Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial
Civil and political rights
CONSTITUTIONAL COURT OF PORTUGAL
RULING N. 766/2022
I – Facts and context of the proceedings before the Portuguese Constitutional Court
There was a civil case related to a lease contract in which court of first instance decided in favor of the plaintiff. The defendant wanted to appeal to the Court of Appeal. However, the judge of the Court of Appeal did not admit it, because he considered that it was filed after the legal deadline.
The defendant then appealed to the Constitutional Court to discuss the non-admission of the appeal previously filed to the Court of Appeal.
To better understand what is at stake in this process, we must bear in mind that: (i) the deadline to appeal was Feb. 6th 2020, the term of 30 days which began counting on Jan. 8th 2020; (ii) on Feb. 1st 2020, Law 4-B/2021 was published – it amended Law 1-A/2020 and suspended procedural deadlines in general, due to the constraints caused by the COVID-19 disease epidemic, and it entered into force on Feb. 2nd 2020; however, (iii) this suspension of deadlines had an exception [article 6-B(5-d) of Law 1-A/2020] allowing for «[…] a final decision to be rendered in cases and procedures for which [it is agreed that] no further steps are necessary, in which case the time limits for filing an appeal are not suspended […]». The Court of Appeal held that this exception also extended to the pending appeal terms relating to decisions that were already rendered, although the law only expressly referred to judgments that had yet to be rendered. The defendant considered – and argued before the Constitutional Court – that the behavior of the Court of Appeal was unforeseen and unforeseeable from her point of view and that, if a party reads the law stating «...that a final decision can be rendered in the proceedings...» that party cannot rely on an interpretation that includes decisions which were already rendered.
II – Question to be examined by the Constitutional Court
The unconstitutionality of Article 6-B(5-d) of Law 1-A/2020 as modified by Law 4-B/2021 interpreted in terms of comprising the decisions rendered before its entry into force in the exception to the suspension of procedural deadlines.
III – The Constitutional Court’s assessment
III.A. The Constitutional Court (CC) recalled the principles regarding fair trial / due process provided for in Article 20(4) of the Constitution. Although the Constitution does not consider the right of appeal to the Court of Appeal mandatory outside criminal proceedings and violation of fundamental rights, there is a different framework whenever the law directly provides for the possibility of appeal (as was the case). The legal possibility of appeal is of great relevance to the parties, allowing them to discuss judicial error and reverse unfavorable results. Therefore, to deny the appeal of a judicial decision whenever the possibility of appeal is set out in abstract is not secondary or unimportant, because it hinders one of the main procedural opportunities of the parties. Therefore, the question that arises is: in a due process, how predictable must the action of the court be in relation to the party.
III.B. The CC has set out some case-law of the ECHR on the predictability of procedural acts and Court conduct, noting as one of the relevant factors the "predictability" of rules that deny access to an appeal. In the weighting of predictability, circumstances such as the disproportion of consequences and the existence of a consistent and stabilized judicial practice must be also taken into account, among others. In the end, the unpredictability of an interpretation by the court may imply a disproportionate demand for the affected party. The CC concluded that this sense of ECHR jurisprudence is consistent with the provision of Article 20(4) of the Constitution. The question is linked to the idea of certainty of procedural acts, as a requirement of due process, resulting from Articles 2 and 20(4) of the Constitution.
III.C. In this case, there are several circumstances that give added weight to the party’s confidence in the suspension of the term: (i) the literal text of the law does not directly provide for the hypothesis on which the court based the rejection of the appeal; (ii) the party did not have a general principle of law with which it could rely to anticipate the Appeal Court’s interpretation; (iii) there was not a stable practice on the interpretation of those procedural rules; (iv) the question of the deadline arose in this context of uncertainty a few days after the entry into force of Law 4-B/2021.
III.D. The Constitutional Court then questioned: on what basis could the party provide for the exhaustion of the appeal period, a few days before it took place? It concluded that there were very few grounds for making this prediction. Admitting it would force the party to a very complex interpretive effort and hardly reconcilable with the literal form of the law. Therefore, considering the criteria of Article 20(4) and the case-law of the ECHR, a requirement to predict the adverse effect is clearly disproportionate.
III.E. A simple rule has also been laid down by the CC: in a fair trial, the loss of important procedural rights (such as the right to appeal) cannot be accepted on the basis of unclear rules. Or, in other words, the more intense the preclusive effect (this intensity is measured by the importance of the procedural right), the more demanding the interpreter must be with the clarity of the rule on which that effect is based. And that clarity necessarily departs from the wording of the law.
This rule aims to prevent the risk of interpretation being disproportionately attributed to the party, entailing the sacrifice of his procedural rights, and unjustifiably relieved to the legislator, who has a duty to be clear in predicting unfavorable effects, especially those that suppress important procedural rights.
III.F. Nevertheless, it is not the case that any interpretative doubt justifies an interpretation favorable to the party. It has to be a serious doubt, namely, related to the lack of clarity of the law and intense deprivation of procedural rights. It is therefore an exceptional situation. If it exists, though, it requires the care of the court.
III.G. Hence, interpreting Article 6-B(5-d) of Law 1-A/2020 as modified by Law 4-B/2021 in terms of comprising the decisions rendered before its entry into force in the exception to the suspension of procedural deadlines causes a restriction of the right to appeal that is not sufficiently foreseeable, which is incompatible with the due process rule of Article 20(4) of the Constitution. Consequently, that is an unconstitutional interpretation.
no. 151/15, 04.03.2015;
no. 616/18, 21.11.2018
October 23rd, 1996, Levages Prestations Services v. France, no. 21920/93; December 19th, 1997, Brualla Gómez de la Torre v. Spain, no. 26737/95; April 5th 2018, Zubac v. Croatia, no. 40160/12; October 23rd, 2018, Arrozpide Sarasola and others v. Spain, no. 65101/16; May 26th, 2020, Gil Sanjuan v. Spain, no. 48297/15.