Wolfenson Lawyers advises its clients on matters of public law, contemplating the defense of their interests against eventual sanctions applied by the administration.
Administrative sanctions are those in which those administered are affected in their assets by a decision of the State, issued through its competent bodies in the event of a possible violation of current regulations. Which generally result in the application of fines by the State.
In these cases in which our clients are sanctioned, Wolfenson has lawyers focused on administrative matters, providing legal advice to defend the rights and interests that correspond to them as citizens.
Here is a legal guide to provide you with guidance on administrative penalties:
1) GENERAL BACKGROUND
The issue of administrative offenses and penalties is a subject that poses a number of paradoxes and problems, while being of considerable practical importance, as a result of its exponential growth in the context of greater state intervention to regulate and control a group enormous of conducts that every time generate a greater risk to diverse legal goods. In this sense, our legislator aspires to find in the hands of the State Administration an action that can be more timely and effective to discipline such behavior, reserving to the action of the Courts of Justice the repression of more serious events, respecting the character subsidiary and last ratio that is recognized in criminal law.
In this sense, the existence of abundant legislation that provides punitive powers that regulate certain sectors of social life to the organs of the State Administration constitutes an undeniable positive fact, given the need to safeguard a certain order or legal assets, which are from the health, urban, environmental, tax, customs, stock market, etc. This being the case, the materialization of the liberal revolutionary ideology of reserving the exercise of the punitive powers of the State in the hands of the jurisdictional bodies is further and further, to overcome the so-called pre-Quebec criminal law, handed over to organs of an administrative nature, without consideration of principles and guarantees of any kind.
Indeed, under this form of exercise of the punitive powers of the State, not only is a remnant of absolutism preserved, but - as we have pointed out - more and more these powers are granted to administrative bodies, the basis of which would be found in a form more efficient and timely to suppress certain less serious behaviors and, therefore, did not demand greater substantive and procedural guarantees in their application. However, the idea of facilitating a punitive state intervention with minimum guarantees, slowly leads to the temptation to aggravate these sanctions, generating an asymmetry with those contained in criminal legislation, to the point of being, in many cases, more intense and serious than the applied by the courts of justice.
For this reason, the issue has gone from being a merely secondary issue, inherent to the uniqueness, contingency and bureaucracy that is proper to the Administration, transforming itself into a capital issue that gives meaning and foundation to the State's action against society. , especially to guarantee the protection of certain constitutional values and assets. In this context, the punitive power in the hands of the Administration has become an important instrument of intervention and mechanism in the shaping of society on the constitutional premises of promotion of the common good and harmonious integration of all sectors of the nation . This explains why its growth is not due to a constitutionally "tolerated" historical contingency, but rather responds to a constitutional requirement whose foundation, meaning and function demands a necessary dogmatic analysis in light of our legal system.
Now, the study of this matter must necessarily start with a definition of the concept of administrative offense, which allows establishing its legal nature and, based on it, determining its foundations in the constitutional order. This will also allow establishing the set of principles to which it is subject from a substantive and procedural point of view. The first of these points will be the object of this work, bearing in mind two aspects: a) The issue of the nature of administrative offenses and their legal consequence, that is, administrative sanctions, is a topic of long-standing, especially in the legal-criminal studies 1 . In this case, our analysis will account for the way in which the problem has been faced by recent national doctrine and jurisprudence, especially in order to establish the underlying concept that serves as the basis for such studies; and b) This study is not intended to establish the principles to which these administrative offenses are subject. Although some mention will be made of them, their development and careful analysis will take place in a later work.
2) OFFENSES AND ADMINISTRATIVE SANCTIONS
In recent times, the subject of the punitive power of the Administration has been studied within the framework of "administrative sanctions" or "Administrative sanctioning law", with the illicit conduct being sanctioned in the background, in this case the infringement administrative. On the other hand, during the 19th century this matter was analyzed by German doctrine within the "Police criminal law", a theory that was replaced at the beginning of the 20th century by that of "Administrative criminal law". This last name evokes much better the traditional distinction made in criminal law between crime, on the one hand, and punishment, on the other, associated with the concept of criminal responsibility.
However, the national criminal doctrine has taken care to make the distinction and approach the issue from the perspective of administrative offenses, although this matter has also been studied under the distinction between criminal penalty and administrative penalty. For its part, the administrative doctrine has analyzed it under the label of administrative sanctions, framed within the activity of police or ordination carried out by administrative bodies, especially following Spanish doctrine.
Although both categories are closely involved, it is essential to make the distinction, insofar as the administrative sanction is nothing but a type of responsibility that arises from the commission of a crime or administrative offense. In this way, if the elements that make up said infraction are formed or assembled, the author of said act must necessarily be charged with the negative consequences or the responsibility that derives from it: the administrative sanction. In both cases, that is, in determining the constitutive fact of the offense and in applying the sanction, it corresponds to intervene to a body that is part of the State Administration, previously empowered by the legal system through the attribution of an express power.
However, the expression "administrative sanctions" is so well established in our doctrine and jurisprudence that we will use the reference to this matter interchangeably as the punitive power of the Administration, administrative infractions and, of course, administrative sanctions, all of which appear -for the rest- in a natural logical sequence: the legislator typifies the infraction, establishes the sanction and attributes to the Administration the power to apply it.
3) THE LIMITATION OF ADMINISTRATIVE SANCTIONS
There is a directly proportional relationship between the seriousness of the measures adopted by the State and affecting the legal sphere of individuals, and the status of guarantees to which they are subject. Thus, it is quite logical that the penal sanctioning regime, more energetic and serious in the sanctions that are adopted, is subject to a series of forms and rituals that make the exercise of this form of punitive power more strict. In the next step are the sanctions applied by the Administration itself, subject to a more attenuated or "nuanced" system of principles and guarantees that must be respected in the respective administrative sanctioning procedure. Lastly, there are a series of unfavorable acts emanating from the organs of the State Administration, but which do not constitute a sanction in the strict sense.
This staggered system that associates the seriousness of the legal consequences with respect to the procedures and guarantees that will be followed to make them effective, is what has forced each of these levels to be demarcated. In turn, following this path, a concept of administrative sanction has been outlined by doctrine, which separates them from criminal penalties and unfavorable acts emanating from the Administration itself. We will analyze each of these points.
Therefore, in this section we will take care to distinguish between administrative sanction and administrative acts with unfavorable effects (3.1), and then establish the separation between administrative sanction and criminal sanction (3.2).
3.1) ACTS WITH UNFAVORABLE EFFECTS AND ADMINISTRATIVE SANCTIONS
3.1.1) The doctrinal perspective
In the exercise of its own functions, the Administration may adopt a series of acts that affect the legal sphere of individuals, without all of them necessarily being the expression of a punitive or sanctioning power. Thus, it can order the transfer of an official, close an establishment for not having a health permit, suspend a public competition, etc. For the doctrine, the distinction between unfavorable acts in general and sanctions is given by two central elements: a) the administrative sanction is a consequence of unlawful conduct or infraction; and b) the administrative sanction has an essentially repressive or punitive purpose. Thus, the administrative sanction is an unfavorable act that affects the legal sphere of an individual with a repressive purpose against an infraction or illegal conduct.
In general, our doctrine does not provide a precise concept of administrative sanction. Some take the concept for granted, rightly assimilating the criminal penalty, while others use a fairly broad concept. However, in recent times some authors have taken care to provide us with a more precise and technical concept of administrative sanction. Thus, Jorge Bermúdez distinguishes between a broad notion of sanction, such as "all that negative remuneration provided by the legal system as a consequence of the conduct of a conduct", while the strict notion of administrative sanction would be "those negative remuneration provided as such in the legal system as a consequence of an administrative offense ". In this way, not every burdensome consequence derived from a violation of the legal system is a strictu sensu sanction.
This criterion of distinction recognizes a clear influence of Spanish doctrine and jurisprudence. Thus, for the rest, one of the most important jurists in Spain reports, pointing out that the administrative sanction is "an evil inflicted by the Administration on a person administered as a result of illegal conduct." 8 For its part, the Constitutional Court Spanish has ratified this criterion in various sentences, especially to rule out the possibility of obtaining the application of the constitutional guarantees of these sanctions.Thus, as Santamaría Pastor points out, the administrative sanction is characterized, compared to the other acts of unfavorable content, due to its reactionary nature regarding unlawful conduct.
The concept thus outlined has allowed Spanish doctrine and jurisprudence to rule out a series of acts by the Administration that, despite their unfavorable content, do not constitute a sanction in the strict sense:
- Any act that is not a consequence of unlawful conduct, such as the expropriation of a property, the suspension of a public contest, the extinction of an administrative act due to expiration or compliance with the term, etc.
- Those acts that are a consequence of unlawful conduct, but that do not have a repressive or reactionary purpose, such as the measures to restore order altered by said conduct (eg, the suspension of a construction due to not having a building permit, the closing of a commercial premises without municipal permission, etc.) or measures of repair or compensation (eg, the repair of the damage caused to the public patrimony or the restitution of the expenses assumed by the Administration in the cases of execution by the substitute route).
Now, as we have pointed out, except in Bermúdez's work, our doctrine in general has omitted any mention of the concept of administrative sanction, except for those that identify them with criminal sanctions.
3.1.2.) Constitutional jurisprudence
A different question is what occurs in jurisprudence, particularly that which has emanated from the Constitutional Court. In its judgments this body has used a broad concept and in others a restricted one of administrative sanction, considering the guarantees to which the recipients of the administrative rules that regulate this type of sanction are subject.
In the case of procedural guarantees (rational and fair procedure), the Court has used a broad concept of administrative sanction. Indeed, under a particular concept of jurisdiction, administrative sanction has been understood to mean any act with unfavorable effects emanating from the organs of the State Administration. The reasoning that the Constitutional Court follows is that the expressions "sentence of an organ that exercises jurisdiction", contained in subsection 5 of paragraph 3 of article 19 of the Fundamental Charter, must be understood in a broad sense, such as "[. ..] without limitation, to the exercise of jurisdiction -that is, the power-duty to know and resolve any conflict of a legal nature- by any body, regardless of its nature, and refers to judgment not in a restricted sense , but like any resolution that decides a controversy of legal relevance ". Thus, the Court understands including resolutions such as the one adopted by the Minister of Transport and Telecommunications when granting or denying a telecommunications concession or permit.
In this way, the Constitutional Court maintains that the term jurisdiction includes any entity, public or private, that exercises decisive power over certain matters that may be imposed on third parties. Thus, when the Administration exercises its public powers, it would be exercising jurisdiction and must respond to the guarantees of a rational and fair procedure. In good accounts, the exercise of public power always requires that those affected by said determination have certain minimum procedural guarantees, such as the possibility of hearing, defense, etc. In this specific case, these guarantees are manifested within the administrative procedure. Thus, for the rest, it has confirmed it in Judgment Rol N ° 437, of 2005, where it indicates:
"[...] the principles of article 19 No. 3 of the Constitution, in the scope and generality already highlighted, apply, with regard to the substance or substance of any diligence, proceeding or procedure, whatever the state body involved , be it judicial proceedings, jurisdictional acts or administrative decisions in which the principle of legality contemplated in the Constitution, or the rights ensured in Article 19 No. 3 thereof, is, or may be, affected, beginning with the same protection of the law in the exercise of the fundamental attributes In addition and from the same reasoning it follows that the principles contained in that constitutional provision govern what is related to the rational and fair process, whatever the nature, body or procedure in question, including those of an administrative nature, especially when exercising the sanctioning or infringing power.
Without prejudice to the criticisms that have been made of this particular concept of jurisdiction, especially due to the projections that it has regarding the wide range of powers and powers exercised by the Administration, this time our interest will focus on the concept of sanction that underlies the pronouncements of this Court.
In this regard, the Constitutional Court has classified as sanctions various actions of the Administration, which are not necessarily framed in the concept supported by the doctrine. Thus, it has classified as administrative sanction some measures that tend to reestablish the legal order without being reactionary 16 or includes certain provisional measures that can be adopted while they are under judicial review. However, it has also included administrative sanctions in the strict sense, in accordance with the concept that has been formulated. In all these cases, the Court has applied the guarantees of a rational and fair prior administrative procedure, in accordance with the broad scope given to subsection 5 of No. 3 of article 19 of the Constitution.
For its part, in the case of substantive guarantees (legality, typification, personal responsibility, etc.), the Court has closely followed Spanish doctrine and jurisprudence, particularly the Spanish Constitutional Court, limiting itself to the strict concept of administrative sanction , understood as a manifestation of the state jus puniendi, subject with "nuances" to the inspiring principles of the criminal order.
3.1.3) Administrative jurisprudence
The capital importance of the administrative jurisprudence emanating from the Office of the Comptroller General of the Republic in Chile is indisputable, to the point of becoming in practice a true contentious-administrative matter, also associated with the quality and authority of its opinions.
Now, considering the function assigned to it, the Office of the Comptroller General of the Republic has issued a large number of opinions related to the exercise of the sanctioning power by the organs of the State Administration. In a first stage, the Comptroller's doctrine focused on the exercise of disciplinary power, establishing a set of principles to which it should submit, mostly obtained from criminal law, even when this circumstance is not expressly mentioned. In a second period, he closely follows the Constitutional Court and the comptroller maintains that the disciplinary power is a manifestation of the State's sanctioning power, which, in turn, is together with the punitive criminal power, one of the manifestations of the ius puniendi general of the State, which is why it has also understood that the principles of criminal law are applicable to disciplinary sanctioning law. In this new line, the Office of the Comptroller seeks to provide theoretical and regulatory support to the administrative sanctions regime, resorting to comparative doctrine, particularly Spanish (Miguel Sánchez Morón, Alejandro Nieto and Juan J. Zornoza Pérez); to the national doctrine (Ramiro Mendoza and Blanca Oddo) and to the jurisprudence of the Constitutional Court, contained in its Judgment Roll N ° 244, of 1996.
However, there is no express pronouncement in these opinions regarding the concept of administrative sanction that serves as the basis for them. As we have pointed out, the vast majority of the opinions have fallen on the exercise of disciplinary power, which fully corresponds to the strict concept of administrative sanction. Subsequently, it has been extended to the sanctioning power that is exercised over individuals, known under the expression of governmental sanctions. In the latter case, the Comptroller's Office has also established principles and criteria under the underlying idea that we are faced with proper administrative sanctions. But it has also included within the concept of sanction certain acts with unfavorable effects, which are not stricto sensu sanctions, such as measures aimed at restoring the legal order by closing an establishment or declaring an authorization to be expired. However, it should be borne in mind that in these latter cases, the sanction rating made by the Comptroller has not been decisive in its decision, since these problems have basically focused on respecting the principle of legality in the actions of the Administration.
In accordance with the foregoing, in our opinion, the Comptroller's jurisprudence underlies a broad concept of administrative sanction, especially to provide certain safeguards against administrative acts with unfavorable effects. But also the controlling entity has hinted at a substantial concept of administrative sanction focused on the reduced ethical-social significance that it has in front of penalties, although it recognizes that it is up to the legislator to make this separation or demarcation.
3.1.4) Judicial jurisprudence
On this matter, judicial jurisprudence has followed the strict concept of administrative sanction. This is especially the case with the pronouncements of the Supreme Court, which has focused on a double function that these sanctions must fulfill: one of a preventive nature regarding certain conducts considered as administrative illicit, and another of a repressive nature, in response to the infraction. committed.
In this sense, the Supreme Court has indicated that "[...] the administrative sanction has mainly a preventive-repressive purpose, with it the discouragement of future similar illicit behavior is sought, it seeks to repress the conduct contrary to law and reestablish the legal order previously broken by the transgressor's action ".
Notwithstanding the foregoing, the Supreme Court starts from the assumption that it is a punitive power delivered to an organ of the State Administration, following the forms and procedures of entities of this nature. Furthermore, it has strictly emphasized the application of the principles contained in the Organic Constitutional Law of General Bases of Administration No. 18,575 and of Law No. 19,880, which establishes the bases of the procedures that govern the acts of the State Administration.
3.2) ADMINISTRATIVE SANCTIONS AND PENALTIES
3.2.1) General aspects
Once the formulation of the concept of administrative sanction has been formulated based on the distinction with other actions of the State Administration, particularly those that contain unfavorable effects for individuals, it is necessary to take a second step, clearly more complex and whose discussion is of ancient date . I am referring to the distinction that can be made between administrative sanctions and penalties.
As occurs in most of the countries around us, the Chilean legal system recognizes the existence of two manifestations of the punitive power of the State. In the first place, there is the one handed over to the courts, in accordance with the liberal revolutionary tradition and subject to a series of principles and guarantees (legality, typicality, guilt, non-retroactivity, non bis in idem, indubio pro reo, etc.) , which make up the liberal and judicialized criminal law. On the other hand, we find ourselves with the punitive power of the Administration, whose bodies are given the power to determine the existence of an infraction of the legal order and to punish them directly, without the intervention of the judicial authority.
The coexistence of both powers has always posed a kind of paradox, confronting the liberal principles that inspire the punitive power of the State, in the face of an increasingly intense reality in the attribution of sanctioning powers in the hands of the State Administration, even more so if this last redoubt has been burdened by the stigma of being a space lacking the slightest guarantees for individuals, to the point of being classified as a "repressive Pre-Quebec law". Despite the notable evolution that has been experienced in this matter, through the "nuanced" application of the principles of the criminal order to the scope of this type of sanctions, the problem of determining whether administrative sanctions are a type of criminal sanction or its nature is diverse.
Studies on the regime of administrative offenses in Chile are clearly tributary to foreign doctrine and jurisprudence and, therefore, to the traditional discussions that have been raised on the matter, especially about the nature of these crimes. Thus, it is not strange to find the classic exposition that tries to separate, from a substantial criterion, the administrative and criminal offenses -especially by Italian authors such as RANELLETTI and GÍROLA- or to point out that the distinction is of a character strictly formal: the penalties are applied by the judge, while the administrative sanctions are applied by the Administration - a concept with a clear German influence, especially from the work of Adolf MERKL.
However, these works reached Chile fundamentally mediately, especially through Spanish and, in some cases, Italian doctrine. However, many of these conceptions appear quite blurred, intermingled and without indication of their original source.
To deal with this point, we are going to follow the same path, analyzing the way in which the subject has been understood by national doctrine, constitutional, administrative and judicial jurisprudence.
3.2.2) Discussion in national doctrine
The national penalists have assumed the study of the subject from the provisions of article 21 of the Penal Code, a norm that establishes that penalties are not considered, among others, the fines and other corrections that the superiors impose on their subordinates and administered in use of its disciplinary jurisdiction or governmental powers. Raised on the issue, criminalists have taken over in greater depth, drawing directly on comparative doctrine, especially German. In any case, there is still no definitive dogmatic solution or proposal among them, which is why authors such as Enrique Cury maintain that the distinction between criminal, administrative and disciplinary penalties has become a problem whose practical consequences are serious and whose theoretical solution, meanwhile, is far from being unanimous and satisfactory.
In this matter, one of the most interesting works has been carried out by Luis Rodríguez Collao, who analyzes the problem based on the concept of punishment and its various meanings. In general terms, this author understands that, from a legal point of view, the word penalty is "synonymous with punishment, that is, an afflictive measure that must be endured by anyone who engages in improper conduct." At a second level, there are the penalties that the State applies to its subjects, which include not only criminal penalties, but also the penalties or sanctions that the Administration applies. Finally, the most restricted concept of punishment would be found, which includes those imposed by the criminal legal system.
This distinction is reinforced by the author's own interpretation of article 20 of the Penal Code, since this provision establishes that penalties and other corrections that superiors impose on their subordinates and administrated in use of their disciplinary jurisdiction are not considered penalties " governmental powers ", that is, no penalties are considered, for criminal purposes, the sanctions applied by the Administration. In this sense, the terms of the norm imply an acknowledgment in order that the concept of punishment may have a broader scope than that assigned by the Penal Code. In the same sense, Enrique CURY points out that article 20 does not consider administrative penalties formally penalties, although he recognizes that they participate of the same nature.
In this way, located at the second level of this tripartition, there does not seem to be any problem in calling penalties to the punishment dispensed by the courts of justice and the sanctions applied by the organs of the State Administration. Furthermore, this distinction allows the author to understand that the constitutional concept of punishment, as contained in article 19 of the Constitution, particularly in its 3rd paragraph, corresponds to this intermediate category and projects its statute of guarantees to both criminal penalties. as well as administrative penalties.
For its part, the subject in administrative doctrine has been the subject of extreme discussions. The most radical approach comes from the hand of Eduardo SOTO KLOSS, followed in this matter by Iván ARÓSTICA. For these authors, administrative penalties are directly penalties. In the words of Soto Kloss, sanctioning "is nothing other than" punishing ", and punishment is undoubtedly a penalty, a grievance, because of a violation of a pre-established mandate or order. The very idea of" sanction " In this sense, it involves "repressing" conduct - and even omission, when you have an obligation to act - in order to impose what is due / fair on an infringement or violation of something ordered or imposed. Ultimately, sanctioning / punishing means imposing a penalty.
However, the analysis and objective of these authors is not intended to establish or determine the legal regime applicable to this type of sanctions, but to rightly dismiss them as unconstitutional. In this line, the organs of the State Administration would be exercising exclusive powers that the Constitution gives to the courts of justice (articles 73 and 19 No. 3 paragraph 4 Const.). In short, all sanctions are penalties and, in turn, the application of a penalty is a jurisdictional act that only corresponds to the courts of law and not to the Administration. For the rest, this explains the reaction that some authors have expressed to this position, either from criminal law 41 or from administrative law.
3.2.3) Constitutional jurisprudence
In its first pronouncements on the matter, the Constitutional Court upheld the Spanish doctrine and jurisprudence on the unitary character of the state jus puniendi, which is manifested in its two aspects: a criminal and an administrative one. To a large extent, this position supports the ontological identity between criminal penalties and administrative sanctions, under the formulation of a common trunk that allows projecting the principles of the criminal order to the latter.
It is not for us now to discuss this doctrine, although it should be noted that it continues to generate a series of difficulties based on a meta-normative conception that allows this ontological identity to be sustained between offenses and crimes, on the one hand, and sanctions and penalties, on the other. Moreover, if later nuanced principles are projected to the administrative order that move away from the penal sphere, without giving greater certainty about the way to carry out these modulations or nuances.
However, this idea of ontological identity is ratified by the Constitutional Court itself, which states that "[...] administrative sanctions participate in the essential characteristics of criminal sanctions, as they are both emanations of the state ius puniendi, therefore that a similar statute should be applied, with nuances, "[...] calling it directly penalties.
According to this criterion, the determining element between a criminal penalty and an administrative penalty would be given by the authority that is called to apply it. In the first case the judicial authority, while in the second case it would be the administrative authority. If this is analyzed from the point of view of positive law, beyond the ethical-social assessments that it may mean, there would be no substantive limit for the legislator to move discretionaryly between criminal and administrative sanctions to punish certain behaviors. , which is not consistent with the sense that the principles and guarantees of criminal law have against a more lax criterion or minimum guarantees, as occurs with administrative sanctions, even more so if we consider that a large part of criminal guarantees are recognized at the constitutional level and in both international treaties. Making things even more extreme, a concept that identifies criminal and administrative sanctions ontologically, can become a tempting space for the legislator to decriminalize certain behaviors and sanction them administratively, with no limits other than their ethical conscience, a matter of everything. unpresentable and absurd.
It is at this point that the Constitutional Court has made a notable advance, establishing clearly and precisely that it is not possible for a custodial sentence to be imposed through administrative channels, without previously having a jurisdictional instance to review said action. In good accounts, an administrative offense cannot be punished by a custodial sentence, nor can such a possibility be considered as a measure of urgency.
As we will discuss later, this opens a wide range of possibilities for action for the legislator, with the aim of establishing a repressive policy as an instrument of social control within the framework of recognized constitutional values and assets, subject to a series of limits. nouns at the time of graduating the sanctions that it is going to establish in order to fulfill said purpose. In short, the legislator can establish illicit and sanctions, handing over his determination and punishment to the judicial or administrative authority, discretionally evaluating the convenience, opportunity and effectiveness of following one or the other path. However, in the case of establishing the most serious sanctions, that is, the deprivation of liberty as an instrument of sanction or punishment, the only possible way will be that of the courts of justice, with all the substantive and procedural guarantees established by the Constitution. And the law. In this way, one of the basic principles of the constitutional system is ensured, such as the proportionality of the measures adopted to fulfill a given purpose, in relation to the way and intensity in which fundamental rights may be affected. In addition, it places criminal law as the last ratio or with the subsidiary character that is its own. Thus, for the rest, it has understood the Constitutional Court by stating:
"That, in addition, it has been sentenced that a constraint that involves deprivation of liberty must be decreed" with undoubted determination and with unquestionable parameters, that is, respecting the principle of proportionality between the limitation of the fundamental right to liberty and the objective constitutionally valid that seeks to pursue ". In this sense, it has been pointed out that a limitation to a fundamental right is justifiable when said mechanism" is strictly necessary or convenient to achieve a constitutionally valid objective, consequently the legislator must choose those limitations that imply taxing to a lesser extent, the fundamental rights' "(judgments roles N ° s. 519 and 576)".
In short, for the Constitutional Court there is an ontological identity between penalties and administrative sanctions, to the extent that both participate in the constitutional statute of the penalties provided for in the Basic Charter, subject to some nuances. In turn, within the framework of a repressive policy that allows satisfying and complying with constitutional purposes, the legislator can configure and sanction certain illegal behaviors, discretionally filing their application before the judicial and administrative authority, respecting two basic rules: a) the custodial sentences should always be prosecuted; and b) the principle of proportionality between the limitation of the fundamental right and the constitutionally valid objective that it seeks to pursue must be respected.
3.2.4) Administrative jurisprudence
In relation to administrative penalties and sanctions, the Comptroller's Office has followed the thesis of the single ius puniendi of the State and, therefore, of the ontological identity between the two, following in this matter the constitutional jurisprudence and national and foreign doctrine.
In this sense, the comptroller has indicated that "[...] The historical origin of administrative sanctions as a simple shift of jurisdiction from the court to the Administration, justified by reasons of convenience and policy legislative [...] ".
However, it has also recognized that there are elements of a substantive nature to make this segregation or displacement: "[...] the distinction between these two sanctioning areas obeys exclusively a quantitative criterion, since the administrative offense, compared to that of nature criminal, is an unfair of reduced ethical-social significance, which for reasons of convenience and legislative policy has been entrusted to the Administration " 51 . In this regard, the Comptroller's Office recognizes that there are no crimes or infractions by nature, since these are established and configured as such by the legislator. In addition, in this work it is the legislator himself who values these behaviors and considering their seriousness, delivers his knowledge and application to the judges or to the Administration. It is, ultimately, a matter of legislative policy subject, however, to the constitutional framework.
For its part, it also recognizes that in the administrative field the principles and guarantees are more mitigated than in criminal matters, however this cannot mean that there are no minimum guarantees that must be respected: "[...] even when in administrative matters Some mitigation of the principles that limit the power of the State to apply sanctions is admitted, tolerating greater degrees of discretion, the truth is that in no way could this translate into the disappearance of such principles, since it would be entirely illogical for the offender administrative lack of rights and guarantees that are recognized to the offender, or that the criminal judge had limits that do not apply to the administrative sanctioning body. "
Therefore, the Comptroller's Office shares the criteria followed by the constitutional jurisprudence in this matter, recognizing that the separation between criminal and administrative sanctions is a matter of legislative policy. In addition, the ethical-social reproach of administrative offenses is less, thereby attenuating certain principles and guarantees, but which do not totally disappear.
3.2.5) Judicial jurisprudence
The Supreme Court does not propose any further news in this regard. As it maintains in its rulings, the idea of the single ius puniendi of the State, which allows projecting the principles and norms of the criminal order to the field of administrative sanctions, has been underlying in its sentences for a long time. This also supposes the thesis of the ontological identity of both types of sanctions, although in some sentences it has qualified this point: "[...] although elementary principles between one and the other are common and logical, as occurs with those related to non bis in idem, to the non-retroactivity of the sanctioning law, to the pro reo principle and to the need for prescription of the respective persecutory action, it is not possible to ignore the legal impossibility that is seen in assimilating the administrative violation to a criminal offense - the only way to conclude within a six-month statute of limitations for the respective persecutory action - which arises from the intrinsic nature of the punishment ... Of course, since the penal sanction presents inescapable characteristics, sufficiently studied by the doctrine, such as the of its morality, that is, its ethical foundation; its affliction, aimed at restoring disturbed social balance; its proportionality to nature nature of the criminal law in question; your personality or individuality; their equality, that is, the same conduct must have an identical sanction; its exemplary, that is, its potential for intimidation; its publicity, not only regarding punishment but the fair process that led to it; its certainty and inescapability; its promptness, in relation to its commission; its revocability to remedy an eventual injustice; their temporality and divisibility, to adapt to the characteristics of the criminal, all conditions not necessarily present in the administrative sanction, but yes, applicable to crimes, simple crimes and misdemeanors ... "In this regard, it must be borne in mind that The Supreme Court in this judgment does not abdicate the thesis of ontological identity and the unique jus puniendi of the State In this regard, in this ruling the Court develops all its arguments in order to justify a very important nuance regarding the projection of the principles from the criminal order to the area of administrative sanctions, related to the statute of limitations, however, the predominant thesis in its judgments is not discussed, as is the case in constitutional and administrative jurisprudence.
Therefore, the Supreme Court shares the doctrine that has upheld the constitutional and administrative jurisprudence on the matter, but considers the substantive aspects that separate crimes from administrative offenses, to qualify in the projection of the principles and rules of the criminal order to the scope of administrative sanctions.
The concept and nature of infractions and administrative sanctions constitutes a necessary budget to be able to analyze its legal regime and, particularly, the constitutional bases and principles to which it must submit. In this sense, it is essential to establish what the concept is and what nature the main legal operators have attributed to the exercise of the punitive power of the Administration. Thus, from this study it is possible to reach the following conclusions:
1. National doctrine and jurisprudence have received a clear influence from comparative doctrine and jurisprudence, particularly that which has been forged in Spanish law and which makes an ontological identification between criminal and administrative sanctions under the concept of a single ius puniendi of the State, which forks in these two manifestations. In this way, administrative offenses and offenses are assimilated on the one hand, and administrative penalties and sanctions on the other, in order to project the principles of the criminal order to the latter.
2. Although this doctrine continues to be the majority in Spain, in the last two decades a trend has been opened to make administrative sanctioning law independent from criminal law, founded on its own principles and categories. This trend has not reached jurisprudence and has been partially picked up by national doctrine.
3. For the comparative doctrine it is very relevant to distinguish the administrative sanction with respect to other formal actions of the Administration that produce unfavorable effects, especially to determine the applicable legal regime, in particular the principles and guarantees proper to the exercise of the punitive power of the Administration. However, this analysis has practically not been carried out by our doctrine, with few exceptions, nor has it been the subject of attention by constitutional, administrative and judicial jurisprudence.
4. Constitutional jurisprudence follows a broad concept of administrative sanction, comprehensive of administrative acts with unfavorable effects, within the framework of the principles and guarantees of rational and fair administrative procedure (Article 19 No. 3). However, in relation to the substantive principles that govern the Administration's sanctioning power (legality, criminality, guilt, personal responsibility, etc.), it has focused primarily on stricto sensu administrative sanctions. For its part, administrative jurisprudence has also followed a broad concept of administrative sanction, although this has not led it to relevant pronouncements that project the principles of the Administration's sanctioning power to acts of unfavorable effects. Finally, the Supreme Court has followed the strict concept of administrative sanction, focusing its analysis on the preventive and repressive purpose of these measures.
5. The old discussion that separates the penal sanctions from the administrative sanctions, as a consequence of certain conduct classified as illegal (crimes and administrative infractions), has found a greater echo in the criminal doctrine, which follows the discussion that has taken place in comparative doctrine. At this point, the interpretation of article 20 of the Penal Code is decisive, to establish that in our legal system there is a broad concept of punishment, comprehensive of criminal and administrative penalties. In addition, this allows a broad interpretation of the constitutional norms on the matter (article 19 Const.) And projects the guarantees of the criminal order to the administrative sphere.
6. Both constitutional, administrative and judicial jurisprudence follow the thesis of ontological identity between criminal and administrative sanctions, under the idea of a meta-normative concept of a single punitive power of the State. At the same time, it is implicitly recognized that within this framework, it is up to the legislator to assess punishable conduct from an ethical-social point of view and to determine the appropriateness of its application by the judicial or administrative authority. However, our Constitutional Court has been clear in holding that custodial sentences and enforcement measures that affect it, can only be ordered by the judicial authority. Furthermore, in this role, the legislator must weigh, on the basis of the principle of proportionality, the means used in relation to the constitutional purposes that are intended to be achieved and the intensity of the affectation of fundamental rights.
7. In short, for our doctrine and jurisprudence, administrative offenses and penalties participate in the very nature of crimes and penalties, since they form an intervention mechanism within the framework of a repressive policy that must be determined by the legislator, subject to elements of proportionality and guarantees that are of greater intensity considering the severity of the sanction to be applied.
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