Classification of cases involving crimes of domestic violence as urgent proceedings
Crimes of domestic violence
Time limits for lodging appeals
Rights of the defence and to a fair trial
RULING No. 158/12
28 of March of 2012
The attribution of the nature of urgency to cases involving crimes of domestic violence, which in turn means that the Code of Criminal Procedure time limit of twenty days for lodging appeals with regard to matters of law is not suspended during judicial holidays, is not unconstitutional. The need for greater procedural speed with regard to crimes of domestic violence objectively constitutes sufficient material grounds for a differentiation between regimes, and it is not up to the Constitutional Court to take the legislator’s place in assessing the reasonableness of that differentiation. The control exercised by the Court is a negative, not a positive one, and the Court’s responsibility is only to verify whether or not the legislative solution appears to be absolutely intolerable or inadmissible from a constitutional-law point of view, in the sense of whether the Court is able to find any intelligible grounds for it. In its role as an objective limit on legislative discretion, the principle of equality does not prevent the law from making distinctions. It does prohibit the legislator from adopting measures that establish discriminatory distinctions – i.e. forms of treatment that are unequal without any material or reasonable grounds for being so. To summarise the principle of equality in its function as a principle that is binding on the law, one can say that the general idea behind the principle is that it prohibits arbitrariness.
The imposition of the regime under which procedural steps are deemed urgent in cases involving crimes of domestic violence, particularly in terms of the time limits for lodging appeals or undertaking judicial acts during holiday periods, does not present an arbitrary nature; rather, it is in harmony with the goal of protecting the victims of this type of unlawful act, which is a constitutionally legitimate objective. The need to protect the victim of a crime is an irrenounceable dimension of a criminal policy, even though that protection cannot be allowed to undermine the eminently public nature of the state’s intent to apply judicial punishments, which only it – the state – can exercise.
The appellant was convicted of two crimes of domestic violence and one crime of mistreatment. He appealed to the Constitutional Court against those norms in the Law that establishes the legal regime applicable to the prevention of domestic violence and the protection of and provision of assistance to victims thereof, which say that the applicable proceedings are urgent, even if no accused persons are in detention, and that the time limit for lodging appeals against decisions handed down in those proceedings is not suspended during judicial holidays. The legislator used this Law to promote integrated responses to the phenomenon of domestic violence. The Law’s main purposes include those of legally establishing victims’ rights and ensuring the latter’s rapid, effective protection, ensuring that victims receive fast, effective police and jurisdictional protection, and ensuring the imposition of appropriate coercive measures on, and penal reactions to, the perpetrators of crimes of domestic violence; albeit this does not mean that the Law does not also seek other responses to the problem, particularly in the fields of the labour law, social security and health, as well as measures regarding administrative and other forms of police protection.
The legislator’s goal in opting to do all this was not to protect the accused, but rather to protect the offended party identified in crimes of domestic violence as a type of victim who is especially fragile and deserves to be given a legally regulated status, with the recognition of specific rights and duties. The regime under which procedural steps are deemed urgent, with its consequences in terms of the way in which time limits are counted, is a formal and functional part of this victim’s statute. The legislator bore in mind the fact that generally speaking, the context of crimes of domestic violence is a relational one involving spatial proximity and a connection with and/or economic dependence on the agent of the crime – circumstances that often remain in place during the proceedings – and that this means the victim is especially exposed to that context’s consequences. Situations in which aggressive forms of conduct are repeated or get worse, sometimes exacerbated by the very fact that proceedings are pending, are quite common.
In addition, the legislator also took account of the need to publicly affirm the efficacy of the protective penal instrument in the shape of the evidently rapid reaction to violations of the legal asset protected by the criminalisation of this type of act. The public disquiet which conduct of this type is increasingly engendering and the importance of the problem of domestic violence to Portuguese society (which the Assembly of the Republic has acknowledged to the point of creating a particular victim’s statute and establishing a ‘National Plan Against Domestic Violence’) justify this concern on the legislator’s part.
The appellant argued that it does not fall to the legislator, but rather to the courts, to say that proceedings should be urgent in an abstract sense solely because of the category of crimes which form their object. In his view this abstract attribution of urgency to proceedings regarding a given category of crimes to the detriment of others would lead to a violation of the guarantees applicable to criminal procedure, which are a fundamental right.
The Constitutional Court said that the legislator, and only the legislator, has the competence to lay down the legal regime governing criminal procedure in a general, abstract way. This task does not pertain to the courts, whose responsibility is to apply the law to the cases that are submitted to them.
Indeed, whether the attribution of urgency to proceedings is the result of ope legis or of ope judicis is indifferent from the point of view of ensuring fulfilment of the guarantees applicable to criminal procedure. The important thing on this level is that the regime to which the procedure is subject is compatible with the guarantees of the defence, not the way in which that regime is determined.
The Constitutional Court felt that the appellant’s argument that the attribution of urgency to proceedings violates the guarantees applicable to criminal procedure was underlain by the conception that, with its procedural consequences (the priority treatment by judicial instances, the fact that procedural acts are undertaken during judicial holidays, and the establishment of shorter time limits or special rules for counting them), this urgent nature is a solution the Constitution reserves for situations in which accused persons are the object of measures that deprive them of their freedom; and that the fact that the urgency is not dictated by the interests of the accused means that this is a breach of the principle of equality.
However, the Court has already said in its past jurisprudence that this conception is mistaken, namely with regard to crimes involving abuse of the freedom of the press.
On the question of whether the reduction in the time limit for appeals is such that it endangers the guarantees of the defence, the Court said that this is not the case. The interested party continues to dispose of a period of time that is generally considered adequate in which to take an informed decision as to whether to accept or challenge the sentence, lodge the respective appeal and provide the grounds for it.
See Rulings nos. 186/92 (20-05-1992), 384/93 (08-06-1993), 47/95 (02-02-1995), 49/95 (02-02-1995), and 409/10 (09-11-2010).