An analysis of the impact of art. 6 ECHR on administrative sanctions in the Italian and European legal systems

F. Goisis

AIR Universita degli studi di Milano

                European Court of Human Rights  case law on administrative sanctions Francesco Goisis Full Professor of Administrative Law,  University of Milan    EMEA EMI & ERP  Industry/Practice Group Meeting 8 – 9 November 2013 | Kyiv       © 2012 Baker & McKenzie  2  European Court of Human Rights case law on administrative sanctions  • Article 6(1) (Right to a fair trial) of the ECHR provides: • "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law» • By virtue of Article 47 of the Charter of Fundamental Rights of the European Union, now formally part of the Treaty on European Union, the guarantees offered by Article 6(1) ECHR are explicitly recognised and incorporated into EU law.       © 2012 Baker & McKenzie  3   European Court of Human Rights case law on administrative sanctions • Article 6(2 and 3) (Right to a fair trial) of the ECHR introduces a series of more specific guarantees in the field of criminal trial: • «2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.  • 3. Everyone charged with a criminal offence has the following minimum rights:  • (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;  • (b) to have adequate time and facilities for the preparation of his defence;  • (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;  • (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;  • (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.»       © 2012 Baker & McKenzie  4   European Court of Human Rights case law on administrative sanctions • The notion of a “criminal charge“ in Article 6, like the concept of “civil rights and obligations“, is regarded by the Court as possessing an autonomous meaning. This mainly with the purpose of preventing elusion of the ECHR obligations by the contracing states. • Since 1971 (Engel case) « The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria”…to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative…» (case Tomasovic, 2011, § 20).        © 2012 Baker & McKenzie  5  European Court of Human Rights case law on administrative sanctions  • More in details, in practical terms, any administrative sanction, either of financial or different nature, which is general (i.e., in principle applicable to the generality of citizens, and not only to a specific organized group as the disciplinary sanctions imposed by professional organizations), that has a deterrent and punitive nature and therefore is not mainly intended to afford pecuniary reparation for damage (i.e. is not compensatory), is to be classified as criminal, for the purpose of art. 6.   • In other terms, « the general character of the rule and the purpose of the penalty, being both deterrent and punitive, is sufficient to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature » (Öztürk, 1984).  • The gravity of the sanction does not play a real role: also minor offences may be criminal in natire. Just consider that the leading case Öztürk case was in relation to a small financial fine for a driving regulation infringement and recently a 3 euros sanction was considered sufficiently serious (Ziliberberg, 2005).         © 2012 Baker & McKenzie  6  European Court of Human Rights case law on administrative sanctions  •  For example, as made it clear in Menarini (2011), Italian antitrust fines (fully in line with the EU model) are criminal, notwithstanding the fact that they are applied by an Administrative Authority and, according the Italian (and EU) law, are administrative. • Similarly, the prohibition on practicing certain professions (political or legal) for a long period of time” imposed on someone who has been found to have submitted a false declaration is to be classified as a criminal sanction, although administrative according to Polish law (Matyjec, 2006).       © 2012 Baker & McKenzie  7  European Court of Human Rights case law on administrative sanctions  • Certain main implications of art. 6 ECHR: • the administrative proceedings  should in principle already provide the guarantees codified by art. 6, and therefore an adversarial procedure (as opposed to an inquisitorial one), in which the equality of arms is guaranteed, should be afforded; • In other terms, the administrative phase should be semi-judicial; • In a 2012 case before Rome Administrative Court in which we assisted a client against a fine by the Italian Antitrust Authority for an alleged unfair commercial practice and in which we made reference to the ECHR jurisprudence as a reason of appeal, the judges recognized that “there is a large room to reinforce the compliance of the proceedings before the Authority with the principles descending from art. 6 ECHR».       © 2012 Baker & McKenzie  8  European Court of Human Rights case law on administrative sanctions  • Certain main implications of art. 6 of ECHR (2 part: • An element of flexibility: where the administrative proceedings has not satisfied art. 6 requirements, a full jurisdiction judicial review is to be afforded, in order to ex post compensate the absence of semi-judicial administrative phase: «proceedings might still satisfy requirements of Article 6 § 1 of the Convention if the court deciding on the matter considered all applicant’s submissions on their merits, point by point, without ever having to decline jurisdiction in replying to them or ascertaining facts…» (Druzstevni, 2008).  • in principle, in absence of an administrative proceedings fully satisfying art. 6 requirements, the Court should be put in condition to re-exercise the same power exercised by the Administrative Authority, without limitations descending from the existence of a discretionary power assigned by the law to the Administrative Authority. A final decision on the merits before a Tribunal. In other terms, a power to substitute its decision for that of the administration has to be conferred to the Court, for the purpose of ex post curing the absence of proper guarantees in the administrative phase.       © 2012 Baker & McKenzie  9   European Court of Human Rights case law on administrative sanctions • Reactions by ECJ jurisprudence. Recently, Case Kone and Others v Commission, C-510/11 P, 24 October 2013 (2 part):   “24. As regards the review of legality, the Court has pointed out that the European Union judicature must carry it out on the basis of the evidence adduced by the applicant in support of the pleas in law put forward and that it cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the 2002 Leniency Notice or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.”       © 2012 Baker & McKenzie  10  European Court of Human Rights case law on administrative sanctions       Debate on the relevance of Menarini case: • The Italian system that is based on a traditional continental approach to administrative proceedings and judicial review of administrative action (i.e., in which the limitation of the so called administrative merit is well recognized and applied) is really in line with ECHR and therefore all the traditional European system of administrative justice are ECHR compliant? • In my view, Menarini judgment cannot be generalized, as in the specific case the appellant did not claimed the absence of sufficient guarantees during the administrative phase and  the Court actually exercised a full jurisdiction in respect to the application lodged. In fact, no complex economic assessment were at stake, but just the assessment of the concrete cooperation of Menarini in the implementation of a cartel. Such simple factual assessment is not in any way discretionary according to the Italian law, and so it is totally subject to a full judicial review. • We can’t exclude an opposite outcome, in case a complex or discretionary assessment by the Italian Antitrust Authority was at stake, since Italian Administrative Courts show a clear deference in relation to this type of assessment; • A certain reinforcement of the procedural guarantees in the administrative phase and a significant reinforcement of the traditional powers that administrative Courts may exercise in relation to discretionary administrative powers seem required.        © 2012 Baker & McKenzie  11  European Court of Human Rights case law on administrative sanctions  • Article 7(1) of the ECHR (No punishment without law) provides: • "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.»       © 2012 Baker & McKenzie  12  European Court of Human Rights case law on administrative sanctions  • Article 7(1) of the ECHR (No punishment without law) • In few words: nullum crimen, nulla poena sine lege certa, stricta et previa (no crime, no criminal sanction, without a clear, to be narrowly construed and prior law). • for example, recently, Martirosyan, 2013,  §56: «Article 7 is not confined to prohibiting the retroactive application of criminal law to the disadvantage of an accused. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that criminal law must not be extensively construed to the detriment of an accused, for instance by analogy. From these principles it follows that an offence must be clearly defined in law».        © 2012 Baker & McKenzie  13  European Court of Human Rights case law on administrative sanctions  • Article 7(1) of the ECHR (No punishment without law) • Since 2009, art. 7 has been interpreted by the Court of Strasbourg so to, additionally,  «guarantee the retrospective application of the more lenient criminal law» (Scoppola, 2009, § 109) : «Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.».       © 2012 Baker & McKenzie  14  European Court of Human Rights case law on administrative sanctions  • In many national legal systems, the principle of legality as to administrative sanctions is less demanding and protective than in relation to criminal sanctions. •  For istance in Italy, the nullum crimen, nulla poena sine lege certa, stricta et previa principle is codified by the Constitution only as to formal criminal sanctions with the result that the legislator may well exclude the relevance of the principle in relation to given administrative sanctions and in any case such a principle is applicable to a limited extent to administrative sanctions (for example, no retroactive application of the more lenient sanction is provided for); • In Italy, based on the ECHR jurisprudence, Mr. Berlusconi has recently claimed that a law enacted in 2012 and providing for the exclusion from the political life of whoever has been condemned for certain criminal offences cannot be applied to him, since the conduct for which he has been declared guilty dates back to 2006.   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European Court of Human Rights  case law on administrative sanctions

https://air.unimi.it/retrieve/handle/2434/227670/295238/Goisis%20ppt%20311013.pdf

European Court of Human Rights case law on administrative sanctions

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