29 September 2022

5 things you need to know if you get an administrative fine

Category: Administrative law

An administrative fine can be imposed on you by a municipality (or other administrative authority). The fine for illegally renting your home in Amsterdam to tourists, for instance, amounts to € 21,750. And both private individuals and companies can be fined. An administrative fine for illegal flatsharing are also very high. A fine imposed by the police is usually a criminal fine – in which case different rules apply. This blog post covers five rules of thumb you should keep in mind if you are fined by the authorities.

1. If an administrative fine is imposed on you, you are not obliged to cooperate

If the conduct of an enforcing body or inspection authority leads you to suspect that they will impose an administrative sanction, then you are no longer obliged to provide information about the offence for the purpose of this impending sanction. According to the so-called nemo tenetur principle (Art 14(3)(g) ICCPR), no one is obliged to incriminate themself or confess. In the Funke judgment (Dutch) of the ECHR (ECHR 25 February 1993, NJ 1993, 485), the European Court of Human Rights found that the right to remain silent and the right not to incriminate oneself is included in the “fair trial” principle under Article 6(1) of the European Convention on Human Rights. As soon as someone realises they are being questioned about an offence that could lead to the imposition of an administrative fine, their right to remain silent is “activated”.

However, contrary to the right to remain silent, there is the obligation to provide information to administrative authorities under administrative law (the duty to cooperate; Art. 5:20 of the Dutch General Administrative Law Act  [Algemene wet bestuursrecht or Awb]). This raises the question of where the duty to cooperate ends and the right to remain silent begins. The answer is: that moment when the actions of the administrative body lead you to reasonably conclude that you are under suspicion of having committed an offence with the possible consequence of an administrative sanction. From that moment on, you are not, or no longer, obliged to make any statements about the alleged offence that could lead to a fine.

2. The fine is unjustified if you cannot be blamed for the offence

Art 5:41 Awb provides that no fine may be imposed if the offender cannot be blamed for the offence. The same is true in the case of an administrative fine: no punishment without fault. Therefore, if a fine is imposed, you must prove that you are not guilty of the offence and that you cannot be held culpable for it – for example, by providing a justification. Let’s say someone has to commit an offence in order to prevent an accident. Oddly, the authorities are not required to prove culpability, but the penalty decision must show that the person involved committed the offence. This is known as “perpetratorship” (daderschap). If you are accused of an offence, you must therefore dispute the culpability of the act, although this can sometimes prove to be quite difficult. Partial culpability for the offence may lead to a partial mitigation of the fine. If you find yourself in such a situation, it is advisable to consult a lawyer, because there are many further nuances regarding this principle that have been formulated in case law.

3. You have the right to remain silent as soon as you are regarded as an offender/suspect

When does the right to remain silent (Art. 5:10a Awb) apply, and when the duty to cooperate (Art. 5:20 Awb)? As a person involved, you will likely notice when an enforcing body believes that you have committed an offence and are therefore a suspect. If you are questioned or heard as a suspect or are being interrogated by an inspection authority, you can invoke your right to remain silent and call your lawyer. If you are heard as a witness, you must invoke your obligation to confidentiality (under your professional rules) and refuse to answer. The authority can only demand cooperation if it is reasonably necessary for the exercise of supervision. Article 5:10a Awb provides for an obligation to caution prior to the interrogation, because the person involved is entitled to remain silent if and as soon as they are interrogated “with a view to imposing a punitive sanction on him/her”. This caution means that the authority informs you that you are not obliged to answer. Compliance with the duty to cooperate pursuant to Article 5:20(1) of the Awb is assessed on the basis of facts and circumstances that occurred after the action. A request for cooperation must be complied with upon first request. Sometimes you must carefully weigh up whether cooperation could create problems for you.

4. Respond to the fine report or offence report

If an inspection authority or enforcing body has drawn up a fine report, it usually intends to impose a fine. You can also ask for the details of the person representing the authority (Art 5:49 Awb). In that case, a decision on the imposition of an administrative fine must be made within 13 weeks (Art 5:51 Awb). The intention to impose a sanction must first be announced, unless there is an urgent situation that demands immediate action or is necessary to maintain public order. The report is not a decision as yet, but its findings and the conclusion of that notice or report should be carefully checked. Sometimes the fine report contains arguments in support of a fine and draws incorrect conclusions or makes incorrect assumptions. So you must always respond to a report or notice if it does not accurately represent all the facts and circumstances. After all, the report is used as a statement of grounds for the imposition of the fine by the authority that wants to impose the fine.

5. You always have the right to submit a statement against an intention to impose a fine: take advantage of it!

If the enforcing body believes that an offence has been committed that is subject to a sanction, the offender will receive written notification of their intention to (for example) impose a fine. You can then respond to it and submit a statement within two weeks. It often makes sense to have a lawyer specialising in administrative law draft the statement in order to persuade the authority to waive the fine. The decision to impose a fine is followed by collection with a collection order. The statement can also be handed over at a meeting with the enforcing body. The supervisor assesses the submitted statement against the intention to impose a fine. Based on the statement, the supervisor can decide not to impose sanctions or to mitigate the fine. If the intended sanction is imposed nonetheless, the company will receive a letter stating that a fine is being imposed and how high it is; this is the decision to fine or the fine order. When a fine has been imposed by an authority, the offender will receive a giro collection form from the Central Fine Collection Agency (CJIB). A notice of objection can be lodged against a fine and suspension of the decision can be requested within six weeks. Since a legal procedure then comes into effect, it makes sense to consult Blenheim’s administrative law team.

If you have any questions about administrative fines, please feel free to contact Blenheim without obligation.