Public Service Law – Disciplinary Law
Public sector retirement;
Functions of disciplinary penalties;
Public sector retirement pension;
Loss of rights;
Dignity of the human person;
Right to a minimum needed for a decent standard of living.
RULING No. 858/14
10 of December of 2014
A Public Security Police Disciplinary Regulations (RDPSP) norm said that retired staff and agents could lose the right to a pension for a period of four years for infractions which they had committed before retirement and which would have led to their dismissal if they had not retired in the meantime. This norm did not safeguard a minimum income that would enable such pensioners to satisfy their basic needs and was thus unconstitutional.
The right to a public sector retirement pension can be claimed when the public servant ceases his/her active professional life. As a rule, at that point pensioners no longer enjoy mechanisms that would enable them to protect and provide for themselves and adapt their behaviour to new circumstances, and their earning capacity may be diminished by their age. The material sacrifice that may be imposed on them by losing the right to a pension because they committed a disciplinary infraction when they were still on active duty cannot normally be made up from other economic resources available to them by other means. In the absence of a safeguard clause that precludes eliminating the entire pension for a given period of time, the pensioner may be placed in a hardship situation that may even endanger his/her basic living conditions.
The imposition of a sanction that leads to total deprivation of the retirement pension of a public servant who has already left the service due to retirement cannot be intended to have any special preventative effect, because that person is no longer in a position to commit the same infraction. It can only be justified by goals of retribution and general prevention based on the dual need to punish the person in question for the damage caused by the unlawful fact for which he/she is responsible, and to dissuade other staff who are still active from doing anything similar.
However, by completely eliminating the pension, the measure before the Court went beyond the strictly pecuniary nature of a disciplinary penalty and affected the agent’s means of subsistence, depriving him for a long time of the payment that ought to have replaced the income he earned by working. The measure had this ablative effect not within the framework of a working relationship, but within the scope of what was now a legal social security relationship. The latter is based on a principle under which a person pays contributions and receives a benefit, and is underlain by the assumption that there will be a direct correlation between the right to receive payments and the obligation to contribute.
Moreover, a measure whose effects on the amount of a pension and on the length of the period for which it is lost are predetermined, without any way of weighing up the effect it has on the accused person’s basic living conditions, undermines the aspect of the principle of proportionality under which a measure must be necessary or requirable. In other words, any legislative solution needs to ensure a minimally decent standard of living, even if this means extending the duration of the penalty in such a way as to diminish the accused’s assets by the same amount but over a longer period of time, thereby equally effectively achieving the goals of retribution and general prevention without endangering the right to subsistence.
It was argued that such retirees have a right to material assistance within the overall framework of a non-contributory social protection system which is funded by transfers from the State Budget and is intended to deal with hardship situations. Exercising this right for four years instead of receiving the pension they were deprived of for that time would concretely fulfil their right to a dignified standard of living. However, the Court said that it was illogical and unnecessary to use this as a way of replacing pensions formed under a compulsory, contributory social protection system, without at all taking into account the negative effect this might have on the life of the people targeted by the measure. This legislative measure was in itself capable of creating situations of hardship and material insecurity. The fact that such situations could then be remedied by other forms of material assistance (social welfare mechanisms within an overall social security system) was not enough to defend the norm from the accusation that it was unnecessary and excessive.
This concrete review case resulted from an appeal against a decision of the Supreme Administrative Court (STA). The appellant was a retired police (Public Security Police, PSP) officer who was sentenced to the loss of his right to a pension for four years for infractions committed when he was still on active duty, under a norm that allowed the disciplinary penalty of dismissal from the service to be substituted by this loss of pension.
A norm with an identical scope used to exist as part of the Disciplinary Statute governing Staff and Agents of the Central, Regional and Local Administration, but was revoked upon entry into force of a 2008 Law that made a number of innovations in relation to the previous version of the Statute.
The court a quo gave no indication that the appellant possessed assets or other forms of income that could have provided for his life needs and have prevented the alleged violation of the principle of human dignity which he brought before the Constitutional Court. In the absence of any elements of this kind, the Court therefore analysed this question of constitutionality in the light of the legal effect which directly resulted from the norm – i.e. the suppression of the right to a pension for a given period of time, and the ensuing deprivation of the economic conditions that ought to have provided for the pensioner’s upkeep in the place of his previous salary.
In the past the Constitutional Court had already used the fundamental right to a dignified standard of living as a parameter for its decision on the constitutional conformity of legal provisions that cause retired public servants to lose the right to a pension for an infraction that would have caused their dismissal had they still been working. In doing so its point of reference was its prior jurisprudence on the unconstitutionality of norms that allow the attachment of income derived from social pensions or pay from work when that income is not greater than the national minimum wage.
This jurisprudence is not entirely uniform. On the one hand, it includes Rulings in which the Court: found no unconstitutionality in the part of a legal regime that is designed to fulfil the guarantee that pensioners enjoy a minimally dignified level of subsistence regime by precluding the attachment of benefit payments from social security institutions in certain circumstances; considered unconstitutional certain procedural norms that would have allowed the attachment of parts of pensions or salaries with a total value not exceeding the national minimum wage and would thus have brought the recipient’s income below that wage; and found that the deduction of amounts from a parent’s social invalidity pension in order to pay maintenance to an underage child, but which would have deprived the parent of the income required to satisfy his essential needs, was also unconstitutional.
On the other hand, in a situation that was quite similar to the one in the present case, the Court found that it was constitutionally permissible for a retired public servant to lose an amount in pension due to a disciplinary infraction he committed when he was still active.
In reaching the present decision, the Court attached special importance to the difference between the imposition of a penalty and the satisfaction of a credit. The retirement pension was not lost because it was attached with a view to coercively fulfilling a credit right which the debtor (the pensioner) had not satisfied voluntarily; it was instead a disciplinary penalty designed to pursue goals of exacting retribution and generally preventing other occurrences – goals that would have been definitively prejudiced if agents who committed infractions were exempt from penalty because they had retired in the meantime.
Another argument that had been put forward in the past was that if the application of the legal regime in question had deprived the pensioner of the minimum considered indispensable in order to ensure a minimally dignified level of subsistence, he/she could have resorted to the normal social welfare mechanisms which the Portuguese system provides for in situations of unacceptable social hardship.
After considering all this past jurisprudence, the Court agreed that the imposition of a disciplinary penalty and the fulfilment of a credit right are indeed different, because what is at stake in the former is the public interest in punishing an infraction that was in breach of certain operational duties, even though the penalty itself was imposed after the person in question had retired.
The Court also accepted that the interested party could indeed always resort to welfare mechanisms if he was deprived of the minimum deemed indispensable to a dignified subsistence, and that this meant there would then be no violation of the principle of the dignity of the human person.
However, the Court then went on to emphasise that although one must recognise that the loss of the right to a pension due to commission of a disciplinary infraction on the one hand, and the attachment of salaries or social benefits in order to coercively fulfil a credit right on the other, are subordinated to legislative policy reasons with different degrees of importance, when it is applied to either of these situations the fundamental right to a dignified standard of living, which itself arises from the principle of the dignity of the human person, is subject to the same relative valuation criterion.
In its jurisprudence the Court has recognised that the dignity of the human person is a principle which can also be directly invoked in the field of the protection of material living conditions. Each time the Court has looked at the essential core of the guarantee of a dignified standard of living, which is inherent in the respect for the dignity of the human person, it has repeatedly and constantly used the amount of the national minimum wage as its reference point. This amount was defined as being the minimum of minima, and therefore cannot be reduced for whatever reason.
The Court has taken the view that the Constitution does not permit the attachment of social benefits whose amount does not exceed the national minimum wage, and that it precludes any attachment of labour income that might cause the worker/debtor to no longer have at least the national minimum wage available to him/her, even if he/she does not have any other assets or income that can be attached. In another type of situation, the Court has also used the guarantee of a minimum level of subsistence to decide that it is constitutionally justifiable for the law to require insurers to update the annual amount of pensions due as the result of deaths caused by work-related accidents.
The Court considered that there was no reason why this same principle should not apply to the elimination of the whole of a retirement pension for a continuous period of four years, even when this results from the imposition of a disciplinary measure.
Such disciplinary measures are designed to protect the proper operation of the Public Administration, and their primary purpose is a form of special prevention, the goal of which is to motivate the administrative agent who committed the disciplinary infraction to fulfil his/her duties in the future. The goals of retribution and general prevention are seen as secondary. In disciplinary law, objectives linked to general protection are relegated to secondary status, quite apart from anything else because of the principle that a measure must be opportune, under which the Administration is free to implement a disciplinary procedure or not, based on its decision in the circumstances as to whether it is opportune from the point of view of the public interest to exercise its disciplinary power.
Since the entry into force of a 2008 Law, termination of a legal public employment relationship in the Central, Regional and Local Administration extinguishes any outstanding disciplinary matter (on condition that the relationship is not subsequently renewed).
In the decision that was the object of the present appeal, the court a quo had also argued that application of the principle that people must enjoy a dignified standard of living could undermine the ability to impose penalties involving actual dismissal from the service, because dismissal also eliminates the dismissed person’s income. However, the Court said that this situation is not comparable to the loss of the right to a pension. The effects on the dismissed person’s assets caused by this measure and the resultant elimination of the remuneration paid in return for doing the job are the mere consequence of the termination of the labour relationship. Given that there is nothing to prevent the dismissed agent from taking up another occupational position, he/she can not only secure other sources of income via the labour market, but as a last resort also continues to enjoy the right to unemployment benefits with which the welfare system replaces the income from work in such cases.
In the light of all this, the Court found the norm unconstitutional.
Rulings nos. 105/90 (29-03-1990); 232/91 (23-05-1991); 349/91 (03-07-1991); 411/93 (29-06-1993); 62/02 (06-02-2002); 177/02 (23-04-2002); 306/05 (08-06-2005); 442/06 (12-07-2006); 518/06 (26-09-2006); 28/07 (17-01-2007); and