Consideration by the court on its own initiative of documents forming part of the file that was compiled during enquiries, but to which the prosecution did not make express reference
Blood alcohol test
Burden of proof
Admissibility of evidence
RULING No. 110/11
2 of March of 2011
Consideration by the court on its own initiative of documents which form part of the body of documentation compiled during enquiries, but to which the prosecution has not expressly referred, does not compromise the accused person’s guarantees of a defence, on condition that during the hearing the judge gives the accused the possibility of considering the evidence in question. There can, however, be exceptions to the principle that the latter condition is a requirement, depending on the specific nature of the document. When the document’s contents are limited to a narrative of procedural or enquiries-related acts, the procedural subject cannot ignore its existence and its fitness to serve as proof. In the case that led to the present Ruling, the Court was faced with a situation of this kind. The document was the official record of the analysis designed to measure the rate of alcohol in the blood, and was drawn up by the police officer who took the accused person to the health establishment. It narrates the taking of the blood sample for analysis, and contains the signature of both the examinee and the doctor who conducted the procedure. The sampling that was documented in this way was followed by the analysis itself, the result of which was expressly invoked as evidence by the Public Prosecutors’ Office when it charged the accused with commission of the crime of driving while drunk. The fact that the PPO invoked this evidence when it charged the accused person was sufficient to comply with the adversarial principle and to give the accused the possibility of offering a defence with regard to the instrument that narrated the taking of the sample, which was itself a necessary step in order for the subsequent analysis to occur.
In the decision at first instance, which was later confirmed in a ruling of the Court of Appeal, the court applied Code of Criminal Procedure precepts regarding the production of evidence (general principles, the adversarial principle, the rules governing how evidence should be weighed up) in such a way as to say that, in order to hold facts that are unfavourable to the accused proven, a court can attach value to a document which, although it is part of the body of documentation that was compiled during the enquiries phase, it is not listed among the evidence referred to in the charge brought by the Public Prosecutors’ Office (PPO), and has not been presented and discussed at a hearing. The appellant to the Constitutional Court argued that this norm is unconstitutional because it violates the constitutional principles governing the guarantees applicable to criminal procedure.
The issue was the fact that, in conjunction with other items of evidence, the court a quo attached value to a document, which was signed by the accused and concerned the undertaking of an expert procedure (the taking of a blood sample for examination), in order to conclude that the accused gave his consent for this expert act to take place during the enquiries phase.
The Constitutional Court was of the view that, of the broad range of matters to which the constitutional guarantees in criminal procedure can apply, for the purposes of the present review of the constitutionality of a norm the only aspects which the Court could consider were the prohibition on the inversion of the burden of proof to the accused person’s detriment, and the associated principle of in dubio pro reo.
In other words, that which the Constitutional Court was required to determine was the possible existence of an unconstitutionality due to a breach of the constitutional principles that protected the accused’s position. These principles can be condensed into the idea that penal procedure must be oriented towards the defence, particularly by observing the accusatorial and adversarial principles.
On the one hand the norm in question allows the trial judge to consider the documentary evidence in the case file without it being submitted to express examination during a hearing; on the other hand, it also permits the judge, acting on his/her own initiative, to attach value to documentary evidence which has been included in the case file since the enquiries phase, but which was not expressly listed among the evidence referred to in the charge brought by the PPO.
On the question of the examination of the documents at a hearing, the Code of Criminal Procedure establishes the general rule that attaching value to evidence which has not been produced or examined at a hearing is prohibited. The Constitutional Court held that in the case of the documents that were attached to the charge, the accused person not only had every opportunity to question them, but could also have caused them to be reconsidered during a court hearing. It is not necessary for all the documentary evidence that existed before the hearing and is attached to the case file to be read out during the hearing in order for the requirement that the procedure must ensure all the guarantees of the defence to be fulfilled. The adversarial principle is complied with if the procedural subject who opposes the introduction of the evidence by the other subject is given the possibility of challenging both its admission and its probatory value.
However, the specificity of the question in this particular case is due to the fact that it involved a document which had been in the case file since the enquiries phase, but which the PPO did not include in the evidence it listed in the charge it brought against the accused. The Constitutional Court emphasised that it was not saying that a judge must limit the sources from which he/she forms his opinion to the evidence furnished by the prosecution and the defence. The Portuguese criminal procedural system does not correspond to a pure accusatorial model, but is instead a procedure with an accusatorial structure complemented by the principle of judicial investigation in the field of the production of evidence. The law expressly states that, either on its own initiative or at the request of a procedural subject, the court must order the production of all the evidence, knowledge of which appears to it to be necessary in order to discover the truth and to take the right decision in the case.
The purposes of the criminal law and those of criminal procedure (the latter being instrumental to the former) mean that penal sanctions – sentences and security measures – must be applied, but only to the true agents of crimes; and this in turn means that the implementation of the criminal law and the existence of criminal procedure itself are only constitutionally legitimate if the principle of judicial investigation is respected. In the criminal field, the constitutional norm that gives the courts the competence to administer justice must be understood to signify material justice based on the truth of the facts, and it is neither permissible for an accused to be convicted when there is evidence that might prove his/her innocence, nor for him/her to be absolved in the face of evidence of the facts of which he/she is accused, when that evidence has been validly produced and subjected to the adversarial process. In the case of evidence that is already in the case file, the fact that the court, acting on its own initiative, considers documents that were attached during the enquiries is not something that might compromise the guarantees of the defence just because the prosecution has not expressly referred to that evidence. So the judge can use documents that have been in the case file since the enquiries phase and are not listed by the prosecution, but he/she must directly give the procedural subjects – in this case, the accused person – the possibility of considering that evidence. However, the Constitutional Court added that this requirement in principle is nonetheless compatible with the existence of exceptions derived from the nature of the document itself, without in the process straying from the fundamental requirement that criminal procedure must ensure all the guarantees of the defence. In situations – like that in the present case – in which the document contains a narrative of what happened in a given procedural step and that narrative is indissolubly linked to a result which is expressly called on as evidence, the procedural subject cannot ignore its existence and fitness to serve as proof. Invoking the probatory value of the result of the document is thus sufficient to ensure that the accused person, who is represented by a lawyer, can defend himself with regard to an official record that documents a step which is a necessary predecessor to the determination of the result that is invoked against him.
As such, the action the appellant attacked on the level of its constitutionality does not exceed that which is permissible on the level of the freedom to attach value to evidence. That action did not impose any burden of proof on the accused, nor does the procedure in question show that in making his assessment that the evidence should be allowed, the judge impinged on the principle that requires him to pronounce in the accused’s favour when he (the judge) is not certain about the facts that are decisive to the solution that must be given to the case. The principle of investigation or of material truth possesses constitutional value, notwithstanding the accusatorial structure of Portuguese criminal procedure.
Ruling no. 87/99 (09-02-1999), Ruling no. 137/02 (03-04-2002).