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Judgment setting case law nº 3/2019: an approach or a separation between Procedural Administrative Offense Law and Criminal Procedural Law?


On 2 July, it was published on Diário da República (the Portuguese official gazette) the Judgment setting case nº 3/2019 issued by the Supreme Court of Justice, which unanimously determined that “in an appeal of an administrative offense proceeding, against the decision of first instance, the appellant may raise questions which he did not claim in the appeal against the decision of the administrative authority”.

This decision thus solves an issue which has been subject of different judgments by the Courts of Appeal, and that directly interfered with the rights and guarantees of the Defendant in administrative offense proceedings.

Considering article 75 of the General Regime of Offenses, which provides that the Court of Appeal is not limited to the “terms and meaning” of the decision of the Court of First Instance, there is no doubt that - as set in this decision - the questions which were not raised by the Defendant shall be considered.

At first sight, this possibility appears to be specific to the procedural regime applicable to the administrative offenses covered by the General Regime of Offenses and even contrary to the rules of criminal law in this area, which has led some courts to decide that they are inadmissible.

Although framed by identical procedural principles, the structure of the procedural administrative offense lawis not similar to criminal law procedural. Indeed, and as this decision correctly explains, it is in light of the “simultaneous remoteness and proximity” between these branches of law that the issue must be considered: the first time that a court considers the administrative decision is in the judicial challenge, which means that the challenge is not a real appeal, and the decision on it is the first decision at first instance. Thus, this Court has full powers that cover the whole merits of the question, and the question to be decided by the Court of Appeal cannot be classified as a “new question”. In fact, with their respective specificities, this is the case with the criminal appeal for the Court of Appeal or the direct appeal of a criminal decision at first instance to the Supreme Court of Justice, limited to law questions, as in the case of administrative offenses. In the latter case, it is only at this moment “that legal questions can be raised for the first time based on crystallized facts or allege the irregularities set in article 410, n. 2 of the Criminal Procedural Code, being irrelevant any concept of new question considering the range of knowledge imposed by article 410, n.1 of the Criminal Procedural Code”.

Thus, this decision only clarifies what already results from the applicable procedural rules, if interpreted in accordance with the principles applicable to both criminal law and administrative offence law, while respecting the proper structure of each of these branches of law.

It is possible to say considering these two branches of law that are intrinsically linked, only thus truly respecting the rights of the Defendants: “it is more what unites than what separates us”!


Cláudia Amorim

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