TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 359/11

12 of July of 2011

Headnotes:

An interpretation of a Code of Criminal Procedure norm such that it contains an absolute prohibition on the making of declarations in trial hearings by offended parties who are civil parties to the proceedings and are disqualified by psychological anomalies is unconstitutional. The circumstance that a person who suffers from a psychological anomaly and is the victim of a crime has also been the object of a judicial order depriving him/her of the capacity to exercise civil rights, including the right to bear witness (known as ‘interdiction’), cannot serve as grounds for depriving him/her of rights to intervene in criminal proceedings. The purpose of such an order is to protect people whose physical or psychological anomalies render them incapable of managing themselves or their property. To prohibit a person in this situation from intervening in judicial proceedings in which they were the victim would be to further reduce their protection, which would be paradoxical in that they would have been subjected to this regime by a court decision whose objective was precisely to ensure their protection. The limitation on giving evidence that results from the norm before the Court was disproportionate, inasmuch as it unjustifiably sacrificed both the right to the evidence and the right to proceedings that are designed to achieve material justice.

Summary:

The guardian representing a citizen who was deprived of the capacity to exercise rights due to a psychological anomaly made his ward a civil party in criminal proceedings brought by the Public Prosecutors’ Office, in which the ward was the victim. The accused person was found not guilty of the crime at first instance, and the civil party appealed to the Lisbon Court of Appeal. The latter declined to apply the Code of Criminal Procedure norm regarding the incompetence to make statements of persons who have been disqualified due to psychological anomalies, when interpreted as an absolute prohibition, on the grounds that the norm was unconstitutional, and ordered that the first-instance hearing be reopened in order to hear the civil party’s declarations. Although the Public Prosecutors’ Office itself supported the view that the norm was unconstitutional, it then lodged the present appeal before the Constitutional Court, as it is obliged to do whenever a court refuses to apply a norm on the grounds of its unconstitutionality. The object of the present appeal was thus the matter of the prohibition of evidence in criminal proceedings, and specifically of declarations made by an offended party who has constituted him/herself a civil party to the case, but is disqualified as the result of a psychological anomaly.

The absolute ban in Portuguese law that prohibits disqualified (‘interdicted’) persons from making statements and bearing witness dates from 1929. It has been criticised from day one, because this form of disqualification is an ‘institute’ that was designed to protect the disqualified person, whereas the prohibition on their making statements in judicial proceedings not only sought to protect the parties and the administration of justice, but also failed to consider whether or not a person’s specific type or degree of mental illness actually precluded them from making statements.

The Portuguese criminal procedural system gives the victim a significant role in the exercise of penal justice. It offers him/her the opportunity to actively intervene in the proceedings, albeit to this end he/she must become a civil party, whereupon he/she is considered to be a true procedural subject. Offended parties have both the right and the duty to make declarations on the object of the proceedings. Although such declarations are not made under oath, they are subject to a duty of truth, breach of which incurs criminal liability, and the judge is free to lend credence to them or not.

The option to make use of civil sentences under which a person is deprived of the capacity to exercise rights, including that of bearing witness, as the standard for their disqualification on the grounds of psychological anomaly was intended to achieve greater certainty as to the universe of persons deemed incapable of making declarations in criminal proceedings, and to prevent the judge from making this decision on a case-by-case basis. The system retains a degree of free judgement in determining the mental aptitude of any person who is not actually disqualified (‘interdicted’) from making declarations. The logic behind this solution is that a judicial declaration of ‘interdiction’ (generalised deprivation of the capacity to exercise rights) reflects a judgement that the person concerned is incapable of helping in any way to clarify whether the facts before the court are true.

In Portuguese law, ‘interdiction’ seeks to protect those persons who suffer from disabilities of a kind which means that they do not meet the legal standard for normality – a position that justifies a special protection. Our legal system provides for various special protection regimes and their causes. In the case of ‘interdiction’ the limitations on the capacity to enjoy and exercise rights are more substantial when the measure is due to a psychological anomaly than when there are other reasons for it. The disqualified person’s incapacity is set by law and does not vary from one ‘interdiction’ sentence to another; in principle it is fixed and partial ‘interdictions’ are not possible. However, the duration of incapacity due to ‘interdiction’ is not necessarily unlimited, inasmuch as while the causes that lead to its imposition are permanent, they are not necessarily incurable. The law thus admits the possibility that an ‘interdiction’ may end, but subjects this to a judicial decision, just as the situation in which the person is officially declared incapable can only come about in the first place as the result of a judicial decision. The incapacity of persons who are disqualified due to a psychological anomaly to provide for their personal interests serves as the final requisite when the court comes to determine the need to impose an ‘interdiction’ order. This is a legal judgement and not a medical one. When a person’s incapacity to govern themselves and their property is gauged, importance is attached to a hierarchical weighing up of the need for protection on the one hand and the obligation to respect the concrete subject’s freedom on the other; the degree of incapacity of a person who may become the object of the ‘interdiction’ order is therefore assessed in strictly individual terms.

Given that incapacity must be measured with regard to multiple aspects of the person’s life, and the fact that the decision to ‘interdict’ has fixed effects that are laid down by law, the final judgement must necessarily be an overall one.

In the decision that was the object of the present appeal, the Lisbon Court of Appeal considered that the interpretation in question violated the principle of equality because it led to a discriminatory treatment of persons who are disqualified due to a psychological anomaly.

The scope of the protection afforded by the principle of equality encompasses the dimension of the prohibition on discrimination, and no differentiations between the ways in which citizens are treated that are made on the basis, or because, of merely subjective categories are legitimate.

With regard to citizens who suffer from physical or mental disabilities, the Constitution enshrines a specific duty of equality and stipulates that they cannot be derived of the possession or exercise of the rights that are attributed to citizens in general, save when their disability deprives them of the capacity required for the rights in question. This means that any restriction on the rights of citizens with disabilities is subject to control based on the principle of proportionality.

The Constitutional Court held that inasmuch as the norm before it absolutely prevented persons who had been disqualified from making declarations at trial hearings in criminal proceedings, in the role of offended parties who have been made civil parties to those proceedings, it created a stereotype linked to the figure of a ‘person disqualified due to a psychological anomaly’, thereby causing their situation to lead to a kind of inescapable presumption of an incapacity to recount the facts of which they have been the victims.

This prohibition not only results in an unequal treatment compared to that afforded to citizens who do not suffer from any psychological anomaly, but also with regard to that given to citizens who, although they do suffer from such a disability, are not disqualified by a judicial sentence.

The Court also found that in addition to violating the principle of equality, the norm in question was also in breach of the right to fair process. The latter precludes the legislator from creating obstacles which make it difficult to exercise, or which arbitrarily or disproportionately prejudice, the right of access to the courts and to an effective jurisdictional protection.

The Constitutional Court therefore held that the norm before it, when interpreted in the manner described above, was unconstitutional.

Supplementary information:

The Court further supported the solution it adopted in the Ruling by referring to the fact that Portugal is bound by the Convention on the Rights of Persons with Disabilities (New York, 2007, ratified by Portugal in 2009).