In the last few years, the Portuguese Constitutional Court (PCC) has issued several summary decisions rejecting appeals for the concrete review of constitutionality set out in the Constitutional Court Law (Law No. 28/82 of 15 November), leading to the rejection of those appeals and, consequently, to a non-examination of the questions of unconstitutionality raised therein based on formal grounds.
This modus operandi has been preventing the issuance of decisions of merit with the consequent endangerment of the effective judicial protection required by the Portuguese Constitution (PC) itself.
Since the PC’s most important bulwark has left it unprotected, may the ECtHR become the ultimate taxpayer resort?
In Portugal, in addition to being bound by the PC, Courts act as guarantors of its prevalence or primacy, because in addition to having the right and duty to examine questions of unconstitutionality, they are also recognized as having the right and duty to decide on the case in question, which is inherent to the right and duty to disapply the relevant legal rules in the event that they are found to be unconstitutional.
When a judge disapplies a rule on the grounds of its unconstitutionality, this decision has no influence on the abstract validity of the rule in question, which remains in force and can even be applied in another case, if that is the understanding of the competent court.
Court decisions on the issue of unconstitutionality can always be appealed to the PCC which has the responsibility to definitively decide the issue with limited effects to the specific case underlying the constitutionality appeal filed. The PCC’s assessment is a pure question of law, i.e. its cognitive powers do not include the ascertainment and determination of the facts of the main case.
The object of the appeal for the PCC is not the decision of the court of first (or other) instance on the merits of the main issue (that is to say, the judicial decision in itself), but only the segment concerning the question of unconstitutionality in which the judge in the case disapplies a rule on the grounds of its unconstitutionality or applies a rule whose unconstitutionality has been raised. Thus, in what regards the question of unconstitutionality, the PCC assumes the gowns of a superior court of appeal in relation to all other courts, regardless of the category or judicial order in which they fall, repealing the inferior court’s decisions.
In other words, in such appeal, the role of the PCC is rather to examine a segment of a decision regarding the unconstitutionality of one or more rules that are relevant to the decision of the case submitted for trial. As a result, the object of a constitutionality appeal shifts from the judicial decision itself to the rule with which the question of unconstitutionality is concerned.
When the constitutionality appeal relates to a normative interpretation, it should refer to the normative criterion used in the challenged decision and abstractly stated with a view to its potential generic application, without, however, attempting to syndicate the act of judgment itself, as a subsunctive operation carried out by the judge in the specific case.
Therefore, what is relevant is the character of generality and abstraction in the enunciation of the normative criterion that supports it, so that it can stand alone from the mere subsunctive activity, which is always associated with the specificities of the concrete case.
The problem that arises in this aim is that the distinction between a rule, i.e., a question of normative unconstitutionality and a decision i.e., a question of unconstitutionality imputed to judicial decisions is not always so clear-cut and that, lately, due to this ambiguous distinction, there is a growing difficulty in reaching the Constitutional Court, as a result of the formal rejection of a large number of the appeals of unconstitutionality lodged before this Court.
It has become frequent that the PCC decides that the appeals are not cognizable, based on several reasons namely because it understands that the unconstitutionality issue raised did not contain a normative criterion or that the taxpayer did not properly raise it beforehand.
From the analysis of most of the PCC’s decisions one easily concludes that the unconstitutionality invoked by the taxpayer is a question that has an underlying normative criterion endowed with generality and abstraction which has constituted an effective ratio decidendi of the challenged decision. One also concludes that the appeals lodged by the taxpayers did not involve any subjective view of the hermeneutic activity and legal subsumption carried out by the Court at other instances, nor of the result of the application of infra-constitutional law to the specific case in question. Furthermore, there are several cases of rejection by the PCC where the resolution of the question has an impact on the application of the legal rules in the specific situation of the taxpayer, clearly not implying that the object of the appeal to be reduced to the pure act of judgement carried out by the Courts of other instances.
The constitutional jurisprudence is not uniform and constant, not establishing sufficiently clear and precise criteria – especially in what regards the distinction between the issue of normative unconstitutionality and the issue of unconstitutionality attributed to judicial decisions – being this the recurrent ground in cases in which the Constitutional Court does not examinate an appeal due to the absence of a procedural precondition (although this is not the only reason for such rejection to happen).
The methodological-dogmatic specificity of this type of appeals has therefore turned into the central argument for refusing the competence of the PCC, turning them into unfeasible and unattainable means of defense. The increasing difficulty in reaching the PCC, because of the formal rejection of a large number of appeals of unconstitutionality lodged before this Court and the legal uncertainty and imprecision resulting from this understanding unequivocally represents a violation of access to the law and to effective judicial protection, both constitutional rights expressly enshrined in the PC.
The aforementioned constitutional rights should be interpreted as meaning that, in addition to access to the law, there are restrictions that must not be imposed to taxpayers, otherwise these rights would be deprived of their substance. By not admitting the constitutional appeals lodged, the PCC is restricting the exercise of a right for which no values that are sufficiently preponderant to justify such a restriction are presented.
In conclusion, the PCC should review its “indistinct” and widespread understanding that the object of the appeals lodged do not have the normative nature that is required of them, most of the times, because by doing so, it is embarking on an inadmissible “quiet quitting” journey of being the Portuguese’s Constitution safest harbor.
While the PCC does not review its position, it is debatable whether the taxpayer might, as a last resort, appeal to the ECtHR in an attempt to have the violation of his right of access to a Court recognized.
The ECtHR has indeed been referring to the concept of excessive formalism as an obstacle to access to law. According to the ECtHR, if the right of access to a court foreseen in Article 6 §1 of the ECHR is subject to legal conditions, courts must, when applying procedural rules, avoid excessive formalism that could undermine the fairness of the procedure. The referred right of access to a court is violated in substance when its procedures no longer serve the objectives of legal certainty and the proper administration of justice and constitute a kind of barrier preventing litigants from having the substance of their dispute resolved by the competent court.
In fact, in the Dos Santos Calado and Others v. Portugal and Amador Faria e Silva and Others v. Portugal cases – applications nos. 55997/14 and 68143/16 – the ECtHR already found the PCC to be excessively formal in its application of the legal framework to decide appeals, consequently considering that it had deprived the applicants of their right to access a court and condemning the Portuguese State to the consequent compensation to the taxpayer for doing so.
However, it should be noted that article 6 of the ECHR refers only to civil and criminal matters, which has previously led to its non-application in tax matters, unless they have a criminal overtone. In addition, even though such difficulty in what regards the nature of the matters under discussion is circumvented, there are some Portuguese Court decisions stating that if the rule at stake does not concern a procedural formality, but rather a procedural requirement, the violation of the right previewed in article 6 of the ECHR as densified by the ECtHR should be excluded.
In our view, article 6 of the ECHR should cover tax matters, even in the absence of such criminal overtone, since what should be relevant is whether the construction and interpretation of a procedural rule results in an unjustified restriction on the taxpayer’s right of access to the Courts or not.
Hence, in the situations mentioned above, the violation of the access to a court should be duly raised by the applicant (taxpayer) at the latest in the complaint against the PCC’s summary decisions not admitting the aforementioned appeal or even before (i) when the taxpayer is notified to present its pronunciation regarding the possibility of the PCC not admitting such appeal based (namely) on the absence of a normative criterion or (ii) in response to allegations of the Public Prosecution or Defendants who raise the inadmissibility of the knowledge of the merits.
For as long as there is uncertainty as to the extent of access to a court provided for in Article 6 of the ECHR, the PC should remain experiencing its darkest hour since its most important guardian is not properly assuring its full protection. However, “failure is not final, it is the courage to continue that counts” even if – as Tom Kirman would say – “for now” ECtHR is our Designated Survivor, i.e., “all we’ve got”. May the odds be in the PC’s favor!
Dalila Leal
December 2022