TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 460/11

22 of October of 2011

Headnotes:

The issue in the normative segment before the Constitutional Court in this case was the prohibition on the intervention of a jury in the judgement of a crime of economic participation in business dealings, a crime of passive corruption involving an unlawful act, and a crime of abuse of power, when committed by a member of an elected local authority body. The Court held that although these types of crime entail legal assets that are especially significant to the functional autonomy, credibility and efficacy of the state’s activities, the question of their being subject to trial by jury must be considered to be included within the legislator’s margin of freedom to determine what falls within the concept of a serious crime that can be brought before a jury. So the fact that the ordinary legislator has decided that juries cannot intervene in such cases does not contradict the applicable constitutional criterion. Even if one were to believe that the possibility of a trial by jury were to reflexively establish both a right on the part of the accused person to be tried by one, as a corollary of the guarantees of his/her defence, and a right on the part of every citizen to participate in the administration of justice, as a dimension of the fundamental right to participate in public life, the fact that the Constitution limits that possibility to the judgement of serious crimes means that prohibiting trial by jury in the judgement of the crimes involved in the present case cannot be seen as a restriction on those rights – a restriction which, were it to exist, would in any event be subject to the requirements imposed on restrictions to the fundamental rights, freedoms and guarantees. The prohibition before the Court thus remains within the limits defined by the Constitutional provision regarding the competence of courts with a jury.

Summary:

The present case involved the constitutionality of a norm contained in a Law which defined crimes that entail special responsibility because they are committed by political officeholders in the exercise of their functions or due to that exercise as autonomous crimes, and determined the applicable sanctions and their effects. The ratio for making these crimes autonomous is the added duty of zeal in the public interest that is incumbent on such citizens.

The concrete norm whose constitutionality or otherwise the Court was called on to determine says that none of the crimes listed in the Law in question can be tried by jury. The accused appealed to the Constitutional Court against a decision in which, citing the norm, the Lisbon Court of Appeal denied his application for a jury trial in such a case.

The Ruling gives a brief history of trial by jury in Portuguese law, including the fact that it was abolished altogether in 1927, and then reinstated following the Revolution of 25 April 1974. The regime governing the availability of trial by jury has been amended a number of times since the original version of the current Constitution was published in 1976, but it has always been limited to cases involving serious crimes. However, the Constitution set an open criterion for the competence of courts with a jury – “the judgment of serious crimes” – and has thus always given the legislator a broad margin within which to decide exactly which crimes it considers serious enough to warrant the possibility of being brought before a jury. Later revisions of the original text have considered cases of terrorism, and most recently, of highly organised crime, to be exceptions to this rule and that they can never be heard by a jury. The text in this regard was most recently amended in the 1997 constitutional revision, and it is under this version of the Constitution of the Portuguese Republic that the legislator adopted the norm whose constitutionality the Court reviewed in the present case. Besides adding highly organised crime to the cases in which jury trials are prohibited, the new constitutional text also introduced the delimiting expression: “In the cases and with the composition laid down by law”. The previous permission of juries: “when the prosecution or the defence so requests”, was replaced by: “particularly when the prosecution or the defence so requests”. As such, not only can the ordinary legislator now freely determine the composition of juries, but it can also make jury trials mandatory in certain cases and, using criteria of reasonability, can choose which serious crimes give the prosecution or the defence the ability to opt for a jury. The only cases in which the ordinary legislator cannot allow jury trials are thus less serious crimes on the one hand, and terrorist and highly organised crimes on the other.

One of the reasons that are thought to have led to the preclusion of jury trials for the crimes that are covered by the law that contains the norm before the Court in the present case is the need to make a clear distinction between the liability of political officeholders on the criminal level and their accountability on the political one.

While there can be no doubt that jury trials are a privileged way for citizens to participate in the administration of justice, the legislator felt that when specific interests are at stake, that participation entails more risks and inconveniences than advantages.

To begin with, this is because, quite apart from any criminal liability for their actions and omissions, under the terms of their political accountability, political officeholders are always bound by the duty to account for their decisions, acts and omissions in the exercise of their positions and for the results thereof. But this political accountability cannot be mistaken for accountability in terms of criminal liability. The danger of confusing one with the other does exist, and is even greater when those who are responsible for the political scrutiny of public officeholders – voters – are also placed in the situation of judging criminal liability. It is thus understandable and justifiable for the legislator to have seen fit to exclude as the people who are called on to judge guilt, those who would find it hard to distance themselves from the (political) judgement which, in a democratic system, they are naturally called on to make in relation to those who govern.

Where crimes that entail special responsibility because they are committed by political officeholders are concerned, there is a clear danger of “contamination” between the plane of political accountability and that of criminal liability; and while that danger is not completely absent in the case of professional judges, who also have pre-existent political views, their legal training, professional experience and specific statutory duties mean that they are not in the same situation as other citizens, and help to ensure their impartiality and lack of bias.

What is more, when it comes to judging crimes in which the accused are political officeholders, one cannot exclude the possibility of problems linked to the pressure that might be brought to bear on jurors in certain circumstances, given the nature of the crimes in question and the political/social importance of their alleged perpetrators. Allowing the possibility of trial by jury in such cases would increase the risk of making justice hard to ensure, due to the pressures to which jurors might be subjected and which an ordinary citizen might find it harder to escape. This prohibition on jury trials is thus also intended to protect citizens who, if they were obliged to serve on a jury hearing this type of crime, could experience dangers to their essential personal and family assets, inasmuch as they would be more exposed to pressures or other forms of danger to their freedom, security and peace – rights that it falls to the state to safeguard.