In the so-called administrative disciplinary proceedings it is where economic sanctions called " fines " are imposed. It is said that in such cases the right of defence is almost null because the Administration is judge and party. This leads in many cases, that after receiving a fine, to desist from any defence, pay and forget about it . We may recall that there are other type of sanctions that are not pecuniary (such as loss of driving license points) . But today we will talk about fines.
When a fine is received, we have several possibilities, including the chance of prompt payment , that is, accept it and pay the fine reduced. The payment reduction means acceptance of the fine, which can not be appealed through administrative proceeding, irrespective of appealing before Courts within the period prescribed for it. In any case, before taking a decision , after the initiation of the sanction proceeding, it is recommendable to review the notice of the fine to see if it is vitiated by formal errors (error in the name , ID number, plate number ) and consult a lawyer to organise a possible defense.
The sanction proceeding begins with the notification of the fine. In some cases, being unable to perform personal notification the Administration enacts the notice thorugh edicts. This type of notification could be null and void if not all the previous steps have been used up. In general, the notification is made by certified mail with returned receipt requested, or by traffic officers or by written complaint. With new technological advances, the publication of edicts are allowed thorugh the electronic gazette board called TESTRA (Edictal Traffic Fines) .
In the case of notification by post with returned receipt requested, it should be noted that the Administration should include in the file the receipt signed by the sanctioned person or someone representing him, because otherwise the notice would be null and void. Moreover, the Administration is required to perform two attempts of notification (as established by the Supreme Court) and if the second one is unsuccessful because the person is not located at home (or any address known to the Administration) then it would be applicable thenotices in the official bulletin. Failure to follow these steps, the notification could be null.
In terms of procedure, it must be adjusted to the rules established for that purpose and that are governed, generally by the Law on General Administrative Procedure (LRJAP-PAC) and specifically in the Regulation of Procedure for the Exercise of the Sanctioning Power (RPEPS). It is initiated by the notice of starting of disciplinary proceedings, later comes the stage of allegations (or hearing stage). It is necessary that this allegations process is respected because otherwise the sanctioned person would be defenseless. At the request of the person concerned (or Administration, where applicable) the evidence period, which could be documentary evidence or a witness evidence (for example, the statement of agents), is opened. It should be noticed that the rejection of any evidence by the Administration, do not set "per se" helplessness (so stated the Supreme Court). The next step is the "Proposal" resolution to be notified with the the amount of the fine. We my recall that if the allegations period has precluded without exeercising such right, the Administration pass directly to the Proposal. The Proposal cannot be appealed (it is still not the final penalty) but we issued (by a different and hierarchically superior body that made the proposal) is issued. The Final Resolution could be administrative objected.
The administrative sanction (fine) is an administrative act that acts against a behaviour in breach of law . This legal rule must be provided in a delimited or "typical " punishable offense conduct. The lack of “tipificación” (typificaton) means that the administration would be imposing a sanction that does not correlate with an offense applicable to the case and this would entail a reason to object it . This way is understood by the Supreme Court, for example judgements of 14 Nov.1994 and 1 Dec.1994 among others.
The motivation of the sanction is another reason to consider in relation to the nullification. If the contents of the sanction does not contain a proper "motivated" justification satating why such a sanction is imposed, it can be "attacked" by the alleged sanctioned party, whether by way of allegations, administrative appeal or further contentious-administrative appeal.
Similar to the case of motivation is the proportionality of the sanction, which means: when the authority sets the amount of the fine is necessary to justify the reasons by which the fine is imposed in a higher or lesser amount. That is why we say that graduation is linked to motivation. Sometimes, through legal resources, we do not eliminate the penalty in full, but at least we can reduce it.
Connected to the "typicity" to which we have already referred, that is, the principle that any infringement must be set out in a regulation (principle of typicity), is not possible for the Administration to apply for a penalty that at the date of commission was not sanctionable. For example, if the penalty for an offense in 2013 was 200 euros and in early 2014 the fine became 100 euros, the person committing the offense in early 2014 can not be punished with 200 euros but 100 euros.
Bear in mind that the administration has limited time to process the disciplinary proceedings and to enforce payment of the penalty because there is an expiring time. The deadline for issuing a final resolution to be reported is regulated by each particular procedure is generally 6 months (if the resolution is issued in time but notified after deadline the file would have expired) . And the deadline for requesting the payment of the infringement also has a time limit , usually , 6 months for minor offences , 2 years for serious offences and 3 years for very serious offences. The period begins to run once the final resolution is becomes not appealable .
If our administrative appeal is dismissed , we may go to the contentious-administrative proceeding. Likewise, we may go to contentious-administrative Courts in case of paying the fine in advance so that it is reduced 50 %, loosing the opportunity to do the allegations, going direct to the judicial review.