Code of Criminal Procedure
The Court found no unconstitutionality in a normative interpretation of Articles 17, 53(2)(b), and 269(1)(f) of the Code of Criminal Procedure (CPP), which determine that the Criminal Investigating Judge (JIC) lacks the competence to gauge the possible procedural invalidity of the decisions undertaken by the Public Prosecutors’ Office during the investigation phase regarding: i) the designation of a person as defendant in a criminal proceeding; and ii) the release of a defendant subject to verification of his/her identity and place of residence (TIR).
The Constitutional Court was summoned to review the constitutionality of Articles 17, 53(2)(b), and 269(1)(f), in the part that these provisions prevent the Investigating Judge (JIC) from assessing the possible procedural invalidity of the decisions undertaken by the Public Prosecutors’ Office during the investigation phase regarding the designation of a person as defendant in a criminal proceeding and the release of a defendant subject to verification of his/her identity and place of residence (TIR).
In looking for the solution to the present case, the Court established two prior premises. The first concerns the role of the Public Prosecutors’ Office (MP), which emerges from the way the Constitution designs its legal structure as an independent, autonomous legal body whose competences include exercising a “penal action guided by the principle of legality”. Furthermore, its status is outlined on the basis of the combination of this specific constitutional attribute and the accusatory principle, as the only procedural subject that must necessarily intervene in the process and the one that has the exclusive power to direct the investigation. Giving the JIC too much of a leading role during the investigation – a role in which he/she were to be attributed a competence with a broader scope that enabled him/her to jurisdictionally reconsider all, or almost all, the acts undertaken by the MP (without prejudice to their consideration as part of the committal process) – would signify an inversion of the paradigm established by the Constitution. To a large extent, this would be equivalent to handing the conduct of the investigation to the JIC, who would no longer be a ‘judge of freedoms’, but rather a ‘judge of the accusation’.
The second premise involves the meaning of the constitutional principle of a reserved jurisdictional function (also known as being ‘reserved to a judge’) and the set of acts that are included within the scope of the judge’s competence – an area in which both case law and legal doctrine set out two divergent theses. One school of thought argues that the JIC’s intervention in the investigative phase should be exceptional, and should only occur in relation to acts that harm fundamental rights, and which the legislator has already deemed to be harmful in that way, while in every other respect the direction of the investigation pertains to the MP. The other attaches a wider interpretation to the JIC’s powers during the investigative phase, arguing that it is unconstitutional to limit his/her competence, during the investigation, to review the MP’s acts, if they restrict fundamental rights.
The Court said that even if one were to admit that the only one of these theses which is in conformity with the Constitution is the one which leans towards a broad interpretation of the JIC’s review powers, this would be incapable of offering a definitive answer to the question of constitutionality posed in this case. It was necessary to determine whether or not fundamental rights were restrictively affected by the act of designating a person as a defendant and the ensuing mandatory imposition of a TIR measure – i.e. to analyse the restrictive potential of the acts of naming a defendant and subjecting him/her to a TIR, taken in an abstract sense and without considering any concrete elements.
(1) Regarding the first issue raised in this proceeding, the Court underlined that when a procedural subject is designated as defendant, he/she ceases to be a mere suspect and instead enjoys a position within the criminal procedural framework that seeks to offer him/her both more guarantees on the levels of his/her defence, and the possibility of intervening during the course of the procedure itself. A defendant’s procedural status is based on three fundamental principles, which give rise to some relevant rights and a number of duties.
Firstly, considering that the principle of the presumption of innocence applies to all defendants, it is not possible to say that the defendant’s fundamental rights to his/her good name, reputation, free development of personality, honour, and citizenship are restrictively affected by that status. It is true that one cannot deny that the aforementioned fundamental rights can suffer the alleged effects as a result of the so-called ‘trial by media’ – remarks and speculations of a stigmatising nature that can be made by public opinion in general and on social media in particular, once a person has been named a defendant. However, there is no cause-effect relationship between the designation and the stigmatisation, but rather between the news of the suspicion, how it is treated in the news media and the formation and clarification of public opinion on the one hand, and any unwarranted extrapolations that may be made on the other. The problem does not lie in the act of designating a defendant, or in the norm which permits that act. In the light of both the Constitution and the ordinary law, a defendant is innocent on every level throughout the procedure, until such time as a court judges otherwise during a trial.
Secondly, the condition of defendant grants the subject a panoply of defence rights, thereby showing that the legislator has taken the trouble to design a criminal procedural system which, in harmony with the principle of a democratic state based on the rule of law, displays respect for the defendant’s person and allows him/her to defend him/herself, answer any accusations that are made against him/her, intervene in the procedure, and even model it in certain circumstances.
Finally, the whole criminal procedure is also founded on a principle of respect for the will of the defendant, with special projection in relation to both his/her procedural position as the object of evidence-gathering steps, and the prohibition on the use of illegally obtained evidence, on a level where the right not to incriminate oneself, which is projected in the defendant’s rights to silence and not to provide means of proof, is especially important.
Having said this, the Court underlined that the rights and prerogatives attributed to defendants in criminal proceedings contribute to the formation of a reasonable balance in a delicate matter. While it is true that, for the person who is subject to it, designation as a defendant implies a range of procedural duties that are capable of conditioning, or in certain circumstances compromising, the exercise under fully free conditions of some fundamental rights, the law does provide for the mandatory intervention of a judge in relation to the duties that are most notoriously harmful to fundamental rights. The law does not do this with regard to act of designating a defendant, and the Court said that the Constitution does not appear to require otherwise. It does seem both reasonably and constitutionally acceptable that, as a rule, the JIC’s review of the propriety of the act of designating a defendant – an act that is naturally not immune to jurisdictional review – should occur during the committal phase and not the investigation, albeit this does not invalidate the possibility that, in a concrete case, questions of fundamental rights linked to – but not caused by – designation as a defendant may justify immediately calling on the JIC to intervene.
In its own right and considered in abstract terms, the act of designating a defendant does not entail a true restriction on fundamental rights such that it would be possible to say that gauging the propriety of that act must, always and necessarily, be deemed to fall within the scope of the JIC’s competence during the investigation. The Court was not of the opinion that either the constitutional reservation of a jurisdictional function, or the guarantees of the defence of defendants in criminal proceedings, or even the fundamental right of access to the law and effective jurisdictional protection, are violated thereby.
(2) In what concerns the second issue raised in the proceeding, the Court noted that the imposition of the coercive measure of verification of identity and place of residence (TIR) is a necessary and obligatory consequence of the act of designating a defendant. In order for the procedure to be able to follow its normal path, and also for it to be possible for all the defendant’s rights to be respected, particularly in relation to the adversarial principle, it is imperative that the judicial authorities are able to locate him/her. On the factual level, a TIR does not prevent any travel or changes of domicile, but only requires that they be communicated to the authorities. Seen abstractly, the imposition of a TIR does not entail a true restriction on fundamental rights, such that it would be possible to say that the Constitution requires the control of its legality to always and necessarily be deemed to fall within the scope of the JIC’s competence to gauge it, during the investigation. The Court therefore found that neither the constitutional reservation of a jurisdictional function, nor the guarantees of the defence of defendants in criminal proceedings, nor even the fundamental right of access to the law and effective jurisdictional protection, were violated.
As such, the Court said that there were not sufficient grounds to hold the questioned norms unconstitutional. Given the architecture of the Portuguese criminal procedural system, the constitutional place of the Public Prosecutors’ Office and the scope of the constitutionally guaranteed reservation of jurisdictional functions, the Constitution only requires the JIC to intervene, during the investigation, with regard to acts that harm fundamental rights. The legislator listed several such acts a priori, requiring that they be either undertaken by the JIC, or ordered or authorised by him/her. However, what was truly at stake here is whether the acts involving the designation of a defendant and the consequent imposition of a TIR are abstractly capable of affecting fundamental rights in such a way as to configure a restriction that would warrant the JIC’s immediate intervention in every case. The Court found that there are substantiated reasons to consider that this is not so, and therefore concluded that the norms before it in this appeal were not unconstitutional.
Code of Criminal Procedure, 1987:
Articles: 51; 61.1.a; 141.3; 196.1, 196.2, 196.3.a, 196.3.b; 287.1.a and 342.