Criminal Procedural Law – personal rights, freedoms and guarantees
RULING No. 174/14
18 of February of 2014
The Code of Criminal Procedure norm that lists the cases in which persons who are detained in flagrante delicto are to be tried in summary proceedings was declared unconstitutional with generally binding force, when interpreted such that this summary process was applicable to crimes with a possible maximum penalty of more than five years in prison, because this violated the guarantees applicable to criminal proceedings.
The normative interpretation addressed in this Ruling had already been found materially unconstitutional in three earlier concrete review decisions. In such situations, any Constitutional Court Justice or the Public Prosecutors’ Office (the petitioner in the present case) can ask the Court to review the norm in question under the ex post facto abstract procedure, with the object of standardising the existing jurisprudence and securing a declaration of unconstitutionality with generally binding force.
The question before the Court was whether a norm that consigned the judgement of persons detained in flagrante delicto to summary proceedings heard by a single judge, regardless of the maximum possible penalty, respected the guarantees the Constitution affords to accused persons. The particular issue was the fact that the norm was applicable to the trial of crimes with a maximum abstract penalty of more than five years’ imprisonment, which thus exceeded the maximum possible sentence that a single judge is competent to impose in common proceedings. The norm only excepted highly organised criminality, crimes against cultural identity and personal integrity, crimes against state security and those involving violations of International Humanitarian Law from this summary judgement rule for persons detained in flagrante delicto.
In principle, cases in which the maximum possible penalty in abstract terms is greater than five years in prison must be heard by a panel of judges, albeit this competence pertains to a single judge when the crime in question is subject to summary procedure.
In the criminal field this form of procedure is linked to small and medium-sized crimes, and is justified when the facts are immediately verified because the agent was caught “red-handed” – in flagrante delicto – which makes it possible to dispense with other formalities and the more in-depth investigation that would normally occur in the investigative and fact-finding phases of common criminal proceedings. One can also say that this is logical from the dual point of view of the productivity and efficacy of the justice system and the idea of justice itself, in that the speedy justice permitted by submitting accused persons to immediate trial in flagrante delicto cases helps ensure social peace and a feeling of community justice.
The Constitution enshrines the principle that an accused person is presumed innocent, which it associates with the requirement that a trial must take place in the shortest possible period compatible with the guarantees which the Constitution also affords to the defence. The underlying perspective is that delays in penal proceedings prolong both the cloud of suspicion hanging above the accused and any security measures to which he/she is subject, and end up diminishing the useful content of the principle of the presumption of innocence.
The Court emphasised that the principle that proceedings should be as fast as possible must be made compatible with the guarantees applicable to the defence, and that it is not permissible to sacrifice the rights inherent in the procedural status of accused person.
The summary procedural form is a faster format in terms of the applicable time limits, and a simplified one where the requirable formalities are concerned.
As a general principle it involves: reducing the acts involved in trials and the terms under which they take place to the indispensable minimum required to come to a final decision; restrictions on the possibility of delaying the trial hearing itself, on the use of evidence and the time limits by which it can be produced, and on appeals; and increasing the oral aspect of procedural acts.
The Constitutional Court has recognised that trial by a court composed of a single judge offers accused persons less guarantees than trial by a panel of judges, because it increases both the margin for error in the way in which the facts are assessed and the possibility of a less just decision. The intervention of a panel favours the process of weighing up and discussing aspects of the law and analysing evidence – elements that can enhance the quality of the court’s decision. The legislative decision to opt for summary judgements must always be limited in terms of the judge’s power to sentence, as defined by the quantitative criterion of the penalty he/she can impose.
The existence of direct proof of the crime provided by the flagrante delicto nature of the arrest may not preclude the factual complexity of aspects of the situation that are important to the determination and weight of the penalty on the one hand, or its attenuation on the other, above all with regard to the agent’s personality, the motive for the crime and any circumstances before or after the facts that might reduce the latter’s unlawfulness and/or the agent’s guilt.
When what is at stake is a more serious form of criminality that can correspond to a graver penal format, a flagrante delicto situation should not imply a worsening of the accused’s procedural status.
The Constitutional Court took the view that summary procedure contains restrictions on the exercise of the right to a defence that are not compatible with the more demanding requirements which the trial of more serious crimes impose at the level of the guarantees available to the defence.
The Court therefore found that the solution adopted in the norm in question violated the guarantees of the defence of accused persons, as enshrined in the Constitution.
This Ruling was the object of one concurring and one dissenting opinion. In the former, the President of the Court disagreed with the grounds for the decision. Given the current configuration of summary proceedings and the safeguards applicable to them, he did not consider that their use to try crimes that can involve a maximum penalty of more than five years in prison conflicts in any constitutionally reprehensible way with the guarantees available to the accused’s defence. He was, however, of the opinion that the possibility of trial by a court composed of a single judge was not in conformity with the Constitution when the possible penalties include imprisonment for over five years.
The dissenting Justice took the view that the current details of the summary procedure format ensure that accused persons are tried in a way that is as fast as it can be without being incompatible with the defence guarantees, and that it ensures harmony between the purposes of criminal procedure in a democratic state based on the rule of law: to discover the material truth and that justice be served, to protect citizens’ rights, and to re-establish both the legal peace in the community and that of the accused, both of which are undermined when a crime has been committed.
This Justice said that, particularly in the trial phase, the summary procedure provides for different solutions for more serious crimes on the one hand and for crimes that are punishable by imprisonment for no longer than five years on the other.
She also took the position that the fact that a trial is heard by a single judge does not necessarily mean the guarantees of the accused’s defence will not be respected; the essential point is rather that, when taken as a whole, criminal proceedings must ensure all the guarantees available to the defence.
In her view the Constitution does not give rise to any criterion as to when competence should be attributed to a court with a single judge, a panel of judges, or a jury, and that the only thing it does say is that the law can only provide for jury trials in the case of serious crimes (except terrorism and highly organised crime). She said that the Court’s earlier jurisprudence does not mean that trial by a single judge is precluded by the fact that the crime can lead to this or that maximum abstract penalty – a question it instead leaves open.
Rulings nos. 393/89 (18-05-1989); 326/90 (13-12-1990); 428/13 (15-07-2013); and 469/13 (13-08-2013).