Proportionality of restrictions on the fundamental right to choose and exercise one’s profession - in casu, private security activities – subsequently to a criminal conviction
Fundamental Rights, exercise;
Fundamental Right, restrictions;
Penalty, Criminal Law;
Penalty, restricting freedom, aims;
Profession, access, conditions;
Profession, freedom to choose;
Protection of the interests and security of state, situations;
Security of the persons;
Security service, acess;
Value, constitutional, conflict;
RULING No. 376/2018
04 of July of 2018
I - The Ombudsman has requested for the constitutionality review of Article 22 paras (1) (d) and (2), of Law 34/2013 of 16 May, which specify that the granting of permission for the exercise of a private security activity is dependent on the verification of the non-existence of a conviction for the commission of an intentional crime with res judicata force.The Constitutional Court declared these norms unconstitutional with general binding force for breach of Article 47 (1) in conjunction with Article 18 (2) of the Constitution.
II - Acknowledging that private security services are complementary in nature to the functions of public security, protection of persons and goods and prevention of unlawful acts exercised by the State, as well as the risks associated with the private pursuit of these objectives, it seems clear that the regulation of private security services by the State is in the public interest and that the provision of these services should be subject to the verification of certain legal requirements and conditions that enable the exercise of this activity.
III - Article 30 para 4 of the Constitution [«No penalty shall entail the loss of any civil, professional or political rights»] is aimed at minimizing the stigmatizing effects of penalties by excluding the loss of civil, professional or political rights as an ope legis effect of penalties to the benefit of a decision that weights up the specific circumstances of each case. Indeed this is the sole means to ensure that the constitutional principles of guilt and proportionality are given autonomous consideration and to avoid, as a necessary effect connected with a previous criminal conviction or criminal penalty the loss of any civil, professional or political rights, as set forth in Article 30 (4).
IV – Although the Constitutional Court has repeatedly applied Article 30 (4) in cases where the loss of rights arises as a necessary effect of a criminal conviction , it has also in a number of situations favoured the application of Article 18 (2) [The law may only restrict rights, freedoms and guarantees in the cases expressly provided for in the Constitution, and the restrictions shall be limited to what is necessary to safeguard other constitutionally protected rights or interests], framing the norms under appreciation as a restriction of a given fundamental right.
V – The verification of the aforementioned requirement - ie, the non-existence of a criminal conviction as an enabling pre-condition to exercise a private security activity - is of a predominantly administrative nature and integrates a set of rules which are potentially restrictive of a fundamental right – the right to freely exercise and choose one’s profession. The Court therefore considered that the constitutionality review of the norms of Article 22 of Law 34/2013 should take place under Article 18 (2) of the Constitution and not under Article 30 (4) whose aims - to remove the stigmatizing effect of criminal penalties and to encourage the rehabilitation of the offender - are mostly of a criminal law nature.
VI - The "tension" between the prohibition enshrined in Article 30 (4) and the protection of a public interest inherent to the award of an administrative title does not mean that the constitutional values protected under each one of these norms are incompatible. The fact that Article 30 (4) of the Constitution should not be primarily applied in a situation where the legislator legitimately sought to ensure that the exercise of an activity which may collide with the fundamental rights of other citizens in the sphere of security is performed by trusthworthy individuals, does not prevent the use of interpretative elements contained in Article 30 (4), in accordance with the principle of the unity of the Constitution, namely the assessment of the proportionality of the restriction and the general principle of non-automatism of the effects of the conviction. Instead, the constitutionality review of the legal-administrative rules that establish legal requirements related to the concrete exercise of the private security profession or activity should entail prima facie, the application of Article18 (2).
VII - The fundamental right to freely choose one’s profession implies, in essence, that its holder cannot be forced to choose (and pursue) a profession, nor be prevented from freely choosing (and exercising) a given profession; as other fundamental rights, this is not an absolute right, the power to impose legal restrictions is enshrined in the Constitution and it is therefore not debatable whether the Constitution allows for the adoption of legal restrictions, based on the capacity of the holder or imposed by the collective interest.
VIII - This restriction is grounded in the consideration that the exercise of an activity directed at the protection of the security of persons and property and at the prevention of crimes should not be trusted upon those people who have been convicted for a crime; although this limitation to the fundamental right to freely choose one’s profession is constitutionally allowed and determined by the protection of public security, it is also necessary to assess whether, in pursuit of that interest, the legal measure complies with the principle of proportionality set forth in Article 18 (2) of the Constitution.
IX - The legal measure under analysis is adequate to achieve the public purpose it targets in accordance with the subprinciple of adequacy. It does not, however, pass the necessity test, as other legal measures could have been adopted which are equally suited to the pursuit of the purposes envisaged and are less burdensome for the holder of the restricted fundamental right; indeed, the law makes no for distinction according to the type or nature of the crime committed - as it had done in the past - , an abstractly relevant connection between the crime for which the person concerned was convicted and the nature and purposes underlying the exercise of private security activity.
X - The legislator did not limit the application of the legal requirement of non-conviction to a particular type of crime that could potentially collide with the collective interest of permitting that the activity of private security be exercised by someone trustworthy. This lead the Court to conclude that the principle of proportionality was violated in its subprinciple of necessity and, consequently, that the negative requirement of non-conviction for a crime in order to exercise a private security activity is deemed unconstitutional under Article 18 (2) of the Constitution.
Rulings 363/91, of 30.07.1991; 522/95, of 28.09.1995; 202/2000, of 04.04.2000; 154/2004, of 16.03.2004; 239/2008, of 13.04.2004; 368/2008, of 02.07.2008; 25/2011, of 12-01.2011; 311/2012, of 20.06.2012; 106/2016, of 24.02.2016