Non-retrospective effect of criminal law
Continuous criminal activities
RULING No. 261/2020
The Constitutional Court declined to find the norm contained in Article 79(1) of the Criminal Code (CP) unconstitutional, when interpreted such that when proceedings involve ‘continuous criminal activities’ that have taken place over a period of time, the applicable criminal-law regime must be determined with reference to the date of the last fact included within those continuous activities, regardless of whether it includes more serious facts which occurred earlier.
I – This case involved a conduct that was punishable under the terms of both the Legal Regime governing Non-Customs Fiscal Offences (RJIFNA), and the subsequent Legal Regime governing Tax Offences (RGIT) as a ‘continuous’ offence aggregating facts which took place under both.
II – Considering there was always a law criminalising the facts, the Court held that the issue was not the retroactivity of the criminalising law [see Article 29(1) of the Constitution of the Portuguese Republic, CRP]; rather, what was at stake was only the relevant crime’s punishment (particularly with regard to prescriptive periods), thus discussing the case under the rule that prohibits laws which retroactively impose criminal penalties [Article 29(4), CRP], meaning it was not a matter of an (argued) retroactive new crime, but rather a matter of an (argued) retroactive new penalty.
III – The Court said that: the interpretation in question in this case does not imply a violation of the principle of certainty , as part of the principle of legality in criminal law [Article 29(1) and (3), CRP] – a violation that only occurs if (when) the norm that has been applied goes beyond the possible meaning of the text of the law which qualifies the facts as a crime, or which determines the latter’s legal consequences; the norm contained in Article 79(1), CP, does not seek to resolve the hypotheses of one or more successions of criminal laws; all it does is to lay down a criterion for determining the applicable penalty framework. For that reason, it is not in violation of the principle of legality in criminal law.
IV – On the prohibition of the retroactivity of unfavourable criminal law, the Court said that: Article 29(4), CRP means “…that the law cannot impose more serious penalties for earlier crimes…”; what is more, given that the retroactive application of more favourable criminal laws is obligatory, “…if a subsequent law subjects a crime to a lighter penalty, that crime is less severely punished than it would have been at the moment when it was committed”; these guarantees are based on an idea of the predictability of legal norms (rooted in the principle of legitimate expectations), in the sense that not only must it not be possible for any citizen to be surprised by incrimination for a behaviour in which they had engaged in the past [Article 29(1), CRP], but it must also be the case that they cannot be surprised by the imposition of a more serious sanction, or by material procedural norms that are more onerous than those which they were able to expect on the date on which they undertook the facts in question [Article 29(4), CRP].
V – The Court said that this sense of Article 29(4), CRP sufficed to show that the Constitution does not oppose the norm applied by the lower court in the case; quite apart from anything else, it didn’t cause – at least, not immediately – a more favourable regime to be in effect on the date on which acts were undertaken before the entry into effect of the RGIT; that might be the case if one were in the presence of an effective cumulation of crimes (in the sense that this would entail the application of a less favourable law to earlier behaviours that were subject to autonomous punishment), but not in the light of the unitary punishment of a ‘continuous’ crime.
VI – By fictionally saying that only a single crime is committed and thereby unifying the conduct in question, the legislator tells the court to choose an equally unified regime for the agent’s punishment; from this perspective, choosing the regime that was in effect on the date on which the last fact was undertaken in order to punish the (single) ‘continuous’ crime in no way violates the guarantee set out in Article 29(4), CRP; the appellant in this case was unable to demonstrate that he had been surprised by a criminal norm (in the RGIT) that was in effect on the date on which he undertook acts that formed part of the ‘continuous’ criminal activity – indeed, he was able to determine his will to act in the knowledge that the possibility of such a sanction existed; the circumstance that some of the facts that formed part of the ‘continuous’ behaviour predated the period during which the RGIT was in effect is irrelevant – it would only be relevant if those same facts were subject to autonomous punishment; the accused would only have been protected by Article 29(4), CRP (in the example presented in the present case) if his conduct had taken place entirely within the period during which the RJIFNA was in effect – only then could one legitimately argue that he had been surprised by the application of the RGIT; the Court therefore concluded there was no violation of the provisions of Article 29(1) and (4), CRP.
VII – The Court noted that its conclusion was in complete harmony with the case law of the European Court of Human Rights (ECtHR) with regard to the law applicable to the punishment of unlawful acts that have occurred over a period of time; in the opinion of both the ECtHR and the Constitutional Court, the unification derived from qualifying a criminally relevant fact as a ‘continuous crime’ has important consequences with regard to the individual guarantees linked to the application of the criminal law in time, making it possible to apply the law that was in effect on the date of the last example of that conduct (assuming that the law in question is a certain one) – a conduct that resulted from the voluntary actions of someone who could (and should) have expected that the incriminating norm and the respective sanction would be applied, and even so chose to act, or rather, chose to continue to act.
Rulings nos.150/19; 729/14; 106/17; 451/93; 122/00; 205/99.
ECtHR Judgment of 2013/10/21, Application no. 42750/09 (Del Río Prada v. Spain); ECtHR Judgment of 2015/10/20, Application no. 35343/05 (Vasiliauskas v. Lithuania). ECtHR Judgment of 2015/01/27, Application no. 59552/08 (Rohlena v. Czech Republic).