Principles of Sanctioning Powers in Administrative Law
Principles of Sanctioning Powers
a) Principle of Legality
The sanctioning power of public authorities may be exercised only when it has been expressly recognized by a regulation having the force of law.
This principle includes a double guarantee: the need for regulatory predetermination of unlawful acts and penalties (the principle of criminality), and the reserve of law on penalties, which we refer to here.
There is no uniform law, but it seems understood that the matter is not confined to procedural law. It is questionable whether issues such as prescription can be considered included in the procedural or substantive aspects covered by the reservation of law.
It should be emphasized that the law does not apply, according to constitutional jurisprudence, the definition of offenses and penalties to pre-constitutional regulations, as this requirement is not retroactive.
In the field of administrative sanctioning powers, some collaboration is allowed in the definition of regulatory violations and sanctions. The scope of the legal reserve may not be as strict with regard to infractions and administrative penalties as in regard to criminal types and sanctions. Constitutional jurisprudence prohibits the existence of regulations that are independent or not clearly subordinate to the law.
What is allowed in the definition of offenses and penalties is the occasional collaboration of development regulations or executive regulations, provided that they simply establish certain specifications for infractions or a graduation of penalties that are a mere “necessary complement” (or a “mere development subject to the law”).
Collaboration of regulatory legislation in sanctions is constitutionally lawful only when the law establishes certain essential elements of unlawful conduct and the nature and limits of the sanctions to be imposed.
This manifestation of collaboration in the field of regulation of the sanctioning power is particularly important at the local level because local bodies can express their will only through rules in general administrative provisions. The Constitutional Court has eased the consequences of the legal reserve, but not excluded it. Local authorities may, in the absence of sector-specific regulation, establish the types of violations and impose penalties for breach of duties, prohibitions, or limitations contained in the relevant ordinances, according to the classification of offenses in the LBRL between very serious, serious, and minor offenses, punishable, unless other legal provisions exist, to 3,000, 1,500, and 750 euros respectively.
b) Principle of Typicality
The principle of typicality is a consequence of the principle of legality in its dimension of preset rules. This principle requires the existence of legal provisions that can predict with sufficient certainty those behaviors that carry the responsibility of the administrator and their eventual punishment.
This principle is closely linked to the principle of legal certainty and its realization calls for the following demands on the law:
- That it includes all elements of the type and causes of exclusion of liability.
- That the law determines sanctions.
- The need for the definition of crimes and penalties and the necessary correspondence between them.
The Constitutional Court has recognized the possibility of using vague legal concepts in the classification of offenses, such as “public peace,” “public order,” or “integrity.” But this admission is not unlimited; to be valid, the realization of such vague legal concepts must be “reasonably practicable under logical criteria or technical expertise.”
The types called “white” are admitted, since the reservation of formal law is required of the sanctioning standard and not the one to which it refers.
The penalties are bounded by law, although the law grants the administration discretion to grade the punishment under the circumstances. However, it is forbidden for this discretion to be so broad that it becomes a practically free decision.
The rules defining offenses and penalties are not susceptible to analogy. As in criminal law, the principle of typicality prohibits analogy for reasons of legal certainty. The problem is sometimes separating the forbidden analogical implementation and the interpretation of provisions that merely describe types of offenses in broad or general terms.
c) Principle of Non-Retroactivity of Unfavorable Punitive Rules and Retroactivity of Favorable Ones
Penal provisions in force at the time of the events that constitute an administrative offense apply.
Penalty provisions take effect retroactively in favor of the alleged offender. Retroactivity of punitive rules more favorable than those existing to date applies with respect to offenses committed before their entry into force. It should be clear that the retroactive favorable review does not allow the reversal of firm acts.
Both principles are applicable not only to the definition of offenses and penalties but also to other items such as prescription or modifying circumstances of liability.
d) Principle of Responsibility
This principle raises several issues related to the requirement or not of guilt, the determination of the responsible parties, and the changed circumstances of liability.
It was understood at the time that responsibility in the field of administrative sanctions was “objective,” which did not need to materialize fraud, fault, or negligence, as required by criminal law. This was justified by the nature of the conduct that constitutes an administrative offense and the practical difficulty of proving guilt in many cases. This position was progressively condemned by law from the sixties, and thus the Supreme Court came to require a “culpable subjectivity,” a requirement that was subsequently endorsed by the Constitutional Court.
Currently, only individuals or legal entities that are responsible for offenses, even due to simple negligence, can be sanctioned.
The provision appears to spare the guilty, and if so, would contradict the case-law view. Authors and jurisprudence have carried out a “correcting” interpretation, under which the requirement of culpability for illegal administration is more flexible than in criminal law. There are, however, causes that acquit the alleged offenders of responsibility. Among them, in addition to force majeure and fortuitous events, is, on the one hand, the derivative of a legitimate action of the Administration that will generate in the subject the conviction that they are acting lawfully; on the other hand, the invincible error of fact; and finally, action based on a reasonable interpretation, albeit erroneous, of the rule that is violated, always taking into account the principle of good faith. In any case, it is a rebuttable presumption of guilt, which belongs to the person responsible in their case alleging and proving to fight any of the above circumstances.
The sanctioning power of the Administration will not apply the principle of presumption of innocence, and the burden of proving the facts constituting the offense corresponds inescapably to the acting administration, without being chargeable to the defendant a diabolical probatio of negative events; and requires the existence of a sufficient body of evidence.
As for the individuals responsible, they can be both natural and legal persons. It is appropriate to impose sanctions on legal persons as a result of the actions of their employees or individuals for which they exercised control or supervision, noting that this particular manifestation of the subjective principle of guilt does not preclude our Administrative Law from supporting the direct responsibility of legal persons, recognizing thus their infringing capacity.
In the case of the existence of a plurality of persons responsible, the extension of liability to other partners, jointly and severally, will be accepted only exceptionally and on the basis of proven guilt. For its part, liability for the duty to prevent what others do is precluded if the obligor has been diligent and the offense is committed by the other ignoring the orders or instructions of the former.
Some sectoral rules provide, however, a rule of individualization of sanctions (e.g., the sponsor and the technical director of a play), and specific rules on ownership by different types of offenses contemplated.
Finally, note that there is no general regulation of the changed circumstances of liability. Case law tends to apply some rules extracted from criminal law, such as invincible error, necessity, or obedience, but not criminal minority, given that children also have the capacity to act in administrative law, without prejudice to the subsidiary responsibility of those who have a legal duty to exercise parental authority or guardianship.
e) Principle of Proportionality
Proportionality is the requirement of a trade-off between the offense and the punishment, so that it does not incur unnecessary or excessive measures.
Administrative sanctions may not, in any case, involve deprivation of liberty.
The establishment of penalties must ensure that the commission of the offenses is not more beneficial for the offender than complying with the rules infringed.
Public administrations must observe the proper fit between the severity of the act constituting the offense and the penalty imposed, especially considering the following criteria:
- The existence of intent or reiteration.
- The nature of the damage caused.
- Repetition.
This principle must be observed by the legislature in the regular schedule of violations and penalties, both for those classified by severity, to determine the punishment for each type and class of offenses. It should also be respected by management in applying the standard sanction, graduating its reach within the range usually provided by the laws and, where appropriate, determining the type of penalty when the unlawful conduct may be contained in several of them according to their severity. They also have the obligation to give reasons for adopting a specific sanction from the range of sanctions or the range of amounts established.
f) Principle of Non Bis In Idem
Administrative sanctions legislation is still quite imperfect, and often the same conduct is criminalized as illegal in several legal texts at once, whether in administrative law and the penal code, or in several administrative laws or in a number of provisions of some of them.
In all these cases, it could lead to the imposition of various sanctions on the same subject for the same conduct or performance. But this principle prohibits the imposition of various sanctions of any kind when there is identity of the offending subject, fact, and substance.
We can distinguish two possible cases of competition: criminal penalties and administrative sanctions, and administrative sanctions among themselves.
In the first case, the Administration may not impose a penalty when these facts have been the subject of a criminal conviction, a rule that expresses the primacy of the criminal sanction over the administrative one. If there is a prior criminal conviction and disciplinary and administrative proceedings have been initiated, they should be filed. If they have not yet been opened, they cannot be started. The problem arises when there is a prior administrative ruling, in which case the law is not uniform, having said that either a subsequent criminal conviction would not be feasible or it is, but in this case, it would nullify the administrative penalty (or would discount it) or imply its revision or cancellation. To avoid this, the legislation establishes a procedural rule, according to which, once a criminal investigation has been initiated, the administration cannot continue or terminate the disciplinary proceedings opened on the same facts and the same grounds against the same persons. Moreover, quite a few sectoral laws require the Administration to pass the blame to the prosecutor as soon as evidence of a crime appears, impose an immediate suspension of disciplinary proceedings, and others allow further processing but prohibit the issuance of a sanctioning resolution until there is a criminal conviction.
The facts found by strong criminal judgments are binding on the government for sanction procedures to substantiate. Some facts cannot exist and cease to exist at the same time for different organs of the state. The Administration is not bound, however, by the assessment of those facts brought out by the criminal courts. On the other hand, if the criminal conviction merely states some facts and does not prove them, nothing prevents the Administration from verifying the evidence to try later.
It should be emphasized that there is no prohibition on administrative sanction if there is already a criminal conviction when the administrative sanction for the same acts has a different foundation, which has to be understood as meaning that the legal rights protected by criminal law and the administration are different.
The second aspect is the compatibility or otherwise of the imposition of various administrative penalties for the same facts. We must distinguish various scenarios:
The ideal competition of standards: occurs when one event falls under the scope of various rules on penalties, to be subsumed in the budget done. In these cases, you must go to the specialty and competition.
The real contest of offenses: occurs when one event establishes several breaches. In these cases, the occurrence of violations may result in sanctions for all violations only if they are separate and independent of each other, i.e., when the commission of one does not necessarily end the other because otherwise, the sanction should be imposed only for the most serious offense committed.