Administrative Sanctions in Some European Union Countries: Conception, Typology and the Principles of Application
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Abstract
The concept of administrative sanction usually is not used in Lithuanian legal terminology. At present it is more known as administrative penalty and is applied following the basis and process order of the Code of Administrative Law Violations. As we know, administrative penalties are most often allotted by extrajudicial institutions, i.e. subjects of executive authority, what in the opinion of certain authors contradicts to the Constitution and the constitutional principle of distribution of authority.
At present both the new Code of administrative law violations and the Code of administrative proceeding are being prepared. Therefore it is important to clear up whether there are legal obstacles of administrative law violations and sanctions, find out if the institution of administrative responsibilities is incompatible with the above mentioned constitutional principle.
Giving a reply to the questions one can have a look at the national legal systems of other countries that have deep democratic traditions (e.g. France, Germany, Italy, etc.) and study their experience which shows that administrative sanctions in many countries are recognized and have a tendency to develop.
The aim of the article is to look over the systems of administrative sanctions in some European countries, analyze the fundamentals of legitimacy and shortly discuss the principles of their application. On the grounds of descriptive, systematic analysis and comparative methods it is being tried to answer the questions whether the European countries, like France, Germany, Italy, Portugal, Greece, etc. recognize the administrative law violations and administrative sanctions in their national legal systems and what their conception, the level of their legitimacy, the diversity of the administrative sanctions and the main principles of their application are.
The article consists of three parts. In the first part the conception of the administrative sanction and its outlines are analysed. The second part deals with the diversity of administrative sanctions and the third one is dedicated to the application of the principles of administrative sanctions.
In Lithuania in various scientific articles, monographs quite often the problem of administrative law violations and by the same legitimacy of administrative sanctions is brought forth which is related with the function of execution of justice allotted to the administration. According to A. Šakočius “This problem appears due to the contradiction of modern public administration system to Article 109 of the Republic of Lithuania Constitution which declares that only courts execute justice in Lithuania. It ought to be stated that execution of justice is establishing of the case circumstances, recognition of the person as guilty and allotting of correct measure of action. The recognition of the person as guilty and allotting of correct measure of action according to the Constitution has been commissioned to the court and the judge. At the same time the institutions of executive power still have the power to execute these functions of justice. <…>. So the institutions of public administration besides administration fulfill the function of justice as well and that contradicts to the principle of distribution of authority”.
The competence of the institution employing sanction, aims and consequences of the employed measure, meaning of the legal good protected by them are the criteria following which an administrative sanction can be identified. So one may state that administrative sanctions are the measures of action which administrative institutions allot to the violators of legal duties aiming to punish them and to prevent new legal violations and by which less important legal goods and interests are protected. Traditionally they are found in the sphere of the state finances especially in ensuring the administrative legal regulation of taxes and customs. More and more often administrative sanction becomes an effective measure in ensuring the protection of public interests in the spheres of traffic safety, environment, labour and social protection and also in new spheres of economic activity (e.g. activity of financial exchanges, competition and others).
The most important place in the system of administrative sanction falls to the monetary fine which is both the major administrative sanction and usually has a name typical to them enabling to distinguish them from the penal monetary sanctions. Besides monetary sanction a group of measures can be distinguished which are otherwise called “prohibition sanctions” in their essence limiting certain rights of the subjects most often related with the performance of certain activity (e.g. divesting of special right to drive a motor vehicle and others). The sanctions limiting the freedom of the person are not considered to be administrative.
Although administrative sanctions are consolidated by means of administrative legal regulation, nevertheless administrative sanctions practically in all countries according to the aspect of doctrine broadly speaking are allotted to the sphere of criminal law. Therefore they are applied on the grounds of the principles of criminal law and criminal proceeding, but with certain stipulations and modifications.
At present both the new Code of administrative law violations and the Code of administrative proceeding are being prepared. Therefore it is important to clear up whether there are legal obstacles of administrative law violations and sanctions, find out if the institution of administrative responsibilities is incompatible with the above mentioned constitutional principle.
Giving a reply to the questions one can have a look at the national legal systems of other countries that have deep democratic traditions (e.g. France, Germany, Italy, etc.) and study their experience which shows that administrative sanctions in many countries are recognized and have a tendency to develop.
The aim of the article is to look over the systems of administrative sanctions in some European countries, analyze the fundamentals of legitimacy and shortly discuss the principles of their application. On the grounds of descriptive, systematic analysis and comparative methods it is being tried to answer the questions whether the European countries, like France, Germany, Italy, Portugal, Greece, etc. recognize the administrative law violations and administrative sanctions in their national legal systems and what their conception, the level of their legitimacy, the diversity of the administrative sanctions and the main principles of their application are.
The article consists of three parts. In the first part the conception of the administrative sanction and its outlines are analysed. The second part deals with the diversity of administrative sanctions and the third one is dedicated to the application of the principles of administrative sanctions.
In Lithuania in various scientific articles, monographs quite often the problem of administrative law violations and by the same legitimacy of administrative sanctions is brought forth which is related with the function of execution of justice allotted to the administration. According to A. Šakočius “This problem appears due to the contradiction of modern public administration system to Article 109 of the Republic of Lithuania Constitution which declares that only courts execute justice in Lithuania. It ought to be stated that execution of justice is establishing of the case circumstances, recognition of the person as guilty and allotting of correct measure of action. The recognition of the person as guilty and allotting of correct measure of action according to the Constitution has been commissioned to the court and the judge. At the same time the institutions of executive power still have the power to execute these functions of justice. <…>. So the institutions of public administration besides administration fulfill the function of justice as well and that contradicts to the principle of distribution of authority”.
The competence of the institution employing sanction, aims and consequences of the employed measure, meaning of the legal good protected by them are the criteria following which an administrative sanction can be identified. So one may state that administrative sanctions are the measures of action which administrative institutions allot to the violators of legal duties aiming to punish them and to prevent new legal violations and by which less important legal goods and interests are protected. Traditionally they are found in the sphere of the state finances especially in ensuring the administrative legal regulation of taxes and customs. More and more often administrative sanction becomes an effective measure in ensuring the protection of public interests in the spheres of traffic safety, environment, labour and social protection and also in new spheres of economic activity (e.g. activity of financial exchanges, competition and others).
The most important place in the system of administrative sanction falls to the monetary fine which is both the major administrative sanction and usually has a name typical to them enabling to distinguish them from the penal monetary sanctions. Besides monetary sanction a group of measures can be distinguished which are otherwise called “prohibition sanctions” in their essence limiting certain rights of the subjects most often related with the performance of certain activity (e.g. divesting of special right to drive a motor vehicle and others). The sanctions limiting the freedom of the person are not considered to be administrative.
Although administrative sanctions are consolidated by means of administrative legal regulation, nevertheless administrative sanctions practically in all countries according to the aspect of doctrine broadly speaking are allotted to the sphere of criminal law. Therefore they are applied on the grounds of the principles of criminal law and criminal proceeding, but with certain stipulations and modifications.
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