Criminal Law – Penitentiary Law
Laws under which penalties can be imposed;
Regime governing reductions for time served
RULING No. 251/16
4 of May of 2016
The precautionary measures that can be imposed while disciplinary proceedings are pending in prisons are set out in the Code governing the Execution of Freedom-Depriving Penalties and Measures (CEP). One norm in the Code says that if an inmate is subjected to the measure of confinement to his/her accommodation or a disciplinary cell, the time spent so confined can be deducted entirely, or in part, or not at all, from the effective duration of any final sanction imposed in those proceedings. The Criminal Code (CP), on the other hand, contains a different regime, under which the duration of any restriction of the accused’s freedom prior to conviction and sentencing – be it in custody, or under house arrest for example – must obligatorily be discounted in full from the total length of the final punishment.
The Court considered the difference between the two regimes to be justified by the different situations they cover. The CEP permits limitations on fundamental rights when those limitations are inherent in the content and significance of a decision to convict and the resulting sentence, or of a measure involving the deprivation of freedom; and when (subject to the conditions laid down in the CEP itself) they are necessary for reasons linked to order, safety and security in prison. The effects that precautionary measures have in the legal sphere of subjects who are already deprived of their freedom because they are subject to penal sanctions are not the same as those in the legal sphere of other citizens subjected to coercive measures provided for in the CP.
The Court thus found no unconstitutionality in the norm deduced from the CEP provision, whereby there is no obligation to discount the length of the precautionary confinement measure from the duration of any final sanction that is subsequently imposed.
The appellant in this concrete review case was a citizen serving a prison term who had been the object of a precautionary confinement measure while awaiting the outcome of disciplinary proceedings for a serious disciplinary offence. The measure was imposed by the prison warden. The inmate challenged it before the Sentence Execution Court (TEP), which denied the challenge. He then brought the present appeal against that judicial decision, alleging the unconstitutionality of the legal norm under which the length of the precautionary confinement measure was not deducted in full from the final sanction imposed for his original disciplinary offence. The appellant argued the existence of an analogy with the provisions of the Criminal Code, under which the duration of an initial period of detention, remand in custody and/or house arrest is then deducted in full from any ensuing prison term.
The Constitutional Court had already ruled on a fairly similar question in the past, when it found no unconstitutionality in the norm before it at that time.
In the present case, the Court recalled the consistency of its past positions on the principle of equality, the grounds for which are the equal social dignity of every citizen. There are a number of dimensions to this principle: the prohibition on arbitrariness (which makes differentiated treatments unacceptable in the absence of reasonable justification); the prohibition on discrimination (which precludes different treatments for different citizens based on merely subjective categories); and the obligation to differentiate (which presupposes that the public authorities must eliminate factual social, economic and cultural inequalities by means of mechanisms that compensate for unequal opportunities).
At stake in the present situation was the prohibition on arbitrariness, seen as a limit on the ordinary legislator’s freedom to shape legal regimes.
Portuguese constitutional jurisprudence has stated that the principle of equality cannot concretely orient the choice of one valuation criterion rather than or above another. The Court can only check whether a difference between regimes is reasonable and based on valid grounds in the light of objective criteria, themselves determined by questions of objective relative constitutional importance. What the Court cannot do is replace the legislator’s judgement with its own, or assess the merit of legislative policies. In the case before it, the Court rejected the existence of any prohibited discrimination.
It said that this case involved a differentiation between the regime governing criminally unlawful acts and the applicable sanctions, and that governing disciplinarily unlawful acts and their sanctions. In previous Rulings, the Court had emphasised that one cannot confuse unlawful acts and sanctions in the criminal domain with those of other types, particularly disciplinary ones. The Constitution (CRP) gives exclusive competence to produce legislation on matters regarding the definition of crimes, penalties and the respective preconditions, and the applicable procedure, to the Assembly of the Republic (this competence is actually partially exclusive, because the AR can also authorise the government to legislate). With regard to disciplinary infractions, however, that exclusivity is limited to the general regime and does not cover the details.
The CRP extensively regulates criminally unlawful acts and the applicable sanctions. It is true that the pertinent part of the principles the CRP defines with regard to the actual criminal law (crimes) have been extended to other areas in which sanctions can be imposed, such as disciplinarily unlawful acts – this is true, for example, of the principles of legality, non-retroactivity, and the retroactive application of the most favourable law, and the principle that sanctions must be necessary and proportionate. However, this extension does not negate the fact that these areas are different – indeed, it confirms it, and as such sustains the idea that penal measures and disciplinary measures are not the same in normative terms.
Disciplinary Law and Procedure and Criminal Law and Procedure are designed to protect different legal interests or assets. Criminal Law protects general and fundamental community interests, while Disciplinary Law is linked to the specific needs and the interest of the public service, protecting the specific bond that exists in the performance of functions pertaining to an administrative service. The scope and nature of the sanctions in these two branches of the law are also different.
The execution of the penalty of deprivation of freedom to which the inmate was subjected must consider the principles of necessity, participation, responsibility and co-responsibility, and must bear in mind that this is a particular disciplinary regime with specific purposes. Penitentiary Law, of which the sanctioning law that governs the execution of criminal sanctions forms part, is autonomous from both Criminal Law and Criminal Procedural Law. The differences that separate criminal procedure from any other sanctioning regime, and especially the disciplinary regime applicable to inmates, are clear and substantial. The Constitution also distinguishes between criminal procedure and the other procedural domains, specifying the guarantees which the former must provide. It is from this specification with regard to criminal procedure that some of the respective guarantees have also spread into other areas in which sanctions can be imposed.
The Court said that the general restrictions on the right of freedom permitted in the Constitution and applicable in Criminal Law are not the same thing as the imposition of precautionary measures while disciplinary proceedings against prison inmates are pending. The latter affect subjects who are already in a situation in which they are deprived of their freedom and which represents the concrete implementation of one of the exceptions to the principle of freedom that are provided for in the CRP.
The purposes pursued by the coercive measures imposed while criminal proceedings are underway and those sought by the precautionary measures applied in disciplinary proceedings – i.e. those brought against an inmate for a disciplinary infraction in prison – are different. Whereas the former are designed to prevent a flight risk or the danger that the accused will disrupt the proceedings, continue to engage in criminal activities or disturb the public order and peace, the latter are intended to ensure safe and orderly communal life within prisons – an objective that also includes the socialisation of inmates. The two groups of situation are not qualitatively or quantitatively the same in any respect.
Accordingly, the Court found no unconstitutionality in the norm before it and denied the inmate’s appeal.
Rulings nos. 157/88 (07-07-1988); 263/94 (23-03-1994); 96/05 (23-02-2005); 370/07 (26-06-2007); 218/12 (26-04-2012); 129/13 (27-02-2013); and 635/15 (09-12-2015).