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The Pan-European General Principles on Administrative Sanctions

  • Administrative sanctions shall be prescribed by law and only imposed by public authorities on individuals within clearly prescribed conditions

1. Recommendation No R(91)1 on administrative sanctions

  • Applies to administrative acts which impose a penalty on persons on account of conduct contrary to the applicable rules, be it a fine or e punitive measure, whether pecuniary or not
  • In the implementation of these principles, the requirements of good and efficient administration as well as major public interests should be taken into account. Where these requirements make it necessary to modify (or exclude) one or more of these principles, either in particular cases or in specific areas of public administration, every effort should nevertheless be made to observe respect for the greatest possible degree of equity, according to the general aims of this recommendation

Article 6 of the ECHR

  • The “fair trial” safeguards, a precondition for imposing an administrative sanction, reflect the protections contained in Article 6 of the European Convention on Human Rights and should apply where appropriate.
  • In cases of minor infringements carrying small pecuniary penalties, such safeguards may be relaxed where the individual concerned consents. In certain cases, notably parking fines, the requirement of good and efficient administration may call for simplified procedures, even if the person concerned does not consent.
  • Examples of administrative sanctions other than fines include increases in charges, confiscation of goods, ordering the closure of a business, banning the practice of a professional activity, or suspending or withdrawing licences, permits or authorisations. Whether or not a particular act is an administrative sanction will depend on the relevant administrative rules.
  • The fair trial safeguards relating to criminal proceedings will apply where the ECtHR considers that, notwithstanding the national classification of proceedings as civil or administrative, the proceedings are properly to be considered as criminal.
  • These safeguards require that any person faced with an administrative sanction, if found to infringe the law, shall be informed of the reasons as well as the nature of the evidence. Sufficient time shall be given to allow the person to prepare his or her case, an opportunity shall be given for the person to be heard before any decision is taken and the reasons for imposing the sanction (in the event this is decided) shall be set out in the relevant administrative decision.[1]

2. ECtHR judgment Menarini Diagnostics S.r.l. v. Italy (43509/08), September 27, 2011

  • An independent public authority in charge of competition, fined the applicant company six million euros for unfair competition in the diabetes diagnostic tests market. All appeals by the company against that decision to the administrative court and the Consiglio di Stato and the Court of Cassation were rejected. Having regard to the various aspects of the case and their respective weight in the matter, the ECtHR considered that the fine imposed on the applicant company was a criminal penalty, so the criminal element of Article 6 of the ECHR was applicable.
  • The impugned penalty was not imposed by a court in adversarial proceedings but by the AGCM, an independent administrative authority. The applicant company had been able to challenge the penalty before the administrative court and to appeal against that court’s decision to the Consiglio di Stato. According to the Court’s case-law, these bodies met the standards of independence and impartiality required of a court. The administrative courts had examined the applicant company’s various allegations, in fact and in law. They had thus examined the evidence produced by the AGCM. The Consiglio di Stato had also pointed out that where the administrative authorities had discretionary powers, even if the administrative court did not have the power to substitute itself for an independent administrative authority, it was able to verify whether the administration had made proper use of its powers. As a result, the role of the administrative courts had not been limited simply to verifying lawfulness. They had been able to verify whether, in the particular circumstances of the case, the AGCM had made proper use of it powers. They had been able to examine whether its decisions had been substantiated and proportionate, and even to check its technical findings. Moreover, the review had been carried out by courts having full jurisdiction, in so far as the administrative court and the Consiglio di Stato were able to verify that the penalty was fit the offence, and they could have changed it if necessary. In particular the Consiglio di Stato, had gone beyond a “formal” review of the logical coherency of the AGCM’s reasoning and made a detailed analysis of the appropriateness of the penalty, having regard to the relevant parameters, including its proportionality. The decision of the AGCM had thus been reviewed by judicial bodies having full jurisdiction.
  • ECtHR found no violation of this provision because the administrative decision was duly reviewed by judicial bodies having full jurisdiction.
  • The criteria of the ECtHR to establish whether a charge is of a criminal character are commonly known as the “Engel criteria”, named after the case Engel and Others v. the Netherlands, where the applicants complained about various disciplinary sanctions and measures imposed on them when they were carrying out their compulsory military service. 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. This, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge. National classification does not determine classification by the ECtHR for the purposes of fair trial obligations under Article 6 of the European Convention on Human Rights, although national classification and the essential nature of the offence are relevant factors.

Article 4 of Protocol No. 7 to the Convention

3. ECtHR judgment Sergey Zolotukhin v. Russia (14939/03), February 10, 2009

  • Right not to be tried or punished twice (cumulation of sanctions – administrative and criminal)
  • Administrative conviction of “minor disorderly acts” and subsequent criminal prosecution for “disorderly acts” concerning the same facts: violation
  • The applicant was arrested for bringing his girlfriend into a military compound without authorisation and was taken to the district police station. According to the police report, he was drunk, behaved insolently, used obscene language and attempted to escape. On the same day a district court found him guilty of swearing at police employees and breaching public order shortly after his arrival at the police station. It convicted him of “minor disorderly acts” under Article 158 of the Code of Administrative Offences and sentenced him to three days’ detention.
  • Subsequently, criminal proceedings were brought against him in relation to the same events. He was charged with “disorderly acts” under Article 213 of the Criminal Code for swearing at police employees and breaching public order in the immediate aftermath of his arrival at the police station. He was also charged with insulting a public official under Article 319 of the Criminal Code for swearing at a major who was drafting the administrative offence report. Lastly, he was charged with threatening violence against a public official under Article 318 of the Criminal Code it being alleged that he had threatened to kill the major en route to the regional police station.
  • In December 2002 the same district court found the applicant guilty of the charges under Articles 318 and 319 of the Criminal Code, but acquitted him of the charges under Article 213, after finding that that his guilt had not been proven to the requisite standard.
  • The facts underlying the two sets of administrative and criminal proceedings against the applicant differed in only one element, namely the threat to use violence against a police officer, and should therefore be regarded as substantially the same. In sum, the proceedings instituted against the applicant under Article 213 of the Criminal Code concerned essentially the same offence as that of which he had already been convicted under Article 158 of the Code of Administrative Offences.
  • Violation of Article 4 of Protocol No. 7