TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 62/16

3 of February of 2016

Headnotes:

A norm in the Public Security Police’s (PSP) Disciplinary Regulations required that police officers be automatically suspended if they were the object of an indictment order formally charging them with a crime that was punishable by a prison term of more than three years. This norm was found to be unconstitutional.

In an earlier case the Constitutional Court had already considered a norm in the 1984 version of the Disciplinary Statute governing Public Servants and Agents of the Central, Regional and Local Administration, whose terms were identical to those of the norm before it here. The Court found no unconstitutionality on that occasion, saying that the fact that an accused person is presumed to be innocent until their conviction transits in rem judicatam does not always make suspending them from active duty prior to that illegitimate, and that in constitutional terms such a suspension would only be unacceptable if it breached the principle of proportionality, which the Court considered not to be the case if the reason for the suspension was to protect the prestige of the public service, which could be undermined by such an indictment order.

In the present case the Court recognised that the same functional considerations, which it had already said could justify suspending public servants from effective duty, were even more valid with regard to agents and officers of the security services and forces, quite apart from anything else because they possess a particular Constitutional-Law status of their own. The Constitution expressly allows the ordinary law to impose restrictions on some of the constitutional rights, freedoms and guarantees of “full-time military personnel and militarised agents on active service and … agents of the security services and forces”, albeit only to the strict extent required by their specific functions. In addition to this, police officers are not only subject to the general duties applicable to all public-service workers, but are also bound by their own code of ethics and a special disciplinary statute.

In the light of all this the Court considered that it was indeed possible to see the automatic suspension from duty of a PSP officer who was indicted in criminal proceedings as a preventive measure designed to preserve the integrity and prestige of the police force.

However, it went on to say that the question then arose as to the legitimacy of making such a measure an automatic consequence of the indictment order, without weighing up whether it was actually necessary in the concrete case in question. Unlike the situation applicable to public servants in general, as considered by the Court in the earlier case (and which had since been changed), the PSP’s Disciplinary Regulations require that indictment orders against police officers be communicated to the entity with disciplinary competence in relation to them. Basing itself on those same facts, that entity can then bring disciplinary proceedings and impose the preventive suspension of the accused whenever maintaining him/her on active duty would be inappropriate either for the police force, or for the process of determining the truth.

The Court found that even in the light of the dimension of the principle of proportionality that requires measures to be necessary, there was nothing to justify suspending a police officer from duty in the functional interest of the force as the automatic result of a criminal procedural act when, regardless of the continuation of the penal proceedings and the future final decision therein, the Administration is able to order an instrumental preventive measure with exactly the same scope and the capacity to achieve the same general preventive goals.

The Court therefore concluded that the norm before it was unconstitutional as the result of a combined violation of the constitutional principles of proportionality and that accused persons must be presumed innocent until the final sentence convicting them transits in rem judicatam.

Summary:

This concrete review case came before the Constitutional Court when the Public Prosecutors’ Office lodged a mandatory appeal against a decision in which the court a quo refused to apply a norm on the grounds that it was unconstitutional.

The 1984 Disciplinary Statute governing Public Servants and Agents of the Central, Regional and Local Administration contained an identical norm, which had also been present in legislation before that. However, the 2008 Disciplinary Statute governing Public Servants and the disciplinary regime that replaced it, which is now part of the current General Law governing Public Servants (LGT), no longer impose suspension from active duty as an automatic consequence of an indictment order. They instead simply require the Public Prosecutors’ Office to communicate the order to the body, department or service in which the public servant in question works. It is then up to the unit manager with disciplinary competence to assess whether or not it is appropriate to bring disciplinary proceedings, if the facts of the case are relevant in that respect. So under the current disciplinary regime the issue of an indictment order in criminal proceedings – a step which indicates a priori that sufficient evidence of the commission of a crime has been gathered and there is a reasonable probability that the accused person will be the object of a criminal penalty – only justifies notifying the unit to which the accused belongs. If preventive measures are indeed then taken, they may include suspending the accused from active duty.

Under the PSP’s Disciplinary Regulations the scope of such suspensions was different, inasmuch as they effectively constituted a consequence which the law said was automatically derived from a criminal procedural act, irrespective of whether disciplinary proceedings had first been brought, the accused had been heard, or any other form of consideration had been given to whether it was appropriate to remove the accused from his/her normal professional duties.

The Court emphasised that in addition to being dependent on the existence of evidence suggesting the accused was responsible for facts that form part of the commission of a crime, suspension from active duty only occurred when the infraction was punishable by more than three years in prison – i.e. the case had to be especially serious in penal terms. Under the terms of the disciplinary statute governing PSP officers, not all crimes can lead to the imposition of a disciplinary measure which entails expulsion from the force – only commission of a certain type of crime does so. This means that the suspension from active duty provided for in the PSP Disciplinary Regulations cannot be seen as a preventive measure which is inherent in the possible imposition of a penalty of dismissal or compulsory retirement that might be the end result of the process of which the accused’s indictment forms a part. This is not a restriction of rights that implies bringing forward the imposition of a penalty, or any negative ethical/legal judgement about the criminally punishable facts, nor is it an accessory penalty or a consequence linked to being convicted of a crime. Suspension from active duty as the result of the issue of an indictment order is instead a legal effect which, while it is triggered by a mere criminal procedural act, has repercussions for the public employment relationship and therefore represents a legal consequence of a purely disciplinary nature.

It is only following a criminal conviction that a prohibition on continuing to serve as a police officer or a suspension from active duty can be seen as a penal sanction, or the material effect of one. The effect of suspension from active duty as an automatic consequence of the issue of an indictment order is merely disciplinary.

The Court recalled that in the case of public servants, the guarantee that an accused person’s defence will be heard is derived from the constitutional norm which requires that in order to take effect, administrative acts must be notified to the interested parties, and that when they affect rights or interests which are protected by law, they must set out the express grounds for taking them.

In penal matters it is not possible to say that the guarantee that the accused must be heard and have the opportunity to defend him/herself means the whole of the criminal substantive regime should extend to disciplinary proceedings.

The constitutional precept – “Accused persons in proceedings concerning administrative offences or in any proceedings in which sanctions may be imposed are assured the right to be heard and to a defence” – is only relevant on an adjectival level. This means that the imposition of any type of disciplinary sanction without first hearing the accused or giving him/her the opportunity to defend him/herself against the allegations that have been made is unconstitutional.

Having said this, legal doctrine has admitted the possibility that although a literal reading of the principles of the so-called “Criminal Constitution” (the principle that penalties must be provided for by law; the principle that the law cannot be retroactive; the principle that accused persons must benefit from the most favourable applicable law; and the principle of innocence) means that they are confined to the Criminal Law, in essence and by analogy they should also apply to every field in which sanctions are possible. In its past jurisprudence the Constitutional Court had also accepted that the fact that the principle that accused persons must be presumed innocent is applicable in disciplinary proceedings is derived from the right to fair process, and that this is true not only in probatory terms – i.e. that in accordance with the principle of in dubio pro reo, the burden of proving the facts included in the alleged infraction falls on the Administration – but also at the level of the accused’s status, in the sense that it is illegitimate to impose any burden or restriction on the accused’s rights which would represent and effectively constitute his/her conviction before he/she is actually convicted by the courts.

As such, the Court found the norm before it unconstitutional.

Cross-references:

Constitutional Court Rulings nos. 282/86 (21-10-1986); 439/87 (04-11-1987); 123/92 (31-03-1992); 227/92 (17-06-1992); 263/94 (23-03-1994); 161/95 (23-03-1995; 160/04 (17-03-2004); 154/10 (20-04-2010); 180/14 (26-02-2014).

Supreme Administrative Court (STA) Rulings of: 12 May 2005, Case no. 930/04; 4 December 1997, Case no. 36390; 21 May 2008, Case no. 989/07; 21 January 2011, Case no. 1079/09; 14 October 1993, Case no. 31885; and 9 May 1995, Case no. 35837.