Saudade of the constitution: The relationship between constitutional and criminal law in the European context

1. When we look at the recent developments of the criminal law from the point of view of constitutional principles, we might experience what the Portuguese call saudade. This feeling cannot be expressed in any other language; it is a mood, or maybe a state of mind, somewhere in between sorrow and melancholy. In the present instance, the feeling of saudade comes from the little success of fundamental rights in real life, aside from scholarly works on criminal law, when it comes to stopping the wave of massive use of criminal law that we now have to confront.

Criminal law scholars of our generation, at least in countries such as Spain, Italy, Portugal or Germany, grew up thinking that the Constitution and constitutional courts were going to be a strong weapon against legislative irrationality. In particular, we all had great expectations in the proportionality principle. As the German Constitutional Court stated the principle in its famous Apotheken Urteil, ¹ proportionality comprised the foundations of the Enlightenment regarding criminal law. Suitability/adequacy allowed for adding to the proportionality principle the need to protect legal interests, the ofensività principle put forward in Italy, and the Anglo-Saxon harm principle. There is definitely a need for the ultima ratio principle in criminal law, since it forces legislative bodies to seek different alternatives. Proportionality stricto sensu was tied to the partial scope of criminal law, insofar as it is only legitimate to react against particularly harmful conduct. ²

This is not just a theoretical construct. The Spanish and German Constitutional Courts have expressly laid down this principle of proportionality, alongside certain South American courts, like the Colombian Constitutional Court. ³ However, having regard to the potential of this principle, the case law is rather disappointing. There have been many more losses than wins.

In Spain, the only provision that has been declared unconstitutional on grounds of a lack of proportionality was no longer in force when the judgment was delivered. ⁴ Although it has stressed that criminal law provisions must be subject to a particularly stringent judicial review, the German Constitutional Court has barely performed any review, especially when it comes to examining the constitutional conformity of the conduct norms. The judgment regarding the offence of incest is good evidence of this claim, as well as the judgment on possession of cannabis for self-consumption. ⁵ In France, the Conseil constitutionnel has also been very permissive. ⁶ In this regard, English case law seems much more realistic, namely their so-called Wednesbury reasonableness test: legislative bodies can only be subject to judicial review in case of blatantly wrong decisions. The Italian Constitutional Court has been a little more aggressive. Nevertheless, it has applied the principle mainly as an interpretative guideline for criminal offences. ⁷

2. We can be a little more optimistic thanks to the case law of supranational courts, but let us not get too excited. The European Court of Human Rights (ECtHR) has applied the proportionality principle as it is ‘necessary in a democratic society’. Its case law is bittersweet, due to the massive and sometimes inexplicable application of the ‘scope for national discretion’, which leads the Court to be very permissive or condescending when examining criminal offences that have to do with moral stances (sex-related crimes). The ECtHR actually considers that punishing homosexual relationships between adults is in breach of the Convention, but this conclusion should be self-evident. ⁸ We could never stand Europe if homosexuality was punished, just like we could not live in Europe if there was a death penalty. Aside from this case, the decisions delivered by the Court have been disappointing: in addition to having acknowledged the legitimacy of criminalizing incest, ⁹ it is worth noting its decision upholding the punishment of sado-masochistic practices between adults. ¹⁰ This permissiveness is in stark contrast with its stricter stance regarding the protection of freedom of speech, as evidenced by the Kokkinakis case and the crime of proselytism, ¹¹ the case involving Holocaust denial ¹² or the offences against constitutional symbols. ¹³ Equally striking is the Court’s tolerance regarding indeterminate or long prison sentences, which affect the proportionality of punishment. ¹⁴

The Court of Justice of the European Union (CJEU) has firmly applied the proportionality principle many times. ¹⁵ It has done so concerning criminal law provisions which fall far from the scope of morality. In most cases, these were rules on ancillary criminal law, Nebenstraftrecht, which punished very specific violations; for instance, food law violations. ¹⁶ However, when delivering these judgments, the CJEU was not concerned with preserving the foundations of criminal law. Rather, it did not want any State to jeopardize the construction process of the internal market and basic freedoms. It remains to be seen how permissive it will be towards criminal law provisions when the CJEU begins to act more like a constitutional court protecting fundamental rights, instead of a court safeguarding the EU construction process and, above all, seeking to set the boundaries of a European criminal law framework in compliance with the rule of law. ¹⁷ So far, the Court has been very bold, for the aforementioned reasons, when it comes to assessing whether foreign rules are in compliance with fundamental rights (see, for instance, El Dridi ¹⁸ and Urban ¹⁹ ). Nevertheless, it is much more cautious regarding its own provisions. ²⁰

3. At this point, we must decide whether we should continue to rely on the proportionality principle or rather find other foundations to ground the constitutional review of the criminal law. Moreover, the latter option would entail providing the core principles of the criminal law with an autonomous constitutional foundation not subject to the proportionality test.

3.1. It is submitted that the proportionality principle should still have a prominent role. Accordingly, we must focus on the notion of ‘permissiveness’ or ‘deference’ in order to set some boundaries thereon. ²¹ The underlying idea that judges must be somewhat permissive or condescending vis-à-vis legislative bodies is laid on various foundations. First, legislative bodies represent the people, and that endows them with a certain degree of scope for discretion or appreciation. Second, it is worth noting, particularly regarding the ECtHR, that the national legislator is better placed than the European judge to assess the need of the relevant measure, since the latter is closer to the issue. The third foundation concerns the lack of empirical data confirming the effectiveness of criminal law provisions. ²²

Whereas the first two grounds seem appropriate, the third one is unreasonable. The lack of empirical basis is not really something unavoidable. Rather, it is a serious flaw of law-making processes, and it results from the lack of any assessment of the empirical impact of criminal law provisions. When the European Criminal Policy Initiative drafted the First Manifesto on the principles of European criminal law, we highlighted the importance of the obligation incumbent upon the legislator to ground any criminal law provision. ²³ We requested the legislator to justify the legal interest that is meant to be protected, why the forbidden conduct has a negative impact, and, finally, why is it necessary to use the criminal law to meet the goal that is being pursued. ²⁴

When the legislator breaches this obligation, judicial authorities who are in charge of safeguarding the Constitution should no longer be permissive. Neither have legislative bodies shown a deep knowledge of the issue nor should the representation of citizens be interpreted as a ‘free pass’ to do as they please. Self-evidently, it is likely that when passing a criminal law provision there are not enough available empirical data regarding its effectiveness. However, in this case, constitutional courts should require a constant assessment in order to legitimize these provisions before the constitution. This would amount to a iuris tantum presumption of constitutionality. Therefore, a new kind of constitutional judgments should be created. These rulings would have to make the constitutionality of the provisions dependent on the supply of data regarding their effectiveness within a given time period. In sum, permissiveness should be limited to those cases where, in spite of the significant effort by the legislator to ground the suitability and the need for a criminal law provision, it is unable to provide conclusive empirical data.

3.2. Secondly, in addition to furthering the proportionality principle, we should focus on providing autonomy to certain basic principles of criminal law. ²⁵

A good example of the positive outcome that could be expected from disconnecting criminal law principles from the proportionality principle can be found in the ne bis in idem principle. As is well-known in EU law, there are two different versions of this principle. In the context of punitive EU competition law, the CJEU set out the ne bis in idem principle based on the proportionality principle as a result of the Walt Wilheim case. Also, this judgment allows for a second procedure and the imposition of a second penalty, provided that the addition of both penalties is not unreasonable (disproportionate). As can be seen, a ne bis in idem principle solely based on the notion of proportionality is an extremely weak judicial review instrument. The CJEU case law on the Schengen Convention, rendering the principle autonomous and based on new foundations such as European citizenship, has obtained results that would have never been reached based on the proportionality principle approach.

The principle of proportionality of penalties could also become independent from the (general) proportionality principle. ²⁶ In fact, EU law is encouraging this independence. If this principle was not independent, Article 49(3) of the Charter would be a mere specification of Article 53. The role to be played by the principle of proportionality of penalties differs from the role of the proportionality principle. Its main purpose is to ensure that the penalty reflects the seriousness of the punishable conduct and the offender’s guilt. Therefore, the principle requires that there must not be any fixed penalties, as the CJEU has rightly pointed out in the Urban case. It also requires that when assessing the penalty the seriousness of the conduct should be a red line for considerations regarding the offender’s personality. On the basis of these ideas, there should be no room for lifelong sentences, since they are fixed penalties, and when they are indeed flexible penalties their duration depends on the potential threat posed by the offender, and not on the seriousness of the offence.

The most significant challenge in the future should be to provide autonomy to the legal interest protection principle. The proportionality principle yields no return whatsoever. Any goal that could have a place in democratic societies is able to fulfil this part of the proportionality test. Empowering the legislator with such a degree of discretion when setting the goals to be achieved is probably outside of the scope of criminal law. However, it renders ineffective the legal interest protection principle. At this point, if all ends are legitimate (for instance, preventing double parking), it is always easy to justify the suitability and the need of any criminal law measure. ²⁷

In fact, the constitutional theory on fundamental rights is ambivalent towards criminal law. On the one hand, as evidenced by ECtHR case law, it amounts to a negative boundary. No norm criminalizing the exercise of a given fundamental right can be established. To this end, constructs such as the ‘chilling effect’ help to avoid criminal offences that entail a risk for freedom of speech or freedom of demonstration. In any event, this boundary is somewhat soft. In Spain, we have recently witnessed a wave of criminal proceedings concerning hate crimes and specific terrorism offences against individuals who are merely exercising their right to freedom of speech, for instance, by telling jokes. ²⁸

On the other hand, and hence the ambivalence, fundamental rights entail an expansive force for criminal law. ²⁹ This expansive force is mainly shown in the CJEU case law when it calls for the effective protection of fundamental rights enshrined in the Convention by means of criminal law. In other words, the constitutional theory on fundamental rights has ultimately reduced the scope for discretion of legislative bodies in order to require such legislative bodies to increase the use of criminal law. This is blatantly against the notion of ultima ratio. The Söderman judgment by the ECtHR provides a good example. ³⁰ The Court considered that Sweden had breached the Convention because there was no criminal offence punishing surreptitious photographs by the stepfather of a 14-year old girl in the bathroom. The right to privacy in this case required the application of criminal law. In the Court’s legal reasoning, there is no mention of the ‘scope for discretion’ doctrine when it comes to protecting an individual right. This is in stark contradiction with its doctrine on proportionality and limitation of criminal law within a democratic society.