DRAFT LAW NO. 136 /X

Revoke the Decree No. 35,106 of November 6, 1945

(which regulates the occupation and allocation of houses

intended for poor families)

The Decree-law No. 310/88 of September 5, came to determine the form of

sale of houses built by the municipalities under the Decree No

34,486, of April 6, 1945. It is recalled that through this diploma if

authored the Government to promote the construction, within five

years, and through the administrative bodies and Misericordias, de

5,000 houses intended for housing of poor families in the centres

population of the continent and islands.

Expressly repealed by Article 22º of Decree-Law No. 310/88, that

"old" diploma of 1945 was regulated at his time by the Decree

paragraph 35,106, of November 6 of the same year, which " inserts several

provisions relating to the occupation and allocation of houses intended for

poor families ".

This last diploma, not expressly revoked by any

legislation, contrary to what happened with the Decree-law No. 34,486,

it has in its Article 12º that the occupants of the houses built by the

municipalities under Decree No. 34,486, may be dislodged

whenever they check out they have no need to occupy the house or if

"make them unworthy of the right of occupation that has been granted to them".

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Add to that Paragraph 1º of the same article lists followed by

set of situations especially applicable to residents and that,

at the very least, they are of dubious constitutionality.

Of rest, how to afflate what is "unworthy" and determinant of the eventual

eviction, how do you establish the body of the article?

Regardless of the legal discussion on whether the revocation

express of a particular degree (the Decree No. 34,486, in the case

concrete) automatically implies the repeal of all legislation,

specifically regulation that is affecting you, we consider

that being applied for such regulation not expressly

repealed, and containing it some violating principles of rights

fundamental of citizens, is the express revocation of that diploma to

best option to clarify this situation from time to time.

Stipulates Article 65º of the Constitution of the Portuguese Republic that

" everyone has a right, for themselves and for their family, to a dwelling of

adequate size ", tasking the state to ensure that right.

It is added that the principle of equality among citizens enshrined in the

article 13º of CRP determines that all citizens have the same

social dignity and are equal before the law.

" No one can be privileged, benefitted, harmed, deprived of

any right or exempt from any duty on the grounds of ancestry,

sex, race, language, territory of origin, religion, political beliefs or

ideological, instruction, economic situation or social condition ".

This is a structuring principle of the Portuguese constitutional system,

incidentally inherent in a rule of law.

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The prohibition of the arbitrium constitutes an external limit of the freedom of

conformation or decision of the public powers, following the principle

of equality as a negative principle of control (vide Vital Moreira,

Gomes Canotilho, Constitution of the Portuguese Republic, Annotated).

For his part, the right to housing connces the right not to be

arbitrarily deprived of housing and the right to obtain it by translating-

if in the requirement of the State measures and benefits appropriate to its

concretization. It is an analogous right to rights, freedoms and

guarantees and a constitutionally foreseen social law.

Being, for the reasons exposed, intention of the Parliamentary Group of the CFP

promote the express revocation of Decree No. 35,106, 6 of

November 1945, it matters to make it very clear that it is our concern

central prevent the creation of an eventual legal vacuum with respect to the

"provisions concerning the occupation and allocation of houses" of housing

social that that Decree was aimed at regulating.

Thus, revoked the Decree No. 35,106 of November 6, the conditions

objectionable that will be able to determine the occupation and the disengagement of

municipal fires and, consequently, the establishment and the

resolution of the respective contracts, established under the

Decree No 34,486, of April 8, 1945, regulated by the Decree

paragraph 35,106 of November 6 shall be governed by the framework

legislative in force that regulates urban tenancy.

The use of Decree 35,106, of November 6, 1945, which

has started to have a frequent and heavily contested application in the

Municipality of Porto from the years 2002 and 2003, motivated a

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initiative of the Parliamentary Group of the CFP in June 2003 during the

2ª legislative session of the IX Legislature, where it was already provided for revocation

of that legislation from 1945. This was indeed a legislative initiative in

that the CFP was at the pioneering time, having been the first party to take on

a concrete legislative act tendon to eliminate a performance

municipal supported by a legal framework manifestly

unconstitutional and that allows for the dislodging or eviction

administrative run summarily by mere indication and order

autarquica.

As the IX Legislature was interrupted by the decision of the

President of the Republic to dissolve the Assembly of the Republic and of

mark early legislative elections, this legislative initiative of the

Parliamentary Group of the CFP (Draft Law 328 /IX) has lapsed, not having

arrived to be debated.

In the meantime, and since the X Legislature has started, the situation has not been

changed. In The Municipality of Porto has been continuing the use of the

Decree 35,106 of November 6, 1945 in other municipalities of the Country

also continue to be recurrently used some of the

devices from that legislation that, unquestionably, conflicted with

the right of citizens to the imputation of administrative acts and not

allows them to be the Courts to appreciate, in adequate and useful time,

of the existence, or not, of reason enough for the resolution of

tenancy agreements.

In these terms, the Deputies of the Parliamentary Group of the CFP present

the following Draft Law:

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Article 1º

It is repealed the Decree No. 35,106 of November 6, 1945, which " enters

various provisions regarding the occupation and allocation of houses

intended for poor families ".

Article 2º

The resolution of the contracts established under the Decree No

34,486, of April 8, 1945, shall be governed by the stipulation in the legislation

general on the Urban Tenure Regime.

Assembly of the Republic, July 11, 2005

The Deputies