Criminal Law – principle of legality in criminal law
Prohibition of analogy;
Analogy in malam partem;
Analogy in bonam partem;
Interpretation in accordance with the constitution;
The letter of the law as a limit on interpretation.
RULING No. 587/14
17 of September of 2014
The Court found no unconstitutionality in the interpretation of a norm in the Law that defines the legal regime applicable to the consumption of narcotic drugs and psychotropic substances and the health-related and social protection of persons who consume such substances without medical prescriptions, such as to maintain the previous criminalisation of the acquisition or possession for the person’s own use of plants, substances or preparations listed on tables set out in the applicable Executive Law, when so acquired or possessed in quantities greater than those needed for average individual consumption over a ten-day period.
The first step in gauging the constitutionality of the interpretative position taken by the lower court was solely to determine whether the direction that interpretation took could be said to be supported by anything in the law – if not, it would be unconstitutional. Having found that that there were possible legal grounds for the court a quo’s position, the Constitutional Court then went on to look at whether there were reasons to conclude that the lower court had taken its interpretation a step too far and had used analogy to complete the law, and this then resulted in a real broadening of the boundaries delimiting what is and what is not criminally punishable – something that would again be unconstitutional; and whether there were other possible interpretations of the law that were not unconstitutional, were methodologically more appropriate and would lead to outcomes that were more favourable for the accused person in the case in question.
The court a quo decided that the criminalisation in question had indeed remained in force. Methodologically speaking, it made a corrective interpretation justified by the teleology of the norm, in which it decided to ignore a grammatical element in the text that could have caused the norm to encompass less cases than would have been covered if it were taken literally (a literal reading of the norm would have made possession of narcotic substances up to a certain limit punishable as a social administrative offence, but left a vacuum in relation to punishment for the possession of larger quantities).
Bearing in mind the centrality of the letter of the law, the Constitutional Court said that one had to acknowledge that the lower court had acted by analogy, but that this was not one of the types of analogical situation which the Constitution precludes, as would have been the case if the analogy had led to a broadening of the agent’s criminal liability (in malam partem).
It would be methodologically incorrect to see the norm as establishing a mere social administrative offence rather than a criminal one, because the letter of the law does not permit such an understanding. The courts are legally required to presume that the legislator is capable of expressing its thinking appropriately, and the fact that the text of a precept categorically excludes any applicability of the administrative offence regime means that the norm cannot be interpreted to possess such a meaning.
The reasons (the inappropriate and unnecessary nature of penal interventions in such cases) why the legislator moved from a penal model to a prohibition of an administrative-offence type where occasional consumers or drug addicts who should be seen as suffering from an illness are concerned, are not valid for every kind of possession or acquisition, with no thought to the risks associated with the quantities that are actually possessed and the probatory difficulties derived from the fact that it is often not possible to determine or prove the exact purposes for which people are in possession of drugs.
The Court thus concluded that the normative interpretation validated by the court a quo is not in violation of the principle of legality in criminal law (nullum crimen, nulla poena sine lege, and especially here, nullum crime nulla poena sine lege stricta). At the end of the day the normative meaning deduced from the letter of the law presupposes on the contrary an analogy in bonam partem that leads to a narrowing of the boundaries within which certain acts are punishable.
The question in this concrete review case was whether the provisions of a norm in a 1993 Executive Law (on the fight against narcotics) should remain in force when a subsequent Law repealed the Executive Law in its entirety except for precisely the article containing the norm before the Constitutional Court. The Executive Law regulated situations involving the consumption of narcotic drugs in quantities greater than those needed for average individual personal use over a ten-day period; it was repealed by a 2000 Law that defines the legal regime applicable to the consumption of narcotic drugs and psychotropic substances and the health-related and social protection of persons who consume such substances without medical prescriptions.
Before going any further, the Court had to decide a prior question: whether the case involved a true question of normative unconstitutionality, which it would thus be competent to hear, or a mere interpretation of a legal norm (albeit one that was especially sensitive because it entailed an analogy in malam partem that would make the accused person’s conduct criminally illegal), which would not fall within the Court’s remit.
The Portuguese Constitutional Court can only control the constitutionality of norms and not their concrete application – i.e. it is not empowered to control a lower court’s act of judgment itself. In line with one part of its existing jurisprudence, the Court said that it was necessary to make a distinction between a normative criterion on the one hand and the outcome of the court a quo’s reasoning in the concrete case submitted to the Constitutional Court on the other. That outcome was the application of the norm, and was not subject to control by the Constitutional Court.
However, inasmuch as the Constitution enshrines the principle of legality in criminal law, and given that the scope of the protection afforded by this principle permits the deduction that the analogical application of criminalising norms is prohibited, a systematic interpretation of the constitutional text leads to the conclusion that an analogical interpretation itself forms part of the normative elements that can be included in the object of a control by the Constitutional Court. It is not up to the latter to control the methodological iter followed by the court a quo, but it is competent to determine whether the constitutional limits which the Constitution imposes on that iter in penal matters – specifically, here, the prohibition on analogies in malam partem – have been exceeded. The prohibition on this form of analogy – one that increases an accused person’s criminal liability – is a corollary to the principle of legality in criminal law, which acts as a guarantee against an illegitimate exercise of the state’s ius puniendi.
This prohibition of analogy in penal law is justified by the need to respect the criminal-policy programme outlined by the democratically legitimated legislator, which in turn means that what is at issue here is also the principle of the separation of powers.
Traditionally, the type of analogy that is forbidden in criminal law and proceedings arises when the interpreter of a norm deduces a meaning that no longer corresponds even minimally to the wording of the text, however imperfectly it may be written. In this area shortcomings always work against the legislator and in favour of the agent’s freedom.
Until the 2000 Law entered into force, in Portugal the consumption of narcotic drugs was a crime, which was in turn divided into subtypes depending on the details of the consumption, the penalties for which were more serious if the agent possessed or acquired larger quantities of the illegal substance.
In parallel, the legislator also established: a crime of drug trafficking and related activities; a crime of “lesser” trafficking, applicable to situations in which the relevant fact could be considered significantly less illicit; and a legal classification of “dealer/consumer”, to cover situations in which an agent was responsible for facts that strictly speaking constituted trafficking, but in practice were intended to procure plants, substances or preparations for his/her personal use, with the condition that the quantities did not exceed that needed for average individual consumption over a five-day period.
Until the entry into force of the 2000 Law, the boundary between trafficking and consumption was defined not by a finite amount of drugs, but rather by whether they were intended for the agent’s personal consumption.
The National Anti-Drug Strategy (ENLD), which was approved in 1999, was founded on a strategic decision to decriminalise the consumption of narcotics and instead prohibit it as a mere social administrative offence.
It was felt that this choice to prohibit drug consumption by classifying it as an unlawful act that constitutes a mere administrative offence of a social nature rather than as a crime was justified on humanist grounds that made any penal-law intervention unnecessary, especially for first offences. This option was implemented by decriminalising the consumption, possession and acquisition of narcotic drugs for personal consumption and making those facts constitute an administrative offence instead. However, it was established that this acquisition and possession for one’s own use could not exceed the quantity needed for average individual consumption over a ten-day period – a measure that consequently raised the question of how to punish an agent found in possession of a volume of drugs greater than that which one person would need for ten days of his/her own consumption.
While various answers to this question have been advanced both by legal experts and in case law, one solution that is impossible is the absence of any penalty at all, because this interpretative outcome would be unconstitutional: it would be in violation of the principle of equality to allow the possession of ten days’ worth of doses to be punished as an administrative offence, while that of a larger quantity, even without any intention to traffic it, was not the object of any legal penalty.
The Supreme Court of Justice addressed this issue in a Jurisprudential Standardisation Ruling, in which it decided that situations involving the possession or acquisition of drugs for personal use that were not converted into administrative offences by the 2000 Law were still punishable under the crime of drug consumption. Another possible view is that the possession or acquisition of quantities of drugs greater than those established in the Law is also a punishable administrative offence.
A third solution would be to punish such situations under the crime of drug trafficking.
The Constitutional Court asked itself whether it would be manifestly excessive, arbitrary or disproportionate to punish an agent for the unauthorised possession of a quantity of narcotic substances greater than that needed for his/her average individual consumption over a ten-day period, albeit proven to be for personal use, and considered that this would not be the case.
The Court thus found that the legislator was not acting arbitrarily or disproportionately when it sought to classify conduct involving the possession of narcotics under the above conditions as unlawful. Possession by an unauthorised person of a quantity of substances in excess of that which would serve for his/her own consumption for a given period of time (in this case ten days, which the Court said was not as short as all that) signifies, or at least makes it possible, that the possessor intends to offer, supply, give, distribute or sell them to third parties.
As such, the Court found that the interpretation applied by the lower court was not unconstitutional.
The President of the Court dissented from the Ruling. He took the view that a priori, the constitutional principle of legality in criminal law means that the interpreter/applier of the law cannot resolve a normative oversight in criminal-law rules by revalidating a legal type of crime that has been expressly repealed.
See Rulings nos. 634/94 (29-11-1994); 154/98 (10-02-1998); 674/99 (15-12-1999); 559/01 (07-12-2001); 295/03 (12-06-2003); and 183/08 (12-03-2008.