Portugal / Constitutional Court / 654/2014 TC Unconstitutional nature of the interpretation of Article 302 (2) and (3) in the Code of Criminal Procedure

Key facts of the case:

Judgment 306/2014 passed down by the Constitutional Court overturned the appeal based on the decision made by the criminal investigation judge who sentenced the appellant on the basis of having committed the crimes of aggravated libel and slanderous accusation according to what was contained in and punishable by the Penal Code. In the above-mentioned appeal, the appellant invoked the unconstitutional nature of the interpretation of Article 302 (2) and (3) in the Code of Criminal Procedure that was made by the criminal investigation court. The argument put forward by the Constitutional Court when it rejected the above-mentioned appeal, was that Article 302 was not applicable to the sentence under appeal. This being the case, the Court found that there was no compliance with the demand allowing the appeal to be admitted in conformity with what was laid down in Article 70(1)b) in the Constitutional Court Law , and which the appellant had invoked. The appellant was notified about the judgment that had dismissed his claim in a summary judgment, whereupon he failed to respond in any way. Afterwards, when the judgment had already been handed down in res judicata and after the appellant had been notified that he should either dispute the court costs or undertake to pay them, but which he failed to do, he petitioned the Constitutional Court with what is called a ‘claim’. The petition sought to annul the notification which informed him to either dispute or pay the costs of the court case in which he had been condemned. Furthermore, he had sought a suspension of the court’s decision owing to the fact that he wanted to send the Court of European Justice the written preliminary rulings. The Public Prosecutor was heard and stated namely, that before the above-mentioned judgment had been finalised, the appellant had handed in a criminal indictment against the Vice-President of the Court as the ‘co-author of the judgment’. Despite this fact, when the appellant had been given notification of the summary judgment, he had failed to react when he could have, and indeed should have, as this was no longer the time to do so. Furthermore, as regards the condemnation pertaining to the trial and the judgment which had now become the final, the condemnation is definitive “if no illegality or irregularity when drawing up the court costs had come to light” ("não se vislumbrando, qualquer ilegalidade ou irregularidade na elaboração da conta”). Although there are no arguments raised by the appellant to resend the case to the European Court of Justice in the statement issued by the Constitutional Court Judgment under scrutiny here, nor does he make any mention of Article 47 in the Charter, it is presumed this is so, given the reasoning put forward by the Constitutional Court, that reference to it should have been made.

Paragraphs referring to EU Charter: 

 

As for making a preliminary ruling to be brought before the European Court of Justice (EUCJ) the appellant is not in the right either. Firstly because the Judgement that established the condemnation as regards costs had already been finalised and the power of this Court, which also included the power of bringing preliminary rulings before it, had already elapsed pursuant to the ruling. On the other hand, Article 47 in the European Union Charter of Fundamental Human Rights only applies to Member States when they ‘apply Union law’ (Article 51(1) of the Charter) – which clearly does not happen in the present case. The same thing happens when the Rules of Procedure of the Court of Justice are referred to, which only applies to the EUCJ.

Paragraphs referring to EU Charter (original language): 

 

Quanto à suscitação de questão prejudicial para a sua colocação ao Tribunal de Justiça da União Europeia (TJUE) também não assiste razão ao reclamante. Desde logo porque, tendo transitado em julgado o acórdão que determinou a condenação em custas, esgotou-se já o poder deste Tribunal sobre a questão, onde se inclui o poder de sobre ela colocar questões prejudiciais. Por outro lado, o artigo 47 da Carta dos Direitos Fundamentais da União Europeia apenas se aplica aos Estados-Membros quando estes «apliquem o direito da União» (artigo 51 (1) da Carta) – o que manifestamente não ocorre no presente processo. O mesmo ocorre com a invocação do Regulamento de Processo do Tribunal de Justiça, que apenas se aplica ao TJUE.

Language: 
Portuguese
Deciding body (original language): 
Tribunal Constitucional
Language: 
Portuguese