Non-retrospective effect of law
Civil and Political Rights;
Non-retrospective effect of law.
9 of July of 2021
On July 9 2021, the Constitutional Court issued its Ruling 500/2021, deciding an appeal against a decision of the Court of Appeal of Lisbon (Tribunal da Relação de Lisboa). In that decision, the Court of Appeal had considered that, in the given case, the administrative proceeding brought against the appellant by the Portuguese Securities and Exchange Commission (Comissão do Mercado de Valores Mobiliários - CMVM) was not time-barred. The Court had based that decision in Article 7(3)(4) of Law 1-A/2020, of 19 march, which provided for the suspension of the time-barring periods regarding criminal and administrative offences as a response measure to the Covid-19 disease pandemic.
Bearing in mind that the provision in question had not been enacted in the use of a constitutional emergency power, the Constitutional Court started by pointing out that its validity could not be assessed in the light of Article 19 (6) of the Constitution, which is exclusively related to the power of declaration of the state of siege or of the state of emergency attributed to the President of the Republic.
The fundamental question raised on the appeal was to determine whether Article 29 of the Constitution, by stating that "none can be criminally sentenced unless by virtue of a previous law that declares the action or omission punishable" (n. 1), nor suffer "sentence not expressly provided for in a previous law" (paragraph 3) or "more serious than those provided for at the time of the corresponding conduct or verification of the respective assumptions" (paragraph 4), prevents the immediate application to pending proceedings of the suspension of time-barring periods provided for in Article 7 (3) (4) of Law 1-A/2020.
The Court considered that the provisions that establish the causes of suspension of time-barring periods, although not directly contemplated by the letter of Article 29 of the Constitution, are covered, in principle, by the prohibition of retroactive application of the law in malem partem, including in light of the fundamentals of the principle of criminal legality.
This conclusion resulted from two essential ideas. Firstly, that the guarantees inherent in the prohibition of retroactivity in malem partem are intended to protect the individual against the abuse of power, and may be fully invoked whenever the State seeks to mitigate, through the retroactive expansion of the list of causes for suspension of time-barring periods, the effects of its inertia in the administration of justice. Secondly, that these guarantees seek to ensure the recipient of a provision a reasonable predictability of the consequences that he/she will face when violating the criminal precept, and that predictability, as a rule, is affected when the conditions under which an offense committed can be sanctioned are modified.
However, having said this, the Court considered that the cause of suspension of time-barring periods of criminal proceedings provided for in Article 7(3)(4) of Law 1-A/2020, due to its uniqueness, totally escapes the scope of both of the abovementioned reasons on which the application of the prohibition of retroactivity to time-barring periods is justified.
Indeed, this was a transitory measure, intended to be in force only during the period in which the activity of the courts was conditioned by the exceptional situation of health emergency. The constraints to this activity were essential for the State to fulfil its duty to protect the life and physical integrity of all citizens involved in the justice administration system, including the defendants themselves. The Court then concluded that the same reasoning was valid, a fortiori, for pending proceedings regarding administrative offence, considering that the requirements arising from the principle of criminal legality are not imposed with the same degree of intensity in this domain. In the light of this, the appeal was denied.