Los principios de la potestad sancionadora: una visión desde la óptica local con la declaración del estado de alarma 2020

Abstract

The sanctioning power of the Administration is a prerogative attributed by the legal norm that allows Public Administrations that, in the event of breaches of legal norms by the citizens subject to it, sanctions can be established for them to proceed to correct these conduct constituting an administrative offense. This power is subject to a series of principles, which must be present in all administrative acts. These principles informing the sanctioning power are the following, the principle of legality, the principle of typicity, the principle of responsibility, the principle of proportionality, the principle of limitation, the principle of nos bis in idem. The sanctioning power must be carried out through the pertinent administrative procedure and other administrative regulations. The law sanctions with the nullity of full right those acts dictated totally and absolutely disregarding the legally established procedure and, in addition, it requires that, in its application, the principles that inspire the entire administrative sanctioning order be taken into account. When these principles are not respected, the rule of law must implement all the necessary means to guarantee that respect in order to comply with the constitutional mandate enshrined in the criminal order and that displays all its effects, even with nuances, in the field administrative sanctioning. The principle of legality finds its foundation in article 25 of the CE and in the LRJSP, collecting the obligation of Public Administrations to act in accordance with the law and being able to exercise the sanctioning power only in the cases that conform to the norm. The principle of typicity is linked to the principle of legality, being regulated in article 27 of the LRJPS, determining that only those facts that violate the legal system will constitute an administrative offense. The punishable conduct must be well defined and specified in a law. The principle of responsibility, established in article 28 of the LRJSP, establishes the need to demonstrate or accredit the responsibility of the administrator's act with the unlawful act that occurred. The principle of proportionality requires the concurrence of an equivalence between the seriousness of the offense and the seriousness of the penalty to be imposed. The principle of prescription regulated in article 30 of the LRJSP, comes to take into account the effects of the passage of time, both in the reproached conduct and in its action or punishment to be imposed. The purpose of the non bis in idem principle is to prohibit a person from being punished twice for the same acts. The state of alarm declared by RD 463/2020 has been the mechanism used by the Government to protect the public health of all Spaniards. In application of the law 4/1981 of the states of alarm, exception and siege. The COVID-19 crisis and its management through the declaration of the state of alarm has created a great controversy. The question arises as to whether the principles of sanctioning power have been respected during this period of time. The first controversy occurs in the precept used by police officers to report offending citizens. The precept used being article 36.6 of the Organic Law March 30 on the protection of citizen security. "Disobedience or resistance to the authority or its agents in the exercise of their functions, when they do not constitute a crime, as well as the refusal to identify oneself at the request of the authority or its agents or the allegation of false or inaccurate data in identification processes. " As well as Law 33/2011, of October 4, general of public health and Law 17/2015, of July 9, of the national system of civil protection”. The agents of the authority in the absence of law created during the state of alarm have had to refer to other legal precepts. We have been able to verify several reports of complaints made by a Local Police force, where it can be observed that the most used precept has been the one commented on in article 36.6 of the law for the protection of citizen security. According to the instructions given to the agents, they must report this type of infraction, referring to said precept of article 36.6 or the Civil Protection law, even if there has not been a disobedience as such, since there has been no prior requirement to the denounced, and the fact of visiting a friend who resides in a municipality other than the one denounced, is not classified in any law as an offense, nor does it have a sanctioning code set up to punish said sanction. Given this, several principles of the sanctioning power may have been violated, since the precepts for which they have been denounced are not typified by any norm with the force of law