Have you committed an offence? What is the penalty?

Chapters of the article

• What penalties does administrative law know?
• Imposition of administrative penalties
• Conditional waiver of the imposition of an administrative penalty
• Waiver of the imposition of an administrative penalty
• Appeals against the penalty imposed

The principles and instruments of administrative punishment are to some extent similar to the principles and sanctions in criminal proceedings, but they are usually much more lenient, given the lower social danger of offences. The basic rule is to assess each offence individually, taking into account its gravity, consequences, the circumstances in which it was committed, the degree of culpability and the motives.

What penalties does administrative law know?

The administrative law allows for a warning, fine, prohibition of activity, forfeiture of property or publication of the decision on the offence. The different penalties can also be combined in different ways. An exception is a warning, which cannot be imposed at the same time as a fine.

Reprimands

A caution serves primarily as a reminder that an offence has been committed and a reminder of the consequences that the offender faces if he or she commits a similar offence again. With a caution you can get away with, for example, a slight speeding offence. Typically, administrative authorities are inclined to give a caution when punishing juveniles. However, they can generally be imposed for any offence, unless specifically excluded by law.

Fine

A financial penalty in the form of a fine may be imposed only for an offence for which a specific law so provides. However, this is the case for a large number of offences. The scope of fines imposed in administrative criminal law is significantly wider than that in criminal law. The administrative authorities and the police in the Czech Republic together issue many hundreds of thousands of fines per year.

Fines are imposed within the range specified by law. Typically, there is an upper limit to the fine rate, but it may be supplemented by a lower limit. However, even this can be reduced in exceptional situations.

If the law does not provide for a specific amount of the fine, it may be a maximum of no more than CZK 1 000.

Example: one law usually defines several offences and sets out a wider range of fines (or other administrative penalties). Thus, for example, the Road Traffic Act provides for a fine of CZK 1,500 to 2,500 for possession of a mobile phone while driving, a fine of CZK 2,500 to 5,000 for exceeding the maximum speed limit in a municipality by 20 km.h-1 or more or outside a municipality by 30 km.h-1 or more, CZK 5,000 to 10,000 for driving in a vehicle with an obscured registration plate. Fines of up to CZK 50,000 are graduated in this way. The same law also provides for the penalty of prohibition of activity.

Prohibition of activities

The administrative authority may prohibit an activity for which a licence is required (e.g. a driving licence) or which the offender performs in an employment relationship if it is related to the commission of the offence. This typically relates to driving a motor vehicle or running a business.

A prohibition of activity can be imposed in this way for a maximum of two years. This period includes the time during which, on the basis of a measure taken by the administrative authority in connection with the offence in question, he or she is no longer allowed to carry out this activity.

Forfeiture of the item or replacement value

If the offender has used an item to commit an offence or has acquired it as a result of an offence, the offender may be liable to forfeiture. The authorities may resort to forfeiture if the offender is found guilty of an offence. However, care must be taken to ensure that there is not a significant disproportion between the value of the item and the fine received for the offence.

If the offender has destroyed, sold or damaged the item in question, the administrative authority may impose a forfeiture of the replacement value of the item.

Protective measures

In addition to administrative penalties, so-called protective measures can also be imposed. As the name suggests, these are intended to protect society, not the offender.

They can be:

• restrictive measures – typically restrictions on visiting certain places where the offence is (has been) committed – a football stadium, a hospitality establishment. They can be imposed for a maximum of one year ,
• confiscation of property or replacement value – may be confused at first sight with forfeiture. However, there are important differences: forfeiture is imposed on an offender who is the sole owner of the item, whereas confiscation is used in other cases (e.g. the item is the proceeds/profit of a crime or the commission of an offence) or in cases where the item belongs to an offender who has, however, for some reason been exempted from punishment.

Publication of the decision on the offence

This relatively new type of penalty can only be imposed by the administrative authority if the law so provides. Moreover, it applies only to legal persons and natural persons engaged in business.

Imposition of administrative penalties

As mentioned above, when imposing penalties, the administrative authority considers many different aspects, in particular the seriousness of the offence and its consequences. The circumstances in which the offence was committed and the circumstances of the offender are also examined.

In the case of a natural person, account is taken, inter alia, of his or her personal circumstances, for example, whether he or she has already been punished for that or a similar offence. In certain situations, it may be appropriate to include financial circumstances under the concept of personal circumstances. In such a case, the fine to be imposed should also be imposed on the basis of financial circumstances.

The administrative authority may ask the accused to state his personal circumstances or may try to estimate them itself. For that purpose, it may consult, for example, the land register, the insolvency register, the trade register, the vehicle register and other accessible registers and registers from which the financial circumstances of the accused may be inferred.

In the case of a legal or natural person engaged in business, the nature of its activities (e.g. a non-profit organisation with educational activities, a trading company, etc.) shall also be taken into account.

Suspension of the imposition of an administrative penalty

A conditional suspension of the imposition of an administrative penalty may be imposed in the case of an offence by which damage has been caused or by which the offender has been unjustly enriched. The decision shall impose both the obligation to make good the damage (or to hand over the unjust enrichment) and the manner in which the offender is to do so.

This may be done on condition that the offender admits guilt and the hearing itself is sufficient to remedy the situation.

Waiver of the imposition of an administrative penalty

Theoretically, the imposition of an administrative penalty may be waived for all offences, provided that the offender has not caused damage or has not been unjustly enriched by the offence. In some cases, however, the law may exclude this possibility.

The law distinguishes between two situations in which it is appropriate to refrain from imposing an administrative penalty:

1. Where the offender has committed two or more offences and the penalty imposed for any one of them may be considered sufficient and appropriate to the penalty that would otherwise have been imposed in the joint proceedings.
2. If the hearing alone is sufficient to reform the offender – typically used when the offender is a juvenile or for miscellaneous offenses committed recklessly where no harm was caused.

Appeals against the sentence imposed

Administrative law recognises the following types of ordinary appeals that can be lodged against non-final decisions:

Appeal – may be lodged within 15 days of the judgment by any party to the first instance administrative proceedings. The appeal may be brought against the operative part of the decision, not just its reasoning. However, you must work with the reasoning to support your arguments against the statement. Always address your appeal to the administrative authority that issued the contested decision. The latter may decide in what is known as ‘self-medication’ (the administrative authority effectively acknowledges its own wrongdoing and does not complicate the matter further by appealing) or it may refer the file to a higher authority, which will initiate the appeal procedure.

The appellate authority may then appeal the contested decision:

• uphold,
• set aside part of it, and stay the proceedings,
• set aside and refer it back for reconsideration; or
• reverse.

An analogous form of appeal is an appeal. Unlike an appeal, however, it is lodged against a decision of a central government body, ministry or other central administrative authority. These are less common in the field of misdemeanours.

Opposition to an order in administrative proceedings – this is an appeal against an administrative procedure concerning an offence in which the administrative authority has made an order. If the opposition is lodged within eight days of the decision, the order is completely annulled and the case proceeds to the ordinary proceedings. The advantage for the party filing the opposition is the certainty that the penalty subsequently imposed will no longer be more severe than the one against which the opposition was filed. Once the order has been revoked, the standard offence procedure takes place, resulting in a decision on the offence. If the party does not agree with this decision either, it is possible to appeal against it. However, you cannot oppose the on-the-spot order, as by signing the order form you agree with the findings and the fine imposed.