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The law and order approach to criminal law in the administrative

sanctioning system
Pablo Rando Casermeiro


Abstract
During the past decade, the debate on criminal policy developed in Spain under the risk approach of criminal
law. However, the last reforms show clear signs of punitivism. Since at least 2003, legislators have assumed
the law and order approach to criminal law in almost every initiative of reform of the criminal code. Here we
argue that, additionally, this model is extending to the administrative sanctioning system, which is reflected in
some articles that have been recently incorporated into the administrative sanctioning law and which increase
the afflictive character of the administrative ius puniendi, as well as fostering further stigmatization.

El discurso polticocriminal de la ltima dcada en Espaa se ha desarrollado bajo el paradigma del derecho
penal del riesgo. Sin embargo, el signo de las ltimas reformas tiene un marcado carcter securitario. Desde el
ao 2003 como mnimo, el legislador ha asumido el modelo del derecho penal de la seguridad ciudadana en
casi todas sus iniciativas de reforma del cdigo penal. Aqu se sostiene la tesis de que, adems, este modelo
se est extendiendo al derecho administrativo sancionador. Ello se refleja en algunos preceptos recientemente
incorporados al derecho punitivo administrativo, marcados por un aumento del carcter aflictivo del ius
puniendi administrativo, as como por una intensificacin de elementos estigmatizantes.

In Spanien hat sich die kriminalpolitische Debatte des letzten Jahrzehntes unter dem Paradigma des
Risikostrafrechts entwickelt. Jedoch zeigen die letzten nderungen der Strafgesetzgebung einen Charakter,
der an den Gedanken des law and order erinnert. Zumindest seit 2003 hat der Gesetzgeber in fast allen
nderungen des Strafgesetzbuches den Ansatz der Sicherheit bernommen. In dem vorliegenden Beitrag wird
darber hinaus die These vertreten, dass dieser Ansatz dabei ist, sich bis in das Ordnungswidrigkeitenrecht
auszudehnen. Dies spiegelt sich in einigen der vor kurzem in das Ordnungswidrigkeitenrecht eingefgten
Vorschriften wieder, die durch eine Zunahme des punitiven Charakters des Ordnungswidrigkeitenrecht sowie
durch die Intensivierung der stigmatizierenden Merkmale gekennzeichnet ist.

Ttulo: El modelo penal de la seguridad ciudadana en el derecho administrativo sancionador
Titel: Die strafrechtliche Modell von ffentlichem Sicherheit im Ordnungswidrigkeitsrecht

Keywords: criminal policy, administrative sanctioning system, law and order approach to criminal law, risk-oriented criminal
regulation theory.
Palabras clave: poltica criminal, derecho administrativo sancionador, derecho penal de la seguridad ciudadana, derecho penal
del riesgo, teora de la legislacin.
Stichwrter: Kriminalpolitik, Ordnungswidrigkeitenrecht, law and order Strafrecht, Risikogesellschaft Strafrecht, Theorie der
Gesetzgebung.

1. Introduction: Towards a change in the paradigm of criminal policy
Criminal policy defined itself in the past decade in Spain through the incorporation of different
sociological approaches into debates on criminal law, among which it is worth highlighting the risk
society approach due to its academic prestige. Made popular among the criminal law doctrine in
Germany by BECK during the nineties, we can argue together with KUHLEN that this theory has
caused enormous enthusiasm
1
. A prominent sector of German criminal law doctrine, especially
those belonging to the Frankfurt School, of which HASSEMER
2
is its main defender, has studied
the implications of a risk society in modern criminal law, achieving very significant results

University of Seville
1
KUHLEN, GA, 1994, pp. 347-367, p. 347.
2
See HASSEMER, Viejo y nuevo derecho penal, in HASSEMER, Persona, mundo y responsabilidad. Bases para
una teora de la imputacin en Derecho Penal, (translation to Spanish by Muoz Conde & Daz Pita), 1999, pp. 39-
78; see also HASSEMER /MUOZ CONDE, La responsabilidad por el producto en derecho penal, 1995.
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regarding the contents, means and ways of protecting matters of significant public concern
affected by criminal behaviour. Our main conclusion is that criminal law has changed to a risk
approach to criminal law, implying a series of difficulties, among which we can mention the
violation of certain rights that constitute a hallmark of traditional criminal law, the assumption of
the protection of goods whose damage cannot be individually attributed by criminal law, and the
preeminence of a purely symbolic criminal policy, without the ability to provide an effective
protection against criminal behaviour. In this context, and following the Frankfurt School, criminal
law must cease intervening in matters concerning the so-called modern criminal law, and above
all, a criminal law that protects individual rights and abides by the paradigm of result crimes
should be adopted instead. The contents of this emergent sector of criminal law should be found
either in the administrative sanctioning system or in new sanctioning systems that lie between the
latter and criminal law
3
.
This approach starts to develop in Spain at the end of the nineties paying close attention to the
postulates of the Frankfurt School, and being MENDOZA BUERGO and SILVA SNCHEZ its
most significant authors
4
.
We are dealing with a well-known doctrine, so it will not be necessary to go into detail, neither on
the basic elements they have in common, nor on their differences and particularities
5
. What I do
consider important is that, despite the attention paid by the criminal doctrine to the sociological
approach of the risk society, the dominant attitude towards this theory has been one of criticism of
its foundations
6
.
The aforementioned criticisms adopt different perspectives, both concerning criminal policy and
ideological matters. For the purposes of this work, I am interested in underlining the one referred

3
For that purpose, HASSEMER, in HASSEMER, Persona, mundo y responsabilidad. Bases para una teora de la
imputacin en Derecho Penal, (translation to Spanish by Muoz Conde & Daz Pita), 1999, pp. 67, 69-72, proposes
the establishment of an Intervetionstrafrecht, which is not, properly speaking, criminal law. See also
HASSEMER/MUOZ CONDE, La responsabilidad por el producto en derecho penal, 1995, pp. 39-46. In contrast,
SILVA SNCHEZ, La expansin del derecho penal, 2 ed., 2001. Especially pp. 153-154, postulates the creation of
an alternative criminal law to prison criminal law and enemy criminal law. However, as stated by GRACIA MARTN,
Prolegmenos para la lucha por la modernizacin y expansin del Derecho penal y para la crtica del discurso de
resistencia, 2003, p. 153, both proposals substantially coincide.
4
See SILVA SNCHEZ, La expansin del derecho penal, 2 ed., 2001, although the core of him approach can be
seen in previous publications. In this sense, see SILVA SNCHEZ, Actualidad Penal, 1998, pp. 435-449. MENDOZA
BUERGO, El derecho penal en la sociedad del riesgo, 2001. Such attention paid to the Frankfurt School is not
always followed by an acceptance of its demands. In this sense, DEZ RIPOLLS, RECPC, 2005, pp. 6-7, 8-9,
shows the differences between the approaches of SILVA SNCHEZ and those of the Frankfurt School, which are
even more intense in the case of MENDOZA BUERGO.
5
For a more detailed explanation, see descriptively- SCHNEMANN, GA, 1995, pp. 201-229, pp. 205 and ss; DEZ
RIPOLLS, RECPC, 2005, pp. 3-6; GRACIA MARTN, Prolegmenos para la lucha por la modernizacin y
expansin del Derecho penal y para la crtica del discurso de resistencia, 2003, pp. 60-65, 132 and ss; KUHLEN,
GA, 1994, pp. 347-349, 351.
6
Stands out for the intensity of its criticism GRACIA MARTN, Prolegmenos para la lucha por la modernizacin y
expansin del Derecho penal y para la crtica del discurso de resistencia, 2003; SCHNEMANN, GA, 1995,
especially pp. 205-206; OCTAVIO DE TOLEDO Y UBIETO, in DEZ RIPOLLS/ROMEO CASABONA/GRACIA
MARTN/HIGUERA GUIMER (eds.), La ciencia del derecho penal ante el nuevo siglo. Libro Homenaje al Profesor
Doctor Don Jos Cerezo Mir, 2002, pp. 1113-1149, in footnote. But, as I said before, criticism is, despite some
exceptions, widespread. See DEZ RIPOLLS, RECPC, 2005, pp. 8, 16, 29; DEZ RIPOLLS, RECPC, 2004, pp. 7-
8; LAURENZO COPELLO, RDPC, 2003, pp. 441-456, especially pp. 451-455; GMEZ TOMILLO, Derecho
Administrativo Sancionador. Parte General. Teora General y Prctica del Derecho Penal Administrativo, 2007, pp.
42-50; GRRIZ ROYO, in TERRADILLOS BASOCO/ALCALE SNCHEZ (coords.), Temas de Derecho Penal
Econmico. III Encuentro Hispano-Italiano de Derecho Penal Econmico, 2004, pp. 339-346, pp. 343-346. See,
however, an acceptance of the premises and proposals of the risk society approach, with certain relevant
particularities of its own, in MARTNEZ-BUJN PREZ, in DEZ RIPOLLS/ROMEO CASABONA/GRACIA
MARTN/HIGUERA GUIMER (eds.), La ciencia del derecho penal ante el nuevo siglo. Libro Homenaje al Profesor
Doctor Don Jos Cerezo Mir, 2002, pp. 395-421, especially pp. 402 and ss.
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to an out-of-focus debate. In this sense, DEZ RIPOLLS has drawn attention, during the last
years, to two significant phenomena:
-First, criminal doctrine has remained tied to a liberal approach to criminal law (what is frequently
called the analytic model of minimal criminal law in most Western countries of continental legal
tradition). However it can be verified that this approach no longer enables us to understand, for
several years now, social and political attitudes towards criminal behaviour
7
.
-Secondly, the discussion has mainly focused, for quite some time and although critically, on the
risk society approach to criminal law
8
. The problem is that while this discussion was taking place,
a new criminal policy model that has nothing to do with the mentioned paradigm the law and
order approach to criminal law has been developing parasitically
9
.
This model is characterized by seven elements
10
:
Predominance of classical crime. Although the debate on the risk society in criminal policy
condemns above all the expansion of criminal law to new fields of tutelage, what is true is that the
last reforms to criminal law have dealt mainly with a harshening of the punishment of traditional
delinquency (crimes against property, sexual offences, etc.).
Prevalence of concern and fear of crime. During the last years, the concern about crime has
increased among the population, along with fear of crime.
Importance of victims interests. Victims have become significant social actors with a crucial
influence in criminal policy, which has lead, among other things, to the respectability of their
revenge feelings.
Populism and politicization. Political agents with responsibility in the law-making process have
given up expert debate, submitting themselves to the superficial discussions that predominate
among certain sectors of the population due to the electoral benefits this brings.
A reassessment of punishment based, above all, on a rigorous penitentiary execution.
Rediscovering imprisonment. This punishment appears as the first alternative to crime. Besides
intending an increase in the length of prison stays, the re-socialization and flexibilisation goals of
the penitentiary regime that they demand are becoming increasingly less acceptable.
Absence of distrust in law enforcement agencies. The population receives with enthusiasm cuts
in their fundamental rights, convinced that they will improve the prevention of crime; but there is
no longer any distrust that such cuts may produce power abuses from the criminal law
enforcement agencies.

7
DEZ RIPOLLS, RECPC, 2004, p. 3, DEZ RIPOLLES ReAIDP/e-RIAPL, 2007, A-02, pp. 1-3.
8
Actually, the attention paid to the enemy criminal law approach is also remarkable, which wrongfully tries to pretend
it is a branch of the risk society criminal law approach. Instead, the enemy criminal law approach should be
incorporated into the wider law and order approach -in my opinion, as one of its more significant exponents. Scholars
also tend to be critical towards this approach, formulated by JAKOBS. Anyway, this is the reason why I will not go
into its details, which are already well-known by all. About the enemy criminal law approach, see JAKOBS/CANCIO
MELI, Derecho penal del enemigo. 2 ed., 2006. We must however point out that CANCIO MELI is very critical
towards some issues concerning the enemy criminal law approach. The approach which is closest to JAKOBS in
Spain can be found in POLAINO ORTS, Derecho penal del enemigo. Fundamentos, potencial de sentido y lmite de
vigencia, 2009. On the inclusion of this approach in the wider punitive approach, see DEZ RIPOLLS, RECPC,
2005, 23 y ss.
9
DEZ RIPOLLS, RECPC, 2005, p. 10.
10
In this study we cannot go into depth into the details of the characteristics of each element, so I limit myself to a
brief description. However, later on we will see in greater detail if those elements which may be applied to the
punitive administrative law, which is my main objective. For a thorough description on the mentioned elements, see
DEZ RIPOLLS, RECPC, 2004, pp. 6-21, who follows closely the approach used by GARLAND to describe the
situation in United States. See also (in English) DEZ RIPOLLS, ReAIDP/e-RIAPL, 2007, A:02, pp. 2-5
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Implication of society in the fight against crime. Not only must citizens collaborate with the law
enforcement agencies in new and more intense ways, they must also actively participate in
control activities and crime prevention.
Transformation of criminological thinking. The social-empirical research of crime has pushed
aside social explanations of crime, focusing directly on its symptoms.
I believe we can say without problem that this model is already fully consolidated in Spain, as can
be seen through the change in perspective of the reforms in the criminal system since, at least,
2003. This model has permeated all spheres of criminal law, including juvenile criminal law
11
. In
this study we start from the hypothesis that in recent years the administrative sanctioning system
has also been influenced, although partially, by the citizen security approach to criminal law. On
this issue we will focus in the following sections.
2. From a legal safeguard-based administrative sanctioning system to a law
and order administrative sanctioning system
This is not the place to deal with the classical problem of the relationship between criminal law
and administrative sanctioning law, nor with the criteria with which to distinguish between both
areas of the ius puniendi
12
. For now, I am only interested in emphasizing their gradual
reconciliation, which is based, above all, in the full integration of the administrative sanctioning
system, together with criminal law into the punitive power of the State. At this point it is an
irrefutable fact and it also reflects an absolutely majority understanding of the punitive power of
the State, both among doctrine and jurisprudence. This is why there is no need to go into depth in
the details, although I do think it is worthy pointing out the following sentence of the Spanish
Constitutional Court, pronounced in Judgment No. 18/1981 on June 8th -legal ground two-: The
inspiring principles of criminal law are to be applied, with specific subtle differences, to the
administrative sanctioning law, given that both are expressions of the punitive legal system of the
State () to the extent that a same interest can be protected both by criminal and administrative
means
While this has entailed unquestionable advantages until now, especially the transfer of
guarantees and rights from criminal law to administrative sanctioning law, the latter traditionally
less meticulous in its observance, we have to admit that a drastic change in the model of criminal
law could also influence the administrative sanctioning system. In other words, if due process in
criminal law has had a clear impact on a legal safeguard-based administrative sanctioning law,
the move towards a law and order approach to criminal law may result in a law and order-based
administrative sanctioning system. This will undoubtedly be the case in those sectors that are
more prone to oscillate between criminal law and administrative sanctioning law, for example
traffic regulation, whose latest reforms, according to GARCA ALBERO, respond above all to a
law and order approach to criminal law
13
.

11
In this sense, see GARCA PREZ, Cuadernos de derecho judicial, 2005, pp. 397-438.
12
The bibliography on this topic is vast. In Spain, two books stand out: from an administrative sanctioning law
perspective, see NIETO, Derecho Administrativo Sancionador. 4 ed., 2005 (reimp. 2006); from a criminal law
perspective, it is indispensable to look at the complete study of GMEZ TOMILLO, Derecho Administrativo
Sancionador. Parte General. Teora General y Prctica del Derecho Penal Administrativo, 2007. See also RANDO
CASERMEIRO, La distincin entre el derecho penal y el derecho administrativo sancionador. Un anlisis de poltica
jurdica, 2010. Moreover, the studies of GARCA ALBERO, in QUINTERO OLIVARES/MORALES PRATS, El Nuevo
Derecho Penal Econmico. Estudios Penales en Memoria del Profesor Jos Valle Muiz, 2001, pp. 295-400, among
others, stand out, as well as NAVARRO CARDOSO, Infraccin administrativa y delito: lmites a la intervencin del
derecho penal, 2001.
13
GARCA ALBERO, RECPC, 2007, pp. 2-3. It is also interesting to verify how in the context of the aforementioned
reforms offenders are already depicted in an excluding manner, something that until today only occurred in certain
areas of criminal law, such as juvenile criminal law or very specific crimes, such as property crimes, sexual offences
or gender violence. Traffic offences are to be considered from now on as traffic violence, and road traffic offenders
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Surprisingly, in criminal law doctrine, the frequency with which the aforementioned unity of the
punitive power of the State is emphasized integrated, as seen, both by criminal law and the
administrative sanctioning system- has not been accompanied by the necessary analysis that
verifies what is occurring with this other punitive sector. The references to the administrative
sanctioning system are usually connected with the subsidiarity principle of criminal law. Criminal
law is as it is unanimously agreed- the ultima ratio, and therefore can only be used when other
less severe options are judged not satisfactory enough to effectively protect the legal rights. As it
is well known, among those other less severe options we find the administrative sanctioning law.
Furthermore, the latter usually appears as the least severe option most frequently employed as
an alternative to criminal law in decriminalization initiatives.
However, we verify that this difference of severity is, in many cases, only valid in theory, since in
practice administrative sanctioning law can be considerably more severe than criminal law. In
these cases, arguing that we apply administrative sanctioning law because it is less severe than
the latter constitutes an evident contradiction
14
.
We must stay alert more than ever with regards to the current law and order model of criminal
law, since the punitive elements may filter into the administrative sanctioning law a punitive
power that shows beforehand an important violation of rights in comparison with criminal law-,
and could cause a significant loss of citizen freedom.
We cannot talk, however, about a global transfer of this model into the administrative sanctioning
system, since some of the formers characteristic elements make reference to the penitentiary
system or, more precisely, the prison penalty and, given the prohibition of the Public
Administration in Spain to impose prison sanctions, as determined on art. 25.3 of the Spanish
Constitution, these elements of the model will be absent from a punitive administrative
sanctioning law.
3. Specific signs of a law and order approach to the administrative
sanctioning system
After having defined the elements of the aforementioned law and order model in the first
epigraph, and after having fixed the frame of reference for the relationship between criminal law
and administrative sanctioning law in the second epigraph, I will proceed to verify to what extent
do the characteristics of this model are reflected in the administrative sanctioning system. For this
purpose, I take two starting points: first and as already mentioned, not all aspects of the punitive
approach to criminal law affect the administrative sanctioning system, and consequently we will
only study those which are relevant; secondly, I will proceed to an adaptation of the model, in
accordance with the peculiarities of the punitive administrative law. As a result of this work, we
should obtain the elements for an law and order model in administrative sanctioning system,
which I have grouped in two different groups. The scope of this study, however, does not enable
us to go into great depth on all the issues that arise.
3.1. Rediscovering public order, fear of crime and absence of citizen distrust towards
administrative law enforcement agencies.
We have been witnessing for some time now a revitalization of public order initiatives from behalf
of the administrative sanctioning system. Intending to fight against widespread fear of crime

are to be characterized as traffic terrorists. About the depersonalized connotation in other areas, see DEZ
RIPOLLS, RECPC, 2004, p. 9. Concerning administrative sanctioning system, we can highlight some new initiatives
in this direction, as we can see regarding some municipal ordinances which are intended to, literally, prevent
vandalism. For instance, see Ordinance on Protecting Citizen Coexistence and on Vandalism Prevention in Public
Places of Motril.
14
See ARROYO ZAPATERO, Revista Penal, 1997, p. 6.
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during the last decade
15
, the intervention of punitive administrative law is reinforced in issues that
can be included within the notion of public order, aimed at supposed threats coming from different
recreational or leisure activities, perceived until recently as either innocuous or that entailed
tolerable damage.
The use of a wide concept of public order had been left aside in Spain until recently due to its
authoritarian reminiscence
16
. It is arguable that the use of punitive power on behalf of the
Administration on this matter was not perceived as very attractive, as well as politically not
beneficial, as was proven by the intense controversy caused some time ago on Organic Law
1/1992, February 21, on the Protection on Public Safety
17
. We are now far away from this
context. Nowadays the protection of public order has become a priority compared to other
interventions of the Public Administration that focus on the protection of other theoretically more
important collective legal rights. In conclusion, public order is no longer an uncomfortable item in
the political agenda and is accepted as a necessary evil; on the contrary, it is now positively
valued.
It is time to analyze some of the initiatives that have had an impact on public order which, as
mentioned previously, focus on certain recreational or leisure activities that are prejudicially
assimilated to citizen insecurity. One of the most significant is the prohibition of the consumption
of alcoholic drinks in public places. Some of the most significant legal initiatives in this direction
are Law No. 5/2002, June 27, of the Madrid Autonomous Community on Drug Dependence and
Other Addictive Disorders, the Legislative Decree No. 1/2003, of the Valencia Autonomous
Community which approves the combined Text on Drug Dependence and Other Addictive
Disorders and Law No. 7/2006, October 24, of the Andalusian Autonomous Community on
Administrative Powers Concerning Certain Leisure Activities in Public Places of Andalusias
Municipalities.
It is true that social phenomena like the so-called botelln (young people drinking on the streets)
cause an undesirable acoustic impact and, occasionally, negative effects in terms of public health
which should be prevented. Another reasonable objective would be the prevention of underage
drinking. However, there are two signs of the law and order model in the response given to this
problem by parliament that worry us: on the one hand, that the basis of this prohibition does not
exclusively and sometimes not even predominantly- lie in the aforementioned problems, but
instead tries to redirect alcohol consumption to healthier habits. Moreover, parliament is
particularly concerned that certain leisure activities take place outside the institutionalized
channels
18
.

15
Although the levels of fear of crime are not constant, this item appears always at the top of the issues of public
concern in the CIS (Spanish Sociological Research Centre) statistics. It is worth noting that this prevalence of fear of
crime has no relation at all with an increase of criminal behaviour in the country. This can also be seen in statistical
studies that cover years where fear of crime had decreased considerably, such as 2004 and 2005. On this subject,
see SERRANO GMEZ/VZQUEZ GONZLEZ, Tendencias de la criminalidad y percepcin social de la
inseguridad ciudadana en Espaa y en la Unin Europea, 2007, pp. 113-121. Also see GARCA ESPAA/PREZ
JIMNEZ, Evolucin de la delincuencia en Espaa y Andaluca: anlisis e interpretacin de las estadsticas oficiales.
Informe del Observatorio de la Delincuencia en Andaluca 2004, 2004, pp. 24-25.
16
POLAINO NAVARRETE, Revista Jurdica de Castilla-la Mancha, 1989, p. 67, condemns the use of a broad
concept of public order in acts or regulations, often full of prejudices, which promotes a punitive extralimitation. On
the other hand, Jimnez Daz warns against the use of citizen security as an alibi to restrict fundamental rights, see
JIMNEZ DAZ, Seguridad ciudadana y derecho penal, 2006, pp. 23, 18-19.
17
Which, consistent with what has just been said, led to the political stigmatization of his main promoter, inasmuch
as this act became known in the media as the Corcuera Law, or even more strikingly, Kick at the door Law.
18
See, for instance, the Statement Of Intent of Law No. 7/2006, October 24, of the Andalusia Autonomous
Community on Administrative Powers Concerning Certain Leisure Activities in Public Places of Andalusias
Municipalities: Leisure in city centres of Andalusia has undergone in the past years new forms of expression that do
not depend, in most cases, on the leisure activities offered by public establishments destined for entertainment or
recreational activities. It is the meeting or gathering of people, in certain public places of the cities, to drink, chat and
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In the end, what is really worrying about this public policy is that it does not only affect the
botelln phenomenon. After all, most municipalities have allowed certain public places where this
practice can be carried out.
On the contrary, the prohibition expands to fully innocuous behaviours which are not related to
the botelln. For example, spontaneous gatherings of people in the streets in which one or two
people may eventually consume alcohol or just the individual consumption of alcohol in the
street
19
. In order to reinforce this prohibition, many local ordinances have prohibited buying and
selling alcohol during night hours, even if it ends up affecting non-harmful behaviour, for example,
in individual alcohol trading, even for home consumption
20
. In Spain, this has been tried to be
regulated, although yet without success, on a national scale, of which the most recent legislative
initiative is the Draft Bill on Health Measures for the Protection of Health and the Prevention of
Underage Alcohol Consumption, which was finally withdrawn
21
.
In my opinion, it becomes clear that we are losing citizen liberties in a number of matters, in which
the punitive power of Administration takes part. MILLs premise is still as valid as ever according
to which society must not interfere in the lifes plan of the citizens as long as these plans do not
cause damages to a third party
22
. Nevertheless, the average citizen does not seem to be
concerned about this problem, which is one of the basic elements of the punitive model: the lack
of distrust of possible abuses from the punitive power of the State
23
. The severity of the punitive
power of the Administration regarding public order is willingly received, with the hope that this
achieves a greater public safety and peace, even if it implies reducing citizen interactions that are
not even problematic behaviours for a peaceful coexistence and citizen security.

listen to music, among other activities. This new way of group interaction causes a number of consequences that
collide with other citizens rights. It is evident that such gathering of people leads, firstly, to an abusive consumption
of alcohol and other unhealthy habits, and secondly, to an undesirable acoustic impact in residential districts, which,
among other problems, affects negatively the normal development of citizen coexistence, together with the health
and personal safety of the people. Parliament would have been right if they had limited the Statement of Purpose to
a problem of noise pollution, which, as pointed out, is not what occurred.
19
As an exception, the Ordinance on Measures for the Promotion and Guarantee of Citizen Coexistence in Public
Places of Barcelona does not generally prohibit or punish individual consumption of alcoholic drinks in public places,
as long as these are no bottles or cans. See art. 46, where we can find a more careful distinction between which
behaviours are really offensive and which are not.
20
See, among others, First Additional Provision of the Ordinance on the Regulation of Coexistence and Leisure in
the Municipality of Talavera de la Reina; art. 9.4 of the Ordinance on the Regulation of Municipal Action concerning
Unlawful Trading, Dispensing, Supplying and Consumption of Alcoholic Drinks of Alicante; art. 14.2 c) of the
Municipal Ordinance on the Regulation of Advertising, Trading and Consumption of Alcohol and Tobacco of
Estepona.
21
According to the first two paragraphs of article 13 of the mentioned Draft Bill, During the night, retail trading and
dispensing of alcoholic drinks is forbidden in such establishments or areas in which immediate consumption is not
allowed. It is understood by night the period between ten oclock and eight oclock of the following day, without
prejudice to more hourly restrictions that may be enacted by the Autonomous Regions.
According to the previous paragraph, the delivery or distribution service of alcoholic drinks obtained in
establishments or companies authorized to retail trading or distance selling by any other procedure must not be
carried out during night hours. As can be seen, this prohibition supposedly thought to prevent underage exposition
to alcohol, ends up extending itself to the adult population.
22
MILL, On Liberty. London: Longman, Roberts & Green, 1869; Bartleby.com, 1999. www.bartleby.com/130/ ,
Chapter I, p. 9: the only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.
23
Similarly, see MILL, On Liberty 1869/1999, Chapter I, p. 8, writing about nineteenth century England: there is
considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so
much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the
government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of
the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as
much exposed to invasion from the government, as it already is from public opinion.
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This can be proved not only by the citizens passive attitude towards the cut in their rights, but
also by the fact that these cuts are precisely actively promoted by certain groups of citizens, as
can be verified by the energetic protest of some groups after the Ministry of Healths
announcement regarding the withdrawal of the already mentioned Draft Bill on Health Measures
for the Protection of Health and the Prevention of Underage Alcohol Consumption.
We have, thus, reached a point in which any innocuous behaviour can be prohibited and/or
punished preventively. This implies an important threat to freedom, as it is based on an argument
that is by itself insatiable. It allows not only to predict an uncontrollable expansion of the punitive
administrative law, but additionally, -and here lies the novelty- that this expansion may focus on
everyday patterns of coexistence or on unharmful behaviour, which have until now been solved
directly through social interaction
24
. As DEZ RIPOLLES and CEREZO DOMNGUEZ rightly
assert: The punitive social control ends up extending itself to behaviours that, not being criminal,
are considered incorrect in certain public places. This leads to an undesirable proliferation of
formal social control which reaches beggars, street vendors, vagabonds, groups of idle young
people, and even any kind of gatherings for political, trade unionist or assertive reasons. To this
we must add that the concept of what is correct or incorrect in certain public places does not
exactly correspond with public interests
25
.
Once again, it is very useful to turn back to MILL, who subjects to criticism with a surprisingly up-
to-date sense, and precisely concerning some parliamentary initiatives aimed at the prohibition of
the alcohol trade, the assert of an unlimited right in the public not only to prohibit by law
everything which it thinks wrong, but in order to get at what it thinks wrong, to prohibit any number
of things which it admits to be innocent. According to this author, so monstrous a principle is far
more dangerous than any single interference with liberty; there is no violation of liberty which it
would not justify
26
.
Undoubtedly, the acceptance of the town councils punitive power in Spain through regulations
without statutory force, in particular municipal ordinances
27
, -although probably necessary in
general terms
28
- has had much to do with the prohibition of behaviours of very little offensiveness,

24
Without going any further, the prohibition of smoking in the street, as is the case in some municipalities of The
United States of America, like Burbank. See Ordinance No. 3717 Of The City Of Burbank on reform of the Municipal
Code To Control Exposure To Secondhand Smoke By Prohibiting Smoking At Certains Locations Throughout The
City (http://www.burbankca.org/planning/pdf/ords/ord3717.pdf), where smoking is prohibited everywhere, apart from
you home, your car and the specifically designed places on the streets where smoking is allowed. Although in Spain
we are still far from this situation, a certain resemblance can be observed between the development of some
legislative initiatives of United States of America concerning the smoking ban and the evolution of prohibition of
selling and consuming alcoholic drinks in recent Spanish reforms, for example, it began with the prohibition of
smoking in certain closed spaces, with the reasonable objective of preventing non-smokers from being exposed to
health damages, and it ended with a total smoking ban, a socially widespread behaviour.
25
DEZ RIPOLLS/CEREZO DOMNGUEZ, PC, 2007, pp. 1-25
[http://www.politicacriminal.cl/index.php?option=com_content&task=view&id=31&Itemid=9]. According to the authors,
such deviance from the real public interest often responds to prohibiting behaviour for strictly economic reasons,
trying to ensure that city centers, or certain areas, remain attractive for business.
26
MILL, On Liberty 1869/1999, Chapter IV, 18-19.
27
See art. 139 of Law 6/1986, on Foundations of Local Government, after the reform made by Law 57/2003,
December 26: for an adequate regulation of the coexistence of local interest, and of the use of public services,
equipments, infrastructures, facilities and public spaces as well, the local governments, in the absence of specific
regulatory provisions, will set infractions and punishments for the non-compliance of orders, prohibitions or
restrictions contained in the corresponding Ordinances. The most severe contemplated punishment is of 3000 ,
according to art. 141 of the mentioned Law.
28
Completely in favour of the administrative punitive powers of the local governments, see NIETO, Derecho
Administrativo Sancionador, 2005, pp. 320-347.
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which in any case had been tolerated until recently: shouting, sleeping in a parks bench, spitting,
singing in the street, certain forms of begging, etc
29
.
Moreover, prostitution has become, after a long period of tolerance, a field of punitive
administrative intervention, arguing reasons such as the prevention of sexual exploitation, or
simply the explicit need for the prevention of the exhibition of sexual conducts, in other words,
what has been traditionally understood as maintaining a sense of decorum. In this sense, it is
worth highlighting the Ordinance on Measures to Promote and Guarantee Citizen Coexistence in
the Public Places of Barcelona, in which its article 39 establishes the prohibition to offer, request,
trade or accept, directly or indirectly, paid sexual services in public places when those practices
exclude or restrict the compatibility of the different uses of public places. It is a clause that
allows, euphemistically, the generic punishment of street prostitution. Its article 39.3 establishes
that similarly, it is specially prohibited to have paid sexual intercourse in public places. In any
case, why condition this administrative-punitive intervention to the existence of profit? Is it not
equally disturbing for our peaceful coexistence the presence of free sexual intercourse, or their
offer, request, trade or acceptance for free? The question proves where the problem of using
punitive law, through an excessively wide notion of prevention, to prevent unharmful forms of
interaction lies: that we know where it starts, but not where it ends. In this sense, the recently
approved Ordinance on Measures to Promote Citizen Coexistence in Public Places in Granada
prohibits, generically, in its article 54.1, sexual intercourse in public places. It also prohibits, also
generically and straight to the point, solicitation in any public place of the municipality. It implies
an explicit leap towards the protection of morality
30
.
The municipal governments have seen, in short, a productive vein to intervene in the citizens life
plans, colliding in a significant number of cases against the free development of personality,
considered by article 10 of the Spanish Constitution as one of the foundations of political order
and social peace, a social peace diametrically opposed, as we can see, to the notion of peaceful
coexistence that is being used in some municipal ordinances.
But this enhancement of public order is not only reflected on the administrative sanctions, but for
some years now, in certain preventive administrative measures, among which we can mention
video vigilance. This measure was established by Organic Law No. 4/1997, August 4, on the
Regulation of the Use of Video Cameras by the Security Forces and Bodies of the State in Public
Places, and its corresponding Regulation, carried out by Royal Decree No. 596/1999. However,

29
See, for example, arts. 43.1 and 58.2 a) of the Ordinance on Measures to Promote and Guarantee Citizen
Coexistence in the Public Places of Barcelona, and art. 71 in connection with art. 5.1 of the General Ordinance on
the Regulation of Urban Environment of Barcelona; art. 23. c) of the Municipal Ordinance on Measures to Promote
and Guarantee Citizen Coexistence in the Public Places of Seville. Specially arbitrary and out of proportion is its art.
33.3, which considers that Offering vehicle drivers parking spaces in the public place for profit, for non-authorized
people, will be considered at any rate as a coercive form of begging; arts. 13.2 and 15.1 of the Ordinance on the
Protection of Citizen Coexistence and Prevention of Antisocial Behavior of Valladolid. Significantly restrictive and
moralistic is the Ordinance on the Protection of Citizen Coexistence and Prevention of Antisocial Behavior of
Santander, which prohibits singing or shouting beyond the limits of mutual respect. DEZ RIPOLLS/CEREZO
DOMNGUEZ, PC, 2007, pp. 1-25, warn about promoting this kind of punitive administrative law interventions.
30
According to this regulation:
Article 53. Basis of regulation.
1. The behaviours typified as infractions in this section aim at preventing the exhibition of sexual practices and the
demand and offer of sexual services in the street, with the purpose of maintaining the pacific coexistence in public
spaces in the City of Granada, avoiding viability problems in public places and preventing the exploitation and slavery
of specific groups.
Article 54. Norms of conduct.
1. According to the purposes contained in the previous section, sexual practices, offering, demanding, trading and
accepting, directly or indirectly, of sexual services for profit in the public spaces of the City of Granada are prohibited
in all the municipality, especially when it excludes or restricts the compatibility of the different uses of such public
space.
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such preventive measure is not established to prevent any administrative infraction, but only
those affecting public order. Article 4 of the aforementioned Organic Law establishes that for the
installation of video cameras the following criteria will be taken into account, in accordance with
the proportionality principle: to guarantee the protection of public buildings and facilities and their
accesses; to protect the useful facilities for national defence; to verify infractions against citizen
security; and to prevent damages caused on people and goods
31
. The prejudicial assimilation of
administrative public order offences to criminal behaviour or to more severe administrative
offences is more than evident, inasmuch as citizen security is regarded so broadly by current
Spanish punitive administrative law, that mere asocial or disorderly behaviours are considered as
infractions
32
. In the end, the important factor is that video vigilance is to be used to pursue this
type of behaviours, often defined as severe or very severe administrative offences according to
many municipal ordinances.
3.2 Revaluating the afflictive elements in the punitive power of the Public Administration.
Although, as we have just seen, the harshness of certain administrative sanctions has always
been subject to criticism, sometimes even more than certain criminal law punishments, this
severity has been increasing even more in these recent years. This is not only due to the
increasing harshness in administrative law sanctions strictly speaking
33
, but to certain
consequences related to the sanction itself. I would like to highlight three aspects in which the
mentioned harshness of the punitive administrative law is revealed:
Firstly, the well emphasized intension of causing stigmatizing effects. In this sense, the
establishment of administrative offence records covering several fields of the Administration, such
as road traffic, environment, hunting, consumption, as well as certain spheres of public order,
appears especially illustrative
34
. All of these have developed in these past years, highlighting its
accordance with the new punitive model. However, we must take into consideration that these are
not records of public access since, according to Organic Law No. 15/1999, December 13, on the
Protection of Personal Data, the personal data concerning criminal and administrative law
offences are considered especially protected. Such legal treatment implies that this data can
only be included in files of the legitimate Public Administration in the cases determined by the
respective regulations. What is also true, however, is that the requirements to access those
records are occasionally not strictly configured in the mentioned regulations compared to the

31
The affectation on constitutional rights by video vigilance is evident. Hence, article 3 of the commented regulation
sets a number of cautions and guarantees, such as the need for a mandatory report by a Commission presided by a
Magistrate, previous to the authorization of the video camera devices by the administrative authorities.
32
In this sense, see DEZ RIPOLLS/CEREZO DOMNGUEZ, PC, 2007, where they argue that, for such forms of
behaviour, the right solution is the resort to social policies. This work also offers an empirical study on the
effectiveness of video vigilance focused on the City of Malaga between 2006 and 2008.
33
This is also happening with punitive administrative law. For instance, the Organic Law 2/2009 December 12, on the
Reform of Organic Law 4/2000, January 11, on Rights and Liberties of Foreign Citizens in Spain and their Social
Integration, is characterized by the increasing harshness of administrative sanctions in the field of immigration.
34
See on this subject a general overview by GARCA ALBERO, in QUINTERO OLIVARES/MORALES PRATS, El
Nuevo Derecho Penal Econmico. Estudios Penales en Memoria del Profesor Jos Valle Muiz, 2001, p.358.
Regarding the aforementioned concrete regulations, see, for example, art. 82 of the Road Traffic and Traffic Security
Act, as determined by Law 17/2005, July 19, which establishes a traffic offenders record. It is the most important
regulation, although it is not the only or the first case that can be found in Spain. See several other examples of the
establishment of administrative offender records in the environmental field: article 103 of Law 7/2006, June 22, of the
Autonomous Region of Aragon, on Environmental Protection; Regulation of the Autonomous Region of Madrid on
Organization and Operation of Environmental Sanctions Record (of 2006); on the subject of hunting, see: article 67
of Law 13/2004, December 27 of the Autonomous Region of Valencia, on Hunting; article 72 of Law 4/1997, June 24,
of the Autonomous Region of Galicia, on Hunting; on the field of consumption, see First Additional Provision of Law
13/2003, December 17, of the Autonomous Region of Andalusia, on the Defence and Protection of Consumers and
Users.
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criminal records regulation, sometimes being a sufficient condition, without any further
requirements, being an interested authority of the Administration in order to gain access
35
.
We must take maximum caution at this point in order to protect personal privacy. Moreover, we
must not forget that such administrative records are very attractive for certain interested people,
such as some insurance companies which have not doubted in requesting access to the
administrative offence records, something that, at least until today, the Data Protection Agency
has denied
36
.
Anyway, the aforementioned restrictions will not be of great use if dealing with direct defaming
administrative sanctions, as those defined by article 29.1 a) 5
th
of Law 37/2003, on Noise, which
establishes as an administrative sanction for very serious offences concerning noise pollution, the
publication of the sentence by the media, together with the names, surnames or registered
names of the responsible natural persons or legal entities.
In the second place, we must refer to the intensification of some preventive measures. This is
highlighted not only by the introduction of some previously unknown measures in the punitive
administrative system, as occurs with the aforementioned video vigilance, but, above all, by the
recently developed preventive measures concerning immigration. The Spanish Administration is
empowered to preventively deprive immigrant citizens of their freedom in order to ensure their
subsequent expulsion of national territory. This measure is planned for such cases in which an
administrative sanction of expulsion from national territory may be foreseen, as established by
article 62.1 of Organic Law 4/2000, January 11, on the Rights and Liberties of Foreign Citizens in
Spain and their Social Integration. Article 62.2 of this law, -as determined after the recent reform
carried out by Organic Law 2/2009, December 11- establishes that the detention will be
maintained as long as necessary in order to guarantee the purpose of the disciplinary action,
being its maximum length of sixty days, without the possibility of establishing a new detention for
any of the causes defined in the same disciplinary action.
This regulation implies a noticeable harshening of the measure in Spain, which go beyond the
punitivism that inspires the 2009 reform
37
. This is in line with the European Parliamentary
Legislative Resolution of 18 June 2008 on the proposal for a directive of the European Parliament
and of the Council on common standards and procedures in Member States for returning illegally
staying third-country nationals, which authorised an extension of the maximum length of the
preventive detention that, according to the comprehensive interpretation of paragraphs 5 and 6 of
article 15, may extend to a year and a half. The approval of the mentioned Resolution has
represented, as has become clear, an open door for the punitive temptations of the legislative. At
the same time, it proves that elements of the new model are also appearing in the European
context
38
.
Finally, it is worth noting the intension of reeducation through administrative sanctions
disregarding the guarantees present in criminal law. In a social and democratic State, the

35
See for instance article 6.2 of the Regulation of the Autonomous Region of Madrid on Organization and Operation
of Environmental Sanctions Record.
36
See http://www.lukor.com/not-esp/nacional/0411/10122400.htm.
37
Moreover, it is a paradox that the maximum length of the preventive deprivation of liberty in case of extradition due
to the commission of a crime forty days- is less than the preventive deprivation of liberty that has the purpose of
ensuring the expulsion of immigrants. This had already been evidenced during the parliamentary process of Organic
Law 2/2009, December 11. See, in this sense, amendments 68 and 69 of the Draft Bill of the mentioned Organic
Law, which also highlight the contradiction between the preventive deprivation of liberty for more than forty days and
the requirements of the Spanish Constitutional Court Judgment No. 115/1987. For further information see:
http://www.congreso.es/public_oficiales/L9/CONG/BOCG/A/A_031-08.PDF
38
Perhaps the most representative example is Italy, where mere illegal immigration has been defined as crime. See
Legge 15 luglio 94/2009, on Disposizioni in materia di sicurezza pubblica, which punishes such conduct with a fine of
5.000 to 10.000 .
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resocializing goal should constitute a right of criminals and offenders, an offer and never an
imposition
39
. This unanimous premise is not always fulfilled by the punitive administrative law in
his recent but also resolute bet on achieving reeducation effects. This is the case, for example,
for road traffic offences, in which the only way of preventing a definite barring of the driving
license is that the offender consents on being reeducated and made aware
40
. Perhaps we should
not be too alarmed by such legal regulations, since they still do not reach intolerable levels of
interference in the offenders conscience. Nevertheless, we must point out two factors: one, it is
absurd because of its ineffectiveness- to impose a treatment by force; two, and beyond the
pertinence or not of this reform, the practically unknown ability of the punitive administrative
system to aspire to resocializing aims has been clearly demonstrated.
Until the first years of the last decade, the only situation in which this occurred was in the
suspension of the sanction for offences related to drug consumption, as established in article 25
of Organic Law 1/1992, February 21, on the Protection of Public Safety, as long as the offender
agreed to receive a detoxification treatment
41
. Nowadays, interventions of the punitive
administrative law in search of establishing alternative administrative sanctions to fines with a
resocializing purpose have multiplied, but not the conditional suspension of the administrative
sanction.
In this last sense, what stand out are the so-called antibotelln laws according to the media of the
Autonomous Regions of Madrid and Valencia, which have already established, although with little
success, administrative sanctions of community service that, even if they sometimes may appear
as the main sanction, they are not compulsory.
According to article 55.2 of Law No. 5/2002, June 27, of the Madrid Autonomous Region on Drug
Dependence and Others Addictive Disorders, -in its original version of 2002, later reformed in
2004-, the consumption of alcoholic drinks in public places is considered a minor offence, and the
established sanction consisted on community services which are not to be imposed without the
offenders consent, and which are to be carried out for a previously defined number of sessions,
in the benefit of the community or of people in need. The nature of the activity will preferably
relate to the legal rights affected by the deed committed by the offender. If the latter does not give
the previously mentioned consent, the measure will be substituted by the corresponding fine. By
the way, this sanction was aimed at any offender, whether or not underage. The alternative fine
fluctuated between 300 and 30,050 . This regulation was not carried out in practice, since all
references to community service sanctions were revoked by a subsequent reform, Law No.
2/2004 May 31 of the Madrid Autonomous Region on Fiscal and Administrative Measures.
Moreover, the Legislative Decree No. 1/2003, of the Valencia Autonomous Region on the
approval of the combined Text on Drug Dependence and Others Addictive Disorders clearly
states the objective of rehabilitation. In this case, however, community service sanctions are only
aimed at underage offenders, which are not configured as the main sanction but as an alternative
sanction to the corresponding fine (articles 18.4 e) and 52.6).
In short, the Spanish public administration has definitely committed to the goal of resocialization,
which demands adopting measures to prevent possible extralimitations in the accomplishment of
these objectives.
Nevertheless, we must admit that, precisely in the municipal sphere, there is, apparently, a
positive use of the potentials of resocialization from a democratic point of view, that is, as an
option for the offender. The municipal ordinances that call themselves resocialization ordinances

39
MIR PUIG, Funcin de la pena y teora del delito en el Estado Social y Democrtico de Derecho, 2 ed., 1982, pp.
34, 36-37.
40
See article 63.3 of Road Traffic and Traffic Security Act, as determined by Law 17/2005, July 19.
41
See article 25, paragraphs 1 and 2 of the mentioned law, as well as the Royal Decree 1079/1993, July 2, on
Administrative Law Sanctions Forgiveness and Monitoring of Habit Treatments.
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have been increasing considerably in Spain in the last years, and they focus predominantly
though not exclusively on offenders between 14 and 30 years old. They offer an alternative
sanction to the administrative fine in the form of community service for several administrative
fields. All of them follow to a greater or lesser extent the lines of the penal code, and they also
tend to transfer the objective of resocialization established by article 25.2 of the Spanish
Constitution into the administrative sanctioning system. Depending on the subject, the alternative
sanction may be restricted only to certain specifics fields of the Public Administration, such as
road traffic or the environment, although it usually excludes matters such as taxes or urban
development. The method of substitute calculation always consists of substituting 30 of fine for a
day of community service
42
. At any rate, the accomplishment of the alternative sanction is fully
voluntary. Additionally, this alternative has the potential to offer more profitable effects,
preventively speaking, than the ordinary administrative fine, generally not very successful in the
achievement of preventive effects.
For this reason, in my opinion, we are in the right path, although its real effectiveness still remains
to be seen
43
. We can thus formulate, despite the necessary suspicions, an optimistic prediction
on the establishment of the resocialization goal in the punitive administrative system. It is, in any
case, a process from which there is no turning back.
4. Explanatory validity of the criminal model of law and order applied to the
administrative sanctioning system and lines of behaviour
In the previous epigraph we went through the recent legislative initiatives that could show some
first signs of the law and order model applied to the administrative sanctioning system. Are all of
them really symptomatic of a presence of the depicted model in the punitive administrative law? It
is an arguable question. It is true that some of the mentioned characteristics might be the result of
other circumstances not necessarily related to the commented model. In this sense, the creation
of administrative offence records has been established in other European countries long time
ago
44
. However, it raises reasonable suspicion the emphasis with which different legislators from
the autonomous communities are currently promoting stigmatizing elements. Additionally, we
have verified that those stigmatizing effects are on occasions explicitly sought by legislators,
without the restrictions to public access to data imposed by registries of offenders. Regarding the
resort to compulsory reeducational treatments by the administrative sanctioning system, we
observe that they are still not very significant in quantitative and qualitative terms, which link them
closely enough to the implementation of the law and order-based administrative sanctioning
system. The example of road traffic legislation, though significant, is the only case in which a
wrong use of resocialization can be found.
Nevertheless, the rest of the mentioned elements of the model in other words, the prevalence of
public order and citizen security, and the increasing harshening of administrative law

42
See, for instance, among others, the Municipal Ordinance of Motril on Education and Resocialization through
Alternatives to Economic Sanctions by means of Community Service. This alternative may be applied to almost
whatever infraction to administrative local regulations regardless of the age of the offender, who can be underage or
of age, and with the exception of areas such urban development, taxes and severe road traffic offences, together
with multiple recidivism; Municipal Ordinance of Chipiona on Commutation of Economic Sanctions by Community
Service; Municipal Ordinance of Sanlucar de Barrameda on Resocialization (2007); Municipal Ordinance of Jerez on
Education and Resocialization; Municipal Ordinance of Villamartin on Education and Resocialization (2009);
Municipal Ordinance of Cieza on Education and Resocialization.
43
According to information provided by the Jerez Council, more than three hundred young people have submitted to
community service as an alternative to fines. A relevant percentage of offenders have fulfilled the complete process,
and consequently have been able to know in detail the infringed norms and the negative consequences caused by
their behaviour. (http://www.jerez.es/index.php?id=830).
44
On the presence of stigmatizing elements of punitive administrative law in other European countries, see
GARBER LLOBREGAT, La aplicacin de los derechos y garantas constitucionales a la potestad y al procedimiento
administrativo sancionador, 1989, p. 67.
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punishments as well as of other preventive measures which imply significant cuts in some
fundamental rights-, in my opinion, adjust perfectly to this new intervention paradigm, without
counting on other plausible explanations to this phenomenon, nor on significant precedents in our
present democracy. We can thus conclude that they all move in the same direction. This is
especially the case of the administrative punitive interventions in the field of citizen security. If we
look at it this way, it could be an appendix of criminal policies or, at least, peripheral strategies to
criminal policies- whose success is based on achieving tranquillity in the streets. What is really
happening is that disturbing attitudes are being encouraged, I would not call them of zero
tolerance, but definitely of little tolerance, all based on two already mentioned elements of the
analyzed model: the prevalence of classical delinquency and fear of crime. In other words, as
MEDINA states, the presence of noisy teenagers drinking beer in the street or shadowy deserted
buildings could increase the perception of risk on passerbies, and subsequently, increase their
fear of crime. If I may say so, it is fixing the broken windows by means of an illegitimate use of
the punitive administrative law
45
.
Although in general we cannot rightfully talk of the outburst of the law and order model in the
administrative sanctioning system, I do believe it is appropriate to qualify these last legislative
reforms in the field of punishment as the pioneers of the law and order model that could also be
established definitely in the near future in the punitive sphere of the Public Administration.
Different is the conclusion regarding the municipal sphere: here, I would say that the model is
completely in force, at least in several of Spains largest capital cities, turning the punitive
intervention of the Public Administration into a significant part of the machinery of the criminal
punitive model itself, rather than into a manifestation of the analyzed model in the administrative
law sector, since, as has became clear, this paradigm is not restricted to criminal law, the criminal
justice system or penitentiary policies, but also needs the incorporation of certain fields external
to criminal policy in order to achieve it purposes (generally speaking, police control practices or in
this case local government control, which can be conceived as of zero tolerance).
At any rate and in this context, we must emphatically demand the observance of the structural
principles of punitive intervention in other words, of the legitimization of the ius puniendi- which
no longer enjoy parliaments privileged attention, both in the fields of criminal law and punitive
administrative law. Among these, perhaps the most important is the principle of offensiveness
46
.
Such principle restricts punitive intervention only to cases in which an externally perceptible harm
to coexistence may be verified
47
, which, as we have already seen, is far from occurring in some
of the studied legislative and normative initiatives. According to these criteria, the conditions of
prohibition and punishment of consumption of alcoholic drinks should be reconsidered. In this
sense, for instance, the prohibition and punishment by the administrative sanctioning system
could be limited only to those cases in which a problem of public health or a negative acoustic
impact in residential areas could be verified, without generalizing to the prohibition of the
consumption of alcoholic drinks in public places. Similarly, conflictive behaviours whose solution
could be left to citizen interaction should be excluded from the administrative punishment system.

45
See MEDINA, RECPC, 2003, p. 4, which also links the context of fear of crime with the WILSON and KELLING
broken windows theory.
46
A categorical defence of the necessity of respecting this principle in the administrative sanctioning law can be
found in REBOLLO PUIG, Potestad sancionadora, alimentacin y salud pblica, 1989, p. 632. Also in SUAY
HERNNDEZ, Cuadernos de Derecho Judicial, 1997, pp. 123-174, pp. 139, 168-169.
47
We can argue, as DEZ RIPOLLS, La racionalidad de las leyes penales. Prctica y teora, 2003, p. 138, that
there is no harm in two situations: firstly, when the behaviour does not affect the individual life plans of other people;
secondly, when we are dealing with conducts that, even if they affect the life plans of a third party, might be
considered as connatural to social interaction and do not demand a punitive intervention, which could also depend on
an attitude of social tolerance towards a socially harmful behaviour. See also on this subject PALAZZO, Rivista
Italiana di Diritto e Procedura Penale, 1992, pp. 453-482, pp. 479-480. A very similar definition of harm can be found
in MILL, On Liberty, 1869/1999, Chapter I, pp. 8-9.
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In these cases, the resort to informal social control, accompanied by, when appropriate, the
corresponding integrative public policies, seems more adequate. Such is the case of, among
others, prostitution, begging, street vending and other bad-mannered behaviours, such as
shouting or spitting. With greater reason, the punishment of behaviours that are not even asocial
will infringe even more the harm principle: sleeping on the street, trading alcohol at night hours,
etc.
In the second place, legislators should promote an approach to social reinsertion that blends with
the requirements of a social and democratic state of law; this would redimension the role of social
treatment on administrative law, from an imposition to an offer. However, we must relativize this
criticism at this point, since we still have not reached a very dramatic situation. Moreover, it is
positively surprising that, in the municipal sphere, theoretically more prone to illegitimate
intervention, is where social reinsertion is being configured according to the Constitution.
Additionally, we should stop the unleashed exercise of punitive legislative powers that can be
observed at the level of local governments. In my opinion, I do not believe that in the present
context it is realistic to appeal to the current principle of legal reserve only theoretically, despite
its constitutional range
48
- of the punitive administrative law in order to question the legitimacy of
the punishing capacities of local governments. However, we could impose certain control
requirements in order to prevent possible arbitrariness coming from the punitive administrative
power of the local governments, as those we depicted earlier. Although this is not the place to go
into the details, perhaps we could take one first initiative in this direction regarding the Spanish
Constitution of 1812, which, without prohibiting the legislating power of the local governments to
elaborate their municipal ordinances, required that these were presented before the courts for
their approval
49
. This is however not a peaceful choice, since it opens an intense debate on the
extent of the decentralization of the Public Administrations in Spain and the local autonomies
proclaimed by article 140 of the Spanish Constitution. On the other hand and regardless of
whether the control of rationality of the ordinances is carried out by national or autonomous
regional instances, it becomes clear that the regulation theory must also be implemented in local
instances, for example, through mandatory reports which provide a control of rationality for such
regulations.
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