The Presumption of Innocence and Administrative Law on Sanctions

The presumption of innocence in administrative sanctions, the presumption of veracity and the in dubio pro reo.

In our current rule of law, the principle of presumption of innocence must be respected as a constitutional right.

Is the accusation of an official with authority status sufficient for the administrative sanction to proceed?

Does the presumption of veracity of an official with authority admit proof to the contrary?

Is it sufficient for the Public Administration to consider that a fact is allegedly unlawful in order to sanction?

Reading this article, we hope you will be able to find answers to all these questions. However, there are circumstances in which this right is violated, here go some real examples, all of them, resolved by our Supreme Court:

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Supreme Court Rulings

1. STS (STS = Supreme Court Ruling) of January 24, 1994, Contentious-Administrative Chamber, 7th Section (P. Conde Martín de Hijas). An appeal was filed against a fine of 500,001 euros imposed by the Directorate General of Labor for a very serious infraction. The reason for the sanction was the use of a foreign worker without a work permit. The employer did not deny the facts, but based its defense on the non-existence of fault. It argued that it had a positive report from the Haro Employment Office. The employee of said office corroborated this with his testimony. It was considered that the presumption of innocence was not rebutted and therefore the sanction was annulled.
2. STS of April 27, 1998, Contentious-Administrative Chamber, 3rd Section (P. Menéndez Pérez). An appeal was filed against a sanction imposed on a commercial Company for a highway infraction. It had installed an advertising billboard on a non-urban stretch of road visible from the public domain zone. Again, the facts are not denied. However, it was alleged that the principle of innocence was violated because it was not proven that the area in question was a non-urban section. Since there was no record of this classification in the file, the sanction was annulled.
3. STS of January 19, 2000, Contentious-Administrative Chamber, 2nd Section (P. Iranzo Prados). An appeal was filed against a fine for driving with a blood alcohol level higher than that permitted by law. The facts were not denied by the appellant, but a violation of the principle of innocence was alleged. And it was upheld, as there was no record in the case file of the alcohol tests carried out with the required guarantees.

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Effective judicial protection and suspension of administrative acts’ execution

Is the initiation of enforcement appealable arguing payment of the debt, even if the payment was made after the deadline? The answer is yes, in these situations, an optional administrative reconsideration appeal by extinction of the debt is possible. And in this same appeal, the enforcement’s suspension can be requested.

Presumption of Truthfulness in Administrative Sanctioning Law

All the above cases are based on the resolution of an Official with authority status, with presumption of veracity.

What is the presumption of veracity and does it undermine the Principle of Presumption of Innocence? The presumption of truthfulness is a right held by persons endowed with public authority in the performance of their duties. By virtue of it, the word of the person who enjoys it is presumed to be truthful and prevails over that of the non-official. Provided that the contrary is not proven.

It appears regulated in Article 77.5 of Law 39/2015, of October 1, Common Administrative Procedure of Public Administrations (Previously in 137.3 of Law 30/1992):

“Art. 77.5. The documents formalized by the officials to whom the status of authority is recognized and in which, observing the corresponding legal requirements, the facts ascertained by the former shall be evidence of the latter unless otherwise accredited.”

We also find it in the highway code, with respect to the complaint of a police officer (Article 52 Organic Law 4/2015, of March 30, on the protection of citizen security).

But this principle, does not prevent the one who does not enjoy it, who can contradict the facts stated by the authority. It is therefore a “iuris tantum” principle, which admits proof to the contrary. Thus, the Principle of Presumption of Truthfulness coexists with the Principle of Innocence.

The Principle of Presumption of Innocence in Administrative Sanctions (Administrative Sanctioning Law)

The presumption of innocence appears as a fundamental right in Article 24.2 of the Spanish Constitution. It is a right inherent to the criminal system, and that jurisprudence, by affinity, extended to the administrative sanctioning system.

The principle of Presumption of Innocence guarantees not to be sanctioned in the administrative sanctioning order, without prior evidentiary activity. It guarantees a period of evidence that results in a proof of guilt. By virtue of the same, it is up to the Administration to prove the certainty of the facts imputed. In no case is the accused/expelled person obliged to prove his innocence, since he is protected by the constitutional presumption of innocence. It is not enough, as we say, a complaint that initiates a sanctioning file, but that does not constitute proof of infringement. And all this in spite of the principle of veracity, since, as we have been saying, this admits proof to the contrary.

Regarding the principle of presumption of innocence, our constitutional court, and with respect to the evidentiary period, has ruled [Ruling 76/90 of April 25 (FJ.8º)]:

“(…) any insufficiency in the result of the evidence practiced, freely assessed by the sanctioning body, must result in a pronouncement of acquittal (…)”

Requirements of the evidence to support the sanction or infraction:

Our case law also requires that, in order for the circumstantial evidence to destroy the presumption of innocence, the following requirements must be present:

• The circumstantial evidence must be based on fully proven facts.
• The facts constituting the infringement must be deduced in a rational and reasoned manner and must be made explicit in the sanctioning resolution.

This is maintained, among others, by SsTC 229/1988, 107/1989, 24/1997 and 45/97).

Application of the In dubio pro reo Principle to Administrative Penalties Law:

The effectiveness of the Principle of Presumption of Innocence, the fundamental right to be presumed innocent, unfolds its effects when: a) there is an absolute lack of evidence; b) the evidence obtained is not admissible or; c) does not meet the due guarantees.

If these circumstances are present, the “in dubio pro reo” principle applies, which is typical of criminal law and can be extended to administrative law. That is, in case of doubt, for example, due to insufficient evidence, the accused will be favored. As resolved by our Constitutional Court, for example, in STC. 44/89, of February 20.

It is normal to confuse the Presumption of Innocence and the in dubio pro reo because of this common point: No one can be convicted if guilt is not proven.

The STS 1218/2004 of November 2 makes the following distinction between one and the other (Fundamento de Derecho Primero):

(…) 1º A first of an objective nature that could be classified as a verification of the existence or not of true evidence, a phase in which, in turn, two different operations should be differentiated:

• to specify whether the basic procedural guarantees have been adopted and observed in the performance of the evidentiary proceedings.
• to specify if, in addition, such evidentiary diligences suppose or objectively contribute incriminating or accusatory elements.

2º A second phase of a predominantly subjective nature, for which the usual denomination of “evaluation of the result or integral content of the evidence” should be reserved “strictu sensu”, weighing in conscience the different evidentiary elements, on the basis of which the conscience of the Court is freely formed.

In the first phase the presumption of innocence would operate and in the second phase the principle in dubio pro reo. Thus, the presumption of innocence is developed within the framework of the burden of proof and assumes (STC. 31.5. 85) that it is not up to the accused to prove that he is innocent of the accusation made against him, but that it is up to him who maintains it, to prove the accusation by means of the corresponding evidence, (…) that can objectively be considered as evidence against him: for its part, the “in dubio pro reo” principle, presupposing the prior existence of the presumption of innocence, is developed in the field of the strict evaluation of the evidence, of the appreciation of the demonstrative effectiveness by the Court of instance to whom its evaluation is incumbent to form its conviction on the truth of the facts (Art. 741 LECr.). The importance of this distinction is fundamental in practice, given that the trial judge is responsible for carrying out the entire process of analysis of the evidentiary diligences practiced, comprising, therefore, the two phases indicated (…).

In other words, in dubio pro reo operates only when, once the evidence has been presented, the presumption of innocence has not been rebutted.

In this same sense, we find Supreme Court’s rulings 277/2013 of February 13, 936/2006 of October 10 and 346/2009 of April 2.

If this article has been of interest, we also suggest you to read the following article published on our website: Habeas Data and its regulation through article 197.2 of the penal code.