When imposing administrative penalties, administrative authorities often take an offender’s previous history of administrative offences into account, and earlier final decisions on administrative offences may constitute an aggravating circumstance justifying a more severe penalty. The question nevertheless arises whether previous punishment may be considered without any temporal or other limitation, or whether it may even be appropriate to apply, by analogy, the criminal-law regime governing spent convictions and to recognise its effects in the field of administrative punishment as well.
Although Act No. 250/2016 Coll., on Liability for Administrative Offences and Proceedings Thereon, as amended (the “Administrative Offences Act”), does not expressly regulate spent convictions, its application by analogy is, in theory, supported by the case law of the administrative courts. This issue is of particular importance for legal persons, for which criminal law lays down different conditions for a conviction to become spent than it does for natural persons. This article examines the permissibility and limits of such analogy, the related case law, and its practical implications for the imposition of administrative penalties on legal persons.
Recidivism as an Aggravating Circumstance
Under Section 37(c) of the Administrative Offences Act, when determining the type and amount of an administrative penalty, the administrative authority must consider, among other things, aggravating and mitigating circumstances. Section 40(c) of the same Act expressly identifies the repeated commission of an administrative offence as an aggravating circumstance. It may indicate that previously imposed penalties have not had a sufficient deterrent effect and may therefore justify a more severe penalty for the offender.
At the same time, however, the Administrative Offences Act does not expressly specify for how long, or under what conditions, previous administrative offences may be considered as an aggravating circumstance. Nor does it contain a general regime for spent administrative-offence penalties that would define when their adverse legal consequences cease.
A purely literal interpretation could therefore lead to the conclusion that an administrative authority may take earlier administrative offences into account virtually without limitation. Such an approach could, however, logically result in an offender being burdened to an unreasonable degree by the consequences of conduct for which they have already been finally punished and served the penalty imposed. In our view, it is therefore necessary to assess not only whether previous decisions exist, but also their relevance, how long ago they were issued, and their factual and legal connection with the administrative offence currently under consideration. These factors are important in determining whether the earlier conduct genuinely demonstrates repeated breaches of particular obligations or whether it is merely a formal reference to the offender’s history of administrative offences.
Analogy with the Spent Conviction Regime as a Safeguard for Offenders’ Rights
The analogous application of criminal-law institutions in the field of administrative punishment is not foreign to Czech law. Although criminal law and administrative-offence law are separate areas of public-law liability, they share a punitive nature and several common principles. While analogy to the detriment of an offender is generally impermissible in the field of punishment, analogy in the offender’s favour (analogia in bonam partem) is an acceptable means of filling gaps in the law, provided the relevant conditions are met.
The case law of the Supreme Administrative Court[1] proceeds from these principles and has found that administrative authorities are required to consider whether the regime governing spent convictions may be applied by analogy when taking previously imposed penalties into account. The essence of this regime is a statutory fiction under which, once the prescribed conditions are met, the offender is treated as if they had not been convicted. The spent conviction regime thus ensures that previous punishment does not burden the offender indefinitely. There is no self-evident justification for subjecting a person who has committed an administrative offence to a stricter regime, as regards the consequences of previous punishment, than a person who has committed a criminal offence. The possibility of applying the spent conviction regime by analogy is also supported by expert literature. For example, commentary on Section 40 of the Administrative Offences Act expressly notes that, when assessing previously imposed penalties, an administrative authority must consider whether the spent conviction regime can be applied by analogy.[2]
In practice, however, we encounter the counterargument that the case law permitting the analogous application of the spent conviction regime is based mainly on legislation that was in force until 30 June 2017, whereas the current Administrative Offences Act expressly identifies recidivism as an aggravating circumstance in Section 40(c). In our view, this argument is unpersuasive: the mere fact that recidivism is expressly provided for does not determine the conditions or temporal limits for taking it into account, nor does it preclude the effects of a conviction becoming spent. It therefore does not, in itself, establish that analogous application of this regime is impermissible; indeed, more recent case-law under the current Administrative Offences Act does permit such application.[3]
Issues Arising from Applying the Spent Conviction Regime to Administrative Offences Committed by Legal Persons
In our view, the analogous application of the spent conviction regime is particularly important in administrative-offence proceedings against legal persons. Act No. 418/2011 Coll., on the Criminal Liability of Legal Persons and Proceedings against Them, as amended (the “Criminal Liability of Legal Persons Act”), lays down different conditions for the effects of a conviction to cease than the Criminal Code does for natural persons. Under Section 27(1)(a) of the Criminal Liability of Legal Persons Act, a convicted legal person is treated as if it had not been convicted once the sentence has been served, subject to the special cases set out in subsection 2. The current wording of this provision, introduced by Act No. 333/2020 Coll. with effect from 1 October 2020, therefore links the legal fiction that there is no conviction directly to the serving of the sentence, without generally requiring an additional statutory waiting period or a separate decision that the conviction is spent. If Section 27(1)(a) of the Criminal Liability of Legal Persons Act were applied by analogy in administrative-offence proceedings, this would in principle mean that the effects corresponding to a previous administrative-offence penalty becoming spent would arise as soon as the fine imposed had been paid in full.
This interpretation has significant practical consequences, particularly for administrative supervision of businesses. A typical example is a situation in which an inspection authority identifies a breach of legal obligations and subsequently issues an order imposing an administrative fine on a legal person for an administrative offence. Under Section 90 of the Administrative Offences Act, an order is one form of decision on an administrative offence. If no statement of opposition is filed within the statutory time limit, the order becomes a final and enforceable decision whose legal effects, in terms of the administrative penalty imposed, are comparable to those of a decision issued in standard administrative-offence proceedings. Subject to the statutory conditions, a fine may similarly be imposed by an on-the-spot order. If a legal person subsequently pays a fine imposed by a final order, the question arises whether that administrative penalty, once served, may be considered as an aggravating circumstance of recidivism when deciding a subsequent administrative-offence case against it. A consistent application by analogy of Section 27 of the Criminal Liability of Legal Persons Act should lead to a negative answer. If, in criminal proceedings against legal persons, serving a monetary sentence generally gives rise to the legal fiction that there has been no conviction, it is unclear why payment of an administrative fine should have different legal consequences in administrative-offence proceedings. This interpretation is also supported by more recent administrative-court case law, which expressly recognises that Section 27 of the Criminal Liability of Legal Persons Act may be applied by analogy.[4]
The practical importance of this issue is often apparent in the case of legal persons operating many business premises that are repeatedly inspected by administrative authorities. Fines may be imposed for identified breaches of legal obligations, and administrative authorities may take those fines into account in later cases as an aggravating circumstance of recidivism, even if they have already been paid. If Section 27 of the Criminal Liability of Legal Persons Act were applied by analogy, however, payment of the fine in full should give rise to the effects of a spent conviction regardless of the procedural form of the decision by which the fine was imposed. Viewed in this way, such previous punishment should no longer be considered as an aggravating circumstance justifying a more severe penalty for a subsequent administrative offence.
It must nevertheless be acknowledged that, under the current legislation, applying the spent conviction regime by analogy also raises interpretive difficulties. One objection to the interpretation outlined above is that automatically treating a conviction as spent upon payment of a fine could in practice make it impossible to take recidivism into account as an aggravating circumstance under Section 40(c) of the Administrative Offences Act, thereby weakening the deterrent function of administrative penalties. Payment of a fine alone may not demonstrate that the offender has genuinely corrected its conduct or adopted measures to prevent further breaches. This approach is also supported by case law. In its judgment of 7 November 2018, file no. 3 As 202/2017-35, the Supreme Administrative Court permitted only a proportionate application of the spent conviction regime, taking into account the specific features of road-traffic offences, since strict application could in practice rule out taking previous administrative offences into account when assessing the offender. In its judgment of 9 December 2025, file no. 15 A 14/2024-61, the Regional Court in Ústí nad Labem similarly accepted that previous administrative offences committed by a legal person could be considered where only a relatively short time had passed since they had been finally determined. Although the court referred in general terms to the possibility of a conviction becoming spent upon payment of a fine, it did not base its conclusions on an assessment of whether the particular fines previously imposed had been paid or what effects their payment would have if Section 27 of the Criminal Liability of Legal Persons Act were applied by analogy.
The Regional Court in Brno took a different approach to the effects of paying a fine. In its judgment of 15 September 2026, file no. 31 A 64/2024-94, it held that payment of a fine in full gives rise to the effects of a spent conviction and that the previous punishment can no longer be treated as an aggravating circumstance of recidivism. At the same time, the court accepted that the earlier unlawful conduct could be considered when assessing the circumstances of the legal person and the effectiveness of its preventive measures.[5] Although the court found that the administrative authorities had acted incorrectly in taking recidivism into account, it found no reason to set aside the contested decision in view of the low amount of the fine imposed and the other circumstances relevant to its determination.
In this regard, a distinction drawn by the Supreme Administrative Court in its judgment of 19 January 2023, file no. 2 As 71/2022-34, is also relevant. According to that distinction, a previous penalty becoming spent does not preclude earlier unlawful conduct from being considered when assessing the offender and the prospects of its rehabilitation. The court also accepted that it is not necessary to examine whether the conviction has become spent if the administrative authority does not treat the previous conviction as an aggravating circumstance. It should be emphasised, however, that these conclusions concerned a natural person, not the analogous application of Section 27 of the Criminal Liability of Legal Persons Act to legal persons. It therefore remains an open question to what extent those conclusions can be transposed without further analysis to administrative-offence proceedings against a legal person, where the effects of a conviction becoming spent may arise as soon as the fine imposed has been paid in full.
Conclusion
The analogous application of the spent conviction regime in administrative-offence proceedings is an important interpretive issue that has not yet been resolved in legal practice or in the case law of the administrative courts. Although its application in general is supported by administrative-court case law and expert literature, clear conclusions and conditions for its application are still lacking, and different approaches have also emerged as to the scope of its effects. This leaves continuing uncertainty as to whether previous administrative-offence penalties may be considered when further penalties are imposed. In our view, however, the deterrent function of administrative punishment alone cannot justify a blanket rejection of analogy, as supervisory authorities often do, particularly where the legal person has already served the penalties previously imposed.
At the same time, a conviction becoming spent does not prevent specific circumstances of the earlier unlawful conduct from being considered if they are relevant to the assessment of the offender and the amount of the penalty. Administrative authorities should therefore consider, in particular, how long ago the conduct occurred, its factual and legal connection with the administrative offence under consideration, and its significance for assessing the offender. We regard it as problematic for a previous penalty that has become spent to continue, in practice, to be used as a reason for increasing the penalty, even if it is labelled something other than recidivism. The reasons for a decision should therefore make clear why, and to what extent, the earlier conduct was considered, in accordance with Section 68(3) of Act No. 500/2004 Coll., the Administrative Code, as amended. Although case law recognises that incorrect consideration of recidivism does not always require a decision to be set aside, it cannot be assumed without convincing reasons that such an error had no effect on the amount of the penalty imposed.
The need to define these rules more clearly is also confirmed by the Supreme Administrative Court, which has expressly drawn attention to deficiencies in the legislation: it does not clearly specify whether or when an administrative-offence penalty becomes spent, or under what conditions older administrative offences may be taken into account.[6]
In view of the continuing interpretive uncertainty, it would therefore be desirable to clarify the conditions and scope of the analogous application of the spent conviction regime in administrative-offence proceedings, whether through express legislation or unifying case law of the Supreme Administrative Court. Such clarification would strengthen legal certainty and make the decision-making practice of administrative authorities more predictable.
Should you have any questions concerning administrative punishment, the administrative-offence liability of legal persons, or related matters, we at PEYTON legal are here to assist you.
[1] Judgment of the Supreme Administrative Court of 28 February 2011, file no. 8 As 82/2010-55; cf. the judgment of the Regional Court in Ústí nad Labem – Liberec Branch of 3 May 2013, file no. 60 A 1/2013-49.
[2] VETEŠNÍK, Pavel. Section 40 [Aggravating circumstances]. In: JEMELKA, Luboš, VETEŠNÍK, Pavel. The Act on Liability for Administrative Offences and Proceedings Therein. The Act on Certain Administrative Offences. 3rd edition. Prague: C. H. Beck, 2025, pp. 356–357, margin note no. 11.
[3] See, in particular, the judgment of the Supreme Administrative Court of 19 January 2023, file no. 2 As 71/2022-34, and the judgment of the Regional Court in Brno of 15 September 2026, file no. 31 A 64/2024-94.
[4] See, in particular, the judgment of the Regional Court in Brno of 15 September 2026, file no. 31 A 64/2024-94, paragraphs 41–43.
[5] A similar distinction is also evident from the case-law of the Supreme Administrative Court, in particular from the judgment of 17 June 2020, file no. 1 As 80/2020-36, paragraph 36.
[6] See the judgment of the Supreme Administrative Court of 19 January 2023, file no. 2 As 71/2022-34, paragraph 27.
JUDr. Miloš Kulda, Ph.D., attorney at law – kulda@plegal.cz
JUDr. Tereza Pechová, junior lawyer – pechova@plegal.cz
22. 10. 2026