Harm from repealed penal decrees

Every citizen may seek compensation for all direct and immediate damages suffered by him from unlawful acts, actions or omissions of state bodies in the performance of their duties.

The most common case in which such compensation can be claimed is in the cancellation of imposed criminal decrees imposing certain penalties.

Administrative violations and penalties

The penal decree is the final act imposing a penalty for an administrative violation.

This type of violation is regulated in a number of laws and is sanctioned by administrative penalties.

What distinguishes administrative violations from crimes are precisely the sanctions, the way in which they are imposed, and above all - the degree of public danger of the committed act.

What penalties are imposed by the penal decrees?

There are three types of administrative penalties - fine, deprivation of the right to exercise a certain activity, and public censure.

The procedure for imposing administrative penalties involves the sequential performance of several actions, the first of which is the drawing up of an act establishing the committed violation. This is the so-called act establishing an administrative violation. Such acts may be drawn up by officials (who are explicitly specified in a relevant regulatory act) in the presence of the violator, and after its drawing up a period for appeal begins to run.

If, upon appeal, the act establishing an administrative violation in question is not annulled administratively, then a competent authority shall also impose an administrative penalty through a penal decree.

It is precisely compliance with the special requirements for the content of the above-described acts that are most often grounds for the annulment of the penal decrees.

There are a number of cases in which a penal decree is issued, and it is subsequently found that the prerequisites for its issuance were not present, its content contradicts the law in a general sense, or the rules for its issuance were not followed.

Compensation for cancelled criminal sentences

The state and municipalities are liable for all direct and immediate damages suffered from unlawful acts, actions or inactions of state bodies in the performance of their duties.

Such damages would be:

• the stress experienced;
• the inconvenience caused;
• the time allocated;
• lost profits that were not realized as a result of the imposition of the penalty.

A mandatory prerequisite for filing a claim is the annulment of the penal decree, which takes place in a separate proceeding. This entails additional costs for attorney fees and, respectively, property damages from the annulled penal decree, which would not have occurred if the specific state body had not made a mistake.

What happens to the costs of appealing and overturning criminal rulings?

Until recently, the costs of appeal and annulment proceedings against criminal decisions undoubtedly remained with the person concerned. Case law has been contradictory as to whether the costs paid by applicants in appeal and annulment proceedings against criminal decisions (lawyer fees, state fees, etc.) can be qualified as damage within the meaning of ZODOV.

What is the order?

After the annulment of the unlawful penal decree, a claim for compensation for the damages resulting from the latter may be brought. The Law on the Liability of the State and Municipalities for Damages provides that the claim for compensation for damages resulting from unlawful acts shall be brought before the court at the place where the settlement took place or at the current address or registered office of the settled person. The claim shall be considered in accordance with the procedure of The Administrative Procedure Code. The court has an obligation to consider and resolve the request made in accordance with the law within a reasonable time.

However, in 2017 The Supreme Administrative Court issued a decision confirming that the pecuniary damages from the payment of attorney's fees and state fees must undoubtedly be compensated. This conclusion is necessitated by the fact that in the absence of an unlawful act, these costs would not have arisen for the injured party.

The first instance court decision on the issue of compensation is subject to appeal by the party to whom it is unfavorable.

Judicial proceedings under the Administrative Procedure Code are two-instance. This means that the decision of the Supreme Administrative Court is final and not subject to appeal unless special provisions of another law establish otherwise.