Prescription of severe sanction.

The information provided by the consulting University is as follows:

“The Rector of the University of XXX imposed on a professor [interim holder] the penalty of suspension of functions for four and a half years, the execution of which would be carried out from August 17, 2010 to February 16, 2015.

Subsequently, the Rector imposes, on the same interested party, a penalty of one year of suspension of functions for the commission of a serious misdemeanour, being notified to the interested party on August 16.

Taking into account that the two suspension of functions sanctions could not be carried out simultaneously, the University considered its execution to be appropriate in succession. In this way, on November 19, 2010, the interested party was notified that the execution of the second sanction would begin on February 17, 2015, that is, from the end of the suspension of functions imposed by the first sanction, thus understanding that the possible prescription of the serious lack of a year of suspension was interrupted by compliance with the first of the sanctions.”

In the light of these data, it is consulted whether the described action is correct or whether, on the contrary, the penalty must be understood to be prescribed for the lapse of the limitation period (2 years for serious misdemeanours).

The disciplinary regime distinguishes two kinds of prescription, that of infractions and those of sanctions.

In both cases, the action of the Administration, either aimed at the demand for responsibility or aimed at complying with the sanction imposed, interrupts the prescription and, therefore, the period provided for it to occur.

This general rule must be nuanced in the sense that not every action of the Administration is valid to interrupt the statute of limitations, but it is necessary that such action is diligent and that it is really aimed at achieving the desired objective, in the present case, the materialization of the sanction imposed; therefore, not valid for these purposes, the actions that are carried out with the sole purpose of formally interrupting the statute of limitations but without actually seeking to comply with the obligation subject to that type of time limit.

In this sense, and for the sake of the principle of legal certainty, as indicated by the Supreme Court in its judgment of November 14, 1985, in disciplinary matters, a legal situation must not be allowed to remain in a state of temporarily indefinite uncertainty and that the due administrative action is paralysed without any limitation of time, so that the limitation period will not interrupt the “unnecessary” resolutions that are issued only for that purpose, and not with that of complying with the activity to which it is obliged.

In the present case, and according to the information provided by the consultant, the sanction has been executed and, therefore, the possible prescription alleged has been interrupted, consisting in setting the exact dates on which the suspension of functions, which is the sanction imposed, has to be carried out; the interested party has been notified, as indicated, of both the sanction and its execution.

Therefore, in this case, and in the light of the arguments presented, it seems that it is not objectionable that the prescription of the sanction has occurred, since it has been executed in the terms set forth by the University and that, in addition, its execution at an earlier time would not have been possible, or the penalty would have been null and void, since it would have coincided in time with another sanction of the same type that, by its very nature, makes its simultaneous execution impossible.

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.