Compensation for remand in custody
Detention pending trial
Subsequent acquittal of charges
RULING Nº 185/10
12 of May of 2010
Like any other measure that entails depriving a person of his/her liberty, remand in custody is a restriction on the constitutional right of freedom that is expressly authorised by the Constitution itself. It exists because it is needed in order to safeguard other values that enjoy constitutional protection, such as those of the efficacy of penal justice, security, and most fundamentally, the freedom of the other members of the community. The Constitution does not place a duty on the legislator to provide for compensation in cases in which an accused person is remanded in custody and is subsequently acquitted of the charges against him/her. The only exception is if it is first confirmed that the measure’s use was excessive. The control over the way in which the ordinary legislator has fulfilled its duties to protect constitutionally protected assets, albeit by restricting individual rights, freedoms or guarantees in the process, cannot lead to the judicial authorities handing down judgements that in essence complete the state’s legislative function.
The question of constitutionality that was posed in this Ruling was the constitutional conformity or otherwise of the Code of Criminal Procedure (CPP) norm that subjects the right to compensation for unjustified remand in custody to the occurrence of a gross error in the judge’s assessment of the factual prerequisites for this particular coercive measure. The appellant also invoked the European Convention on Human Rights. She argued that the restrictive regime contained in the Code of Criminal Procedure is also contrary to the provisions of Article 5 of the Convention.
The regime governing compensation for unlawful or unjustified deprivation of freedom that was applicable to the case (and has since been the object of a number of amendments that are not relevant here) made the award of compensation to persons who have been remanded in custody dependent on the fulfilment of either of two conditions: the measure’s manifest unlawfulness; or the existence of a gross error in the assessment of the factual prerequisites that led to its imposition. Setting aside cases of manifest unlawfulness, the regime provided for a right to compensation for lawful remand in custody, but subjected the formation of that right to the existence of a gross error in the judge’s assessment of the factual prerequisites that led him to impose the coercive measure. The regime says that the author of the request for compensation must demonstrate that there was such a gross error in the assessment of the factual prerequisites that caused him/her to be remanded in custody. Although the question of whether such an error was made is posed in hindsight, it must always be judged in relation to the moment at, and the circumstances in, which the judge handed down his/her decision to remand – i.e. on the basis of the facts, elements and circumstances that existed when the remand measure was imposed or extended.
In the present Ruling, the specific question that was addressed by the Constitutional Court was the constitutional conformity of the normative segment contained in the CPP precept that subjects the right to compensation for being remanded in custody to the presentation of evidence by the accused person at a later date, during a civil liability action against the state. In other words, whether the CPP norm should be held unconstitutional when interpreted such that the remand in custody of an accused person who is subsequently acquitted on the grounds of the principle of in dubio pro reo is not considered to be unjustified, and thus does not create an obligation on the part of the state to compensate, because the acquittal decision does not constitute sufficient proof of such a consideration. The appellant argued that it is unconstitutional. She essentially based herself on three arguments: the right of freedom and the scope of the protection afforded by the constitutional norm in which that right is enshrined; the institution of the state’s extra-contractual civil liability, as outlined in the Constitution; and the international obligations which the Portuguese State undertook to fulfil when the norms set out in the European Convention on Human Rights (Article 5) were incorporated into Portuguese law.
The Court quoted its own jurisprudence, which distinguishes between the question of constitutionality itself and the question of what the best legislative solution is. The Court naturally considered that it should only answer the first of these two questions.
It also felt that it was not necessary to consider whether the court decision against which the present appeal was brought was in conformity with the European Convention on Human Rights, inasmuch as it was of the opinion that the latter’s Article 5 contains nothing that is not already present in the constitutional norm.
The Court observed that the risk which every individual runs of being remanded in custody if certain legal prerequisites are met results from a dual necessity: that of protecting the freedom of other people; and that of safeguarding the communal assets of security and the efficacy of the penal system.
The subsequent question is therefore who ought to bear the burden of this risk in the event that, later on, a decision to acquit leads to the conclusion that in a given concrete situation the remand measure was not justified: the individual; or the community, in the person of all its members (the burden here taking the form of the state’s duty to compensate). Within the system of assets and values that are protected by constitutional law, the legal asset that is protected by the constitutional right to freedom unquestionably occupies a leading place. The protection of freedom exists side-by-side with the principles of the state based on the rule of law and the dignity of the human person. This is why the constitutional norm that enshrines the right to freedom must impose special duties to protect on the legislator, first and foremost in the shape of the requirement to pass norms that prevent each person’s freedom from being injured, either by an act of the community that has set itself up in the form of the state, or by an individual act undertaken by any of the community’s members. The order contained in Article 27(5) of the Constitution of the Portuguese Republic (CRP), under which deprivation of freedom contrary to the provisions of the Constitution and the law places the state under a duty to compensate (in whatever way the law then stipulates), is included in one of those duties to protect, which pertain to the ordinary legislator and fulfilment of which is demanded by the particular importance that this constitutionally protected asset possesses.
Arbitrating how to weigh up the question of whether the risk of being lawfully remanded in custody that is run by an accused person who is then judicially acquitted should be borne by the accused, or by the community in the form of the imposition on the state of an obligation to compensate, is to arbitrate a true conflict of freedoms – something that the Constitutional Court is not in a position to do.
The Court also denied the argument that the challenged norm might be unconstitutional because it is in breach of the constitutional norm that makes the state liable for actions which are undertaken in the exercise of its functions and which lead to a violation of rights, freedoms or guarantees or a loss to a third party. Inasmuch as it contains a restriction on the right of freedom that is not itself unconstitutional, the norm does not injure any right, freedom or guarantee. On the other hand, that which the constitutional norm on state liability does enshrine is an institution, thereby preventing the ordinary legislator from eliminating or disfiguring essential elements of the latter.
One Justice dissented, because he felt that the normative interpretation that was applied did not consist of denying the right to compensation of an accused person who has been subjected to remand in custody and has then been acquitted on the grounds of the principle of in dubio pro reo, but rather, in a more absolute manner, of denying that compensation to an acquitted person whose innocence has not been proven. In the dissenting Justice’s opinion, burdening the accused in this way with the need to prove that he/she “is above all suspicion" contradicts the ultimate meaning of the constitutional norm which enshrines the presumption that an accused person is innocent until the sentence in which he/she is convicted transits in rem judicatam.
See Rulings nos. 160/95 and 12/05.