Decision No. 5 of 12 May 2016 on Constitutional Case No. 2/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a five-member panel of the Second Division of the Supreme Administrative Court seeking a declaration of unconstitutionality of Article 100, paragraph 2 of the Civil Servant Act.
Summary of the Court’s Reasoning
The temporary suspension from work under Article 100, paragraph 2 of the Civil Servant Act - until the completion of the criminal proceedings against the suspended civil servant - constitutes a restriction of the right to work under Article 48, in conjunction with Article 16, and of the related right under Article 51, paragraph 1 (right to social security) of the Constitution.
Its purpose is to protect the specific authority of the civil service, which could be undermined if the person continues to perform activities in connection with which criminal proceedings have already been initiated against them. At the same time, it aims to prevent actions by that person that could obstruct or hinder the criminal prosecution.
Any restriction of a constitutional right requires an assessment of proportionality.
The absence of a differentiated approach that takes into account both the position of the respective person within the hierarchy of the civil service and the degree of social danger posed by the alleged offence leads to identical legal consequences regardless of potentially significant differences.
The fact that the suspension is not subject to substantive judicial review makes it impossible to effectively exercise the civil servant’s right of defence. Therefore, the contested provision is incompatible with Article 56 (right of defence) of the Constitution.
The achievement of the legitimate aim is entirely possible through the other mechanisms provided by law - not only under Article 69 of the Code of Criminal Procedure, but also under Article 100, paragraph 1, item 2 of the Civil Servant Act, which grants an additional power to the appointing authority.
For these reasons, the Constitutional Court finds that the contested provision is contrary to the principle of the rule of law under Article 4, paragraph 1 of the Constitution.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court declares unconstitutional the provision of Article 100, paragraph 2 of the Civil Servant Act.