Government Coercion as one type of administrative legal sanctions

In general, Local Regulations contain norms or methods which must be obeyed by both the government apparatus itself and its citizens. Violations of these norms can result in sanctions imposed on the offender in the form of criminal sanctions and administrative legal sanctions. One type of administrative law sanctions that is quite important is government coercion (bestuursdwang).

In contrast to other administrative legal sanctions, government coercion is an act of the authorities in a very direct way because it aims to directly end acts that violate or contravene the law. Government coercion generally takes the form of taking or eliminating, preventing doing or repairing as something that has been made, done, carried out, acted on or omitted that is contrary to the law. In the daily life of government coercion carried out by the authorities we can see in the form of demolition of buildings, control of street vendors, sealing or forced closure and so on.

In the Netherlands it has become a common opinion that coercion of government is part of the implementation of the law. The implementation of a regulation brings with it executive power as a vital complement, the authority and obligation of the implementation if necessary by an act (met de daad) by force so that it is no longer necessary to include it in written law.

Thus it appears that government coercion is deemed to persist even though it is not explicitly regulated in statutory regulations. Nevertheless, to ensure legal certainty, the authority to coerce government should be strictly regulated in statutory regulations. Therefore, the State Administration Agency or Officer authorized to do so has a legal basis for action. On the other hand the community members from the beginning will be able to know of sanctions in the form of government coercion in the event of a violation.

Government coercion as one type of administrative legal sanctions, especially in the context of enforcement of Regional Regulations in practice is rarely used. This is generally related to losses or suffering arising as a result of the imposition of government coercion. Therefore, the new government will implement government coercion if deemed necessary and by considering various interests. In this case the government coercion is carried out if there is an act that violates the rules and aims to end the act directly.

In general, government coercion as a type of administrative sanction is related to the licensing system. Therefore, if someone erects a building without permission or does not comply with licensing requirements, what must be terminated or terminated is the establishment of the illegitimate building. In the application of government coercion, the cost of implementation is generally borne by violators. In other words, the offender must pay costs related to the implementation of government coercion unless in certain circumstances those fees should not be charged to him.

The distinctive feature of this government coercive authority is that it makes the organs of government authorized to do so when necessary, without the necessity of the intermediary judge to act far in real terms. The implementation of government coercion is in principle different from the granting of criminal acts because government coercion is related to the implementation of legislation rather than prosecution of violators, while the imposition of crimes is directed at the offender and with the intention to increase suffering.

The difference in principle brings with it that a violation besides being subject to government coercion can also be followed by criminal sanctions. However, the coercion of government is an act of the authorities in a very direct way, while other sanctions play a more indirect role.

The existence of authority to coerce government is a logical consequence of government duties, namely the fact that a state administrative body or official has been burdened with the task of implementing a statutory regulation. Therefore, in carrying out its duties the Agency or State Administration Officer can take the necessary actions to adjust the real situation to what has been determined by the law if the citizens neglect it.The decision to impose government coercion must be notified in writing to the offender. Warnings as a condition for carrying out government coercion are aimed at legal consequences. In the warning included a decision if necessary to impose government coercion. This decision will be tested by the administrative judge. Therefore not only a warning, but also a decision on the application of government coercion was rejected, included as a state administration decision, because with this refusal it was implicitly also refused to send a warning.

A warning that precedes the existence of government coercion (bestuursdwang) must meet the following requirements:

a. Description of facts or actions that clearly violate certain legal rules.

b. A clear appointment as to which law is violated.

c. Consideration of why government coercion needs to be done.

d. A clear description of what must be done so that government coercion is not carried out.

e. The time period for the order must be carried out.

f. Addressed directly to those who do.

g. Estimated costs if government coercion is carried out.

        The exercise of government coercion is not an obligation but discretionary power. Thus the government basically will determine for itself whether as a sanction for violations will be imposed by government coercion or not. There are factors that can be used as a consideration to determine whether the authority is used or not, including the quality factor of the violation itself. For example, for example, someone who is building a building in an area that is in accordance with the designation determined by the local government and carrying out housing construction in accordance with the technical construction requirements required to build a building. The only requirement that has not yet been fulfilled is not yet having a Building Permit (IMB).

These violations differ in quality from those committed by someone because they have built a building in a residential area designated for a factory and violates the technical construction requirements that apply to a building. In addition, another violation is that the building was erected above the equivalent line. This second violation clearly leads to the substance or concerns the doelmatigheid of administrative law, in this case the IMB.

Of the two cases, although the IMB provision gives authority to the Regional Government officials to end the violations, it is reasonable to consider the forms of actions taken by the authorities to end the violations. In the first case the actual form of action needed may only be limited to stopping the building construction activities and building owners are required to complete the building permit with the possibility of being fined for the delay in obtaining the permit. Whereas in the second case, the violation was related to the essence of the IMB permit. Therefore, the state administrative apparatus or state administration can directly carry out the demolition of the building which is certainly preceded by sending a warning to the owner in advance.

In many cases the authority to coerce government is regulated in regional regulations, apparently with the intention to determine which coercion is permissible. In addition, also to give authority to the authorities concerned so that the government coercion costs charged to those who violate (Irawan Soejito, 1981: 67). Without provisions in regional regulations, government coercion costs will be borne by the regions, because in order to impose on residents or those who violate all costs incurred by the government in general and Regional Governments in particular based on authority in the field of public law, a statutory regulation is required.

Government coercion is essentially a real action (feitelijke handeling) from the government. However, before coercion of government (eg demolition) is usually preceded by the issuance of a state administration decision. Thus, if the community or civil legal entity feels disadvantaged by the state administrative decision, then they can file a lawsuit to the State Administrative Court.

However Law Number 5 of 1986 concerning State Administrative Court still provides an opportunity to resolve state administrative disputes through administrative efforts. This is regulated in article 48 which among others states:

(1) In the event that a State Administration Agency or Officer is authorized by or based on statutory regulations to administratively resolve certain state administrative disputes, the said state administrative dispute must be resolved through available administrative resources;

(2) The new court has the authority to examine, decide and settle state administrative disputes as referred to in paragraph (1) if all administrative efforts concerned have been used.

Dispute resolution through administrative efforts as referred to in the provisions above is a settlement of a dispute over a government decision made by the apparatus within the government environment itself. This case seems to be an effort of peace between the people seeking justice with the decision maker or the government, which contains weaknesses especially in the aspect of "objectivity" (SF Marbun, 1998: 80).

        Thus, the effort that can be carried out by citizens affected by government coercion is to resolve it through administrative efforts in advance as long as it is regulated in a Regional Regulation, and if not satisfied, a lawsuit can be submitted directly to the State Administrative High Court (PTTUN). If the legal remedies are not regulated in a Regional Regulation, the person concerned can file a lawsuit with the Administrative Court.

        From the description above, it is clear that although the Regional Government has the authority to implement government coercion, it must still consider various aspects and the impact that will be caused considering the amount of loss that will be experienced by the people affected by the government coercion. In addition, if there is a lawsuit, it is better to wait for a court decision that has permanent legal force, even though the law states that the lawsuit does not delay the implementation of the decision being sued. This is intended to reduce the juridical implications that may arise from the imposition of government coercion. For example, if the demolition of the building continues, but in the future the court's decision grants the plaintiff's request (the building owner).