Civil and political rights - Procedural safeguards, rights of defence and fair trial – Double degree of jurisdiction
Appeal, individual, right;
Court, appellate, review;
Criminal procedure, guarantees
RULING No. 595/2018
A norm which establishes the non-reviewability of a Court of Appeal (Relação) ruling which, innovatively with regard to the judgement of acquittal of the first instance court, has convicted the defendant to an imprisonment sentence non superior to five years, does not adequately guarantee the defendant’s right of defence.
The Constitutional Court declared the unconstitutionality with erga omnes effects of the norm set forth in Article 400 (1) (e) of the Criminal Procedure Code (hereinafter CPC), in the wording given by Law 20/2013, of 31st February, which establishes the non-reviewability of a Court of Appeal (Relação) ruling which, innovatively with regard to the judgement of acquittal of the first instance court, sentenced the defendant with an imprisonment penalty of no more than five years.
I – The norm under appreciation, which had previously been deemed unconstitutional in at least 3 concrete review cases, concerned the cases in which a Higher Court (Relação), reversing an acquittal judgement delivered in the first instance, innovatively convicted the defendant to an imprisonment term of no more than five years.
II – In the concrete review rulings that ground the present ex post facto review request, the Constitutional Court held that the norm was unconstitutional because it violated the right to an appeal as a guarantee of defence in criminal proceedings. In order to define the scope of this right, one must take into account relevant human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the ECHR’s case-law, which clearly indicates that the reversal, in appeal, of an acquittal judgement into a conviction demands for reinforced safeguards in the context of the right to a fair and equitable process. Indeed, the ECHR goes beyond a formal view of the 'right to a double degree of jurisdiction in criminal offences', in the sense that it also encompasses the procedural rules applicable in that context.
III - The right to an appeal is an important aspect of the right of defence in criminal proceedings. The fact that it is explicitly included among the constitutional pillars of the Portuguese Criminal Procedure limits the legislator’s freedom of action with regard to the delimitation of the decisions that may be appealed against and to the definition of the system of appeals in criminal proceedings. These limits refer to the guaranteeing of the right to an appeal of the defence and may have a different extent with regard to the possibility of appeal granted to the prosecution side.
IV - The fundamental right to an appeal is not to be confounded with the right to a double degree of jurisdiction. A restrictive interpretation of both legal institutions which assimilates the right to an appeal to the mere guarantee to a double degree of jurisdiction in criminal matters should be rejected: the constitutional guaranteeing of the right to an appeal is not exhausted by the existence of a double degree of jurisdiction.
V – Ruling 429/2016 first moved away from the orientation hitherto sustained in the Constitutional Court’s caselaw. By underlining that the conviction implied an effective deprivation of liberty, it considered that such a restriction of the fundamental right to appeal to the Supreme Court of Justice was not tolerable in casu, thus concluding that the rights of defence were not sufficiently guaranteed under Article 400 (1) (e) of the CPC, which did not allow for a review of the conviction sentenced by the Higher Court (Relação), after there had been no appeal of the first instance decision.
VI - This limitation of the right to appeal has been justified with the need to ensure procedural speediness and an efficient organization of the justice administration system, in particular by rationalizing access to the Supreme Court, whose intervention should be limited to cases of greater merit; it is nonetheless imperative that the restriction of the fundamental right to an appeal be adequate, necessary and not excessive in order to ensure the objectives pursued, in particular in view of its consequences for the rights of defence.
VII – When comparing the extension of the restriction to the right of appeal arising from Article 400 (1) (e) CPP against the gains for the expeditiousness and rationalization of the appeal system resulting from a limitation of the access to the Supreme Court of Justice, it becomes clear that this prohibition translates into an insufficient realization of the guarantees of defence protected by the right to appeal, which is unconstitutional, even if this limitation is only partial, as argued in Ruling 429/16.
VIII - The norm in question only concerns the cases where the appealed court itself determined the sanction, that is, it did not refer the case back to the first instance court; in this case, the non-reviewability of the second instance decision has serious consequences, as it implies that the definition of the type and quantum of the sanction will be assessed only once - by the appellate court – without guaranteeing the control of a second instance, ie, a double degree of jurisdiction.
IX - By acquitting the defendant, the first instance court did not have the opportunity to consider the matter of the determination of the sanction. The reversal of the acquittal into a conviction meant that the appeal court considered the matter of the quantum and nature of the sanction for the first time, that part of the decision being innovative. Not admitting for the possibility of a review of the legal consequences of the crime amounts to a lack of control of the process of choice and definition of the quantum of the penalty that is untenable in this case.
X – Adding to a partial lack of control of the conviction judgement, Article 400 (1) (e) of CPP represents an intense and severe restriction of the right to appeal, since the possibility to appeal against a part of the decision is totally excluded from its scope of protection, precisely the part that entails the greatest potential for injuring the fundamental rights of the defendant.
XI – The impossibility to appeal against a sentence of deprivation of liberty issued by the court of appeal in reversal of an acquittal is more deserving of a negative constitutional appraisal than the reversal of an acquittal sentence handed down at first instance followed by the application of a fine; in the first case, the restriction of the content of the right to appeal sacrifices the fundamental rights of the defendant to such an extent that it may not be justified by the legitimate purpose of rationalizing access to the Supreme Court of Justice.
XII – Although the constitutional right to appeal does not deserve an absolute protection in this context, to deny the defendant the possibility to appeal impacts the defendants’ rights of defence in such a way that it could only be justified by a public interest of equivalent importance; by denying access to the review by a higher court (in the case, the Supreme Court of Justice), Article 400 (1) (e) of CPP affects the right to appeal in an excessively burdensome manner and is therefore unconstitutional in violation of Article 32 (1) in conjunction with Article 18 (2) of the Constitution.