Data source
Date of text
04 Apr 2000
Country
Seat of court
Lisbon
Original language

Portuguese, Portugal

Type of text
National - higher court
Reference number
Acórdão n.º 823/96
Court name
Tribunal Constitutional
Justice(s)
P. Mota Pinto
Sources
InforMEA
Keywords
constitutional law, hunting

The Judicial Court of the Cuba County in Portugal expressed itself in an ordinary trial against A., accused of the crime of illegal hunting, trapping and killing of wildlife punishable under paragraph 10 of article 31 of Law No. 30/86 of August 27, in conjunction with articles 16 and 18, paragraph 1, all of Decree-Law No. 251/92 of 12 November and also with the provisions of Article 5 of Decree No. 640-B / 94 of 15 July.

During the trial, the defendant was found guilty of hunting rabbits and hares, in a hunting zone of which he was not a member, "using the lights of his car to catch the animals and then chained them and later slaughter them with a shotgun."

In the first instance of the process, the defendant was condemned to four months of prison which were later replaced by 60 days of imprisonment in addition to a fine of $ 63,000 00 and the prohibition of the right to hunt for a period of three years in accordance with art. 32, paragraphs 3 and 4 of Law 30 / 86. The penalty was reduced due to the particular circumstances of the case, including the "small gravity of the consequences of the facts, that the object used to commit the crime does not endanger, by their nature, safety, morals or public order - and in addition, the absence of a criminal history in the defendant's background and the understanding that there are no serious risks of future crimes from his part by the use of the same object." This decision was then contested by the defendant and brought by the public prosecutor to the Constitutional Court, in reason of Article 70, paragraph 1, point a) and 72, paragraph 3 of Law no. No. 28/82, of 15 November, request that was accepted with immediate rise in the acts and with suspensive effect. The dispute focused on the "assessment of the constitutionality of Art. 31, No. 10 of August 27 30/86 Law in that it stipulates the prohibition of the right to hunt for a period of five years, and the confiscation of instruments".

In the claim submitted to the Court, Mr. Deputy Attorney General concluded as follows:

1 - Article 31, paragraph 10 of Law No 30/86 is against the Portuguese Constitution as it establishes the additional penalty of prohibition of exercising the right to hunt for a fixed period of 5 years without, however, precluding to judge the valuation of axiological-normative support of the defendant's guilt, as application of the assumption that is a fixed additional penalty.

2 - It is incompatible with the rule set out in paragraph 4 of article 30 of the Portuguese Constitution which ope legis provides for conviction for hunting crimes, the loss of property rights on motor vehicle belonging to the defendant and used by him as an offense instrument without judicial consideration of the circumstances mentioned in Article 109 of the Penal Code.

On those grounds, the Constitutional Court ruled that:

a) the article applied in the judgement of the defendant (art.31, as above)is unconstitutional for violating constitutional principles of equality and proportionality, to the extent that, as a result of illicit practice as described in the former judgment, requires the imposition of the right to hunt for a fixed period of five years;

b) It is also unconstitutional because of the violation of the constitutional principle of proportionality, in conjunction with Article 62, paragraph 2 of the Constitution and Article 31, paragraph 10 of the same law, in that it provides, as an automatic consequence of a typified crime practice, and regardless of the weight of the circumstances, the loss of the defendant instruments;

c) Consequently, the Court confirmed the contested decision in the matter of constitutionality concerns.