TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 851/2017

20 of December of 2017

Headnotes:

The Constitutional Court found a norm contained in Article 380(1)(b) of the Code of Criminal Procedure (CPP) unconstitutional when interpreted in such a way that, although a court [a quo] upheld a request for the correction of an error it had itself made in the [now] amended ruling, which was not subject to appeal – the error concerned the date on which a crime was committed, which was rectified from after to before the date that was decisive to the inclusion of the respective conviction in the cumulation of crimes and the calculation of the corresponding single cumulated penalty – it refused, however, to lend practical consequences to that correction by reformulating the cumulation.

The Court reached this finding on the grounds that the normative interpretation in question was in breach of Articles 20(1) and (4) (right of access to the law, due process) and 32(1) (right of appeal) of the Constitution.

Summary:

I – In essence, the situation before the Court concerned the operation of the legal practice of ‘cumulating’ multiple crimes committed by an accused and convicted person and determining a single penalty to cover all of them. The error the Supreme Court of Justice (STJ) said it was unable to fully correct was derived from a mistake when the date of the commission of a criminal offence was transcribed. That mistake was made during the process of determining the penalty to be imposed on the accused in a situation in which there was a cumulation of multiple crimes, and led the appeal instance to exclude one crime from the list of offences covered by the single penalty imposed at first instance. This in turn had substantial consequences for the accused when the appeal instance determined the length of the prison sentence imposed on him, because one crime was excluded from the cumulation and the respective prison term would thus only be served once the cumulated term was finished, effectively resulting in more time in prison. The Constitutional Court said that, in the case in question, this outcome had to be seen as unfavourable to the convicted accused person.

II – The mistake regarding the date in question was only effective at the (highest possible) appeal instance – the first-instance decision did contain a typographical error, which, had it been detected, would have constituted a mere erratum whose correction would have added nothing to the certainty of the decision. However, in the ruling that gave rise to the present constitutional appeal, the STJ incorrectly took the transcription of the erroneous date as the basis for considering that there had been a mistake in relation to a fact that was an essential precondition for including the offence in question (case no. 827/11.8PAPVZ) in the cumulation of crimes, and it therefore excluded that crime from the cumulated single penalty. Then, in its ruling of 14 April 2016, the STJ refused the accused’s request to correct the practical consequences of the mistake in the date for the cumulation, using Article 380(1)(b) of the CPP as the basis for considering that it would no longer be within its jurisdictional power to reformulate the decision to exclude the uncumulated prison term from the cumulation, given that this would represent an essential modification of that which had previously been decided – a modification it considered it did not have the power to make.

III – In Ruling no. 89/07 (2007), the Constitutional Court found that the norm contained in Article 380(1) (b) of the CPP was not unconstitutional because in that case there was “an adequate, effective and sufficient alternative means of review allowing for the appreciation of the request to alter the decision.” In the present case, however, there was no such alternative “adequate, effective and sufficient” means of ensuring the correction of the mistake. Indeed, here, the STJ was acting as the instance of last resort and its decision was not open to appeal; additionally, the complaint (technically different from an appeal because it asks for a re-appreciation from the a quo court) against that decision, on the grounds that to uphold it would exceed the court’s jurisdictional power, was refused. Based on these differences, the Constitutional Court considered that the finding of non-unconstitutionality handed down in Ruling no. 89/07 could not be repeated in the present case.

IV – The concrete determination of the extent of a single cumulated penalty by means of the legal cumulation of the individual penalties for each of a number of criminal offences is a decisive element for the accused person, all the more so when the penalties entail the deprivation of personal liberty. As such, the Court had to bear in mind the constitutional law guarantees applicable to the accused’s position with regard to judicial instances – that is, the right of access to the law and to due process set out in Article 20, CRP and the guarantees afforded to accused persons in criminal proceedings, as enshrined in Article 32, CRP – when it weighted up the constitutional conformity of the normative interpretation applied in the STJ ruling. In the appealed ruling, the STJ considered that its powers of examination were limited to the correction of the mistake in the date of commission of a crime, but only in terms of rectifying the text, thus denying the request for the reformulation of its decision with regard to the legal cumulation of the penalties because it considered it was not permitted to do otherwise under the provisions of Article 380(1)(b) of the CPP).

V – The Court said that, inasmuch as the appellant in the present case did not possess any other means by which to bring about the review of the cumulation decision taken at last instance – which the STJ acknowledged was based on a mistake – the STJ’s understanding of the limits on its examination powers, which it deduced from its interpretation of Article 380(1)(b) of the CPP, constituted a violation of the accused’s rights to a defence.

VI – Although the guarantees of defence - as derived from Articles 20 and 32, CRP - do not possess an absolute nature, the Court considered that under the terms of Article 18, CRP the possible reasons which might lead to the limitation of those rights in the case before it did not justify the STJ’s restrictive understanding of its own powers of examination. The need for procedural promptness and to respect the principle of material truth as well the principle of res judicata cited by the STJ were, in this case, deemed less important by the Constitutional Court than the interests of the accused.

VII – As such, the Constitutional Court held that the understanding adopted by the STJ was not in conformity with the principle of due process because it unjustifiably denied protection to the position of the accused person, thereby leaving him/her in a situation in which his/her rights were undefended. It disproportionately and unjustifiably impinged on both the guarantees available to the defence and the right of access to the law and to due process, which, according to Articles 20(1), (4), and 32(1) CRP, underpin the procedural status of an accused person in criminal proceedings.