Over the years, the Law on Administrative Violations and Penalties (LAVP) has undergone several important changes, such as the latest amendments published in the State Gazette, no. 109 of 2020, that entered into force on 23.12.2021. The first Acts for Establishing Administrative Violations (AEAV) on these amendments are already in place. The main objectives of the amendments are:
– updating the regulation of some traditionally existing institutes in the field of administrative punishment – the minor case of violation, the resolution for termination, the resumption of proceedings;
– creation of new opportunities for completion of the administrative penal proceedings in short terms by introducing the agreement;
– accelerating the collection of public government receivables arising from effective sanctions acts of the administration;
– more preventive anti-corruption measures in the implementation of the control and sanctioning activities of the administration;
– creation of effective legal guarantees for the right to protection of citizens in the out-of-court phase of the proceedings.
In short, the biggest changes are the following:
- In the first place, the powers of the sanctioning authority are updated in the case of a minor case of violation the sanctioning authority warns in writing that in case the infringer commits another administrative violation of the same type (minor case), within one year from the entry into force of the warning, for this other violation he/she will be imposed an administrative penalty. Also, for the first time, the warning issued by the sanctioning authority to the offender is subject to appeal and protest, as well as the possibility that the proceedings ended with a warning may be resumed.
- Secondly, provision is made for the deduction of the time during which the convicted person has been deprived administratively or de facto of the opportunity to pursue a particular profession or activity for the same offense, while serving the sentence of temporary deprivation of the right to exercise a particular profession or activity.
- The territorial competence of the penal authorities for violations committed in cyberspace shall be regulated.
In the first place, it may be a matter of violations related to the sending of information, respectively failure to send information from an obligated person electronically to the e-mail address of the relevant department. The second category of violations are those related to the processing of information on a computer network or committed in cyberspace, for example – misleading advertising, misleading messages, misuse of personal data, online sale of substandard, incomplete goods, etc.
- Individualizing data in the AEAV and in the acts of the sanctioning body shall be explicitly provided in the cases in which the person indicated as an infringer in the act for establishing an administrative violation is a foreigner. In these cases, it is proposed to indicate in the relevant act the names, exact address, date of birth, and if there is information about this – the place of birth of the person, passport or replacement travel document, indicating the number, date of issuance and issuer of the document.
- Regulation of the agreement in the general administrative law. The agreement is concluded between the sanctioning body and the offender and is a coincidence between the opposing statements of the two legal entities with identical content on whether the act was committed, whether the act constitutes a violation and its legal qualification. the person against whom the act for establishing an administrative violation has been drawn up, and whether it has been committed culpably. In the absence of agreement between the parties on these issues, no agreement can be reached and the sanctioning body will have to issue a penal decree. Upon signing the act, the offender shall be handed a copy of it against a receipt, and the date of its signing shall be noted in the act. Upon service of a copy of the act, the violator shall be notified in writing of his right within 14 days to submit a proposal to the sanctioning body for concluding an agreement for completion of the administrative penal proceedings.
An agreement cannot be concluded in four cases: for a repeated violation; for a violation committed within one year from the entry into force of an act by which an administrative penalty has been imposed on the violator or a warning for a violation of the same type has been issued; when the act for which an act for establishing an administrative violation has been drawn up constitutes a crime; when the confession of the infringer is not supported by the materials of the file. An agreement is also allowed in case the proceedings before the sanctioning body are instituted by the order of art. 36, para. 2 of LAVP – when the proceedings have been terminated by the court or the prosecutor or the prosecutor has refused to institute criminal proceedings and has been referred to the penal authority.
The agreement is final and has the consequences of an effective penal decree. The agreement enters into force on the date of its signing, and if an administrative penalty of a fine is imposed by it, it enters into force on the date of payment of the fine.
- Extension of the term for filing objections under the act and for contesting the acts of the sanctioning body
The term for filing an objection against the drawn-up act for establishing an administrative violation has been extended from three to seven days, as well as the one for contesting the penal decrees and other challenging acts of the penal body – from seven to fourteen days, in order to give opportunity for citizens to organize their defense effectively.
- The regulation of the judicial control over the legality of the sanction acts of the administration has been modernized through an explicit regulation of the powers of the district court in the proceedings under LAVP and regulation of abbreviated court proceedings.
- The institute of resumption of administrative penal proceedings has been modernized by specifying the acts subject to resumption, the circle of persons who may request resumption of proceedings has been expanded, the grounds for resumption and deadlines for this have been supplemented and specified, as well as the regulation of the powers of the administrative court in the reopening proceedings.