TRIBUNAL CONSTITUCIONAL Portugal

CONSTITUTIONAL COURT OF PORTUGAL

RULING N. 653/2022

Headnotes:

I – Facts and context of the proceedings before the Portuguese Constitutional Court

In a criminal investigation process, the Public Prosecutor (PP) decided to subject it to investigation secrecy. The judge of criminal investigation (JCI) validated this decision without granting the defendant the opportunity to take a stand on such validation.

The defendant appealed this decision to the Court of Appeal, claiming that the JCI should have heard him, but the appeal was dismissed. The defendant then appealed to the Constitutional Court.

In order to better understand what is at stake it is important to bear in mind that, in Portugal, the investigation stage of criminal procedure is directed by the PP, which means that the JCI does not investigate. He only decides on matters that contend with fundamental rights (for example, he decides on preventive detention) and validates some procedural acts of the PP, as is the case of subjecting the process to confidentiality of justice.

Summary

II – Question to be examined by the Constitutional Court

The unconstitutionality of Article 86(3) of the Code of Criminal Procedure (CCP) when interpreted in the sense that the defendant doesn’t have to be heard about the validation by the JCI of the decision on investigation secrecy by the PP during the investigation stage.

III – The Constitutional Court’s assessment

III.A. The Court first mentioned the provision of Article 86(1)(2)(3) CCP: 1 – The criminal proceedings are public, except if the law provides otherwise; 2 – The JCI may, at the request of the defendant, the assistant or the offended person and after hearing the PP, determine, by irrevocable order, the subjection of the case to investigation secrecy, during the stage of investigation when he finds that publicity undermines the rights of those subjects; 3 – The PP may determine that investigation secrecy is applied during the investigation stage, if he considers that secrecy is justified by the interests of the investigation or by the rights of the procedural subjects, which must be validated by the JCI within a maximum period of 72 hours.

III.B. In Rulings nos. 234/11,352/11, 372/11 e 412/11, the Constitutional Court (CC) had decided Article 86(3) CPP not to be unconstitutional when requiring the JCI to validate the PP’s decision on investigation secrecy. In Ruling no. 689/19, it decided that Article 215(3)(4) CCP is not unconstitutional if interpreted in the sense that the defendant is not entitled to access all evidence on which the prosecution’s claim about the high complexity of the case is based even if the defendant requires it in order to issue a formal statement. And in Ruling no. 397/21 it decided that Article 215(3)(4) CCP is not unconstitutional, if interpreted in the sense that the defendant does not have to be notified on the specific grounds on which the PP’s claim of high complexity of the case is based.

Those decisions reassert the constitutional relevance of the investigation secrecy. The exception to publicity (including the publicity in relation to the defendant) at the investigative stage is intended to protect the interests of the investigation and has constitutional grounds. The constitutional protection of the investigation secrecy even requires that such secrecy exists whenever publicity can compromise the proper progress of the investigation and its results. The PP is the main procedural subject with the ability to assess such risks. The JCI just validates, the decision is solely from the PP during the investigation stage. It is understandable that the law grants him such decision.

III.D. Article 86(3) CPP does not imply for the defendant an unavoidable, neither absolute nor necessarily lasting absence of information on the case, especially at times when information becomes relevant to him, since, in addition to the limitation by the procedural phase (investigation stage), there are important procedural moments of non-confidentiality, namely: (i) the PP may determine its removal at any time of the inquiry [Article 86(3) CCP]; (ii) in the event that the defendant, the assistant or the offended person requests the lifting of secrecy and the PP does not decide to lift it, the decision shall be of the JCI [Article 86(6) CCP]; (iii) certain information may be provided, even if the case is subject to confidentiality [Article 86(9)(10)(11)(12)(13) CCP]; (iv) even if the case is subject to confidentiality, the defendant may check the case file or elements contained therein, obtain extracts, copies or certificates and also copies of the audio or audiovisual recordings of all statements made, unless the PP reasonably objects, alleging risks to the investigation or to the rights of procedural participants or victims, in which case the decision shall be taken by the JCI [Article 89(1)(2) CCP]; (v) at the end of the maximum duration of the investigation, the defendant may check all the elements of the case file, unless the JCI determines, at the request of the PP, that access to the file will be postponed for a maximum period of three months, which may be extended, only once, in the case of serious crimes and only for the period objectively necessary for the completion of the investigation [Article 89(6)CCP]; (vi) the decision on coercion measures have to be founded on reasons that contain a description of the relevant facts [Article 194(6/b) CCP]; and (vii) those measures cannot be founded on facts or elements of the case which were not communicated to the defendant [Article 194(7) CCP].

III.E. The legislator has to provide solutions that ensure the investigation secrecy when it proves necessary. It´s unreasonable to hear the defendant on this matter, so the legislator decided to subject the PP’s decision to the validation of the JCI. The JCI is impartial, independent and objective. Investigation secrecy won’t hold without his decision.

III.F. Providing for the hearing of the defendant in that exact moment would be difficult to reconcile with the Constitution, taking into account that Basic Law protects and values investigation secrecy. The defendant not being heard about it is balanced by judicial validation and also by the above mentioned (III.D) mitigating provisions.

III.G. Therefore, Article 86(3) of the CCP isn’t unconstitutional when interpreted in the sense that the defendant doesn’t have to be heard about the validation by the JCI of the decision on investigation secrecy by the PP during the investigation stage.

Cross-references:

Constitutional Court:

• no. 121/97, 10.02.1997;

• no. 416/03, 24.09.2003;

• no. 607/03, 05.02.2003;

• no. 234/11, 06.07.2011;

• no. 352/11, 12.07.2011;

• no. 372/11, 13.07.2011;

• no. 412/11, 27.09.2011;

• no. 689/19, 03.12.2019;

• no. 397/21, 07.06.2021

Language

Portuguese