CĂRŢI DE DREPT

Mădălina Viziteu Lecturer, PhD, Spiru Haret University

One of the central measures of the Council of Europe is to promote and secure the fundamental human rights and freedoms. In the preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms, the aim of the Council of Europe is proclaimed to achieve a closer union among its members and that one way of achieving this goal is to defend and develop human rights and fundamental freedoms.

Apart from complying with the two criteria by the six-month deadline and the exhaustion of remedies, the Court first examines:

a) Admissibility criteria relating to the jurisdiction of the Court:

a.1. (ratione personae) and considers that the alleged violation has been committed by a subcontractor or is imputable to him in one way or another[1];

a.2. after the place of the infringement (ratione loci) which requires the alleged infringement to take place in a place under the jurisdiction of the respondent State, or effectively controlled by it[2];

a.3. the criterion of non-retroactivity of the Treaties (ratione temporis), a principle according to which no Contracting Party can be held liable for an act or fact that has occurred prior to the entry into force of the Convention[3];

a.4. the criterion of material jurisdiction of the Court (ratione materiae) according to which the right invoked by the petitioner must be part of those protected by the Convention. Article 35 par. 3 lit. of the Convention provides that any individual claim that is incompatible with the provisions of the Convention or the Protocols is inadmissible;

b) the request is real and serious;

c) be based on a right which may be based in domestic law.

The European Court of Human Rights, through the judgments handed down, circumscribed the civil character of the disputes, defined according to art. 6 of the Convention, which can be submitted to it and set a series of exclusions taking into account the subject matter of the complaint. Thus the following were excluded:

– tax claims for which it considered it to be a matter for the public authority;

– the Presidential Ordinance on customs matters;

– on immigration, entry, exit, expulsion of foreigners, political asylum;

– disputes over civil servants;

– political rights (to choose, to be elected, the right to retire as a former Member)[4].

In criminal matters, the Court has defined the concept of criminal charge, which has a separate meaning distinct from that of the national system of law classifications[5].

Article 6 of the European Convention on Human Rights has the marginal title “Right to a fair trial” and has the following content

 “1. Everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which will decide either on the violation of his civil rights and obligations or on the merits of any accusations in criminal matters against him. The judgment must be publicly pronounced but access to the meeting room may be forbidden to the press and the public throughout the trial or part thereof in the interests of morality, public order or national security in a democratic society, where the interests of minors or the protection of the private life of the parties to the proceedings so require or to the extent strictly necessary by the court where, in special circumstances, advertising would be likely to prejudice the interests of justice.

2. Any person charged with an offense is presumed innocent until his guilt is legally established.

3. Everyone accused has, in particular, the right:

a. to be informed, in the shortest possible time, in a language which he understands and in detail, of the nature and cause of the charge against him;

b. have the time and facilities to prepare for his defense;

c. defend himself or be assisted by a defendant of his choice and, if he does not have the means to remunerate a defense counsel, be assisted free of charge by a lawyer, when the interests of justice so require;

d. hear or request hearing witnesses and obtain citation and hearing of witnesses under the same conditions as witnesses of the accusation;

e. be assisted free of charge by an interpreter if he does not understand or speak the language used at the hearing. “

The notion or concept of “criminal” in the jurisprudence of the European Court of Human Rights has a broader meaning than Romanian domestic law. The “accusation”, a concept used by the Convention[6], must be understood, according to the case-law of the Court, as official notification from the competent authority that there is a suspicion of a criminal offense.

In turn, the concept of criminal deed “is also wider than the offense. Qualification as a criminal act depends on the existence of significant repercussions on the situation of the suspect. “[7] In the case of  Brusco v. France, points 46-50, the Court ruled that a person detained by the police and obliged to take an oath before being heard as a witness , was the subject of a “criminal charge and benefited from the right to silence.[8]

As regards assessing the assessment of the criminal aspect of the allegation, the European Court of Human Rights ruled that certain criteria should be met as follows:

1. the inclusion in national law of the Court of Appeal in its analysis of the criminalization of the offense in the domestic law of the State concerned, but is not limited to such a finding, and may take into account elements beyond that examination;

2. the nature of the offense. In Jussila v. Finland, paragraph 38, the European Court of Human Rights ruled as follows:

“38. The second criterion, which refers to the nature of the offense, is the most important. The Court notes that, like those imposed in the Janosevic and Bendenoun cases, the tax increases applied in the present case can be considered as based on the general legal provisions applicable to all taxpayers. It is not convinced by the Government’s argument that VAT applies only to a particular group of persons with special status, since, in the present case, as in the cases mentioned above, the applicant was subject to that tax as a taxpayer. The fact that the person concerned has chosen to pursue his professional activity in the VAT system does not change his situation in that regard. Additionally, as the Government has admitted, tax increases did not seek redress for material damage but were principally aimed at punishing the repetition of complained actions. It can therefore be concluded that the surcharges imposed were based on a standard that pursues both a preventive and a repressive one. That consideration alone is sufficient to give a criminal offense to the offense. The lack of the contested penalty distinguishes the present case from the Janosevic and Bendenoun cases in relation to the third Engel criterion, but does not have the effect of excluding it from the scope of Article 6. This provision therefore applies, as regards its criminal aspect, without prejudice to the modest amount of the amount necessary to increase the tax. “[9]

For examining this criterion, the following factors were identified in the critique of the offense as criminal:

– the repressive or dissuasive nature of the legal norm;

– the general nature of the rule, whether it applies to a restricted or general-purpose group;

– if the procedure is initiated by a public authority with legal powers of execution,

– if a conviction depends on the finding of guilt;

– the manner in which they were classified in other States, members of the Council of Europe, comparable procedures.[10]

In Benham v. The United Kingdom, at paragraph 56, the following references are set out as follows:

“56. The case-law of the Court states that three factors must be taken into account in order to determine whether a person has been ‘accused’ of an offense within the meaning of Article 6 (Article 6). These are the legal classification of the procedure in national law, the nature of the proceedings and the nature and severity of the penalty (see Ravnsborg v. Sweden, 23 March 1994, Series A no 283-B).

As regards the first of these criteria, the Court agrees with the Government that, in essence, the domestic case-law shows that under English law, the proceedings in question are civil and not criminal. Relative value is, however, only a starting point (Weber v. Switzerland, May 22, 1990, Series A No. 177, page 17, paragraph 31).

The second criterion, with a larger weight, is the nature of the procedure. In that regard, the Court notes that the legislation on the obligation to pay the survey and the non-payment procedure generally applied to all citizens and that the case was initiated by a public authority by virtue of its lawful enforcement powers. It also contained some repressive elements. Thus, magistrates could order the detention only if they found a deliberate refusal to pay taxes or negligent negligence.

It should finally be remembered that the applicant was punishable by a severe punishment sufficiently rigorous – three months imprisonment -. And, in fact, a thirty day detention was ordered against him (c. Bendenoun stopped France from February 24, 1994, Series A, No. 284, page 20, paragraph 47).

In the light of those factors, the Court concludes that Mr Benham has been ‘accused’ of an offense within the meaning of Article 6 (1) and (3) (Article 6-1, Article 6-3). These two paragraphs of Article 6 (Article 6-1, Article 6-3) shall apply accordingly. “[11]

3. the third criterion for assessing the criminal nature of the assessment of the criminal character envisaged by art. 6 of the Convention is that of the severity of the punishment of the person concerned.[12]

In Campell and Fell v. The United Kingdom of Great Britain (point 72), it was decided as follows:

“In the case of St. Germain, and then before the organ of the Convention, there have been many discussions about the nature of the remission and its loss. In English legislation, the reduction is discretionary (see paragraph 29 above). According to the case law, this is legally a privilege, rather than a right; However, in St Germain, the Court of Appeal noted that “if the remission could have taken the form of granting a privilege, its losses are in fact a punishment or a fall that affects the person concerned. (…) In the case of Engel and others, the Court has held that a deprivation of liberty which can be punished by law is generally a matter of “criminal matters” (ibid., Par. Indeed, even after the decision of the visitors’ committee, the initial custodial sentence has left the legal basis for detention and nothing has been added (see paragraph 29 above). However, the loss of remission on which Mr Campbell could have suffered and the loss actually suffered had serious consequences during his imprisonment that he must be regarded as “criminal” within the meaning of the Convention. By prolonging the detention beyond what happened without her, the punishment was similar to deprivation of liberty, even though it was not legally; the object and purpose of the Convention require that the burden of such a severe measure be guaranteed by Article 6 (Article 6). The subsequent restitution of a large number of days to the applicant (see paragraph 16 above) does not alter this conclusion. “[13]

In Demicoli v. Malta, the European Court of Human Rights ruled:

“34. The third criterion is the severity of punishment. In that case, the Chamber applied to the applicant a fine of 250 pounds, which was not yet paid or assessed, but was imprisoned for a maximum of 60 days, with a fine of not more than 500 Maltese lira or both . The question was therefore sufficiently important to lead to the criminal classification for the purposes of the Convention of the alleged imputability to the person concerned (see the same judgment, ibid., Paragraph 18, paragraph 34). “[14]

The European Court of Human Rights, in application of Art. Article 6 of the Convention highlighted in its judgments a number of other criteria according to which its judges decide on the admissibility of the applications addressed to it as follows:

a) Military discipline claims, in which it ruled that they were not competent even if the sentences applied were deprived of their liberty if they were of a lengthy duration. Instead, those consisting in sending to a disciplinary unit for a period of several months fall within the scope of criminal law;

b) Penalties imposed in the disciplinary regime in prisons, depending on the nature and severity of the punishments, may be subject to trial or may be declared inadmissible. Usually, however, the penitentiary contentious does not fall within the criminal accusation but rather is investigated from a civil perspective.

c) regarding the violation of the secrecy of the investigation, the Court has distinguished itself by the quality of the person, between persons who have, in principle, the obligation to keep the investigation secret, as is the case for judges, lawyers and other persons heavily involved in the investigation experts, police officers, clerks, secretaries of the prosecutor) and the parties concerned, who do not fall within the disciplinary scope of this system.[15]

d) the measures ordered by a court to discipline the court hearing were deemed not to fall within the scope of the criminal charge of art. 6 of the Convention, because it rather resembles the exercise of the disciplinary sanction.[16]

In the case of Putz v. Austria, the Court ruled that the rules which provide for the measures that the courts can order to discipline the trial go closer to the exercise of disciplinary prerogatives than the sanctions applied for offenses (paragraph 33), but that , despite the non-criminal nature, it is necessary to check in the light of the third criterion, that of the nature and severity of the person concerned (paragraph 34);

e) The measures applied for acts of out-of-court violence against Parliament by a person who is not a member of the Parliament outside of the Parliament, depending on their nature and gravity, could be assessed by the Court in the Demicoli case against Malta as criminal, the fine applied could be changed in case of non-execution in 60 days of imprisonment (paragraph 32);

f) although in the Lutz v. Germany judgments, Schmautzer v. Austria, Malige v. France, it was decided that the sanctions on road traffic offenses, restrictions on driving licenses, penalty points, suspension or cancellation of driving license fall within the scope of the criminal to art. 6, later some aspects were tinted. Thus, in Decision 7034/07 Marius Haiducu v. Romania, the European Court of Human Rights recalled that due to the preventive, punitive and deterrent nature of the sanction applied for the infringement of the road code, the guarantees provided by art. 6 in criminal matters, including the right to respect the presumption of innocence, the procedures provided for in the contesting of the minutes by which the offenders have been subject to sanctions with fine, penalty points and / or suspension of the driving license are applicable.

In the case of Albert v. Romania (application 31911/03 of 16 February 2010), the Court had to examine the complaint by Albert Almos, mayor of Sfântu Gheorghe at the time of the facts concerning the lack of fairness of the process of cancelling a contravention report a fine was imposed. The Court has examined and determined that the three criteria must be met in order to determine a criminal charge:

– the legal classification of the litigious measure in national law;

–           the nature;

– the severity of the damage.

These three criteria are alternative and not cumulative for the qualification of the offense as a criminal charge. The applicant was sanctioned.

g) However, the Court has decided that a cumulative approach can also be taken if an analysis of each individual criterion does not allow a conclusion to be drawn regarding the existence of a criminal charge.

Regarding the criteria of the nature and severity of the sanction, the Court considered that although the fine was not one that could be replaced by imprisonment in the event of non-payment, however, the applicant received the maximum of each sanction with the total sum of ROL 100,000,000.

Given the large amount of the fine, the Court found that its gravity was part of the criminal matter and declared admissible;

h) The Court ruled that art. Article 6 of the Treaty does not treat as a “criminal charge” procedures only “a tax rectification or late payment penalties. These measures are reparatory and not punitive.

In the case of Mieg de Boofzheim v. France, which was the cause of the French taxpayer’s application as late payment, the French Government argued that there was no criminal charge. Although it was originally decided to increase 40%, it was abandoned after filing the application to the Court. Thus, the Court ruled that the abandonment of the increase after registration with the administrative court is not such as to change the nature of the litigation filed with the court. “It is about bringing the court that gives the litigation the quasi-criminal character and not the final outcome of the procedure”

The Court considered that although the issue of sanctions for bad faith constituted an element of the remedies, the exemptions granted to the applicants by the French tax authorities constituted a qualification in good faith and were such as to deprive the applicability of Article 6 § 1 of the Convention under the aspect of criminal charge.

The Court ruled that it is under the effects of Art. 6 of the Convention:

– contraventions to road traffic rules;

– contraventions in neighborhood disputes. Thus, in the case of Nicoleta Gheorghe v. Romania, the Court held that there can be no criminal charge since at the date of the facts, 1 May 2004, following the legislative changes, the applicant’s deed was penalized with a fine and the sanction of the contravention prison, already abrogated at the time of the act, or replaced by the contravention jail in case of non-execution: case analysis.

The court found that although the fine is a modest one, the case must be considered in terms of respect for human rights, also referring to Juhas Durić’s case against Serbia and Finger against Bulgaria. This was the first case when the Court analyzed the incidence of art. 6 of the Convention in criminal matters, in a case of applying a sanction for contravention in the matter of public order disorder.

i) The Court has also decided on the admissibility of applications, depending on the subject of the application, that art. 6 defining the criminal charges does not apply to procedures for a tax adjustment to those relating to late payment penalties in so far as they have the sole purpose of compensating the damage to the tax authorities rather than preventing the recurrence of the offense.

In the Bendenoun v. France case[17], it was decided that there were criminal charges from those under Art. 6 of the Convention, which meet the following criteria:

– provided penalties that apply to citizens as their taxpayers;

– the increase was aimed at applying a penalty to prevent / discourage the repetition of the offense and not the reparation of the prejudice;

– application of the increase based on a general rule;

– the increase is substantial.

j) The Court, in its practice, has held that the provisions of Art. 6 of the Convention are not applicable to electoral sanctions, the dissolution of political parties, parliamentary committees of inquiry and impeachment[18] procedures aimed at the head of state;

k) The lustration procedures[19] were judged by the Court as falling within the scope of art. 6 of the Convention.

l) Expulsion and extradition procedures are, in principle, outside the scope of criminal charges. The Court noted that the ban on the territory is generally not criminal in the member states of the Council of Europe, the measures being taken in most states by an administrative authority and by their nature are special preventive measures taken by the police for foreigners . Decisions regarding the entry, stay and deportation of aliens concern rights or obligations of the applicant and do not refer to the substance of a criminal charge[20]. In a consistent opinion given by Judge Rozakis in the same decision[21], he considers that the measure of expulsion is not a criminal one because, although it is entering the stage of the decision on a criminal charge, it still belongs to the execution phase.

In the opposite opinion formulated by the judges Hedigan and Panţâru, it has been argued that the prohibition of presence on French territory (expulsion) is an ancillary punishment for a custodial sentence pronounced by a criminal court and therefore falls within the scope of criminal law.

The Court made a whole series of other considerations as to the existence of a charge, but the analyzes concerned the same three criteria as set out above:

– the nature of the proceedings in the national law of the opposing Member State in which the complaint is dealt with;

– the material nature of the offense;

– the type and severity of the penalty.

Article 35 of the European Convention on Human Rights establishes a number of conditions for admissibility:

– Exhaustion of internal remedies;

– Compliance within 6 months from the date of the final internal decision;

– the request is not anonymous;

– the request is not essentially the same as a request previously examined by the Court or already filed with another international investigative or regulatory body and if it does not contain new facts;

– the individual application is not incompatible with the provisions of the Convention or its Protocols, manifestly unfounded or abusive;

the applicant had suffered material injury. Except for the condition of material injury, the cases in which an examination of the merits of the application is necessary to assess whether there has been a violation of human rights under the Convention and its Protocols and provided that it does not reject for that reason any cause not has been properly examined by a national court.

Bibliography

1. Convention for the Protection of Human Rights and Fundamental Freedoms
2. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms
3. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 4
4. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 6
5. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 7
6. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 12
7. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 13
8. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms No. 16
9. ECHR, Practical Guide to Admissibility Conditions
10. Attachment, Convention, Art. 6
11. Case Bandaletov v. Ukraine
12. Case Jussila v. Finland
13. Case Benham v. The United Kingdom
14. Case Campell and Fell v. The United Kingdom
15. The Demicoli case against Malta
16. The Bendenoun case against France
17. Maaouia v. France case of 05.10.2000 (application No 39652/98)

[1] ECHR, Practical Guide to Admissibility Conditions, op.cit. p. 43

[2] Idem, pag. 47

[3] Idem, pag. 49

[4] Idem, pag. 61-962

[5] ECHR, Practical Guide to Admissibility Conditions, op.cit.

[6] v. Attachment, Convention, Art. 6

[7] ECHR, Practical Guide to Admissibility Conditions, op.cit. p. 63

[8] Idem. p. 63. See also Bandaletov v. Ukraine

[9] Jussila v. Finland, paragraph 38

[10] Idem p. 64

[11] Benham v. The United Kingdom, at paragraph 56

[12] Idem p. 64

[13] Case Campell and Fell v. The United Kingdom, point 72

[14] The Demicoli case against Malta point 34

[15] Idem, pag. 66

[16] Idem, pag. 65

[17] The Bendenoun case against France

[18] indictment

[19] Prevent, restrict, prohibit certain functions, professions, dignities

[20] Maaouia v. France case of 05.10.2000 (application No 39652/98, points 37-39)

[21] Idem