Code governing the Execution of Freedom-Depriving Penalties and Measures (CEPMPL) – Penalty of subsidiary imprisonment – Declaration of contempt of court
Conversion of a penalty in the form of a fine;
Declaration of contempt of court;
Purposes of legal penalties;
Restrictions on fundamental rights
RULING No. 237/17
9 of May of 2017
Effectively achieving the purposes for which a legal penalty exists and is imposed is indispensable if one is to actually protect the constitutional-law assets and values to which the legislator has afforded the protection of the criminal law.
A norm contained in the Code governing the Execution of Freedom-Depriving Penalties and Measures (CEPMPL) allows the courts to issue a declaration of contempt of court in order to ensure the practical execution of a subsidiary arrest warrant that is itself derived from the conversion of a legal penalty involving a fine that has not been paid without good reason. The Constitutional Court found that this norm complies with the principle of proportionality, because it is appropriate and necessary in order to achieve the objective which justifies it, which is the need to protect criminal-law assets and values. The norm also fulfils the same principle defined in the strict sense, in that the restriction it imposes is balanced and does not exceed the measure that is fair in the light of the relative weight of each of the concrete opposing constitutional-law assets in question: the right to civil capacity on the one hand, and the asset/value which justifies the restrictive law – i.e. the efficacy of criminal sanctions – on the other. As such, the Court found no unconstitutionality in the norm.
The Porto Sentence Execution Court (TEP-P) refused to apply a norm on the grounds that it considered it unconstitutional. As required by law in such cases, the representative of the Public Prosecutors’ Office attached to the Constitutional Court brought this mandatory appeal against the TEP-P’s decision.
The norm says that the judge who is responsible for the proceedings in question must issue a declaration of contempt of court in relation to:
a) Accused persons who have not formally provided proof of their identity and place of residence and whom it has been impossible to notify of a court order setting the date of a trial hearing, or whom it has not been possible to detain or place on remand in order to ensure their appearance at such a hearing.
b) Convicted persons who have culpably avoided execution of a legal penalty involving imprisonment, or of a detention or institutionalisation measure.
This declaration of contempt of court has the following consequences:
i) The immediate issue of a warrant for the detention of the person in contempt.
ii) Asset-related legal dealings into which the person enters after the declaration is issued are subject to annulment.
iii) Public authorities are prohibited from issuing certain documents, certificates or registrations to or regarding the person.
iv) The possibility that all or part of the person’s assets may be seized and held.
There is an official register of contempt orders, access to which is restricted.
In the present case, the court a quo took the view that it was not constitutionally permissible for a contempt order to be issued when the primary legal penalty at stake in the case before it was a fine, which had subsequently been converted into a penalty of subsidiary imprisonment because the fine was not paid. The court considered that such a declaration of contempt would constitute an illegitimate restriction of the convicted person’s constitutional rights, freedoms and guarantees – namely the right to civil capacity.
The Constitutional Court naturally agreed that the Constitution enshrines personality rights – in this case, the right to civil capacity, which consists of the right to be a legal person and thus a subject in and of legal relations. However, it went on to say that the Constitution also permits restrictions on civil capacity in the cases and under the terms provided for by the ordinary law (the only exception being when those restrictions might be politically motivated, when they are indeed prohibited).
Under the constitutional regime governing restrictions on rights, freedoms and guarantees, such restrictions must respect the principle of proportionality by limiting themselves to that which is necessary in order to safeguard other constitutionally protected rights and/or interests.
For any restriction on a right that falls into the category ‘constitutional rights, freedoms and guarantees’ to be constitutionally legitimate – and the right to civil capacity is such a right – the following material preconditions must all be met: a) the restriction must seek to safeguard another right or interest that is protected by the Constitution; b) the restriction must be required in order for that safeguard to be effective, must be fit for that purpose, and must be limited to the extent needed to achieve that goal; and c) the restriction cannot damage the essential content of the right in question.
In the present case, the problematic core of the question of constitutionality posed by the norm before the Court is linked to the debate on whether the compression of the right to civil capacity that is inherent in a declaration of contempt of court – a declaration used here as a means of ensuring implementation of the subsidiary imprisonment into which the original legal penalty of a fine was converted because the fine was not paid and there were no valid reasons for the failure to pay – respects the principle of proportionality.
The Court emphasised both the fact that the declaration of contempt of court is designed to ensure that the purposes of legal penalties are effectively achieved, and that those purposes include the protection of constitutional-law assets and values which are themselves protected by the criminal law.
The Constitution says that respect for the fundamental rights and freedoms and the guarantee that they can effectively be enjoyed together form one of the pillars underpinning a democratic state based on the rule of law, and that ensuring them is one of the state’s fundamental tasks.
The ordinary legislator is responsible for the concrete implementation of the guarantee. In the case of forms of conduct that are especially damaging to the sphere of protection surrounding these assets and values, the legislator fulfils this responsibility by criminalising the conduct concerned. It is also necessary to create adjective mechanisms that are especially effective, namely from the point of view of prevention and dissuasion, in such a way as to make the state’s ius puniendi executable in practical terms. This is the context within which one must view the declaration of contempt of court.
The Court considered that from a constitutional perspective, and given that the nature of a fine is that of a true legal penalty, the circumstance that the penalty of imprisonment whose execution the declaration of contempt of court is intended to bring about results from the conversion of an improperly unpaid fine does nothing to change the elements which constitute the problem.
In the case before it, the Court was not asked to consider whether it is constitutionally acceptable to convert a fine into imprisonment, but rather to determine the constitutionality of a norm that allows the declaration of contempt of court mechanism to be used to prevent convicted persons from avoiding the penalty of subsidiary imprisonment. The fact that the legal mechanism is necessary in order to ensure that the penalty is effectively executed means that it is a fit means of achieving that purpose. Nor did the Court consider it to be an instrument that excessively compresses the right to civil capacity, all the more so in that it is intended to ensure the effective implementation of a criminal-law measure designed to deprive the convicted person of his/her liberty.
The Court recalled that the law does not limit use of the declaration of contempt of court to cases involving the implementation of a penalty. It is also applicable in situations in which, regardless of the seriousness of the possible crime, it is not possible to notify an accused person of a court order setting the date of a trial hearing, or to detain or remand him/her in custody – in other words, in situations that occur entirely within the domain of the principle of the presumption of innocence.
As such, the Court found no unconstitutionality in the norm before it, when interpreted to mean that the declaration of contempt of court mechanism is applicable in cases involving a penalty of subsidiary imprisonment derived from the conversion of a penalty of a fine that has not been paid.