Right of appeal. Guarantee of a double degree of jurisdiction
Right of appeal in criminal proceedings;
Double degree of jurisdiction;
Procedural rights of official suspects and accused persons
RULING No. 412/15
29 of September of 2015
In 2013, a Code of Criminal Procedure (CPP) norm was amended in such a way that Appeal Court decisions imposing prison terms of not more than five years could not themselves be the object of appeal, even if the Court of Appeal overturned a verdict of acquittal at first instance. The Constitutional Court found that inasmuch as the amended norm did not make an exception of situations in which a decision to acquit at first instance was reversed by the second instance, it was unconstitutional.
The Court said that even before the 1997 constitutional revision specifically included the right of appeal among the guarantees which the Constitution of the Portuguese Republic provides to the defence, in its own jurisprudence the Court had recognised that right to be one of the most important dimensions of the guarantees available to the defence of accused persons in criminal proceedings. It has taken the position that the essential core of this guarantee is the right to appeal against convictions and other judicial acts during the proceedings whose effect is to deprive or restrict the accused’s freedom or other fundamental rights. The Court recalled that some legal experts have criticised the confusion between the right of appeal and the principle of a double degree of jurisdiction, but said that the question in the present case was whether, in the light of the current regime governing appeals in criminal proceedings, it was still possible to consider that the mere fact that two courts at different hierarchical levels hear the case is enough to ensure the guarantees of the defence of an accused person who, having been found not guilty at first instance, is convicted on appeal. The Court answered this question in the negative.
The legislator’s freedom to shape the definition of the criminal appeal regime is limited by the fact that the right of appeal forms part of the essential core of the guarantees applicable to the accused person’s defence. In past cases the Constitutional Court had never objected to the possibility that an appeal court conviction cannot itself be appealed. However, in the present case it said that the context in the past had been different, inasmuch as there have since been far-reaching changes to the appeal regime – namely in that the margin within which a second instance can revise factual matters is now substantially greater than it used to be. An accused’s right to appeal against his/her conviction cannot be limited to the exercise of the adversarial principle in the appeal submission. The right of appeal is the effective power to initiate a review of the jurisdictional decision to convict. It is only once that decision has been issued that the right to appeal against it can really be exercised; the accused must be able to know the grounds for the decision, and this only becomes possible once it has been handed down. The norm before the Court did not guarantee this possibility, apart from anything else because the decision to convict on appeal can include matters that are not covered by the first-instance decision, particularly in terms of the body of facts that are relevant to the choice and imposition of the penalty. Even if the decision-making process is only based on the facts that were determined at first instance, it necessarily implies a value judgement that is expressed in the severity of that penalty, which is only revealed to the accused when he/she is convicted. The Court thus concluded that the inability to appeal against a second-instance decision to convict that overturned the first-instance decision to acquit, violated the guarantees available to the accused person’s defence in general and his/her constitutional right of appeal in particular.
The question of constitutionality in this concrete review case was whether it should be possible to appeal against an Appeal Court decision to overturn an acquittal verdict handed down by the court of first instance and to sentence the accused to a term of imprisonment of not more than five years (longer prison terms are subject to different rules). The appellants argued that the criminal procedural norm under which Appeal Court decisions imposing prison terms of up to five years in appeal cases could not themselves be the object of appeal, could only constitutionally be applied in cases of so-called ‘dual conformity’ (i.e. where the decisions at first and second instance are both to acquit, or both to convict, possibly with other procedural requisites as well), and not in those in which the two courts decided in opposite directions.
The Court said that this matter was already the object of substantial constitutional jurisprudence, in which a similar normative solution was not found unconstitutional. However, the norm before it in the present case further developed the legislator’s intention to restrict access to the Supreme Court of Justice (STJ, the jurisdictional body with the competence to hear appeals against decisions of Courts of Appeal) to cases of “greater penal import”. The question now facing the Court was whether its previous case law should be maintained in the new legislative context. This issue was especially problematical, because the new norm made it impossible to appeal against a “surprise conviction” by a Court of Appeal that resulted in a sentence of not more than five years in prison (or another, lesser penalty).
In the first Ruling in which it found that it was not unconstitutional not to be able to appeal against Appeal Court decisions, the Constitutional Court said that such decisions represent the implementation of the guarantee of a double degree of jurisdiction, inasmuch as the appeal hearing gives the accused the opportunity to set out his/her defence for a second time, thereby fulfilling the grounds for the existence of the right of appeal in the first place. At that time, the Court considered that as long as this double degree of jurisdiction existed, there were grounds (the intention to reasonably restrict access to the STJ, thereby avoiding the paralysis that might result from it having to hear large numbers of cases involving minor crimes) for limiting the possibility of a third level of jurisdiction.
The 2007 revision of the CPP reduced the collegiality of the decisions of the senior courts, which are now taken solely by the president of the applicable chamber (previously, appeal hearings had involved two assistant judges in cases before Courts of Appeal and three assistant judges in cases before the STJ). The revision also made it harder for there to be an appeal hearing, with any form of oral intervention becoming the exception rather than the rule, and the submission of new evidence before Courts of Appeal becoming an exception for the first time.
In such a context, acquittal by a collective (three judges) court of first instance, following a hearing at which the accused was present and evidence was presented, can be overturned at appeal with a conviction and effective prison term decided in conference (by two judges – the rapporteur and an assistant judge, inasmuch as the chamber’s president only votes in the case of a tie), without a hearing or any new submission of evidence and with no possibility of further appeal. Although cases in which Courts of Appeal reconsider evidence are exceptional, that possibility does exist and can mean that acquittals are replaced by conviction on appeal.
In these circumstances the Court took the view that it was not possible to conclude that the new judgement by the appeal instance provided sufficient opportunity for the accused to defend him/herself. When the accused submits his/her counterarguments (“counter”, because he/she is not the appellant, inasmuch as he/she would not appeal against an acquittal), he/she is unaware of both the grounds (and particularly any factual elements) for his/her conviction, if that is what the Court of Appeal is about to decide, and the reasons why in that event the Court of Appeal’s decision is going to differ from that of the trial court – i.e. at this point he/she still does not know what view the appeal instance is going to take of the evidence before it.
The accused finds him/herself in a situation in which acquittal at first instance is followed by conviction and the imposition of a prison term by the Court of Appeal – i.e. he/she is deprived of his/her freedom, and to an extent that he/she does not have the opportunity to question. The Constitutional Court accepted that the possibility of appeal in such cases could make the regime asymmetrically favour the defence, but said that the fact that the accused cannot have less rights than the prosecution in the way in which the degrees of appeal in criminal proceedings are configured does not mean that he/she cannot have more.
The Court also considered that this conclusion is in line with the right to a review of criminal convictions and sentences set out in Article 14(5) of the International Covenant on Civil and Political Rights with regard to cases in which the conviction is imposed by an appeal court and the verdict at first instance was acquittal.
The Vice-President of the Court dissented from the Ruling. She recalled that in past cases the Court had always sought to achieve a balance between an effective protection of all the fundamental rights involved – namely by issuing rulings in which an efficient protection of the rights of the defence of accused persons in criminal proceedings coexisted with safeguarding the rationality of the judicial system – and that part of this balance involved ensuring a double degree of jurisdiction, while simultaneously considering it reasonable to limit the possibility of a triple degree. She opined that the majority decision upset the balance between the defence of people’s rights and the efficiency of the justice system. In her opinion the content of the right to appeal in criminal proceedings cannot be determined without taking account of the idea of a double degree of jurisdiction, but that one must also consider other constitutional values and interests, such as legal certainty, the speedy administration of justice, and the need to guarantee the quality of the protection provided by the justice system, and thus that one cannot allow too much time to pass between the occurrence of the fact which is submitted to judgement and the judgement itself.
The dissenting Justice said that the present Ruling implied that the Portuguese Constitution attaches so much weight to the value ‘freedom’ that that value would always occupy a preponderant place in relation to any other constitutionally recognised assets or interests, whatever the circumstances. She recalled that the Convention for the Protection of Human Rights and Fundamental Freedoms does not require the signatory states’ legal systems to provide for a triple degree of jurisdiction. She acknowledged that in General Comment no. 32, the United Nations Human Rights Committee interprets the provisions of Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR) otherwise, but said that that view is not binding and cannot be considered an ‘authentic interpretation’ of the Covenant.
She went on to say that if the current state of Portuguese infra-constitutional law is not allowing the double degree of jurisdiction to effectively guarantee all the fundamental rights enshrined in the Constitution, the problem does not lie in the norm before the Court, but rather in the way in which the ordinary legislator has modelled the way in which the double degree is procedurally implemented.
It should be noted that at the time of writing, an appeal to the Plenary is pending against this Chamber decision.
Constitutional Court Rulings nos. 322/93 (14-01-1993); 265/94 (23-03-1994); 610/96 (17-04-1996); 183/98 (11-02-1998); 384/98 (19-05-1998); 30/01 (30-01-2001); 148/01 (28-03-2001); 189/01 (03-05-2001); 49/03 (29-01-2003); 255/05 (24-05-2005); 487/06 (20-09-2006); 682/06 (13-12-2006); 424/09 (14-08-2009); and 324/13 (04-06-2013).
– European Court of Human Rights – Krombach v. France, no. 29731/96, Judgement of 13 February 2001, para. 96; Shvydka v. Ukraine, no. 17888/12, 30 October 2014, para. 49; Dorado Baúlde v. Spain, no. 23486/12, 1 September 2015, para. 15; Ekbatani v. Sweden, no. 10563/83, 26 May 1988; Fejde v. Sweden, no. 12631/87, 29 October 1991; Botten v. Norway, no. 16206/90, 19 February 1996; Constantinescu v. Romania, no. 28871/95, 27 June 2000; Tierce and others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, 25 July 2000; Bazo González v. Spain, no. 30643/04, 16 December 2008.
– Human Rights Committee – General Comment no. 32, para. 47.
– Constitutional Court of Spain – Sentence no. 120/1999, 28 June 1999, para. 4, Boletin Oficial del Estado (BOE) no. 181 of 30 July 1999, pp. 19-24); Sentence no. 296/2005, 21 November 2005, para 3, BOE no. 304 of 21 December 2005, pp. 18-23; Sentence no. 60/2008, 26 May 2008, para. 4, BOE no. 154 of 26 June 2008, pp. 3-15; and Sentence no. 16/2011, 28 February 2011, para. 3, BOE no. 75 of 29 March 2011, pp. 80-86.