The Concept of an Administrative Offence
An administrative offence, or transgression, is an unlawful, culpable — intentional or negligent — act or omission infringing the state or social order, property, the rights and freedoms of citizens, or the established order of governance, for which administrative liability is provided by legislation. At the same time, for the violations provided for by the Code administrative liability arises only if those violations, by their character, do not entail criminal liability under the legislation in force — the boundary between a transgression and a crime is thus drawn by character. For the defense this boundary is the first question: if the facts do not form a criminal composition, the matter must be handled administratively, and vice versa. This page explains the foundations of the general part — the concept, guilt, the purposes and types of sanctions, and the rules of imposition; the regimes of particular sectors, such as road fines or food safety, are discussed on separate pages.
Forms of Guilt — Intent and Negligence
An administrative offence is considered committed intentionally where the offender was conscious of the unlawful character of his act or omission, foresaw its harmful consequences and desired them or consciously allowed them. An offence is considered committed negligently where the offender foresaw the possibility of the harmful consequences but frivolously counted on avoiding them, or did not foresee the possibility of such consequences although he should and could have foreseen them. Establishing the correct form of guilt is decisive: a flawed description of culpability in the protocol and the decision often becomes the ground for reopening the case.
The Purposes of an Administrative Sanction
An administrative sanction is a measure of liability applied for the education of the offender in the spirit of observance of laws and respect for the rules of communal life, as well as for the purpose of preventing the commission of new offences both by the offender himself and by other persons. This purpose matters for proportionality: a sanction is not revenge but an instrument of education and prevention, and on appeal the chosen measure is assessed against this purpose.
The Types of Sanctions
The first part of the relevant norm contains the full catalogue of administrative sanctions: a warning; a fine; deprivation for consideration or confiscation of the object that was the instrument or direct object of the offence or of a customs violation, or a means of transporting and delivering goods; suspension of the right to drive a vehicle granted to a citizen; deprivation of the right to carry a weapon; restriction of weapon-related rights; corrective works; expulsion of a foreigner from Georgia; a ban on the entry of a foreigner into Georgia; administrative arrest. Deprivation of the right to carry a weapon means deprivation of the right to carry service-standard weapons, short self-defense or sporting firearms, and for the violation provided by law, hunting firearms; such a decision enters into force on the day following the day of issue of the relevant act. The type and measure of the sanction largely determine the real outcome of the case.
General Rules of Imposing a Sanction
For an administrative offence a sanction is imposed within the limits established by the normative act that provides liability, in exact conformity with the Code and other acts on administrative offences. In imposing a sanction, account is taken of the character of the committed violation, the personality of the offender, the degree of his guilt, his property status, and mitigating and aggravating circumstances. This means that different persons may receive different measures for the same violation, and on appeal it is precisely the consideration of these criteria that must be verified.
Mitigating and Aggravating Circumstances
The law names as mitigating circumstances the sincere remorse of the offender; the elimination of harmful consequences, voluntary compensation of damage or correction of the inflicted harm; commission of the violation under the influence of strong emotional disturbance or due to a coincidence of grave personal or family circumstances; commission of the violation by a minor; and commission of the violation by a pregnant woman or a woman with a child under one year of age. Legislation may also provide other mitigating circumstances, and it is important that the body or official deciding the case may treat as mitigating even circumstances not mentioned in the legislation. The task of the defense is to document these circumstances fully and to demand their reflection in the decision.
The catalogue of aggravating circumstances is much broader: continuation of unlawful conduct despite a demand to stop by authorized persons; repeated commission within a year of a homogeneous violation for which the person has already been sanctioned or received an official remark; commission by a person previously convicted; involving a minor in the violation; commission against a minor or in their presence; commission by a group of persons; commission with insult to the personal dignity of the victim; commission during a natural disaster or other emergency; commission under the influence of alcohol or narcotic, psychotropic or new psychoactive substances; commission in connection with the professional or public activity of the victim; and commission motivated by non-recognition of the constitutional order or constitutional organs. Imposing an aggravating circumstance without proof becomes a ground for annulment of the decision, so each such feature must be established factually.
How We Help on Legal.ge
On Legal.ge the service is delivered by attorneys experienced in administrative cases. We separate the qualification of the violation from the factual circumstances, verify the correctness of the form of guilt, the selected type and measure of the sanction, and determine which mitigating circumstances can be applied in your case.
Contact us through Legal.ge — we will protect your interests from the drafting of the protocol to the appeal of the decision and help minimize the sanction using every possibility established by law.