If one is a mouse in the eyes of the Government, then at least be a mouse that roars

Punitive administrative enforcement can best be defined as the combination of criminal law and administrative law where governing bodies governed by public law, can impose punitive sanctions without the intervention of or an independent judge or the person/corporation concerned.

For example, you can think of the administrative fine or an operating ban. These penalties can have very far-reaching consequences. According to the European Court of Humans Rights (ECRM) a sanction does not have to be part of the criminal system or even – according to national legislation – be designed as a punitive measure to be protected by article 6 of the European Convention of Human Rights (EVRM). Recently the Court has ruled that the weight and impact of any sanction – regardless of the fact if this is formally punitive in character – decide if an sanction must be qualified as a ‘criminal charge.’ The Court emphasized that this does not mean the scope of the ‘criminal charge’ will be limited so relatively light sanctions will no longer be regarded as such, but rather is meant as an expansion so sanctions that previously were considered not to constitute ‘criminal charges’ because of their purpose can now, depending on their weight and impact, be regarded as such. Even more than in normal criminal law, in administraive criminal/punitive enforcement, where monitoring and investigative powers are frequently alternately used during one single investigation, one is very hard pressed to speak of ‘equality of arms.’ Due to the lack of knowledge about ones legal position and information given by governmental bodies and officials regarding obligations to provide the required information and to cooperate otherwise – which no longer apply once one (formally) has become suspect of a criminal act or violation of administrative regulations – one unwilingly puts not one but two nooses around his neck.

On 9 June 2011, the District Court of Rotterdam ruled that former employees questioned by the NMa  (Dutch Competition Authority) – and, considering art 5:20 of the General Administrative Law Act Awb, presumably other administrative bodies – about their former employer, have no right to remain silent. The Court ruled that a former employee, by definition, does not make statements on behalf of his former employer, and thus has no derived right to remain silent. This puts companies in a very difficult position. All former employees, and not only those involved with an alleged violation, may be required by the supervisor to disclose information and/or give evidence. This means that a (potential) violation should be handled with extreme caution, as any former employee may be forced to disclose consultations between them and the (company) lawyer and/or external attorney – thus circumventing the attorney-client privilege. This also means that in case of (potential) violations of the NMa, but ((presumably) other laws also), the company would be wise to do to seek advice from a lawyer who understands criminal administrative enforcement.

Therefore it is of the utmost importance to contact an attorney whenever an administrative fine of any sorts has been or will be imposed. As such sanctions múst adhere to the criminal guarantees from the European Convention of Human Rights to be legal there is always a chance to have them quashed if they do not. Together with the client we will ensure he or she will be treated fairly and justly and make certain the proper safeguards are observed.

Remember, you have rights; make certain they are respected!