Law on administrative offenses: the experience of Western and Eastern Europe
1. Western Europe
Laws concerning administrative offenses in the “established democracies” of Europe are inherently diverse. Differences appear in the titles given to administrative offenses, as well as in the legal ownership of administrative offenses, the relationship between administrative offenses and criminal offenses, the characteristics of the subjects of responsibility, the subjective side of the relevant offenses and the consequences of committing such violations. The laws also differ in the manner in which they have been established and the way specific laws address responsibility for administrative offenses.
There are nevertheless features common to administrative offenses laws of all European states addressed here. These common features can be defined in the following way: the historical origins of administrative violations within criminal law, the recognition of the subjects responsible for violations (individuals and businesses), the establishment of primary recipient of fine payments (except for the existence of additional measures of administrative penalties for violations), a lack of complete systematization of violations within a regulation, etc.
The historical origins of administrative violations within criminal law was the result of the fact that in European countries, prior to the 20th century, all kinds of violations were considered exclusively within criminal law. But the development of the economy and the enlargement of areas of human activity lead to violations that could not be resolved within the mechanisms of criminal law. Those mechanisms, including the principle of adversarial proceedings and equality of arms, could not identify responsible parties for new kinds of violations.
Steps were taken towards improving the efficiency of criminal law, the use of proper law enforcement and criminal-procedural economy by allocating certain acts (misconduct, police misconduct, violations), to representatives not of the judiciary and the police, but rather to administrative authorities. This process took place in the law of Germany, Switzerland, Belgium, Italy and Portugal. The law of these states created administrative offenses out of a variety of criminal offenses, removing them as subjects of the general provisions of criminal law. In Germany, Switzerland and Belgium, administrative offenses have been made into a third kind of punishable act (these countries had previously two other types of offenses), and in Italy and Portugal administrative offenses created a second form of offense where previously there had only been one.
Danish criminal law differs from the corresponding areas of other countries, because it does not recognize the division of offenses into different types and uses only one type of conduct – a crime. But some crimes (as defined in the Road Traffic Act and transportation, taxes, environmental protection, public health, etc.) are the basis of administrative offenses law within criminal law.
The legal systems of other countries (Austria, France, the Netherlands, Spain, Greece) are characterized by delineated administrative offenses laws from criminal law, which results in the impossibility of applying the general provisions of criminal law onto administrative offenses. The path to this subordinate relationship between criminal and administrative offenses law was different in each country: The Austrian and Dutch law came as a result of criminal offenses being separated from administrative violations, whereas administrative offenses law in France, Greece and Spain was formed solely from the active work of the judiciary. Initially the formation of the system of administrative offenses was based on analogies taken from the concepts and institutions of criminal law. But now we can say that there exists a separation of administrative offenses law in France, Greece and Spain from criminal codes.
None of the examples of countries with “well-established democracies” have a single legal act which combines all administrative offenses. Most states have laws of mixed character. The laws of some countries combine common material bases (of administrative violations, liability, or otherwise), and procedural regulations for the implementation of administrative penalties in single legislative acts. Such laws are found in Germany (Gesetz über Ordnungswidrigkeiten), Switzerland (Bundesgesetz über das Verwaltungsstrafrecht), Austria (Verwaltungsstrafgesetz), Italy (Legge «Modifiche al sistema penale» № 689), and Portugal (Decreto-Lei №433/82). Spanish law (“De Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común”) contains a single law that dictates general provisions of administrative violations. Dutch law is characterized by a single law, the law on traffic violations (“Wet administratiefrechtelijke handhaving verkeersvoorsohriften”) that has become an example for subsequent laws concerning administrative penalties.
In Belgium, France, and Denmark there are no specific laws that define the general provisions of administrative offenses. Belgian and French administrative offenses are determined by the activity of the State Council. Danish law does not require a relevant law concerning administrative offenses because criminal law is applicable to all kinds of offenses.
States that have specific laws on administrative offenses do so by creating legislation that is very general and in this way create uniformity amongst the more specific legislation dealing with the various offenses. In Germany, for example, a specific law deals with the regulations of about a thousand federal laws that contain statutes concerning misbehavior. This, however, does not take into account the existence local legislation in every federal state.
Direct requirements for establishing rules for laws on administrative offenses exist only in Switzerland, Italy, Greece, Spain and Portugal. In other states, administrative penalties for offenses are set within the specific laws and regulations on offenses.
In all European countries, legal entities on a par with physical entities may be liable for an administrative offense. In Austria and the Italian Republic only physical persons are liable for offenses. However legal persons can be responsible for paying a fine. It should be noted that legal entities in Western European countries are also subject to criminal liability. Recognizing the liability of legal entities is due to the defining characteristics of the relevant laws of the subjective side of administrative violations. The subjective side is characterized by the existence of a predominantly objective concept of guilt, according to which intent or negligence in the actions of the offender is irrelevant. However the existence of different forms of guilt in a law of administrative offenses in individual countries does occur (for example in Denmark, Switzerland and Portugal). This is not surprising given the connection between administrative offenses law and criminal law. In administrative offenses law it is sufficient to determine that a violation of the law has been committed by a person (natural or legal) and the fault in this case is presumed. This mechanism allows for the offender to acknowledge any legal person who makes a decision contrary to the requirements of the law.
The type of sanction for misconduct, in addition to the subjective aspects, contributes to distinguishing between administrative and criminal offenses. The development of criminal law in Europe over the last 500 years has created a differentiation between crimes and other illegal for which fines could be applied. Administrative offenses have been thus separated due to the fact that the main administrative penalties in offenses law of all European states are fines.
In order to differentiate administrative and criminal penalties, states identify different types of legal consequences with different terms (“fine”, “administrative penalty” for the administrative sanctions and the “monetary penalty” – for criminal sanctions). In addition to the fine, the laws of all European states with “established democracies” provides different penalties. Only in Austria and Switzerland is it possible to receive a short-term imprisonment for committing an administrative offense.
France rejected such measures in the post-war period. Additional penalties in certain countries are characterized by prohibitions (to carry out business activities, to operate motor vehicles, receive financial help from the state, etc.). In some jurisdictions (Germany, Portugal), there exists an additional measures that are independent of the application of sanctions for violations. Among these measures is confiscation or seizure of property, which was used to commit a breach administrative law or obtained because of a breach.
2. Material characteristics of administrative offenses laws of Eastern Europe
Administrative offenses law within states characterized as “young democracies” is of a transitional character. Significant changes in this area in most countries has occurred since 1990 with the adoption of new laws on administrative offenses (Czech Republic – Zákon o přestupcích, and Slovakia – Zakon o priestupkoch) or substantial changes existing laws and codes (Lithuania – Lietuvos Respublikos administracinių teises pazeidimiu kodeksas, Latvia – Latvijas Administratīvo pārkāpumu kodekss, Poland – Kodeks wykroczes, Kodeks postępowania w sprawach o wykroczeniach, Bulgaria – Law for the administrative offenses and penalties. Others, in particular the former Yugoslav republics (Slovenia – Zakon o prekrskih, Croatia – Zakon o prekrsajima, Serbia – Zakon o prekrsajima) developed and adopted new legislation in the 2000s. In some states (for example Lithuania, Latvia, Bulgaria) changes are now being perform upon the concept of a new administrative offenses law, or adopting existing laws with modern concepts of administrative or criminal law.
In some states the law on administrative offenses is part of the criminal law (Estonia, Bulgaria, Slovenia, Serbia, Croatia).
The Republic of Estonia has transformed administrative offenses that existed under Soviet rule into criminal offenses as part of the Criminal Code. Other countries with criminal law encompassing administrative offenses, have done so a longer period of time – in Bulgaria since 1960, and the Balkan countries – since the days of a single Yugoslav Republic. A characteristic of these countries is the presence of one set of offenses in the general criminal law, and another set of offenses (misconduct) in a particular law on misdemeanors. And in the legislative system responsible for misdemeanors, there exists a separate subsystem of administrative offenses. Each specific legislative act prescribes sanctions for violating the legal provision, either criminal or misdemeanors. This distinction determines the procedure for determining sanctions.
In other states characterized as “young democracies” (Lithuania, Latvia, Poland, Czech Republic, Slovakia), legislation on administrative violations is separate from criminal law. For example, in the Baltic states there exists an old Code of Administrative offenses that regulates non-criminal violations. Polish legislators, however, deliberately created legislation on administrative offenses separate from the criminal law despite the absence of an older Code. Certain provisions of the Criminal Code of the Republic of Poland, however, have been applied via analogy on administrative offenses previously. The Czech and Slovak Republics embraced this approach to organizing illegal actions, given the historical experience of the Republic of Czechoslovakia. In these states there is a system of punishable acts – Lithuania, Latvia and Slovakia has a dual system of criminal offenses, in Poland there is a triple system.
Regardless of the different character of the legislation on administrative offenses (its branch or affiliation with the criminal law), the legislation itself is dispersed throughout at number of different statutes. Only Lithuania and Latvia, which still retain their Soviet codes of administrative offenses, are characterized by a large number of offenses in a single piece of legislation. In other countries, although there is a diversity of laws concerning administrative offenses, there exists in all the various laws general provisions of the concept of misconduct, the types of sanctions and the subjects of misconduct. Most countries in Eastern Europe allow governments and local authorities to determine whether an act is to be considered an administrative offense.
All the states recognize both natural and legal persons as being liable for administrative offenses. But in most countries (except Estonia and Poland) in order to be held responsible the state must be engaged as legal entities and their officials. Special subjects are the responsibility minors. They often use other educational measures to replace the administrative penalties (misdemeanor sanctions, etc.).
Only Poland and Estonia have within administrative offenses law a concept of “objective guilt” to liability under which the legal entity is considered to be guilty of the offense, if it is established that an offense had been committed.
Other countries continue to leave in-law distribution of the forms of guilt in committing administrative offenses, including both deliberate and careless acts. This is explained by the fact that the laws of one group (Slovenia, Croatia, Serbia, Bulgaria) are a type of administrative offenses punishable by criminal action, in others (Czech Republic and Slovakia) were once a kind of criminally punishable actions, while a third (Lithuania, Latvia) is the product of the legacy of older (Soviet) administrative offenses laws.
The system of administrative penalties depends on where the administrative offenses law is found within the legal system of each country. From states with separate legislation on administrative offenses, only in Poland exists administrative penalties that are exact (there is only one type of penalty – fines) and do not make use of restrictive measures. The legislation of Czech Republic and Slovak Republic have a significant list of restrictive measures, similar to those found in their criminal justice system, such as the prohibition of activity, seizure of objects, etc. In the Baltic states (Lithuania and Latvia) the Soviet legacy remains largely intact in the form of the collection system, which includes such penal sanctions on the content of the short-term deprivation of liberty, the prohibition of activity, public works, etc., and the union of powers of the courts and administrative in the application of penalties.
Legal consequences for administrative offenses in most countries are not limited to penalties, but include additional security measures to prevent or to educate. In some countries (Lithuania, Latvia, Bulgaria partially) these additional measures are part of the institute of sanctions.
3. Procedure for administrative offenses laws in Western Europe
Procedures for administrative offenses law in Western European countries are of a legal heterogeneous nature with regard to the degree of systematization and the scope of powers of administrative bodies. The procedure of administrative penalties for all states was one reason for the separation of misdemeanor law from criminal law. With reference to administrative violations and administrative sanctions, the legal framework of European states with “established democracies” has taken to mean the activity of administrative bodies to prosecute legal persons within the responsibility of the administrative (court) order. The jurisdiction of judicial authorities is restricted to the granting of permission for the application of procedural enforcement and review of decisions of public authorities regarding the appointment of penalties.
Despite the differences in the use of non-judicial procedure penalties (administrative or criminal), the vast majority of states attempt to systematically regulate this issue at the legislative level. This is particularly true of Germany, Austria, Switzerland, the Netherlands, Italy, Spain and Portugal, whose legal systems are embedded with certain laws regulating procedure. In France, Belgium and Greece, procedures have been formed, and continue to be adjusted, via the precedence of the Administrative Tribunals and the State Councils of these countries. Danish law does not single out a particular administrative offenses procedure and provides for certain jurisdictional powers of the administrative authorities only within the overall criminal process.
The legal nature of the material of the administrative offenses law (separation between criminal and administrative offenses or belonging to a broad criminal law) affects the manner to which procedures are developed.
In states with separate administrative offenses law (Austria, the Netherlands, Spain) the application of sanctions derives from the general administrative procedures and at the same time subject to specific provisions of the administrative procedural laws concerning administrative offenses. In the Kingdom of Spain there is one piece of legislation that regulates both general administrative procedure and the application of sanctions. The practice of the Councils of State of France, Belgium and Greece also applies to areas of general administrative procedures and procedure for administrative sanctions.
Countries without an administrative offenses law separate from criminal law (Germany, Switzerland, Italy, Portugal), procedure is characterized by the application criminal procedure regulations on the procedure of administrative penalties.
In systems which have separate administrative offenses procedures, the powers of administrative bodies to use coercive measures on individuals is more limited than the same area of powers within a system of administrative proceedings under criminal law. This is not surprising considering that a lot of procedural rules apply via analogy of criminal procedure. Court permission is required for the use of coercive measures which involve significant restrictions on individual rights and freedoms of persons is required in both systems.
In common for all the European countries is the ability of some administrators to detain persons who were caught at the scene of the offense, conduct examinations, and inspect the scene of illegal activity.
Common for all the countries is the existence of certain rights for the accused of an offense. These rights may include: to be informed of the charges that have been filed, the period of time of the case concerned; the right to legal counsel, to collect evidence and submit them for the consideration of the relevant authority; comment on the charges, file a complaint against an administrative decision, apply for reduced penalties.
A general rule for all countries is the possibility of shortened procedure (in the event that a person concedes to the offense and consents to the payment of penalties) and only in severe cases there is the need for public authorities to commission the complete procedure that involves a long list of procedural actions, and if necessary, the use of an oral hearing. For the offender a simplified procedure means you pay the minimum sanctions, but, however, preclude a further petition against the result of the procedure (simplified), produced by the court or a higher administrative authority. Republic of Portugal has two, and the Republic of Austria, even three varieties of reduced procedure.
Administrative offenses procedure, especially in abbreviated form, is mostly devoid of formalization. This can be exemplified in the manner to which procedures are begun. There are no requirements stipulating when a procedure is said to have been officially begun. In some countries, the accused person is identified as soon as the administrative body takes action.
Law guarantees the right of individuals and defines mechanisms for appealing decisions of administrative bodies on the application of administrative sanctions.
The ways to appeal depends on the legal content of the procedure. In countries with administrative offenses within criminal law only judicial review decisions are applied. In systems with a separate system of administrative offenses law judicial review is applied via the administrative court or tribunal.
4. Procedure for administrative offenses laws in the countries of Eastern Europe
The legal nature and content of the procedures for administrative offenses laws in the Eastern European countries, the “young democracies”, depends on the ratio of substantive criminal to administrative offenses laws. In most legal systems with separate administrative offenses, procedure is foremost determined by the general rules of administrative procedural laws. In Czech Republic and Slovak Republic the law establishes a separate procedure in cases of misconduct compared to the general Administrative Procedure Act. Polish law does not have specific procedures for the application of administrative penalties and procedure is entirely determined by the Code of Administrative Procedure. Other countries with separate administrative offenses law (Lithuania, Latvia) do not extended its administrative procedural laws on administrative offenses. This system is bases instead upon the existence of the old Code of Administrative Violations.
In states with a criminal law that includes administrative offenses (Estonia, Bulgaria, Slovenia, Serbia, Croatia) procedure is determined by the provisions of the general laws (codes) of criminal procedure. The laws concerning administrative offenses of these countries only determine the characteristics of procedure relative to the imposition of sanctions. This provides for the court to lead the procedure and to delegate to administration authorities to investigate violations. The proceedings of the court are the same for administrative offenses as criminal court (criminal) proceedings. The judge decides on the facts of the case and has the right to grant permissions to administrative authorities to restrict the rights and freedoms of persons to carry out an effective investigation.
The courts of Lithuania and Latvia also have the authority to hear cases of administrative violations. But in Latvia a concept of a bill on administrative penalties has been introduced, that could lead to the court being denied the authority to deal with administrative offenses cases, as it is contrary to the nature of the administrative offenses liability. Croatia and Serbia have established a separate system of courts to deal with cases of administrative misconduct – misdemeanors courts. There exist misdemeanors trial courts and the Supreme Court of misdemeanors. They are within the larger system of criminal courts. In Bulgaria, Estonia and Slovenia violations are reviewed not by separate courts, but by standard criminal courts.
States with powers given to administrative bodies to impose sanctions for misconduct separate from those given by the judiciary often do so as a result of specific legislative authorization. The administrative bodies punish offenders in administrative proceedings by using the tools of criminal procedure. In this case, the administration has the right to impose sanctions only in the form of fines and warnings. Application of other sanctions for misconduct is the exclusive prerogative of the courts. In the Republic of Croatia, the state prosecutors are eligible to apply in administrative proceedings, except for monetary penalties, security measures of deprivation of individual titles, the right to hold office or work, deprivation of the rights of a legal entity to carry out activities, excluding foreigners from the country, the inventory of items, disqualification from driving and so on.
Administrative authorities in Czech Republic and Slovak Republic (using the state administrative offenses law) can make use of the following administrative penalties: warning, fine, ban and confiscation of the property. They also have the right to apply sanctions in the form of restrictive measures and removal of objects.
Statutes of limitations in persecution for administrative offenses differ from state to state. One year from the date of the violation – the Czech Republic, Slovak Republic, Croatia, Serbia, Bulgaria, and two years – in Slovenia and Estonia. For certain types of offenses are defined a longer period – three to five years. Only the Latvian Administrative Violations Code provides a four-year statute of limitations.
In the laws of most countries (Poland, Czech Republic, Slovakia, Slovenia, Croatia, Serbia, Estonia) the start of procedure is not formalized. In most cases procedures are seen to have begun upon the receiving of administrative allegations or its detection during administrative work. In the states which have the old administrative offenses regulations (Bulgaria, Latvia, Lithuania) a formalized procedure exists. Procedure is said to begun with the production of an official document, such as the protocol on administrative violation or misconduct.
The provisions concerning procedures of most states allow for several forms of procedures: general – with an oral hearing (common to all countries, except Slovenia), or without an oral hearing (Slovenia, Croatia), accelerated – carried out at the scene of the violation but with payment at a later date (common to all countries, except Poland, Lithuania, Latvia) or payment at the scene of the offense directly (common to all states.). Payments made at a later time may be appealed but immediate payments may not.
The activities of administrative bodies in the separate administrative offenses laws in Poland, Czech Republic and Slovak Republic are characterized by the absence of a wide range of coercive measures. Generally these characteristics are limited to inspections of objects and places, and interviewing concerned officials. The law of Czech Republic and Slovak Republic provides for the right of withdrawal by a special procedure. Such limited powers are justified in terms of the “purified” material administrative offenses law. The rights of investigative bodies are limited in comparison to those bodies that investigate serious crime.
If the investigation deems it necessary to apply any of the above coercion, then such activities should be moved into the sphere of criminal law, and such procedural steps should be recognized component of the criminal process. Only in Lithuanian and Latvian legislation, which is almost unchanged since the Soviet era, are administrative authorities the right to make use of enforcement actions.
Administrative authorities working within a legal system in which administrative offenses are part of criminal law preside over a wide range of coercive measures. Most of these activities, however, can be carried out only with the prior consent of the court, similar to what is done in criminal procedure. Some measures can be taken without the permission of the court, including polling witnesses, examination, inspection of public places, detention of persons under the influence of intoxication, and those whom he found at the scene of the offense. The exception to this rule are the powers of administrative bodies in Croatia, who may apply about fifteen coercion measures without a court order, many of which are similar to police activities.
The decision to apply administrative sanctions, including monetary penalties orders are subject to appeal in all legal systems of the “young democracies” in Eastern Europe
But the order and methods of appeal depend upon the legal system of the state. In the states which have separate administrative offenses laws appeals are made to administrative courts. Poland, Czech Republic, and Slovak Republic have a compulsory stage of administrative appellate review. In Lithuania, those that have had administrative sanctions placed upon them may use judicial or administrative appeals as alternatives, and in Latvia there is only an appeal to the administrative court. But in both countries the decision to apply sanctions may be appealed to second administrative court.
In states with criminal law that includes administrative offenses (Slovenia, Croatia, Serbia, Estonia) decision of administrative bodies in cases of misconduct are only appealed to the criminal courts (misdemeanor court or criminal court).
Oleksandr Banchuk, Graham Taylor
(Centre for political and legal reforms, Ukraine)