Author(s) Bernardo de Mendonça Teixeira de Castro
Advisor(s) Benedita Ferreira Silva Mac Crorie
Synopsis The current dissertation intends to analyse the “intermediate decisions” of the portuguese constitutional order and confront them with the principle of the separation of powers. Bearing in mind that an unconstitucional act is declared null, it‘s easy to understand that those effects, in spite of providing more effectively the Fundamental Law‘s integrity, jeopardise the rights acquired in legal relationships built under the unconstitutional law‘s duration. The refered situation raises a concern: how to mantain an effective sanction, capable of protecting the integrity of the Constitution, without sacificing legal security issues? The answer to this problem its been the acceptance of judicial decisions that, basing on the legal security principle, intend to attemper the effects of the declaration of unconstitutionality, being a “tertium genus” between pure decisions of provision or rejection, producing transforming effects in the rule under apreciation, this is, “intermediate decisions”. Those decisions give the Constitutional Court a wide margin of decision, allowing this organ to create law, competing with the legislator, aswell as to block in an inadmissible way, the freedom to judge by the common legislators, generating many tensions among this organs. Concluding, the object of this dissertation will consist in the analysis of this intermediate kinds of decision – using the experience of other constitucional orders, such as the german or italian – and, consequently, check its legitimacy in the portuguese constitutional order, in the light of the principle of the separation of powers.
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