A situation in which a public employee is sentenced to imprisonment.

The issue raised concerns the administrative situation in which a career civil servant is sentenced to imprisonment.

Thus, Article 90.2 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP) establishes that:

“The final suspension shall be imposed by virtue of a sentence handed down in criminal proceedings or by virtue of a disciplinary sanction. The final suspension for disciplinary sanction may not exceed six years.”

Taking into account the purpose of the precept and its literality, since an administrative situation is being regulated, it must be interpreted in the sense that, when one of the two circumstances indicated by the precept occurs, that is, “sentence handed down in criminal case” or “disciplinary sanction”, which entails the suspension of functions, the official must be declared in that situation.

In this sense, in the event that the sentence does not condemn a suspension of functions but a main penalty, consisting of a prison sentence, and an accessory penalty of special disqualification for the performance of employment or public office, it is no less true that the fulfillment of the main penalty – provided that the special disqualification did not affect the status of civil servant, as we will see later – entails the impossibility of complying with the obligations that correspond to the convicted person in his/her capacity as civil servant, which not only eliminates the element of voluntariness, as previously indicated, that would eliminate the possibility of determining the passage to voluntary surrender for particular interest, but also implies the forced provision of the criminal service.

Thus, it is understood that the reference made by Article 90.2 of the TREBEP to the “sentence handed down in criminal cases” must not only be limited to the cases of having been condemned as a principal or accessory criminal –art. 56.1.1º- to the penalty of suspension of duties, but it is also understood that this situation can be extended to cases in which, on the basis of a judicial sentence handed down in the criminal order, the official is unable to continue to perform his duties, that is, those sentences that impose custodial sentences and lead to imprisonment; interpretation that, on the other hand, would not be applicable, in any case, to other criminal sentences in which the penalty would not prevent the continuation of the provision of public service.

This argument is supported by the Supreme Court ' s decision of 2 February 1984 to the effect that: “for relations of special subjection, therefore, in the present case, there is no criminal sanction and disciplinary file, but criminal sanction and administrative situation of suspension of functions, which is not of a punitive nature, and whose genesis is precisely in the processing of the same judicial procedure, which discourages the maintenance of a duplicity of effects materially unfavorable to the affected as derived from a common origin, it should be noted in addition, that even in the case of concurrence of criminal and administrative sanctions, certain doctrine has maintained that the punitive power of the State must be exercised by a single authority, which is no other than the criminal authority, without possible splitting, in principle, considering the . 25.1 of the Spanish Constitution, and therefore as a fundamental right. Therefore, I understand that it is appropriate to estimate the current Administrative Litigation appeal, otherwise it would be equivalent to converting the suspension of functions into a real sanction, acting also as an autonomous sanction separate from the effects of the judgment […]”.

In support of the arguments presented, it should be added that Article 98.3 of the TREBEP provides that when “The provisional suspension may also be agreed during the course of a judicial proceeding, and shall be maintained for the period of time during which the provisional detention or other measures ordered by the judge that determine the impossibility of performing the job”which would logically confirm that, when the criminal sentence condemns a custodial sentence involving imprisonment, provided that it does not also condemn disqualification as an official, the administrative situation is changed from provisional suspension to final suspension.

Finally, it should be noted that both the administrative situation of permanent suspension and the situation of voluntary leave for private interest have practically identical material effects, that is, the time that the official remains in either of these two situations is a “blank” time, that is, it does not generate any right, either economic or administrative; although, as has been pointed out, it is considered more appropriate in this case, to agree on the administrative situation of permanent suspension, provided, as has also been pointed out, that it is confirmed that the special disqualification that as an accessory penalty establishes the criminal sentence, does not affect the status of career civil servant.

However, as already noted, what was stated above will only be applicable if the sentence does not establish an accessory penalty of disqualification from the position of career civil servant.

In this regard, article 66 of the TREBEP states that it will cause the loss of the status of career civil servant:

“The principal or accessory penalty of absolute disqualification when the sentence imposing it has acquired firmness results in the loss of the status of official in respect of all the jobs or positions that it has.

The principal or accessory penalty of special disqualification when the sentence imposing it has acquired firmness results in the loss of the status of official in respect of those jobs or positions specified in the sentence.”

In addition, Article 63(e) of the same Regulation provides that it causes the loss of the status of a career official, “The principal or accessory penalty of absolute or special disqualification for public office that has a firm character.”

That is, in case of absolute disqualification, the loss of the status of career civil servant will be determined, while in case of accessory penalty of special disqualification, the loss of the status of civil servant will only occur if this is specified in the judgment.

Therefore, it is understood that it is determinant that the scope of the judgment can be known at this end, so that, in the event that the Judgment cannot unquestionably infer the public employment or position included under such special disqualification, it is considered necessary that the judicial body sentencing or, where appropriate, the person in charge of the execution of the judgment, be urged, through the corresponding procedural representation, to determine the public jobs or positions on which such special disqualification would fall.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.