The unconstitutionality of a criminal procedural norm that allowed the Supreme Court of Justice to admit an appeal lodged by a civil party against a ruling in which a Court of Appeal acquitted the accused person at appeal.
Rights of civil parties in criminal proceedings
Right to a defence
Presumption of innocence
Principle of the equality of arms
Two levels of jurisdiction
RULING No. 540/12
15 of November of 2012
The norm under which the Supreme Court of Justice admitted an appeal by a civil party against a ruling in an appeal case, in which the Court of Appeal found the accused not guilty of a given crime and thus overturned the guilty verdict at first instance in which he had been sentenced to a penalty that did not entail deprivation of his liberty, was unconstitutional because it violated the principle of equality, when taken in conjunction with the constitutional provisions regarding the guarantees applicable to criminal procedure. Under the norm, despite the presumption of his innocence, the accused would not have had the right to access a second level of appeal, and his conviction would thus have been stabilised by a Court-of-Appeal verdict against him; whereas the civil party was allowed access to the second level of appeal, thereby delaying the stabilisation of a decision that acquitted a person who was presumed to be innocent.
The Public Prosecutors’ Office was legally required to bring the present appeal before the Plenary of the Constitutional Court, because in previous cases two of the Court’s chambers had reached conflicting decisions on the same question of unconstitutionality.
The question here was whether or not the Constitution permitted certain Code of Criminal Procedure provisions to be interpreted such that the Supreme Court of Justice (STJ) could admit an appeal by a civil party against a ruling in an appeal case, in which the Court of Appeal found the accused not guilty of a given crime and thus overturned the guilty verdict at first instance in which he had been sentenced to a penalty that did not entail deprivation of his liberty.
The Code of Criminal Procedure lays down the general principle that it is possible to appeal against any ruling, sentence or court order unless the law specifically provides otherwise, and goes on to list the decisions against which appeal is not permitted. With regard to a second level of appeal against decisions that include a final verdict on the object of the case in question, the general rule is that one can lodge a second-level appeal against appeal-court decisions in appeal cases; however, it is specifically not possible to appeal to the STJ against: court-of-appeal rulings in which the accused is found not guilty at appeal, thereby confirming the same decision at first instance; court-of-appeal rulings in which the accused is found guilty at appeal and sentenced to a penalty that does not entail deprivation of his/her liberty; or guilty verdicts handed down by a court of appeal in an appeal case, in which the decision at first instance is confirmed and the offender is sentenced to a term of imprisonment of no more than eight years.
The legislator has sought to restrict second-level appeals to the Supreme Court of Justice to cases in which the criminal offence is of the greatest gravity. The legislator initially made discrete use of the principle of dual and coinciding sentences (duplex sententia conformis), which it combined with the criterion of the seriousness of the abstract penalty applicable to the crime in question; it subsequently changed this to a combination of the same principle with the criterion of the seriousness of the actual penalty applied in the case (the concrete penalty), in order to further increase the extent to which the ability to bring a second-level appeal before the STJ was dependent on the gravity of the criminal offence; it then decided that it should not be possible to appeal against court-of-appeal rulings in appeal cases involving crimes that were punishable by fines or by prison terms of no more than five years; since 2007, the legislative option has been that it is impossible to appeal against court-of-appeal rulings in appeal cases in which the penalty imposed does not entail deprivation of liberty.
The constitutional norms and principles included in the so-called “constitution for criminal procedure” require that an official suspect or accused person be ensured all the guarantees available to the defence, including the right of appeal and the guarantee that he/she is presumed innocent until the sentence in which he/she is convicted transits in rem judicatam. The accused’s right to appeal in criminal proceedings forms part of the complex of guarantees included in the right to a defence. The jurisprudence of the Constitutional Court is that there is no constitutional requirement for two levels of appeal in criminal proceedings, that even guilty verdicts do not necessarily have to be subject to a third degree of jurisdiction, and that the legislator has some leeway within which it can shape the levels of appeal.
The fact that the right of appeal forms part of the complex of guarantees that are included in an accused person’s right to a defence has already led the Court to hold that procedural provisions which regulate the possibility of appealing against a given judicial decision in different ways for the accused and for civil parties specifically, and for the defence and for the prosecution in general, are not in breach of the principle of equality. The Court takes the view that, within the scope of criminal proceedings, the principle of equality must be seen in this light of the specific nature of a procedure which ensures that the accused has access to all the guarantees applicable to the defence. The procedural statuses of the subjects in the proceedings do not have to be absolutely identical and on an exact par with, and symmetrical copies of, one another; the accused can sometimes benefit from a formally privileged status, whose purpose is to compensate him/her for a presumed weakness or greater degree of weakness in the confrontation that takes place in criminal proceedings, compared to the prosecution. The accused cannot have less rights than the prosecution, but the possibility of his/her having more is not excluded per se.
The Court pointed out that the material inequality which in principle exists between the prosecution (normally supported by the state’s institutional power) and the defence means that criminal procedure is, and must be, to some extent oriented towards the defence, in a way that ensures the latter enjoys all its guarantees. This procedure must be one in which the accused’s rights represent an untouchable line in the sand; and this is particularly valid with regard to the right to appeal and the right to the presumption of innocence. These rights of the accused must be projected in the stability of penal decisions in different ways, depending on whether the verdict is guilty or not guilty. It is not constitutional for this treatment to be differentiated in a way that facilitates the stabilisation of guilty verdicts (thereby reducing the possibilities available to the accused person’s defence) and fails to do so in the case of decisions to acquit (by extending the discussion about the facts of which the defendant is accused).
All this is further strengthened by the fact that the provisions of the “constitution for criminal procedure” do not require the victim / civil party’s procedural status to be exactly the same as that of the accused person. With regard to the victim, the Constitution only says that he/she has the right to intervene in proceedings, in ways that are to be set out in the ordinary law. The Court referred to its own jurisprudence, in which it has held that the question of the admissibility of an appeal by a civil party must be seen in the light of the Constitution’s provisions on access to the law and to effective jurisdictional protection; these do not even give rise to a right of appeal on the part of procedural subjects, and thus do not impose a duty on the legislator to provide, as a rule, for two levels of jurisdiction.
The Court was of the view that the right to intervene in criminal proceedings which the Constitution affords to victims precludes depriving the latter of procedural powers that prove decisive to the defence of their interests. In particular, victims cannot be denied the power to appeal (to a second instance) against acquittal decisions. However, the question of the admissibility of an appeal by a civil party must be seen and weighed up in the light of the principle of access to the law and effective jurisdictional protection, and not in that of a supposed right to equality with the accused.
Six Justices attached opinions to the Ruling. Three concurred with the decision, but dissented from its grounds. Another lent additional weight to the grounds based on the fundamental choices which the constitutional order makes with regard to criminal procedural matters, thereby explaining why she had changed her previous position (as a member of the chamber that had earlier declined to find the same norm unconstitutional). Two Justices dissented from the present Ruling, arguing that the Court’s earlier decision that the norm was not unconstitutional was correct.
Rulings nos. 178/88 (14-07-1988), 132/92 (02-04-1992), 189/01 (03-05-2001), 259/02 (18-06-2002), 49/03 (29-01-2003), 464/03 (14-10-2003), 399/07 (11-07-2007), 645/09 (15-12-2009), 546/11(16-11-2011), and 153/12 (27-03-2012).