Concept and fundamentals of administrative penal law
Administrative penal law is an independent subfield of public law that governs the penalization of regulatory offenses and administrative law violations by special administrative authorities. It applies whenever violations of administrative regulations occur that do not constitute criminal offenses under current law, but are only subject to administrative penalties—often fines or similar sanctions. Administrative penal law forms the interface between general administrative law and criminal law and is codified in many European countries, including German and Austrian law.
Distinction from other areas of law
Difference from criminal law
Administrative penal law differs from classical criminal law, particularly in terms of the authority’s competence, the purpose of the measure, and the type of sanctions imposed. While in criminal law courts are responsible for decisions and typically impose custodial sentences or criminal fines, in administrative penal law administrative authorities decide on sanctions, which are intended to have both repressive and preventive effects, but fundamentally have a lower degree of intrusion.
Distinction from regulatory offenses law
In Germany, regulatory offenses law is a part of administrative penal law and is regulated in the Act on Regulatory Offenses (OWiG). In Austria, on the other hand, administrative penal law is understood more broadly and covers all violations of administrative regulations, regardless of whether they correspond to the German concept of regulatory offenses.
Relationship with administrative law
Administrative penal law is part of the public-law regulatory function. It supplements administrative law inasmuch as it effectively sanctions violations of administrative provisions and thus ensures compliance with public-law order.
Legal foundations
Germany
The relevant legal provisions are primarily found in the Act on Regulatory Offenses (OWiG), as well as in numerous special laws such as the Road Traffic Act (StVG) or the Food and Feed Code (LFGB). The formal regulations of administrative procedure law also play a role, for example regarding service and legal remedies.
Austria
The relevant regulations are set out in the Administrative Penal Act 1991 (VStG), the General Administrative Procedure Act (AVG), and various substantive laws that define administrative penal offenses.
Switzerland
In Switzerland, administrative penal provisions are found in the Federal Act on Administrative Penal Law (VStrR), which sets out the principles for prosecution by federal administrative authorities and courts.
Essential characteristics of administrative penal law
Offense
An administrative offense arises from a violation of an administrative provision, which must be committed unlawfully and culpably. As a rule, simple negligence is sufficient.
Sanctions
Sanctions primarily include fines, but also ancillary consequences such as driving bans, warnings, confiscations, or even temporary business closures. Custodial sentences—except in exceptional cases—are typically excluded.
Procedure
The procedure in administrative penal law follows its own procedural rules. Most proceedings are conducted in writing; oral hearings are the exception. The affected person is entitled to a fair hearing and may appeal the administrative authority’s decision.
Legal remedies
In administrative penal proceedings, the party concerned is usually entitled to file an objection, appeal, or complaint against the administrative decision, depending on the respective state law.
Systematics and function of administrative penal law
Preventive and repressive function
Administrative penal law serves both prevention and repression. Its preventive effect is achieved by making violations of rules unattractive through sanctions, thereby promoting compliance with administrative law norms. Its repressive effect lies in punishing already committed violations.
Typical areas of application
Central areas of application of administrative penal law include:
- Road traffic law (e.g. speeding, illegal parking)
- Commercial law regulations (e.g. violation of shop opening hours)
- Environmental and nature protection law (e.g. unlawful waste disposal)
- Employment law requirements (e.g. violations of working time regulations)
- Food law (e.g. hygiene violations in the operation of catering businesses)
Particularities in administrative penal law
Authority competence
The prosecution and penalization of administrative offenses are usually the responsibility of specially designated administrative authorities, such as regulatory offices, district offices, or specialized departments of regional administrations. These authorities have their own investigative and decision-making powers.
Fundamental rights protection
Despite the lesser intensity of intervention, fundamental rights protection must be observed when issuing administrative penalty decisions. This applies in particular to the right to a fair hearing, the requirement of equal treatment, and the principle of proportionality.
Limitation period
Violations within administrative penal law are subject to a statute of limitations for prosecution. The duration of the limitation period is governed by the respective law and is significantly shorter than in criminal law.
Summary
Administrative penal law is a central instrument for enforcing administrative regulations and ensuring public order. It is characterized by specific substantive and procedural rules and serves to enforce norms in the area of non-criminal law regulatory violations. Compliance with procedural standards, appropriateness of sanctions, and effective protection of fundamental rights are key elements that confer its independent significance to this legal field.
Frequently asked questions
What legal remedies are available against a penalty notice in administrative penal law?
In principle, a complaint is the legal remedy available against a penalty notice in administrative penal law. This must be filed within the statutory period, usually two weeks from service of the notice, with the competent authority. The complaint has suspensive effect and allows the affected person to have the decision reviewed by the administrative court. Both legal and factual objections to the penalty notice may be raised within the complaint, and evidentiary motions are also permitted. The administrative court examines the contested notice comprehensively and may confirm, amend, or annul it. Furthermore, after all instances have been exhausted, there is an option to file an appeal with the Supreme Administrative Court if a legal question of fundamental importance is at stake. In addition, a complaint can be filed with the Constitutional Court for alleged violations of constitutionally guaranteed rights.
What does self-report mean in administrative penal law, and what are its legal consequences?
The self-report is a provision in administrative penal law that allows a person to report themselves to the authorities for having committed an administrative offense before the violation becomes known to the authority in another way. The prerequisites are that the self-report is complete and timely; this means that the person affected must fully disclose the facts and voluntarily provide all relevant information. An effective self-report, under certain conditions, results in exclusion or mitigation of punishment, provided that no harm has occurred to public order or third parties, or that such harm has been remedied. However, a self-report does not eliminate punishment if investigations have already commenced against the reporting party or if the authorities have already become aware of the violation by other means.
What role does fault play in administrative penal law, and how is it established?
Fault is a central element in administrative penal law and a fundamental prerequisite for the imposition of a penalty. Fault means that the administrative offense was committed intentionally or negligently. The authority must determine the extent of fault—especially the presence of intent or negligence—in the investigation and clearly set out its findings in the reasoning of its decision. Both the objective circumstances of the offense and subjective factors, such as the perpetrator’s knowledge and intent as well as their ability to comply with the legal requirements, are considered. The extent of fault directly affects the assessment of the penalty, especially in weighing the statutory range of penalties and individual aggravating or mitigating factors.
In what cases can an administrative penal proceeding be discontinued?
An administrative penal proceeding can be discontinued for various reasons. This occurs if it transpires during proceedings that no punishable conduct is present, either because there is no legal basis, the offense cannot be proven, or the accused cannot be held responsible. Likewise, minor fault or a minor violation may result in discontinuation according to the principle of expediency. The proceeding is also discontinued if the limitation period for prosecution has expired, i.e. if the offense was not prosecuted within the statutory timeframe. The authority may also discontinue the proceedings if the prerequisites for an effective self-report are met or other grounds for exemption from punishment are present.
How is the amount of a penalty determined in administrative penal law?
The amount of the penalty in administrative penal law is generally determined by the applicable statutory penalty range set out in the relevant administrative law. When determining the penalty, the authority must particularly take into account the extent of fault, the severity of the violation, the extent of the damage caused, and any aggravating or mitigating circumstances. Examples of mitigating factors include a confession, active remorse, or effective compensation for damages. Aggravating factors can include relevant prior convictions. For each decision on the penalty amount, the authority must provide understandable reasoning stating the consideration of these criteria. Moreover, administrative penal law allows for both monetary penalties and—in certain exceptional cases—substitute custodial sentences.
What is the significance of the statute of limitations for prosecution in administrative penal law?
The statute of limitations for prosecution is a procedural barrier beyond which an administrative offense may no longer be prosecuted. It generally begins at the time the offense is committed and lasts—depending on the law and the seriousness of the offense—from several months to years. Ongoing investigations or the filing of appeals can result in interruption or suspension of the statute of limitations. Once the statute of limitations has expired, the authority is required to discontinue the administrative penal proceedings ex officio. The provisions regarding the statute of limitations for prosecution serve legal certainty and are intended to prevent administrative offenses from being prosecuted indefinitely.
What is the function of a substitute custodial sentence in administrative penal law?
The substitute custodial sentence is applied in administrative penal law when an imposed fine cannot be collected, i.e. the affected person does not pay and there is no possibility of attachment or any other form of recovery. It serves to enforce the state’s penal claim and is intended to ensure the sanctioning effect of the originally imposed fine. The duration of the substitute custodial sentence is legally limited and is proportionate to the amount of the uncollectible fine. Its imposition is intended as a last resort, when all reasonable means of collection have been exhausted. During the proceedings, the authority is required to carefully examine the individual’s financial situation and enforcement options.
