He arrives. CRP review crosses ‘Red Lines’

1. Remove ideological language

In a letter sent by André Ventura to Luís Montenegro and Rui Rocha on the constitutional revision, the Leader of the arrival proposes the ‘ideological cleaning of our fundamental text, thus ensuring his neutrality, namely in the preamble’. The initial part of the Constitution of the Portuguese Republic begins by mentioning the movement of the Armed Forces that « overturned the fascist regime » and continues the text by mentioning freedom, the end of oppression and dictatorship, as well as the idea of ​​ »making way for a socialist society. » Although preambles have no direct normative value, they are expressions of the historical memory and the constitutional identity of a country. In this sense, eliminating anti-fascist references or April revolution can be seen as an approximation of the extreme-right revisionist discourses, especially in Spain, Hungary and Germany (where AFD has already defended the relativization of the Nazi past).

On the other hand, some countries have altered their constitutions to reflect a more neutral stance, especially after significant political changes. After the democratic transition in 1989, Poland altered the country’s official name of “Popular Republic of Poland” to “Public Republic”, and references were eliminated to socialism and the leadership of the Communist Party. The same way, with the fall of the Berlin Wall and the German reunification process, the Constitution of the German Democratic Republic (RDA) was significantly changed between 1989 and 1990. References removed to the leading role of the Communist Party and socialism, replacing them with principles of liberal democracy and market economy.

Countries where it applies: Poland, Germany, Czechoslovakia, Slovenia, Croatia

Countries where it does not apply: Cuba, North Korea, Venezuela, China

2.

Another of the proposals that the arrival considers priority is the ‘clarification of the constitutional text with regard to perpetual penalties’.

It is recalled that in 2022, the arrival had already submitted a bill to introduce life imprisonment into the Penal Code in some types of homicide, but it was not admitted by the President of the Assembly of the Republic, Augusto Santos Silva, who maintained that he violated the Constitution. Now, if the arrival proposal was approved, the unconstitutionality problem would cease to exist.

There are at least 40 European countries where the period of life imprisonment applies, although in the vast majority of cases the possibility of parole after a minimum prison sentence is foreseen. Among these countries are Germany, Austria, Belgium, Spain, France and Italy.

Among those who consecrate life imprisonment, with no possibility of parole for certain crimes are Bulgaria, Hungary, Lithuania, Malta, Netherlands, Slovak Republic, United Kingdom (England and Wales), Romania, Serbia, Turkey and Ukraine.

The irreversible life imprisonment is strongly criticized and considered incompatible with the purpose of social reintegration of the penalty, provided for in Article 5 of the Portuguese Constitution and article 3 of the European Convention on Human Rights.

Countries where it applies: USA, Ukraine, Albania, Germany, Austria, Belgium, Belarus, Cyprus, Denmark, Slovenia, Spain, Estonia, Finland, France, Greece, Ireland, Iceland, Italy, Lonymistein, Luxembourg, Poland, Czech Republic, Republic Northern Macedonia, Republic of Moldova, Russia, Sweden and Switzerland

Countries where it does not apply: Andorra, Bosnia and Herzegovina, Croatia, Montenegro, Norway

3. Reduction of the state’s role in the Constitution

André Ventura’s party also proposes the ‘excessive weight of the state of the constitutional text’, appealing to ‘articulation between public and private services’. A clear example of a constitution that goes in this regard is that of the United States, where the fundamental law does not provide for state obligations as a direct provider of essential services. Health, for example, is largely privatized, with just a few public programs for specific groups.

Although not a “red line” itself, the removal of the state’s guarantee role in the Constitution would imply reverse principles of the social state consecrated in almost all European constitutions, such as Germany (Sozialstaat), France or Italy.

Countries where it applies: USA, New Zealand, Canada, Australia

Countries where it does not apply: France, Germany, Brazil, Italy, Sweden, Norway, Denmark

4. Prediction of illicit enrichment crime

Within the proposal of constitutional revision, the arrival proposes « the adequacy of the constitutional text to the provision of crime of illicit enrichment ». But at the European level it has not been the predominant understanding. In countries such as Portugal, Italy, Spain France or Germany, it was understood that illicit enrichment as an autonomous criminal type in the Constitution violates the principle of presumption of innocence if the accused must prove the origin of the assets. In several Latin American countries, such as Brazil, Colombia or Bolivia, the political and legal context eventually justified its constitutional and criminal inclusion.

Countries where it applies: Brazil, Colombia, Peru, Bolivia, Ecuador,

Countries where it does not apply: France, Germany, Spain, Italy

5. Containment of the possibility of resources

Another of the proposed measures is « the containment of the possibility of judicial appeals, but, in parallel, the provision of the support of support with the Constitutional Court. » The Amparo Appeal is a special legal mechanism that allows any citizen to directly request the constitutional court rapid and effective against violations of their fundamental rights and freedoms committed by decisions or acts of public authorities. This model is characteristic of democracies with strong and separate constitutional court, such as Germany, Spain, Croatia or Austria.

Already Portugal, France, Italy, the United Kingdom and Nordic countries do not provide direct support, favoring the ordinary judicial system. In 2023, the PS and PSD expressed objections as to the claim of the IL the resource of support of citizens to the Constitutional Court « for violation of rights, freedoms and guarantees ».

It should also be noted that in Hungary, Viktor Orbán implemented profound reforms in the Constitution and the Judicial System, including reducing the number of admissible resources, claiming the need to streamline justice. These reforms have been the target of intense criticism from the European Union and international organizations because of the independence of the courts and fundamental rights.

Countries where it applies: Hungary, Germany, Spain, Croatia, Slovenia, Slovakia, Austria

Countries where it does not apply: France, Italy, United Kingdom, USA, Ireland

6. Chemical castration

Although not mentioned in the letter sent by the arrival, it is not new that the party has always advocated the inclusion of chemical castration as an accessory penalty for sexual abuse crimes in the Constitution. In 2023, the arrival of the arrival was rejected by all parties for considered it a civilizational setback or « a red line ».

Most European democracies reject chemical castration, considering it contrary to human rights or the dignity of the human person. Still, in Poland, chemical castration is mandatory for some convicted of sexual abuse of minors since 2009.

In the case of Germany and France, these countries allow voluntary hormonal treatment in certain cases of sexual crimes, by judicial decision and consent of the convict.

Countries where it applies: Poland, Germany and France (voluntarily), USA (some states)

Countries where it does not apply: Spain, Italy, Sweden, Norway, Finland, Denmark, Ireland, Belgium, Netherlands, Greece, Austria.