Decision No. 10 of 29 May 2018 on Constitutional Case No. 4/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a three-member panel of the Supreme Administrative Court. The subject matter of the case concerns the constitutionality of Article 214, paragraph 2 of the Ministry of the Interior Act, which provides that: “Where a civil servant is charged as an accused for an offence committed in his capacity as an official within the meaning of Article 93, item 1, letter ‘a’ of the Criminal Code and disciplinary proceedings have been initiated under Article 207, paragraph 1, the competent authority under Articles 158 and 159 shall temporarily remove him from office.” The request argues, as the principal ground for unconstitutionality, that the provision is contrary to Article 16, Article 48 and Article 51, paragraph 1 of the Constitution, which regulate the right to work and the right to social security, as well as to the principles of proportionality and legal certainty.
Summary of the Court’s Reasoning
The Constitutional Court holds that where the restriction on the exercise of the fundamental rights to work, to freely choose a profession, and to social security of a civil servant in the capacity of an accused is not imposed for the purpose of administering justice, it directly conflicts with the relevant constitutional provision. On the basis of a fortiori reasoning, the exercise of these rights cannot be constitutionally restricted in disciplinary proceedings concerning the same act, since a disciplinary offence is of a lower degree of social danger than a criminal offence. The restriction of fundamental rights solely on the ground that criminal and disciplinary proceedings are simultaneously pending against the civil servant is contrary to Article 31, paragraph 4 of the Constitution.
The challenged legislative solution also contradicts the fundamental principle enshrined in Article 16 of the Constitution, according to which labour is guaranteed and protected by law. If suspension from office may occur due to circumstances largely beyond the will of the civil servant and may last for an indefinite period, their right to work cannot be regarded as reliably guaranteed. This applies with even greater force given the higher requirements for stability of the legal status of civil servants under Article 142, paragraph 1 of the Ministry of the Interior Act.
The rights to work and to social security are existential rights of the individual, including civil servants, as they are directly linked to the material basis of their existence. The indeterminacy of the period of temporary removal from office solely due to the existence of two pending proceedings, combined with the severity of the legal consequences, undermines legal certainty. These consequences apply to the entire category of officials subject to such proceedings, regardless of their individual circumstances and notwithstanding Article 31, paragraph 3 of the Constitution, under which an accused person is presumed innocent until proven guilty by a final judgment. This principle also applies in disciplinary proceedings, where the disciplinary offence is deemed established upon the entry into force of the disciplinary sanctioning act, as follows from Article 56, sentence 1 of the Constitution. Only after these two moments may the adverse consequences of the proceedings (their so-called extraprocedural effect) constitutionally arise as an essential element of legal certainty.
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 Article 214, paragraph 2 of the Ministry of the Interior Act to be unconstitutional.