by Ana Maria CALANCEA and Teodora LUCA – Mihai Luca Law Office
I. GENERAL CONSIDERATIONS REGARDING THE CONTRAVENTION
A contravention represents a harm brought to certain social relations, with an average danger degree, being provided and penalized by the administrative and contravention law norms. In our legislation, these categories of illicit facts are established and penalized by normative acts issued by the competent state bodies, and the matter of differentiating the degree of social danger is established, as a rule, on the occasion of their elaboration.
According to the legislation in force, it is a contravention the deed committed with guilt, established and penalized by law, ordinance, Government resolution or, as the case may be, resolution of the local council of the commune, town, city or district from the Bucharest municipality, of the county council or of the General Council of Bucharest Municipality.
Committing a contravention draws the perpetrator’s liability, in accordance with the dispositions provided by the normative acts establishing and penalizing the contraventions.
The first step, which, practically, launches the process of intervention of the contraventional liability is the acknowledgement of the contravention. The acknowledgement of the contravention represents the first procedural phase regarding the contraventional liability, and it is given in the competence of certain persons provided in the normative act regulating the contraventions in a certain activity field. These persons are generically called official inspectors. The contravention is acknowledged by a minutes executed by the official inspectors.
The contravention acknowledgement minutes enjoys the presumption of trueness and authenticity of the mentions made by the official inspector by his own sensations, the minutes making full proof until otherwise proven, of the facts acknowledged, being in the petitioner’ charge (the one challenging the minutes) to make such proof.
II. THE CONTRAVENTION ACKNOWLEDGEMENT AND PENALIZING MINUTES
The contravention acknowledgement and penalizing minutes must contain two categories of mentions, according to the law:
– Compulsory mentions, whose inexistence draws the voidness of the minutes. These mentions are: the name, forename and quality of the official inspector, the perpetrator’s name and forename, and, in the case of a legal entity, its name and registered office, the deed committed and the date of commission, the official inspector’s signature.
– Other mentions, whose absence is not penalized with the total voidness of the minutes.
Upon concluding the minutes, the official inspector has the obligation to inform the perpetrator of his right of making objections with regard to the contents of the acknowledgement act. The objections are acknowledged distinctly in the minutes, in the section Other mentions, under the penalty of the voidness of the minutes.
The contravention acknowledgement minutes marks the existence of the contraventional juridical report, which will lie at the basis of the entire contraventional procedural activity, until its extinction, being the act by which it is launched and to which will be reported the activity of liability draw of those having committed the contraventions.
It represents the only evidence of the contravention committed before the penalizing body, the court of the execution body, and, also, it represents the act submitted to judicial control.
Once having acknowledged a violation of the legal dispositions, the official inspector must proceed with its acknowledgement, first establishing whether the respective deed is a contravention or a crime, based on the facts observed in person.
Then, he will proceed with the establishment of the perpetrator’s identity, who is bound to present his ID.
The official inspector must also establish the circumstances of the contravention, the normative act providing it, whether material damage was caused or whether there are any things subject to seizure and whether there is any cause excluding the contraventional character of the deed or of the perpetrator’s liability.
The contravention acknowledgement minutes is elaborated, as a rule, in two counterparts, one of them being communicated to the perpetrator, either by personal delivery, if present, or by post or by display, if the perpetrator is not present at its conclusion or if he refuses to sign it .
If the perpetrator is not present, refuses or is unable to sign, the official inspector will make a mention about these circumstances, which must be confirmed about at least one witness. In this case, the minutes will also contain the personal date from the witness’s identity card and his signature.
We mention that another official inspector cannot be a witness in such case.
The lack of the official inspector’s handwritten signature draws the absolute voidness of the contravention acknowledgement and penalizing minutes.
The text of art. 16 from the Government’s Ordinance nr. 2/2001 shows that the minutes must contain „the description of the contraventional deed, by indicating the date, time and place where the deed was committed, as well as showing all the circumstances which may serve to the appreciation of the severity of the deed and at the evaluation of any damage caused”.
It is not an appropriate description of the deed in the minutes where is retained, generically, the non-fulfilment of certain measures imposed by a public authority, without exactly showing the measures which haven’t been fulfilled. The penalty in this case is voidness, as per art. 17 from OG 2/200l, which can be acknowledged ex officio.
Making a purely formal description of the contravention, without outlining the customizing elements, doesn’t meet the legality requirements imperatively provided by art. 16 alin. 1, and a general presentation, missing any relevant content, of the deed is equivalent with its lack and draws the voidness the minutes, as per art. 17 from the same normative act.
Besides describing the situation of fact, the official inspector must make the classification by law of the situation exposed.
We consider that, for the court to be able to appreciate the accuracy of the legal classification the official inspector need to indicate the article, paragraph or letter corresponding to the legal text penalizing the contravention.
(to be continued in the next edition)