The proposed introduction of Article 13A of the Interpretation Act, which seeks to lay down parameters that distinguish administrative fines, which remain to be so considered, from those which, by reason of their severity, “may be interpreted as constituting a punishment of a criminal nature” leading to a criminal offence, has provoked some reaction.

It seems that the main contention centres around the premise that the latter ‘stiff’ administrative fines should be solely imposed by courts of law and not by public authorities. The justification for this is that, according to the Maltese constitution, “criminal sanctions” can only be imposed by a court of law presided over by magistrates or judges.

While this is certainly true, what is at stake here is ‘administrative fines’  being called so since these are issued by regulatory authorities within the public administration. Focus, therefore, should not be directed at who, at the end of the day, is entitled to issue these fines  but, rather, what are the legal ramifications once these fines are issued.

Thus, the amending bill (198) of the Interpretation Act does well to state in no unclear terms that an administrative fine or sanction could bear a criminal character depending on the “nature of the infringement in respect of which that fine is imposed” as well as “the nature and severity thereof”.

Essentially, this definition borrows heavily from the so-called Engle criteria that have been endorsed by both the CJEU and the ECHR over the past years. Setting a codified threshold instead of leaving it up to individual judges to decide on the interplay between the administrative-criminal realms is in itself already a big step forward.

Having said this, there still could be an issue if the specific instances that are deemed to constitute a high degree of ‘severity’ are not qualified. In other words, it should not be left to the whims of the administration or the likes of the courts to establish what is ‘severe’ and what is less. This is because, as I shall discuss shortly, once an administrative fine issued by a public authority is construed to constitute punishment of a criminal nature, the person involved could claim a right not to be punished a second time for the same offence before a court of law.

It seems, however, that a second issue cropped up. It has been alleged that a person on whom a stiff administrative fine is inflicted by a public authority would not be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. To me, this statement is unclear. There is nothing to suggest that, from now on, a person who feels aggrieved by a decision that leads to his being served with an administrative fine by a public authority cannot seek remedy before judicial or quasi-judicial organs.

As things stand, the decisions of seve­ral incumbent regulatory authori­ties to issue administrative fines are already susceptible to an appeal on both points of law and fact before the Administrative Review Tribunal (ART) (established by the Administrative Justice Act). Even so, according to Article 22 of this Act, all ART decisions can be ultimately appealed to the Court of Appeal sitting either in its superior or in its inferior jurisdiction.

Moreover, the civil court enjoys residual jurisdiction to review the legality of any administrative act regardless.

The decisions of several incumbent regulatory authorities to issue administrative fines are already susceptible to an appeal- Robert Musumeci

This means that the ‘arbitrary’ imposition of a fine by a public authority can, therefore, be always challenged before an independent judicial or quasi-judicial organ. Likewise, the exercise of power for an improper purpose in imposing such fines can be disputed before a court or an independent tribunal. Similarly, an error of law incurred by a regu­latory authority due to it acting outside jurisdiction can also be questioned before an independent judicial or quasi-judicial organ. 

When, in deciding to impose an administrative fine, the public authority takes account of factors that it ought not have taken into account or fails to take account of factors that it ought to have taken account of or the decision is so unreasonable that no reasonable authority would ever consider imposing it, the decision of the public authority can be likewise annulled by a tribunal or a court, as the case may be.

However, the proposed Article 13A of the Interpretation Act is only the first, yet very important, step. What is perhaps even more important, but, for some reason, seems to have escaped the current controversy, is whether independent criminal proceedings could also be resorted to by the executive police on a person who is served with an administrative fine now deemed to equate to a criminal offence.

Should the police be still in a position to institute independent criminal proceedings before a court under the premise that such proceedings are ‘a complementary response’ to the same socially offensive conduct? But what about the right not to be punished twice for the same offence, which is a fundamental principle of criminal law (ne bis in idem rule)?

What about the evidence gathered in the first set of proceedings (presumably, the first proceedings would be those informally set forth by the regulatory authority) being transferred to the second (the court where formal criminal proceedings instituted by the police are held) notwithstanding administrative and criminal proceedings being subject to different rules and frameworks (among them the presumption of innocence and the right to remain silent)?

In reality, this is where the current state of ‘legal’ uncertainty lies.

Such a delicate situation could only be averted by not pulling the contravenor in court unless he decides not to go by the first proceedings and all judicial remedies available to him are exhausted. This also means that the specific instances where administrative fines may be interpreted as constituting a punishment of a criminal nature should be well defined through publicly available guidelines and protocols issued by the respective regulatory entities.

In that way, both regulatory authorities and the executive police may act in a foreseeable manner knowing when to take or not to take action.

Robert Musumeci, Ph.D. in law from the University of Malta.

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