THE PRINCIPLE OF PROPORTIONALITY APPLICATION OF CONTRAVENTION SANCTIONS

According to Article 9 “Principle of proportionality” of Emergency Ordinance 57/2019 on the Administrative Code: “The forms of activity of the public administration authorities must be appropriate to meet a public interest, as well as balanced in terms of effects on individuals. Regulations or measures of public administrative authorities and institutions are initiated, adopted, issued, as the case may be, only after assessing the needs of the public interest or the problems, as the case may be, the risks and the impact of the proposed solutions.”

by Teodora Luca, Senior Lawyer at CA Luca Mihai Cătălin

Teodora Luca, Senior Lawyer at CA Luca Mihai Cătălin

Public authorities therefore have a general obligation to ensure the balance between the measures adopted and the effects they produce in terms of the rights of individuals (such as the right to carry out an economic activity). Pursuant to the above provisions, the contravention sanction must be appropriate to the achievement of a legitimate purpose, necessary to achieve that purpose and, at the same time, reasonable and balanced in terms of effects. The purpose of the sanction is to correct and educate in the spirit of compliance with the law, and not to cause financial harm to the person concerned, which must prevail considering the preventive purpose of the sanction, and not its punitive nature.

According to art. 5 paragraph 1 of Government Ordinance 2/2001 on the scope of contraventions:

1) Contravention sanctions may be main or complementary.

2) The main contravention sanctions are:

1. a) the warning;
2. b) the contravention fine;
3. c) performing a community service activity.

According to art. 5 paragraph 3 of GO 2/2001, the complementary contravention sanctions are:

1. a) the confiscation of goods intended, used or resulting from contraventions;
2. b) suspension or cancellation, as the case may be, of the approval, agreement or authorization to engage in an activity;
3. c) closure of the unit;
4. d) blocking of the bank account;
5. e) suspension of the activity of the economic operator;
6. f) withdrawal of the license or approval for certain operations or for foreign trade activities, temporary or permanent;
7. g) dismantling works and bringing the land to its original state.

The regime  of complementary sanctions in gambling is regulated by the provisions of art. 151 par. 3 and 4 of the Application Norms for implementing GEO no. 77/2009 on the organization and operation of gambling:

(3) The Supervisory Committee may order, depending on the consequences produced, the measure of suspension of the gambling authorization(s) for up to 6 months, for each means of play or for all means of play located in a single location or for the specialized location(s), as well as for the operators’ fields/platforms, depending on the gravity of the established facts and the consequences thereof, for one of the facts mentioned in paragraph (1).

(4) In the situation stipulated in paragraph (3), the inspection bodies shall submit the proposal for a sanction and the period proposed to the Committee, together with all the documentation on which the proposal is based.

Sanctions

Via Decision no. 197 of April 9, 2019, published in the Official Gazette of Romania, Part I, no. 438 of June 3, 2019, paragraph 31, related to contravention, the Constitutional Court noted the principle of the legality of contravention sanctions, the principle of the proportionality of contravention sanctions and the principle that a contravention sanction may only be applied once (non bis in idem).

According to the principle of proportionality, all main or complementary sanctions applied to the offender must be adjusted according to the seriousness of the offence. This principle finds its correspondence in the provisions of Article 5 paragraphs (5) and (6) of the Government Ordinance No. 2/2001, according to which “The sanction established must be proportional to the degree of social danger of the deed committed“, and “The complementary sanctions apply depending on the nature and severity of the deed“. When establishing the proportionality of the sanction with the social danger of the deed, the ascertaining officer applying the sanction must analyse the general criteria provided in art. 21 of the Government Ordinance no. 2/2001, as well as other special criteria, if applicable.

The European Court of Human Rights has also ruled in its case-law that acts sanctioned by contravention fall within the scope of the notion of criminal charge in Article 6 of the Convention, and the guarantees provided in criminal matters, including those arising from the principle non bis in idem, are applicable (Decision of inadmissibility of 28 June 2011, delivered in the case of Ioan Pop v. Romania, paragraph 27).

According to art. 21 of GO 2/2001:

(1) If the normative document establishing and sanctioning the contraventions does not stipulate otherwise, the officer shall also apply the sanction in the report.

(2) If, according to the normative document establishing and sanctioning the contravention, the ascertaining officer is not entitled to apply the sanction, the report shall be immediately sent to the body or the competent person to apply the sanction. In this case, the sanction shall be enforced by resolution written on the minutes.

The application of contravention sanctions shall be carried out in compliance with the criteria provided for in Article 21 of the Government Ordinance no. 2/2001, regarding the limits of the sanctions, respectively the proportionality of the sanction with the social danger of the deed, taking into account the circumstances in which the deed was committed, the manner and means of committing, the purpose pursued and the result produced, the personal circumstances of the offender, as well as the other data entered in the minutes of the finding and sanction. In other words, when establishing the proportionality of the sanction with the social danger of the deed, the ascertaining officer applying the sanction must analyse the general criteria provided in art. 21 of the Government Ordinance no. 2/2001, as well as other special criteria, if applicable.

The court is empowered to exercise, pursuant to art. 31 and 32 of GO 2/2001 the legality control, including from the perspective of the principle of proportionality. In court proceedings, the offender must be guaranteed the observance of all rights, including the right of defence, the presumption of innocence and the right to a fair trial, the fact-finding document (minutes) enjoying only a relative presumption of authenticity and veracity, against the findings contained therein all means of evidence can be administered.

In its practice, the Constitutional Court has held that the application of contravention sanctions, namely the actual sanctioning of the subject of law for disregarding the rules of contravention law, takes place according to principles, similar to criminal law sanctions.

The Court also held that contravention sanctions, whether main or complementary, must comply with the requirement of proportionality.

In addition, by interpreting the provisions of Article 5 paragraph (6) of the Government Ordinance No. 2/2001, the court showed that the complementary sanction is not established only by the legislator, that is, taking into account only the abstract social danger of the incriminated act as a contravention, without allowing the ascertaining officer or the court to analyse in concrete terms whether the committed act meets the seriousness criteria necessary to apply such a sanction. Thus, the competence of the legislator is to establish complementary penalties, and their application – which is a process distinct from that of establishing, of provision in the incrimination rule – can only be the responsibility of the ascertaining body and the court vested with the verification of the contravention report. (…)

The investigating officer and subsequently the court hearing the contravention complaint must analyse the proportionality of the complementary sanction in order to avoid the rigid application of the law, in this regard it is necessary to interpret the incidental rules according to the purpose pursued by the legislator.

PRINCIPLE OF PROPORTIONALITY

Frequently, contravention sanctions applied to gambling organizers are manifestly disproportionate (how else could the revocation of the license to carry out the activity be measured because the space has a common access with a bar?); overwhelmingly, the acts by which the sanctions are applied do not include any reference to the criteria that were considered for its application or contain only descriptions of the social danger attributed to the deed by the legislator.

This omission is a breach of the principle of proportionality, being sanctioned by the courts.

Given the effects of the sanctioning measures (the complementary ones, in particular), which often equate to the loss of the right to carry out the activity, it is legitimate to expect the gambling organizers that the sanctions be applied after a thorough analysis, based on the criteria that are described in the sanctioning act.

We express the hope that, based on the considerations set out in the judgments, the Authority will promptly review the procedures for applying sanctions so that they meet the requirements of the law.