TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 194/17

26 of April of 2017

Headnotes:

Under a norm in the Public Security Police Disciplinary Regulations (RDPSP), a PSP police officer or member of staff who is the object of an indictment order formally charging him/her with a criminal offence punishable by a prison term of more than three years must automatically be suspended from duty. The Constitutional Court said that this legal solution cannot be conclusively deemed imbalanced when one weighs up the imposition on the accused person on the one hand, against the benefits which suspension generates from the point of view of maintaining the community’s trust in the work of the police force and how it performs its functions, which must be governed by criteria of impartiality, objectivity and lack of bias when dealing with its own officers and staff, on the other.

As such, the Court considered that the assessment made by the democratic legislator should prevail and declined to declare the norm unconstitutional.

Summary:

This ex post facto abstract review case was heard under the terms of the Constitution (CRP) and the Organic Law governing the Constitutional Court (LOTC), whereby any of the Court’s own Justices, or the Public Prosecutors’ Office, can ask the Court to review any norm which has already been found unconstitutional in at least three concrete cases, and if the unconstitutionality is confirmed, to declare it with generally binding force.

The Court had already held the Public Security Police Disciplinary Regulations (RDPSP) norm before it in this case unconstitutional on five occasions, albeit with differences in the precise scope of the findings in each one. All five decisions were based on a breach of the same constitutional parameter: the principle that an accused person must be presumed innocent, taken in conjunction with the principle of proportionality. The Court found the particular aspect of the norm whereby police officers or staff who are criminally indicted and charged with an offence for which the maximum penalty exceeds three years in prison to be unconstitutional in at least three concrete cases.

The starting point for all these decisions was that the automatic suspension from duty possesses an essentially disciplinary nature, which is why the principle of the presumption of innocence is relevant. In addition, there is also an alternative disciplinary measure – preventive suspension – which, unlike the automatic suspension operated by the present norm, allows the appropriate authority to consider the circumstances of the concrete case. Given the existence of this alternative solution, the Court had found the automatic suspension measure unnecessary – the reason why in reaching its earlier decisions, it relied on the principle of the presumption of innocence in conjunction with that of proportionality.

Those decisions were handed down by individual Chambers, but in the present case the Court sat in Plenary, as is mandatory in ex post facto abstract reviews. The full Court took the view that if the automatic suspension from duty were to possess an essentially disciplinary nature, the fact that the law provided for preventive suspension as part of disciplinary proceedings would make the automatic measure superfluous and it could be dispensed with. However, it considered that this was not the fundamental sense of the measure.

The Plenary said that the purpose of the preventive suspension, which is a precautionary disciplinary measure, is to ensure the proper internal order of a service or organisation and thereby guarantee that it functions correctly in such a way as to perform the tasks for which it is responsible. The objective is to restore the unit’s functional capacity, which was upset by a disciplinary infraction.

The automatic suspension from duty as a necessary effect of indictment, on the other hand, is intended to defend the prestige of a public service – i.e. it seeks to respond to the need to preserve the external reality that is citizens’ trust in the police.

The Court recalled the specific missions entrusted to the Public Security Police (PSP), both with regard to public safety and security, and in its role as an auxiliary force in the criminal justice field. These missions justify granting the PSP competences that can entail the use of force, and this is why the legislator must concern itself with strengthening disciplinary foundations which generate trust among the community that police officers will act correctly – PSP staff and officers must personify respect for democratic legality.

This is the light in which it is possible to comprehend the objective gravity of a formal accusation of the commission of a serious crime by a member of a police force, with indications which are sufficient to suggest that he/she has perpetrated a crime and that there is a reasonable possibility that as a result, at trial, a court will impose a prison term or other security measure on him/her. This degree of seriousness naturally increases when the indictment order transits in rem judicatam.

Suspension from duty until such time as a criminal court either acquits the accused (the acquittal decision does not need to have transited in rem judicatam), or hands down his/her final conviction, is designed to preserve citizens’ respect for the police force, inasmuch as one can consider it essential for the community not to lose trust in that force’s impartiality and lack of bias in its actions.

This is a constitutionally legitimate aim, because it is directly linked to the police’s specific function (in both the material and the institutional sense) of defending democratic legality and guaranteeing internal security and citizens’ rights.

This constitutionally legitimate aim significantly differs from the objective of a disciplinary suspension, and the Court said that it was necessary to bear that aim and that legitimacy in mind when evaluating the proportionality of the RDPSP norm before it. Because of this, it took the view that there was no need here to assess this norm against the parameter of the presumption of innocence.

With regard to the possible violation of the principle of proportionality, the Court recalled its established position, which is that such a violation exists when a measure can be considered inappropriate, unnecessary or disproportionate.

Applying the test of appropriateness, it said that suspension from duty is a fit instrument with which to prevent public suspicion – that someone who has been appointed to be the armed protector of criminal-law values and assets has instead disrespected them – from seriously damaging the police force’s prestige and thus, inherently, the community’s trust in police actions.

In Rulings nos. 62/16, 107/16 and 273/16 the Court considered that the preventive suspension measure available in disciplinary proceedings (provided for by a norm that allows the measure whenever keeping a police officer or member of staff on active duty could be damaging for the police service or impede the discovery of the truth) was an advantageous alternative to automatic suspension as a result of indictment, precisely because it is not automatic and enables the decision-maker to weigh up the circumstances. In the present case, the Plenary took the stance that the Chambers had not considered the specific goal of the disciplinary suspension. Because the decision to suspend in disciplinary proceedings pertains to the police force itself, it does not constitute an alternative mechanism with which to pursue the aims sought by the legislator when it created the automatic suspension upon indictment. Moreover, the preventive suspension lasts for a limited time, at the end of which the accused must obligatorily be returned to duty, however serious the crime with which he/or she is charged and however convincing the indications that he/she has committed it may be.

There is no conflict between automatic suspension upon issue of an indictment order and the autonomy of disciplinary proceedings in relation to the same person – the competent entity can either suspend the disciplinary proceedings until the conclusion of the pending criminal proceedings, or decide the outcome of the former without waiting for the latter.

There may perhaps be suitable alternative ways of preserving the community’s trust in the impartiality of the actions of the police institution when one of its officers or staff is accused of committing a serious crime, but the Court considered that the norm before it was in fact one such means (and indeed no one had proposed any others).

On the question of proportionality in the strict sense of the term, the Court said it was important to weigh up the disadvantages suffered by the accused against the seriousness of the harm that such a formal accusation can cause to the trust of the community, while also taking into account the measures designed to mitigate the most damaging effects – namely that the automatic suspension from duty while criminal proceedings are ongoing does not prejudice the accused in terms of future promotions or length of service. In addition, the suspension only remains in effect for as long as the formal charges of commission of a crime are themselves extant – the suspension ends immediately upon acquittal, even if the decision to acquit has not yet transited in rem judicatam. In other words, as soon as the accused’s presence on active duty with the police force can no longer objectively endanger the community’s trust in the force’s actions, the suspension is lifted as automatically as it was imposed.

As such, and contrary to earlier Rulings handed down by individual Chambers, the Plenary of the Constitutional Court found no unconstitutionality in the norm before it.

Supplementary information:

Six Justices dissented from the Ruling, essentially for the reasons that had led the Court to find the same norm unconstitutional on previous occasions.

Additionally, one Justice concurred with the decision, but disagreed with the majority in relation to the grounds for it.

Cross-references:

Rulings nos. 62/16 (3-02-2016, included in the selection sent to the Venice Commission with regard to January-April 2016); 107/16 (24-02-2016); 273/16 (4-05-2016).

Summary Decisions nos. 338/16 (18-06-2016); and 474/16 (27-06-2016).