Suspension or interruption of the time limit after which criminal proceedings are prescribed, in the case of private crimes.
“Ownership” of a criminal suit
RULING No. 445/12
26 of September of 2012
A Penal Code (CP) norm was interpreted such that, in cases in which the Public Prosecutors’ Office does not also bring charges, the time limit for the prescription of criminal proceedings is neither suspended nor interrupted by notification that private criminal charges have been brought. The Constitutional Court held that, when interpreted in this way, the norm is not contrary to constitutional values.
Although it is true that in the case of private crimes, the law treats the act of damaging a legal asset as a criminal offence, but the desire to see the commission of that act punished by a penal sanction must substantially be pursued in the form of a private prosecution brought by the victim or another civil party with the right and legitimacy to do so, this does not turn the resulting criminal proceedings into a mere matter of private interest.
Under the Constitution, it is the Public Prosecutors’ Office (MP) that continues to “own” the criminal action brought under the principle of legality, even if the law does not charge the MP with taking the initiative to bring such an action and the powers to prosecute the proceedings are conditioned by the wishes and actions of the victim of the crime.
It continues to be the case that only the state has the state power/duty to punish; citizens do not. So the norm is not in breach of the constitutional principle of equality.
The present appeal on the grounds of alleged unconstitutionality was lodged by the ‘private prosecutors’, against a decision in which the Lisbon Court of Appeal held that the time limit for the prescription of criminal proceedings is suspended or interrupted by notification that private criminal charges have been brought, when the Public Prosecutors’ Office (MP) also brings charges, but not otherwise.
The court a quo was of the view that, although the Penal Code norms themselves do not make any distinction between the suspensory or interruptive efficacy of criminal charges based on whether the latter are public or private in nature, such a distinction does result from both the substantive criminal-law nature of prescription and the characterisation of the figure of a ‘private prosecutor’ – a person who brings a private prosecution – so it is only the declaration by the MP that it is also bringing charges that possesses efficacy as the cause of an interruption in or suspension of the time limit for prescription.
The Constitutional Court reminded us that it was not its place to judge whether the Court of Appeal’s normative interpretation – namely with regard to the distinction based on whether the private prosecution was accompanied by charges brought by the MP or not – was correct. The object of the present appeal was thus solely for the Constitutional Court to consider the constitutionality of the normative interpretation set out in the Court of Appeal’s decision, and not for it to control whether that interpretation was correct.
The ‘institute’ of the prescription of criminal proceedings is justified by substantive reasons and is linked to criminal-policy requirements rooted in the purposes served by criminal penalties. As time passes, the extent to which the community reproaches someone who is judged guilty of a criminal act tends to diminish and the vehemence with which society expresses its expectation that the criminalising norm will be put into practice dies down. At the same time, the special preventative reasons for prosecution – that the concrete agent be dissuaded from committing new crimes – also become less urgent and the sanction gradually ceases to be linked to the goal of the agent’s resocialisation. It is also necessary to bear in mind that time has the effect of making probative difficulties worse. When combined with the idea that the role of penal interventions should be restricted to one of ultima ratio, all this justifies the option whereby the state does not pursue proceedings after a given amount of time that is determined by law.
Penal law seeks to reconcile the public interest in pursuing the agent who commits a criminally unlawful act on the one hand and that agent’s right for it not to take too long for its penal consequences to be defined on the other. The legal system lays down a normal time limit and a maximum time limit after which proceedings are prescribed, and stipulates causes for those limits’ suspension or interruption, all of which are justified in the light of the search for a balance between the aforementioned interests. From this perspective, interruption of the time limit after which proceedings are prescribed presupposes that the state, acting in the person of its competent organs and by undertaking unequivocal procedural acts, first manifests its intention to implement its ius puniendi to the agent of the unlawful act. When the state’s punitive intent is confirmed by means of these procedural acts, the mere passage of time ought not to favour the agent.
The question that arose in the present appeal was whether the Constitution requires that the effect which the law attributes to the bringing of criminal charges by the Public Prosecutors’ Office should also be recognised, in the case of private crimes, as being produced by a private prosecution, even when that prosecution is not accompanied by one brought by the MP.
The MP does not possess the legitimacy to bring and pursue proceedings for private crimes on its own initiative, and the implementation by the public authorities of the power to punish is to a large extent subject to the victim(s) of the crime taking the initiatives required to bring charges. If a private prosecutor brings criminal charges, the MP can also prosecute or not; but if it does formally accuse the alleged perpetrator, it can only do so with regard to the same facts as those alleged by the person who brought the private prosecution, part of those facts, or other facts that do not imply any substantial alteration of those facts.
The Court said that it was thus necessary to weigh up, in its own right, the fact that when a private person (the victim or other person with the right and legitimacy to do so) brings a prosecution, this does not have the effect of interrupting or suspending the time limit for prescription, in order to determine whether this makes the victim’s position so unbalanced that it violates the principle of fair process by cancelling in practical terms the efficacy of the jurisdictional protection which criminal proceedings offer to the legal asset in question.
In its provisions on the guarantees applicable to criminal procedure, the Constitution of the Portuguese Republic (CRP) pays detailed attention to the procedural position of official suspects and persons who have been accused of a crime. The victim’s right to participate in proceedings is also included among those guarantees, but here the CRP limits itself to stating that the right exists, leaving it to the ordinary law to define its precise details. The CRP also gives everyone the right of access to the law and to an effective jurisdictional protection of each person’s legally protected rights and interests.
The fact that the details of the victim’s procedural rights are left to the ordinary law gives the legislator a broad margin within which it is free to configure them. The only normative solutions which can be criticised in constitutional-law terms, on the grounds that they fail to provide enough protection, are ones which eliminate the essential core of the victim’s powers to intervene autonomously.
In order not to occasion reproach on constitutional grounds, the legislator’s freedom to shape the solution cannot result in such an accentuated constriction of this constitutionally recognised right that the latter is unjustifiably or excessively restricted.
The Court was of the view that the constitutional imperative that the victim must be allowed to intervene in penal proceedings with a view to activating the ius puniendi is mainly fulfilled in practice by investing him/her in the role of procedural subject, which is in turn achieved by allowing him/her to be a civil party. Criminal procedural law configures the latter’s role as that of someone who collaborates with the Public Prosecutors’ Office, to whose work he/she subordinates (with the exceptions provided for by law) his/her actions in the proceedings. However, a civil party can essentially bring criminal charges independently of any brought by the MP, and can submit evidence to the court, ask the court to take such steps as he/she deems necessary, and appeal against decisions that affect him/her, even if the MP has not done so. The difference in the case of private crimes is that the MP can only act if the civil party with the right and legitimacy to do so – the ‘private prosecutor’ – acts first.
On the question of the fact that the norms differentiate between the treatment afforded to the victim in his/her role as private prosecutor and their treatment of the Public Prosecutors’ Office, in terms of the effects that the bringing of charges by one or the other have, the Court found no violation of the principle of equality, inasmuch as in criminal proceedings a civil party’s position as a procedural subject could never be the same as that of the MP.
The demands of fair process mean that when the purposes of procedural subjects are at odds, their powers to influence the judge must be comparable; but one cannot claim the same or equivalent powers or the same or equivalent consequences of one’s actions when what is at stake is the determination of the exact substantive effects of a given procedural action.
If, when a private prosecutor brings criminal charges, the Public Prosecutors’ Office declines to do the same, it may be that his/her search for penal protection will become unproductive, but this consequence is not limited to the case of private crimes. The victim always retains the option of resorting to civil means to protect the right that was damaged, by seeking reparation for the material and non-material losses he/she has suffered. This means that notwithstanding the compression of his/her ability to pursue a penal path, one cannot say that he/she is deprived of access to the courts in order to defend those of his/her rights and interests that are protected by law.
Rulings nos. 205/01 (09-05-2001); 464/2003 (14-10-2003); 325/2006 (17-05-2006); and 183/2008 (12-03-2008).