Criminal Law – personal rights, freedoms and guarantees
Private security work;
Crime of domestic violence;
Renewal of professional accreditation;
Loss of civic, professional or political rights;
Necessary effects of penalties;
Prohibition on automaticity of penalties.
RULING No. 748/14
11 of November of 2014
No unconstitutionality was found in a norm that establishes the requisites for, and the causes of disqualification from, the work of private security guard, when interpreted to mean that the commission of a crime of domestic violence automatically leads to denial of an application to renew a private security guard’s professional accreditation. This norm is included in an Executive Law that regulates the profession in question. The solution chosen by the legislator takes the commission of wilful crimes punishable by a maximum prison term of more than three years as evidence that the person concerned is unfit to perform the work of private security guard, but does so after listing the crimes in question, which it considers incompatible with exercise of the professional activity regulated by the norm. The concrete case that was brought before the Court entailed a crime against the person, and there was a sufficiently strong link between the legal type of crime that had effectively been committed and the type of professional activity which the norm seeks to disallow in such cases. In reaching its decision, the Court said that it was necessary to remember the inherent importance of and risk posed by the work of private security guards in a state based on the rule of law, particularly bearing in mind the technical resources that may be available to such persons in some situations. In addition, the restriction does not last indefinitely, inasmuch as the regime provided for in the norm does not exclude the possibility that a court can subsequently wipe the offender’s record clean (‘judicial rehabilitation’).
The Constitutional Court thus ruled that the norm before it is not in breach of the constitutional principle under which penalties cannot have automatic effects.
This concrete review case resulted from an appeal by the Interior Ministry.
A legal norm lists a number of crimes, the maximum possible penalty for all of which is more than three years in prison. The object of the review was the part of that norm which says that conviction for any of those crimes means that an application to renew the convicted person’s professional accreditation as a private security guard must automatically be denied.
The court a quo refused to apply this norm, basing itself on the constitutional norm which contains the principle that automatic penalties are prohibited. This principle is intended to prevent a criminal conviction from having an automatic effect on the convicted person’s civic, professional or political rights. Its ratio is simultaneously that of obviating the stigmatising and criminogenic effect of penal sentences, and preventing the violation of the principles of proportionality and that guilt must be established, by making it impossible for there to be fixed penalties in criminal cases.
Prior to this Ruling the Constitutional Court had already been developing a body of case law on the principle that automatic penalties are prohibited. This jurisprudence contains a number of important examples of its implementation that were relevant to the present decision, both in terms of the constitutional concept of the “loss of civic, professional or political rights”, and as regards what is meant by the “necessary effects” of criminal penalties.
The Court emphasised that dismissal, demotion, non-promotion, suspension, cancelation of a professional registration and the revocation or otherwise of a licence to engage in a particular occupation all fall within the scope of this constitutional concept.
In its past cases the Court had gradually been accepting that the concepts of a prohibition on “necessary effects of criminal penalties” and of a prohibition on “automatic effects linked to conviction for committing certain crimes” are one and the same thing.
An important aspect to bear in mind when delimiting the situations that are constitutionally unacceptable in the light of this parameter is whether or not accessory sanctions or certain types of effect are imposed mechanically, and the judge in the proceedings or the administrative authority with the competence to issue a licence for the occupation concerned is or is not empowered to concretely determine the relative weight of the relationship which the legislator has established between those sanctions or effects on the one hand and the negative value of the conduct that leads to their imposition on the other.
In the past, in determining the applicability of the constitutional norm that prohibits the automatic nature of criminal penalties the Constitutional Court had come to prefer the criterion of whether or not the law permits value judgements or relative weightings which can preclude that automaticity.
However, there are cases in which the Court either did not consider an effect to be automatic, or identified a sufficiently relevant link between the crime that has been committed and the activity that requires a licence, and decided that this meant the normative provisions in question were not unconstitutional.
In one example the Court considered the constitutional validity of a norm that causes a hunting licence to lapse whenever its holder is convicted of a hunting-related crime. The Court found that this norm was not unconstitutional, because hunting is an activity that can only be undertaken by subjects who demonstrate a specific training or aptitude, and because this rule is in turn justified by the need to protect environmental values to which the Constitution itself attaches value.
In another case, the Court also found no unconstitutionality in the part of an Executive-Law norm whereby conviction for the crime of driving under the influence of alcohol always leads to the accessory sanction of a driving ban. The Court considered that the driving-ban measure was configured as part of a composite penalty, each part of which is evaluated in accordance with the same criteria. Both the imposition of a driving ban and that of a prison term or fine are based on proof that the accused person was responsible for the fact that typifies the crime and criminally guilty of having committed it, without the need to prove any additional facts.
In the Court’s view the constitutional norm that serves as a parameter for the present Ruling does not prohibit outright legal norms which provide for rigid sanctions, albeit in order not to be prohibited, such provisions must be reasonably proportionate in relation to every form of behaviour that can constitute the legal type of crime in question.
In the case before it here, the Constitutional Court found that the non-renewal of a private security guard’s professional accreditation is equivalent to a loss of professional rights for the purpose of the provisions of the constitutional norm which the court a quo held had been broken. Moreover, this failure to renew can be said to configure an automatic effect if a person is convicted of one of the crimes listed in the Executive-Law norm – i.e. an effect that is mechanically derived from the norm. This is the same thing as saying that, in this matter, the administrative body with competence to decide the renewal does not enjoy any leeway within which it could otherwise decide, on a case-by-case basis, whether there was a link between the commission of a given crime and the loss of the professional right in question.
However, the Court ruled that the absence of this power to gauge value in a given case is not enough to unequivocally say the precept is unconstitutional. The factor that would determine its unconstitutionality would be if it were not possible to foresee an abstractly strong connection between the crime that is committed and the activity that is subject to licencing – i.e. the existence of a link with the ability to justify the proportionality of the automatic nature of the effect. If such a connection were to exist, it would preclude the existence of a manifest lack of proportion between the unlawful fact and its effect under the norm, this in turn would mean that the principle that excess is prohibited was not violated, and thus finally that there was no breach of the constitutional principle whereby automatic criminal penalties are forbidden.
Looking specifically at the crime of which this former security guard had been convicted, the Court found that such a link does exist and therefore concluded that the norm before it was not unconstitutional.
The Ruling was unanimous.
Rulings nos. 91/84 (29-08-1984); 255/87 (26-06-1987); 363/91 (30-07-1991); 291/95 (07-06-1995); 522/95 (28-09-1995); 53/97 (23-01-1997); 202/00 (04-04-2000); 461/00 (25-10-2000); 149/01 (28-03-2001); 562/03 (18-11-2003); 154/04 (16-03-2004); and 25/11 (12-01-2011).