Civil and Political Rights – Procedural safeguards, rights if the defence and fair trial
Ruling No. 540/2022
The Constitutional Court decided to rule article 24(1) of Law 65/2003 unconstitutional, when construed to mean that the arrested person who gave his consent to the surrender may not appeal the decision that homologated his consent to be surrendered to the issuing authority of the arrest warrant and – following the confirmation of the provided guarantee – ordered the execution of his surrender, por breach of the established in article 32(1) of the Constitution of the Portuguese Republic (CPR).
I – A citizen of the United Kingdom was arrested in Portugal as a result of the execution of a surrender request filed by the United Kingdom in accordance with the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, on one hand, and the United Kingdom of Great Britain and Northern Ireland, on the other hand (EU/UK Agreement). The EU/UK Agreement essentially reproduces the rules of the European Arrest Warrant (EAW) and, in accordance with Portuguese law, it is executed as if it was an EAW (articles 78-A and 78-B of Law 144/99).
II – The arrested citizen was heard at the Court of Appeal. At that time, he declared that he consented to the execution of the EAW and his subsequent surrender to the judicial authority of the United Kingdom. A decision was then issued homologating the consent. Given that the crimes for which the citizen is wanted are punishable, in the issuing country, by life imprisonment, the authorities of the United Kingdom were requested to provide guarantees that the referred sentence would not be applied, and the surrender was made conditional on the provision of those guarantees.
III – The authorities of the United Kingdom provided those guarantees and, as a result, the execution of the EAW was ordered.
IV – The arrested citizen appealed the decision homologating the consent and ordering the execution of the EAW to the Supreme Court of Justice. The Court of Appeal accepted the appeal, but the Supreme Court of Justice deemed that, by consenting to the surrender, the citizen waived the proceedings and, consequently, also waived the appeal.
V – Following the rejection of the appeal, the arrested citizen appealed to the Constitutional Court seeking a ruling that would declare the unconstitutionality of article 24(1) of Law 65/2003, construed to mean that the arrested person who consented to his surrender may not appeal the decision that homologated his consent to the surrender to the authority issuing the arrest warrant and that – following confirmation of the provided guarantee – ordered the execution of his surrender.
VI – The Constitutional Court first underlined that although, up until that moment, there were no constitutional court decisions concerning the EAW, there were decisions on extradition, and thus it would be important to define, based on those decisions (Rulings 45/84, 192/85, 147/86, 54/87 and 273/2022), some decision criteria. It concluded from those rulings, first of all, that the guarantees of a defendant in criminal proceedings foreseen in article 32(1) of the CPR, including the right to appeal, are applicable to extradition. Article 32(1) of the CPR establishes that “criminal procedure ensures all means of defence, including the possibility of appeal”.
VII – Since those means of defence are applicable to extradition, they are also applicable to the EAW, both by virtue of the proximity of their corresponding regimes, which reveal their identical nature, and because the EAW, though it foresees fewer reasons for not surrendering arrested persons when compared to the extradition regime, does not foresee fewer procedural rights for those in custody.
VIII – The Constitutional Court then inquired whether EU Law and, in particular, Framework Decision 202/584/JHA, had taken a stand on whether decisions homologating consent could be appealed. It concluded, in line with the judgment of the Court of Justice of the European Union of 30 May 2013, issued in Case C‑168/13 PPU, that European Union Law gives State Members leeway on the matter, and they may therefore foresee or not the possibility of appeal of that decision, as long as the goals of Framework Decision 202/584/JHA are not impaired, notably the maximum periods foreseen therein for the issuing of a decision. Thus, knowing whether the legislator is under an obligation to foresee the possibility of appeal is a matter to be decided solely in light of the CPR, notably of its article 32(1).
IX – The Constitutional Court remarked that the guarantee of at least one level of appeal tends to be limited, in principle, to the final decision of the case and to interlocutory decisions contending with freedom or other fundamental rights. The appeal of other preliminary decisions may be limited by the ordinary legislator, though the admissibility of that limitation requires, in each case, the assessment of whether the essential content of the guaranteed means of defence is somehow weakened, and whether the limitation is justified by other relevant values of criminal procedure.
X – More recently, constitutional decisions have imposed a second level of jurisdiction for judgments of the Courts of Appeal that, after an acquittal by a court of first instance, sentence the defendants to not more than five years effective imprisonment. However, they deemed that the novelty of the matters to be considered in the appeal, because they could not have been discussed previously, is not the only criterion when pondering the admissibility of restricting the right to appeal. The distinction between custodial and non-custodial sentences is also relevant, the former allowing the legislator less freedom to restrict the possibility of appeal.
XI – Faced with all these decisions, the Constitutional Court started by pointing out that the admissibility of rejecting the appeal would only be unequivocal if, with the consent to the surrender given by the arrested person, any question relevant to the defence of the person in question would be precluded. That is not, however, the case, since giving consent to the surrender drastically reduces the points of law that may be discussed, but does not completely eliminate them.
XII – On the other hand, the law that regulates the execution of the EAW – Law 65/2003 – establishes that the arrested person waives the proceedings when he gives his consent (article 20(1)), but does not expressly state that he waives the appeal. That renders it difficult to draw a waiver of the appeal from the “waiver of the proceedings”. In fact, the wording of article 26(1)(3) of Law 65/2003 strongly suggests the admissibility of an appeal, which means that not allowing an appeal will impair the trust created by the letter of the law. It also goes against the general rule establishing the possibility of appeal of final prison sentences, which the decision to surrender entails even though it is not a sentencing decision.
XIII – Furthermore, the EAW applies in the case of acts punishable by the law of the issuing Member State by a custodial sentence or detention order for a maximum period of at least 12 months, or for the execution of a sentence or security measure, as long as the applied sanction has a duration of a least 4 months, and in the case of requests without a double criminality check, if the acts, in accordance with the legislation of the issuing Member State, are offenses punishable in the issuing Member State by a custodial sentence or detention order for a maximum period of at least three years. In other words, the surrender of the arrested person will place him in a situation identical to the one that requires from the legislator restraint when limiting appeals (see X, above), and also the surrender itself involves an act of deprivation of freedom.
XIV – Lastly, part of the possible usefulness of the appeal is not yet fully defined at the time when the person in question gives his consent to the surrender. Such person may be confronted with novel circumstances that may have crucial consequences in terms of his defence, occurring after the fact which is supposed to entail the inadmissibility of an appeal, without having the possibility of arguing the extent to which they may condition the homologation of the consent.
XV – The Constitutional Court concluded, in brief, that the legislator suggests the appealability in the letter of the law and, on the other hand, the legal situation of the arrested person hardly allows any other solution, and thus the suppression of the appeal in unjustified, disproportionate and, to that extent, contrary to the guarantee of article 32(1) of the Constitution.
XVI – Lastly, the Court noted that its decision does not mean that the person requested by the EAW has the right to file an appeal concerning any points of fact or of law. In fact, the consent of the arrested person necessarily and significantly limits the scope of possible subsequent discussions. The Supreme Court of Justice should verify whether or not the claims of the appellant are compatible with the consent given and, if so, should issue a judgment on the merits, but does not necessarily have to decide on matters that are excluded by virtue of that consent.
XVII – In that sense and with referred limitation, article 24(1) of Law 65/2003 was deemed unconstitutional, when interpreted to mean that the arrested person who gave his consent to this surrender may not appeal de decision that homologated his consent to his surrender to the issuing authority of the arrest warrant and – after confirming the provided guarantee – ordered the execution of his surrender, for breach of the established in article 32(1) of the CPR.
Constitutional Court Rulings nos.:
45/84, 192/85, 147/86, 54/87, 178/88, 610/96, 390/2004, 595/2018, 523/2021, 524/2021, 525/2021 and 273/2022
International: Case Law
Court of Justice of the European Union, ruling of March 30th, 2013 no. C‑168/13 (PPU)