TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 397/12

28 of August of 2012

Headnotes:

Norms which (a) prohibited selling or in any way making available any substances with a natural or synthetic origin in any physical state that have, or any product, plant, mushroom or part thereof containing one or more substances that have, a direct or indirect action on the central nervous system, without being specifically indicated for human use and whose manufacture or introduction into any trading circuit is not regulated by specific provisions, and (b) created an administrative offence and a police power (closure of spaces where the substances were available) regarding those substances, were materially unconstitutional because they violated the principle of the democratic state based on the rule of law.

The definition contained in the norms was so broad and generic and encompassed such a wide spectrum of substances, some of which are in generalised current use, that it did not allow the people at whom the legislation was targeted to know effectively which substances they were actually prohibited from selling and making available. It meant that those people were unable to autonomously judge what they could and could not do, because they did not have sufficient knowledge of either the leeway they were permitted in their actions, or how the state was going to react to their behaviour.

In the concrete case before the Constitutional Court, determining whether the norms complied with the applicable constitutional requirements first involved characterising the realities in question. This primarily concerned the definition of “psychoactive substances” and “substances with a direct action on the central nervous system”. The norms’ generic definition of the substances whose consumption they sought to prevent as substances that cause “irreversible damage to the physical and mental health of an individual” did not make it possible to restrict their scope to that specific category of substances. The fact is that this definition extends to the broad universe of every lawful substance that has any kind of effect on the central nervous system, regardless of the nature of that effect or how insignificant it may be.

Although one cannot say that requirements based on typicity apply with the same degree of rigour in the law governing mere administrative offences as they do in criminal law – a mere social administrative offence is sanctioned with a fine, which has repercussions in terms of a reduction in the offender’s net worth – nonetheless here too one must respect the principles that apply in a democratic state based on the rule of law, such as those of legal security and the protection of trust. Constitutional-law theory accepts that, as an important restriction on fundamental rights, public law which imposes sanctions is bound by the essence of the guarantees which the Constitution explicitly imposes on the criminal law as a whole – i.e. the core guarantees which mean that citizens can rely on security, certainty, trust and predictability with regard to the law. When failure to comply with the content of a prohibition is sanctioned by a fine, the determinability of the content of that prohibition is a precondition for the existence of a balanced relationship between the citizen and the state, and is a factor in guaranteeing the protection of trust and legal security.

Given that the legal prohibition in an administrative offence considers forms of conduct with a tenuous axiological relevance to be unlawful, the law must necessarily formulate the content of the prohibition in such a way as to make it explicitly clear to its intended audience.

Summary:

The present case involved a prior review of the constitutionality of norms contained in a Decree of the Legislative Assembly of the Madeira Autonomous Region (RAM) that “approved norms for the protection of citizens and measures for the reduction of the offer of ‘legal drugs’ ”. The case was brought before the Constitutional Court by the Representative of the Republic for the Madeira Autonomous Region.

In the last few decades, society has witnessed the multiplication of new psychoactive substances known as ‘legal highs’ – a term that encompasses a vast category of unregulated psychoactive compounds – and products that contain them. Concerned at the proliferation in the RAM of establishments that freely sell substances which, in its view, are capable of causing irreversible harm to the physical and mental health of consumers and thus constitute a danger to public health, the regional legislator sought to limit the accessibility of such substances in the Region by passing the legislative act in question and thus creating a mere social administrative-offence regime. To this end the legislation prohibited selling psychoactive substances that are not specifically controlled by dedicated legislation, as well as making them available in any way. It identified these substances by establishing a positive formulation that covered any origin, state, form or product in which they occur or of which they are a part, and it indicated the functional human bodily system in which they act (“a direct or indirect action on the central nervous system”). In doing the latter, the legislator sought to simultaneously delimit the spectrum of the definition by using two negative elements (“without being specifically indicated for human use” and “whose manufacture or introduction into any trading circuit is not regulated by specific provisions”). While the second of these two elements was intended to give the prohibition a residual nature, so that it only operated with regard to substances whose manufacture or sale was not regulated by existing legislation, the first is hard to interpret. The fact is that it is not possible to say whether the specific indication “for human use” results from a substance’s labelling, from a description made by an entity that is qualified to do so, or from simple social usage.

The Decree defined the concept of “psychoactive substances” as “substances with a direct action on the central nervous system”. According to the WHO, a “psychoactive substance” is defined in accordance with its effects on the central nervous system. This concept includes every natural or synthetic substance with the ability to alter consciousness, mood or thoughts – a vast range of effects with widely differing manifestations.

The legislative act before the Court concretely specified the prohibited forms of conduct with regard to such substances by typifying the act of announcing, publicising, selling or transmitting them in any way as an administrative offence.

It set limits on the fines for the administrative offence it typified in this way, and allowed those fines to be accompanied by the simultaneous accessory sanction of prohibition of the exercise of the relevant profession or activity, without any limits. In addition, it ordered the Regional Inspectorate of Economic Activities (IRAE) to close all spaces in which such substances were made available.

On the subject of the possible organic unconstitutionality of the norms before it (the Autonomous Regions do not possess the competence to legislate on criminal unlawful acts; and can only define unlawful acts that constitute mere social administrative offences, failing which they would be in breach of the Assembly of the Republic’s exclusive competence to legislate on the general regime governing such unlawful acts), the Constitutional Court recalled that it is necessary to bear in mind that the choice between sanctioning a certain form of conduct by making it a criminal unlawful act or by making it an unlawful act that merely constitutes an administrative offence, with a view to protecting a given legal asset, is a decision that lies within the legislator’s power of discretion. In taking that decision, the legislator must respect the constitutional-law axiological order; and the fact is that, except in cases in which the Constitution expressly requires the criminalisation of certain acts, the criminal law must only act when the need to protect requires it to do so. For there to be a finding of unconstitutionality in a prior review case, it must be possible, on the basis of the constitutional axiological order, to individualise forms of conduct that undeniably either come under the criminal law or come under the law governing mere social administrative offences, and for the legislator to have made a manifestly inappropriate choice between the two.

The Regional Decree in question came under the heading of the general protection of the legal asset ‘public health’. Within the domain encompassed by the general protection of this legal asset, making substances that are harmful to human health available and publicising them is a form of behaviour which the Portuguese legal order very often classes as entailing a danger of causing harm to the asset public health.

The Court recalled that at the national level, forms of behaviour linked to other substances that are also psychoactive and are epidemiologically prevalent around the world (alcohol, and substances that are present in tobacco) can be included among the unlawful acts that are considered to be administrative offences. The choice between resorting to the criminal law or the law governing administrative offences must depend on the type of substance whose consumption one is seeking to prevent, and must bear in mind not only the degree of damage it causes to human health, but also the extent to which society accepts that consumption.

Inasmuch as what was at stake was the imposition of sanctions on a form of behaviour solely because of its typical danger to a given legal asset, although it would be possible for the criminal law to intervene, this would be exceptional and would require that some demanding requisites be fulfilled. For these reasons the Court was of the view that it would be difficult to say that it was in the presence of forms of conduct which, in the light of the constitutional axiological order, indubitably come under the criminal law.

It is thus important to recognise that, in the exercise of its political/administrative autonomy, and notwithstanding the fact that it is not permitted to define criminal policy by creating types of crime, the regional legislator is entitled to intervene on the administrative-offence level to attempt to dissuade people from forms of conduct that constitute a danger to human health. The regional legislator may particularly do this by developing regional policies designed to promote and protect public health. The Court therefore held that the norms before it were not organically unconstitutional.

However, the fact that the norms violated the principle of the democratic state based on the rule of law led the Court to declare their material unconstitutionality.

One Justice dissented from the decision. She was of the view that the norms were based on a given (technical/scientific) concept – that of ‘psychoactive substance – and that the delimitation they established made it possible to objectively determine the form of behaviour they considered to be an administrative offence. As such, she considered that the typicity-based requirements at the mere social administrative-offence level were met.

Supplementary information:

The Ruling considers these questions in the light of European Union law and a number of international documents (particularly from the World Health Organisation, the European Monitoring Centre for Drugs and Drug Addiction, and Europol), and makes comparisons with the solutions proposed therein.

Cross-references:

Rulings nos. 41/2004 (14-01-2004), and 336/08 (19-06-2008),