Peculiarities of the application of contravention sanctions in

within the administrative liability

Pătrașcu Iulia-Ioana
Penaru Miruna
“Nicolae Bălcescu” Land Forces Academy, Sibiu
patrascuioana32@gmail.com
mirunaioana312@yahoo.com
Scientific coordinator: Assist.Prof. Alexandru STOIAN, PhD

Abstract: The theme is aimed at defining and customizing the scientific terms of contravention
and sanction, as well as the principles on which their application is strengthened. Thus the
offence is an act committed with guilt, and the penalty is the way in which the culprit is liable for
the unlawful acts committed knowingly. In other news in the work are determined the types of
sanctions , the ways in which the contexts in which they cannot be applied because of the lack of
guilt of the person at fault apply.

Keywords: Public administration,contravention,social danger,decision.

1.Introduction
1.1 Defining concepts and customizing them

According to O.G. No. 2/2001 on the legal regime of contraventions, the contravention is in fact
''the act committed with guilt, established and sanctioned by law, ordinance, by decision of the
Government or, as the case may be, by decision of the local council of the municipality, city,
municipality or district of Bucharest, the county council or the General Council of the municipality
of Bucharest.'
Infringement penalties are those penalties which may be imposed on persons who are natural or
legal persons for the offence. In the case-law of the ECHR, the offence is regarded as a criminal
offence, irrespective of the qualification existing in national law. In finding and applying the
infringement penalties, the following principles must be taken into account: legality,
individualisation, personality of infringement penalties, establishment of contraventional sanctions
compatible with the moral-legal conception of society, the uniqueness of the application of
infringement penalties
In accordance with Article 5 of O.G. No 2/2001, two types of infringement penalties are
distinguished, namely: the main and the complementary sanctions. It should be noted that only one
and the same infringement may apply to one and the same infringement and one or more additional
penalties. The penalty laid down must be consistent with the degree of social danger of the offence
committed.
1.2. Main contraventional penalties
1. Warning. It applies where the offence committed is a low-gravity one and consists rather of
a verbal or written warning of the offender to the social danger of the act committed by the person
at fault, supplemented by the recommendation to comply with the legal provisions. It is the
 investigating officer, without imposing a fine, who considers that the offender will not repeat it
again, bringing to the knowledge what legal provision he has breached. Based on Article 7 of O.G.
No. 2/2001 we can confirm that this type of sanction is rather moral in character and is based on
the fact that the guilty person assumes the crime committed and engages in avoiding it in the
future.
2. The contraventional fine. It is, in accordance with Article 8 of the regulation, an
administrative penalty which can be imposed on any infringer, is the most common main criminal
penalty, which has certain advantages: the presence of well-founded criteria for establishing
liability, the possibility of proportionate the penalty between the minimum and maximum limit, a
procedure which is easily enforced. Compared to the criminal fine, the contravention fine does not
entail forfeitures or prohibitions for sanctioned persons, nor is it an antecedent which in any way
influences a future penalty. In accordance with Article 8(2) of O.G. No 1 of the Treaty, the
Commission shall, in accordance with the procedure laid down in Article 18 of Regulation (EEC)
No 2081/92, decide on the application of 2/2001, the minimum limit of the infringement fine is
250,000 lei, and the maximum amount may not exceed : 100,000 lei (in the case of infringements
established by law and order), 50,000 lei (those represented by Government decisions),5.000 lei
(for infringements established by decisions of the county councils/ General Council of Bucharest)
and 2,500 lei (infringements established by decisions of local councils at the level of
municipalities/cities/municipalities/sectors of the capital).
3. The provision of an activity for the benefit of the community can be provided only in
normative acts with a superior legal force (laws and orders of government), being established
alternately with the contraventional fine which can be applied only by the court, can apply only to
natural offenders, except for minors who at the time of the offence were not 16 years of age. The
duration of this penalty must not exceed 300 hours, it may vary between 25 and 150 hours only for
minors between 16 and 18 years of age. This activity is carried out in the field of public services,
for the maintenance of recreational places, parks/roads, the preservation of cleanliness and the
sanitization of localities, the carrying out of activities for the benefit of children's and elderly
homes, orphanages, nurseries, kindergartens, schools, hospitals and other social-cultural
settlements.
At the first trial, the court may grant the offender, at his request, a period of 30 days to pay the fine
in full, at the expiration of the term, if the fine has not been paid, the court replaces it with the
sanction of obligation to perform activities for the benefit community.
1.3 Complementary sanctions for minor offenses
It is found within the framework of Article 5 (1) of Regulation (EC) No 1493/199 (3) of the O.G. ,
mentioned throughout the e.g. They talk about the confiscation of goods intended, used or resulting
from contraventions; suspension/cancellation of the opinion/agreement or even authorisation to
carry out an activity;closure of the establishment where it operates; blocking the budget account;
suspension of the activity of the economic operator; withdrawal of licence/notice for operations
carried out or those of foreign trade, temporary or defined;dismantling of works and bringing the
land into its original state.1

1
Legea nr.50/1991
O.G. nr.55/2002 privind regimul juridic al sanctiunilor prestarii unei activitati in folosul comunitatii si ichisorii
contraventionale,republicata in M.Of. nr.933 din 13 oct. 2004
Sanctions that are part of this typology can be applied only together with a main contravention
sanction and only if the underlying normative act provides for this, specifying also the type of
contravention sanction that can be applied..
2. Application of sanctions for minor offenses
The imposition of sanctions is the responsibility of the ascertaining agent, if he does not
have the right to apply the sanction, the report of the finding shall be sent to the body or
person competent to apply it. The basic condition for the ascertaining agent to be able to
establish the contravention is that of competence, ie the right to exercise such an activity,
and in the field of contraventions, derived from administrative law, one can also discuss a
material competence and a territorial competence. ascertainer must have a preventive role
in the possible scene of a violation of the law. The essential conditions for the exercise of
the duties of such a finding agent are, without a doubt, morality and professionalism.
In applying the contravention sanction, the ascertaining agent or the competent authority
have the obligation to individualize the sanction taking into account a series of elements
provided in art. 21 paragraph (3) of O.G.nr. 2/2001:
1. the social danger of the committed deed;
2. in what context the deed was committed;
3. the manner and instruments of committing the deed;
4. the purpose pursued and the consequence produced by committing the deed;
5. the personal circumstances of the offender;
6. any other data present in the minutes.
If several persons participated in the commission of a contravention, the sanction will be
applied separately. O.G. no. 2/2001 also contains provisions regarding the coverage of the damage
caused by the commission of the contravention deed and, respectively, the confiscation of the goods
intended, used or resulting from the contravention. Confiscation of goods intended, used or
resulting from the contravention is mandatory. According to Article 44 paragraph (9) of the
Constitution, "goods intended, used or resulting from crimes or misdemeanors may be confiscated
only in accordance with the law." After applying the sanction, establishing compensation / ordering
confiscation, the report shall be handed over or communicated in the form copy, the offender, the
injured party and the owner of the confiscated property.
The Romanian contravention legislation regulates the ablation system, namely offering the
possibility to the offender to pay on the spot or within maximum 48 hours from the closing date of
the report, half of the minimum fine provided in this normative act. The ablation can also be applied
when the contravention fines or cumulated as a result of the finding in the minutes of several
contraventions, the offender having the possibility to pay half of the minimum fine provided by the
normative act for each of the contraventions, without exceeding by summing all the maximum
provided for the most serious contravention of them.
The framework normative act for administrative-contraventional liability is represented by O.G. no.
2/2001 regarding the legal regime of the contraventions, with the modifications and completions
appeared later, which through the provisions of art. 51 para. (2) repealed Law no. 32/1968, as well
as other contrary provisions.
The sanction is applied within the limits provided by the normative act and must be in accordance
with the elements provided in article 21 paragraph (3) of O.G. set out above (purpose, tools,
context, etc.)
The operation of applying the contravention sanctions must comply with the criteria provided
by art.21 of O.G. no. 2/2001, and the agent who sanctions and applies the sanction must verify the
limits of this sanction, to communicate the minutes to the interested persons in order to open the
possibility of appeal of the complaint.
The contraventional character of the deed can be removed as a result of a state, circumstances or
situations whose incidence during the commission of the deed leads to the impossibility of
establishing guilt (essential element in establishing the contravention). Thus, in accordance with
art.11 paragraph (1) of O.G. no.2 / 2001 this type of character can be avoided based on self-defense,
state of necessity, physical, moral and mental constraints, also based on a fortuitous case, but also
on irresponsibility, state of complete involuntary intoxication, etc.
The lack of guilt, which is a primary element, attracts in the mentioned situations the non-
application of contraventions. At the same time, in any situation in which the cases remove the
contravention character of the deed, the finding is made only by the court.
The contravention liability appears if the person commits a contravention and at the same time
fulfills all the conditions to be liable for a contravention and is not liable for the passage of a period
of time in which no sanction has been applied or executed.
Based on O.G. no. 2/2001 regarding the prescription, we can distinguish two typologies of
prescriptions, namely that of the application of the contravention sanction and that of the execution
of the contravention sanction.
The prescription of the application of the contravention sanction represents the finalization of the
conflict contravention legal relationship, as the case has not been solved in a certain period of time
from the commission of the deed. According to art.13 paragraph (1) of O.G. no.2 / 2001 the term is
6 months.
The prescription of the execution of the contravention sanction intervenes at most 2 months from
the application of the sanction only if during this period the report of the contravener was not
communicated. In this case, the contravention sanction has been applied, but can no longer be
enforced because a certain period of time has elapsed..2
2.1 The ascertaining agent
In accordance with art. 15 paragraph (1) of O.G. no.2 / 2001, the contravention is ascertained on the
basis of a report concluded by the specific persons pre-establishing the normative act that
establishes and sanctions the contravention, they are called ascertaining agents.
The ascertaining agent is the competent body or person that can determine the commission of the
contravention on a certain branch of activity. Thus, based on Article 15 paragraph (2) of O.G. no.
2/2001 we can distinguish the following ascertaining agents: mayors; officers and non-
commissioned officers of the M.A.I., specially empowered, persons empowered for this purpose by
ministers and other leaders of central public administration authorities, prefects, etc..
2
I.Alexandru, M. Carausan, S.Bucur,op.cit.,p.411.
 3. Conclusion
Thus, based on the documentation made and the related legal basis, we can see how the illicit deeds
committed with guilt by a certain person are held accountable, but also the particularities by which
he cannot answer before the law. In conclusion, sanctions increase depending on the complexity
and gravity of the facts, but also do not violate representative principles. .

Bibliography
1. Dan Constantin Mâță, Administrative Law, Bucharest, Universul Juridic publishing house, 2018,
p.215-218;
2. Anton Trăilescu, Administrative law, special part, Bucharest, C.H.Beck Publishing House, 2019,
p.234
3. Dana Apostol Tofan, Administrative Law, volume II, Edition4, Bucharest, C.H.Beck Publishing
House, 2017, p.383-385, p.427-434
4. Verginia Vedinaș, Theoretical and practical treatise on administrative law, volume II, Bucharest,
Universul Juridic Publishing House, 2018, p. 456-464
5. O.G. no. 2/2001.