Abusive Application of the Maximum Fine Provided by Law by the Urbanism Control and Construction Discipline Service. Lack of Proportionality Between the Committed Act and the Applied Sanction.
The company was sanctioned by a notice of finding and contravention by the Local Police General Directorate with the maximum fine provided by Law No. 50/1991 in the amount of 20,000 lei for violating the building permit and the technical documentation based on which the construction works were being carried out. After contesting in court, Brisc Legal lawyers specialized in contraventional complaints in the construction domain obtained the reduction of the fine to the legal minimum.
RELEVANCE OF THE CASE
Often, fines applied in practice are oriented toward the legal maximum without there being, or without the agents recording, factual elements that would justify orienting the sanction toward the maximum limit.
The law provides that the contraventional sanction must be applied within the limits set by the normative act and must be proportional to the degree of social danger of the committed act, taking into account the circumstances in which the act was committed, the manner and means of committing it, the purpose intended, the consequence produced, as well as the personal circumstances of the contravenient and other data included in the finding-report.
Disregard of these legal criteria by bodies empowered to find and apply contraventional sanctions is a reality confronted by many contravenients.
SUMMARY OF THE FACTUAL SITUATION
In fact, the claimant company, as investor and beneficiary of the real estate project, was sanctioned via the finding and sanctioning notice with the maximum fine of 20,000 lei for failure to comply with the building permit regarding the placement of the washing ramp, which was positioned in the land in violation of the location specified in the site organizational plan.
What is relevant is the fact that the legal limits of the fine provided for the contravention committed by the claimant company are between 5,000 and 20,000 lei. By the same finding and sanction notice, it was ordered, together with the main penalty of the fine, immediate stoppage of works and compliance with the provisions of the building permit.
PRESENTATION AND SUPPORT OF THE CASE
According to legal provisions in contraventional matter, the sanction established must be proportional to the degree of social danger of the committed act, and the authorities with power to find and establish contraventions are obliged to observe the principle of proportionality.
In this sense, we showed that the court’s duty is to respect the proportionality limit between the purpose pursued by state authorities of not leaving antisocial actions unpunished and respecting the contravenient’s right of defense.
Separate from the illegality defects of the notice in relation to missing mandatory mentions in its content, we showed that the act attributed to the claimant company is not typical, and that the maximum fine of 20,000 lei is not proportionate to the committed deed.
As contraventional-complaint lawyers in construction, we argued that this amount of fine is obviously disproportionate given the degree of social danger of the act and the circumstances in which it was committed, namely installing the washing ramp at a location negligibly differing from the location envisaged in the site organization plan.
The finding-agent from the Cluj Local Police – Urbanism Control and Construction Discipline Service had the obligation to include in the finding-report the circumstances which could help assess the seriousness of the act and evaluate any damages caused, so that the court could assess what exactly led them to determine that amount of fine.
To underline the lack of proportionality of the act, the specialized complaint-lawyers referred to the contraventional incrimination made by Local Council Decision Cluj-Napoca regarding proper maintenance nr. 191 of 07.04.2009. Thus, in article 4 of that decision are sanctioned acts by natural and legal persons violating norms regarding site organization, operating on construction sites, constituting contraventions and to be sanctioned with a fine, as follows:
- Failure to provide washing ramps (concrete platform with water collection system connected to sewer or septic tank and water pump under pressure) for vehicles and machinery in site organizations, with fine from 2,000 lei to 2,500 lei;
- Non-use or improper use of washing ramps, with fine from 1,500 lei to 2,000 lei.
Thus, we insisted on the absurdity of the situation relative to the specific penalty limits for the contravention provided in article 4 paragraph 1 of HCL no. 191/2009.
Thus, in the event the person in question commits the act of not providing a washing ramp they are exposed to a fine between 2,000 lei and 2,500 lei, and in the case where the ramp is provided in utilitarian respect but with incorrect location according to the site organization plan, the legal authority views the penalty limits between 5,000 lei and 20,000 lei.
SOLUTION OF THE CLUJ-NAPOCA JUSTICE COURT
The court retained the arguments laid out in support of the claimant company’s pretensions and ruled to re-individualize (adjust) the contraventional sanction applied by the finding and sanctioning notice.
Adopting the considerations developed through the contravention complaint, the court found that the degree of social danger of the act justifies applying the sanction in the minimum legal amount, for which reason it reduced the contraventional fine from 20,000 lei, the legal maximum, to the legal minimum of 5,000 lei.
In line with the arguments developed by Brisc Legal lawyers specialized in construction contraventions, by the ruling delivered it was retained that the finding-agent applied the maximum fine without indicating circumstances that led them to consider such a high degree of social danger justifying application of the maximum fine.
Also, the court held as relevant the aspect emphasized by the contraventional complaint lawyers about the low importance of the works represented by the incorrect placement of the washing ramp in relation to the authorized work, a building with height regime 2S+P+8E+2Er.