Criminal Procedural – Procedural guarantees
Levels of jurisdiction;
Right of appeal;
legislator’s discretionary power
RULING No. 429/2016
13 of July of 2016
The Constitutional Court found a norm contained in Article 400(1)(e) of the Code of Criminal Procedural Law (CPP), as amended by Law no. 20/2013 of 21 February 2013, to be unconstitutional when it established that no appeal could be lodged against rulings in which a Court of Appeal overturned an acquittal at first instance, convicted the accused person, and sentenced him/her to an actual prison term of up to five years (longer terms are subject to different rules).
I – The right of appeal is one of the most important dimensions of the guarantees available to the defence of an accused person in criminal proceedings. Although the fact that, since the 1997 constitutional revision, Article 32(1) of the Constitution has expressly identified the right of appeal as a defence guarantee has not implied any change in the understanding of the previous text which the Constitutional Court was gradually reaching prior to the revision, the post-1997 version nonetheless represents an explicit recognition of the autonomy which the Constitution grants to this guarantee within the overall context of the guarantees pertaining to the defence. I.e. the value of this particular guarantee cannot be diminished by the recognition of other procedural guarantees – namely the other guarantees of which an accused person’s defence may avail itself.
II – In Ruling no. 49/2003 of 29 January 2003, the Constitutional Court analysed the version of Article 400(1)(e) of the CPP set out in Law no. 59/98 of 25 August 1998. At that time the Court acknowledged that the norm represented a limitation on the right of appeal, but considered that the restriction was not unconstitutional. The Court’s reasoning entailed the acceptance that as long as two levels of jurisdiction existed, the legislator was not defying the Constitution when it opted not to permit the right to appeal against a decision taken at second instance. It considered the limitation to be justified on two grounds: on the one hand, “the circumstance that the crimes in question were not overly serious”; and on the other, the fact that the legislator’s “intention was to reasonably limit access to the Supreme Court of Justice, thereby avoiding the possibility of its paralysation”.
III – With regard to the first of these two grounds, it should be noted that the scope of application of the normative dimension of Article 400(1)(e) of the CPP in the version before the Court in the present case was greater than that considered by the Court in the 2003 Ruling. The 2007 revision of the CPP (by Law no. 48/2007 of 29 August 2007) replaced the criterion used to gauge whether an appeal could or could not be brought against a Court of Appeal decision. The previous criterion was based on the “abstractly applicable penalty”; the new one was the “the concrete penalty that was actually imposed”. This change made it possible to reject appeals against convictions for any crime punishable by a prison term, including those punishable by the most serious penal consequences abstractly provided for by law.
IV – The second of the grounds used in Ruling no. 49/2003 was that, inasmuch as the legislator fulfilled the need for two levels of jurisdiction, it was possible to say that when the norm in question limited the right of appeal, it did so “reasonably”, because the goal was to rationalise access to the Supreme Court of Justice. However, in the present Ruling the Court said that although it was reasonable to limit access to the STJ by only making provision for two levels of jurisdiction, thereby preventing any paralysation of the Supreme Court, this should not be achieved at the cost of sacrificing the essential content of the guarantees of an accused person’s defence.
V – Despite the connection between them, one must make a distinction between the guarantee of the “right of appeal” and the guarantee of the existence of “two levels of jurisdiction”. Not doing so would lead to a dilution of the specific, autonomous value which Article 32(1) of the Constitution recognises the right of appeal to possess within the overall context of the guarantees afforded to the defence. Whereas the Constitution expressly enshrines the right of appeal in criminal proceedings, it says nothing about the levels of jurisdiction which are required in order to concretely implement that right.
VI – The legislator’s freedom to shape both the definition of when judicial decisions can be appealed and the regime governing appeals in criminal proceedings must necessarily be limited by that constitutionally enshrined right.
VII – The Constitutional Court had already said that the right to appeal against decisions to convict, and against judicial decisions during the proceedings whose effect is to deprive the accused of or restrict his/her freedom or other fundamental rights, is included in the “essential content of the guarantees available to the defence”.
VIII – Other relevant elements include Article 14(5) of the International Covenant on Civic and Political Rights, and the European Court of Human Rights’ abundant case law on defence guarantees and appeal hearings, the parameter for which is Article 6(1) of the European Convention on Human Rights. The latter conveys the clear perception that overturning an acquittal at appeal and replacing it with a conviction imposes a high level of requirement in terms of guarantees of the accused’s procedural position.
IX – When an acquittal at first instance is followed by a conviction and a prison sentence at appeal, the latter hearing does not ensure any reconsideration of the legal consequences of the commission of the crime. On the contrary, the conviction is an innovative decision with fundamental consequences for the accused’s legal position – particularly his/her freedom. The decision-making process regarding the type and extent of the penalty that ought to be imposed only took place at the Court of Appeal and was thus not open to dispute during the appeal.
X – The right of appeal is the effective power to bring about a reconsideration of a jurisdictional decision to convict. For this to be possible, the accused must be able to know the grounds on which that decision was based, and this is something which the norm before the Court in the present case did not ensure.
XI – The inability to appeal against the decision to convict in this context meant that, as brought before the Court, the norm deprived the accused of this reconsideration by a second instance of a decision with fundamental consequences for his/her legal position – particularly his/her freedom. This is because it meant that the appeal judge’s choice of a prison term as the applicable penalty and his/her decision as to its length were not subject to any control, which is unacceptable.
XII – It is within the legislator’s discretionary power to choose one of the diverse range of solutions that can be configured within the system of appeals in criminal proceedings, with a view to harmonising the interest in optimising resources and the rapid operation of justice on the one hand with the accused’s rights to a defence on the other. In its own right, it is reasonable to limit access to the Supreme Court of Justice in order to prevent the possibility of the latter’s paralysation. However, to preclude the accused from being able to use his/her own arguments to refute the grounds and criteria on which the decision depriving him/her of his/her freedom for up to five years is based, is to consubstantiate a total elimination of the right of appeal which is inadmissible because it harms the essential guarantees afforded to the accused’s defence.