Written submissions (alegaciones) in a penalty procedure: how to defend yourself

The initiation agreement is the notification that formally opens the penalty procedure. Under article 64 of Ley 39/2015 (the Spanish Common Administrative Procedure Act, LPACAP), it must identify the facts attributed to you, their possible classification, the potential penalties, the instructor and the competent body to resolve the matter, and warn you of your right to make written submissions (alegaciones) indicating the deadline.

This deadline is set by the agreement itself: in practice it is usually between 10 and 15 working days (Saturdays, Sundays and public holidays do not count). In traffic matters it is different: 20 calendar days from the day following the notification, as confirmed by the DGT itself. Always read the last page of the notification, where the exact deadline for your file is stated.

From the very first moment you are assisted by the rights of article 53.2 LPACAP: to know the facts and the identity of the instructor, to access the file and obtain a copy of the documents, and the presumption of non-existence of liability until proven otherwise. Managora requests the file and prepares the written submissions (alegaciones) within the deadline for you.

The law gives you several moments to defend yourself: you can make written submissions (alegaciones) and provide documents at any time prior to the hearing procedure (article 76 LPACAP), after the initiation agreement, and again when you are notified of the resolution proposal, with a hearing procedure of 10 to 15 days (article 82.2 LPACAP).

They are not interchangeable. If you do not make any written submissions to the initiation agreement, it can be considered a resolution proposal when it contains a precise pronouncement on your liability (article 64.2.f LPACAP): the procedure accelerates against you without you having said a word. The resolutions of the AEPD apply this rule systematically.

The usual strategy is to make written submissions at both moments: at the beginning, origin defects are attacked (statute of limitations, lack of typicality, notification defects) and evidence is proposed; at the resolution proposal, the result of the evidence gathered is rebutted, because it is the proposal that establishes the proven facts in a reasoned manner. Letting the first procedure pass greatly reduces the margin of the second.

Statute of limitations of the infringement: in the general regime of article 30 of Ley 40/2015 (the Spanish Public Sector Legal Regime Act, LRJSP), minor infringements prescribe after 6 months, serious ones after 2 years and very serious ones after 3, counted from when they were committed. Sectoral regulations can shorten these deadlines: in traffic they are 3 months for minor ones and 6 months for serious and very serious ones (article 112 of the Ley de Seguridad Vial, the Spanish Road Safety Act).

Expiry of the procedure: if the Administration does not notify the resolution within the maximum deadline, the procedure expires and is archived (article 25.1.b LPACAP). This maximum deadline is the one set by the regulation of each sector and, if it does not set any, 3 months (article 21.3 LPACAP): in traffic it is 1 year and in data protection 9 months. Note: expiry archives the file, but the Administration can open another one if the infringement has not yet prescribed.

Lack of typicality: only behaviours described as an infringement in a regulation with legal status in force at the time of the facts are punishable (articles 25 to 27 LRJSP). If your behaviour does not fit exactly into the type, no penalty is possible.

Notification defects: notifications must be carried out in accordance with articles 40 to 44 LPACAP. A defective notification can invalidate subsequent acts or prove that the infringement prescribed before the procedure was initiated with your knowledge.

Lack of evidence and presumption of innocence: the burden of proving the facts corresponds to the Administration (articles 53.2.b LPACAP and 28 LRJSP). The reports of law enforcement officers enjoy a presumption of veracity, but admit evidence to the contrary: photographs, witnesses, expert reports or documents can distort them. Managora analyses your file, detects which of these grounds applies and articulates it technically in the document.

Article 85 LPACAP provides for two reductions when the penalty is solely financial: one for recognising your liability and another for paying voluntarily before the resolution. Each is at least 20% of the proposed penalty and they are cumulative: at least a 40% saving in the general regime, a percentage that sectoral regulations can increase. In traffic, a specific system applies: paying within 20 calendar days leaves the fine at 50%.

The counterpart is serious: the effectiveness of the reductions is conditional on withdrawing or waiving any action or appeal in the administrative route against the penalty. In traffic, furthermore, the reduced payment implies waiving the right to make written submissions (alegaciones) and the penalty becomes final in the administrative route; only the contentious-administrative appeal remains.

It is not advisable to opt for this when there is a substantive ground with real possibilities (statute of limitations, expiry, lack of evidence or typicality): in that case, the appropriate action is to request the archiving, not to pay the penalty even if reduced. Nor does it compensate when the penalty is not only financial: the reduction does not eliminate the loss of points, disqualifications or other accessory measures, and the final penalty remains as a precedent for recidivism purposes. Managora calculates both scenarios and tells you which is worthwhile in your specific case.

Against the penalty resolution, ordinary administrative appeals are possible: an appeal to a higher instance (alzada) if the resolution does not exhaust the administrative route (articles 121 and 122 LPACAP) or an optional appeal for reconsideration (reposición) before the same body if it does exhaust it (articles 123 and 124). In both cases the deadline is 1 month from the notification. In appeals, the prohibition of reformatio in peius applies: they cannot aggravate your penalty for appealing.

As long as the resolution does not put an end to the administrative route, it is not enforceable (article 90.3 LPACAP): the Administration cannot demand payment while your appeal to a higher instance or for reconsideration is being processed.

Once the administrative route is exhausted, the contentious-administrative appeal before the courts remains, with a deadline of 2 months from the notification (article 46.1 of Ley 29/1998, the Spanish Contentious-Administrative Jurisdiction Act). This is the route where the evidence and the proportionality of the penalty are reviewed with full guarantees.

Each phase has its deadline and missing one closes the door to the next. Managora drafts and submits your written submissions (alegaciones) on time, calculates whether the article 85 reduction compensates you and prepares the subsequent appeal if necessary. As the work depends on the complexity of the file and the phase it is in, the service is quoted on a case-by-case basis: you can check the conditions in the procedure file and request your quote without obligation.