10 Principles of Administrative Sanctioning Power

A) Principle of Legality

The sanctioning power of Public Administrations can only be exercised when it has been expressly recognized by a rule with the status of Law.

This principle comprises a double guarantee: the need for normative predetermination of illicit conduct and the corresponding sanctions (principle of typicality) and the reservation of law in sanctioning matters to which we refer.

There is no uniform jurisprudence, although it is partially understood that procedural matters are not reserved to law, and it is questionable whether issues such as prescription can also be considered included in procedural matters or whether they are rather substantive aspects covered by the reservation of law.

It is worth noting that the reservation of law is not applicable, according to constitutional jurisprudence, to the typification of infractions and sanctions by pre-constitutional regulatory norms, since this requirement does not have a retroactive character.

In the field of administrative sanctioning power, a certain regulatory collaboration is admitted in the typification of infractions and sanctions. The scope of the legal reserve cannot be as strict in relation to administrative infractions and sanctions as in reference to criminal types and sanctions, which is why constitutional jurisprudence prohibits the existence of independent regulations or those not clearly subordinate to the law.

What is admitted in the typification of infractions and sanctions is the occasional collaboration of the development or executive regulation, provided that it is limited to establishing certain specifications of the infractions or the graduation of the applicable sanctions, which constitute an “indispensable complement” (or a “development subordinate to the law”).

Regulatory collaboration in sanctioning regulations is only constitutionally legitimate when the law determines the essential elements of unlawful conduct and the nature and limits of the sanctions to be imposed.

This manifestation of the collaboration of the regulation in the field of sanctioning power is especially important in the local sphere, since local entities can only express their normative will in administrative provisions of a general nature. The Constitutional Court has been flexible with the consequences of the reservation of law, but not to the point of excluding it. Local entities could, in the absence of specific sectoral regulations, establish the types of infractions and impose sanctions for the breach of prohibitions or limitations contained in the corresponding ordinances, in accordance with the classification of infractions that the law itself includes: very serious, serious, and minor infractions, punishable, except for a different legal provision, up to 3,000, 1,500, and 750 euros, respectively.

B) Principle of Typicality

The principle of typicality is nothing more than a derivation of the principle of legality – in its dimension of normative predetermination. This principle imposes the existence of legal precepts that allow predicting with a sufficient degree of certainty which conducts carry the responsibility of the administrated and their eventual sanction.

This principle is closely linked to the principle of legal certainty and its concretion demands the following requirements from the law:

  1. That it includes all the elements of the type, as well as the causes of exclusion of responsibility.
  2. That the law determines the sanctions.
  3. The need for the definition of illicit acts and sanctions and the necessary correspondence between them.

The Constitutional Court has recognized the possibility of using indeterminate legal concepts in the typification of infractions, such as: “public peace”, “public order”, or “probity”, but this admission is not unlimited. To be valid, the concretion of these indeterminate legal concepts must be “reasonably feasible by virtue of logical, technical, or experience criteria”.

The so-called “blank” types are admitted since the formal reservation of law is demanded by the sanctioning norm and not by the one to which it refers.

The sanctions will be limited by law, even if the law grants the Administration a margin of appreciation to graduate the sanction according to the circumstances. It is prohibited for this to be so broad that it transforms into a practically free decision.

The rules defining infractions and sanctions will not be susceptible to analogical application, as occurs in criminal law. The principle of typicality prohibits, for reasons of legal certainty, the problem that arises when trying to distinguish between prohibited analogical application and the mere interpretation of precepts that describe types of infractions in broad or general terms.

C) Principle of Non-retroactivity of Unfavorable Sanctioning Norms and Retroactivity of Favorable Ones

The sanctioning provisions in force at the time the acts constituting an administrative infraction occur shall be applicable.

Sanctioning provisions shall have retroactive effect insofar as they favor the alleged offender. Retroactivity of the more favorable sanctioning norms in force until the date with respect to infractions committed prior to said entry into force. It is worth clarifying that favorable retroactivity does not allow the review of signed acts.

Both principles are applicable not only to the typification of infractions and sanctions but also to other elements such as prescription or the modifying circumstances of responsibility.

D) Principle of Responsibility

It raises various questions related to the requirement or not of fault, with the determination of the responsible subjects, and with the modifying circumstances of responsibility.

It was understood in times past that responsibility in the field of administrative sanctions was of an “objective” nature, that its materialization did not require intent, fault, or negligence, as is required in criminal law. It was justified by the nature of the conduct constituting an administrative infraction and by the practical difficulty of proving guilt in many cases. This position was progressively condemned by jurisprudence from the 1960s onwards, and in this way the Supreme Court came to demand a “culpable subjectivization”, a requirement that was later endorsed by the Constitutional Court.

Currently, only natural or legal persons who are “responsible for them, even by simple omission” may be sanctioned.

The precept seems to dispense with fault and, if so, it would contradict the jurisprudence seen above, which is why authors and jurisprudence have carried out a “corrective” interpretation, according to which the requirement of culpability in administrative offenses is more flexible than in criminal law. However, there are causes that exempt the alleged offenders from liability, including, in addition to force majeure and fortuitous events, legitimate trust derived from an action of the Administration that allows generating in the subject the conviction that it is acting lawfully, and, on the other hand, invincible factual error. Finally, action based on a reasonable, albeit erroneous, interpretation of the rule that is infringed, always taking into account the principle of good faith. In any case, it is a presumption iuris tantum of fault that it is up to the person responsible to combat by alleging and proving any of the aforementioned circumstances.

The principle of presumption of innocence applies to the sanctioning power of the Administration, and the burden of proving the facts constituting an infraction corresponds irrefutably to the acting Administration, without it being demandable from the accused a diabolica probatio of negative facts and, in any case, the existence of sufficient probative evidence.

As for the responsible subjects, they can be both natural and legal persons. It is appropriate to impose sanctions on legal persons as a consequence of the actions of their employees or natural persons with respect to those who exercised control or vigilance, pointing out that this special subjective manifestation of the principle of culpability does not prevent our administrative law from admitting the direct responsibility of legal persons, recognizing their capacity to commit infractions.

In the case of the existence of a plurality of responsible persons, the extension of responsibility to other participants with a joint and several character can only be admitted exceptionally and on the basis of proven culpability on their part. The responsibility derived from the duty to prevent what others do is excluded if the person obliged has observed diligent conduct and the infraction is committed by another person who has disregarded the orders or instructions of the former.

Some sectoral regulations establish, on the contrary, a rule of individualization of sanctions (e.g., to the promoter and the technical director of a work) and specific rules on authorship according to the different types of infractions contemplated.

Finally, it should be noted that there is no general regulation of the modifying circumstances of responsibility. Jurisprudence tends to apply some rules extracted from criminal law, such as invincible error, state of necessity, or due obedience, but not criminal minority, given that minors also have the capacity to act in administrative law, without prejudice to all this, the subsidiary responsibility of those who have the legal duty to exercise parental authority or guardianship.

E) Principle of Proportionality

Proportionality implies the requirement of a relationship of correspondence between the infraction and the sanction, so that the latter does not incur unnecessary or excessive measures.

Administrative sanctions may under no circumstances imply deprivation of liberty.

The establishment of pecuniary sanctions must ensure that the commission of the typified infractions does not turn out to be more beneficial for the offender than compliance with the infringed norms.

Public Administrations must ensure due adequacy between the seriousness of the act constituting the infraction and the sanction applied, taking into account, in particular, the following criteria:

  • The existence of intentionality or reiteration.
  • The nature of the damage caused.
  • Recidivism.

This principle must be observed by the legislator at the time of regulating the framework of infractions and sanctions, both to classify them according to their seriousness and to determine the sanction that corresponds to each type and class of infractions, and it must also be respected by the Administration when applying the sanctioning rule, graduating its scope within the margins that the laws usually provide for and, where appropriate, to determine the sanctioning type when the illicit conduct can be included in several of them depending on its seriousness. In addition, they have the obligation to state the reasons why they adopt a specific sanction within the range of sanctions or the amount established.

F) Principle of Non Bis In Idem

Legislation on administrative sanctions is still quite imperfect and often the same conduct is typified as illicit in several legal texts at the same time, whether in an administrative law and the Penal Code, or in several administrative laws or in several precepts of some of them.

In all these cases, it could lead to the imposition of several sanctions on the same subject for the same conduct or action. However, this principle prohibits imposing several sanctions of any kind when there is identity of the offending subject, act, and grounds.

Two cases of possible concurrence can be differentiated: that of criminal sanction and administrative sanction and that of administrative sanctions.

In the first case, the Administration cannot impose a sanction when the same acts have already been the subject of a criminal conviction, a rule that expresses the prevalence of the criminal sanction over the administrative one. If there is a prior criminal conviction and an administrative sanctioning procedure has already been initiated, it must be filed. If it has not yet been initiated, it cannot be initiated. The problem arises when there is a prior administrative pronouncement, in which case the jurisprudence is not uniform, having indicated that either the subsequent criminal conviction would be unfeasible or, if so, it would render the administrative sanction ineffective (or discount it) or would imply its review or annulment. To avoid this, the legislation established a procedural rule according to which, once a criminal investigation has been initiated, the Administration cannot continue or conclude the sanctioning file opened for the same acts and identical grounds against the same persons. There are also many sectoral laws that oblige the Administration itself to transfer the case to the Public Prosecutor’s Office when there are indications of a crime, imposing the immediate suspension of the sanctioning procedure, and others allow the processing to continue but prohibit the sanctioning resolution from being issued until there is a criminal sentence.

The facts declared proven by final criminal court rulings shall bind Public Administrations with respect to the sanctioning procedures being conducted. The facts cannot exist and cease to exist at the same time for different State bodies. The Administration is not bound, however, by the assessment of those facts carried out by the criminal jurisdiction. On the other hand, if the criminal sentence is limited to declaring some facts as not proven, nothing prevents the Administration from verifying the evidence that allows proving them later.

It should be pointed out that there is no prohibition on sanctioning through administrative channels if there is already a conviction through criminal channels when the administrative sanction for the same acts has a different basis, which should be understood as the legal assets protected by the criminal and administrative norms being different.

The second aspect is the compatibility or not of the imposition of different administrative sanctions for the same acts. Several hypotheses must be distinguished:

The ideal concurrence of norms: It occurs when the same act falls under the scope of application of several sanctioning norms by being subsumable in its factual presupposition. In these cases, it is necessary to resort to the principle of specialty and competence.

The material concurrence of infractions: It occurs when the same act is constitutive of several infractions. In these cases, the concurrence of infractions may give rise to independent sanctions only if they are autonomous infractions between themselves, that is, when the commission of one does not necessarily entail that of the other, since, in the opposite case, only the sanction corresponding to the most serious infraction committed should be imposed.