As of the 23rd of December, 2021, the new provisions in the Law on Administrative Offences and Penalties are in force. These are the most extensive amendments made at once in the Law on Administrative Offences and Penalties since its adoption in 1969. What are the new points and what is important for both business and citizens to know?
Reduction of the amount of the fine if paid within the appeal period
The first innovation, which will find wide practical application, is the possibility to reduce the amount of the fine imposed by the penal ruling upon its timely payment. In order to benefit from this possibility, the offender must waive his/her right to appeal against the penal ruling in the part concerning the fine imposed /i.e. its amount/. In this case, he must pay 80 per cent of its amount within 14 days from the date of service of the penal ruling, unless a special law provides for another reduced amount of the fine. In the event of payment within the specified period, the penal ruling shall enter into force in the part concerning the fine imposed from the date of payment. If the offender has appealed against the penal ruling and has simultaneously paid the fine within 14 days of the issuance of the penal ruling, the appeal proceedings in the part concerning the fine shall be terminated.
Possibility of reaching an agreement with the sanctioning authority
The possibility of an agreement between the sanctioning authority and the offender is foreseen. This will be done after the administrative offence report has been drawn up. Within 14 days from the delivery of a transcript of the administrative offence report to the offender, the offender shall have the possibility to make a proposal to the sanctioning authority for the conclusion of an agreement to conclude the proceedings. The sanctioning authority also has the possibility to make such a proposal, but is not obliged to do so. An agreement is not allowed in the following four cases:
- for a repeated offence;
- for an offence committed within one year of the entry into force of an act imposing an administrative penalty on the offender outside the cases referred to in point 1 /i.e. a different offence has been committed/ or a warning has been issued for an offence of the same type;
- in case the act for which an administrative offence report has been drawn up constitutes a criminal offence;
- when the confession of the offender is not supported by the evidence collected in the case file /i.e. the person confesses to an offence that he/she did not commit/.
The time limit for concluding an agreement is one month from the receipt of the administrative offence report by the sanctioning authority. It must be in written form. The agreement under the Law on Administrative Offences and Penalties shall contain the agreement reached by the parties as to whether an offence has been committed, what is its legal qualification, whether it has been committed by the person against whom the administrative offence report has been issued and whether it has been committed culpably /in case of an individual, for legal persons this is not necessary/. In case the administrative offence report has been drawn up for several offences, an agreement may be concluded for only one or part of them, and for the others the proceedings may continue under the general procedure. The agreement shall be signed by the offender and the sanctioning authority and shall enter into force on the date of its signing, unless the penalty imposed is a fine, in which case it shall enter into force on the date of payment. The agreement shall be final and shall have the consequences of an effective penal ruling.
When the agreement imposes an administrative penalty of a fine, either alone or with another penalty, the sanctioning authority shall set the fine at 70 per cent of the minimum or of the exact amount provided for the offence committed, and where the law does not provide for a minimum, the sanctioning authority shall set the fine at not more than 70 per cent of half of the maximum. When the penalty imposed by the agreement is a fine, the offender shall pay it within 14 days of the conclusion of the agreement. If he fails to do so, the sanctioning authority shall, by a ruling that is not subject to appeal, declare that an element of the agreement reached has not been fulfilled and issue a penal ruling.
Revisions in the part for enrichment in case of an offence
The matter of pecuniary sanctions for legal persons due to enrichment from an offence has been clarified. After the changes, in determining the amount of the pecuniary sanction will be taken into account the severity of the offence, the financial situation of the legal entity, the assistance in detecting the offence and in recovering the damage, the amount of the benefit and other circumstances. It is envisaged that the liability of the legal entity shall be extinguished upon expiry of a period equal in duration to that under Art. 3 of the Criminal Code /absolute statute of limitations, which shall be determined by the amount of the penalty provided for the respective offence/, as from the date of commission of the offence from which the legal entity has enriched or would enrich itself.
New penalty – work for the benefit of society
A new penalty has been introduced – unpaid work for the benefit of society. It will be imposed for an administrative offence committed repeatedly or systematically if the law under which the administrative offence was committed provides for this. A repeated offence occurs when the person has already been punished once for the same offence with an effective penal ruling or decision. An offence of systematic commission is one in which the offender has committed the offence at least three times and has not been punished for them separately, as the individual offences were, for example, minor /within the meaning of Art. 28 of the Law on Administrative Offences and Penalties/, but the repeated commission of the offence combines all the individual offences into one, for which unpaid work for the benefit of society could be imposed.
For the time being, this type of penalty is envisaged to be imposed for some offences of the Forest Act and in cases of petty hooliganism. Unpaid work for the benefit of society may be imposed alone or concurrently with another penalty – for example, together with a fine. In essence, this penalty is the performance of free labour in favour of a state or municipal institution or a company with state or municipal participation. The organization of the execution of the penalty is carried out by the probation services. The duration of the penalty of unpaid work for the benefit of society may not be less than 40 hours and more than 200 hours per year for not more than two consecutive years. This penalty shall be imposed only by a court.
The important issue of the minor case
The regulation of the minor case has been enriched. The content of the warning, which the administrative sanctioning authority sends to the offender instead of imposing a penalty, is comprehensively regulated in Art. 28 of the Law on Administrative Offences and Penalties. This warning will now be mandatory only in writing and will be subject to appeal in court. The additional provisions of the law provide a legal definition of a minor case – “one in which the offence committed by an individual or failure to fulfil obligations by a sole trader or legal entity to the state or municipality, in view of the absence or insignificance of harmful consequences or other mitigating circumstances, constitutes a lower degree of public danger compared to ordinary cases of offence or failure to fulfil an obligation of the relevant type.”
Until now, it has been accepted in practice that the absence or insignificance of harmful consequences of the offence is irrelevant to formal offences, and the current changes are an opportunity to change this practice.
The changes in the Law on Administrative Offences and Penalties explained in this text can be evaluated as positive insofar as they address a large number of the texts of the law, which did not function well and did not respond to the dynamics of the development of relations between the administration and private law subjects. There is a desire to provide sufficient tools to alleviate both sides in the process – on the one hand, the administration and, on the other, business and citizens, as the implementation of the new rules and relevant court decisions that will inevitably be handed down on them will show to what extent the reform has been successful and has improved relations in this area of public law.
Author: Petya Petrova, Paralegal