by Ana Maria CALANCEA and Teodora LUCA – Mihai Luca Law Office
(Continued from the previous issue)
The penalty applies within the limits provided by the normative act and must be proportional with the social danger degree of the deed committed, taking into account the circumstances of the deed, the modality and means of commission, the purpose intended, the consequences produced, as well as the personal circumstances of the perpetrator and the other data recorded in the minutes.
The main contraventional penalties are:
Binding the perpetrator to community service
The lower limit of the contraventional fine is 25 lei, and the maximum limit cannot exceed:
a)100.000 lei, for the contraventions established by law and ordinance;
b)50.000 lei, for the contraventions established by Government resolutions;
c)500 lei, for the contraventions established by resolutions of the county councils or of the Bucharest Municipality General Council;
d)2500 lei, for the contraventions established by resolutions of the local councils of communes, towns, cities and districts from the Bucharest municipality.
The amounts coming from the fines applied to the legal entities
in accordance with the legislation in force will become integral income to the state budget, except those applied, in accordance with the law, by the authorities of the local public administration and the traffic fines, which become integral income to the local budgets of the units/administrative-territorial units where the perpetrator is domiciled or has its registered office, as the case may be.
Complementarily, the acknowledging body may also dispose the application of the following penalties:
a) seizure of the goods intended for, used or resulted from contraventions;
b) suspension or cancellation, as the case may be, of the notice, approval or authorization for the performance of an activity;
c) closing the unit;
d) blocking the bank account;
e) suspending the activity of the economic agent;
f) withdrawing the license or advice for certain operations or for exterior trading activities, temporarily or definitively ;
g) annulment of the works and bringing the land to the initial condition.
COMPLAINT OF VIOLATION
The contravention acknowledgement and penalizing minutes can be challenged within 15 days from the delivery or from the communication of the minutes.
The damaged party may file a complaint only in what regards the compensation, and the one owning the seized goods, other than the perpetrator, only in what regards the seizure measure.
The 15-day term is a deterioration period so that, upon its expiry, it leads to the loss of the right of filing the complaint of violation.
Under the penalty of cancellation, the complaint of violation must contain all the elements of a summons, as they are provided by art. 194 Civil procedure code (elements of identification of the parties, description of the object of the claim, description of the reasons of fact and of law it is established on, showing the evidence supporting each head of claim and the signature of the party).
The claim is submitted in as many counterparts as needed for the communication and one counterpart for the court.
Exceptionally, the petitioner may be put back within the term of formulation of the complaint of violation, only if he proves that the delay is due by some justified reasons, as provided by art. 186 Civil procedure code.
The complaint of violation will be submitted at the Law court in whose circumscription was committed the contravention. If the complaint is submitted to another law court, the complaint will not be rejected, but it will be forwarded, administratively, to the competent court.
With regard to the extent of the competence of the law court, we mention that the law court in whose circumscription was committed the contravention is competent to verify the application and execution of the main and complementary contraventional penalties. Thus, the court has the competence to analyze the legality and the rationality of the minutes in the meaning of establishing whether the application of the contraventional penalties was legal and sound.
Therefore, the court will not be able to apply contraventional penalties if they were not mentioned in the contents of the penalizing act, nor to re-classify by law the contraventional deed.
The law court will set the hearing term, which will not exceed 30 days, and it will dispose the summoning of the perpetrator or, as the case may be, of the person having formulated the complaint, of the body having applied the penalty, of the witnesses indicated in the minutes or in the complaint, as well as any other persons capable to thoroughly contribute to the settlement of the case.
The competent court in settling the complaint, after having verified whether the complaint was submitted in due time, hears the person having formulated it and the other persons summoned, if present, administrates any evidence provided by the law, necessary in view of verifying the legality and the rationality of the minutes, and decides on the penalty, compensation established, as well as on the measure of seizure.
If the petitioner is dissatisfied with the answer given by the First Instance court, he can only make an appeal to the resolution by which the complaint was settled, unless the law provides otherwise. Until the final settlement of the complaint of violation, the effects of the minutes are suspended by law.
The unchallenged contravention acknowledgement and penalizing minutes or the final judicial resolution, by which the complaint of violation was rejected, represents an enforceable title lying at the basis of the application of the penalizing measures.