A cadet of the National Police School who had to leave his studies to join this police force may try again, after obtaining constitutional protection. The Guarantee Authority has reopened the way by issuing an important ruling on the protection of fundamental rights, in which it invalidated a temporary rule in theory that had in fact been in force since 1981 and was linked to another system approved in 1967. This rule appeared in the regulations of the National Police School for more than four decades until the court expelled it from the legal system when deciding on the appeal of a student from the aforementioned center to whom it was incorrectly applied. Regarding the facts, the ruling explains that on May 2, 2020, “while the state of alarm was in effect” and with it the declaration of quarantine in the face of the epidemic, the plaintiff was celebrating his birthday with 17 other people in a closed place. He added, “The National Police came to the scene and asked those present to identify themselves. The appellant stated that he was a police student at the National Police School, and showed the corresponding accreditation card.”
These events earned him a punishment which forced him to leave the school. In turn, the Constitutional Court annulled the aforementioned administrative penalty and the rule that permitted it, considering that it was imposed “based on a regulatory principle that lacks legal coverage,” meaning that it is not regulated by any law. The penalty was the loss of 15 points from the total grades obtained at the end of the selective course for joining the National Police Corps. The result of raising the aforementioned points was that the protection applicant failed two subjects, had to take the exam again, and was suspended again. All of this decided “his exclusion and final withdrawal from the selection process, with the loss of all rights gained during the objection stage.”
The plaintiff – defended by lawyer Ángel Galindo – appealed his sentence, but the Madrid Superior Court of Justice and the Supreme Court confirmed it because they considered that the applied regulatory principle was related to another pre-constitutional principle, from 1967, approved in the midst of the Franco regime by means of a ministerial order. For this reason, he claimed in the application for protection “a violation of the right to impose penalties on legality (…) due to the absolute absence of coverage of the penalty in a rule that has the force of law.” The ruling – of which Justice Ramon Saez, from the progressive sector of the court, was presiding – grants the required protection, arguing that the post-constitutional regulation must comply with the principle of legality, a fundamental right, enshrined in Article 25 of the Constitution.
It is important to note that the Superior Court of Justice of Madrid and the Supreme Court upheld the sanction against the cadet of the National Police School, giving particular importance to the fact that there is a pre-constitutional principle “that does not require reservation of law when the applied regulatory principle is linked, without changing it, to a pre-constitutional regulation”, as in this case with the above-mentioned Regulation of the Public Police School, approved in 1967. So that this type of interpretation does not persist. After its introduction, the Constitutional Court resolved the case explaining the aforementioned principle in the sense that “at first instance” it could be understood that the requirements of a specific law “were not applicable to post-constitutional regulatory rules that were limited to reaffirming, without changes, the penal rules set out in the pre-constitutional regulatory principles.” Now, the Guarantee Authority determines that “more than 40 years have passed since the Constitution entered into force,” and the reservation, which has already been the subject of “increasingly restrictive interpretation” in other recent statements of the Court, should not be maintained.
The Superior Court of Justice of Madrid and the Supreme Court also gave special value to the penal regime applied in this case due to the relationship of the student’s “special subjection” to state regulations, given his status as an applicant for joining the National Police Corps. The Constitutional Court also clarifies this point by stating that the aforementioned principle of “relations of special subjection” cannot lead to “a reduction in the scope of what fundamental rights protect in certain areas.” The ruling – approved by a vote against Justices Enrique Arnaldo and Concepcion Espejil, from the court’s conservative bloc – confirms that the sentence imposed on the appellant lacks “full legal coverage, which establishes the violation of the fundamental right to the legality of sanctions.” The Court adds that the fact that the penalty was imposed “within the context of a special relationship of submission” in no way conflicts with this consideration.
The path followed by the penalty and the difference in standards between the disputing courts, on the one hand, and the Constitutional Court, on the other, reflect two very different approaches, not only with regard to the specific issue, but also with regard to the relationships between pre-constitutional norms and the development of the Constitution itself. On the one hand, the intensity of those norms and the recognition of their legitimacy in early judicial rulings, and on the other hand, the greater sensitivity towards guaranteeing individual rights declared by the Constitution itself.