Criminal charges – Principle of ne bis in idem
Legal type of crime;
Description of typifying elements;
Summary rejection of charges;
Evaluation of the merit of criminal charges
RULING No. 246/17
17 of May of 2017
The Court found no unconstitutionality in a norm deduced from the conjugation of various Code of Criminal Procedure (CPP) articles, when interpreted to mean that if an accused person has been formally indicted for committing a crime and those charges have been summarily rejected by a court because the indictment failed to adequately describe an element that typifies the legal type of crime in question, new charges in which the original oversight is remedied can be brought against the same person for commission of the same crime at the same time and in the same place. The protection which the procedural dimension of the principle of ne bis in idem gives to the accused’s position does not demand that the state’s desire to punish a criminal necessarily be exhausted the first time a court rejects criminal charges, particularly when the grounds for that rejection only entail a formal inadequacy on the part of the indictment.
A solution whereby any error (in this case, an insufficient description of one of the elements that typify the crime) makes criminal charges ‘unfit’ to define the object of the trial would make it impossible to seek to bring a criminal perpetrator to justice, thereby frustrating the objectives of the whole criminal procedural system. Criminal justice could be rendered unachievable by mere imprecisions and mistakes that are capable of being remedied, and this is an outcome the ordinary legislator would not want and the Constitution does not impose.
In other words, such an interpretation could lead to a failure to implement criminal justice, merely because of remediable imprecisions and errors, and this is not something the Constitution requires.
The normative interpretation before the Court in this concrete review case was derived from a number of articles in the Code of Criminal Procedure. It says that when an accused person has been formally indicted for the alleged commission of a crime, and the charges are summarily rejected because they failed to adequately describe one of the elements which typify that crime, the same person can be validly indicted for a second time for commission of the same crime at the same time and in the same place, whereupon (and assuming, naturally, that the original omission has been rectified) the accused can be brought to trial, and if appropriate, convicted on the basis of the facts and the legal qualification thereof set out in the new indictment.
The Constitutional Court was called on to determine whether this interpretation was in breach of the constitutional principle of ne bis in idem, which is one of the guarantees that protect citizens from the possibility of arbitrariness in the state’s ‘jus puniendi’.
The essential core of the protection afforded by this principle is the requirement that the merit of a criminal case can only be evaluated once. This is one of the two dimensions that comprise the principle: this substantive dimension precludes multiple impositions of legal sanctions for the same offence; the procedural dimension of ne bis in idem means that the same subject cannot be the object of a new trial or new proceedings in relation to a criminal offence for which he/she has already been acquitted or convicted in a decision that has already been consolidated.
The immediate grounds for the procedural aspect of ne bis in idem lie in the need to safeguard the certainty inherent in the principle of the state based on the rule of law whereby, even if material justice may be sacrificed in the process, an individual who has already been convicted or acquitted cannot permanently live under the threat of new criminal proceedings and the possibility of being subjected to a new criminal-law penalty.
The substantive side of the same principle is founded on the idea that there cannot be more than one punishment for the same crime and within the scope of the same case. This is because penal sanctions are generally those which sacrifice people’s fundamental rights to the greatest extent, and this means firstly that they should be avoided altogether whenever the need for them is not demonstrated, and secondly, that when they are indeed imposed, their measure should be limited to that which is shown to be necessary. The mere existence of a double punishment for the same crime suffices to prove the existence of this disproportionateness or lack of need.
The Constitutional Court had already held in the past that when no court has thus far issued any sentence (be it a conviction or an acquittal) ruling on the facts that are attributed to an accused person, one cannot consider that a simple court order returning the case file to the prosecution – for example, on the grounds that the evidence submitted to the court has revealed that additional investigative steps are needed in order to discover the truth – constitutes a situation in which the accused is being tried twice for the same crime in the sense that is prohibited by the Constitution.
The Court’s case law is that when combined with those included in the original indictment, the new facts presented as a result of this process form a ‘unity of meaning’ such that the latter cannot be considered autonomous in relation to the former. In situations in which a court has not yet issued any decision on the merit of the case (be it to acquit or convict), let alone a definitive one (in the sense of the decision’s transit in rem judicatam), a ‘new trial’ involving either ‘new facts’ presented at the trial hearing, or facts that were in the original charges, does not violate the principle of ne bis in idem. It is also consensual that repeating a trial when a previous one has been annulled, even if the latter ended in a decision on the merit of the case, does not breach the same constitutional principle either.
In the present case, the court of first instance had never given a definitive decision on the ‘new facts’. It did refer to “facts that have been judged and found proven”, but the context in which this statement was made shows that this was merely a provisional and conditional finding. The act of communicating facts to an accused in this way is designed solely to allow him/her to present evidence to refute them, and if he/she is able to raise justified doubt as to their actual existence, they may in the end still be declared unproven.
One key fundamental element in any attempt to determine the significance of a judicial decision is the concrete act in which the court has interpreted the law. Decision-related statements contained in a judicial decision count within the legal framework that led to them, and only to the extent that they take on significance and are capable of being rationally reconstructed within that framework. This is why objective elements are especially important.
In the present case, the decision to reject an indictment for the crime of driving a vehicle under the influence of alcohol was based on the circumstance that the facts for which it was alleged the accused was responsible did not consubstantiate the commission of the crime of which he was charged. This was because his blood alcohol rate at the time of the alleged offence (equal to or greater than 1.20g/l) was not included in the indictment. When the court rejected the indictment, it said that it did so because the description of the offence was incomplete.
There is nothing in the Constitution to say that such an observation must preclude the possibility of a new indictment which, while it concerns the same “piece of life” that underlay the first one, completes the description of the facts by adding the missing elements. Accused persons do not possess a right under which errors must always work in their favour.
If the prosecution seeks an additional punishment, any change made during the trial phase of proceedings must always be exceptional. However, when what is at stake is the mere addition of new material facts linked to some of the accusations that were already made in the original indictment, the defect can be overcome by modifying the charges, or by merely proving that the facts had already been communicated to the accused during the course of the proceedings and that he/she had already had the opportunity to defend him/herself with regard to them.
The ability to renew an indictment must be subject to limits, the first of which is the need for protection against unending pursuit by the criminal authorities. They particularly include: the object derived from the reformulated indictment must be respected; the reformulation must be made within a reasonable period of time; the accused must be provided with the same means of defence as those available to him/her when presented with the original indictment (e.g. the option to request an investigation); and the grounds on which the court rejected the original indictment must permit correction of the error or omission.
None of these limits were relevant in the present case, and the Constitutional Court therefore found no unconstitutionality in the normative interpretation before it.
Rulings nos. 452/02 (30-10-2002); 494/03 (22-10-2003); 303/05 (08-06-2005); 387/05 (13-07-2005); 522/06 (26-09-2006); 237/07 (30-03-2007).
Illinois v. Somerville, 410 U.S. 458 (1973)