The Principle of Equality in Law Enforcement: A Constitutional Court Doctrine
The Principle of Equality in Law Enforcement
Constitutional Court Doctrine
The Constitutional Court’s doctrine on the principle of equality in law enforcement, protected by Article 14 of the European Convention on Human Rights (ECHR) and connected with the principle of prohibition of arbitrariness of public powers enshrined in Article 9.3 of the Spanish Constitution, establishes that the same judge or court cannot change the direction of its previous decisions in essentially identical cases unless:
- They consciously depart from the previous decision, providing a sufficient and reasonable basis to motivate the change of position.
- They express no such reasons but decide that the difference in treatment is based on a change of position and is supported by the court decision itself or external evidence.
Material vs. Formal Principle
The principle of equality is considered a material principle because it aims to ensure equal treatment by the legislature. On the other hand, the principle of equal application of law is a formal principle because when a violation of equality occurs, its restoration is formal. This means it is limited to granting the protection order and requiring the court to issue a new decision that either maintains the same position as before the contested decision or provides proof of a change of position. Both ways are valid to repair the constitutional violation.
Categories of Suspicion of Discrimination
Article 14 of the ECHR does not provide a closed list of categories on suspicion of discrimination. However, it explicitly prohibits maintaining certain distinctions historically rooted in social practice and public authorities’ actions, which have placed sectors of the population in disadvantageous positions and violated the dignity recognized in Article 10 of the ECHR.
Affirmative Action and the Law 3/2007
The Law 3/2007 on affirmative action refers to temporary measures taken to accelerate the achievement of equality. Article 11 of this law specifically mentions positive measures for women designed to correct situations of inequality in fact.
Burden of Proof in Sex Discrimination Cases
According to Article 13 of the Organic Law 3/2007, in proceedings where the plaintiff’s claims are based on discriminatory grounds related to sex, the burden of proof lies with the respondent to demonstrate the absence of discrimination.
Direct and Indirect Sex Discrimination
The Organic Act 3/2007 defines direct discrimination on grounds of sex as a situation where a person is, was, or would be treated less favorably than another in comparable circumstances based on their sex (Article 6.1). Indirect discrimination occurs when a provision, criterion, or practice would put persons of one sex at a particular disadvantage compared with persons of the opposite sex, unless objectively justified by a legitimate purpose and necessary and appropriate means (Article 6.2).
The Need for “Tertium Comparation”
It is not necessary to provide a singular “tertium comparation” (a third element for comparison) to justify the existence of discriminatory and prejudicial treatment. Comparisons are made between social groups statistically weighted by their individual components, not between individuals.
Equality in the Spanish Constitution
Articles 1.1, 9.2, and 14 of the Spanish Constitution address equality with different focuses:
- **Article 1.1:** Recognizes equality as a fundamental value.
- **Article 9.2:** Establishes the state’s responsibility to promote conditions that ensure real and effective equality.
- **Article 14:** Guarantees the right to equality before the law and prohibits discrimination based on various grounds.
Reasonable and Objective Justification
Not all inequalities are discriminatory. If an inequality measure has a reasonable and objective justification, demonstrating proportionality between the means employed and the aim pursued, it may not constitute discrimination. Equality is violated when discrimination is subjective and arbitrary, without a specific purpose or proportionate means to achieve it.
Positive or Compensatory Purpose of Labor Law
The principle of equality operates differently in labor law due to its positive or compensatory purpose. Ensuring the promotion of real equality in industrial relations may require a minimum of inequality in favor of the worker.
Levels of Operation of the Principle of Equality
The principle of equality operates at two levels:
- **Facing the legislature:** Preventing the creation of rules that treat people differently if they are in the same situation or circumstances, or that give legal significance to differences prohibited by the Constitution.
- **Against law enforcers:** Ensuring that laws are applied equally to people in similar circumstances and that different treatment is justified by the specific circumstances present in the standard.
Inequality in Law vs. Unequal Application of Law
**Inequality in the law** occurs when a standard differentiates between factual situations in an unreasonable or arbitrary manner, assigning specific legal consequences without sufficient factual basis. **Unequal application of the law** happens when a law-applying organ interprets the relevant rules differently in a particular case compared to substantially similar cases.
Essential Features of the Constitutional Court Doctrine
The Constitutional Court’s doctrine on the principle of equality before the law emphasizes that while it allows for different treatment of different situations, there must be a correspondence or proportionality between the factual and legal differences. The principle is violated when trivial factual differences are attributed deeper legal consequences.