RETROACTIVITY IN ADMINISTRATIVE PUNISHMENT

#55Retroactivity in Administrative punishment

Retroactivity is to be understood as a kind of retroactive application of legislation. In general, we know two types of retroactivity, namely:

1. True retroactivity – this occurs when a subsequent rule of law does not accept either the legal relationships or the rights and obligations, which arose on the basis of earlier standard.
2. False retroactivity – this occurs when the validity of a legal relationship is assessed according to earlier legal standard, but on the content of legal relationships is assessed according to standard that is effective at the time when is it decided about the particular relations.

 

In our legal system, a true retroactivity is unacceptable, and this is mainly due to the guarantee of the protection of rights and legal certainty. However, where retroactivity may be permitted, it is regulated for in the Act No. 300/2005 Coll. Criminal Code as amended (Criminal Code), which is provided for in Section 2 (1) as follows:

„The criminal liability for an act shall be determined and the punishment shall be imposed according to the law applicable at the time of its commission. When several amount of laws have taken effect between the time of commission of the act and the delivery of judgement, the criminal liability for an act shall be determined and the punishment shall be imposed according to the law, which is more favourable for the offender.“

A similar regulation of retroactivity is also defined in the Act No. 460/1992 Coll. Constitution of the Slovak Republic as amended (Constitution), namely in Article 50 (6):

“The criminality of the offense is assessed, and a punishment is imposed, in accordance with the law valid at the time when the act was committed. A more recent law is applied, if it is more favourable for the perpetrator.”

In addition to the Constitution and the Criminal Code, retroactivity in favor of the offender is also regulated in the Charter of Fundamental Rights and Freedoms, the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights.

Such retroactivity is also typical for administrative punishment, because is agreed that administrative punishment is governed by the fundamental principles of criminal law. The modification of the principle of the prohibition of the retroactive application of the law is reflected in the sanctioning when the mandatory retroactivity in favour of the offender is applied, resulting directly from the Constitution as well as international documents. This was the subject of a decision of the Supreme Court of the Slovak Republic with the case number 4Asan/2/2019.

The subject-matter of the proceedings was a case in which the plaintiff had committed an administrative offence within the meaning of Section 42 (1) (p) of the Act on excise duty on mineral oil by reason of the sale of mineral oil for final consumption before applying to the customs office for registration as a fuel dealer and before applying to the customs office for authorisation to sell. On that basis, the customs office issued a fine to him in the amount EUR 10,000. The plaintiff filed an administrative suit before the Regional Court, however the court dismissed the claim and upheld the decision of the Bratislava Customs Office.

In this case, the plaintiff supposedly committed a continuous administrative offence, the unlawful situation arising from which began on 28th February 2014 with the legislation in force until 28th February 2014 and lasted until 4th March 2014, the new legislation having been in force since 1st March 2014. However, in the case of a continuing administrative offence, the time of the offence shall be deemed to be the time of its termination, i.e. the criminal offence shall be terminated only by the transfer of the last partial attack of such a continuing offence. Thus, the Regional Court observed that, if at least one of the partial attacks of a continuing administrative offence was committed under the new (later) legislation, then the administrative offence is considered to have been committed in its entirety only after the new (later) legislation has entered into force and the penalty for such an offence is imposed under the new legislation, in which case the offence is not committed retroactively.

The plaintiff applied to the Supreme Court of the Slovak Republic, which concluded that the decision of the Regional Court of Bratislava should be changed and that the defendant should be remanded for further proceedings. The defendant has the task of dealing with a new, more favourable rule for the claimant in relation to the amount of the sanction (fine) imposed on the plaintiff.

In the presented case, the Supreme Court relied on another decision of the Supreme Court of the Slovak Republic, case number: 6Asan/9/2017, which stated that “although illegal work and illegal employment have been established by the Labour Inspectorate at the time of the performance of the inspection, as well as at the time of the administrative authority ’ s decision to impose a penalty for an administrative offence, at the time of the administrative court ’ s decision the complainant ’ s conduct is no longer a criminal offence, given that the complainant ’ s conduct is not a criminal offence.”

From this decision follows the conclusion that, if the administration has imposed a penalty with a legal provision in force at the time when it took its decision on that penalty but, in the course of the judicial review, there has been a change in the legislation in favour of the offender who has objected to the inappropriateness of the penalty, the administration is required to take account of the change in the legal regime of the penalty, even if the change occurred after the decision had been taken.