Extent of and limits on the right to an appeal in criminal proceedings
Rights of the defence and to a fair trial
Double degree of jurisdiction
RULING No. 107/12
6 of March of 2012
It is not possible to take the view that the Constitution requires the ordinary legislator to provide for the possibility of an appeal on constitutional grounds against every judicial order issued in criminal proceedings. The idea that it should be possible for “any and every act by a judge” to be controlled by a higher court is excluded, because it unnecessarily compresses other fundamental rights that can only be effectively protected if crime is effectively repressed. If different fundamental rights are to be reconciled, it is necessary to accept that the ability to appeal must be restricted or limited during certain procedural phases, and that it may not even exist at all in relation to certain acts undertaken by the judge, albeit on the condition that this does not injure the essential content of the accused’s right to a defence.
Given that, in its constitutional context, the appeal is an instrument designed to guarantee the accused’s right to a defence, in substantive terms it is the latter right which must guide the extent of the means used to enforce that guarantee. This is the measure that must determine the breadth of the ability to appeal in each decision-making domain. Within the dynamic of each case, it must be shown that the only way to effectively guarantee the right to a defence is to permit the possibility of an appeal.
From this substantive perspective, the core scope of the constitutional protection of the right to appeal thus also includes the ability to call on a different, hierarchically superior jurisdictional body, not only with regard to the final decision to convict, but also against all and any judicial acts which have the effect during the proceedings of depriving the accused of his/her freedom or other fundamental rights, or unduly restricting them.
The reason why normative options regarding the right to appeal must or must not be held to be in conformity with the Constitution must fundamentally be based on the severity of their effects. It is only possible to admit the constitutional legitimacy of solutions that preclude appeals when they do not affect the essential core of the accused’s right to a defence (namely because the issues at stake are merely incidental or interlocutory, and because the fact that a single instance has the power to decide them does not compromise the ability to react at the end of the process by appealing against the merit of the final decision). Any normative solution or interpretation thereof that makes it impossible to reconsider decisions which substantially injure the accused, thereby attacking the essence of the fundamental right to a defence, is illegitimate and thus a valid object of constitutional ire.
The Court felt that in the light of the constitutional guarantees applicable to criminal procedure, the essential question before it was whether the maximum expression of the guarantee offered by the right to appeal entitled an accused person to a review by the Supreme Court of Justice, not of the decision in which he was sentenced to 17 years in prison, but of that which refused to allow him to appeal against the latter because the appeal was not lodged in time – a decision which itself triggered the transit in rem judicatam of the first instance’s sentencing decision.
Appeals in penal cases involve a permanent dialectic tension between two antinomic goals of criminal procedural law, which it is impossible to completely reconcile with one another: on the one hand, the objective of securing penal justice and thereby rendering the state’s punitive power effective; on the other, ensuring that this objective is not attained by sacrificing fundamental rights of the human person – quite apart from anyone else, those of the accused, to whom the Constitution expressly affords a fundamental right to a defence.
The Constitution thus requires us to try to ensure that the opposing values which structure criminal procedure are able to co-exist in practical terms. This is why, in its vast jurisprudence on the subject, the Constitutional Court has frequently sought to resolve the various different questions of unconstitutionality raised by alleged violations of the fundamental right to appeal. An accused must be “tried as quickly as possible” – something that can only happen if the procedure is fast and effective; but this must be achieved in a way that is compatible with the guarantees enjoyed by the defence, which include the right to appeal. A priori, these guarantees thus take the shape of an inherent limit, which must be assessed in each concrete case, on the way in which criminal proceedings can be conducted.
The primary purpose of appeals is to correct errors or faults in decisions on the merit of or grounds for the case. An appeal is what allows an accused person to overcome the antithesis between the public interest in a conviction and his/her own interest in a defence.
In pursuing these axiological and conceptual premises, over the years the Constitutional Court has therefore decided to uphold the constitutional conformity of a very wide range of normative solutions, including interpretative ones, which prevent an accused from appealing against certain judicial acts that lie outside the core decision-making perimeter.
However, the Court also used the same criterion when it considered an interpretation based on the legal norm before it in the present case, but with the text that applied before the 2007 Reform entered into effect. According to this interpretation, it was not possible to appeal against a decision in which the Court of Appeal pronounced itself for the first time on whether a case was especially complex. The Constitutional Court held that in criminal proceedings, the intensity with which such a first decision was capable of injuring the accused’s right to a defence, in the sense that it could lead to an increase in the maximum possible lengths of remand in custody, meant that it must be possible to appeal against that decision, and that the interpretation was therefore unconstitutional.
In its past jurisprudence the Constitutional Court has also already found that from the point of view of the exercise of the right to appeal, it is arbitrary or unjustified to subject the ability to appeal to the Supreme Court of Justice against Court of Appeal decisions to a distinction between decisions which end proceedings for adjective reasons, and those which end proceedings based on the merit of the appeal, with the latter being admissible for appeal and the former not. From the point of view of the guarantees of the accused’s defence, it is indifferent whether a decision that puts an end to a case does so for reasons of merit or for reasons that are merely formal.
In the present case, the Court of Appeal decided not to admit an appeal that had already been allowed by the court of first instance. The Court of Appeal rejected the appeal on the grounds that the preconditions for bringing it had not been met. The Constitutional Court was then asked to rule on the constitutional legitimacy of the Court of Appeal’s interpretation of the norm on which it based its decision.
This question was further accentuated in the present case by the fact that the Court of Appeal decision led to the immediate transit in rem judicatam of the first-instance decision to sentence the accused to more than eight years in prison – a sentence against which he could then have appealed to the Supreme Court of Justice if the Court of Appeal had considered the merit of the conviction and upheld it.
The inability to appeal to the Supreme Court of Justice against a Court of Appeal ruling, in which the latter reviewed a first-instance decision, but did not hear and issue a final decision on the actual object of the case, would be uncontroversial, because the principle that there must be at least two levels of jurisdiction would clearly be satisfied. However, in the procedural situation before the Constitutional Court, the accused’s request to appeal against the first-instance decision to convict him was admitted by the same court of first instance. Then, without any prior adversarial hearing, the Court of Appeal refused to hear the appeal on the grounds that it had not been lodged in time, when the court of first instance had itself granted an extension of the applicable time limit on the grounds that the case was especially complex. The Constitutional Court ruled that while there was no doubt that the question of whether the original appeal had been lodged in good time had indeed been considered at two levels of jurisdiction – the first instance and the Court of Appeal – albeit with opposing conclusions, the fact that an appeal is a means of challenging decisions which have a negative effect on the accused’s legal sphere means that it makes sense for the corresponding right to arise within the accused’s procedural-law sphere only when the first unfavourable decision is handed down.
Inasmuch as the appeal format is an instrument for guaranteeing one of the fundamental rights of the defence, in such cases, and when the accused has not been given the prior ability to expound the defence’s arguments and thereby influence the initial judicial decision (a decision which, in the present case, was unfavourable to the accused), he/she must be acknowledged to possess the right to the reconsideration of the decision by a higher court.
One Justice dissented from the decision to admit this appeal to the Constitutional Court. He expressed the view that the current Portuguese system for the concrete review of appeals on the grounds of unconstitutionality does not permit amparo remedies, and that from a substantial point of view, this was the nature of the appeal in the present case.
See Rulings nos. 31/87 (28-01-1987), 259/88 (09-11-1988), 118/90 (18-04-1990), 265/94 (23-03-1994), 610/96 (17-04-1996), and 424/09 (14-08-2009).