The Public Prosecutors’ Office may not appeal against constraint measures when the appeal is not for the benefit of the accused person.
Role of the Public Prosecutors’ Office in criminal proceedings
Defence of the rights to public security and of victims.
RULING Nº 160/2010
27 of April of 2010
The fact that the Public Prosecutors’ Office cannot appeal against decisions not to apply constraint measures that it requested in criminal proceedings is not contrary to the principle of legality or any other constitutional principle.
In its review request the Public Prosecutors’ Office (MP) questioned the constitutionality of a norm that had served as the grounds for the decision not to admit an appeal which the MP had lodged against a decision in a criminal case, in which the court had decided not to apply the constraint measure known as ‘obligation to report periodically’. The norm in question states that: “Only the accused person, and the Public Prosecutors’ Office acting for the benefit of the accused person, may appeal against decisions which apply, maintain or substitute measures provided for in the present Title” (the Title concerned provides for constraint measures and measures involving the provision of assets as guarantees). So the Public Prosecutors’ Office only possesses the legitimacy to appeal if it does so for the benefit of the accused person.
The Public Prosecutors’ Office felt that precluding it from appealing when this might prejudice the accused person, in cases involving constraint measures imposed in criminal proceedings (a possibility which had existed under the previous legislation), conflicts with the status afforded to it in the Constitution, and is also in breach of – particularly – other constitutional principles, such as those of legality, access to the law, and the democratic State based on the rule of law. It said that the Constitution sees the Public Prosecutors’ Office as an autonomous judiciary which is the ‘dominus’ of the criminal enquiries in the first of the preliminary phases of criminal proceedings and which always acts as an impartial, objective subject for as long as those proceedings last. It is responsible for exercising penal action under the guidance of the principle of legality and of the defence of democratic legality.
Constraint measures may only be imposed as part of concrete criminal proceedings brought against a given accused person who has already acquired accused status, and they are subject to a principle of legality. The petitioner said that this constitutional vision of the Public Prosecutors’ Office, when it is acting in the field of penal justice and to the extent that is relevant to the present case, cannot fail to include the function of controlling the legality of the constraint measure that is concretely imposed in those proceedings – as happened in the case which was the object of the present appeal. The petitioner went on to argue that the ways in which that control is exercised must include the right to appeal, whenever the Public Prosecutors’ Office feels that, given the applicable precautionary procedural requirements, the court did not impose the constraint measure that was appropriate to the case in question. The Public Prosecutors’ Office also used the principle of equality of arms, which is an essential characteristic of Portuguese criminal procedure, to support its position. In summary, it said that the norm was in breach of three constitutional principles (the legality of criminal proceedings; equality; and the principle that protects the Public Prosecutors’ Office’s access to the law, in its role as representative of the State/Community) and its constitutional function as a defender of democratic legality.
The Constitutional Court took the view that the Constitution includes the right to appeal among the guarantees of a defence that are available to accused persons, but that such appeals can only be lodged by the Public Prosecutors’ Office when the latter does so solely in the interest of the defence. The right to appeal cannot be invoked by the Public Prosecutors’ Office when it might lead to a decision that would be less favourable to the accused person. As to the fundamental right of access to the courts, the Court said that the correct interpretation is that the exercise of penal action by the State (acting via the Public Prosecutors’ Office) is not protected by the provisions of Article 20 of the Constitution. This is what can be deduced from the historical meaning and the primordial function of the fundamental rights, in their role as ‘rights to protection’ against the State, and not as rights which the State or its organs are themselves recognised to possess. There can be no doubt that the Constitution charges the Public Prosecutors’ Office with certain functions: representing the State and defending such interests as the law determines; and playing a part in the execution of the criminal policy laid down by the organs of sovereignty, exercising penal action under the guidance of the principle of legality, and defending democratic legality. Nor can one exclude the possibility that normative solutions which result in a limitation on access to the courts – perhaps solely because they provide for criteria which restrict the admission of appeals lodged by the Public Prosecutors’ Office – constitute or imply an unacceptable understanding of those constitutional functions. In this event they must be deemed unconstitutional, because they are themselves in breach of the Constitution’s provisions on the functions and competence of the Public Prosecutors’ Office as an institution. Be this as it may, this should not be seen as an unconstitutionality that arises out of an injury to an alleged fundamental right pertaining to the Public Prosecutors’ Office itself.
Turning to the principle of the legality of constraint measures, the Court said that this principle is in turn justified by the principle of the presumption of innocence until the conviction sentence transits in rem judicatam, and by the fact that laws that restrict the right to freedom, which everyone is recognised to possess, fall within the exclusive legislative competence of the constitutional legislator. This principle of legality means that decisions which impose or maintain constraint measures that are not provided for by law, and decisions which replace constraint measures with others that are not provided for by law, must be subject to appeal, but that this is not really the case of decisions which do not impose any constraint measure. In the latter case any appeal which the Public Prosecutors’ Office might bring would not be in the sole interest of the defence, and would fall outside the scope of the accused person’s guarantee of a defence.
The Constitutional Court therefore denied the appeal.
The President of the Constitutional Court dissented from the Ruling. In his accompanying opinion he disagreed with the grounds for the decision and with the majority’s interpretation of the Court’s jurisprudence. On the subject of the Public Prosecutors’ Office’s inability to invoke the parameter of the fundamental right of access to justice because the State’s exercise of penal action is not protected by the fundamental right of access to the courts, the author of the dissenting opinion considered that basing oneself on the idea that the right of access to justice is directed “against the State and its justice-administration organs” and that, because the Public Prosecutors’ Office forms part of the “state apparatus that performs this function, it cannot be seen as an active holder of a right which, with regard to this dimension, is exercisable against the organs of judicial power with which it works”, is an organisational or structural version of the issue that does not take account of the whole of the problematic dimension encompassed by this question. He went on to say that the Constitutional Court’s jurisprudence recognises that the principle of access to the law is a “key norm/principle in the structure of the democratic State based on the rule of Law”; and that this conclusion is all the more valid in a system in which the preventive protection of certain positions that are allegedly lacking in judicial oversight – particularly in the form of the imposition of constraint measures – can only be operated via the intervention of the Public Prosecutors’ Office, because the MP is the only entity which has the ability to project such positions in proceedings (for example, and in particular, the position of the victim of conduct that would seem to constitute a penal infraction). Nor, in the opinion of the dissenting Justice, is there any constitutional principle which would provide the grounds for saying that appeals against decisions involving the promotion of constraint measures can only be lodged in the interest of parties who are the object of those measures.