The Retroactivity of Law No. 65/2023: Aspects of [Un]Constitutionality and [In]Legal Certainty (part I)

The present study focuses on analyzing the normative content of Law No. 65/2023 on the external evaluation of judges and candidates for the position of judge at the Supreme Court of Justice (CSJ), in order to assess its compliance with the constitutional principle of non-retroactivity of the law. In this regard, the author seeks to determine whether the law produces retroactive effects and, if so, whether its retroactive application can infringe upon the fundamental rights of the individuals subject to evaluation, while also undermining their legal certainty. The research hypothesis is based on the premise that Law No. 65/2023 generates effects incompatible with the principle of non-retroactivity of the law and with the requirements of legal certainty (particularly the stability of legal relationships), which substantially affects the fundamental rights of the evaluated candidates. In order to confirm this hypothesis, the study addresses aspects such as the constitutional guarantee of the principle of non-retroactivity of the law and the material competence of the Evaluation Commission, from the perspective of its prerogative to establish facts and to legally qualify them in relation to the negative integrity criteria set out in Article 11, paragraphs (2) and (3) of Law No. 65/2023. Given the need to comply with volume limitations, other relevant aspects will be addressed in subsequent research (Part II of the study).