NL: Update on administrative fines

 

In the past six months, interesting developments have occurred in the field of Dutch administrative penalty law. For example, it has become clear that in the event of an administrative fine, the person concerned has the right to assistance from counsel during an interrogation, and this right must be communicated by the administrative body prior to the interrogation. This practice aligns more closely with the stricter legal protection of a suspect in criminal law. This is beneficial: the amount of administrative fines imposed has increased in recent years, and the measure is also being used for increasingly serious violations.

These new developments are addressed in this contribution. Additionally, further insight will be provided into already existing (but no less relevant) aspects of punitive administrative law, of which everyone who is (potentially) confronted with administrative fines should be aware.

Cautionary duty and right to remain silent

Not new, but good to know is that the person to whom an administrative fine (or other punitive sanction) will be imposed is entitled to the right to remain silent. This follows from Article 6 of the ECHR and Article 5:10a of the Dutch General Administrative Law Act (“Awb”). This right to remain silent entails that one cannot be forced to make incriminating statements about oneself. When it is clear that questions are being asked aimed at imposing an administrative fine, the person involved is not obliged to answer these questions.

The right to remain silent applies under Article 6 ECHR from the moment there is a criminal charge. However, punitive administrative law specifies the right to remain silent can be invoked when someone is interrogated 'with a view to imposing a punitive sanction on them,' such as an administrative fine.
When the right to remain silent applies, the administrative body must also grant 'caution.' This means informing the person involved that they are entitled to remain silent and are not obliged to answer questions.

Right to assistance and duty to inform

Under Article 6(3)(c) of the ECHR, a suspect against whom criminal prosecution has been instituted has the right to assistance by counsel of their choice and must be informed of this right before an interrogation.

Both the Supreme Court (September 6, 2024, ECLI:NL:HR:2024:1135) and the Administrative Jurisdiction Division of the Council of State ("Division") (December 24, 2024, ECLI:NL:RVS:2024:5293) have ruled that the right to assistance by 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 during an interrogation, at the latest at the moment caution is provided.
The right to assistance by counsel includes both the right to consultation beforehand and the right to assistance during the interrogation. A 'counselor' does not necessarily have to be a lawyer (advocaat); in administrative law, this is not a requirement.

From what moment does the right to assistance apply?

It may happen that questions are asked or investigations take place without it being clear whether a sanction will be imposed and, if so, what sanction it will be. This is often the case during an investigation by a regulatory body. At that moment, there is no right to interrogation assistance (and also no cautionary duty or right to remain silent).

The right to assistance by counsel begins at the moment when the administrative body must also grant caution under Article 5:10a of the Awb, namely when someone is interrogated with a view to imposing an administrative fine on them. It is required that 'according to objective standards a reasonable observer' can determine that such an interrogation is taking place. Incidentally, an 'interrogation' is generally understood to mean an oral questioning.
The Division's ruling further indicates that the right to assistance during an interrogation (and the right to remain silent) can already exist before there is a criminal charge. Typically, a criminal charge occurs when the administrative body issues a notice or intention to impose a fine, but this can be earlier in exceptional cases.

Consequences of not informing?

When the right to assistance by counsel is not communicated prior to an interrogation, this results in a default by the administrative body. However, this does not necessarily mean that the evidence obtained during the interrogation must be excluded.

The consequence of the omission depends on whether there has still been a fair trial, considering the process as a whole. Various circumstances can play a role in this. Among other things, it is relevant whether the person to whom an administrative fine has been imposed has subsequently received assistance from counsel at a later stage in the procedure. Other relevant aspects include the particular vulnerability of the person involved, the quality of the evidence or the circumstances under which it was obtained, the ability to contest the evidence, and whether a statement was immediately withdrawn or amended.

Do you have questions about the above? Are you faced with an administrative fine or investigation by a regulatory body, for example under 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? If so, please contact one of the lawyers of our administrative law department.

 

For further information, please contact:

Ramon Ridder, Partner

Labré advocaten, Amsterdam

e: ramon.ridder@labre.nl

or

Laurien Huisman, Lawyer

Labré advocaten, Amsterdam

e:  laurien.huisman@labre.nl

 

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