TSJ de Cataluña - 9946/2022
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| TSJ de Cataluña - 9946/2022 | |
|---|---|
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| Court: | TSJ de Cataluña (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas Ley Orgánica 15/1999, de 13 de diciembre, de Protección de Datos de Carácter Personal Ley Orgánica 4/2010, de 20 de mayo, del Régimen Disciplinario del Cuerpo Nacional de la Policía |
| Decided: | 24.11.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 9946/2022 |
| European Case Law Identifier: | ES:TSJCAT:2022:9946 |
| Appeal from: | National Police Directorate General |
| Appeal to: | |
| Original Language(s): | Spanish |
| Original Source: | Poder Judicial (in Spanish) |
| Initial Contributor: | Michelle Ayora |
The High Court of Justice of Catalonia upheld the appeal submitted by the data subject, a police officer, against one resolution by the Police Directorate General that suspended them from their duties due to a serious violation of their functions. Their data collection within the disciplinary proceeding did not observe the principle of proportionality.
English Summary
Facts
This ruling started by the appeal that the data subject submitted to the High Court of Justice of Catalonia against the resolution of the Police Directorate General in which the data subject was suspended from their duties due to a serious violation.
On the 5th of April of 2019, the data subject was assigned one shift which finished at 7. The data subject is a police officer who works at the Border Inspection post at Barcelona airport and that day, around 4:25 manifested feeling sick and having migraines which was written down in a statement that was handed over to the Inspector to finally leave their place of work. However, it was later discovered that the data subject went back to the airport at 6:25, took a flight to Tenerife and that the purchase of the ticket was done the 28 of March of that year.
The resolution challenged states that the data subject deliberately faked their sickness to be able to take that plane and to leave their place of work which is foreseen in the Law regarding the disciplinary regimen of the National Police (Ley Orgánica 4/2010, de 20 de mayo, del Régimen Disciplinario del Cuerpo Nacional de la Policía) as a serious violation.
The defendant claimed, among other things, the nullity of the resolution due to the unlawfulness of the evidence since the access to the data regarding the boarding of the flight was done in violation of their fundamental right to privacy and data protection and the presumption of innocence and, alternatively, the data subject claimed that the sanction was disproportionate.
Holding
The High Court took into consideration a resolution of the present case by the Spanish DPA in which the authority upheld the complaint submitted by the data subject for the unlawful collection of their data regarding the boarding of that flight.
Additionally, the Court considers that such collection could have been legal within a disciplinary proceeding -as in the present case- if the Police would have performed such investigative steps by the competent authority, however, the police officer who was in charge of asking for the information directly to the airline belonged to the ‘Foreigners’ and ‘Reaction’ groups lacking the competency required by the national law regarding Public Administration Common Proceeding (Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas), which obliges the investigative body to be vested with investigative and inspection authority before authorizing such investigative steps. In this regard, the Court highlighted that the principle of proportionality is of great importance since this would allow the intervention of public powers in a fundamental right (privacy and data protection). Also, the Court stated that this obligation is key since the collected data constitute incriminating evidence and the information obtained is personal data.
Finally, about the proportionality test, the Court listed its requirements: Such intervention must be adequate to achieve the purpose; it must be necessary, in the sense that there is no alternative less intrusive for the data subject; and it must be proportionate, meaning that it should not lead to the excessive sacrifice of the right nor it should undermine the substance of the right. This last requirement aims to avoid the achievement of the public interest at the expense of individuals’ rights.
In the present case, the Court considered that there were other measures that the Police could have put in place to achieve the same result, for instance, access to CCTV cameras (with constitutional guarantees), however, these options were not even assessed. Thus, in this case, the right to privacy and data protection suffers an excessive sacrifice according to the purpose which is the application of disciplinary measures.
For these reasons, the High Court upheld the appeal and declared the resolution null.
Comment
There was one dissenting vote. The judge considered that the officer who decided to perform the investigative steps (collecting the data) had authority for that since the law regarding the disciplinary regimen of the National Police allows the initiation of disciplinary investigations founded on suspicions by the agents and, in the present case, the colleagues of the data subject knew that it was the data subject’s practice.
Furthermore, the data collected is not sensitive and doesn't compromise the data subject’s rights since they are not shared nor used or stored for other reasons than the disciplinary proceeding.
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English Machine Translation of the Decision
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
JURISPRUDENCE
Red: STSJ CAT 9946/2022 - ECLI:ES:TSJCAT:2022:9946
Id Cendoj:
08019330042022100556
Body: Superior Court of Justice. Chamber of Contentious
Headquarters: Barcelona
Section:4
Date: 11/24/2022
Resource No.: 157/2019
Resolution No.: 4139/2022
Procedure: Ordinary appeal
Speaker: JUAN ANTONIO TOSCANO ORTEGA
Type of Resolution Judgment
SUPERIOR COURT OF JUSTICE OF CATALONIA.
CONTENTIOUS-ADMINISTRATIVE CHAMBER.
SECTION FOUR.
Appeal number 157/2019 (ordinary procedure).
Parties: Agustín, who in his capacity as official assumes his own representation and defense, against
General Directorate of the Police, represented and defended by the State Attorney Oriol Forner Rovira.
In application of the Spanish and European regulations on the Protection of Personal Data, and others
applicable legislation, let us know that the personal data contained in the procedure have
the condition of confidentiality, and the transmission or communication to third parties by any
medium, and must be treated solely and exclusively for the purposes of the process in which they appear, under
notice of civil and criminal liability.
Judgment number 4139 of 2022.
Your Excellency Madam Judge:
President Núria Bassols Muntada.
Jose Manuel de Soler Bigas.
Juan Antonio Toscano Ortega.
Hugo Manuel Ortega Martin.
In the city of Barcelona, on November 24, two thousand and twenty-two.
The Contentious-Administrative Chamber, Fourth Section, of the Superior Court of Justice of Catalonia,
constituted for the resolution of this appeal has delivered the following judgment in the contentious appeal-
administrative number 157/2019, followed by the procedures of the ordinary procedure, filed by
Agustín, who in his capacity as an official assumes his own representation and defense, against Directorate
General of the Police, represented and defended by the State Attorney Oriol Forner Rovira.
Having followed the procedure of the provisions of article 206 of Organic Law 6/1985, of the Judiciary,
Judge Juan Antonio Toscano Ortega is appointed rapporteur, who expresses the majority opinion of the Chamber.
BACKGROUND OF FACT.
FIRST.- The plaintiff civil servant files a contentious-administrative appeal against the resolution that
is identified in the first legal basis.
SECOND.- Once the initiation of these proceedings has been agreed, they are given the procedural channel provided for in the Law on
this jurisdiction, having dispatched the parties, when the time has come and by their order, the procedures conferred
1 JURISPRUDENCE
of claim and answer, in whose respective briefs by virtue of the facts and legal grounds
that appear in them, respectively request the estimate and the dismissal of the resource, in the terms
that appear in them. Continuing the process its course through the procedures that appear in the records,
having formulated conclusions by both parties, a day is set for deliberation and voting on the ruling, which
which takes place on the appointed date.
THIRD.- In conducting this proceeding, the requirements have been observed and complied with
legal.
FUNDAMENTALS OF LAW.
FIRST.- Purpose, claims and motives.
1.- About the object of the appeal.
Pursuant to the writ filing the appeal, the plaintiff, an official who assumes his own representation
and defense, directs it "against Resolution of the General Directorate of the Police dated April 29, 2019".
Specifically, said resolution of the Director General of the Police agrees:
"Impose on the Police of the National Police Corps don Agustín, the sanction of suspension of functions during
fifteen days (15 days), provided for in article 10.2) of Organic Law 4/2010, of May 20, on the Regime
Disciplinary Officer of the National Police Corps, as the perpetrator of a serious offence, typified in 8.f) under the concept:
"Not providing service, alleging alleged illness".
With a notation of the offense and the sanction in his personal file".
The sixth factual background of the sanctioning resolution lists the facts that are considered
tested.
"SIXTH: Based on the foregoing, the following proven facts result: "Around 4:25 p.m. on April 5,
2018, while Police Don Agustín was serving at the Airport Border Post
of Barcelona-El Prat, specifically in the ABC arrivals filters of Terminal 1, a service that ended at
7:00 a.m. that day, he claimed to feel unwell, with migraines, drawing up a minute in said
terms, which he delivered to the sub-inspector Mrs. Palmira. Immediately afterwards, he left his post, having Mrs.
Palmira reorganize the work with the officials who remained on duty; however, Mr. Agustín
returned to the airport and at 6:25 a.m. boarded Ryanair flight NUM000, bound for Tenerife and
arrival in said city at 9:00 a.m., given the circumstance that the purchase of the ticket for said
flight had taken place on March 28, 2018".
Regarding the means of proof to prove the reality of the penalized conduct, it is reasoned in the
legal basis first:
"FIRST: The reality of the questioned conduct has been reached and the conviction about the veracity
and the certainty of the same through the evidence practiced in the filing, constituted by the minute of the
Inspector Mr. Esteban where he gives an account of the irregularities committed by the accused (folio 6), the minute
of the accused where he communicates his indisposition (folio 7), the services quadrant (folios 8 and 9), documentation
of the airline (folio 10), together with the statement of the defendant himself (folios 51 and 52), where he acknowledges
the facts and the testimony of Sub-inspectors Mrs. Palmira (folios 78 and 106) and Mr. Fructuoso (folios 96 and 97).
In the first place, the statements made by the subject of the file himself, Mr. Agustín, in
in relation to work shifts and the acquisition of plane tickets (folio 51), since the defendant acknowledged
expressly that on March 28, 2018 he bought a plane ticket to Tenerife whose time
scheduled embargo time was 6:25 a.m. despite the fact that its service ended at 7:00 a.m., therefore the
The defendant was aware that he had to finish his service earlier to be able to board that plane.
Secondly, the defendant, being aware nine days in advance that it would be impossible to catch
that plane because it had designated service after the flight departure time, instead of having
really requested some type of permit (vacations, private affairs,...), to be able to catch that plane
without having to be absent from his job, he premeditated devised to fake a supposed
illness during the service so that in this way he can be absent from his job and take that
plane, as he did.
Thirdly, and now focusing on the day of the events, at 4:25 a.m. the defendant went to the
deputy inspector Mrs. Palmira through a minute (folio 7), in which she communicated her indisposition, said she suffered
"migraines", this ailment that, in the opinion of Mr. Agustín, prevented him from carrying out his work, although in full view of the
2 JURISPRUDENCE
facts, did not incapacitate him to, immediately afterwards, and once he left his job, get on a plane,
which, as already indicated, left at 6:25 a.m., a time when the defendant was still on duty.
It should be noted, on the one hand, that Mr. Agustín has never presented a medical certificate in
in relation to the ailment that he claimed to suffer on April 5, 2018, and on the other hand, that although Sub-inspector Mr.
Fruitful would have authorized him, unofficially, to be absent from the service in advance, it must be taken
bear in mind that on the day of the facts, Sub-inspector Mr. Fructuoso was not on duty, and, as he
He states, "These incidents correspond to the service coordinator in charge of it" (folio 97).
In addition, to authorize said departure time changes, this same Sub-inspector points out that the accused
You should start your work shift between 45 and 60 minutes before, in order to meet your working hours and leave
before (folio 96), which he did not do, because as confirmed by the Deputy Inspector Mrs. Palmira, Service Coordinator
in said shift, the defendant did not start the service in advance, but "came just at the time of the relief" (folio
113), and at no time did he ask her to be able to leave the service in advance to catch a plane,
Well, in reality what happened was that the filer, in a mendacious way, feigned an alleged illness,
as he had already planned well in advance, to be absent.
Thus, after analyzing the evidence in the filing, which dismantles the presumption of innocence of which
part of the defendant, it follows naturally and logically that the defendant had previously planned
absent from the service that had been appointed, because if he provided the service as assigned, he could not
catch the plane that left at 6:25 a.m. for Tenerife, and for this purpose, at 4:25 a.m., he claimed to be
sick, when he was really in full condition to have performed the assigned service
normally. All of this denotes contempt for the police institution and the rest of his colleagues.
whom he seriously and manifestly harmed with his deceit, since he lied about his state of health
when he was really in full condition to carry out his mission as National Police,
his absence being resented by the colleagues who had to replace him".
Regarding the principles of criminality, guilt and proportionality, the concurrence of the same
is dealt with in the third to sixth legal foundations of the sanctioning resolution (in the foundation
of second law, the statutory duties and basic principles of police action that
are considered violated).
"THIRD: Such violation of statutory duties and basic principles of action find exact
incardination in the serious fault typified in article 8.f) of Organic Law 4/2010, of May 20, of the
Disciplinary Regime of the National Police Corps, under the concept of: "Not providing service, alleging
alleged disease.
Regarding the allegation regarding the violation of the principle of classification, the Judgment must be taken into account
of the TS of July 18, 1990, which indicates that the classification of the administrative infraction is not a faculty
discretionary of the Administration, but rather a legal activity of application of the norms that
requires as a presumed objective the framing or subsumption of the offense in the legally predetermined type,
rejecting criteria of extensive or analogical interpretation. Well, the conduct in question is
can be classified in the article pointed out, since there is identity between the behavior described in the factual assumption,
that has been fully accredited, and the one that includes the respective standard, previously defined, that is,
between the facts and the legal elements that make up the material content of the unfair.
FOURTH: The defendant must respond as the author of the serious offense that was found when he attended the
him the determining elements of the condition of passive subject of the infringing type, such as voluntariness
of the action and their participation in the facts.
FIFTH: Regarding the alleged defenselessness alleged by the defendant throughout the file, it must be
It should be noted that this deprives a litigant of those appropriate procedural actions to defend
the exercised right of the process, something that has not happened in the present case since, as
accredited, all legally established procedures have been complied with, granting the filer all
transfers proceeding for the purpose of formulating allegations, a right that has been used without limitation.
Likewise, the denial of the proposed evidence does not imply defenselessness, since the right of defense does not
is configured in our legal system with unlimited content, and although it is undeniable with
disciplinary administrative procedure, by its very nature, open to the game of evidence, employment
of the pertinent means is not absolute and unconditional to the fact that all the tests are carried out, nor that
disempower the Instructor of the file of the right to prosecute its necessity. Therefore, if the Instruction,
within the freedom of appreciation, he dismissed some as useless and unnecessary, with such a decision, far from
violating any rule, it limited itself to exercising the powers conferred on it in our legal system, in
specifically article 23.3 of Organic Law 4/2010, of May 20.
3 JURISPRUDENCE
SIXTH: To determine the sanction to be imposed, as has been reiterated by jurisprudential criteria of,
among others, the Judgments of the Constitutional Court of October 3, 1983 and the Supreme Court of
September 1984, November 24, 1987 and April 26, 1989, the entity of the infringement must be considered
and concurrent circumstances, in order to achieve the necessary and due proportionality between the facts
accused and the responsibility demanded. In this sense, their conduct must be sanctioned with the criteria that
Article 12 of Organic Law 4/2010, of May 20, on the Disciplinary Regime of the National Body of
Police, establishes to graduate the sanction, which are:
- Intentionality (paragraph a), manifested in the fact of being absent from service, under the pretext
of a non-existent illness, having purchased the plane ticket several days in advance, and being
fully aware from the moment of the acquisition of the ticket that had appointed service to it
time of the flight, which denotes premeditation.
- The professional history (paragraph c), which, for these purposes, has been assessed as an mitigating circumstance.
- The disturbance in the normal functioning of the Administration or of the services that are
entrusted (paragraphs d), since given his early departure from his job, his work had to
carried out by a single official, which ultimately harmed the service, since it was carried out with a
less official, with a greater workload and more, if possible, being in Level 4 Alert
Terrorist.
- Degree of affectation to the principles of discipline, hierarchy and subordination (paragraph f), that any transgression
of norms entails, and in the present case especially because the official planned nine days in advance
in advance the trick that he was going to carry out to stop providing a full shift of service and thus be able to take
that plane".
The sanctioning resolution dedicates its last legal basis, the seventh, to rejecting the expiration of the
disciplinary procedure:
"SEVENTH: Regarding the maximum period for processing the procedure, it should be noted that in accordance with
with article 46.1 of Organic Law 4/2010, of May 20, is six months, computed from the date
of the initiation agreement until the notification of the final resolution.
Thus, having begun the calculation of the aforementioned period on June 4, 2018 (folio 1), the expiration
of the maximum term to resolve and notify the resolution of this procedure, if no
incidents in its calculation, would initially occur on December 4, 2018.
However, it must be taken into account that the term was suspended, in accordance with article 25.2 of
Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations,
from June 14, 2018 (folio 21), to November 12, 2018 (folio 36), period that the official
he remained on medical leave convalescing in Santa Cruz de Tenerife, which makes a total of 151 days of
suspension.
Consequently, the term to resolve and notify will end on May 4, 2019, the date on which
presume it will have been notified or, where appropriate, at least attempts to notify are accredited, to
effects provided for in article 40.4 of Law 39/2015, of October 1, on Administrative Procedure
Common for Public Administrations".
2.- On the claims and motives.
2.1.- The plaintiff.
In his extensive lawsuit, the plaintiff requests from the Chamber the issuance of an affirmative judgment on the appeal that
"Declare the full nullity of the appealed decision, leaving it without effect, and condemning the
Administration defendant to be and go by this declaration, with express condemnation in costs to the
demand", "And declare the expiration of the disciplinary procedure, annulling the suspension agreed by the
Mr. Instructor in accordance with the applicable doctrine of the Supreme Court, who understands that the I.T. not
It is a case contemplated in article 25.2 of Law 39/2015 to interrupt the computation of the term
maximum to resolve and notify the disciplinary resolution"; "And declare the concurrence of illegal evidence, at
having illegally accessed the appellant's shipping data with a clear violation of the right
of violation of the LOPD"; "And in a subsidiary way, declare the disproportionate sanction imposed;
secondarily, is penalized as the author of a minor infraction of article 9.c) or alternatively of article
i), both of Law O.4/2010, punished with the sanction of suspension of functions of one day 4 days, ex article
10.3 of the aforementioned legal text". After exposing the background that he considers relevant, he bases
those claims, main and subsidiary, in the grounds of the appeal that under the common heading "Fund
of the matter" (with a total of 20 legal foundations) comes to articulate in the following order (they are presented
4 JURISPRUDENCE
then as a tight synthesis, although in many of them the denunciation of vices is intermingled
substantial and procedural, such as criminality, guilt and its motivation, proportionality and the
expiration):
1.- The justification for the conduct of absence in the workplace and the non-existence of the serious infraction
sanctioned ex article 8. f) of the Organic Law 4/2010; secondarily, it would be a minor infraction, ex
article 9, sections c) or i) of the same Organic Law (all on the grounds of law first to
ninth of the application, pages 3 to 13).
2.- The illegality of proof of charge (shipment data) obtained in violation of the fundamental right to
protection of personal data from disproportionate access to the same requested without
authorization to the airline company (foundations of the ninth to the thirteenth law of the claim,
pages 13 to 40).
3.- Violation of the right to defense by being prevented from being present and participating in the practice of all
the witnesses in the disciplinary file (foundation of law fourteenth of the claim,
pages 40 to 53).
4.- Defenselessness caused by the inadmissibility of proposed relevant evidence (foundation of law
fifteenth of the application, page 53).
5.- The expiration of the disciplinary procedure, especially since it does not constitute a legal assumption of suspension
from the computation of the term the situation of temporary incapacity of the file (foundations of law
sixteenth to twentieth of the application, pages 54 to 90).
2.2.- The defendant.
The defendant is interested in the Chamber that dictates "sentence by which the present appeal is dismissed
contentious-administrative". After identifying the challenged administrative act and describing the claims and
reasons for the appeal, the State Attorney, on the basis of law III of his response to the claim,
fights the appeal in accordance with the reasons for opposition that it orders and signs as follows.
1.- "First.- Justification or not for the abandonment of the job" (foundation of law III of the
response to the complaint, pages 3 to 6).
2.- "Second.- Of the legality or illegality of the evidence" (foundation of law III of the answer to the claim,
pages 6 to 8).
3.-"Expiration of the procedure" (foundation of law III of the response to the claim, pages 8 to 11).
4.- "Fourth.- Of the defenselessness caused in the disciplinary administrative procedure by not having been
summoned for all the interrogations of all the witnesses" (foundation of law III of the answer to
the lawsuit, pages 11 and 12).
5.- "Fifth.- Defenselessness caused by the inadmissibility of part of the evidence" (foundation of law III of the
response to the complaint, pages 12 and 13).
6. "Sixth.-Subsidiarily, the disproportion of the penalty with respect to the sanctioned conduct" (foundation
Law III of the response to the claim, pages 13 to 16).
SECOND.- Decision of the controversy raised in the proceedings regarding formal and substantive issues,
in this order, the procedural expiration and the principles and guarantees of administrative law
sanction regarding the presumption of innocence (above all, proof of illegal charge, and right to
defense), criminality, guilt and proportionality.
The operative part and the legal foundation of the tax resolution have been reproduced above
Of the sanction (which deals in this order with the questions of the existence of evidence in the disciplinary file
leading to the statement of proven facts; Statutory duties and basic principles of action
police; typicality; authorship and guilt; right of defense; proportionality; expiration), as well as the
reference to the claims and motives of the parties in this court, which revolve around this
order (altering in part the one followed in the disciplinary resolution) to the principles of criminality, guilt,
presumption of innocence, proportionality and procedural expiration. It is strictly necessary that the examination of the
Chamber must start with the denounced procedural or formal defects, and then, if applicable, the
substantive, which could determine in the event of any of them the nullity of the action
administrative sanction, reasons that it is good to deal with following the order set forth in the heading of the
present legal basis, beginning with the procedural expiration and continuing with the denounced
illegality in obtaining proof of charge, regarding which the plaintiff and defendant focus and
5 JURISPRUDENCE
concentrate their argumentative efforts (in fact, expiration and illegal evidence are expressly included
in the request of the demand) e a se , in such a way that if any of them were accepted, it would determine not to enter
examine the remaining grounds of the appeal. Although prior and to frame for illustrative purposes
various aspects of the controversy, it is not necessary to bring some normative and jurisprudential considerations
on those principles of sanctioning administrative law at stake.
1.- Some normative and jurisprudential considerations of general scope on those principles
of the penalizing administrative law at stake (typicity, presumption of innocence, guilt and
proportionality).
There is no doubt that administrative acts of the nature of the respondent in instance,
sanctioning or disciplinary, which express the exercise of a regulated administrative power and
non-discretionary, even through the use of indeterminate legal concepts that does not mean
indeterminable, they must necessarily be motivated sufficiently and without being enough for it
mere generic or stereotyped references to the general provisions applicable without attention to the
specific circumstances of the case in question. This, since it is settled jurisprudence that
the motivation of the administrative acts is precisely what makes it possible to verify in each case that the
The actions of the public administration objectively serve the general interests (article 103.1 of the
Spanish Constitution) and is adapted to the fulfillment of the purposes indicated by the legal system. In
cases such as the case file, it is examined by the judicial body called upon to resolve whether both the factual result
of the specific case such as the legal foundations of the administrative sanctioning or disciplinary appeal appealed
Regarding the so-called objective and subjective elements, they appear sufficiently expressed in the
sanctioning resolution.
It is known the capital importance that, without a doubt, it has in administrative sanctioning matters in the
framework of the social and democratic State of law proclaimed in article 1 of the Constitution, the
due effectiveness of the principle of typicality, whose requirement certainly derives from our legal system
administrative sanction, as a manifestation of the formal and material guarantees contained in
the constitutional principle of penalizing legality ex article 25.1 of the Constitution. Sign up without a doubt
any sanctioning action in the legitimate exercise by the defendant state administration of
the corresponding sanctioning power, so that the total regulatory coverage of said
sanctioning power of the defendant administration.
Requirements of the principle of criminality in administrative sanctioning matters that, as is well known,
despite the notable laconicism and taking into account the implicit content of the aforementioned article 25 of the Constitution
(Sentence of the Constitutional Court 34/1996, of March 11), has already been highlighted since ancient times by the
constitutional jurisprudence in relation to what has come to be called the material guarantee of the principle
of legality (among many others, since Constitutional Court ruling 42/1987, of April 7, for the
judgments of the Constitutional Court 3, 11, 12, 100 and 101/1988, of June 8, 161, 200 and 219/1989, of
December, 61/1990, of March 29, 207/1990, of December 17, 120 and 212/1996, 133/1999, of July 14,
142/1999, of July 22, and 60 and 276/2000, of November 16), which comes to be identified with the traditional
principle of typicity of offenses and administrative sanctions (sentences of the Supreme Court, Third Chamber,
of dates January 16 and June 8, 1992, February 5 and October 2, 2002) and that always requires the
necessary certain normative predetermination of the specific conducts that by action or omission are considered
constituting an administrative offense, with a prohibition of possible analogical interpretations to that effect
or extensive in malam partem (Constitutional Court ruling 125/2001, of June 4, citing its
previous judgments 81/1995, of June 5, 34/1996, of March 11, 64/2001, of March 17, and order of the
Constitutional Court 3/1993, of January 14, and 72/1993, of March 1; as well as the judgment of the Court
Supreme Court, Third Chamber, of May 30, 1981, of June 4, 1983, of December 29, 1987, of
October 1998, February 22, 2000 and March 3, 2003). Or put it in his own words
Constitutional Court, among many other previous and subsequent ones in its judgment 113/2002, of May 9,
in the following terms:
"(...) Specifically, in relation to the material guarantee to which the sanctioning power of
Administration, we have specified that normative predetermination supposes the existence of precepts
legal (lexprior) that make it possible to predict with a sufficient degree of certainty (lexcerta) the infringing conduct
and to know in advance what to expect in terms of the related responsibility and the eventual sanction that
the offender can deserve (STC 219/1989, of December 21, FJ 4; 61/1990, of March 29, FJ
7; and 133/1999, of July 15, FJ 2)".
Also being well-consolidated jurisprudential doctrine which teaches that in the exercise of its power
administrative sanctioning the acting administration does not respond, properly, to the exercise of a power
administrative nature or of a discretionary tendency but predominantly regulated for the application to
6 JURISPRUDENCE
each specific case of the pre-established sanctioning regulatory framework in general in the legal system
applicable sanctioning law, which entails, from the outset, the requirement of the necessary adequacy and
rigor in the qualification of the imputed facts and in their punctual incardination and adequate subsumption in the
infringing type legally defined for its correction, in such a way that the opposite would certainly result
determinant of violation of the subjective fundamental right already pointed out and to all recognized by the current
constitutional text ex article 25.1 of the Constitution (judgments of the Constitutional Court 77/1983, of 3
of October, and 3/1988, of January 21), which, because it is subject to constitutional protection, would incur a
eventual sanctioning administrative action infringing the same in the vice of nullity of full right
today provided for by article 47.1. a) of Law 39/2015.
It is always required of the acting sanctioning administration a sufficient proof of charge capable of
destroy by itself the initial constitutional presumption of innocence that undoubtedly protects all accused
in a sanctioning administrative procedure, by direct derivation of the fundamental principle-right
subjective to the constitutional presumption of innocence, which article 24.2 of the Constitution recognizes for all
Spanish and which, as is well known, is applicable not only in the field of criminal law but also
in sanctioning administrative law (since the early judgments of the Constitutional Court of
January 30 and 18/1981, of June 8, followed among many others by the judgments of the Court
Constitutional Law 212/1990 and 246/1991), given the common punitive nature of both criminal and
administrative sanction (judgment of the European Court of Human Rights of October 8, 1976,
Engel case, and February 21, 1984, Öztüz case). Without, therefore, the principle or legal presumption of
legitimacy or validity and effectiveness of the administrative acts, also of the sanctioning ones, have another
legal consequence more than that of inverting per se the impugning burden of the act dictated in order to
thus destroy said legal presumption iuris tantum, which certainly corresponds in our legal system
administrative charge to the defendant, but without this also transferring to him, improperly and casually, the burden
of the proof of his innocence or of the non-commission of the accused infringing acts, this burden of proof
of the accusation that always corresponds to the acting sanctioning administration itself, under penalty of
to demand otherwise from the accused authentic probatio diabolica of innocence for negative facts, demand
strictly prohibited by our legal system, as it has been recognized since its earliest
jurisprudence the aforementioned constitutional doctrine for the necessary analogical application, although nuanced,
also in the administrative sanctioning field of the same inspiring principles of criminal law
due to the coincident punitive nature of both rights (criminal and administrative sanctions), since both are
manifestation of the same state ius puniendi. Regarding the use of means of evidence, this
Chamber and Section, for example in judgment number 784/2018, of December 20, issued in the appeal of
appeal number 100/2018, fourth legal ground:
"3. Regarding the right to use the pertinent evidence for the defense, it is a reiterated doctrine
of this Court that the inspiring principles of the criminal order are applicable, with certain nuances,
when dealing with the field of administrative sanctioning Law, given that both are manifestations of the
punitive order of the State. And specifically, as regards evidence, this Court
has recognized that, despite not being fully applicable art. 24.2 to administrative procedures
sanctions, the right of the file to use evidence for his defense has constitutional relevance
(SSTC 2/1987, 190/1987 and 192/1987), although he has also declared that not even in criminal proceedings,
where the aforementioned precept would be fully applicable, there is an absolute and unconditional right to use
all means of proof (SSTC 2/1987 and 22/1990). What of art. 24.2 of the Constitution is born for the
administered, subject to a disciplinary record, it is not the right to have all those tests performed
that you may propose, but only those that are pertinent or necessary (STC 192/1987), since -
as this Court has also declared - only has constitutional relevance for causing defenselessness
denial of evidence that, being requested at the appropriate time and in the appropriate manner, is not reasonable and
deprives the applicant of decisive facts for his claim (STC 149/1987). All of which means no
defenselessness of constitutional relevance occurs when the inadmissibility of a test has occurred
duly in strict application of legal norms whose constitutionality is not in doubt, nor
when the procedural irregularities that may have occurred in the inadmissibility of any evidence have not
come to cause an effective and real impairment of the right of defense. (TC S 212/1990)".
Regarding the principle of guilt or responsibility in administrative sanctioning matters, this,
Certainly, it completely rules out any eventual administrative claim to deduce responsibility
merely objective or without fault (thus, judgments of the Constitutional Court 15/1999, of 4 December
July, 76/1990, of April 26, and 246/1991, of December 19) and always requires, on the contrary, that the action or
omission classified as an infringement or illegal administrative is in any case attributable to its author by way of
Willful or reckless, inexcusable negligence or ignorance, to a simple title or non-compliance. Guilt
which must already appear sufficiently founded and motivated in the agreement or administrative resolution itself
7 JURISPRUDENCE
sanctioning, what is not accredited with the mere referral to the offending conduct typified by the norm
applicable tax or the mere reproduction of stereotyped formulas to justify the guilt of the subject
offender and whose eventual defect cannot be remedied a posteriori by the resolution of this order
jurisdiction, in accordance with an already consolidated contentious-administrative jurisprudence.
Finally, regarding the principle of proportionality, for example, this Chamber and Section have said in judgment
number 856/2016, of December 15, issued in appeal number 50/2015, fourth legal basis
(reproduced in part):
"FOURTH.- Next, proceeds the analysis of the principle of proportionality, that is, the perfect
adequacy between the offense attributed and the sanction imposed on the official. (...)
As we have said in our Judgment of June 7, 2016, appeal 12/2015:
On the other hand, the principle of proportionality constitutes a general principle of public law that
upholds the requirement that any action by public powers that bids or restricts rights
responds to the criteria of necessity and adequacy to the end pursued. It is a stricter meaning, it represents
the existence of a "due adequacy between the seriousness of the fact constituting the infraction and the sanction
applied" (art. 131.3 LRJPAC), which can be considered in its regulatory aspect or in its application aspect
by the Administration or the Courts; being, a mechanism of control both of the action of the legislator
-regulatory aspect- even when the TC itself, S 65/86, recognizes the difficulty unless the norm contains
margins of discretion so wide that they gave rise to the application of very diverse sanctions,
incompatible with legal certainty; On the other hand, in its application aspect, the principle of proportionality
It has served in jurisprudence as an important control mechanism by courts of exercise
of the sanctioning power of the Administration when the norm establishes for an infraction several
possible sanctions or indicates a quantitative margin for fixing the pecuniary sanction; the STS of 11
June 1992 establishes that:
"With reiteration, it has maintained the origin of specifying administrative sanctions in
contemplation of the infraction committed, grading them with the appropriate criterion of proportionality inherent in
the ordering principles of sanctioning Law, weighing to that end the concurrent circumstances in
the constitutive fact of the sanctioned infraction, corresponding to the jurisdictional activity, as it is said
in the Judgment of September 26, 1990, not only the power to subsume the conduct of the offender in a
certain legal type, but also to adapt the sanction to the act committed, since in both cases, it is
of the application of legal criteria embodied in the written and inferable norm of informative principles of the
sanctioning legal system, such as those of congruence and proportionality between the infraction and the
sanction".
Article 131 of Law 30/92 regulates such a principle as one of the informants of the sanctioning power
of the Administration, both in its regulatory and application aspects, establishing in the latter that
will take into account the existence of intentionality or reiteration, the nature of the damages caused and the
recidivism.
In the present case (...)
Regarding the discretion of the Administration in grading the sanction, it is appropriate to take into account
the following jurisprudential criteria
Although the Administration may use a certain discretion in grading the sanction to
accommodate it to the set of concurrent circumstances in the offence, it is no less true that the principle
of proportionality of the sanction is subject to judicial control.
The discretion granted to the Administration must be developed weighing in any case the
concurrent circumstances in order to achieve the necessary and due proportionality between the facts
accused and the responsibility demanded, given that any sanction must be determined in accordance with the
entity of the infringement committed and according to a criterion of proportionality attentive to the objective circumstances
of the fact, proportionality that constitutes a normative principle that is imposed as a more precept to
the Administration and that reduces the scope of its sanctioning powers, since to the jurisdictional activity
corresponds not only the qualification to subsume the conduct in the legal type, but also to adapt the
sanction for the act committed, since in both cases the issue is the application of legal evaluative criteria
embodied in the written norm, as they are in this sanctioning field, those of congruence and proportionality
between the offense and the penalty."
2.- About procedural expiration.
8 JURISPRUDENCE
Following the aforementioned order, it is appropriate to first examine the alleged "procedural expiration
of the disciplinary file in accordance with article 46 of the LO. 4/2010", above all, to understand
the plaintiff that "the suspension agreed on 06/14/2018 by Mr. Instructor on folio 21 of the E.A.,
is null or voidable" as the situation does not constitute a legal assumption of suspension of the computation of the term
of temporary incapacity of the file (foundations of law sixteenth to twentieth of the claim,
pages 54 to 90), with opposition from the defendant (foundation of law III. Third. "Expiration
of the disciplinary administrative procedure" of his response to the complaint, pages 8 to 11), question
on which the sanctioning resolution is pronounced in its seventh and last legal basis (more
reproduced above) based on what is stated in the second factual precedent of the same resolution that
then reproduces:
"SECOND: The Instructor, in accordance with article 25.2 of Law 35/2015, of October 1, of the
Common Administrative Procedure of Public Administrations, interrupted by Ruling
motivated dated June 14, 2018 (folio 21), notified on June 18, 2018 (folio 35), the computation of the
term to resolve and notify the resolution of the procedure for reasons attributable to the file, during the
period between March 14, 2018 and November 12, 2018 (folios 36 and 57), period
that the official remained on medical leave convalescing in Santa Cruz de Tenerife, which makes a total
of 151 days of interruption of the procedure".
In accordance with article 46 of Organic Law 4/2010, of May 20, on the Disciplinary Regime of the Corps
National Police:
"Article 46. Expiration.
1. The resolution that puts an end to the disciplinary procedure and its notification to the interested party must take place
within a period that may not exceed six months from the date of the agreement to initiate the file.
2. The period established to resolve the procedure and notify the resolution may be suspended, interrupted
or expand in the cases provided for in Law 30/1992, of November 26, on the Legal Regime of
Public Administrations and Common Administrative Procedure.
3. After the deadlines set forth in the preceding paragraphs have elapsed without a decision having been rendered by the
file, the proceedings will be filed. In this case, the competent body will issue, at the request
of the interested party, certification stating that the procedure has expired and the file has been filed
of the performances.
4. When an official goes on voluntary leave of absence before or during the processing of
a disciplinary procedure for infractions contemplated in this Law, said procedure will be
suspended, interrupting the computation of the limitation periods, continuing its processing when
the affected person requests re-entry into active service".
And Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations,
provides in its articles 21, 22 and 25 (reproduced in part):
"Article 21. Obligation to resolve.
"1. The Administration is obliged to issue an express resolution and notify it in all procedures
whatever its form of initiation.
In cases of prescription, waiver of the right, expiration of the procedure or withdrawal of the application,
as well as sudden disappearance of the object of the procedure, the resolution will consist of the declaration
of the circumstance that occurs in each case, indicating the events that occurred and the regulations
applicable. (...)
2. The maximum period in which the express resolution must be notified will be the one set by the regulation governing the
corresponding procedure.
This period may not exceed six months unless a rule with the rank of Law establishes a greater or
This is provided for in the European Union Law.
3. When the rules governing the procedures do not set the maximum period, it will be three months.
This period and those provided for in the previous section will be counted:
a) In procedures initiated ex officie, from the date of the initiation agreement. (...)
4. (...) In any case, the Public Administrations will inform the interested parties of the maximum period established
for the resolution of the procedures and for the notification of the acts that put an end to them, as well as
9 JURISPRUDENCE
of the effects that administrative silence may produce. Said mention shall be included in the notification or
publication of the ex offici initiation agreement (...)".
"Article 22. Suspension of the maximum term to resolve.
1. The course of the maximum legal term to resolve a procedure and notify the resolution may be
discontinue in the following cases:
a) When any interested party must be required to rectify deficiencies or provide
documents and other necessary evidence, for the time between the notification of the
requirement and its effective compliance by the addressee, or, failing that, by the term granted, all
This is without prejudice to the provisions of article 68 of this Law.
b) When a prior and mandatory ruling must be obtained from a body of the European Union, for
the time between the request, which must be communicated to the interested parties, and the notification of the
pronouncement to the investigating Administration, which must also be communicated to them.
c) When there is an unfinished procedure within the European Union that directly conditions
the content of the resolution in question, as long as there is evidence of its existence, which must
be communicated to the interested parties, until it is resolved, which will also have to be notified.
d) When mandatory reports are requested from a body of the same or different Administration, for the time
that mediates between the request, which must be communicated to the interested parties, and the receipt of the report, which
it must also be communicated to them. This period of suspension may not exceed in any case
of three months. If the report is not received within the indicated period, the procedure will continue.
e) When contradictory or final technical tests or analyzes proposed by the
interested parties, during the time necessary for the incorporation of the results into the file.
f) When negotiations begin with a view to concluding a pact or agreement under the terms provided
in article 86 of this Law, from the formal declaration in this regard and until the conclusion without effect, in its
case, of the aforementioned negotiations, which will be verified by means of a statement formulated by the Administration
or those interested.
g) When for the resolution of the procedure it is essential to obtain a prior pronouncement
by a court, from the moment it is requested, what must be communicated
to the interested parties, until the Administration is aware of it, which must also be
release.
2. The course of the maximum legal term to resolve a procedure and notify the resolution will be suspended
in the following cases:
a) When a Public Administration requires another to annul or revise an act that it understands to be
illegal and that constitutes the basis for which the former has to issue within the scope of its powers, in the
course referred to in section 5 of article 39 of this Law, from the time the request is made until
That the appeal filed before the contentious-administrative jurisdiction be heard or, where appropriate, resolved.
The interested parties must be notified of both the completion of the requirement and its compliance or, in
where appropriate, the resolution of the corresponding contentious-administrative appeal.
b) When the body competent to resolve decides to carry out any complementary action of the
provided for in article 87, from the moment the interested parties are notified of the reasoned agreement of the
beginning of the proceedings until its completion.
c) When the interested parties promote the challenge at any time during the processing of a
procedure, from the moment it is raised until it is resolved by the hierarchical superior of the challenged party".
"Article 25. Lack of express resolution in procedures initiated ex officie.
1. In procedures initiated ex officio, the expiration of the maximum period established without the
issued and notified express resolution does not exempt the Administration from compliance with the legal obligation
to solve, producing the following effects: (...)
b) In procedures in which the Administration exercises sanctioning powers or, in general,
intervention, likely to produce unfavorable effects or encumbrance, the expiration will occur. In
In these cases, the resolution declaring the expiration will order the filing of the actions, with the effects
provided for in article 95.
10 JURISPRUDENCE
2. In the cases in which the procedure has been paralyzed for reasons attributable to the interested party, the
will interrupt the computation of the term to resolve and notify the resolution".
In order to support the alleged procedural expiration, the plaintiff attacks the agreement of June 14
of 2018, notified the following June 18 (folios 21 and 35 of the administrative file), of interruption of the
calculation of the term to resolve and notify the resolution, ex article 25.2 of Law 39/2015. said agreement
titled "Providence of Interruption of the term of the Mr. Instructor" is of the following literal tenor:
"Having been accredited that the official of the National Police Corps, Mr. Agustín, is
on medical leave and with authorization to convalesce in San Cristóbal de la Laguna (Santa Cruz de
Tenerife), which implies the stoppage of the file for reasons attributable to him, the Instructor, in accordance
with article 25.2 of Law 39/2015, of October 1, on the Common Administrative Procedure of
Public Administrations, agrees:
Interrupt the calculation of the term to resolve and notify the resolution of this procedure, from the 14th day
of June 2018, in which an attempt to summon an appearance to notify the present was unsuccessful
disciplinary file and the day the filer receives the medical discharge.
Officerate the template so that they report on any new developments that occur in relation to the above mentioned ".
In essence, the appellant maintains that the situation of sick leave or temporary disability does not
legally empowered to suspend the processing of the disciplinary procedure, without being imputed
no more stoppage.
On the question of whether the situation of temporary incapacity for work of the official subject to a file
disciplinary action may constitute a case in which the processing of the procedure may be suspended
disciplinary action with the consequent interruptive effectiveness of the period established to resolve and notify the
resolution, ruling number 208/2019, of February 20, of the Contentious Chamber-
Administrative Court, Fourth Section, of the Supreme Court, issued in the appeal number 134/2017. I know
They then reproduce their fundamentals of law first to fourth.
" FIRST.- The terms of the litigation and the judgment of instance.
Don (...), full professor of the Department of Applied Economics of the University of Granada, was sentenced
for a lack of injuries of article 617.1 of the Penal Code to another tenured professor of the same discipline in the
office of the latter, next to his, in the Faculty of Law. The sentence of the Criminal Court no.
6 of those of Granada of May 26, 2010 that sentenced him was confirmed on appeal by the High Court
Provincial of February 11, 2011.
The conviction has been finalized -- a two-month fine at a rate of €10 per day and a ban on communication
and approaching the victim and his home for four months-- the disciplinary file was resumed
initiated by the University and suspended until there was a judicial pronouncement. concluded with the
Resolution of the Rector of December 17, 2012, confirmed in appeal by the one of February 6, 2013,
which sanctioned Mr. (...) with an eight-month suspension for considering him the perpetrator of the serious offense foreseen
in article 7.1.e) of Royal Decree 33/1986, of January 10, which approves the Regulation of
Disciplinary Regime of State Administration Officials. That precept typifies in this way
the punishable conduct:
"Serious disregard for superiors, colleagues or subordinates."
Mr. (...) appealed against the resolution of the Rector and Administrative Court No. 4 of Granada,
by judgment of November 4, 2014, upheld their claims in part, considered excessive the time of
suspension and reduced it to half, to four months. Against this sentence, Mr. (...) filed an appeal
which was upheld by the judgment against which the present appeal filed by
University.
Indeed, the Third Section of the Chamber of Granada accepted two of the reasons for which the
nullity of the administrative action. On the one hand, it considered that the sanctioning resolution had been issued
and notified beyond the twelve-month period established by article 69. One of Law 24/2001, of 27
December, of fiscal, administrative and social order measures, given that the University of Granada
had suspended its development, in addition to the processing of the criminal process, an extreme that does not raise
no discrepancy, due to Mr.'s medical leave (...). The University of Granada considered that it was appropriate
this suspension, with the consequent interruption of the expiration period, so as not to cause Mr. (...) defenselessness.
However, the appeal judgment interpreted article 44.2 of Law 30/1992, of November 26, on
Legal Regime of Public Administrations and Common Administrative Procedure, in the sense
11 JURISPRUDENCE
that the cause attributable to the interested party to which the precept refers and which interrupts the computation of the term
to resolve and notify does not include the assumption of incapacity for work.
On the other hand, the appeal sentence also appreciated the infringement by the Rector's resolution of the principle
non bis in idem since, he says, "subjective and objective identity is an undisputed fact" and considers
equally concurrent the identity of sanctioning foundation. Therefore, while there had been a
clear sanctioning duplicity, accepts this reason for nullity.
Proceeding the estimation of the appeal for these two reasons, the Chamber of Granada considered
It is unnecessary to address the other grounds for challenge put forward by Mr. (...).
SECOND.- The matter in which the admission order notices objective appeal interest for the formation of
jurisprudence and arguments of the University of Granada.
The order of the First Section of this Chamber on June 19, 2017 that admitted the present appeal
thus identified the issue in which objective cassational interest concurs for the formation of
jurisprudence:
"If the situation of temporary incapacity for work of the official subject to a disciplinary file
constitutes a case in which it is possible to suspend the processing of the disciplinary procedure with the
consequent interruptive effectiveness of the period established to resolve and notify the resolution.
Or if, on the contrary, since the situation cannot be classified as a cause attributable to the person concerned in the
terms provided for in article 44.2 of Law 30/1992, of November 26, it would be without effect
interruptions of the corresponding expiration period".
And he pointed out as a precept to interpret article 44.2 of Law 30/1992 (article 25 of Law 39/2015, of 1
October, Common Administrative Procedure of Public Administrations).
The University of Granada, in its filing brief and in the allegations made in the course of the
In view of this appeal, it has maintained that the sentence handed down on appeal violates article
44.2 cited. In developing his argument, he briefly recalls the background and periods in which
that the disciplinary procedure was suspended, firstly due to the criminal process (since February 14,
2008 until March 31, 2011) and, later, due to the illness of Mr. Jesús Carlos (since July 13,
to September 8, 2011 and from October 7, 2011 to December 4, 2012). discounting
suspension time, the University of Granada points out that the processing of the file involved eight
months and eleven days.
He then criticizes the sentence for incorrectly placing quotation marks on the sentence of this Chamber, which invokes and emphasizes
that the criterion of the Supreme Court is that the suspension of the procedure proceeds when there is cause
attributable to the interested party without the need for a special spirit of paralysis or obstruction.
And that precise cause can be a sick leave, as in this case. He adds, on the other hand, that the
administrative resolutions that suspended the processing of the disciplinary file explained that
dictated to avoid possible defenseless situations and warned that it would be lifted as soon as it caused
alta médica. He also says that despite the fact that Mr. Jesús Carlos did not say anything about it, it is evident that
This way of acting constitutes a guarantee for the sick official, who thus will not have to be pending
of notifications, actions or procedures that could even aggravate his condition.
In no way, the suspension of the procedure was due to a manifest and unjustified inactivity of the
Management.
Later, he alleges in the filing brief that the judgment appealed against violates the jurisprudence expressed by the
Judgments of the Seventh Section of this Chamber of June 14, 2006 (appeal 5528/2000) and November 24
of 2008 (appeal 7409/2005 [sic]).
Therefore, he asks us to uphold his appeal, annul the impugned judgment and resolve
the litigation in the terms in which it was raised in the instance, dismissing the contentious appeal-
administrative order confirming the resolution of December 17, 2012, with the reduction contained in the ruling
of the ruling of the Contentious Administrative Court No. 4 of those of Granada.
THIRD.- The opposition of Don (...).
In the first place, the opposition document expresses its resounding rejection of the application of the University of
Granada that we dismiss the contentious-administrative appeal in the terms of those that we have just
to put on record, then, he emphasizes, the appeal judgment revoked that of the Court and rendered the resolution null and void
administration for accepting two of the arguments set forth in the appeal: the expiration of the
procedure and infringement of the non bis in idem principle. The opposition brief explains that, although the
12 CASE LAW
The University of Granada prepared its appeal attacking the two grounds for estimation, the order
of admission limited the admissibility to the first, rejecting the other. Therefore, he says, even if the
appeal, it would not be possible, without violating their fundamental right to effective judicial protection, to access
to that request from the University of Granada since the appeal sentence would have remained intangible
regarding the non bis in idem principle.
Already on the point indicated by the admission order, it alleges that the fault of the interested party is a legal cause
admitted to interrupt the expiration term only with respect to the resolution and notification but not of the
processing of the file. Remember, then, that the notification occurred a year and almost two months later
of the suspension of the process and emphasizes that the declaration of sick leave does not depend on the
civil servant but of the physicians who, independently, exercise their medical expertise considering the health
of the civil servant but also the efficiency and quality of the public service. Thus, he stresses, it cannot be imputed
to the affected person an a priori fault in the deregistration declaration.
The opposition brief also reminds us that it was the University of Granada that, ex officie, agreed to the
suspension of the file without mediating any request in this regard from Mr. (...), or legal provision that
I foresaw it. He did not intend, therefore, he assures, to take advantage of his situation and did not consider himself defenseless
because at all times he was represented in the sanctioning file --and in others that contemporaneously
they are followed at the University-- by the Lawyer who assists them in this process. It tells us about the individual
Opposition brief that in this case the process is in itself the penalty imposed on the person concerned. I know
refers to what he presents as a proliferation of disciplinary proceedings that have been filed against him, which and
the prolongation in the time of its processing, he affirms, have had a negative impact on his health, deepening the
disease that he suffered. For the opposition document, the delay in the processing of procedures with
suspensions not requested or contemplated by the law, far from benefiting Mr. (...), they have harmed him
clearly as shown by the medical opinions contained in those files.
BEDROOM. Courtroom trial. The dismissal of the appeal.
As has been seen, the question on which the objective cassation interest falls for the formation of
jurisprudence is whether it can be considered a cause attributable to the interested party in the terms of article 44.2
of Law 30/1992 --now, of article 25 of Law 39/2015-- and, therefore, reason to suspend the processing
of the disciplinary procedure with the consequent interruption of the computation of the term to resolve, the withdrawal
doctor of the interested party.
Contrary to what may appear at first glance, a question formulated in this way cannot receive an answer.
unambiguous Indeed, the Chamber understands that it cannot be excluded that the situation of medical leave of the interested party
justifies the suspension of the procedure when it is of such a nature that it materially prevents carrying out
carry out the investigation of the file or place the interested party in a position of material defenselessness. in such
assumptions it would be possible to appreciate that there is cause to suspend the procedure. On the other hand, when it does not happen
the first or circumstances that produce the second, there will be no reasons attributable to the interested party for
that suspension.
Consequently, the circumstances of the case must be taken into account. That is, the nature of the
disease that determines the medical leave of the interested party and, also, the infraction or infractions of which
concerned and the actions that, in view of the facts and their evidence, are necessary to substantiate the case.
file. On the other hand, it will also be essential to take into account whether the initiative for suspension proceeds
of the public employee against whom the procedure is directed or if, as has happened here, it has been from the
Management. It is not indifferent whether it is one or the other, since the establishment of a term to resolve is a
guarantee of the administered and a limit to the sanctioning power of the Administration. So if you shouldn't
there should be, in principle, obstacles to agreeing on the suspension --with the consequent interruption of the calculation of the
term-- if requested by the filer in a situation of medical leave who alleges difficulties to defend himself, when
The Administration intends it, it will have to justify the specific reasons for this suspension and, in particular,
what actions cannot be carried out with the guarantees due for this reason.
In short, it is not possible to respond definitively to the question in the abstract, but rather the answer
It will depend in each case on the singular concurrent circumstances.
Established these premises, we can resolve the controversy that has been submitted to us.
In the hearing of the appeal, the Lawyer of the University of Granada indicated that, if the
The criterion of the judgment of appeal would make it extremely difficult for the Public Administrations to exercise
the disciplinary power and, in this sense, referred to actions of investigation of the disciplinary file
that could not be carried out due to Mr.'s medical leave (...). Now, the truth is that he limited himself to citing the folios
of the file in which these actions are collected without offering further explanations. Furthermore, it happens that
13 JURISPRUDENCE
No reference is made to this impediment in the interposition document nor was it mentioned in the trial of
appeal but that it has appeared for the first time in the aforementioned hearing and in the tangential way that
just indicated. The reality is, therefore, that the University of Granada has never explained
what specific actions, essential for the substantiation of the file, could not be carried out and
demanded the suspension of the procedure and has not denied that Mr. (...) was represented by
the lawyer therein. It has limited itself to saying that the suspension was in the interest of the file.
Thus, on this occasion, we did not find any of the reasons that, according to the premises that we have established,
could justify the official suspension of the processing and resolution of the disciplinary file. Therefore, the
appeal judgment, although it did not explain it in the nuanced way that is necessary, it correctly applied
Article 44.2 of Law 30/1992 and it is not necessary to marry her, but to confirm her.
The invocation of the judgment of the Seventh Section of December 12, 2011 (appeal no. 260/2010),
Carried out by the appellant in cassation in the act of the hearing and of those mentioned in the filing brief
does not lead to a different solution. In that it is explained that the suspension was agreed by the concurrence
for exceptional reasons unrelated to the General Council of the Judiciary -which was the one who exercised the power there
disciplinary action--explained by the non-attendance of the interested party to the act to which he had been summoned to provide
declaration and by the recusal of the instructor. And the two alleged in the interposition do not offer support to their
approaches.
Consequently, the appeal must be dismissed."
As can be seen, the solution is escasuistic, although within the framework of those criteria indicated by the High Court
in its doctrine issued on appeal. In the case of the case, the suspension is not requested by the appellant, intended
at the El Prat de Llobregat Airport Border Post, the Instructor of the file agrees ex officio
disciplinary, applying the provisions of article 25.2 of Law 39/2015 as a result of non-appearance
for the notification of the agreement to initiate the disciplinary file, stating in the proceedings the
authorization, prior request of the official, to reside in the town of San Cristóbal de la Laguna (Santa
Cruz de Tenerife) for the duration of his medical convalescence, hence the effective notification practiced through
the National Police Station of Santa Cruz de Tenerife, of the initiation agreement, also of the agreement
of interruption of the term ex article 25.2 of Law 39/2015, with respect to which the interested party does not oppose
during the processing of the disciplinary file. It must be borne in mind, then, that it is the interested party himself
Who is interested in that residence authorization during medical convalescence, hence the appreciation by
the Instruction of the necessary interruption of the term to resolve and notify due to stoppage by
cause attributable to the interested party. This case is already present in that initial state of initiation of the procedure and
disappears 151 days later once there is proof of medical discharge, determining the resumption
with all the guarantees for the exercise of rights as an interested party in the disciplinary file. Of
In fact, the reality of the subsequent processing shows the correctness of the previous decision to interrupt if
attends to the interrogation of the file and the testimonies made with guarantees (ex officio, from Palmira
, Assistant Inspector, and Fructuoso , Assistant Inspector; at the request of the plaintiff, Esteban, Inspector), taking into account
In addition, the plaintiff's complaint in court that one of these testimonials is carried out without the presence of his lawyer
and that due to the Instruction, the practice of some (medical) documentary evidence is denied, which ultimately
It comes to show the justification for the interruption at the agreed time according to the situation
personnel of the file and in guarantee of their rights.
Thus, considering a total of 151 days of interruption of the term, which are the days elapsed between
the date of the interruption agreement for reasons attributable to the actor, June 14, 2018, and the date of discharge
medical, on November 12, 2018, and taking into account as dies a quo of the computation of the term of
expiration date of the initiation agreement (not its notification), on June 4, 2018, and the dies ad
that, in the case of the effective date of the notification of the sanctioning agreement of April 29, 2019, the following
May 3 (the 6-month term ended on May 4, 2019), it cannot be concluded in a straight application
of the provisions of article 46.1 and 2 of Organic Law 4/2010 and article 25.2 of Law 39/2015, the
concurrence of procedural expiration.
Therefore, said allegation of expiration cannot be favorably accepted as a tax, which is reasoned
judiciously by the State Attorney in his opposition in the answer to the claim.
2.- On the presumption of innocence and the legality or not of proof of charge. The estimate of the resource, without
need to enter to examine the remaining reasons.
Administratively, the plaintiff has been indicating and reiterating that "this disciplinary file is
null and void, as the charges against him are based on evidence obtained illegally" (brief of
arguments against the resolution proposal, tenth argument), acting in the administrative file
the actions followed on the individual followed before the Spanish Agency for Data Protection.
14 JURISPRUDENCE
This question remains unanswered in the sanctioning resolution. In judicial proceedings, in his claim the plaintiff
stubbornly means said main reason for nullity by operation of law, displaying a very extensive
argumentation, according to which, in his opinion, the illegality of the prosecution evidence is manifest and conclusive,
shipment data, obtained in violation of the fundamental right to protection of personal data
personnel due to disproportionate access to the same ones requested without any authorization to the company
aerial. The State Attorney combats what he qualifies as "the main legal issue raised by the
appellant in his statement of claim" and resorts to the distinction between "the doctrine of the fruits of the poisoned tree"
and the "independent source doctrine." This to support the application to the case of the second doctrine,
not the first, considering that the data provided by the airline is not determinative or
necessary for the imposition of the sanction, given that an "independent source" of the
above, silenced by the plaintiff; Specifically, the State Attorney says: "In this sense, see that
the appellant's conduct was known to the Police Inspectors through his colleagues.
This is stated in the statement made during the investigation of the sanctioning procedure by Inspector D.
Esteban, who stated that the appellant had commented to his teammates that he used to act
this way. We see, therefore, that before going to Ryanair, the Police inspectors already knew that
the appellant had taken a flight at 6:25 a.m. and they knew exactly which flight."
Despite this argumentative effort of the State Attorney, it is clear and manifest that the evidence meant
by the plaintiff and now concerned, obtaining the shipping data is proof of charge,
which gives rise to the imputation of the infringing conduct for which the plaintiff official is sanctioned; since
then it is not without more those comments that are said to be made by the interested party about the habituality
in that way of acting or proceeding. In fact, the State Attorney, also taking into account that the
The sanctioning resolution itself does not provide any answer to said main question, it focuses exclusively on its
Opposition to the appeal in the non-consideration of the flight data as proof of charge, without success as just
to see, when maintaining that "although it is true that the data of the flight to Tenerife can be object of protection
by the regulations on personal data, it is no less so that it is not said data that allowed us to know
the actions of the sanctioned party and provide grounds for said sanction".
As can be seen, it does not question in cars that the data of the flight to Tenerife provided by the company
are of a personal nature, tributaries of the protection of the fundamental right concerned through
organic legal regulations. Work in record resolution of the Spanish Agency for Data Protection, on the
that nothing is said by the defendant, not even to reject the transcendence that the plaintiff grants
to it in order to justify the annulment of the disciplinary proceedings in the proceedings. There is no need to bring here the
resolution of its Director of March 5, 2019, which agrees: "To allow the appeal for reversal filed by
D. Agustín against the Resolution of this Agency issued on January 21, 2018". On its grounds
of second right it is reasoned:
"II. The articles of Law 39/2015 invoked in the resolution that is intended to be challenged establish that
the competent body to process the administrative procedure is empowered to carry out
all those actions that are necessary to clarify the facts that must be prosecuted in
The procedure. In view of the documentation in the file, it can be seen that the Group of
Operational Coordination took steps with the airline Ryanair, in order to confirm that in
the appellant traveled on flight NUM000 Barcelona-Tenerife, all in order to prove an alleged
violation of Organic Law 4/2010, of May 20, of the Disciplinary Regime of the National Police Corps.
From the allegations made by the appellant, it can be deduced that the steps taken before the company
aerial were carried out by a Unit that could lack competences to carry out the actions of
reported investigation. The aforementioned question is fundamental when it comes to resolving the question raised,
since the data protection regulations would protect access to the reported data in the case in which
it would have been carried out in accordance with the legally established procedure.
In the present case, along with the appeal for reinstatement, new allegations relevant to the effects
of what was proposed".
There are three documents in the administrative file dated before the initiation of the file
disciplinary proceedings that describe what is called in two of them "managements" before the airline.
In addition to the "screenshot" printed by the airline Ryanair on the data of the flight to Tenerife (folio
10), the communication of April 5, 2018 from the Inspector, Head of the Operational Coordination Group, addressed to
Commissioner, Head of the Barcelona - El Prat Airport Police Station (folio 6): "On behalf of this Group of
Operational Coordination, arrangements have been made with the airline Ryanair and they confirm that the
flight NUM000 Barcelona-Tenerife, departing from this Barcelona-El Prat airport at 06:25 on
On April 5, 2018, passenger Agustín traveled ". "Likewise, the airline confirms that the reservation of the
The flight was carried out on March 28, 2018". Also the communication of April 19, 2018
15 JURISPRUDENCE
addressed by the aforementioned Commissioner to the Commissioner, Superior Police Chief of Catalonia (folio 4 of the file
administrative): "Positions carried out later have been able to determine that said Police, being the
6.25 hours of the same day, he boarded flight NUM000, bound for Tenerife, knowing that
the reservation for said trip had been made on March 28 of the current year." And the communication of
May 2, 2018 from the latter Commissioner to the General Directorate of the Police (folio 3): "(...) finding out
after that mr. Agustín boarded flight NUM000 from Barcelona to Tenerife at 6:25
hs. of the aforementioned day 04/05/2018, whose ticket had been purchased on 03/28/2018". After the remission of
said documents, by decree of June 4, 2018, the initiation of the disciplinary file is agreed
(folio 1): "In view of the documentation sent by the Higher Police Headquarters of Catalonia, stating
of the National Police official, with Police category, Mr. Agustín, with DNI..., attached to the Post
Border crossing of the Barcelona/El Prat Airport, who around 04:25 hours on April 5, 2018, left the
service that he was providing claiming to be unwell with migraines; although, around 06:25
hours of that same day, apparently, he boarded a flight to Tenerife, whose ticket he had bought,
about a month earlier."
As can be seen, these "managements" (a term also used by the Spanish Agency for the Protection
of Data in that resolution) before the airline carried out according to what is said by the Group
of Operational Coordination (or whatever name it may be; according to the testimony made in court
of the Inspector who personally travels to the offices of the airline to carry out those
"gestiones", Felicisimo, he says that he was Head of the Group of Foreigners and occasionally carried out functions
of Chief of the Reaction Group, being in the exercise of the latter that those flight data are collected,
according to the witness following verbal orders of the Commissioner, Head of the Police Station of the Airport of
Barcelona - El Prat) are prior to the initiation of the disciplinary file by the General Director of the Police.
The appellant maintains that these actions are not covered by article 55 of the Law
39/2015, of October 1, of the Common Administrative Procedure of Public Administrations, which is
of the following literal tenor:
"Article 55. Information and previous actions.
1. Prior to the start of the procedure, the competent body may open an information period
or previous actions in order to know the circumstances of the specific case and the convenience or not of
start the procedure.
2. In the case of procedures of a punitive nature, prior actions will be aimed at determining,
with the greatest possible precision, the facts likely to motivate the initiation of the procedure, the
identificationofthepersonorpersonswhocouldberesponsibleandtherelevantcircumstancesthat
they concur in each other.
The previous actions will be carried out by the bodies that have been assigned investigative functions,
investigation and inspection in the matter and, in the absence of these, by the person or administrative body that
determined by the competent body for the initiation or resolution of the procedure".
In the more specific area concerned here, Organic Law 4/2010, of May 20, of the Disciplinary Regime
of the National Police Corps, refers in its article 19.6 to the so-called "reserved information". It is reproduced
whole article:
"Article 19. Initiation of the procedure and right of defense.
1. The procedure will always begin ex officio, by agreement of the competent body, either on its own initiative,
either as a consequence of superior order, reasoned motion of subordinates or complaint.
2. The competent bodies for the imposition of a sanction are also competent to order the initiation of the
corresponding procedure.
3. The initiation of the procedure with the appointment of instructor and secretary will be notified to the official
subject to the procedure, as well as those designated to perform said positions.
4. At the time that the opening of a disciplinary procedure is notified, the official will be informed
submitted to a file of his right to be assisted, when he deems it appropriate for the defense of his
interests, by a lawyer or by an official of the National Police Corps with a degree in Law.
Officials of the National Police Corps designated to carry out said assistance shall have the right to
a permit on the day that it is carried out for the time necessary for it, without such a designation being conferred
any right to compensation for the expenses that may be derived from the assistance. The fees of the
appointed attorney will be paid by the contracting officer.
16 JURISPRUDENCE
5. If the procedure is initiated as a result of a complaint, said agreement must be communicated to the
signatory of it. Likewise, the file of the complaint must be communicated, if applicable.
6. Before issuing the decision to initiate the procedure, the General Director of the Police and Guard
Civil may agree to the practice of reserved information for the clarification of the facts, as well as
of their alleged perpetrators.
If applicable, said reserved information will become part of the disciplinary file."
Regardless of the name given (information period, previous actions, information
reserved, or others, in other areas, such as informative proceedings, etc) the truth is that the test is prior
to the initiation of the disciplinary file by the General Directorate of the Police and there is no record that
These prior actions are carried out by bodies that have investigative functions,
investigation and inspection in the matter concerned, the disciplinary one. It is unknown if the Group of
Operational Coordination, or the Reaction Group if that is the correct denomination, which carries out the
"managements" before the airline. Hence the doubt pointed out by the Spanish Agency for Data Protection
on the basis of law II of its resolution reproduced above. It is not even formally stated
the issuance of an order given by superiority to carry them out, and if they are with a
disciplinary purpose or are measures to control working hours and compliance with schedules. In any
case, there is no evidence that the test has been carried out once the disciplinary procedure has been opened, ex "Article 75. Acts of
instruction" of Law 39/2015, with the guarantees of defense of the interested party in the sanctioning procedure.
What has been said must be connected with two fundamental aspects mentioned above: that the data collected
of the airline company constitute proof of charge and that said data is of a personal nature, concerning
to a fundamental right and protected by constitutional and organic legal regulations. Those "managements"
made by a police officer to the airline to collect data, in reality, they have to be
considered and treated as a measure of intervention by public power with a direct impact on a
fundamental right, privacy and data protection, ex article 18.1 and 4 of the Constitution, and as such must
be respectful in its adoption with the principle of proportionality.
Regarding this last transcendental principle, which plays an increasingly important role in matters
of fundamental rights, the following general considerations are also valid, highlighted by the
most authoritative constitutionalist doctrine. Originating in Germany, it has spread in recent times
Europe thanks to its reception by the European Court of Human Rights and the Court of Justice
of the European Union, as an instrument to control any action by public authorities (laws,
regulations, administrative acts...) with an impact on the rights or interests of individuals.
In this regard, our Constitutional Court has been making increasingly frequent use of the principle (since
its earliest jurisprudence, in judgments 76/1990, 66/1991, 151/1997, 37/1998...). According to said
principle, such acts can only be deemed proportionate and valid when they cumulatively respect
three requirements: First. That the intervention is adequate to achieve the proposed end. Second.
That the intervention is necessary, as long as there is no room for an alternative measure that is less burdensome for the
interested. Third. That it be proportionate in the strict sense, that is, that in no case does it imply a
excessive sacrifice of the right or interest on which public intervention occurs. Specifically, this
The latter requirement means that even if the measure is appropriate and necessary, it should be considered invalid.
if it implies the emptying of the right or interest at stake. In short, the principle of proportionality is a
Technique Tending That The Pursuit Of Public Interests Is Not Done At The Expense Of The Rights Or Interests
of individuals, but seek a balance between the two. For the application of this principle
(which would be distinguished from the principle of reasonableness, which requires that the acts of public authorities conform
generally accepted canons of common sense, in such a way that the reasonableness test is less
demanding since it does not require the minimization of the intervention but only that it be absurd) one resorts to the
technique of weighting thus allowing to find a point of balance between the principles in collision that
they embody public interests and individual rights.
The Chamber considers that the specific measure of intervention of the public power with a direct impact on
the fundamental right of article 18.1 and 4 of the Constitution, although it could be adequately and entirely
suitable to achieve the proposed purpose (if really that pursued purpose is disciplinary, although it already
Doubt has been raised as to whether it could be to control working hours and compliance with schedules),
In any case, it seems not necessary (or subsidiary), since other alternative measures are not explored.
less burdensome for the holder of the fundamental right (for example, viewing the recordings of the
video surveillance cameras installed in the terminal, obviously with all the constitutional guarantees
and legal -and adopted within the framework of "Article 75. Acts of instruction" of Law 39/2015; also " Article
19. Initiation of the procedure and right of defense" of the Organic Law 4/2020-). Nor is it presented as
a strictly proportionate measure, assuming an excessive sacrifice of the fundamental right,
17 JURISPRUDENCE
in view of the fact that in the weighting judgment the resulting imbalance is manifestly against the law
essential sacrificed in excess for the purpose pursued (disciplinary, or in its case of control of the
day or working hours).
Those doubts and assessments pointed out about the legality of proof of charge (those related, first, to the
authorization and adoption of the measure that affects the fundamental right by the competent body with
investigative functions prior to the initiation of the disciplinary file, and, second, to
the proportionality of the limiting measure of the fundamental right), and dealing with the trial of a
disciplinary procedure from which exquisite respect for the presumption of innocence and
the fundamental rights involved, lead the Court to uphold the contentious appeal on this point.
administration and with it to declare the nullity of the disciplinary action.
The estimation of the resource in this extreme makes a pronouncement on the remaining reasons unnecessary.
of the resource.
THIRD.- On the coasts.
Pursuant to articles 68.2 and 139.1 of Law 29/1998, regulating this jurisdiction, modified this
last by Law 37/2011, the procedural costs will be imposed in the first or only instance to the party
who have seen all their claims rejected in the sentence, unless the judicial body, reasoning
duly appreciates the eventual concurrence of circumstances that justify non-imposition, notwithstanding
to this, where appropriate, the lack of an express request for an order to pay costs by the disputing parties, since such
pronouncement on costs is always imperative for the court ruling without thereby incurring in a vice of
procedural inconsistency "ultra petita partium" (article 24.1 of the Spanish Constitution and articles 33.1 and 67.1
of Law 29/1998), as such judicial declaration concerns a matter of a procedural legal nature, according to
according to the wording of article 68.2 of the Jurisdictional Law and the contentious-administrative jurisprudence and
already established in this regard (among others, judgment of the Supreme Court, Chamber 3, of February 12,
1991; and by judgment of the Constitutional Court, First Chamber, number 53/2007, of March 12, and judgment
of the Constitutional Court number 24/2010, of April 27). This includes the principle of mitigated expiration
which should lead here to the non-imposition of costs to the losing party, the defendant, when there is just cause
litigandi, in the terms of the above-exposed controversy in the case file, which is complex, not in vain
the opinion of the majority Courts, which is not unanimous. Consequently, it is not appropriate to make a pronouncement
some on the costs, former article 139 of Law 29/1998, regulating this jurisdiction.
Given the aforementioned precepts and others of general and pertinent application, and resolving within the limits of the
procedural claims deducted by the parties in their respective claim and response to the claim,
in the name of His Majesty The King and in the exercise of the jurisdictional power that emanates from the people and that
conferred upon us by the Constitution and the laws, the following ruling is issued.
FAILED.
In view of all of the foregoing, the Contentious-Administrative Chamber of the Superior Court of Justice of
Catalonia, Section Four, has decided:
Estimate the contentious-administrative appeal filed by Agustín against the resolution of April 29
of 2019 of the Director General of the Police, above identified, and Annul said administrative act
disciplinary action for non-compliance with the law under the terms of the second legal basis of this
resolution. No imposition of costs.
Notify the parties of this judgment, which is not final. Against it, it can be deduced, where appropriate,
appeal before this Chamber, in accordance with the provisions of Section 3, Chapter III, Title IV
of Law 29/1998, of July 13, regulating the contentious-administrative jurisdiction. The resource shall
be prepared within the period provided for in article 89.1 of said Law 29/1998.
And note that in the Official State Gazette number 162, of July 6, 2016, the
agreement of April 20, 2016, of the Government Chamber of the Supreme Court, on the maximum extension and
other extrinsic conditions of the procedural documents referring to the appeal.
The deposit of the amounts will be made in the Account of Deposits and Judicial Appropriations in
this Section arranged with BANCO SANTANDER (Entity 0049) in File Account no.
0939-0000-85-0157-19, or by bank transfer to the consignment account of Banco de
Santander, in which case it will be in Account no. ES5500493569920005001274, indicating in the beneficiary the
T.S.J. Contentious-Administrative Chamber Section 4 NIF: S-2813600J, and in the observations section
18 JURISPRUDENCE
the following digits are indicated 0939-0000-85-0157-19, in both cases with express indication of the number
of procedure and year of the same.
After it gains firmness, get rid of it and send the certification of the same, together with the original documents, to the Court
province of origin, acknowledging the opportune receipt.
Thus, by this sentence, of which literal testimony will be taken to the main roll of the appeal, we pronounce it,
We send and sign.
PARTICULAR VOTE
queformula Mr. José Manuel de Soler Bigas, Magistrate of the Chamber of the Administrative Litigation of the Court
Superior Court of Justice of Catalonia (Fourth Section), in the present Judgment delivered in the Ordinary Appeal
num. 157/2019.
With absolute respect for the majority criteria of my colleagues and in accordance with the provisions of art.
260.1 LOPJ and art.205.1LEC, I must state my discrepancy in relation to it, based on the following
reasonings.
FIRST-The discrepancy occurs from the section, established in FJ2 of the Judgment of the majority,"
On the presumption of innocence and the legality or otherwise of the prosecution evidence. The estimation of the resource, without the need
to enter to examine the remaining grounds".
Review the sanctioning administrative resolution, issued on April 29, 2019 by the DG of the Police,
object of challenge in this process, in its 1st factual antecedent, that the appellant official, Police
National service at the Barcelona-El Prat Airport, " around 04:25 hours on April 5, 2018,
he left the service he was providing claiming to be unwell with migraines; yes ok,
around 06:25 that same day... he boarded a flight to Tenerife, whose ticket he had bought,
about a month before."
The information regarding the boarding of the actor on a flight chartered by Ryanair, in the direction of Tenerife, the place of his
family address as known to his fellow servicemen, was obtained from the airline
by an Inspector, Head of the Operational Coordination Group on duty at the Airport, present there, once
produced the abandonment of the service by the plaintiff, given the suspicions, apparently based on possible
previous performances of the same nature, which instilled the conduct carried out by the former.
That information, as stated in the Judgment, was part of the communication, of the same date April 5,
2018, addressed by the acting Inspector to the Chief Commissioner of the Barcelona-El Prat Airport Police Station,
which is at the origin of the disciplinary procedure subsequently instituted against the plaintiff by the DG of the Police.
SECOND-1) Pursuant to art. 19. ("Initiation of the procedure and right of defense") of Organic Law 4/2010,
of May 20, of the Disciplinary Regime of the National Police Corps,
"1. The procedure will always begin ex officio, by agreement of the competent body, either on its own initiative,
either as a consequence of superior order, reasoned motion of subordinates or complaint".
And according to art. 32 ("Initiation") of the same legal body,
"1. The General Director of the Police and the Civil Guard, upon receiving the communication or complaint or having
knowledge of an alleged infraction constituting a very serious or serious offense, will order the initiation of
disciplinary file. However, you may agree to the practice of reserved information provided for in the
sixth paragraph of art. 19, before issuing the resolution in which the initiation of the file is decided
disciplinary".
2) Well, the information collected by the acting Inspector can and should be included in the concepts
reasoned motion and communication regulations, as primary data for the integration of its content
and its reason for being.
And said acting Inspector, responsible for the police in the concerned service, was competent to do so, raising
the pertinent communication to the hierarchical superiors.
THIRD- 1) In direct relation to the above, it must be understood that the information obtained from the
Airline company, namely, that the official plaintiff boarded a flight to Tenerife, place of his
family home as known by his colleagues in the service, did not violate his fundamental right
to personal privacy, ex art. 18.1 and 4 CE, nor the rights derived from Organic Law 15/1999, of
December 13, Protection of Personal Data, applicable for temporary reasons.
19 JURISPRUDENCE
For the same reasons, Organic Law 1/2020, of September 16, on the
use of the data from the Passenger Name Record for the prevention, detection, investigation and
prosecution of terrorist offenses and serious crimes.
2) Pursuant to art. 4 ("Quality of the data") of the aforementioned L.O. 15/1999, of December 13,
"1. Personal data may only be collected for treatment, as well as submit them to said
treatment, when they are adequate, relevant and not excessive in relation to the scope and purposes
determined, explicit and legitimate for which they have been obtained".
And according to art. 6 ("Consent of the affected party"),
"2. Consent will not be required when personal data is collected for the exercise of the
functions of public administrations within the scope of their powers...".
3) In this case, the information obtained from the airline of "
Especially protected data", in the terms of art. 7 of L. O. 15/1999, of December 13, results from
application to the case the jurisprudential doctrine that follows.
It must be assumed that, as the Judgment of the Contentious Chamber of the TSJ of Madrid shows
of March 17, 2022, nº 356/2022, rec. 571/2021, in its FJ 5º:
"...as regards the violation of data protection recognized in article 18.4 of the EC, the Chamber understands that
Nor has it been violated, since the actions carried out within a disciplinary file against a
public official, they are reserved, they are not public...".
And points out the STS, Room 3ª, of February 20, 2018, nº 263/2018, rec. 3257/2016, in a case (FJ 6º) in the
that "we are in the presence of some proceedings carried out at the behest---without being ordered---of the Forces themselves
and State Security Corps", the following,
FJ 8º: "...police action, in the present case, conforms to the triple test of suitability, necessity and
proportionality in the strict sense established by the doctrine of the Constitutional Court (SSTC 66/1995, of 8
May, FJ 5; 55/1996, of March 28, FFJJ 7, 8 and 9; 270/1996, of December 16, FJ 4.e; 37/1998, of 17
February, FJ 8; 186/2000, of July 10, FJ 6; 14/2003, of January 28, FJ 9)..."
FJ 9º: "We understand that this coincides with the established doctrine, in general, on the protection of
data, by the STC 292/2000, of November 30, in relation to the limits of the aforementioned right: ...
In other words, in accordance with a reiterated doctrine of this Court, the constitutionality of any
restrictive measure of fundamental rights is determined by the strict observance of the principle of
proportionality".
4) In similar terms, the STS, Chamber 3, of October 19, 2011, rec. 4586/2008, according to which,
FJ 4º: "...The constitutional doctrine is also reiterated, which is included in the STC 14/2003, and in which there
they cite, that the constitutionality of any restrictive measure of fundamental rights is determined
for the strict observance of the principle of proportionality, and to determine if a restrictive measure of a
fundamental right exceeds the proportionality judgment, it is necessary to verify if it meets the requirements of
suitability, necessity and to be weighted or balanced (proportionality in the strict sense)".
The SAN of April 20, 2012, rec. 791/2010, reasons for his part,
FJ 4º: "... In short, the right to oppose the treatment and incorporation of your image into the procedure
disciplinary action cannot be protected, in view of the proportional and adequate use that was made of the
recorded images, under art. 6.2 of the LOPD, in order to pursue a legitimate purpose on the part of the
Public administration competent in the investigation of facts that could constitute a
infringement".
And the Judgment issued by the Contentious Chamber of the TSJ of the Valencian Community, of July 27,
2021, no. 611/2021, rec. 262/2019, states,
FJ 4º: "Now, the general rule of consent finds as an exception the need for
maintenance and fulfillment of the service relationship that is deployed on the obligations that derive
of the regime proper to public officials, that is, of an administrative relationship that requires ensuring the
fulfillment of its obligations. Always taking into account proportionality, essential in this matter,
in connection with the principle that data can only be collected for processing when it is
adequate, pertinent and not excessive in relation to the scope and specific, explicit and
legitimate for those that have been obtained (article 4.1 of the Organic Law 15/1999)".
20 JURISPRUDENCE
FJ 5º: (It is well understood that) "...We must recognize that in this matter prevails, as we pointed out before and
now we reiterate, an inevitable casuism that must necessarily be modulated based on the principle of
proportionality...".
And finally, the Judgment issued by the Contentious Chamber of the TSJ of Madrid on July 18, 2019,
no. 704/2019, rec. 806/2017, reasons,
FJ 2º : "...The data obtained are neither compromising for the rights of the individual, nor are they specially
protected, nor are they used outside of security regulations, nor are they transferred to a third party, nor are they stored
beyond serving as an element of conviction (even as a guarantee of the rights of the file). of the
exposed it follows that there is no violation of the right to privacy, allegation made by
most of the defendants throughout the proceedings.
...an eventual illegitimate interference in privacy that could invalidate the test is not appreciated (STC39/2016)".
FOURTH - It is inferred from the foregoing that, in view of the circumstances of the case, there is no reason for
invalidate the proof of charge - which it certainly was - constituted by the information obtained from the Company
aerial.
This is the case and in the absence of any invalidating defect in the processing of the procedure
disciplinary sanction (Judgment of the Contentious Chamber of the TSJ of Madrid of March 17, 2022,
rec. 571/2021, FJ 2º: "... As STC 25/2011, of March 14, recalls, defenselessness is a material notion
which is characterized by assuming a deprivation or substantial reduction of the right of defense"), the examination of
the substantive issue determined the origin of confirming the contested administrative resolution, by the
that the plaintiff was imposed a sanction of suspension of duties for 15 days.
Being that, on the one hand, the conduct observed by him was certainly constitutive of the serious infraction
classified as such in art. 8 of Organic Law 4/2010, of May 20, on the Disciplinary Regime of the Corps
National Police:
"These are serious faults:...
f) Not providing service, alleging alleged illness.
And as for the graduation of the sanction, it is in accordance with the provisions of art. 10 ("Sanctions") thereof
legal body:
"2. For serious offenses, the sanction of suspension of duties from five days to three months may be imposed."
FIFTH - My particular opinion is therefore, according to the previous reasoning, respectfully dissenting
that of the majority, in the sense that a Judgment should have been handed down, rejecting the appeal
dispute filed by the plaintiff official, and confirmation of the sanctioning administrative resolution
contested.
No pronouncement on costs, concurring in the event of relevant legal doubts.
In Barcelona, on November 24, 2022.
PUBLICATION .- Given, read and published has been the previous Judgment by the Hon. Mr. Speaker Magistrate that
signs it, while the Chamber is holding a public hearing on November 24, 2022, the date on which
The sentence has been signed by the Magistrates who formed the Court in the same, of which I, the Lawyer
of the Administration of Justice, I attest.
twenty-one
