Original language

Portuguese, International

Date of text
Type of court
National - higher court
Court name
Tribunal Constitutional
Seat of court
Reference number
866/96 - Processo n.º 3/94
Civil, Protected Areas, Standing, Property, Constitutional, Evidence
Free tags
Legal questions
Land & soil
Cons. Sousa e Brito

The State of Portugal, represented by the Public Ministry of the Tribunal of Setúbal acted against C. and A. requesting that a certain building, built by these two companies without a proper license in a location belonging to the protected area of Parque Nacional da Arrábida cannot stand there and therefore, it must be demolished. The criminal court of Setúbal by judgment of 15 March 1991 dismissed the action.

Dissatisfied, the Public Ministry appealed to the Court of Évora which, by judgment of 10 October 1995, reversed the appealed decision and condemned the defendants to demolish the building within 30 days and at their own expense.

The defendant appealed the decision of the Court of Evora in front of the Supreme Court. The Supreme Court held that the demolition is based on a double alternative foundation – on one hand, the rules laid down in Articles 12 and 18 of the Regulation approved by Ordinance No. 26-F / 80 regarding the administration of the Park; on the other, the requirements set out in paragraphs 2 and 3 of Article 6 of Decree-Law No. 622/76, of 28 July – each even taken separately, is sufficient to normatively support the decision. As a result, the Supreme Court reversed the first instance decision and considered that the demolition was lawful

The defendant brought the case in front of the Constitutional Court. The Constitutional court noticed that the only building in the park is a Capuchin Convent which itself contains a high national value that must be preserved. And that's why it was recognized the need to take effective measures to protect it and the rights of citizens that have their interest in there. Hence, only in exceptional circumstances and with the permission of the management of the park a construction can be carried out.
There is no evidence that the work carried out by the defendants has something to do with the continuation of traditional activities of the Park.
And the proof that any work carried out in protected landscape zone can be allowed is up to the offender, or in this case the defendants. Having done the work without the direction of Park license, the offender did not provide any proof of this.
Moreover, Article 62 of the Portuguese Constitution provides in paragraph 1 that "everyone is guaranteed the right to private property and its transmission by life or by death under the Constitution." This right is, however, subject to restrictions of use, enjoyment and disposal either for the state or the public or to third parties. Thus, the legislators can establish restrictions on property rights. And the demolition also does not violate the provisions of art. 65, in whose point 1 states that “everyone has the right, for himself and his family, to a dwelling of adequate size, in hygienic conditions and comfort and preserves personal and family privacy." As the Court explained, this provision does not mean that every citizen can build their house wherever they want and the way that suits them. All citizens are subject to the law and must act within the limits it imposes.