Newsletter
MOJ DRAFTS ADMINISTRATIVE PUNISHMENTS LAW
The Ministry of Justice (MOJ) is currently pre-paring a draft Administrative Punishments Law. The law will set forth general principles regard-ing administrative punishments, in order to ad-dress the current lack of consistency in sentenc-ing standards and procedures.
The law, as proposed, applies only to adminis-trative punishments such as fines or confiscation imposed for breach of duties under administra-tive laws. It does not apply to criminal punish-ments under administrative laws. The law is also defined as a law of general application, so that in cases where specific provisions of other laws apply, the latter takes precedence.
Because administrative punishments impinge on civil rights, the draft provides that an act may be punished only if it contravenes explicit provi-sions of laws or local statutes in force at the time the act is committed. To comply with the prin-ciple of no penalty without responsibility, the conditions for responsibility, and capacity for responsibility, of persons having duties under administrative laws are also defined. For exam-ple, an act may not be punished if it was not in-tentional or negligent; nor if it was committed by a person under the age of 14, or a person lacking the mental capacity to judge the consequences of his actions; nor if it was committed in justifiable self defense or to counter a dangerous emergency situation.
To close loopholes in sanctions provided else-where, the draft provides that if the perpetrator of an illegal act, or another person, has gained benefits from such act but is not subject to an administrative punishment, then the benefit ob-tained, or a sum equivalent to its monetary value, may be reclaimed from such person, to prevent their unjust enrichment.
Based on the principle that the same act cannot be punished twice, the draft provides that where a single act breaches both criminal and adminis-trative laws, priority is to be given to penalties under the criminal law, and an act already pe-nalized under criminal law cannot be further punished by an administrative fine. But other types of administrative punishments, such as suspension of licenses or orders to cease trading, are different in nature and may still be imposed.
To ensure that proceedings conform to the prin-ciples of fairness, openness and democracy, the draft follows the Administrative Procedure Law in providing that a person must be given an op-portunity to defend himself by stating his case and presenting favorable evidence.