Competence to impose sanctions of an administrative-offence type – legal regime governing games of chance
Principle of the separation of powers;
Non-criminal sanctions that do not restrict personal freedom;
Guarantees pertaining to the defence;
Neutrality of the decision-maker.
RULING No. 404/13
15 of July of 2013
The norm that can be deduced from the conjugation of a norm which says that the Management of the Gaming Department of the Santa Casa da Misericórdia de Lisboa (SCML, an institutional charity funded in part by gaming revenues) has the competence to decide administrative-offence cases that fall within the scope of its responsibilities and impose fines or other accessory sanctions on the one hand, with a norm that entrusts the same Department with the authority to decide administrative-offence cases regarding the unlawful operation of lotteries, betting and similar activities with a view to imposing penalties provided for by law on the other hand, is not unconstitutional.
Only the courts can impose security measures and penalties, but the principle that some matters can only be decided by a judge does not apply to the imposition of non-penal sanctions that do not restrict people’s freedom, because such impositions do not constitute the administration of justice. They can be ordered by the administrative authorities, on condition that the ability to effectively resort to the courts is guaranteed and the accused person is ensured the guarantees applicable to his/her defence. The essence of the principle that accused persons are entitled to a defence is valid in every domain in which sanctions can be imposed. Without prejudice to the fact that accused persons in administrative-offence proceedings enjoy various guarantees with regard to their defence in terms of both administrative and jurisdictional procedure, an omission of those guarantees during the administrative phase of an administrative-offence case does not imply a breach of the right to fair process, because that right must only obligatorily be observed as part of the procedure involved in jurisdictional proceedings.
In the present case it was clear from both the failure to concretely invoke any facts that would have demonstrated it, and from the facts in the case file that were deemed proven, that during the administrative phase of the administrative-offence proceedings there was no deprivation of any rights to participate in those proceedings or of any rights to a defence. The court whose decision was contested in the present case limited itself to saying that the simple circumstance that Santa Casa da Misericórdia de Lisboa accumulates the roles of holder of the public concession for state-approved gaming and of entity charged with the exercise of powers to impose sanctions in administrative-offence proceedings regarding unlawful gaming is capable of endangering the impartiality needed to find accused persons guilty of administrative offences and impose sanctions on them accordingly, and that the applicable norm was thus unconstitutional. The Constitutional Court, however, concluded that there was no violation of the constitutional norm that enshrines the rights to a defence in administrative-offence proceedings, and that there was therefore no unconstitutionality in this respect.
The Constitutional Court is limited to reviewing the norm(s) that the decision before it has applied or refused to apply. However, it can also conduct that review on the basis of any breach of constitutional norms or principles other than those whose violation was invoked in the court a quo. As such, in the present case the Court analysed the norm to see whether it contradicted any other constitutional norms.
The Court held that although the principle of a state based on the rule of law means that there must be fair process in every stage of administrative-offence proceedings, and that this includes the requirement that the structural organisation and normative configuration of the procedure enable whoever investigates and decides in the administrative phase to fulfil requisites of disinterestedness and impartiality, unlike judicial impartiality, the impartiality which the Administration must possess does not imply that the decision-maker has to be neutral. The administrative authorities pursue the public interest(s) for which the law makes them responsible, even when they impose sanctions for mere social administrative offences. They do not decide conflicts between public and private interests. The decision in the first phase of mere social administrative cases is in principle taken by the Administration, and the legislator did not subject this process to the accusatory principle.
As the holder of a concession for a public service and the entity entrusted with the exercise of functions involving the imposition of sanctions of the type applicable to administrative offences, SCML is automatically required to respect the general principles of Administrative Law that are expressly derived from the so-called “constitutional corpus”.
It would only be possible to conclude that SCML’s decision to find an accused person guilty and impose sanctions was illegal if it were jurisdictionally alleged and proven that the decision was in concrete violation of this principle.
This case entailed a mandatory appeal by the Public Prosecutors’ Office against a ruling in which the Porto Court of Appeal refused the application of a norm that gives the Gaming Department of the Santa Casa da Misericórdia de Lisboa the competence to hear administrative-offence cases regarding unlawful gaming activities, because it considered the norm unconstitutional.
The Constitutional Court rejected the Court of Appeal’s reference to the effective enjoyment of the right to fair process, “in the sole sense derived from Article 47 of the European Charter of Fundamental Rights”, which it said was not relevant here. The norms enshrining fundamental rights contained in the European Union Charter of Fundamental Rights (EUCFR) “are addressed to the institutions, bodies and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law” (Article 51 EUCFR). In the case before the Court, the only issue was the application of norms derived from internal legislative acts and not from sources involving European Union Law.
SCML is a private-law legal person that has been granted administrative public interest status. It is thus a private institution that acts in the public interest. It undertakes activities which belong to the administrative sphere and which the legislator recognises to be of important public interest. These include the management of games of chance. The legislator has reserved the right to organise betting and lottery games to the Portuguese State, and has awarded SCML the concession to operate the gaming system.
SCML is thus part of a broad functional concept of a public administration. Its Gaming Department is an organisational division of the private legal person SCML, and a unit to which powers are attributed, especially those regarding the gaming operations for which that legal person holds the concession. It is therefore not appropriate to invoke the right of access to the courts, in the sense of a right to fair process, because this is to call on a constitutional norm when what is at stake is a typically administrative form of action.
The norm under review in the concrete case before the Court refers to an administrative power of a type used to impose sanctions, which is circumscribed to an administrative phase of an administrative-offence procedure. It would only be possible to invoke the right to fair process if the issue were the exercise of subjective rights in the jurisdictional phase of that same administrative-offence procedure.
Inasmuch as sanctions for administrative offences are designed to both generally and especially prevent the commission of acts which, albeit illegal, do not entail enough legal detriment to justify their criminalisation, the legislator has given the public administration the powers to itself verify compliance with the norms and sanction unlawful acts in the case of infractions. This punitive function exercised by the public administration does not undermine the principle of the separation of powers, because it does not encroach on the core of the jurisdictional function. It is to the Courts that the Constitution entrusts the defence of those of citizens’ rights and interests that are protected by law, the repression of violations of democratic legality, and the function of deciding conflicts between public and private interests. However, this constitutional command does not exclude the exercise by a variety of administrative entities of sanctionative powers intended to repress violations of democratic legality, which some authors describe as “para-jurisdictional powers”.
Rulings nos. 49/13 (22-01-2013); and 278/11 (7-06-2011).