NL: Update on administrative fines

 

Over the past six months, there have been interesting developments in the field of administrative penalty law. For example, it has become clear that in the event of an administrative fine, the person concerned is entitled to the assistance of a counsel during an interrogation and that this right must be communicated by the administrative body prior to the interrogation. This is closer to the stricter legal protection of a suspect in criminal law. This is harmless: the amount of administrative fines has only increased in recent years and this measure is also used for increasingly serious violations.

The new developments are discussed in this contribution. Further light will also be shed on already existing (but no less relevant) aspects of administrative penalty law, of which everyone who is (potentially) confronted with administrative fines should be aware.

Duty of causation and right to remain silent

Not new, but it is good to know that the person on whom an administrative fine (or other punitive sanction) will be imposed has the right to remain silent. This follows from Article 6 of the ECHR and Article 5:10a of the General Administrative Law Act. This right to remain silent means that one cannot be forced to make incriminating statements about oneself. If it is clear that questions are being asked with a view to imposing an administrative fine, the person concerned is therefore not obliged to answer these questions.

The right to remain silent applies under Article 6 of the ECHR from the moment that there is a criminal charge. However, punitive administrative law specifies that the right to remain silent can be invoked when someone is interrogated ‚with a view to a punitive sanction to be imposed on him‘, such as an administrative fine.

When the right to remain silent applies, the administrative body must also grant ‚causation‘. This means that a person concerned is informed that he has the right to remain silent and that he is therefore not obliged to answer questions.

Right to assistance and obligation to provide information

Pursuant to Article 6(3)(c) of the ECHR, a suspect against whom criminal proceedings have been instituted is entitled to the assistance of a counsellor of his or her choice and must be informed of this right prior to an interrogation.

Both the Supreme Court (6 September 2024, ECLI:NL:HR:2024:1135) and the Administrative Jurisdiction Division of the Council of State („Division“) (24 December 2024, ECLI:NL:RVS:2024:5293) have ruled that the right to assistance by a counsel during an interrogation now also applies in punitive administrative law. The administrative body is also obliged to inform the person concerned about the right to assistance in interrogation, at the latest at the time when the warning is given.

The right to assistance in interrogation by a counsellor includes both the right to consultation beforehand and the right to assistance during interrogation. A ‚counselor‘ does not necessarily have to be a lawyer, this is not a requirement in administrative law.

From what point are you entitled to social assistance?

It may happen that questions are asked whether an investigation is taking place without it being clear whether a sanction will be imposed and, if so, what sanctions will be imposed. This is often the case with an investigation in the context of supervision. At that time, there is no right to assistance in interrogation (and for that matter, no obligation to keep a secret or the right to remain silent).

The right to assistance by a counsel commences at the time when the administrative body must also provide causation pursuant to Article 5:10a of the Awb, namely at the time when someone is questioned with a view to an administrative fine to be imposed on him. It is required that it can be established ‚according to objective standards by a reasonable observer‘ that such an interrogation has taken place. Incidentally, an ‚interrogation‘ is in principle understood to mean an oral interrogation.

It also follows from the Division’s ruling that the right to assistance in interrogation (and the right to remain silent) can already exist before there is a criminal charge. As a rule, a criminal charge occurs at the time the administrative body issues a notice or intention to impose a fine, but this can also be earlier in exceptional cases.

Not communicating the consequences?

If the right to the assistance of a counsel is not communicated prior to an interrogation, this will result in the administrative body being in default. However, this does not necessarily mean that the evidence obtained during the interrogation must also be excluded.

The consequence of the omission depends on the answer to the question of whether there has been a proper process, looking at the process as a whole. Various circumstances can play a role in this. It is important, among other things, whether the person on whom an administrative fine has been imposed has received assistance from a lawyer at a later point in the proceedings. Other relevant aspects include the particular vulnerability of the person concerned, the quality of the evidence or the circumstances under which it was obtained, the possibility of challenging the evidence, and whether a statement was immediately withdrawn or amended.

Do you have any questions about the above? Are you faced with an administrative fine or investigation by supervisors, for example on the basis of the Housing Act, the Commodities Act, the Alcohol Act, the Environment and Planning Act, the Foreign Nationals Employment Act, the Working Conditions Act or other regulations? Please contact the lawyers of our administrative law department.

 

For further information, please contact:

Ramon Ridder, Partner

Labré advocaten, Amsterdam

e: ramon.ridder@labre.nl

t: +31 20 3052030

 

#WLNadvocate #TheNetherlands #Amsterdam #lawfirm #law #legal #corporatelaw #network #administrativelaw #business #administrativefine #SupremeCourt