Challenge before the courts against a decision that applies the accessory sanction of a driving ban on an accused person who has voluntarily paid the fine for a highway infraction
Rights of the defence and fair trial
RULING Nº 135/2009
18 of March of 2009
The article of the Constitution that enshrines citizens’ rights and duties in relation to the Public Administration guarantees private individuals the possibility of going to the courts to challenge any of that Administration’s concrete, singular acts that have external legal effects and are thus capable of injuring people’s rights. This means that any legal rule which excludes that possibility in relation to certain acts or certain categories of administrative act, or which restricts the possible grounds for such a challenge to just some of the vices that are capable of making such acts invalid, must be considered unconstitutional.
The representative of the Public Prosecutors’ Office (PPO) at the Constitutional Court asked the Court to consider the constitutionality of a Highway Code rule. Under this rule, during the phase in which an administrative decision that has applied the accessory sanction of a driving ban can be challenged before the courts, an accused person who has voluntarily paid the fine for a highway infraction is not allowed to discuss in court whether or not that infraction actually occurred. This rule had already been held unconstitutional in at least three Constitutional Court decisions, which means that the conditions needed for it to be declared unconstitutional with generally binding force were met, and the PPO asked the Court to do just that.
In Ruling no. 45/2008 (sent to the Venice Commission as part of the selection for the first four months of 2008), the Court considered that inasmuch it prevents the accused from discussing whether the infraction actually took place, but only allows discussion of the infraction’s seriousness (which is relevant to the duration of the ban), the normative criterion under which the voluntary payment of the fine inexorably implies the imposition of the accessory sanction of a driving ban is constitutionally inadmissible.
In reanalysing this question in Ruling no. 135/2009, the Court said that the issue consists of knowing whether the normative criterion according to which the voluntary payment of the fine for a highway-related administrative offence makes it impossible for the accused to discuss in court the actual existence of the infraction in the first place, respects the constitutional requirements of access to the courts for the effective protection of rights and interests that are recognised by the law, by means of a fair process, as part of a judicial process of challenging an administrative decision of a sanctionary nature.
The Court said that the answer to this question is no, whether one considers such an interpretation of the law to be based on the establishment of an inescapable presumption, or on the attribution of absolute probatory value to the confession which the accused is said to implicitly make by opting to pay the fine voluntarily, or on a renunciation of either the ability to challenge the administrative act or the ability to argue a particular grounds for such a challenge.
Even though virtually all highway-related infractions (and contraventions), which used to fall under the criminal law, have been converted into administrative offences, the controversy about the nature of the driving ban measure (security measure, accessory sanction, or effect of such a sanction) “does not negate the fact that it clearly represents the elimination of an area of civic liberty that can only be ordered by a judge after a trial hearing”.
The Court also considered that even if one does not question the legislative authorities’ right – even where sanctions (including criminal ones) are concerned – to establish presumptions, and thus the legality of the legislative decision that the voluntary payment of the fine leads to the presumption that the infraction actually occurred, what is intolerable is the inescapable nature of that presumption, when it prevents the accused from proving in court that the infraction did not in fact take place.
It is not reasonable to impose the “disadvantage” of not being able to discuss whether the “facts” actually occurred, in return for the “advantage” the accused obtains by deciding to voluntarily pay the fine – i.e. the fact that this means he pays the minimum amount on a varying scale. The accused is sufficiently penalised by the disadvantage with which he comes before the court, in that the latter will normally associate such a payment with an acknowledgement that he has committed the infraction, and so any challenge to the “presumption” of guilt will bear a special burden of proof.
The Court said that while it is not unaware that the concern to ensure the guarantees of the defence is less demanding in cases involving administrative offences than it is in criminal cases, the former cannot be relegated to such an extent that the efficacy of the protection of the courts and the requirements of fair process are denied.
Even if one does not transpose the strict rules with which the Code of Criminal Procedure surrounds the importance attached to an accused’s confession in a criminal case to the procedure in administrative offence cases, one must still consider that the voluntary payment of a fine cannot constitute a confession that the infraction has been committed, in such a way as to definitively do away with any possibility of retraction. This is particularly true when such payments are made at the moment when the official record of the offence is issued, by an accused person who is normally not able to seek legal advice at that moment and may not have realised the consequences of that option.
The Court thus declared with generally binding force that the Highway Code rule in question is unconstitutional, when interpreted in such a way that once a fine has been paid voluntarily, during the phase in which an administrative decision that applied the accessory sanction of a driving ban can be challenged before the courts the accused is not allowed to discuss whether or not that infraction actually occurred. The Court took this decision on the grounds that this interpretation violates the constitutional right of access to the law and to effective judicial protection of the rights and guarantees that the Constitution affords to citizens in their relations with the Public Administration.
The Ruling is accompanied by two concurring opinions and two dissenting ones. While the authors of the former agree with the finding of unconstitutionality, they differ from the majority in terms of the grounds for that decision. The author of the first concurring opinion felt that when the law allows the accused to renounce in advance his right to discuss the predetermined assumption that a “fact” which leads to the imposition of a sanction in an administrative offence case actually existed, it is not in breach of either the guarantee of court protection against damaging administrative acts, or the guarantee of effective protection by the courts. However, for this to be so, this normative effect must be linked to a free and informed act of will on the part of the accused. Given that on the one hand the Highway Code does not currently require either the police or the administrative authorities to warn the interested party about the consequences of paying the fine voluntarily, and that on the other this rule has been interpreted in such a way as to preclude the accused from even demonstrating the existence of defects in his own will to accept the existence of the infraction, which is deduced from his voluntary payment of the fine, the author of the opinion agreed with the overall finding of unconstitutionality.
The author of the second concurring opinion differed from the majority in relation to the grounds for the decision, in that he felt that the rule in question was in breach of the principle of freedom of trial included in the guarantee of effective protection by the courts.
The two dissenting opinions were based on their authors’ opinion that the Constitution of the Portuguese Republic does not prevent the legislative authorities from equating the voluntary payment of the fine with confirmation that the infraction took place. It was of decisive importance to this understanding that the payment is voluntary and its object is a fine. The dissenters felt that in a case involving sanctions of the type imposed for an administrative offence, confirmation of the existence of the infraction is an effect of the manifestation of the accused’s will, and that voluntary payment of the fine once proceedings have commenced is equivalent to a confession that he has committed the transgression and thus to the definitive establishment of the facts that are relevant for the purpose of conviction.