Youth Custody, Protection and Re-education Law – youth proceedings
Principle of the right not to incriminate oneself (nemo tenetur se ipsum accusare);
The right to remain silent;
RULING No. 108/14
12 of February of 2014
A Code of Criminal Procedure norm says that persons accused of the same or a related crime in separate proceedings can only testify as witnesses in the other case(s) if they expressly consent to do so. However, this norm was interpreted as not applying to a person who was less than 16 years old on the date when the criminal facts occurred, and had been the object of youth custody, protection and re-education proceedings for his role in the facts which led to the accused person being charged under the criminal law, but those proceedings had already ended in dismissal. The Court held that this absence of the requirement that the witness must consent to testify is not unconstitutional, because the two separate proceedings were not both of a criminal nature.
The witness in the criminal proceedings in question in the present review case was not an accused person at the time when he gave his testimony, inasmuch as youth custody, protection and re-education proceedings are not criminal in nature, nor can they be confused with criminal proceedings because their purpose is not punitive.
The appellant in this concrete review case was tried at first instance and convicted of the crime of theft – a conviction that was then confirmed by the Coimbra Court of Appeal.
The question of constitutionality involved a Code of Criminal Procedure (CPP) norm which says that persons accused of the same or related crimes in separate proceedings cannot testify as witnesses unless they expressly consent to do so, even if they have already been convicted and the sentence has transited in rem judicatam.
A subject who had initially been accused in the same criminal proceedings testified as a witness at the first-instance trial hearing of the other accused person (an adult). It was found that he had been below the age of 16 when the criminal facts occurred, and youth custody, protection and re-education proceedings were therefore initiated in relation to him and the criminal inquiries were dropped in his case.
There are similarities between youth custody, protection and re-education proceedings and criminal proceedings, and they share a number of guarantees. The essential content of the guarantee-based constitutional principles applies more forcefully to criminal proceedings, but the two models are quite close and this is especially clear in the case of the principle of procedural legality, the right to a hearing, the adversarial principle, and the right to a lawyer. Although youth custody, protection and re-education interventions are not intended to punish, the limitations they place on the fundamental rights of the person who is the object of them require the ordinary legislator to guarantee the various rights to a defence, which include the right not to incriminate oneself. The procedural status of minors (defined for this purpose as below the age of 16 years) is also quite close to that of accused persons, and the range of procedural rights and guarantees available to minors includes the right to remain silent. The Code of Criminal Procedure applies subsidiarily to the procedural details of youth custody, protection and re-education proceedings.
The United Nations Convention on the Rights of the Child (1989) also lays down that: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees… Not to be compelled to give testimony or to confess guilt…”
Inasmuch as it is necessary to ensure that in the case of a minor who is the object of youth custody, protection and re-education proceedings, any contribution that he/she makes and is unfavourable to his/her position must be made in a way that is informed, free and self-responsible, the simple obligation to testify as a witness in criminal proceedings regarding the same facts as those involved in the youth protection proceedings could constitute a breach of the principle nemo tenetur se ipsum accusare.
However, once closed, the law does not allow youth custody, protection and re-education proceedings to be reopened on the grounds of testimony given by the minor in criminal proceedings, or because new evidence has been discovered as a result of that testimony. As such, the requirement that the minor must testify in those criminal proceedings does not violate the nemo tenetur principle.
The appellant to the Constitutional Court had moved for the minor’s testimony to be disregarded on the grounds that it was inadmissible unless the minor had consented to give it, which was not the case. The court of first instance refused this request and the court of appeal confirmed the lower court’s understanding.
The appellant argued that this was unconstitutional because it was in breach of the nemo tenetur principle. The testimony given by the witness, who had been less than 16 years old at the time of the facts in question, referred to facts for which the witness had been jointly responsible with the accused in those proceedings (the appellant in the present case).
The Constitutional Court noted that the right to remain silent is recognised under the criminal procedural law of the majority of states based on the rule of law, and is expressly enshrined in a number of international legal instruments, including the European Convention on Human Rights and the International Pact on Civil and Political Rights.
The right to remain silent is intimately linked to the right of an accused person not to incriminate him/herself. It is only by recognising the accused’s right to be silent that one can be certain he/she will not be forced to pronounce him/herself and reveal information that might contribute to his/her conviction. If the accused’s right to self-determination is to be protected, he/she must be able to exercise his/her completely free will and decide what position to take in relation to the matter that is the object of the proceedings.
The Portuguese Constitution does not enshrine this principle expressis verbis, but both doctrine and case law have argued that the principle nemo tenetur se ipsum accusare possesses a constitutional basis, and it is considered to be an unwritten constitutional right in criminal proceedings that is included among the guarantees of the defence which the Constitution requires that such proceedings ensure. These procedural rights offer mediate protection to the dignity of the human person and other, related fundamental rights, such as the rights to personal integrity, the free development of personality, and privacy.
The nemo tenetur principle plays both a preventative part in criminal proceedings, precluding solutions that would oblige an accused person to provide evidence that could contribute to his/her conviction, and a repressive part, requiring evidence collected by taking advantage of a forced collaboration on the part of the accused to be disregarded.
On the infra-constitutional level, the right to remain silent aspect of the nemo tenetur principle is expressly enshrined in the Code of Criminal Procedure, and is accompanied by the imposition of other, related requirements, such as the prohibition on attaching significance to an accused’s decision to remain silent, the duty to advise an accused of the rights derived from the principle and clarify any doubts about it, the prohibition on the use of evidence obtained in violation of the right, and the prohibition on attaching significance to earlier declarations made by an accused who chooses not to say anything at his/her trial hearing.
In cases in which someone is in both situations – that of witness in one set of proceedings, and that of person accused of the same or a related crime in other proceedings – this procedural subject can only testify as a witness in the former if he/she expressly consents to do so. In such cases, the witness benefits not only from the general protection afforded to witnesses, whereby they can refuse to answer questions when that answer might lead to them being held criminally liable, but also from the protection granted to accused persons under which they can refuse to say anything.
The norm that prevents accused and co-accused persons from testifying as witnesses precludes the possibility that, when he/she is relating facts concerning a co-accused, an accused person may be obliged to take a position in relation to facts for which he/she is alleged to be responsible in the same or related proceedings that are subject to the same form of judgement.
The purpose of the procedural requirements regarding the admissibility of testimonial evidence given by persons who are accused of the same or a related crime in separate proceedings is to protect the rights and the procedural position of an accused person who is called on to give such testimony, with the ultimate goal of guaranteeing his/her right not to incriminate him/herself. As a rule, this impediment only remains valid for as long as the potential witness is still an accused person in the proceedings in question
The purpose of youth custody, protection and re-education interventions is to educate the minor in such a way as to ensure that he/she abides by the law in the future; it is not to punish him/her for the crime. These youth measures cannot be imposed unless the court concludes that the minor’s personality needs to be corrected, as demonstrated by his/her responsibility for the criminal fact. However, imposing such measures – above all a custodial sentence – implies restricting the minor’s fundamental rights on the grounds that he/she was responsible for a fact which the criminal law qualifies as a crime. This fact places the minor in a position which, from this perspective, possesses similarities with the position of an accused person in criminal proceedings.
The present case raised questions regarding duties associated with the procedural status of witnesses, which are different from the prerogatives inherent in the status of accused persons. A witness is under both the duty to speak under oath when he/she is being heard by judicial authorities, with refusal to testify subject to sanctions, and the duty to truthfully answer questions put to him/her, albeit he/she can refuse to answer if he/she alleges that answering may lead to his/her being held criminally liable.
It should be noted that the normative interpretation considered by the Constitutional Court in the present case is limited to the hypothesis that, at the moment when a minor testifies as a witness in criminal proceedings, the relevant youth custody, protection and re-education proceedings in relation to him/her have already ended in a decision to dismiss the charges, and his/her subsequent testimony is therefore not capable of contributing to the imposition of a measure that would violate his/her fundamental rights. In other words, under the rules applicable to concrete reviews, this Constitutional Court decision is limited to situations that exactly match this set of circumstances.
Rulings nos. 695/95 (5-12-1995), 304/04 (05-05-2004), 181/05 (5-04-2005), 155/07 (02-03-2007), and 461/11 (11-10-2011).