procedures concerning the verification of the constitutionality and legality of national, regional and local referenda
• 7. Procedures concerning political officeholders’ declarations of assets and income
• 8. Procedures concerning political officeholders’ declarations of incompatibilities and disqualifications

Jurisdiction and Procedure

The Constitutional Court’s responsibilities are many and varied. They are set out in the Constitution, the Law Governing the Constitutional Court (LTC, Law no. 28/82 of 15 November 1982), the Law Governing Political Parties (Organisational Law no. 2/2003 of 22 August 2003), and the Law Governing the Financing of Political Parties and Election Campaigns (Law no. 19/2003 of 20 June 2003).

Guarantee of the Constitution, the constitutional system of regional autonomy and of legality

The most salient of the Constitutional Court’s responsibilities is that of monitoring whether legal rules —particularly those set out in Laws and Executive Laws — comply with the Constitution. This is the Court’s key task, and the one in which its role as ‘guardian’ or ultimate guarantor of the Constitution — entrusted to it by the Constitution itself — is clearest and most obvious to see.

On a level that parallels this control of constitutionality, the Constitutional Court is responsible for monitoring on the one hand whether the legal rules that emanate from the official bodies of the autonomous regions comply with those regions’ statutes; and on the other whether the rules issued by the bodies that exercise sovereign power comply with the rights to which each autonomous region is entitled under the terms of its statute. In fulfilling this task of controlling legality, the Court is called upon to ensure both the correct

functioning of the autonomous system which the Constitution lays down for the Azores and Madeira, and respect for the division of powers between the central bodies of the State and the regional bodies that exists within the framework of that autonomy. It should be noted that both these aspects were altered as part of the Sixth Revision of the Constitution (Constitutional Law no. 1/2004 of 24 July 2004).

Again on a parallel plane, the Court is responsible for monitoring the requirement that the rules contained in legislative acts respect the provisions of laws that possess superior force — particularly organisational laws.

Other Competences

The Constitutional Court also possesses various responsibilities in relation to the President of the Republic. In this respect its tasks include verifying his death and declaring his permanent physical incapacity, verifying cases in which he is temporarily prevented from performing his functions, and verifying his forfeiture of his office, as laid down by Article 223(2)a and b of the Constitution and Article 7 of the LTC.

The Court is also empowered to hear appeals concerning losses of seat of Members of the Assembly of the Republic and of the Legislative Assemblies of the autonomous regions, under the terms of Article 223(2)g of the Constitution and Article 7-A of the LTC.

Where disputes about electoral matters are concerned, the Constitutional Court plays a role in the process of electing the President of the Republic, in that it receives and admits nominations and rules on any related appeals, verifies candidates’ withdrawal, death or incapacity, and hears appeals filed against decisions on objections and protests submitted during the act of determining the overall result of presidential elections; in the cases of elections to the Assembly of the Republic, Legislative Assemblies of the autonomous regions, and representative local authority bodies, it hears appeals involving the submission of candidatures and alleged irregularities that occur during the electoral process; in relation to elections to the European Parliament, it receives and admits nominations and rules on appeals concerning the electoral process. The Court also hears appeals concerning elections to the Assembly of the Republic and the Legislative Assemblies of the autonomous regions (article 8 of the LTC).

The Constitutional Court intervenes in national referenda by verifying their constitutionality and legality before they take place. It also hears appeals concerning irregularities during both the voting itself and the operations involved in determining the results [Article 223(2)f of the Constitution and Article 11 of the LTC].

In the case of regional and local referenda the Constitutional Court also plays a part by verifying their constitutionality and legality in advance, and by hearing appeals concerning alleged irregularities during the voting and the operations involved in determining the results [Article 223(2)f of the Constitution and Article 11 of the LTC].

The Constitutional Court is also responsible for accepting the registration of political parties, coalitions and fronts composed of parties, verifying the legality and uniqueness of their names, initials and symbols, and recording such matters as the law may require in this respect; it is also charged with hearing suits that challenge elections to, and decisions taken by, the governing bodies of political parties in cases in which the law permits such appeals, verifying the correctness and legality of party accounts and imposing the applicable sanctions, ordering the abolition of parties and coalitions of parties (Article 9 of the LTC and Article 18 of Organisational Law no. 2/2003 of 22 August 2003).

Since 1 January 2005 the Court has also been responsible for verifying the correctness and legality of election campaign accounts (to which end it is assisted by the Political Accounts and Financing Entity), and for imposing the applicable sanctions (Articles 23, 24, 27 and 33 of Law no. 19/2003 of 20 June 2003).

The Constitutional Court is responsible for declaring that an organisation displays a fascist ideology, and decreeing its abolition, under the terms of Law no. 64/78 of 6 October 1978 (Article 10 of the LTC).

The Court also registers and files the declarations of assets and income and the declarations of disqualifications and incompatibilities that holders of political office and equivalent positions are required to submit, and decides on access to such data (Article 11-A of the LTC).

Procedures concerning the review of constitutionality

The Constitutional Court reviews the constitutionality of legal rules in three different ways, which correspond to three more forms of procedure.

1. Prior review

The first involves prior review — i.e. before a legal text is published and comes into force. This control is provided for by Article 278 of the Constitution, but is only applicable to the more important rules in the legal order.

Object of the control and legitimacy

At the request of the President of the Republic, the Constitutional Court will conduct a prior review of the rules laid down by international treaties that are submitted to the President of the Republic for ratification, decrees of the Assembly of the Republic or the Government that are sent to him for enactment as a law or executive law, and international agreements that are sent to him for signature. In the case of rules contained in regional legislative decrees, this prior review can be requested by the appropriate Representative of the Republic; in that of rules set out in decrees of the Assembly of the Republic that are sent to the President of the Republic for enactment as organisational laws, this control can also be requested by the Prime Minister, or one fifth of all the Members of the Assembly of the Republic in full exercise of their office.

This form of controlling constitutionality by prior review is exclusively directed at rules that are specifically mentioned in the request, and whoever issues the request must also specify the rules or constitutional principles that are being breached [Article 51(1) of the LTC]. Under the principle governing such requests, the Court can only declare the unconstitutionality of rules in relation to which a review has been requested of it, but it can do so on the grounds of constitutional rules or principles other than those whose breach was alleged [Article 51(5) of the LTC].

Deadlines and procedure

A prior review must be requested within eight days [counted without interruption — Articles 56(1) and 57(1) of the LTC] of the date on which the document is received, in the event that the request is made by the President of the Republic or a Representative of the Republic, or of the date on which the President of the Assembly of the Republic informs the Prime Minister and the parliamentary groups that the decree in question has been sent to the President of the Republic for enactment as an organisational law, in the event that the request is made by the Prime Minister or one fifth of all the Members of the Assembly of the Republic. The Court has held that in the event that the request is made by a Representative of the Republic, the above deadline should be extended by the two days provided for by Article 56(4) of the LTC.

The Constitutional Court must pronounce on the request within twenty-five days, although the President of the Republic can reduce this period for reasons of emergency [Article 278(8) of the Constitution].

Once it has entered the secretariat, the case file is presented to the President of the Constitutional Court, who has one day in which to admit it, notify its author to correct the request (its issuer then has two days to do so), or, in the event that the President believes that the request should not be admitted, submit the case files to the Plenary, whereupon the Court has two days to decide and, in the event that it rules against admission of the request, inform its issuer accordingly (Articles 57 and 52 of the LTC).

Once the case has been admitted and there are no corrections to be made, within one day it must be assigned by ballot to a rapporteur (Article 58(1) of the LTC) and the body from which the rule that has been challenged emanated must be notified that it has three days in which to exercise the option to reply to the request (Article 54 of the LTC).

The rapporteur has five days in which to draw up a memorandum “containing the list of issues on which the Tribunal must pronounce and the solution he proposes for them, with a summary indication of the grounds therefore”, which the secretariat then sends to all the other Justices — together with a copy of both the request and any response thereto [Article 58(2) and (3) of the LTC].

Once he has received a copy of the memorandum, the President must schedule the case for hearing by the plenary within ten days of the receipt of the request. The Court cannot issue its ruling less than two full days after the copies of the memorandum have been delivered to all the Justices [Article 59(1) and (2) of the LTC].

Once the Court has completed its discussions and taken its decision, the case is returned to the rapporteur — or, in the event that the latter’s position has not prevailed, to the Justice

who is to replace him — who has seven days in which to draw up the ruling, after which the latter is signed [Article 59(3) of the LTC].

When the President of the Republic shortens the deadline for the Constitutional Court to pronounce, the President of the Court must reduce all these deadlines for the procedural aspects of the case (Article 60 of the LTC).

Decisions and their effects

In prior review cases, besides decisions of a procedural nature (particularly as to whether or not to admit a request), the Constitutional Court issues two types of ruling: it either pronounces the (total or partial) unconstitutionality, or does not pronounce the unconstitutionality, of each rule that is submitted to it.

When the Court pronounces a rule unconstitutional, the President of the Republic or the Representative of the Republic is obliged to veto the text in question and return it to the body that passed it, whereupon the latter must abide by the Court’s decision.

If the text is altered by the body that passed it and the rule or rules that were deemed unconstitutional are removed, or, in the case of the Assembly of the Republic or the Legislative Assemblies of the autonomous regions, despite the ruling that it is unconstitutional the text is confirmed by a qualified two thirds majority (Article 279 of the Constitution), the President of the Republic or the Representative of the Republic is then able to enact or sign it. This does not prevent the Constitutional Court from holding that such rules are unconstitutional later on, as part of other forms of reviewing constitutionality.

At the same time, if the text is reformulated and the alterations are not just limited to the removal of the rules that the Constitutional Court has judged unconstitutional, the President of the Republic or the Representative of the Republic, as appropriate, can request a new prior review of any of the rules it contains [Article 279(3) of the Constitution].

In the event that the Constitutional Court pronounces the unconstitutionality of rules set out in international treaties, the President of the Republic must restrict himself to informing the Assembly of the Republic that he cannot ratify it. The Assembly of the Republic can then approve the treaty by a two-thirds majority, whereupon the President of the Republic is able to ratify it [Article 279(4) of the Constitution].

When the Court does not pronounce the text unconstitutional, the President of the Republic or the Representative of the Republic, as appropriate, must enact or sign it, unless he opts to exercise his right to impose a political veto, the deadline for which runs from the publication of the Constitutional Court’s decision [Articles 136(1) and (4) and 233(2) of the Constitution].

2. Successive abstract review

The second way in which the Constitutional Court controls constitutionality is the so-called “successive abstract review”. It is given this name because it is conducted independently of any concrete application (i.e. it is not called on in order to resolve a specific case or dispute) of the rule that is reviewed.

Object of the control and legitimacy

Every rule in the Portuguese legal system is subject to this type of review, from those contained in laws to those set out in simple local authority regulations.

This form of review can be requested by the President of the Republic, the President of the Assembly of the Republic, the Prime Minister, the Ombudsman, the Attorney General, one tenth of the Members of the Assembly of the Republic, and also, when a breach of the autonomous regions’ rights is at stake, the Representatives of the Republic, the Legislative Assemblies of the autonomous regions, their Presidents or one tenth of their members, and the Presidents of the Regional Governments [Article 281(2) of the Constitution]. Constitutional Court Justices and the Public Prosecutors’ Office’s representatives to the Court are also entitled to initiate this kind of review in relation to rules that have been deemed unconstitutional in three concrete review cases [Article 281(3) of the Constitution and Article 82 of the LTC]. This is thus not a procedure that is available to citizens in general, whose only option is to ask one of the aforementioned persons or bodies to exercise his/its right to request it.

Deadlines and procedure

There is no deadline for asking the Constitutional Court to conduct a successive abstract review [Article 62(1) of the LTC].

The procedure begins with the submission of a request addressed to the President of the Constitutional Court. This request must specify the constitutional rules or principles that the applicant is asking the Court to assess, whereupon the Court is bound by the ‘principle of the request’ (the Court can only look at the specific issue brought before it) in this respect [Article 51(1) and (5) of the LTC]. In the event that after a successive abstract review request has been admitted, others are also admitted with the same object, the latter are incorporated into the former [Article 64(1) of the LTC].

Once a request has been received by the secretariat, it is presented to the President of the Court within a period of five days. The President then has ten days in which to decide whether it should be admitted, or require its author to rectify shortcomings, or, if he feels that the request should not be admitted, submit the case file to the Plenary [Article 62(2) of the LTC]. In the latter case the President will send a copy of the request to the remaining Justices, and the Court then has ten days in which to meet in plenary and take its decision [Article 52(2) and (3) of the LTC].

In the event that the request is admitted, the President of the Court notifies the body that issued the rule which has been challenged that it has thirty days in which to pronounce on the challenge, should it wish to do so (Article 54 of the LTC). At the end of this deadline a copy of the case file is sent to the Justices, together with the response (if there is one), a memorandum from the President of the Court (or from the Vice-President if he is so delegated by the President) in which “the prior and background questions to which the Court must respond are set out”, and any other documents of reputed interest [Article 63(1) of the LTC].

No less than fifteen days after the Justices receive the memorandum, it is put to the debate, the Court decides how it is going to approach the issues involved, and the case is assigned by ballot to a rapporteur, or, if the Court so decides, to the President [Article 63(2) of the LTC]. The rapporteur then has forty days in which to draw up a draft ruling along the lines decided by the Court, copies of the draft are sent to the remaining Justices, and the President of the Court includes the case on the plenary schedule, on a date that falls no less than fifteen days after the copies have been distributed [Article 65(1) and (2) of the LTC].

After consulting the Court, the President can decide to reduce the above deadlines by up to half “when powerful reasons justify his doing so” [Article 65(3) of the LTC].

The deadlines applicable to successive abstract review cases are suspended during judicial vacations [Article 56(1) of the LTC].

Decisions and their effects

In successive abstract review cases the Constitutional Court decides whether each rule that is submitted to it is (totally or partially) unconstitutional, or is not unconstitutional.

In the event that the Constitutional Court concludes that one or more rules which it has been asked to review are unconstitutional, its decision possesses generally binding force. This means that the rule is eliminated from the legal system and can no longer be applied, be it by the courts, the public administration, or private individuals. Some of the specific problems raised by this system are addressed and resolved by Article 282 of the Constitution.

A decision not to declare a rule unconstitutional is not necessarily the end of the matter. In cases involving either abstract or concrete reviews, the Court can take another look at a rule that it has previously declared not to be unconstitutional, and can decide that it is in fact unconstitutional.

3. Concrete review

The third way in which the Constitutional Court can be called on to control the constitutionality of legal rules is the so-called “concrete review”, thus named precisely because it occurs in relation to the application by the courts of the rule in question to a concrete case.

Object of the control and legitimacy

The responsibility for conducting a concrete review belongs first of all to the court before which the case is pending, inasmuch as under Article 204 of the Constitution all Portuguese courts are empowered to review whether or not the rules they have to apply comply with the Constitution, and are even under a duty not to apply those which they deem unconstitutional. However, decisions in which ‘ordinary’ courts rule on unconstitutionality are subject to appeal to the Constitutional Court, as laid down by Article 280 of the Constitution and Article 70 of the LTC. In such appeals the Constitutional Court only addresses the issue of constitutionality.

The object of this type of appeal is a judicial decision which refuses to apply a rule on the grounds of its unconstitutionality, which applies a rule that the parties argue is unconstitutional, or which applies a rule that either the Constitutional Court itself or the Constitutional Commission has already judged unconstitutional [Article 70(1)a, b, g and h of the LTC].

It is this form of appeal that grants citizens in general the possibility of gaining access to the Constitutional Court. The appeal can be made directly to the Constitutional Court when it concerns a judicial decision which applies a rule that either the Constitutional Court itself or the Constitutional Commission has already judged unconstitutional, or which refuses to apply a rule on the grounds of its unconstitutionality. However, in the event of a decision that applies a rule whose unconstitutionality has unsuccessfully been raised during the case itself, an appeal to the Constitutional Court is only admissible once all the available ordinary appeals have been exhausted [Article 70(2) and (5) of the LTC]. When an appeal to the Constitutional Court is not admitted in the ‘ordinary court’ in which the issues of constitutionality were raised, any party can then appeal against this decision to the Constitutional Court, which will rule on this specific question.

In addition to private individuals, the Public Prosecutors’ Office is also entitled to appeal concrete review decisions to the Constitutional Court. Such an appeal is mandatory when rules contained in the most important texts — international conventions, legislation, or regulatory orders — are at stake [Article 72(3) and (4) of the LTC].

Deadlines and procedure

The petition to appeal must be submitted in the form of a request within ten days of the notification of the decision that forms the object of the appeal (Article 75 of the LTC). This request must contain the elements required by Article 75-A of the LTC.

It is up to the court that has issued the decision which forms the object of the appeal to consider whether to admit the latter [Article 76(1) of the LTC]. It must decide in one of three ways: to admit the appeal; not to admit the appeal; or to ask the appellant to provide missing elements. A decision to admit is not binding on the Constitutional Court.

In the event that the appeal is not admitted, the appellant has ten days in which to appeal against this decision itself to the Constitutional Court [Articles 76(4) and 69 of the LTC].

When elements that are required by Article 75-A of the LTC are lacking, the judge of the court a quo will ask the appellant to complete them within ten days [Article 75-A(5) of the LTC]. In the event that the appellant fails to respond or does not provide everything, the appeal will not be admitted, although this decision can itself be appealed to the Constitutional Court [Articles 76(4) and 77 of the LTC]. If, on the other hand, the appellant does provide all the necessary elements, the appeal must be admitted.

Once the judge of the court that issued the ruling has admitted the case, it is sent to the Constitutional Court.

The case is assigned by ballot to a rapporteur, who subjects it to a preliminary examination and can issue a summary decision (if the issue at stake is a simple one, or if the rapporteur feels that the object of the appeal cannot be heard, because it does not meet the necessary requirements), or order that submissions be made within a period of thirty days [Articles 78-A(1) and 79 of the LTC].

There are then ten days in which this summary decision can be challenged before the Conference [Article 78-A(3) of the LTC]. The Conference’s decision on such challenges is definitive. If the Conference decides that it should hear the object of the appeal, or orders that the case proceed, the appellant is then notified to make submissions [Article 78-A(4) and (5) of the LTC].

Following the deadline for making submissions, the rapporteur has thirty days in which to draw up a memorandum or draft ruling, and the draft is sent for ten days to the Justices who have not yet studied it [Articles 79-A(1) and 79-B(1) of the LTC].

In concrete review cases the Constitutional Court normally sits by section [Article 70(1) of the LTC]. However, with the Court’s agreement, and when justified by the issue that is to be decided upon or in order to avoid conflicting jurisprudence, the President can decide that a case should be heard by the Plenary [Article 79-A of the LTC].

There then follows the discussion and taking of the decision on the issues set out in the memorandum. The case is then returned to the rapporteur— or, in the event that the latter’s own position has not prevailed, to the Justice who is to replace him — who has thirty days in which to draw up the ruling [Article 79-B(2) of the LTC].

In the event that one of the sections rules on a question of unconstitutionality or illegality in a way that differs from the Court’s previous jurisprudence, an appeal can be made to the Plenary [Article 79-D of the LTC].

The aforementioned deadlines are reduced by half in the cases referred to by Article 43(3) and (5) of the LTC, and in those in which personal rights, freedoms and guarantees are at stake [Article 79-B(3) of the LTC].

The Court’s powers to hear a given case are restricted by the ‘principle of the request’ (see above) in terms of the rules that the court a quo has applied or refused to apply, but the Court is free to hear the case on grounds other than those on which the lower court’s decision was based [Article 79-C of the LTC].

Decisions and their effects

In concrete review cases the Constitutional Court’s decisions can be to approve (order the reformulation of the decision that was appealed) or disapprove (confirm the decision that was appealed) the appeal. It is up to the court whose decision was appealed to apply the conclusions set out in the Constitutional Court’s ruling to its own decision.

In the event that the appeal is (totally or partially)successful, the case file returns to the court a quo so that it can reformulate the decision or order its reformulation in accordance with the Constitutional Court’s ruling on the question of unconstitutionality [Article 80(2) of the LTC].

In the event that the Constitutional Court denies the appeal, the original decision becomes definitive where the question of unconstitutionality is concerned [Article 80(4) of the LTC]. In the event that in order to avoid any unconstitutionality, the Constitutional Court determines an interpretation of the rule that the decision against which the appeal was brought applied or refused to apply, then that rule must be applied with that interpretation in the case in question and the court a quo is bound by it [Article 80(3) of the LTC].

In either of the possible situations — an appeal against a decision that did not apply a rule because it was deemed unconstitutional, or an appeal against a decision that did not accept a challenge to the constitutionality of a rule and applied it — the Constitutional Court’s decision does not possess generally binding force; in other words, it only applies in the specific case in which it is handed down [Article 80(1) of the LTC].

In the event that the Constitutional Court holds that the same rule is unconstitutional in three different concrete cases, it becomes possible for it to consider the rule in an abstract review case. This normally occurs at the request of the Public Prosecutors’ Office [Article 281(3) of the Constitution and Article 82 of the LTC]. Under these circumstances a decision that declares the rule in question unconstitutional does possess generally binding force.

4. Review of unconstitutionality by omission

When it comes to reviewing constitutionality, the Constitutional Court’s responsibilities are not restricted to controlling legal rules. The Constitution — going beyond that which is customary in analogous documents — also gives the Court the power to examine cases involving unconstitutionality by omission; in other words, to “review and verify any failure to comply with this Constitution by means of the omission of legislative measures needed to make constitutional rules executable” (Article 283 of the Constitution).

The procedure that is followed in such cases is similar to that of the successive abstract review of constitutionality. However, given the great sensitivity surrounding both the problem of ‘legislative omissions’ and the Constitutional Court’s fulfilment of this important responsibility, this process can only be initiated by the President of the Republic or the Ombudsman, or, in cases in which the rights of an autonomous region are at stake, the President of the Legislative Assembly in question.

If the Constitutional Court concludes that an omission does exist, it cannot draft the missing rule or rules, or even order the body with responsibility for doing so to draft them, inasmuch as either course would be contrary to its jurisdictional nature. The Court must restrict itself to ‘verifying’ that a case of unconstitutionality by omission exists, and to ‘informing’ the legislative body thereof.

Procedures concerning the review of legality

The procedure for reviewing the legality of rules — due to a breach of a law which possesses superior force, of an autonomous region’s statute (by rules contained in regional decrees), or of those of an autonomous region’s rights that are enshrined in its statute (by rules contained in a decree that emanated from a body that exercises sovereign power) — is identical to that used to review constitutionality (as per Articles 280 and 281 of the Constitution), with the exception of the prior review, which is not permitted in this case, and the control of unconstitutionality by omission, which would not make sense.

Concrete control is applicable to another possible scenario, which is closely related to the review of legality — one in which another court refuses to apply a rule laid down by legislation on the grounds that it contradicts an international convention. In such a case the Public Prosecutors’ Office is obliged to appeal to the Constitutional Court, but only in relation to issues of a legal-constitutional and legal-international nature that are involved in the decision against which the appeal is brought [Articles 70(1)I and 71(2) of the LTC].

Other Procedures

1. Procedures concerning the President of the Republic

Under the terms of the Constitution [Article 223(2)a and b] the Constitutional Court is responsible for verifying the death and declaring the permanent physical incapacity of the President of the Republic, situations in which he is temporarily prevented from performing his functions, the forfeiture of his office (for absenting himself from Portuguese territory without the consent of the Assembly of the Republic), or his removal from office (in the event that he is convicted of a crime committed in the performance of his functions).

These responsibilities — the procedure for which is regulated by Articles 86 to 91 of the LTC — are entrusted to the Court’s Plenary. Depending on the specific circumstances, the proceedings must be initiated by the Attorney-General (cases involving the President of the Republic’s death, permanent physical incapacity, or temporary incapacity), the President of the Assembly of the Republic (in the case of forfeiture of office), the President of the Supreme Court of Justice (in the case of removal from office), or the President of the Republic himself (if he is temporarily unable to perform his functions).

One key characteristic of these cases is their speed, which is clear from the fact that the deadlines by which the Court must take its decision are very short (see Articles 87 to 91 of the LTC).

2. Procedures concerning Members of Assemblies

Under the terms of Article 223(2)g of the Constitution and Article 7-A of the LTC the Constitutional Court is responsible for hearing appeals concerning the loss of seat of a Member of the Assembly of the Republic or of the Legislative Assemblies of the autonomous regions.

Any Member who is the object of a declaration of loss of seat, any parliamentary group, or at least ten Members in full exercise of their office are entitled to appeal within five days counting from the date on which the decision declaring the loss of seat is issued [Article 91-A(1) and (2) of the LTC].

Once it has been received by the secretariat, the case must be assigned and classified within two days, and the Assembly of the Republic or the Legislative Assembly, as appropriate, must be informed that it has five days in which to respond to the appeal, should it wish to do so [Articles 91-A(3) and 91-B of the LTC].

The Constitutional Court can hear any other interested parties, whenever this proves possible and necessary, but it must hand down its decision within five days [Articles 91-A(4) and 102-B(4) of the LTC].

The competence to rule on appeals concerning the loss of seat of a Member of the Assembly of the Republic or of the Legislative Assemblies of the autonomous regions lies with the Court’s Plenary [Articles 91-A(4), 102-B(5) and 91-B of the LTC].

3. Procedures concerning elections

The Constitutional Court is the court of last instance in cases that seek to determine whether or not electoral procedural acts have been conducted properly and are valid, as laid down by law; appeals concerning elections to the Assembly of the Republic and the Legislative Assemblies of the autonomous regions; and suits involving the impugnation of elections that are subject to appeal, as laid down by law [Article 223(2)c, g and h of the Constitution].

In electoral matters the Constitutional Court intervenes either directly, or in appeals against the decisions of district courts. The Court’s competence in electoral suits is generally exercised in plenary, and the procedure — which is regulated by the various electoral laws — is characterised by rules that impose the utmost speed.

3.1 Presidential elections

The procedure in relation to presidential elections is set out in Articles 92 to 100 of the LTC and in the amended text of Executive Law no. 319-A/76 of 3 May 1976. The Constitutional Court (sitting in section, with appeal to the Plenary) is responsible for: receiving and admitting nominations and hearing any related disputes; deciding cases concerning withdrawals of candidature (at the initiative of the candidate himself), or the death or incapacity of any candidate (at the initiative of the Attorney General); and deciding (in plenary) disputed appeals against alleged irregularities that occurred during voting and during the deliberations of the assembly which determines the overall result (and is itself made up of the President of the Court and one of its sections).

3.2 Elections to the Assembly of the Republic, Legislative Assemblies of the autonomous regions and local authority bodies

In relation to these elections the Constitutional Court is responsible for assessing the legality of the names, initials and symbols of electoral coalitions, and deciding appeals against the decisions that courts of first instance have handed down in relation to the submission of nominations, appeals against decisions concerning voting and the determination of results, and appeals against acts and decisions of the electoral administrative authorities, particularly the National Electoral Commission (CNE) [Articles 101, 102, 102-B and 103(2)b of the LTC, and the laws governing elections to the Assembly of the Republic, to the Legislative Assembly of the Azores Autonomous Region, to the Legislative Assembly of the Madeira Autonomous Region, and to local authority bodies — respectively Law no. 14/79 of 16 May 1979, Executive Law no. 267/80 of 8 August 1980, no. 318-E/76 of 30 April 1976, Organisational Law no. 1/2001 of 14 August 2001 and n.º 1/2006 of 13 February 2006].

The Constitutional Court is also responsible for hearing appeals concerning appointments that are decided at the Assembly of the Republic or the Legislative Assemblies of the autonomous regions (Article 102-D of the LTC).

3.3 Elections to the European Parliament

The Constitutional Court is responsible for receiving and admitting nominations for the election of Portugal’s Members of the European Parliament, assessing the legality of the names, initials and symbols of electoral coalitions, and deciding (in plenary) related appeals. The Court also hears disputed appeals concerning voting and the determination of results (determining the overall results is the responsibility of an assembly chaired by the President of the Constitutional Court itself) [Article 102-A of the LTC and the amended text of Law no. 14/87 of 29 April 1897].

4. Procedures concerning parties and coalitions

In this respect the Constitutional Court is responsible for: registering political parties, coalitions and fronts, and their initials and symbols, and recording applicable information; and verifying that they comply with the Constitution and the law [Article 223(2)e of the Constitution, Article 103 of the LTC, and Article 14 of Organisational Law no. 2/2003 of 22 August 2003 altered by the Organizational Law n.º 2/2008 of 14 May 2008].

When a party is registered, the Court also receives its articles of association, verifies their legality and sends them for publication in the Diário da República, together with an abstract of its decision on the party’s registration. The Public Prosecutors’ Office can ask the Court to assess the legality of political parties’ articles of association at any time [Articles 15(2) and 16 of Organisational Law no. 2/2003].

Sitting in plenary, the Court is also responsible for: hearing suits that challenge elections to, and the deliberations of, the governing bodies of political parties (in cases in which the law admits an appeal) [Article 223(2)h of the Constitution and Articles 103-C, 103-D and 103-E of the LTC], assessing the correctness and legality of party accounts, and imposing the applicable sanctions [Articles 9e, 103-A and 103-B of the LTC].

The Constitutional Court is also responsible for ordering the abolition of parties and coalitions of parties [Article 223(2)e of the Constitution and Articles o9f and 103-F of the LTC].

It should also be noted that Law no. 19/2003 of 20 June 2003, which regulates the financing of parties and election campaigns, charges the Constitutional Court with assessing and reviewing election campaign accounts [Article 23(1)]. The same Law created the Political Accounts and Financing Entity (ECFP) — an independent body that works with the Constitutional Court and is intended to provide the Court with technical assistance in its assessment and monitoring of the accounts of political parties and campaigns for elections to the Assembly of the Republic, the Presidency of the Republic, the European Parliament, the Legislative Assemblies of the autonomous regions, and local authorities. The ECFP is responsible for the preparation of the cases that are heard by the Court in this respect, and for reviewing whether declared expenses match those that are actually incurred [Article 24(1), (2) and (3)].

The Constitutional Court has only been charged with these new responsibilities, and the Political Accounts and Financing Entity has only been functioning, since Law no. 19/2003 came into force on 1 January 2005 [Article 34(2)].

5. Procedures concerning organisations that display a fascist ideology

The Court’s Plenary is responsible for deciding to take the measures provided for by Law no. 64/78 of 6 October 1978 — particularly those involving ordering the abolition of organisations that display a fascist ideology (Article 104 of the LTC). Similarly, Organisational Law no. 2/2003 of 22 August 2003 states that the Public Prosecutors’ Office can ask the Constitutional Court to abolish political parties which display such an ideology [Article 18(1)a].

6. Procedures concerning the verification of the constitutionality and legality of national, regional and local referenda

The Constitutional Court is responsible for the prior review of the constitutionality and legality of national, regional and local referenda. This competence includes assessing the requirements concerning the applicable electorate [Article 223(2)f of the Constitution].

The President of the Republic must obligatorily submit the proposal for any national referendum to the Court [Article 115(8) of the Constitution]. The Court then has twenty-five days in which to review and assess it, although the President of the Republic can reduce this deadline for emergency reasons [Article 27 of Law no. 15-A/98 of 3 April 1998].

If the Court pronounces the proposal unconstitutional or illegal, the President of the Republic cannot promote the calling of the referendum. In this case he must return the proposal to the body that formulated it — the Assembly of the Republic or the Government — which can reconsider and reformulate it and expunge the defect in question (Article 28 of Law no. 15-A/98).

In the case of regional and local referenda the Constitutional Court is also called on to pronounce in advance on the referendum’s constitutionality and legality. To this end the president of the body that decided to hold the consultation process is obliged to ask the Court to conduct the review. The procedure involved is regulated by the organisational laws governing the applicable systems (Article 105 of the LTC).

Organisational Law no. 4/2000 of 24 August 2000, which approved the legal system governing local referenda, states that the Constitutional Court has twenty-five days in which to conduct this verification and, in the event that it pronounces the decision to hold the referendum unconstitutional or illegal, to notify the president of the body that took the decision, so that the latter can reformulate it and expunge the defect in question (Articles 26 and 27).

The Constitutional Court exercises the abovementioned competences in plenary.

It should also be noted that the assembly which determines the overall results of national referenda sits at the Constitutional Court and is chaired by the Court’s President; and that the Court’s Plenary is responsible for deciding disputed appeals concerning allegations of irregularities during the voting or the operations to determine the results (Articles 163, 172, 174 and 175(4) of Law no. 15-A/98).

In relation to local referenda the Plenary of the Constitutional Court is responsible for deciding appeals concerning the decisions of polling stations and irregularities that are alleged to have occurred during the voting or the operations to determine the results (Articles 67, 151 and 153 of Organisational Law no. 4/2000).

7. Procedures concerning political officeholders’ declarations of assets and income

Under the terms of Articles 11-A and 106 to 110 of the LTC the Constitutional Court is responsible for receiving political officeholders’ declarations of assets and income (the list

of cases in which such declarations are required is set out by Article 4 of Law no. 4/83 of 2 April 1983, as amended by Law no. 25/95 of 18 August 1995), and verifying whether all those who are obliged to submit such declarations have done so.

In the event that a political officeholder does not submit his asset and income declarations within the legal deadline, the Court must notify him that he must do so. If the officeholder remains in breach of this requirement, the President of the Court then sends a certificate of this fact to the representative of the Public Prosecutors’ Office, so that the latter can promote the application of the sanctions provided for by law [Article 109(1) of the LTC and Article 3 of Law no. 4/83].

The President of the Court must also inform the representative of the Public Prosecutors’ Office of any communications and accusations that are made to him in relation to omissions or errors in such declarations [Article 6-A of Law no. 4/83].

There is free access to political officeholders’ declarations of assets and income. However, when there are important grounds for doing so, a declarer can oppose dissemination, whereupon the Constitutional Court is responsible for determining whether or not the reason that is given is valid, and if and how dissemination should occur (Articles 5 and 6 of Law no. 4/83).

8. Procedures concerning political officeholders’ declarations of incompatibilities and disqualifications

Under the terms of Articles 11-A, 111 and 112 of the LTC and Article 10 of Law no. 64/93 of 26 August 1993, the Constitutional Court is responsible for receiving and organising the register of political officeholders’ declarations of absence of incompatibilities and disqualifications, as well as for analysing and reviewing them.

Declarations give rise to an individual file that goes to the representative of the Public Prosecutors’ Office, so that he can ask the Court to intervene if he believes that the law has been broken. In this case the President of the Court then notifies the declarer that he must answer the case brought by the Public Prosecutors’ Office. Evidence can then be produced, following which the Court takes its decision in plenary session.

Exactly the same procedure applies to cases in which a declaration is not submitted (Article 113 of the LTC and Article 12 of Law no. 64/93 of 26 August 1993).