under review; ii) the forum of application for which the regulation was created, and iii)
the status of the persons which the regulation addresses.
200. In this regard, the Court notes that the Constitutional Chamber of the Supreme
Tribunal of Venezuela has analyzed compliance with the principle of legality in relation to
the sanctions provided for in Article 105 of the LOCGRSNCF. Said Tribunal has held that:
The principle of criminal codification requires a lex certa that provides legal certainty to the public
about the serious consequences of the administrative offense However, during the term in force of
ius puniendi of the State in the sanctioning administrative law, ethical standards of conduct have
been accepted that channel the verification of the administrative offense by way of the normative
description of events, facts, or omissions that generate administrative responsibility; in no way
could be they be likened to what criminal law calls "white criminal laws." [...] The fact is that in the
administrative forum, the implementation of what the doctrine called "indeterminate legal
concepts" is not banned; rather, they are used to verify the gradient level of the sanction of the
penalty, but not the offense itself. This is therefore an approach that gives the sanctioning body
discretion that does not conflict with the principle of criminal codification, as it should be satisfied
through a thorough and specific analysis of the facts and classification from the values involved in
the standard to the maximum required to justify why the sanction is to be imposed. What is
important to not incurr a violation of the principle of criminal codification is that the crime or
offense be clearly defined, as well as the sanction. [...] In the case of Article 105 of the
[LOCGRSNCF], it states that the declaration of administrative responsibility shall be punished by a
fine under Article 94 of the Law, pursuant to the severity of the offense and the type of damages
caused by following the provisions of Article 66 et seq of the Rules of Procedure of the Law [...]
and that the Comptroller shall impose the sanction of suspension without pay for a period not
exceeding twenty-four (24) months or dismissal of the responsible heading to the type of illicit
crime committed; and disqualification from public office for a maximum of fifteen (15) years
depending on the seriousness of the irregularity. The indeterminate legal concepts stated offer a
margin of discretionary fiscal control to the governing body for the gradation levels of sanctions in
response to the type of infraction and its effects. 273
201. Moreover, the parties argued that the degree of discretion that can be exercised
by the Comptroller at the time of imposing the disqualification is disproportionate and
that this is due to the alleged lack of a regulatory framework for grading the principle
sanctions and additional sanctions. In this regard, the Court notes that the Constitutional
Chamber of the Supreme Tribunal stated the following with regard to the principle of
criminal codification of the administrative sanctions:
However, this discretionary power, to be legal and legitimate is necessarily partial, given that the
legal mechanism (in this case [LOCGRSNCF]), must establish some conditions or requirements for
its exercise, leaving the other to the discretion of the competent body [...]In that regard, Article
12 of the Organic Law on Administrative Procedures, requires that the measure or ruling in the
opinion of the competent authority must maintain proportionality and suitability due to the
assumption made and under the purposes of the regulation, which is controllable by the
contentious-administrative court; what is unacceptable is to seek a declaration of annulment of a
general regulation based on the simple fact that it holds discretionary power. Judicial review of a
discretionary act could involve the annulment of the discretionary act, if incompetence is
highlighted of the entity that deems it, factual inconsistency (false assumption of fact), teleological
incongruity (deviation of power), or formal incongruence (procedural error). [...][U]pon being
properly codified in the [LOCGRSNCF], both the unlawful acts (Articles 91 and 92), as well as the
administrative penalties (Articles 93, 94, and 105); the discretional power of the auditing body is
not "blank law" because the parameters must be explicitly set forth in the Organic Law. 274
degree on the content of the instrument in question, the field it is designed to cover and the number and status
of those to whom it is addressed. También, Maestri v. Italy
273
Judgment No. 1.266 of August 6, 2008, issued by the Constitutional Chamber of the Supreme Tribunal
of Justice, supra note 31, folio 633.
274
Moreover, “it highlighted that even in this case, wherein the Administration acts with certain discretion,
this does not imply , “this does not mean that it can act arbitrarily, since its actions are always committed to
the principles of proportionality and appropriateness under the Article 12 of the Organic Law on Administrative
Procedures, which can be protected by the courts [...].” In this regard, it specified that “In regard to sanctioning
75
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