What is an indeterminate sanction?

Principles of the administrative sanctioning power peru

That, likewise, this Legislative Decree incorporates a special chapter to Law No. 27444, Law of General Administrative Procedure, which is a novelty in the Peruvian legislation concerning the common rules of the “Administrative Auditing Activity”, which contains the rights and duties of the persons administered within the framework of the auditing actions, as well as the powers and duties of the administration;

That, finally, Law No. 29060, Law on Administrative Silence, is repealed, since the regime on administrative silences has been incorporated to Law No. 27444, Law on General Administrative Procedure;

1. The present Law contains common rules for the actions of the administrative function of the State and, regulates all administrative procedures developed in the entities, including special procedures.

3. The administrative authorities, when regulating special procedures, shall comply with following the administrative principles, as well as the rights and duties of the subjects of the procedure, established in the present Law.”

Nature of administrative sanctions

In the case of revisable permanent imprisonment, once the first minimum part of the sentence has been served, if the court considers that the necessary requirements for the prisoner to regain his freedom have not been met, a period of time will be set for a new review of his situation; and if, on the other hand, the court considers that he meets the necessary requirements for release, a period of conditional release will be established during which conditions and control measures will be imposed to guarantee the security of society and to assist the prisoner in this final phase of his social reintegration.

The sentence of revisable permanent imprisonment is not, therefore, a sort of “definitive sentence” in which the State dissociates itself from the offender. On the contrary, it is an institution that makes compatible the existence of a penal response adjusted to the seriousness of the guilt, with the purpose of re-education to which the execution of prison sentences should be oriented.

Read more  What is a presumptive sentence?

This is, in fact, a widespread model in European comparative law that the European Court of Human Rights has considered to be in line with the European Convention on Human Rights, since it has declared that when the national law offers the possibility of review of the sentence of indeterminate duration with a view to its commutation, remission, termination or conditional release of the convicted person, this is sufficient to satisfy Article 3 of the Convention (cfr. ECHR 12-2-2008, case Kafkaris v. Cyprus; 3-11-2009, case Meixner v. Germany; 13-11-2014, case Bodein v. France; 3-2-2015, case Hutchinson v. United Kingdom).

Principle of typicality in administrative matters jurisprudence

The doctrine that has dealt with this issue has formulated approaches that do not coincide. On the one hand, one can detect a sector that has understood that these terms can be accepted if the danger of a subjective or “conscientious” application is eliminated. And the objectification of these terms can be achieved by “converting them into perfectly technical legal types in the sense of formulating indeterminate legal concepts of conduct that would have to be specified or filled in through a detailed analysis of the facts.[370] It is therefore a position that does not question the use of these terms by the law, although it understands that they must be applied strictly through the technique of the Administrative Law of indeterminate legal concepts.

The Constitutional Court has adopted a very respectful position with the use of indeterminate terms, as is evidenced by the generalized admission of the cases examined by it. And this, both in the criminal and administrative spheres. In relation to the criminal order, it considered the type described in the repealed art. 431 of the Criminal Code to be fully in accordance with the Constitution, through the use of terms such as morality, modesty, and good morals (STC 62/82 of October 15),[373] or the also repealed military offense consisting of “failure to perform military duties. [374] In relation to the administrative order, the Constitutional Court has admitted terms such as “lack of moral and material probity,[375] “disobedience or disrespect to superiors or authorities” (STC 81/83 of 10 October and 69/89 of 20 April),[376] or, finally, breach of professional duties (STC 219/89 of 21 December). [377] Among the few cases that the Constitutional Court found to be inconsistent with the Constitution was Article 29.1 of Decree 522/1974, which empowered the Administration to order the expulsion from the national territory of foreigners “when their way of life, activities, conduct, criminal or police record, relationships they maintain or other similar circumstances make it appropriate.”[378] The Constitutional Court also ruled that the expulsion of foreigners was not in accordance with the Constitution.

Read more  What is pre sanction letter?

Sanctioning power of the public administration examples

Article 5°: (Text of Law 11.723) The sanction of reprimand may only be applied as a substitute for a fine or arrest. This power may not be used in case of recidivism, nor in the cases contemplated in article 4° bis.

Article 6°: The fine sanction may not exceed the sum equivalent to one hundred (100) minimum wages of the municipal personnel of the commune that reprimanded the infraction. The fine may be converted into an arrest if it is not paid on time. The conversion will be made at the rate of one day for the amount fixed by the Judge between ten percent (10%) and three hundred (300%) of the minimum municipal salary. The payment of the fine, made at any time, shall terminate the arrest into which it was converted . The fine penalty shall be reduced in proportion to the days of arrest served.

Article 6º bis: (Incorporated by Law 11.723) In case of infringement of the rules whose subjects are detailed in Article 4º bis, the fine penalty may amount up to three times the amount established as a ceiling in Article 6º.