On 1 January 2019, the administrative criminal law underwent major changes. In addition to adapting the law to several EU directives governing the rights of accused parties and simplifying provisions on the rights of public security bodies, the 2018 Amendment governing administrative criminal law (Federal Law Gazette I 2018/57) incorporated the principle of "advise rather than punish" in administrative criminal proceedings and strengthened the presumption of innocence principle.
The former legal position in administrative criminal law was that negligence was to be ipso jure assumed when the occurrence of a damage or risk was not an element of the administrative offence. Although this assumption of guilt could be refuted by the accused this was extremely difficult in actual practice. The implementation of Section 5 (1a) of the Administrative Penal Act (VStG) eliminates the assumption of guilt for administrative offences punishable by a fine in excess of EUR 50,000.00. According to the new legal situation, it is the government agency which needs to prove guilt rather than the accused party to prove their innocence.
Closely linked to this new regulation is Section 9 VStG which regulates the responsibility of legal entities regarding compliance with administrative rules and the establishment of an effective monitoring system, the criteria for which are extremely stringent under the rulings of the Supreme Administrative Court. The legislative records on Section 5 (1a) VStG stipulate that – contrary to previous rulings – no fault is to be assumed when the responsible party proves that it has set up and run a "quality-assured" structure which is periodically checked by external investigations or internal (automated) monitoring. Such a quality assured structure would be ensured when a reliable staff member is trained and charged with monitoring tasks. Suitable measures that preclude a criminal offence and punishment of the responsible body would be the four-eyes principle and ongoing spot checks. However, since the wording of Section 9 VStG was not changed it remains to be seen whether court rulings will follow this path.
Advise rather than punish
The 2018 Amendment moreover implemented the "advise rather than punish" principle to administrative criminal proceedings. Analogously to Section 371c of the Industrial Code, the new Section 33a VStG stipulates that the government agency first needs to advise the accused party "with a view to ending the criminal conduct as effectively as possible" and request in writing that the accused achieves a state of compliance with administrative provisions and orders within a reasonable period. If the accused complies with the written request in due time there will be no further prosecution for offences which have been thus repaired, and criminal proceedings are to be discontinued. Alternatively, the accused may be admonished on special preventive grounds.
Advising is given priority on condition that the importance of the legal interest protected under criminal law, the intensity of the impairment caused by the offence and the accused's guilt are of relatively little importance. Moreover, under Section 33a (5) VStG, the "advise rather than punish" principle must not be applied to:
- violations of administrative regulations which require intent in order to be punishable;
- violations which were already subject of advice and written admonishment by the government authority in the past three years or where relevant administrative fines were imposed and have not yet been erased from the criminal record;
- violations which cause the imposition of temporary coercive and protective measures;
- violations which entail the revocation of authorizations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.