Criminal Law – Penitentiary Law
Laws under which penalties can be imposed;
Accumulation of material penalties (consecutive regime);
Single penalty for multiple offences (concurrent regime)
RULING No. 252/16
4 of May of 2016
The Court found no unconstitutionality in an interpretation of a norm deduced from the Code governing the Execution of Freedom-Depriving Penalties and Measures (CEP), such that in cases in which a prison inmate is found guilty of the effective commission of more than one disciplinary infraction and the same type of sanction is imposed for all of them, the resulting disciplinary measures are applied consecutively, and not concurrently as if they were a single sanction.
The Constitution distinguishes between criminally unlawful acts and criminal sanctions on the one hand, and other sanctioning regimes on the other. The CEP permits limitations on inmates’ fundamental rights, both in accordance with the terms of the decision in which the court imposed the measure depriving the person of his/her freedom, and for reasons linked to order, safety and security in prison.
The combined consideration of the special needs to maintain order, safety and security in a prison establishment and the pursuit of the objectives of promoting the sense of responsibility of an inmate who is serving a penal sentence justifies the option embodied in the norm in question. The differences between a criminally unlawful act on the one hand and a disciplinarily unlawful one – namely one committed in a penitentiary environment – on the other, together with the characteristics of the special legal regime applicable to inmates and that regime’s purpose, permit the conclusion that the legislative solution adopted in the norm is not unreasonable. The Court therefore decided that it was not in the presence of any violation of the constitutional principle of equality.
This concrete review case was brought by a prison inmate who appealed against a decision of the Lisbon Sentence Execution Court (TEPL). The question of constitutionality was whether it is constitutionally permissible to sentence an inmate to disciplinary measures involving more than one sanction of the same type because he had committed more than one disciplinary infraction, and for those sanctions to be applied consecutively (i.e. in the form of a material accumulation) rather than concurrently.
The Constitutional Court had never pronounced itself on this specific question before, but it had considered other questions that presented certain parallels with this one in terms of both the grounds for differences between the Criminal Code regime and other sanctions-imposing regimes, and the constitutional parameters relied on therein.
It had already given its views on the material accumulation of sanctions as part of the law governing mere social administrative offences in the tax field, when it concluded that a norm under which the sanctions imposed for such offences should be materially cumulative was not unconstitutional.
The Portuguese penal legislator has adopted a system in which the agent of a crime is sentenced to a single penalty (which takes account of the combination of the facts of the case and the agent’s personality), and not to the material accumulation of all the penalties applied for each one of multiple infractions. The legislator took the view that a solution in which penalties are materially accumulated can lead to the imposition of excessive or inappropriate punishments that go beyond the limit of the agent’s guilt, namely because they do not take account of the evolution of his/her personality and because they compromise the purposes that penalties are intended to achieve, especially the agent’s reintegration into society. When more than one crime is committed by the same agent, the constitutional principles of guilt/blame, proportionality and sociability require the imposition of a single penalty.
In its jurisprudence, the Constitutional Court had already noted that in Portugal, while both the law governing mere social administrative offences and the criminal law both reject the idea of objective responsibility, there are substantive reasons that require a distinction between crimes and administrative offences, one of which is the natures of both the unlawful acts and the sanctions involved. The particular nature of a given unlawful act conditions the possibility of applying the principles of guilt/blame, proportionality and sociability, according to which the state must seek the socialisation of convicted persons. The reasons that justify concurrent sentences in criminal law cannot be transposed unaltered into the law governing mere social administrative offences.
The need for the limit on the length of prison terms to remain within parameters such as whether it is physically possible to execute them, humanity, respect for the legislator’s choices with regard to maximum penalties, and the idea of resocialisation justifies concurrence in the criminal system, but does not make sense in the case of multiple administrative offences punished solely by pecuniary sanctions.
At the same time, the criminal-law point of reference – i.e. guilt/blame – that makes it possible to combine the various facts for which the convicted person is responsible into the basis for a concurrent penalty does not possess the same structural importance in the case of mere social administrative offences.
The Constitutional Court pointed out that this reflection on how the extent to which the principles of guilt/blame proportionality and sociability cannot be transposed from the criminal law to the law on administrative sanctions is to a large extent also capable of precluding the transposition without alteration of those principles’ expansive force to the domain of disciplinary sanctions in general, and specifically to the regime set out in the Code governing the Execution of Penalties.
The CEP itself says that the assessment and determination of each of the disciplinary sanctions imposed for each infraction that is committed must be shaped by those principles, and the accumulation of disciplinary sanctions is not without its limits. However, the field of application par excellence of those principles is the criminal law, and they are not projected with the same intensity into other branches of the law under which sanctions can be imposed.
Using them as parameters does not lead to a prohibition under which the ordinary legislator is not allowed to opt for a solution in which the sanctions imposed for the effective commission of disciplinary infractions by an inmate are materially cumulative.
The norm before the Court applies to cases in which there are effectively multiple disciplinary infractions, with a sanction for each one that has effectively been committed, so there is no violation of the principles of guilt/blame, proportionality and that double punishments for a single act are prohibited. As to the principle of equality, the dimension of the prohibition of arbitrariness is pertinent to the present situation, when seen as a limit on the ordinary legislator’s freedom to shape legal regimes. However, the Court took the view that the norm did not entail any constitutionally prohibited discrimination of a kind based on the personal characteristics to which the Constitution refers in this respect, so the solution could only be criticised if one were to prove the absence of any relationship between the purpose pursued by the law and the differences between regimes which the law lays down in order to achieve that goal. The Court said that in order to gauge whether the legislator’s option is reasonable, one must analyse the reasons for the specific differentiation between the regime established in the criminal-law field and that governing discipline among prison inmates. Finding no such unreasonableness in the norm before it, the Court rejected the allegation of unconstitutionality and denied the appeal.
Rulings nos. 263/94 (23-03-1994); 96/05 (23-02-2005); 370/07 (26-06-2007); 336/08 (19-06-2008); and 635/15 (09-12-2015).