TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 611/16

15 of November of 2016

Headnotes:

The Constitutional Court found that a norm included in the Public Security Police Disciplinary Regulations (RDPSP) which substituted the penalty of loss of the right to a pension for three years in the case of retired officers for that of compulsory retirement, which would have applied if those officers had still been on active duty, was unconstitutional.

The Court considered the fact that the measure implied the total elimination of the pension for a significant period of time meant that it went beyond the strictly pecuniary nature of a disciplinary penalty and affected the conditions the former police officer needed in order to subsist, depriving him for a lengthy period of the payment that was supposed to replace his work income after his retirement. That elimination did not occur within the framework of the officer’s former working relationship, but within the scope of his new legal social-security retirement relationship, which is based on a contributory principle underlain by the assumption that there is a direct correlation between the right to pension payments and the obligation to contribute.

If a measure of this type takes no account of how much of the accused person’s pension is ordered to be lost and entirely fails to weigh up the possible effect on his/her basic living conditions, it undermines fulfilment of the principle of proportionality; whereas, for example, even if it meant lengthening the duration of the penalty in order to diminish the accused’s assets by the same total amount, a legislative solution that preserved a minimum income intended to ensure a decent standard of living would achieve the goals of retributive punishment and general prevention with the same degree of efficacy, but without endangering the right to subsistence.

The Court rejected the argument that the measure posed no danger to the right to a decent standard of living because the former officer would be able to apply for material social-security benefits designed to deal with hardship situations as part of the welfare system. It said that removing a benefit whose purpose is to replace the income previously earned by work and which is covered by a compulsory, contributory welfare system and is funded by transfers from the State Budget, without any kind of weighing up of the possible negative consequences for the life of the persons concerned, was illogical and senseless.

The existence of welfarist mechanisms within the overall framework of a social security system was not sufficient in itself to avert the unnecessary and excessive nature of a legislative measure which was capable of creating situations of hardship and material insecurity that would then have to be remedied by those other forms of material assistance.

Summary:

The Public Prosecutor’s Office is required by law to appeal to the Constitutional Court whenever another court refuses to apply a norm on the grounds that it is unconstitutional. The present concrete review arose in such a case.

In its earlier case law, the Constitutional Court had already addressed the question of the unconstitutionality of norms under which retired public servants can lose the right to their pension, instead of being subject to disciplinary penalties applicable to those who are still working or on active duty. Notwithstanding dissenting opinions in one of those rulings, until 2014 none of them had ever entailed a finding of unconstitutionality. In that year, the Court took the opposite position in relation to part of an RDPSP norm under which retired public servants and officers could completely lose their right to a pension for four years, instead of being subjected to the penalty of dismissal from the service that would have applied to them if they had still been on active duty. The Court found that provision unconstitutional.

In those earlier cases, the Court had focused on a different issue in order to reach the conclusion that it was not unconstitutional to deprive retired public servants of their pension because they have committed a disciplinary infraction. In them, it found no unconstitutionality in the part of the regime governing the attachment of social security benefits whereby the amount needed to guarantee the pensioner’s minimally dignified subsistence cannot be attached, whereas once that minimum is assured, attachment over and above it is constitutionally permissible. In the case of disciplinary penalties, the retirement pension is not affected by an act of attachment designed to coercively fulfil a credit right which the debtor has not satisfied voluntarily, but is instead removed in the form of a disciplinary penalty with retributive and general preventative aims which could be definitively prejudiced if one were to exempt retired officers from any penalty for their infractions.

From the constitutional-law perspective of the present case – that of the need to defend the principles of the dignity of the human person and proportionality, as limits on the state’s disciplinary power – the Court said there was no legally relevant difference between the norm that took away a person’s pension for four years as a substitute for disciplinarily punishing them with dismissal, which the Court found unconstitutional in 2014, and the one with the same material outcome, albeit for three years instead of four, used to replace the disciplinary penalty of compulsory retirement, which was the object of the present appeal. Neither of them fulfilled the constitutional requirement to weigh up the effect which the total suppression of such a means of subsistence could have on the basic living conditions of a retired accused person; and moreover, on this analytical plane the precise nature of the disciplinary penalties that were being replaced was irrelevant, and the difference in the length of the replacement disciplinary penalties was insignificant.

In its earlier case law, the Court had taken the position that even in the event that application of the norm would lead to deprivation of the indispensable minimum needed to guarantee dignified subsistence, the interested party could always resort to the welfare mechanisms which the legal system provides as a response to economic hardship situations. However, it also considered that albeit one must recognise that loss of the right to a pension as a consequence of the commission of a disciplinary infraction and the attachment of wages or social benefits in order to coercively satisfy a credit right are the products of legislative policy reasons with differing degrees of importance, the fundamental right to a decent standard of living that arises out of the principle of the dignity of the human person is subject to a single valuation criterion.

Portuguese constitutional jurisprudence sees the dignity of the human person as a primary regulatory principle for the whole of the legal system. The essential core of the guarantee of a decent standard of living inherent in respect for the dignity of the human person has been concretely evaluated with reference to the amount of the national minimum wage. This is the framework on which the Court has based its view that the Constitution precludes the attachment of both social benefits whose amount does not exceed that minimum wage, and work-related income in an amount that would reduce the worker’s income to below the minimum wage (always assuming the debtor does not possess other attachable property or revenues).

As such, the Court found that the norm before it violated the principle of proportionality and was therefore unconstitutional.

Cross-references:

Rulings nos. 349/91 (03-07-1991); 411/93 (29-06-1993); 62/02 (06-02-2002);177/02 (23-04-2002); 306/05 (08-06-2005); 442/06 (12-07-2006); 518/06 (26-09-2006); 28/07 (17-01-2007); 188/09 (22-04-2009); and 858/2014 (10-12-2014).