Procedural safeguards, rights of the defence and fair trial – Scope – Criminal Proceedings
Right to appeal
RULING No. 672/17
13 of October of 2017
The Constitutional Court found no unconstitutionality in a norm extracted from Article 400(1)(e) of the Code of Criminal Procedure (CPP), whereby appeal-court rulings are not open to appeal to a third instance when the appeal court: (i) sentences an accused person to a fine as an alternative to imprisonment, thereby overturning a first-instance decision to acquit him/her; and (ii) in determining the legal consequences to which the newly convicted accused person is to be subjected for having committed the crime, it only considers the facts that were deemed proven in the court of first instance’s acquittal decision.
I – The Court was asked to review the constitutionality of a norm deduced from the initial segment of Article 400(1) (e) of the Code of Criminal Procedure (CPP), whereby no appeal can be lodged against court-of-appeal decisions to impose a “penalty that does not entail the deprivation of liberty”. In Ruling no. 429/16, the Court had found no unconstitutionality in the norm extracted from the final segment of the same subparagraph, under which it was not possible to appeal against rulings in which a court of appeal imposed a “term of not more than five years imprisonment”.
II – What was at stake in the present case was not the sentencing of an accused person to a prison term, but rather to a fine, an alternative penalty to imprisonment for low and mid-level criminality. The Court took the view that, although the present case also concerned a situation in which it is impossible to appeal against a court-of-appeal decision that reverses an acquittal at first instance, it was not possible to simply transpose the way in which the Court had weighed up the question before in Ruling no. 429/16 without further consideration of the issue.
III - The degree to which the constitutional law position of an accused person is affected if he/she is denied the possibility of appealing against a decision in which a court of appeal reverses an acquittal at first instance and sentences him/her to an alternative fine is a matter of proportionality in the strict sense of the term. Since the legal measure adopted by the legislator was both appropriate and necessary to the purposes it was designed to achieve – rationalising access to the STJ – the Court concluded that everything came down to whether the degree of compression of the right of appeal was excessive or disproportionate in the light of those goals.
VI – The right of appeal that pertains to accused persons in cases in a first-instance acquittal decision is reversed by the court of appeal is limited to the possibility to counterplead in order to influence the nature and extent of any sanction that might then be imposed on him/her by the court of appeal. If the outcome at second instance is unfavourable to the accused, he/she will not be able to discuss and contest the grounds for the new decision or ask a third instance to review it and determine whether it is correct. As a result, he/she is unable to react to the way in which the court of appeal has defined his/her liability.
VII – When the court of appeal overturns a first instance acquittal and imposes a fine the accused has no interest in contesting – or legitimacy to contest – the appeal court’s choice. From the point of view of the nature of the sanction that has been imposed, what is at stake is the irreversibility of the finding underlying the determination of the concrete measure. Unlike that which happens when a prison term of not more than five years is imposed, in the case of an alternative fine this is the only legal operation whose result the accused can influence; due to the norm before the Court in the present case, he/she cannot also refute the court of appeal’s decision altogether, because the norm precludes him/her from gaining access to the STJ.
VIII – The Court took the view that there is a difference between the degree of compression to which the right of appeal is subjected in these two situations. In the event that a court of appeal imposes a prison term of not more than five years, the innovative dimension of its decision includes not only the determination of the extent of the concrete penalty, but also the decision not to impose the alternative fine nor to substitute the imprisonment penalty for any of the other applicable alternative penalties provided for in the Criminal Code (CP). In this situation, the Court said that it was understandable that the mere possibility of influencing the decision-making process which, in cases involving the reversal of a first-instance acquittal, the court of appeal has to undertake in order to establish the legal consequences of the crime in question, is an insufficient or deficient implementation of the accused’s defence guarantees incorporated in the right of appeal. The fact that it is impossible to bring about a review by another instance of the decision-making process that led to the imposition of an effective prison term (notwithstanding the fact that it cannot exceed five years) means that the actual decision to deprive a person of their liberty is not subject to any form of control.
IX – Diversely, in cases in which a first-instance acquittal is reversed and an alternative fine is imposed, what is at stake is not the exclusion of the ability to react to an unfavourable choice of the kind of penalty that is to be imposed, but rather only the exclusion of the possibility of contesting the amount of the fine. It was entirely possible for the accused to use the arguments postulated in his/her counter-pleading in response to the appeal against his/her acquittal at first instance to influence the court of appeal. The Court said that the fact that the only thing at stake here was the decision on the amount of the fine signified that, the right to appeal was not compressed to an extent that would fail to comply with Article 32(1) of the Constitution. On the contrary, it is an option that falls within the broad scope of the ordinary legislator’s power to define the list of (ir)reversible decisions, and one whose result is not disproportionate or excessive in relation to the goals that definition seeks to achieve.
X – In this respect the Court concluded that, in cases in which the reversal of an acquittal at first instance gives rise to the imposition of a penalty in the form of a fine that is an alternative to imprisonment, the framework in which one finds oneself is both one in which the crimes themselves are less serious (i.e. crimes which, precisely because they are less serious, are subject to the least onerous penal sanctions permitted under the law) and also, because of this, an area in which it is especially acceptable to seek to limit access to the Supreme Court of Justice with the goal of ensuring it is able to function effectively and thus safeguarding the right to secure a judicial decision within a reasonable period of time.