Peculiarities of applying administrative punishments in foreign countries
None of the countries of Western Europe and North America have a consolidated legislative act on administrative liability, administrative offenses or administrative punishments like the US Code of Administrative Offenses. Such acts operate only in post-socialist states, and in Bulgaria, Latvia, Lithuania, Poland, Serbia, Slovenia and Croatia they were adopted even during the period of socialist development, and then underwent significant changes.
In some countries (Belgium, the Netherlands, Germany, France), the issues of the appointment of administrative punishments are resolved in a number of branch laws. In Germany, for example, legislation on administrative liability includes hundreds of federal and regional laws that define administrative offenses and the responsibility for their commission. In Belgium and France, a number of issues of administrative offenses are resolved by the State Council (the supreme organ of administrative justice). In many countries, institutions attributed by Russian law to administrative responsibility are regulated by criminal law.
In foreign countries of Europe and North America, it was traditionally believed that the measures of compulsory influence on the offender may be, on the one hand, criminal penalties that are differentiated depending on the degree of public danger of the offense committed and the identity of the offender, and on the other hand, civil penalties, designed to compensate for the harm done. However, factors such as expansion of spheres of state regulation in the XX century. and the need to improve the effectiveness of the measures of influence, led to the transfer of some of the functions of the court to the administration of punishment. Currently, administrative punishments, like other measures of administrative coercion, are applied everywhere in various spheres of public administration, in particular in the fields of customs, immigration, trade, transport regulation, fishery regulation and forestry protection.
In countries of the continental legal family administrative punishments are usually called administrative sanctions (sanctiones administratives, sanciones administrativas ). They recognize either the administrative penalties themselves, or part of the administrative decision in which they are established.
Thus, the Constitutional Court of Spain indicates that administrative sanctions are contained in an administrative decision adopted with a repressive purpose, restricting rights and based on a previous negative assessment of conduct. From the point of view of the Spanish scientist E. Gamero Casado, administrative sanctions are identical to administrative punishments and constitute "the deprivation, restriction or postponement of the exercise of certain rights or legal privileges of the person responsible for the offense, more precisely reaction - punishment - for his commission"; . Argentine researcher V. López Aguera notes that the administrative sanction is an act of the administration adopted in response to a malicious act; this is a consequence of a person's violation of the duty assigned to him by a legal rule.
There is another approach to the definition of administrative punishments, when administrative sanctions are identified with measures of administrative coercion.
For example, Romanian researcher Elena Mihaela Fodor considers sanctions to be all measures that are applied in case of non-compliance with the law, regardless of whether they are punitive, preventive or restorative.
In European countries (with the exception of Austria and Italy), administrative sanctions may be imposed not only on individuals, but also on legal entities. The main administrative penalty is fine. In Germany and Portugal, confiscation or forfeiture of the offender's property may be imposed as additional measures of influence. As a rule, the use of deprivation of liberty as an administrative penalty is prohibited. So, in Spain in accordance with Part 3 of Art. 25 of the 1978 Constitution, administrative liability can not include sanctions that directly or indirectly lead to deprivation of liberty. In France, the Constitutional Council established that administrative institutions should not impose penalties related to deprivation of liberty and, in addition, administrative sanctions should not violate constitutional guarantees of the rights and freedoms of citizens. Of all the countries of Western Europe, only in Austria and Switzerland, a short-term imprisonment is allowed as an administrative punishment.
In Western European countries, legal entities are also subjects of criminal responsibility.
In the countries of the Anglo-Saxon legal family , the notion "administrative foreclosures & quot; (administrative penalties) . Administrative penalties are called measures of administrative coercion imposed extrajudicially by administrative bodies or their officials. As a rule, the relevant authorities are given to the bodies that regulate in a certain sphere of management, including regulatory and legal regulation, control, supervision and provision of public services.
For example, the Australian Law Reform Commission defined administrative sanctions as sanctions imposed by a regulatory body or law enforcement without the participation of a court or an administrative tribunal.
In the countries of the Anglo-Saxon legal family, administrative sanctions, along with the main penalty, are also prevention, bans (carrying out certain activities, driving a vehicle, obtaining financial assistance from the state, etc.), suspending or revoking permits and licenses.
Administrative sanctions are essentially approaching criminal penalties, but are alternative measures of state influence in relation to them. A clear conceptual framework that allows to distinguish between criminal and administrative penalties , in most foreign countries does not exist. The conventional doctrinal approaches to administrative offenses have not been developed either.
When administrative penalties are identified, formal criteria are often used:
• the form of their legal consolidation;
• The body authorized to appoint them.
It is considered that unlike criminal punishments, which are established only by law, administrative penalties can be determined both by sectoral laws that regulate a certain field of activity, and regulations adopted on the basis of law. Administrative penalties are appointed not by the courts, but by the regulatory bodies and their officials.
Administrative penalties are separated from other non-criminal penalties. From the point of view of the Spanish administrative legal science, the main characteristic that distinguishes administrative sanctions from other coercive measures is their repressive nature. Although restricting the rights of citizens may be different measures of administrative coercion, among measures alternative to criminal penalties, only The administrative sanctions are aimed at punishing the offender. Other coercive measures are aimed at other purposes - to motivate the execution of the law, to compensate for the harm done or to prevent offenses.
In many countries it is considered that the use of administrative punishments gives certain advantages more effective maintenance of the rule of law: administrative punishments are imposed by specialists in management and enforcement matters; their use increases the possibilities of reimbursing the damage caused to society by delicts; provide more flexible and specialized and, therefore, more adequate in the circumstances of the specific situation of the procedure.
For a long time, the practice of administrative bodies on the appointment of administrative punishments did not have a clear legislative or doctrinal basis, as it did not fit into the system established by the classical principles of the theory of separation of powers.
So, in the US, normative powers were traditionally granted only to legislative bodies, and powers to resolve disputes - only to courts. Only in process of creation in the end of XIX century. independent agencies and the distribution of individual elements of their status to executive departments in the 20th century. administrative institutions were given the right to determine the status of individuals, including the power to impose administrative penalties.
In 1909, Congress recognized the right of independent agencies to impose administrative penalties for violations of navigation rules, which in the same year was confirmed by the US Supreme Court.
In 1935, the US Supreme Court in the case of Humphrey's Executor v. The United States confirmed that the Federal Trade Commission as an independent agency has the right to carry out administrative rulemaking and quasi-judicial activities.
In France, only at the end of the 20th century. the right of administrative institutions to establish administrative sanctions was recognized. In 1989, the Constitutional Council of France stated that the imposition of administrative sanctions by the administrative bodies does not violate the principle of separation of powers, but at the same time drew attention to the limited nature of the delegation of functions of judicial nature to administrative bodies.
So, at the present time administrative sanctions in foreign countries are imposed by administrative bodies, which, unlike the courts, can not be considered fully impartial. The administration regulates, controls, and bears responsibility for the state of legality in the relevant sphere of government. In this connection, special importance is attached to procedural norms, the task of which is to guarantee the impartiality and fairness of the activity of bodies that impose administrative penalties.
In countries where administrative penalties are established by criminal law, the rules for their appointment are determined by the rules of the criminal procedure law. Where special laws on administrative liability apply, procedural rules are generally contained in laws on general public administration (Spain) or on administrative procedures.
In the countries of the Anglo-Saxon legal family is recognized that the procedure for the appointment of administrative sanctions should correspond to the principles of natural justice. for the different areas and the different conditions of the law Different procedures for handling delicts may be established, but
compliance with the minimum standards of natural justice is generally mandatory.
To such minimum standards, the Saskechevan Law Reform Commission (Canada) listed the following:
• a person whose interests may be affected by the decision to impose administrative sanctions should be notified of the initiation and examination of the case;
• the person concerned should have the right to be heard;
• The case must be impartially examined by an uninterested person.
Based on the principles of natural justice, procedural rules are also established in the United States, but there they are called the requirements of due process of law and stipulate:
• Notification of the person concerned;
• holding a hearing;
• The right of interested parties to present evidence.
However, the law does not prescribe at which stage of the case consideration it is necessary to carry out the specified actions.
The formula "due legal procedure" was still used in the Magna Carta of 1215, but its precise characteristics were not given then. A due legal procedure ensured compliance with procedural rules when considering civil and criminal cases in courts.
In 1856, the US Supreme Court established two criteria for assessing due process:
• compliance with constitutional norms;
• Compliance with established customs and forms of procedure.
These criteria were initially recognized in the general and statutory law of England, have taken root in the judicial practice of the states.
In the XX century. rules of due process of law were extended to the activities of non-judicial bodies that decide on measures of administrative coercion. The US Supreme Court demanded in hearing these cases hearing parties, impartial proceedings, making a fair decision.
In the countries of the continental legal family the procedural rules governing the procedure for the appointment of administrative sanctions are fixed either in criminal or in administrative law.
In France, the process of appointing administrative punishments is extended to many principles of the criminal process. Thus, the principle ex post facto, which does not allow the retroactive effect of the punishing act, was fixed in the Declaration of the Rights of Man and of the Citizen of 1789. The decision of the Constitutional Council of 1982 confirmed the extension of this principle to administrative actions bodies on the appointment of administrative penalties. In the administrative jurisdictional process, the principle of proportionality also applies, under which the punishment must be commensurate with the committed offense. In the decision on the Supreme Audiovisual Council, the Constitutional Council of France decided that all constitutional principles applicable to the criminal process should be applied even when imposing administrative sanctions.
In Spain, the rules for assigning administrative punishments are based on the principles enshrined in the Law "On the Legal Regime of Public Administrations and the General Process" 1992. At the same time, material and procedural principles are singled out - the principles of the administrative and punitive power and the principles of the administrative and punitive process. The powers to appoint administrative sanctions should be implemented in accordance with the principles of legality, non-admission of the inverse force of the act, typification, responsibility, proportionality, limitation of liability and prescription of the punishment, as well as competition of sanctions. So, if the law does not specify the limitation period for bringing to responsibility, then for the most serious administrative offenses, the limitation period is three years, for rough - two years, and for light offenses - six months. For one offense, either administrative or criminal punishment can be imposed. In turn, the process of appointing administrative sanctions should be carried out in accordance with the principles of process assurance; the rights of the person held liable; support measures; presumption of innocence; motivated decision.
In all countries, the procedure for imposing administrative sanctions is simpler than procedures for investigating crimes and assigning criminal penalties. In the administrative-jurisdictional process, as a rule, there are no strict requirements for observing certain formalities when instituting an administrative case, and there are few of them when it is considered. There are also shortened procedures, in particular in those cases when the violator does not deny his guilt and agrees to pay a fine. Oral hearings are mandatory only when serious offenses are considered. Thus, in Portugal, two are provided, and in Austria - three options for reduced procedures for administrative cases and administrative penalties.
In most states both scientists and practitioners recognize the merits and demerits of both the criminal and administrative process of imposing punishments. It is believed that these two types of legal process should not be contrasted, it is necessary to seek the complementary, synergistic action of administrative and criminal responsibility measures to punish the perpetrators and prevent offenses.
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