Deferring the effects of inconstitutionality decisions and the judgement 353/2012

Abstract

The present commentary seeks to analytically reconstruct the operation carried out by the Constitutional Court in manipulating the effects of decisions issued in the context of judicial review, with special attention to the case exemplified in Acórdão 353/2012, in which the Constitutional Court decided to defer the effects of its own decision to the future. The central hypothesis explored is that the notion of the applicability of norms is an important, albeit underexplored, tool for explaining these manipulative operations. Thus, the first part of the commentary aims to clarify how unconstitutionality and inapplicability are interconnected. Subsequently, in the following section, an analysis is conducted on how the Constitutional Court can manipulate the applicability of norms declared unconstitutional in its decisions. Finally, the proposed reconstruction is applied to the case decided in Acórdão 353/2012, and from there, new considerations regarding the admissibility of deferring the effects of the unconstitutionality decision are presented.