TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 278/11

7 of June of 2011

Headnotes:

The exercise of sanctionary powers by the Public Administration does not violate the constitutionally established principle of the separation of powers, on condition that the exercise can be the object of jurisdictional control, even if the latter takes place after the administrative sanction is imposed.

Summary:

The appellant was an enterprise in the field of the industrial extraction and transformation of natural stone. It alleged that norms in a legal act which laid down the regime governing the prevention and control of polluting atmospheric emissions, with a view to protecting air quality, were unconstitutional. It argued that there was a violation of the principle of the separation of powers, of the guarantees of a defence in proceedings regarding administrative offences, and of the principles of equality, proportionality, justice, impartiality and good faith, by which the Administration is bound to abide when it exercises its functions. The appellant said that this violation was due to the fact that the executive law in question combined powers to bring proceedings for administrative offences, investigate the facts in them and decide to impose fines for the commission of unlawful acts, all in the hands of the same entity – the Inspectorate-General of the Environment (IGA) – while simultaneously making that entity one of the beneficiaries of those very fines.

The Constitutional Court emphasised that the constitutional provisions regarding the guarantees pertaining to both citizens and legal persons in criminal proceedings apply unequivocally not only to Penal Law, but also to other branches of the Public Law that possess a punitive nature.

In the Law governing Administrative Offences, the legislator made a distinction between an administrative phase, which is designed to assess whether an unlawful act has been committed, and a jurisdictional phase, whose purpose is to ensure the jurisdictionalised control of the decision whether to impose sanctions.

But, although the existence of a sanction for an administrative offence is intended to ensure both the general and the special prevention of the commission of illegal acts, it is targeted at facts that do not embody a legal injury that would be significant enough to justify their criminalisation. This is why the legislator entrusted the Public Administration itself with powers to examine such acts, and to sanction them in the event of an infraction. This represents the exercise of the administrative function of executing normative commands adopted by the organs with the competence to monitor and pursue the public interest.

Because there is no invasion of the essential core of the jurisdictional function, there is no violation of the principle of the separation of powers. The Constitution charges the courts with defending citizens’ legally protected rights and interests, repressing breaches of democratic legality and deciding conflicts, but this does not preclude the grant of powers to impose sanctions – powers that can be described as ‘para-jurisdictional’ – to administrative entities, on condition that the sanctions are not criminal and do not entail any deprivation of personal freedom. Besides having to respect these limits, as is the case in other proceedings for administrative offences, the Inspectorate-General of the Environment’s decisions to impose sanctions can be challenged before the courts. The present appeal on the grounds of alleged unconstitutionality resulted precisely from a jurisdictional process in which the appellant was able to submit the administrative decision to impose a fine to a jurisdictionalised control.

Turning to the circumstance that the administrative entity which imposes the fine benefits – albeit only partially – from the resulting funds, the Constitutional Court considered that what might have been at stake here was a possible violation of principles and norms with an infraconstitutional source – one that could have caused the invalidity of the administrative decision to impose the sanction.

The purpose of sanctions for administrative offences is to prevent new infractions and to motivate administered persons and other entities to comply with the law; the respective fines cannot be used as a means of funding the Public Administration itself, because this would mean that there was a misuse of power in the administrative decision to impose the sanction. If the appellant had demonstrated before the courts a quo that the administrative decision to sanction it had been taken in breach of the duties of impartiality and with a view to pursuing a public interest other than that sought by the law, it could have prevented the administrative decision from taking effect simply by invoking those grounds for the decision’s invalidity.

In the case before it, the Court said that the legislative option with regard to the destination of the funds from the fines had to be assessed in the light of a weighing up of the various contradictory interests in play. The Constitution requires the Public Administration to ensure both respect for the principles of equality, proportionality, justice, impartiality and good faith and accused persons’ rights to be heard and to a defence in administrative-offence proceedings; but the CRP also guarantees the fundamental right of every citizen to a life environment that is human, healthy and ecologically balanced. It is therefore justified that part of the funds from fines paid by those who endanger or damage that environment revert to an administrative entity which is tasked with preventing and preserving that very environmental quality, subject to the requirement that the decisions to impose sanctions are designed solely to pursue the public interest in maintaining a healthy environment and never merely to provide revenue for the entity in question.

Cross-references:

See Ruling no. 161/90 (22-05-1990).