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  • Public law
  • 17-06-2016

The difference between a punitive sanction – such as a fine – and a remedial sanction is the burden of proof. A more onerous burden of proof applies when an administrative body imposes a fine than in the case of a remedial sanction.

Recently, in a decision of 1 June 2016, the Central Appeals Tribunal once again drew attention to this more onerous burden of proof. The highest court for social administrative law, public service law and parts of pension law stated first and foremost that article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) contains the assurance that everyone charged with a criminal offence – the imposition of a fine is regarded as being charged with a criminal offence – shall be presumed innocent until proved guilty according to the law. This assurance means that the Dutch Employee Insurance Agency (UWV) must put forward facts and that if they are contested it must prove that as a consequence of a violation of the obligation to provide information undue benefits were paid. If any doubts exists, the person drawing benefits must be given the benefit of the doubt. Thus the burden of proof in the case of a punitive sanction is more onerous than in the case of a remedial sanction. If, as was the case in the decision mentioned, the administrative body has failed to prove that the person in question received income from selling cannabis products which exceeds her reference income by more than 20% and that she consequently received more incapacity benefits than she was entitled to or that she was consequently not entitled to incapacity benefits in the period in dispute, no penalty can be imposed. Always pay attention to the difference in the burden of proof between a punitive sanction and a remedial sanction: in the case of a punitive sanction the administrative body is required to furnish more proof.

That differences exist between the legal protection and legal positions of persons under criminal law and administrative law was previously ascertained in unsolicited advice dated 13 July 2015 given by the Council of State, which is very worthwhile reading. Since 1980, there have been only two previous instances where such a spontaneous advice was issued. It is evident from the advice that the need exists to review the level of statutory legal protection in the case of punitive sanctions. In that respect, it is advisable to align criminal law and administrative law in terms of the statutory legal protection and the legal position of citizens. The above-referenced advice explains that where sanctioning administrative law is concerned, said alignment should result in an increased level of legal protection, but that it is up to the legislature to make specific choices in that respect.

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