The Decision No. 183/2008 and the review of normative interpretations in areas subject to the principle of criminal legality

Abstract

The Portuguese system of constitutionality review is normative in nature, which means that the Constitutional Court can only review norms. However, the Court developed a functional concept of norm early on, which, among other things, allows it to scrutinise normative interpretations made by ordinary judges. The problem arises, however, when these interpretations fall within areas subject to the principle of legality, such as criminal law, insofar as it can be difficult to distinguish whether what is being scrutinised by the Court is the norm as a result of the interpretation or the judicial decision under appeal. This is the subject of the judgement on which this paper focuses.