1. Introduction

The framework of political parties that emerged after the Carnation Revolution in 1974 (which put an end to the authoritarian regime of more than 40 years known as the Estado Novo – e.g., Robert M. Fishman, “What 25 April Was and Why It Mattered”, Portuguese Studies, 2018, 34, no. 1, pp. 20-34, https://doi.org/10.5699/portstudies.34.1.0020.)) has remained relatively stable until today. Essentially, the two largest parties date back to 1975, and no political party has been dissolved since July 2009 (Comissão Nacional de Eleições, 2024; and, e.g., Romano Orrù, “Le ‘legislative’ portoghesi e l’attrattività del governo minoritario nel gioco politico a ‘mosse obbligate’”, Diritto pubblico comparato ed europeo, 2/2024, p. 51, doi: 10.17394/113892). However, fourteen of the twenty-four political parties have been constituted since 2009 (idem).

In recent years, the internal life of parties in Portugal has been the cause of significant litigation and media coverage  (e.g., “Constitutional Court again rejects PAN statutes, party will be forced to hold Congress”, 17.04.2024; “Constitutional Court accepts registration of New Right party after three rejections for irregularities”, 09.01.2024; “Left Bloc to rectify amendment to statutes rejected by Constitutional Court”, 14.02.2024). In this context, more attention has been given to intraparty democracy by the public, by middle-level party elites - “traditionally more involved in decision-making and more committed to organisational stability” -, and especially by parties’ general members (Marco Lisi, “Democracia intra-partidária, filiados e elites intermédias: o caso do Partido Socialista português”, Análise Social, 2015, vol. 50, no. 214, pp. 24-25).

There has been significative constitutional case law on political parties in recent years (e.g., Judgements 2/2011, 145/2013, 177/2019, 534/2019, 95/2020, 155/2020, 226/2021, 387/2021, 942/2021 326/2022, 470/2022, 751/2022, 844/2022 374/2023, 504/2023, 542/2022 699/2023, 864/2023, 929/2023, and 126/2024). The main issues include the approval and amendment of parties’ statutes, the election procedure of holders of office in political parties, compliance with party statutes of elective acts and other decisions, namely, the application of disciplinary sanctions to militants (e.g., for publicly expressing disagreement with the party's positions or the party's lists of candidates for a given election) and the control of accounts submitted by political parties.

The number of cases and the subjects they address raise the question of what they reflect about the Portuguese political and party system and how they relate to the decline of democracy and the rule of law. In the present work, the objective is to present such case law and put it in the context of the deficits of democracy in Portugal. First, the fundamental legal framework of political parties is described. The Constitutional Court's sphere of competence with respect to political parties is then summarised. After, the main questions on which the Constitutional Court has focused are explained (with the exception of political parties’ accounts, which are worthy of a specific analysis - Beatriz Rebelo Garcia, “The Control of Political Parties' Accounts by the Portuguese Constitutional Court”, September 3, 2022, Lisbon Public Law Working Paper No. 2023-4, https://ssrn.com/abstract=4498940)). Finally, some of the related problems of Portuguese democracy are mentioned, bearing in mind the international assessment of its deterioration.

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1. Introduction

On 23 January 2024, the Portuguese Constitutional Court (in Plenary and in an abstract constitutionality review process) changed its case law regarding the criminalisation of mistreatment of companion animals (Ruling no. 70/2024). Previously, since 2021, the Court has considered in several concrete constitutionality review processes that under the Portuguese Constitution, there is no legitimacy, protected value or legal interest for such incrimination and that its legal features do not comply with the nullum crimen sine lege certa precept.

In Ruling 70/2024, the majority of the Court considered that the protection of animal welfare is part of the Constitution in a material sense. Regarding lex certa, the Constitutional Court ruled - with the casting vote of the President - that the enunciation of the elements describing the penalised conduct and its object does not allow to affirm the indeterminability of the norm that typifies the crime of mistreatment of a companion animal.

The rulings were pronounced by a divided court, with divergent conceptions about Criminal Law, its relationship with the Constitution, and its interpretation of the Constitution

To understand the controversy and the Constitutionality judgment shift, first, the criminalisation of animal mistreatment in the Portuguese legal system is presented and put into context, as well as the previous constitutional case law on the matter. Second, the legal arguments supporting the 2024 ruling and the dissenting votes are described. Finally, the Court precomprehensions that the case law reveals and its relevance are highlighted.

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1. The context

On 20 August 2023 a new regulation on mental health entered into force (Act no. 35/2023, Mental Health Act). The fact was widely reported in the media with headlines such as “New mental health act ends with ‘life imprisonment’ for the unimputable”, “The Mental Health Act: 40 unimputable people released from ‘life imprisonment’”, “The new Mental Health Act: more humane or more complex?” and “Another step for mental health. New act now in force”.

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In Portugal, there is a high housing vacancy rate and a high housing shortage, particularly of affordable housing (e.g., Eurostat, Housing price statistics - house price index, 5 July 2023; and The 2023 edition of our Expat Insider survey).

This is explained by the “increased private investment and exports of services associated with tourism”, which “has produced contradictory effects”: it “has allowed the recovery of economic activity” and the “requalification of urban centres”; but there has also been “a very significant rise in housing prices and rents, first in areas with greater tourism pressure and later spreading to peripheral territories”, forcing many families to move house or increase their housing effort rate (explanatory memorandum of the Draft Law 71/XV/1, of 14 April 2023, that establishes measures to ensure more housing). This act was voted and adopted on its general principles and on the details (Article 168 of the Constitution) by the Parliament (Assembly of the Republic) on 6 July 2023. It has to be enacted as law by the President of the Republic (Article 136 of the Constitution).

This is the most recent and controversial legislative intervention regarding housing. There have been several participations during the public consultation period, several opinions were included in the legislative procedure and numerous proposals to modify the initial Government proposal were presented by the political Parties in Parliament.

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