Challenge against the existence of a traffic offence by defendants who voluntarily pay a fine
RULING No. 45/2008
Case no. 676/07
Rapporteur: Justice Mário Torres
Ruling of the 2nd Section of the Constitutional Court:
Under the terms of the Law governing the Organisation, Functioning and Process of the Constitutional Court, as approved by Law no. 28/82 of 15 November 1982 and most recently amended by Law no. 13-A/98 of 26 February 1998 (the LTC), the representative of the PUBLIC PROSECUTOR’S OFFICE at the Coimbra Court of Appeal has appealed against a ruling which the latter Court issued on 9 May 2007, “inasmuch as the aforesaid court decision declared the content of Article no. 175(4) of the Highway Code, in the current version laid down by Executive Law no. 44/2005 of 23 February 2005, inapplicable, and held that the segment of the text that forms the last paragraph of the highway rule in question is unconstitutional because it includes an inescapable presumption which leads to the derogation of the accused person’s broad right to a defence by restricting it to the possibility of contesting the seriousness of the infraction and the applicable sanction of being banned from driving”.
The ruling in question was handed down in an appeal against a sentence which the Penamacor Judicial District Court issued on 6 December 2006. The latter did not uphold the said appeal, which was against conviction for an administrative offence, and fully upheld the administrative decision which the Civil Governor of the Castelo Branco District had issued on 24 October 2005. The latter imposed on A. (who had voluntarily paid the fine for the commission of the administrative offence provided for by Article 21 of the Regulations governing Traffic Signs – failure to obey a mandatory stop sign at a road junction) the accessory sanction of a driving ban, the duration of which, with a reduction on special grounds under the terms of Article 140 of the Highway Code, was 30 days.
The reasons which the appellant gave for her appeal to the Coimbra Court of Appeal ended with the following conclusions:
“I – On the day, at the time, and in the place concerned, the accused stopped at the STOP sign located at the junction in question (and), having checked that there were no vehicles travelling in the other lane, began driving again with the due and correct degree of safety, wherefore she did not commit any infraction.
II – The accused only paid the fine voluntarily (as the decision against which this appeal has been brought says) because she thought she had to, but she did not – and does not – acknowledge that she committed the infraction of which she was convicted.
III – The court of first instance did not uphold the accused’s appeal against her conviction for an administrative offence. It based its decision on the fact that the fine had been paid voluntarily, which meant that the commission of the offence was no longer open to discussion and should instead be taken as an established fact (Article 175 of the Highway Code), wherefore the court could not admit any allegation of facts that might bring the existence of the unlawful act comprising the administrative offence into doubt.
IV – This interpretation and application of the rules set out in the General Rules governing Administrative Offences (RGCO) restrict some of the accused’s rights to a defence and her rights to effective protection by the courts, in the sense of the latter’s role as guarantor of a judicial control of administrative decisions which injure legitimate rights and interests; and they are illegal and unconstitutional, because they breach the conjugated provisions of the rules laid down by Articles 55, and 59(1) and (3) of the RGCO and Articles 18(2), 20(1), and 32(1) of the Constitution of the Portuguese Republic.
V – The constitutional rights and guarantees ‘an accused person’s right to a hearing and a defence’ and ‘access to the law and to effective judicial protection’ in the sense of a guarantee that there will be a control of final administrative decisions which injure rights and interests protected by law, are valid in the process applicable to administrative offences, failing which there would be a breach of the Constitution.
VI – When an accessory sanction is imposed, it is possible to discuss whether an administrative offence has actually been committed, even if a fine has already been paid voluntarily.
VII – The court of first instance failed to pronounce on questions it should have considered, and this renders its sentence null and void (Article 379c of the Code of Criminal Process – CPP).
VIII – If it were not possible to question whether an infraction actually took place, we would be in the presence of an unconstitutionality in the shape of a restriction of fundamental rights – a breach of Article 32(1) of the Constitution of the Portuguese Republic.
IX – The learned sentence against which the present appeal has been brought is manifestly contradictory when on the one hand it holds proven that the accused needs a driving licence because it is indispensable to her work and that the accessory sanction of a 30-day driving ban endangers both her job and the real possibility of here becoming a “normal” employee of the body referred to earlier, and on the other hand upholds the administrative authority’s decision to impose the accessory sanction of a 30-day driving ban, thereby placing the accused’s job at risk (the precarious nature of her labour relationship means that if the accused has to fulfil the terms of the accessory sanction of a driving ban, she will certainly lose her job and will not be able to look for another one).
X – It is also possible to say that the learned sentence is contradictory when it concludes that accessory sanctions must be matched to the unlawful act that has been committed and to the blame on the part of the agent thereof on the one hand, while on the other it did not allow the presentation of facts which seriously undermine the existence of the unlawful administrative offence and based itself on a presumption of guilt.”
In the ruling which is the object of the present appeal the Coimbra Court of Appeal expounded the following legal grounds for its decision:
“Among the various issues raised by the appellant, the primary question is that concerning the non-admission of a defence in relation to whether or not the infraction was actually committed – an argument which, if it were to be upheld, would render the others unnecessary.
This is why, as we saw above, the court said: “One prior issue that needs to be mentioned is that this appeal is only designed to permit the consideration of the seriousness of the infraction, and of the imposition of the accessory sanction. In reality, as the appellant herself says, she paid the fine voluntarily, so this appeal is limited to consideration of the imposition of the aforementioned accessory sanction and the seriousness of the infraction, in accordance with the provisions of Articles 72(5) and 175(4) of the Highway Code. The question which is to be decided in the present case involves determining the seriousness of the infraction, and whether the requirements for suspension of the execution of the accessory sanction of a driving ban are met.”
But “…it is only at a trial hearing that a confession is attributed its special value as evidence, and even then the veracity of the facts that were confessed is subject to control by the court as to whether the confession was freely made…” (Código de Processo Penal Anotado, Simas Santos and Leal Henriques, 2nd edition, Volume II, p. 364).
However, the appellant was not allowed to pronounce herself as to the veracity of the “facts that were confessed”, and they were included without further process among the facts that were deemed proven.
While we accept and even agree that what is at stake is not paragraph (1) of Article 32 of the CRP, but “only” paragraph (10) – the former being applicable in criminal process and the latter in the process involved in administrative offences – we would have to admit to a certain hypocrisy if we were to say that although an accused person is granted the “rights to a hearing and a defence” (paragraph ), that defence should (also) be restricted to questions which follow on from a conviction that has already been announced and imposed in accordance with the law. The heart of the matter – the crime – is thus not discussed, and cannot be discussed.
The thing is that an accused person is presumed innocent until the sentence in which he is convicted transits in rem judicatam, and he must be judged … with the safeguards of the defence (Article 32 of the CRP).
Now, as we see it, the restriction referred to earlier can only be due to a mere presumption – juris tantum – that the voluntary payment of a fine implies that the administrative offence was committed, but not that such a payment necessarily implies the inescapable presumption – juris et de jure – that the infraction has been committed.
In this way the presumption of innocence enshrined by the Constitution is inescapably overcome by a highway rule!
Rules concerning constitutional Rights, Freedoms and Guarantees are applied directly. This “direct application does not just mean that constitutional Rights, Freedoms and Guarantees apply with or without any legislative intervention (see Articles 17 and 18). It means that they are directly opposable to the law when the latter establishes restrictions which do not comply with the Constitution (see Article 18 of the CRP)” (Direito Constitucional e Teoria da Constituição, J. J. Gomes Canotilho, 7th edition, p. 1179).
The segment of Article 175(4) of the Highway Code which says that once a fine has been paid, the only defence that can be submitted is “restricted to the (subjects of the) seriousness of the infraction, and the applicable sanction of a driving ban”, without any discussion about whether the infraction has been verified / was committed, is unconstitutional because it unjustifiably removes the guarantee of all the rights to a defence, whereas “restrictions shall be limited to those needed to safeguard other rights and interests protected by this Constitution” (Article 18 of the CRP).
In our opinion a defendant who has been charged with an infraction can defend himself without any restriction, to which end he can even allege that the infraction did not take place / he did not commit it, even if he (or perhaps, even more so, if someone else) has voluntarily paid the fine.
The last section of paragraph (4) of Article 175 of the Highway Code – in the current version approved by Executive Law no. 44/2005 of 23 February 2005 – is thus unconstitutional, given that it establishes an inescapable presumption which leads to the derogation of the accused person’s broad right to a defence.
Wherefore, as requested in the appeal, which we uphold, we hereby annul the trial, wherefore there must be a new hearing in which all of the guarantees of a defence to which the accused/appellant is entitled must be respected.”
The representative of the Public Prosecutors’ Office presented a number of arguments before the Constitutional Court, which he ended with the following conclusions:
“1. – The voluntary payment of the fine in highway-related administrative offences constitutes a tacit admission that the accused person was responsible for the fact which has been imputed to him, such as to make it possible to dispense with the need for evidence as to the existence of the infraction in cases in which the imposition of the sanction of a driving ban is challenged.
2. – This system does not breach the rules set out in Article 32 of the Constitution of the Portuguese Republic, which do not mean that it is necessary for the rules laid down by Article 344 of the Code of Criminal Process to apply to confessions by accused persons in the legal process applicable to administrative offences.
3. – The rule set out in Article 175(4) of the Highway Code should be interpreted, in conformity with the Constitution, and in such a way as not to preclude the person who has challenged the earlier decision from demonstrating that there was a fault or a defect in terms of his will (a will which must necessarily have underlain that tacit confession), such as to be capable of precluding that act of voluntary acknowledgement of the responsibility for an administrative offence.
4. – Wherefore the Court should issue an interpretative decision in the above sense, in accordance with Article 80(3) of the Law governing the Constitutional Court.”
The respondent presented counter-arguments, which she concluded as follows:
“I – Where the possibility of challenging the allegation that the infraction was committed is concerned, the voluntary payment of the fine in highway-related administrative offences does not constitute a tacit confession – de juris et de jure – but rather a mere presumption – juris tantum.
II – The special value of the evidence constituted by a confession is derived from the latter’s being made at a trial hearing and being subject to control by the court as to whether it was made freely (Article 344 of the Code of Criminal Process, applied to the process for administrative offences in accordance with Article 41 of the General Rules governing Administrative Offences – RGCO).
III – Every accused person is presumed innocent until the sentence which convicted him transits in rem judicatam, and must be judged … with the guarantees [there may well be some text missing here] inescapable presumption, which leads to the derogation of the accused’s broad right to a defence.”
In the light of all this, the Court must now consider and decide.
2. Grounds for Decision
2.1. The original text of the current Highway Code, which was approved by Executive Law no. 114/94 of 3 May 1994, permitted the voluntary payment of the fines laid down for the administrative offences defined by the Code. Voluntary payment meant that the amount of the fine so paid would be the lowest applicable (Article 154) and “impli[ed] the offender being sentenced to the corresponding accessory sanction, also in its minimum form, without prejudice to the provisions of Articles 143, 144 and 145” (Article 154). The latter respectively made it possible to dispense with the accessory sanction (taking into account the circumstances of the offence and whether or not the driver was a first-time offender or had committed any serious or very serious administrative offences in the previous three years – Article 143), a reduction in the accessory sanction on special grounds (both minimum and maximum durations reduced by half, taking the same factors into account – Article 144), or the suspension of its execution (in the event that the conditions which the general criminal law imposes on the suspension of sentences were met – Article 145). The procedure for the application of the sanctions was regulated by Article 155, which said that before this decision was taken, the interested parties should be notified of the facts that constituted the infraction and the sanctions applicable thereto (paragraph ), and that “when possible, the interested party (shall be…) notified at the moment when the infraction is officially recorded, by being given a copy of the official record, which shall include notification that it is possible to voluntarily pay the fine in the minimum amount, and of the consequences thereof as regards the accessory sanction, of the deadline for the voluntary payment and the place in which it is to be made, and of the deadline for the submission of a defence and the place in which it is to be submitted” (paragraph ), whereupon the interested parties shall, within 15 days counting from the date of the notification, either submit their defence in writing or make the voluntary payment (paragraph ); paragraph  stated that: “Interested parties who voluntarily pay the fine shall not be prevented thereby from submitting their defence for the purposes of the provisions of Articles 143, 144 and 145” – in other words, for the purpose of dispensation from the imposition of the accessory sanction, the reduction thereof on special grounds, or the suspension of its execution.
The changes which Executive Law no. 2/98 of 3 January 1998 made to the Highway Code meant that, while voluntary payment of the minimum applicable fine was still permitted (Article 153), such payment “shall cause the case to be filed, save only if the administrative offence is serious or very serious, whereupon it shall be pursued but (the sentence) shall be limited to the imposition of a driving ban” (Article 153). Article 155 was changed to read: “prior to the decision on the imposition of sanctions, the interested parties shall be notified: a) Of the facts comprising the infraction; b) Of the applicable sanctions; c) Of the period of time which is granted for the submission of a defence, and the place in which it is to be so submitted; d) Of the possibility of voluntarily paying the minimum fine, together with the deadline for such payment and the place in which it is to be made, and the consequences of non-payment” (paragraph ), whereupon interested parties had 20 days counting from the notification in which to submit their defence or make the voluntary payment (paragraph ); paragraph  went on to say: “Interested parties who pay the fine voluntarily shall not be prevented from submitting their defence, which shall be restricted to (the subjects of) the seriousness of the infraction and the applicable sanction of a driving ban”.
On the precepts in question, Executive Law no. 265 A/2001 of 28 September 2001 limited itself to: moving the unaltered text of paragraph (4) of Article 153 into paragraph (5); adding to paragraph (1) of Article 155 the requirement that a reference to the “legislation that has been breached” (new subparagraph b], with the previous subparagraphs b], c] and d] being renumbered c], d] and e]) be included in the notification which is to be sent to the accused person “after the official record has been made”; and replacing the expression “interested parties” in Article 155(3) with “accused persons” (“Accused persons who pay the fine voluntarily shall not be prevented from submitting their defence, which shall be restricted to (the subjects of) the seriousness of the infraction and the applicable sanction of a driving ban”).
Finally, Executive Law no. 44/2005 of 23 February 2005 moved the subject of the previous Articles 153 and 155 to Articles 172 and 175. Article 172(5) now states that “voluntary payment of the fine in accordance with the previous paragraphs shall cause the case to be filed, save only if the administrative offence is subject to imposition of an accessory sanction, whereupon it shall be pursued but (the sentence) shall be limited to the imposition of the latter; while Article 175(4) now states that “voluntary payment of the fine shall not prevent the accused person from submitting his defence, which shall be restricted to (the subjects of) the seriousness of the infraction and the applicable accessory sanction”.
Despite the fact that the abovementioned rules (Articles 154 and 155 of the original version, Articles 153 and 155 of the 1998 and 2001 versions, and Articles 172 and 175 of the 2005 version) are incorporated into the regulations governing the administrative phase of the administrative-offence procedure in question, and that therefore the “defence” to which they refer concerns the defence which an accused person submits to the administrative authority with the competence to hand down a decision containing sanctions, there can be no doubt that jurisprudence has interpreted the restriction of that defence – firstly for the “purposes of the provisions of Articles 143, 144 and 145” (i.e. for the purposes of securing the dispensation from the imposition of the accessory sanction, its reduction on special grounds, or the suspension of its execution), and secondly, since 1998, “to (the subjects of) the seriousness of the infraction and the applicable sanction of a driving ban (or accessory sanction)” – as also implying a restriction on the defence which the accused person involved wishes to submit before the courts as part of the process of judicially challenging an administrative decision to impose a sanction.
In this respect it is possible to quote – among others – the following rulings (all available at www.dgsi.pt): Oporto Court of Appeal (TRP), 19 July 2006, case no. 0644050 (“By paying the minimum fine an accused person renounces the ability to discuss whether the administrative offence occurred”); TRP, 10 January 2007, case no. 0645886 (“The voluntary payment referred to by Article 155 of the Highway Code implies acceptance that an administrative offence exists”); TRP, 14 March 2007, case no. 0647091 (“Article 172 of the Highway Code means that the voluntary payment of the minimum fine implies acceptance that the administrative offence has been committed”); TRP, 23 May 2007, case no. 0740433 (“According to Article 172 of the Highway Code, voluntary payment of the minimum fine means that the accused person has accepted that the administrative offence took place”); Coimbra Court of Appeal (TRC), 18 January 2006, case no. 3623/05 (“After voluntarily paying the fine, it is only possible to submit a defence which is restricted to (the subjects of) the seriousness of the infraction and the applicable sanction of a driving ban, without any discussion as to whether the infraction truly occurred”); and TRC, 23 May 2007, case no. 2971/06.4TBVIS.C1 (“Once the fine has been paid voluntarily, the administrative-offence case is sent for sentencing (in which the accessory sanction will be imposed), solely for the purpose of considering the seriousness of the infraction, and consequently the weight of the sanction that is to be imposed”).
We are not unaware that this jurisprudential interpretation, which appears to be the dominant one, cannot be considered consensual. At the very least, in the ruling which it issued on 25 October 2004 in case no. 1427/04 1, the Guimarães Court of Appeal dissociated itself from it as follows:
“The appellant raises the question of whether, when she has voluntarily paid the fine and an accessory sanction has been imposed, she can discuss whether or not the administrative offence actually took place.
The answer is clearly “yes”.
Article 155(3) of the Highway Code states that: “Accused persons who pay the fine voluntarily shall not be prevented from submitting their defence, which shall be restricted to (the subjects of) the seriousness of the infraction and the applicable sanction of a driving ban.”
The only way in which (this) precept can be interpreted is that because he paid the fine voluntarily, an accused person cannot discuss whether the infraction actually took place, but only the part of the issue concerning the fine.
He can, however, discuss the aspect of the infraction concerning the latter’s seriousness.
And he can discuss the aspect concerning the driving ban.
And he can to so to the full extent of the latter aspect.
In other words, he can seek to demonstrate that he did not commit the infraction, or that he committed a different one.
The word “applicable” points in this direction without a shadow of a doubt.
If the legislative authorities had been of the opinion that it should not be possible to discuss whether or not the infraction occurred, they would have used the word “applied”.
This would refer solely to the infraction in question.
As appears to us to be obvious, the word “applicable” covers the actual incrimination.
If it were to be true that one cannot discuss whether an infraction occurred, we would be in the presence of a rule which breaches Article 32(1) of the CRP and would thus be unconstitutional, inasmuch as it would restrict fundamental rights that accrue to the accused.
In this precept the legislative authorities posed the fictional hypothesis that the infraction which was described in the official record and the fine in relation to which was voluntarily paid, actually exists. I.e. they created an avoidable presumption.
This is why the precept says that accused persons “shall not be prevented from submitting their defence”.
Which means that the legislative authorities did not want to compress any of the accused’s fundamental rights – something they could not have done in any case.
In other words, an accused who has voluntarily paid the fine can in particular question the practise of the infraction he is alleged to have committed, whenever he wishes to question the accessory sanction of a driving ban.
As is logical and results from the correct interpretation of the precept under analysis.
If this were not the case, there would be a breach of the Constitution (for a parallel situation that went in the same direction as the above text, see the Ruling which the Constitutional Court issued on 20 April 2004, as published in Series II of the Diário da República dated 8 June 2004).
The sentence which is the object of the present appeal interpreted paragraph (3) of Article 155 in a different way, and concluded that the accused person could not question whether the administrative offence had been committed.
However, such an interpretation would not only be illegal – as we believe we have demonstrated – but would also clearly be in breach of Article 32(1) of the CRP.”
As we know, it is not the Constitutional Court’s place to pronounce on what the most correct interpretation of the ordinary law is, but rather to note – as a given element of the question of constitutionality it must consider – that the decision which is the object of appeal herein adopted the understanding according to which the segment of Article 175(4) of the Highway Code, as amended by Executive Law no. 4 44/2005 of 23 February 2005, which says that once the fine has been paid, the accused can submit a defence that is restricted to the (subjects of) the infraction and the applicable sanction of a driving ban, means that even during the phase in which the administrative decision that applied the accessory sanction of a driving ban is subject to being challenged before the courts, the accused is not allowed to discuss whether the infraction actually took place / was committed. The issue here is thus to decide whether this understanding suffers from unconstitutionality – as the decision that forms the object of the present appeal considered – or whether, on the contrary, it should be deemed to be in compliance with the Constitution.
2.2. On the subject of the constitutional parameter that we must bear in mind as we consider this question, it is important to note that the immediate content of Article 32(10) of the Constitution of the Portuguese Republic is irrelevant to the case before us. As was shown in Rulings nos. 659/2006 and 313/2007 (both issued by this 2nd Section of the Court), the introduction of this constitutional rule (by the 1989 constitutional review for administrative-offence cases, and then extended by the 1997 review to any case involving ‘sanctions’) was designed to ensure, in these types of case, the accused person’s rights to a hearing and a defence – rights that the original version of the Constitution only expressly granted to accused persons in disciplinary proceedings related to the civil service (Article 270, which corresponded to the existing Article 269). This rule simply implies that the imposition of any – administrative, fiscal, labour-related, disciplinary, or any other – type of sanction without first hearing the accused person (right to a hearing) and allowing him to defend himself against the allegations made against him (right to a defence) by submitting evidence and requesting that official steps be taken to determine the truth, is unconstitutional (see Jorge Miranda and Rui Medeiros, Constituição Portuguesa Anotada, Volume I, Coimbra, 2005, p. 363). This is the limited scope of the rule set out in Article 32(10) of the CRP. A proposal, which was made as part of the 1997 constitutional review process, that the Constitution should assure the accused “in disciplinary proceedings and other cases leading to ‘sanctions’ (…) all the guarantees applicable to criminal process” (Article 32-B of the Portuguese Communist Party’s Draft Constitutional Review no. 4/VII; see the debate on the subject, published in Series II-RC of Diário da Assembleia da República no. 20, dated 12 September 1996, pp. 541 544, and in Series I, no. 95, dated 17 July 1997, pp. 3412 and 3466) was rejected.
However, as the Court acknowledged in Ruling no. 659/2006, it is obvious that the guarantees available to accused persons in cases that lead to ‘sanctions’ are not limited to the rights to a hearing and to a defence – they simply find their support in constitutional precepts other than that set out in Article 32(10). To begin with, this is the case of the right to challenge decisions of the kind in question which impose ‘sanctions’, before the courts – a right which, in general terms, is based on Article 20(1) of the CRP and, specifically as regards administrative decisions, on Article 268(4); and, once such cases have entered the ‘jurisdictional phase’ following their being so challenged before a court, they enjoy the generic guarantees which the Constitution applies to judicial processes – both those directly mentioned by Article 20 (right to a decision within a reasonable period of time and by means of fair process), and those which emanate from the principle of a democratic state based on the rule of law (Article 2 of the CRP) – whereas in this phase it is not appropriate to cite the provisions of Article 32(10) of the CRP.
The question that poses itself is thus whether the normative criterion according to which voluntary payment of the fine for a highway-related administrative offence makes it impossible, within the scope of a judicial process that entails challenging an administrative decision which imposes a ‘sanction’, for an accused person to discuss the actual existence of the infraction in court, complies with the constitutional requirements that he must have access to the courts for effective protection of rights and interests accorded to him by law, and that such access must be by means of fair process.
The answer – and we say so straight away – is “no”, whether we consider this understanding to be based on the establishment of an inescapable presumption, or on the attribution of probatory value to the confession on the part of the accused which is said to be implicit in his option to voluntarily pay the fine.
2.3. Previous decisions by this Court offer contributions that are of use as we consider the present case.
In Ruling no. 29/84 the Court held unconstitutional the rule set out in paragraph (2) of Article 168 of the regulations governing Customs Disputes, “when it lays down that a request to settle an amount entails ‘confessing’ to the facts referred to in the record of notification or the declaration”, with the intention of “causing the accused person’s request to settle the amount for which he is liable to result in his automatic conviction, by making such a request equivalent to acceptance of any conviction for the infraction described in the record of notification”.
Before the conversion of virtually all the highway-related infractions that constituted “transgressions” (or “contraventions”) – which at that time were still considered to be crimes – into administrative offences, a number of different findings of unconstitutionality (Rulings nos. 28/83, 315/85, 135/86 and 187/86) led, via a process of generalisation, to the issue of Ruling no. 337/86. In the latter the Court declared, with generally binding force, unconstitutional the part of the rule set out in Article 61(4) of the then Highway Code which gave the Directorate-General of Road Traffic (DGV) the power to impose the driving-ban measure on drivers who, having committed a highway-related transgression, voluntarily paid the fine. Later, in Ruling no. 442/94, the Court held unconstitutional the rule set laid down by Article 1(1)e of Executive Law no. 387 E/87 of 29 December 1987, when interpreted (as the decision against which the appeal in question had been brought did) in such a way that following voluntary payment of the fine for the transgression covered by Article 1 of Law no. 3/82 of 29 March 1982 (driving under the effect of alcohol), a driving ban could be imposed by Order without a prior trial hearing, because it breached the constitutional principle of a defence, which, in cases involving the possible imposition of ‘sanctions’, is in turn derived from the principle of a democratic state based on the rule of law and the guarantees which put that principle into practice, which are enshrined by Article 32(1), (3) and (5) of the CRP. In this Ruling no. 442/94, the Court said that the controversy about the nature of the driving-ban measure (security measure, accessory penalty, or effect of the penalty) “does not prevent it from being clear that the measure represents the removal of an area of civil liberty, which can only be ordered by the act of a judge and with a prior trial hearing”.
Ruling no. 264/99, which was handed down after the abovementioned introduction of the ‘unlawful act which constitutes a mere administrative offence’ in the field of highway-related infractions, held unconstitutional the rule set out in Article 154(2) of the current Highway Code (approved by Executive Law no. 114/94 of 3 May 1994) – the version before the one approved by Executive Law no. 2/98 of 3 January 1998 – but did so because the Court felt that the voluntary payment of the fine did not automatically lead to the imposition of the accessory sanction of a driving ban, saying that “such a payment does not in its own right require the imposition of the accessory sanction, and the latter’s application in each case depends on the “circumstances of the infraction”.
The normative criterion which the court whose decision is the object of the present appeal refused to apply on the grounds that it is unconstitutional, takes a different view – that the voluntary payment of the fine inexorably implies the imposition of the accessory sanction of a driving ban, and that the accused is precluded from discussing whether or not the infraction actually took place, and is restricted to the issue of its seriousness, which is relevant to the decision on the length of the ban.
The latter interpretation must be deemed constitutionally untenable. We do not question that the legislative authorities are able to establish presumptions, even in relation to sanction-related matters (including criminal ones), and so it would be lawful to make the voluntary payment of the fine give rise to the presumption that the infraction did in fact occur. However, that which is intolerable is the inescapable nature of that presumption, when it prohibits the accused from proving before the court that the infraction did not occur. On the view that presumptions are admissible, on condition that they are not inescapable, see Rulings nos. 63/85, 447/87, 135/92 and 922/86 (on the criminal liability of directors of periodicals), and 252/92 (on the presumption that certain types of merchandise are of foreign origin).
While we are not unaware that the concern to ensure guarantees in cases involving administrative offences will be comparatively less intense than in those involving the criminal process (see Rulings nos. 269/87 and 313/2007), the value attached to the former can nonetheless not be so far diminished as to preclude the effectiveness of the protection offered by the courts and the requirements of fair process.
Even if one does not transpose the strict rules with which Article 344 of the Code of Criminal Process surrounds the importance of an accused person’s confession in criminal proceedings to the process applicable to administrative offences, it is nevertheless not possible to consider that the voluntary payment of a fine – particularly when it is made at the very moment when the official record of the offence is issued, by an accused person who is normally not able to seek legal advice and may not have realised the consequences of that option – is valid as a confession that he committed the infraction, in such a way as to definitively preclude any possibility of retraction. As the Court has already accepted in Ruling no. 337/86, under the previous legislation, “the accused may have paid the fine solely in order to avoid the nuisance of going to court to discuss whether the ‘contravention’ had actually been committed, but not at all remembered that he might come to be deprived of the right to drive for a period of time (…), or at least that that consequence was a probable one (…)”. A possible lack of knowledge which, in the case of the legal rules before us here, gains in plausibility inasmuch as whereas the original text of the 1994 Highway Code required that the official notification of the record of an offence be accompanied by giving the accused a copy of the notification document, “to include the information that it is possible to pay the minimum fine and the consequences which that payment entails for the accessory sanction” (Article 155), since the changes made by Executive Law no. 2/98 of 3 January 1998, the interested party has been notified “that it is possible to pay the minimum fine (…), and of the consequences of non-payment” (Article 155d); in other words, the interested party is no longer informed of the consequences of voluntary payment – particularly the ensuing inevitability of the imposition of the accessory sanction of a driving ban and the fact that it is impossible to discuss whether or not the infraction actually took place in either the administrative, or the judicial, phase of the administrative-offence proceedings.
In this context the interpretation in question cannot but be considered to lead to an intolerable reduction in the guarantees required by the principle of the protection of the courts and of fair process.
The fact that this is an admissible interpretation of the legal precepts at stake here, and the fact that, as we have said, it is followed in a significant amount of jurisprudence, do not justify the use of the mechanism of an ‘interpretation in accordance with the Constitution’ provided for by Article 80(3) of the LTC (used in Ruling no. 276/2004 – which required that Article 152 of the Highway Code be interpreted “in such a way that it limits itself to establishing an avoidable presumption that a vehicle’s owner or possessor is also its driver, unless the former identifies someone else as such” – on the grounds that the Court felt that the precept in question did “not include the interpretation adopted by the decision against which the present appeal has been brought, under which someone who, while he is neither the owner nor the possessor of the vehicle, is still registered as such, is liable for an administrative offence, when the case file proves that it was a duly identified third party who was responsible for the administrative offence in question”) in the case before us, and the Court instead opts to hand down a ruling of unconstitutionality.
In the light of the above, we hereby decide:
a) To hold unconstitutional, because it breaches Articles 20(1) and (5) and 268(4) of the Constitution of the Portuguese Republic, the interpretation of Article 175(4) of the Highway Code as amended by Executive Law no. 44/2005 of 23 February 2005, such that once a fine has been paid voluntarily, an accused person is not permitted to dispute the existence of the infraction in question during the phase in which the administrative decision that applied the accessory sanction of a driving ban is subject to being challenged before the courts; and consequently,
b) To confirm the challenged part of the decision against which the present appeal was brought.
No costs payable.
Lisbon, 23 January 2008.
Mário José de Araújo Torres
Benjamim Silva Rodrigues
João Cura Mariano
Joaquim de Sousa Ribeiro
Rui Manuel Moura Ramos