Criminal Procedural Law – Capacity to testify
Deprivation of legal capacity;
Integrity of evidence in criminal proceedings;
Right to evidence;
Negative probatory value;
Principle of the prohibition of excess
RULING No. 396/17
12 of July of 2017
The existence of a mental abnormality is only cause for deprivation of legal capacity if it results in an inability to provide for one’s personal interests. This judgement is a legal, not a medical one and reflects the sometimes tense balance between protection and liberty. The degree of incapacity of a person who may be declared legally incapable due to a mental abnormality must be gauged in individual terms, with reference to the nature and quality of his/her interests and the need to provide for them.
The inability to act autonomously must be verified in both the asset-related and the personal fields, so all the multiple aspects of the subject’s life that can possess legal expression are of interest. The decision to deprive has fixed effects that are determined by law. The underlying judgement is an overall one, but is influenced to a greater extent by the areas in which the verified existence of an inability can seriously prejudice the subject’s interests because the acts in which he/she engages therein have binding effects. One especially important such area is that of legal dealings.
The Constitutional Court emphasised that the existence and nature of an (in)ability to relate to a given reality with which such a subject comes into contact can often only be determined on a case-by-case basis and may depend on many factors.
The judgement that has led to the issue of a deprivation order may not be of use in determining the incapable subject’s fitness to provide credible testimony in criminal proceedings. This particular fitness is not important when it comes to evaluating the preconditions for a declaration of loss of legal capacity, and that evaluation therefore says little or nothing about the subject’s ability to testify in court.
The Court said that although the existence of an order depriving the subject of legal capacity due to a mental abnormality may indicate an inability to give evidence, saying that a person who is deprived of legal capacity is absolutely and automatically incapable of testifying is not a fit means of preventing probatory value from being attached to testimony that has none. It is enough for such a rule not to be essentially fit for its intended purpose for it to be deemed excessive. No harm to an asset or value that warrants protection can be justified by a goal that is only accidentally achieved by that harm. The fact that a measure is shown to be unfit or improper suffices to prove that it is excessive and consequently unconstitutional.
The Court therefore found a Code of Criminal Procedure (CPP) norm whereby the fact that a person is deprived of his/her legal capacity due to a mental abnormality meant that he/she was absolutely incapable of testifying in proceedings in which he/she was the victim of, or had been harmed by, a crime to be unconstitutional.
The Public Prosecutors’ Office brought this mandatory concrete review case before the Constitutional Court because the court a quo refused to apply a norm concerning the capacity and duty to testify contained in the Code of Criminal Procedure (CPP) on the grounds that it was unconstitutional. The disputed dimension of the norm said that persons who were deprived of their legal capacity due to a mental abnormality were absolutely incapable of testifying in criminal proceedings.
In a past case and in a slightly different context, the Constitutional Court had already found the same norm deduced from the CPP to be unconstitutional, in particular because it violated the principle of equality by laying down that a person who had been harmed by a crime, was a civil party to the ensuing criminal proceedings and was deprived of his/her legal capacity was absolutely incapable of testifying during the trial hearing.
Although the object of the present appeal was not exactly the same as that in the earlier decision, inasmuch as what was at stake here was the capacity to bear witness of a person who, although harmed by the crime, was not a civil party to the proceedings, the parallels between the two questions were evident.
The legislative option to consider persons who are deprived of legal capacity incapable of giving testimony is a long-standing one in Portuguese Law. This is true of both criminal procedural law and civil procedural law, with the latter having originally imported it from the former.
At first this choice was not criticised. Quite apart from the widespread belief that the type or level of the subjects’ medical condition could indeed make them unfit to give evidence, deprivation of capacity was seen as a legal ‘institute’ designed to protect ‘madmen’, while preventing them from testifying in court was designed to protect both the parties to proceedings and the administration of justice. Having said this, some authors did express a preference for a regime under which it would be up to the judge to freely assess the probatory value of witness testimony.
The option to take advantage of legal capacity-depriving sentences as a measuring gauge with which to determine a person’s (in)capacity to testify sought to lend greater certainty to the universe of people who were deemed unable to make statements in legal proceedings. The legal solution before the Court in the present case was essentially designed to prevent judicial errors when considering both the fitness to testify of persons suffering from mental abnormalities, and the credibility of their testimony in cases in which they are allowed to give it.
The Court said that on the other hand, making persons who have been deemed legally incapable due to a mental abnormality absolutely unable to testify is a compression of the right to evidence, itself also seen in terms of the essentially objective aspect of a value or asset that is safeguarded by the Constitution. This is because doing so excludes the possibility of presenting witness evidence that might prove useful to the discovery of the truth. This restriction is particularly significant in situations like the one in the present case, in which the person who is considered incapable is also the victim of the crime.
At issue here was a measure which was designed to promote a value or asset – the probatory integrity of criminal proceedings, which is required by the right to fair process and the principle of a state based on the rule of law – but which did so by harming that very value or asset. In order to prevent value from being attached to testimonies whose probatory worth is actually negative – a possibility that is inherent in a regime in which the courts are free to consider and evaluate evidence – the law categorically excluded a whole universe of forms of testimony. That universe was composed of every testimony provided by persons who are deprived of legal capacity due to mental abnormality, but included a more or less broad subset of cases in which such testimony does in fact possess a positive probatory value. The benefits and sacrifices derived from the measure are linked to the same value or asset – the probatory integrity of criminal proceedings.
The Court emphasised that it is not commonplace for the problems posed by collisions between different rights or by the need to weigh the values and assets that are relevant to constitutional justice against one another to take this intra-axiological shape. Such problems normally concern the harm that is done to one value or asset in order to promote or protect a different value or asset, which is why they tend to be inter-axiological.
It nonetheless noted that there is no substantial difference between applying the constitutional principle of the prohibition of excess when a conflict is intra-axiological and doing so when it is inter-axiological. This principle is not about weighing up values and assets in the strict sense of the term – i.e. posing the question of whether one value or asset should prevail over another – but about controlling whether and to what extent the valuable goal pursued by a legislative measure is proportionate to the sacrificial means imposed by that measure.
In its jurisprudence, the Court has acknowledged that an analysis of the principle of the prohibition of excess must look at three subprinciples: fitness for purpose, requirability, and proportionality. The fitness subprinciple says that the restrictive means chosen by the legislator cannot be inappropriate in order to achieve the purpose for which it is intended. The subprinciple of requirability or need says that the legislator’s choice of means cannot be more restrictive than that which is indispensable in order to achieve that purpose. The subprinciple of proportionality says that the goals achieved by the measure must be such as to justify the use of the restrictive means.
The Court said that in the present case, at first sight the measure’s fitness seemed to be assured by the apparent convergence between the precondition for the deprivation of legal capacity ─ the mental abnormality ─ and the lack of fitness to testify.
However, that convergence is not real, because both the grounds for the judgment on which the decision to deprive is based ─ the subject’s inability to govern his/her person and property ─ and its goals ─ the protection of the subject’s own interests ─ are very different from those that underlie the judgement as to whether a person is fit to testify.
Be that as it may, however generously one may define the subprinciple of fitness, even to the point of taking the view that any legislative measure which is not absolutely unfit fulfils it, the legal solution before the Court here was in any case entirely incapable of passing the tests of requirability and proportionality.
The Court said that the measure was certainly not requirable, given that it was impossible to accept as valid the legislator’s assumption that evaluating either the fitness to testify of persons suffering from mental abnormality, or the credibility of their testimony, exceeds the normal abilities of the judicial power within the legal regime governing the free consideration of evidence by the court. The goal of excluding testimony with a negative probatory value sought by the measure can be adequately achieved by a regime that establishes a relative incapacity whereby the fitness to give evidence of a witness who suffers from a mental abnormality is judged on a case-by-case basis, taking account of the nature and degree of the abnormality and the nature and pertinence of the testimony. The measure also failed the proportionality test, given that the extremely modest efficacy of its exclusion of testimony with a negative probatory value was incapable of justifying the sacrifice of the testimony with a positive probatory value that may be provided by persons who have been deprived of their legal capacity due to mental abnormality, above all when that person is the victim.
As such, the Court found that the norm before it violated the combined principles of fair process and the prohibition of excess and was therefore unconstitutional.
Rulings nos. 187/2001 (02-05-2001); 359/11 (12-07-2011); and 291/17 (08-06-2017).