Our legal system has two types of sanctions of a public nature: the administrative sanction, of a less intense nature, which is fundamentally regulated in the LISOS (which is substantiated by administrative body and procedures), and the criminal sanction, of a more intense nature, which It is mainly regulated by the CP.
Thus, both in the criminal sphere and in the purely administrative sphere, the sanctioning law is governed by several principles that must be respected in both spheres.
In brief summary we can point out the principle of legality, the principle of typicality, the principle of responsibility, and the non bis in idem principle. The latter has the purpose of preventing duplication of sanctions for the same facts in relation to the same offending subject.
In this way, the aforementioned principle comes to prohibit a repeated exercise of the ius puniendi of the State, in such a way that it prohibits doubly punishing both in the scope of criminal sanctions and in that of administrative sanctions, thus prohibiting the compatibility between penalties and administrative sanctions in the cases in which the concurrence of the triple identity is constant: subject, fact and foundation.
In application of such principle, art. 3 LISOS says that when an administrative sanctioning procedure is being carried out and it is known that, due to the same facts, a criminal file is also being investigated, it must suspend the administrative procedure until it has proof that there has been a final conviction sentence or a final dismissal order.
Thus, once the criminal procedure is completed with a conviction, the existence of the triple identity will force the Administration to annul the sanctioning procedure that has remained suspended until that moment.
The recent STS 872/2024 of June 5, 2024 (rec. no. 1236/2021) once again affects the undoubted concurrence of the triple identity so that the offending driver can no longer be punished within the scope of occupational risk prevention, precisely due to concurrence with the criminal order.
In the RCUD that resolves the aforementioned STS, the question was addressed of whether the application of the non bis in idem principle prevents a company from being administratively sanctioned for an infraction related to the lack of registration and affiliation of workers when its administrator had already been criminally convicted of a crime related to workers’ rights, precisely for this same conduct.
Specifically, the company Bapez 2015, SLU, was administratively sanctioned by the General Social Security Treasury (TGSS) with a fine for not having affiliated and registered certain workers. At the same time, the company administrator was criminally convicted of a crime against workers’ rights.
In this context, the company appealed the administrative sanction, alleging that, given that its director had already been criminally convicted, the non bis in idem principle was violated.
Although the TSJ initially ruled in favor of the company, arguing that there was an identity of facts that justified the application of the non bis in idem principle and, therefore, the imposition of the administrative sanction should be annulled. However, the appeal filed by the TGSS before the Supreme Court questioned this interpretation.
For this reason, the TS has finally clarified that, in this case, there is no subjective identity since, in the administrative sphere, the sanction fell on a legal person (the company), while, in the criminal sphere, the sentence was against a natural person. (the administrator). This distinction is key, since the non bis in idem principle does not apply in the absence of subjective identity between those sanctioned.
For this reason, the TS upholds the appeal filed by the TGSS and, consequently, annuls the ruling of the Madrid TSJ, confirming the admissibility of the administrative sanction.
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