Administrative Penalties: Principles and Application
Legal Principles
Includes a double guarantee: Material (unlawful conduct and sanctions in writing) and Formal (law book on penalties). Clarifications regarding reservation bills: no provision for procedural matters, can be accomplished by Decree Law, no retroactive regulations, applied with Administrative Law nuances. Regulations absolutely prohibited: independent or not clearly subordinate to the legal clause, or based on unspecified remission. Collaboration-regulation is permissible when the law determines essential elements of unlawful behavior and sanctions (s. 129.3 LPC). At the local level, relaxation of the reservation bill is necessary but not excluded.
Typicality
Related to legal certainty (Art 9.3 EC). Requires the law to include all elements of responsibility, define infractions, and define penalties. Use of indeterminate legal concepts is supported but must be reasonably practicable. White sanction rates are allowed if the result is foreseeable. Typicality of sanctions should be predetermined by law with sufficient certainty. Prohibition of analogy for legal certainty.
Non-Retroactivity Rules
Non-retroactivity of unfavorable norms (Art 9.3 and 25.1 EC). Retroactive rules are more favorable to those in force at the time of the infringement. Principle applies to infractions, sanctions, prescription, and responsibility.
Statement of Responsibility
Requires administrative culpable subjectivity (art 130.1 LPC). Regarding plurality of persons responsible (art 130 LPC), sectoral laws determine subsidiary responsibilities. Solidarity or joint liability may be allowed exceptionally on proven guilt. Modifying circumstances follow general liability rules.
Principle of Proportionality
Legislative regulation of violations and penalties depends on severity. Administration implements penalties within the range stipulated by law, stating reasons for the imposed penalty.
Principle of Non Bis in Idem
Prohibits punishing the same offense twice (identity of subject, act, and foundation). In concurrence of criminal and administrative penalties, the criminal route takes preference. In concurrence of various administrative sanctions, ideal contest rules or real contest of offense apply. Community order-concurrence allows suspension of internal procedure. Continued violation involves multiple actions violating the same provisions.
Administrative Penalties
Differences exist in their effects; Administration cannot impose penalties implying deprivation of freedom (except military). Typical sanctions include fines and disqualification. Fines are graduated according to offense severity. Deprivation of rights includes rescissory sanctions. Accessory measures include confiscation and prohibitions. Restoration and compensation may be required.
Effectiveness of Sanctions and Judicial Challenge
Resolution is executive when it ends administrative authority (s. 138.3 LPC). Administrative resources should be construed as final decisions. Penalties may prescribe between imposition and execution (Article 132 LPC).