Procedural and Judicial Guarantees Against the Punitive Power of Public Bodies

1 Preliminary Contents

As the examination of ECtHR’s decisions will clearly highlight, in the activity of reconstructing the principles enshrined in the ECHR, the path of their argument does not always proceed in a linear and coherent manner. Not infrequently, in some decisions, Judges openly disavow the principles established in previous, even recent, rulings.^[1] Other times new principles are immediately abandoned through the express reference to those previously elaborated.^[2] Additionally, in cases while claiming to apply one or more general principles they seem to disregard the founding reasons behind them.^[3]

Faced with such a heterogeneous framework, it seems really difficult not to adhere to the opinion of Lord Phillips, which, to represent the poor linearity in the decision of the ECtHR, observed: «some of these decisions are mutually inconsistent and it is not always easy to identify the principle underlying others».^[4]

Of course, due to the particular strength that Article 46 of the Convention attributes to them, the rulings of the ECtHR, despite their poor linearity, cannot be ignored, so, with a brief look to the Italian case, the scope of this analysis is to reconstruct the ‘frame of reference’ within which these decisions are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg.

To this aim the focus will be addressed on the following, and more complex, profiles: (a) independence, impartiality and separation of functions; (b) sanctioning activity and discretionary powers; (c) sufficient judicial review and full jurisdiction, to conclude the investigation trying to verify, in the light of the latest directions taken by the ECtHR; (d) whether, and how, the types of sanctions can affect the conditions of the judicial protection.

2 The Application of the Engel Criteria by the Successive Decisions of the ECtHR

If it is of no doubt that the Engel decision represents the leading case on the topic of the administrative sanctions, the successive step, according to the scope of this analysis, is to verify how the legal principles expressed in this decision have been applied by the successive decisions to define the sphere of influence of art. 6 ECHR, and then the possible effects on the exercise of the sanctioning power in the contracting States’ legal systems.

3 The Independence and Impartiality of the Body Imposing the Sanction

Among the most relevant guarantees enshrined in art. 6 of the ECHR there are those of the independence and impartiality of the body called to impose a sanction (of a criminal nature).

The Judges, in order to ascertain the independence of an adjudicative body, identify four, interesting criteria: (a) the manner of appointment of its members; (b) the duration of their office; (c) the existence of guarantees against pressures from outside; and (d) the (general) appearance of independence of the body.^[22]

All those elements are easy to find among (most of) the administrative bodies, and, even if the concepts of independence and impartiality «are closely linked and, depending on the circumstances, may require joint examination»,^[23] it seems more useful to focus on the problem of the impartiality, because it appears more difficult to ascertain and more numerous are the rulings of the ECtHR concerning it.

In Micallef v. Malta, the ECtHR, reiterating what was expressed in its previous rulings, clarifies that according to art. 6, co. 1, of the ECHR, the impartiality of the judicial body, as well as the subjective bias of a single judge, can be assessed using a two-pronged approach. The first, of a subjective nature (subjective test), concerning the personal convictions and, more generally, the behavior of a particular judge, who manifested personal prejudice, or bias, in a given controversy.^[24] The second, of an objective nature (objective test), concerning the structure and composition of the judicial body itself, to verify the presence of sufficient guarantees to exclude any legitimate doubt about its impartiality.^[25]

Even if the there’s non watertight division between these two criteria, in most cases, however,^[26] it could be not easy for the applicant to prove the existence of reasons of hostility or bad faith for the specific judge, and therefore his bias. For this very reason the ECtHR, more and more frequently, has preferred to focus its attention on the objective test.^[27] In doing so, observes the ECtHR, it is necessary to evaluate the existence of circumstances capable of injecting a certain doubt about the impartiality of the body called to take the decision,^[28] in this sense to assume relevance is not the fear of the subjects interested, but that this is objectively justified.^[29]

So still, in Olujić v. Croatia the ECtHR adds that anyone who is entrusted with adjudicative functions should use them using the utmost discretion avoiding, in order to preserve his own impartial figure, making statements to the press even when expressly requested to do so.^[30] This is because «justice must not only be done: it must also be seen to be done», and in fact, appearances also have a considerable importance, since relevancy is the confidence that every Court, in a democratic society, must generate in the community.^[31]

So, in the decision Grande Stevens and others c. Italy, is the impartiality of Consob (the Italian supervisory authority for Companies and Stock Exchange) to be challenged, with regard to the dual role of the President. In fact, in addition to presiding over the body responsible for pronouncing the sanction, the latter also has the task of supervising the preliminary investigation carried out by the offices, preventing the separation between the preliminary and the decisional phase of the proceeding.

For these reasons, the ECtHR accepts the lodged claim, noting that, although there is a formal separation between the bodies responsible for carrying out the investigation and the body responsible for applying the sanction, nevertheless «the Directorate and the Commission are merely branches of the same administrative body, acting under the authority and supervision of a single chairman. In the Court’s opinion, this amounts to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions is not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention».^[32]

4 Sanctioning Activity and Discretionary Powers

The issue of administrative sanctions discretion has always been controversial in the context of law studies.

The doubt concerns the possibility of conferring to the administrations the power to evaluate the opportunity of imposing the sanctions, legitimately allowing it to decide or to omit its application where it is so required, in the individual case, by evaluations concerning public interests.

The focus on this very sensitive topic, actually easy to understand, is influenced by the debate on the assimilation, as for its legal basis, with criminal sanctions, whose application is normally a duty and not a choice.

And in fact, the thesis of the compulsory exercise of punitive power by the Administrations could be supported on the basis of multiple arguments.

Sanctioning proceedings go to the heart of the rule of law forcing the legislator to set out the conditions of the sanction without leaving any margin of choice, in the application, to the administration. In this respect, the law, when setting the conditions of the sanction, would exhaust all the profiles related to its convenience, thus depriving the administration of every power of assessment on the matter.^[33]

The same conclusion could also be reached by reasoning that the ‘principle of equality’ would require the regulation of exclusions from the application of the sanction to be reserved only to the general provisions, and especially to the law, regardless of any assessment of opportunities for the Administration.^[34]

As a consequence, it is possible to achieve the same outcomes by reasoning on the role of the administrations, since, with respect to sanctioning power, to the effects of this principle their tasks are an equal treatment of all the individuals administered, and therefore, anyone is found to be in the conditions laid down by the sanctioning legislation, and for this only, will have to suffer the application without any further margin for assessment.^[35] With the conclusion that, from administrative proceedings, discretionary powers are excluded.^[36]

In this sense they have disposed of the legislations of many contracting States. For example, the Italian Act n. 689/1981 supports this view stipulating, in Articles 14 and 17, respectively, that any infringement «must be immediately contested», and, where this is not possible «the seeds of violation must be notified to the to the parties concerned» and, in addition, that, if «the reduced payment is not made, the officer who ascertained the violation must submit report»,^[37] thus providing, the Italian law would seem to outline a system that does not allow any power of choice for the administration which, verified the existence of the unlawful conduct, in the same way as the judicial investigating body, must initiate the repressive (administrative) procedure.

The same conclusions also seems to point out the text of art. 18 of Act n. 689/1981, as it provides that the sanction proceedings must be concluded with a payment order to the offender (to pay a financial penalty), or with an order to close the proceeding when there is no ground for investigations This means that, once the knowledge of the infringement has been acquired, the Administration has no place for further considerations on the opportunity to sanction or not the offender.^[38]

Instead, a different approach is followed by those who concluded in favor of the compatibility between sanctioning power and discretion, claiming that the sanctioning power is a tool designed for achieving public interest, the same interest for which the law attributes tasks to administrative bodies.^[39]

As it is an expression of administrative activity, under this approach, there will be no obstacle to the configuration of the sanctioning power as discretionary, this depending on the legislative choice made when this power is attributed to the Administration. It is also alleged, in the light of this reconstruction of the sanctioning power, the existence of a presumption of discretionary power, which can be overcome only when it is the law to exclude it.^[40]

This is also the conclusion that could result from the study of the sanctioning powers of the independent Agencies.

It has been noted that the relevant regulation only lays down generically the detrimental conduct, using phrases with indeterminate content, which means that the same Authorities are called to define their actual content. This allows us to affirm that the legislation attributes to the Agencies broad discretionary powers to determine the substance of the rule, and, in this way, the definition of the forms of protection in a given sector.^[41]

An additional element, from which to infer the compatibility between discretion and sanctioning power, is found in the context of the competition law. The initiation of sanctioning proceedings by the antitrust Authority may, in fact, be interrupted through the assumption of “commitments” by the undertaking that has implemented the unlawful conduct, that, if deemed suitable and made compulsory by the Authority, may lead to a decision to close the proceedings instead of imposing the sanction.^[42] This would allow us to deduce, in these cases, the existence of a wide discretion for the antitrust authority, which, as remarkably observed, when assessing the suitability of the commitments to remove the continuation of the anti-competitive situation can choose, through an evaluation of expediency, if accepting the commitments or go on with the sanctioning proceeding.^[43]

It is worth-noticing that there are good reasons to support the subordination of the sanctioning power to discretionary choices of the Administrations, that’s what happens, for example, when law entrusts to them the definition of the conditions to proceed with the imposition.

To find a solution to this very delicate question concerning how to exercise the sanctioning power, it seems more profitable to start from the conclusions reached, on the basis of the analysis about the identification of different types of sanctions with regard to the purpose they are designed to pursue.^[44]

In the framework of the unitary sanctioning activity, intended as a reaction of each legal system to the breach of a rule, it is possible to distinguish, in relation to the purpose that the law attributes to them, between punitive sanctions, which, as the penal ones, aim to disincentive the commission of the prohibited conducts; sanctions directed to the implementation of public interest, and, finally, disciplinary sanctions, which instead require a particular relationship with the Administration.

For the sanctions belonging to the first category, having an eminent punitive function to characterize their exercise should be of necessity, the exercise of the punitive function not tolerating interruptions in its application as well as evaluations that are not directed to verify the existence of the harmful conduct.

On the other hand, a different argument should be used with regards to sanctions that aim to the realization of the public interest.

Once intended as a tool (maybe even of secondary nature) to achieve public tasks, its most relevant profile it seems to be the one of the duty (of care), which represents the typical character of the administrative activity. Administrative power finds at its base the duty of care of the public interest, and does not aim to a generic achievement of the purpose for which is attributed, but to realize the most suitable activity in order to guarantee the highest level of its satisfaction.^[45] Satisfaction that, in some cases, could consist in the maintenance of the status quo.

The notion of duty (and dutifulness) comes from Jurisprudence and evokes the relationship between prescription and (administrative) measure, relationship designed as necessity of the (administrative) action.^[46] In this sense, the duty of the administration is only to exercise power by ensuring the highest achievement of the public interest.

With regard to the relationship between sanction and public interest, when the law constitutes the sanctioning power of an administrative body as discretionary, it is possible to imagine different solutions. The discretion of the administration may be limited to the mere determination of the penalty, depending on the most appropriate conditions to pursue public interest.^[47] Or the administration can be attributed the choice about the conditions of the sanction, either explicitly, through an express legal provision, or even implicitly, as happens when the faculty to integrate with its own provisions the components of the rule, or to lay down the conditions for the application of the sanction, is left to the administration.^[48]

It is obvious, therefore, that in the latter hypothesis, the outcome of the assessment made by the administration may also be a decision not to proceed, the choice not to adopt any sanction strengthens the idea of the functionality of it in the pursuit of the public interest.^[49]

Finally, as regards disciplinary sanctions, considering the particular relationship that exists with the interests of the administration, the general rule could well be that of the widest discretion of it.

On the other hand, this reconstruction does not seem to conflict with the ECHR, given that the provisions contained in art. 6 of the Convention no constraint is imposed on the States about the manner in which to exercise of sanctioning power.^[50]

5 The Full Jurisdiction

As pointed out in Menarini, in the opinion of the ECtHR, a due process of full jurisdiction can ‘cure’ an eventual loss of conventional guarantees by the administrations.

Particularly, it serves as remedy in all cases where a sanction, as well as the definition of a civil right, is made by a public body with a lack of impartiality, which happens when the same subject or authority is appointed by law to conduct the investigation and to adopt the final decision.^[51]

That approach underpins the fundamental idea, put forward by the ECtHR, to consider the process as single, secondary, step of a unitary function aimed to define the level of a sanction or civil rights. This point of view has its roots in the thought, which comes from the medieval legal experience,^[52] that an administrative decision has the same value of a judgment to determine nature and consistency of a right because both are an application of the law in the single cases.

Otto Mayer, while examining the notion of administrative measure, observed that: «l’acte administratif saisit donc le cas individual à la manière du jugement du tribunal civil»,^[53] in this way the administrations could be assimilated to the Courts, both having the task to enforce the legal provisions. On the same line Kelsen deemed that if «the Constitution prescribes that no interferences with property, freedom, or life of the individuals can take place except by the “due process of law”, this does not necessarily entail a monopoly of the courts on the judicial functions».^[54] The fundamental idea is that, in the modern States, «There are not three but two basic functions […]: creation and applications (execution) of Law»,^[55] because both administration and jurisdiction have an executive function, which consists in the application of norms, then what ought be relevant are that the guarantees do not decrease in connection with the organ appointed to exercise the function in the individual case.

Moreover, if administration and jurisdiction represent, unitarily, forms of execution of law, there are no reasons to exclude that the Courts can substitute their evaluations to the ones made by the Administrations.

In so doing, the ECtHR shows an approach that does not take into account the evident differences of contracting States’ legal systems, to build a system founded on the fundamental right enshrined in the Convention, that could be enforced in every contracting State superceding the differences between them. This is a trend line that is well known in many continental legal systems, where the protection of fundamental rights provided by Constitutions can cause the harmonization of different prerogatives that, in the generality of cases, are expression of different and separated powers of the States.^[56]

From the point of view of individual states, the ‘spreading’ of conventional guarantees between Administrations and Court is mainly a domestic issue. The judicial review on the administrations depends on the structure of public powers as defined in each constitution or fundamental norm,^[57] and not just from the level of protection that the ECtHR recognizes for such conventional right. It falls outside the powers of the ECtHR to re-built, in every contracting state, the balance of the respective roles between Courts and Administration,^[58] and to adhere to a different perspective which consents to harmonize a not theorical protection of the fundamental (conventional) rights with the prerogative of each legal system (of each contracting state).

In this regard, it should be accepted with deference the words of Lord Bingham in Ullah, describing the ‘dialogue’ between ECtHR and the domestic courts, according to which «the duty of the national courts is to keep pace with Strasbourg jurisprudence as it evolves over time: no more but certainly no less».^[59]

It is evident that no particular problems arise when the administration has just to adapt the law provision to the single case, as it happens when all the relevant facts are well fixed by law and can be ascertained by an Agency without any doubt. The real problem is if the review of discretionary powers should be discretionary as well.^[60]

A valid answer to that doubt should involve a second question concerning the role of the Courts (and more generally of the judiciary) in the modern States, namely if the Judges, as the Administrations, maybe even in particular cases, have to ensure public tasks or if that goals instead are typical of Agency, Local Authorities, Ombudsman, and so forth. In other words, it does not seem fair to let fall on the shoulders of the Courts the evaluation of the consistency of public needs even in a specific situation.

To clarify that conclusion, it could be useful to have recourse to a figurative example. Comparing the State to the human body, the role of the national administration can be possibly compared to the one of the clinician, whose job it is to make the choices aimed to guarantee the good health of the entire system. Instead the Courts are like the surgeon, which have a shorter perspective focalized on the single problem to remove without more general consideration regarding all the body. And to this difference of roles corresponds the different structure of the respective decisional procedure, and the different way of their investiture.

Coherently, in Alconbury,^[61] Lord Nolan wrote: «To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic»,^[62] here it seems clear that the stringency of the review should depend not only on the level of guarantees afforded by an Agency, but even the level of policy it expressed.^[63]

Now the problem is to ascertain if these conclusions are coherent with the notion of full jurisdiction, as point by point review, set forth by ECtHR.

That question arises because the definition of the notion of «civil rights and obligations», as wells as the one of «criminal charge», could entail evaluations of expediency related with the exercise of discretionary powers to be performed by Administrations.

That is mostly evident with regard to the civil rights, whose definition can be so connected with policy decisions to be difficult in the single case to ascertain when a civil right, then an obligation owned to individuals, has been determined, and to this aim a brief reference to some judicial decisions may be helpful.

So, in Husain,^[64] which involved a complaint against the decision of the Secretary of State to stop providing the claimant with support, the English High Court stressed that while civil rights and «Obligations give rise to rights; discretionary payments and discretionary support do not»,^[65] and anyway «The principle behind the distinction between decisions determinative of rights and those made in the exercise of a discretion is not hard to see. […] A right by definition is something to which the citizen is entitled, to which he has an enforceable claim. A discretionary benefit, one that a government may give or refuse as it wishes, cannot be the subject of a right».^[66] But yet, the Court concludes that «The line between a discretionary benefit and one to which the citizen may be entitled may not be an easy one».^[67]

Likewise, in Tomlinson and Other,^[68] a judgment regarding a decision of the local housing authority, the Supreme Court deemed that «There is a considerable area of administrative discretion as to how that accommodation is to be provided by the authority in any given case».^[69] And more recently, in Poshteh,^[70] a law case concerning the refusal of permanent accommodation by the appellant. On this specific profile Lord Carnwath (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Hughes agree) affirms that although «Our duty under the Human Rights Act 1998 section 2 is “take account of” the decision of the court. […] In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position».^[71]

A similar argument can be used on the field of the criminal charges yet, because, beside the sanctions with a punitive purpose, which have the same scope as the penal ones, and often are the product of legislative dispositions aimed to decriminalize minor offence, there are others which represent an important tool, in the hand normally of an Agency (but even of an administration), to ‘guide’ a particular field of the national economy or social life.

To this regard an example could be useful.

If we consider the review of European Judges (Tribunal and Court of Justice) on the sanction decisions taken by the Commission on the matters of the competition law, we can observe a deferential approach by the European Courts towards these decision on the ground that «the fining system is an important question of policy».^[72] As stressed by EU Tribunal: «it must be borne in mind that the Commission has a margin of discretion when setting the amount of fines, since fines constitute an instrument of competition policy. That margin of discretion extends, necessarily, to deciding whether or not it is appropriate to impose a fine».^[73]

The Courts are less sensitive to appreciate the changes that have occurred in society, and in fact, unlike the administrative procedure, the process is not the most appropriate place for gathering and knowing all the interests involved in a given case, the judge being bound by only the facts deduced from the parties.^[74]

This conclusion also appears to comply with the provisions of the Council Regulation n. 1/2003 (on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty), which states: «When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated». And even if this provision is directed only to the national Courts, and not to the Administrations, nevertheless it recognizes the predominant role of the Commission in making competition decisions.

In cases of decisions both on the fields of civil rights or criminal charges, when questions of expediency, connected to public choices, are involved, the stringency of the judicial review should normally decrease to respect the single sector policies, so that «The wider the margin of discretion enjoyed by an EU institution is, the less intense judicial scrutiny will be».^[75] Therefore, to clarify, the intensity of the judicial review should be measured as inversely proportional to the evaluation of expediency connected to the definition of a civil right or a criminal charge.

But as stated above: do these conclusions, consistent with the constitutional traditions of all ECHR contracting States, comply with the notion of full jurisdiction set forth by ECtHR?

To answer this question, it is necessary to briefly examine the ECtHR rulings that address this delicate issue, while being aware that «The principle of effective judicial protection is better safeguarded, in a democratic society, by a legal test which complies with it and is clear and certain in advance rather than by courts departing from a test which is not compliant with such a principle on a case-by-case basis and, more worryingly, without providing reasons for the departure from the noncompliant test but, on the contrary, purporting to apply it».^[76]

In Sigma Radio Television Ltd, the ECtHR stressed that «Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it»,^[77], but when, or under what conditions, can a judicial review be said to be ‘sufficient’?

Just to answer this question the Section clarify that «it is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialized areas of law».^[78]Consequently, the Court continues, a judicial review would be considered sufficient with regard «to the powers of the judicial body in question, and to such factors as (a) the subject-matter of the decision appealed against, in particular, whether or not it concerned a specialized issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if, so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body; and (c) the content of the dispute, including the desired and actual grounds of appeal».^[79]

These conclusions, for more reasons, could appear consistent with the assumption that the area of the administrative discretion remains in the domain of the administration, protected from the ‘interference’ by the Courts. First of all, the reference to the procedural guarantees available in the proceedings before the adjudicatory body, looking at the normal lack of impartiality of the administrations, makes really difficult to comply with the indication of the ECtHR.

Secondly, it must be distinguished that cases concerning the definition of civil rights and obligations from those concerning criminal charges, because «in its case law the Court followed a different approach as regards the scope of review of criminal sanctions imposed by administrative authorities».^[80] To respect the conventional guarantees «Parmi les caractéristiques d’un organe judiciaire de pleine juridiction figure le pouvoir de réformer en tous points, en fait comme en droit, la décision entreprise, rendue par l’organe inférieur. Il doit notamment avoir compétence pour se pencher sur toutes les questions de fait et de droit pertinentes pour le litige dont il se trouve saisi».^[81]

So, according to the words of the Court, the cases in which a judicial review of non-stringency will be admissible seem to be really few.

Obviously, as clarified by Lord Carnwath in Poshteh: «That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime».^[82]

By adopting this point of view, it is possible to try to carry out a further examination of the ECtHR’s decisions in order to verify, in concrete terms, whether and to what extent to reconcile the conventional guarantees with the protection of the sphere of administrative discretion.

6 The Full Jurisdiction in the ECtHR’s Decisions

In order to understand the exact meaning of full jurisdiction, it is useful to examine the most significant ECtHR’s rulings, separating those relating to criminal charges from those relating to civil rights.

Starting from the latter, five decisions appear particularly relevant.

In Albert and Le Compte v. Belgium,^[83] a case concerning disciplinary sanctions imposed on medical practitioners, who complained that they had not a fair and public hearing because all publicity before the Appeal Council was forbidden (both for hearings and for pronouncement of the decision), the Plenary stressed that «The public character of the cassation proceedings does not suffice to remedy the defect found to exist at the stage of the disciplinary proceedings». And the reasons for this conclusion is in the fact that «The Court of Cassation does not take cognisance of the merits of the case, which means that many aspects of “contestations” (disputes) concerning “civil rights and obligations”, including review of the facts and assessment of the proportionality between the fault and the sanction, fall outside its jurisdiction».^[84]

In a similar way, the Court rules in Obermeier v. Austria,^[85] about the suspension and ensuing dismissal of a worker in the form of ‘administrative retirement’. The Court observed that «The Provincial Governor’s decisions may, however, be the subject of an appeal to the Administrative Court. This appeal can be considered sufficient under Article 6 § 1 (art. 6-1) only if the Administrative Court could be described as “a judicial body that has full jurisdiction” within the meaning of the Albert and Le Compte judgment of 10 February 1983». And because «the Austrian Administrative Court has itself inferred that the Administrative Court can only determine whether the discretion enjoyed by the administrative authorities has been used in a manner compatible with the object and purpose of the law. This means, in the final result, that the decision taken by the administrative authorities […] remains in the majority of cases, including the present one, without any effective review exercised by the courts».^[86]

Likewise, in Tinnelly & Sons Ltd and Others and McElduff and Others v. The United Kingdom,^[87] concerning the loss of contracts (and subcontracts) on security grounds. The Court observes that «the judicial review proceedings in the High Court of Northern Ireland in the Tinnelly case never led to a full scrutiny of the factual basis of the Secretary of State’s certificate affirming that NIE’s decision to refuse Tinnelly the Ballylumford contract was an act done for the safeguarding of national security». To conclusively stress: «Having accepted that the assessment of the security risk […] was exclusively a matter for the Secretary of State, Mr Justice McCollum had to decline jurisdiction to assess whether there was indeed any sound factual basis for withholding the contract on valid security grounds […]. His hands were tied by the conclusive nature of the certificate and the Secretary of State’s invocation of national security considerations».^[88]

And similarly, in Tsfayo v. The United Kingdom,^[89] concerning the failure to submit a benefit renewal form because of the applicant’s lack of familiarity with the benefits system and poor English, the Court considered that «in the instant case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim […]. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility»,^[90] and concluded that the inadequacy of review was because «Whilst the High Court had the power to quash the decision if it considered, inter alia, that there was no evidence to support the HBRB’s factual findings, or that its findings were plainly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility».^[91]

Ultimately, in Družstevní Záložna Pria and Others v. The Czech Republic,^[92] where a credit union was put in receivership for a period of six months for contravening the relevant legislation as a result of engaging in activities outside its purview without authorization. In this case the Section observed that «the Czech administrative courts did not have full jurisdiction to review administrative acts, their scrutiny being limited […] to the examination of issues of legality»,^[93] for these reasons «The Court notes that due to its jurisdiction limited to review of legality, the Prague High Court when dealing with the second limb of the appeal, abstained, as it is apparent from its reasoning, from conducting its own examination of whether the applicant credit union was in fact in a situation justifying the imposition of receivership».^[94]

Before drawing some conclusions from the examination of the reported decisions, it seems useful to examine some judgments in which the Court considered sufficient the review exercised by the national judge.

For example, in Zumtobel v. Austria,^[95] concerning an expropriation proceeding, the ECtHR held sufficient the review exercised by the Administrative Court for two reasons, first of all: «because Article 44 para. 1 of the Provincial Highways Law makes the lawfulness of such a measure subject to a condition: the impossibility “of constructing or retaining a section of highway which is more suitable from the point of view of traffic requirements, environmental protection and the financial implications”»;^[96] and then because, consequently, «The Administrative Court in fact considered these submissions on their merits, point by point, without ever having to decline jurisdiction in replying to them or in ascertaining various facts».^[97]

In the same way the ECtHR decided in Fazia Ali v The United Kingdom,^[98] concerning the refusal of accommodation of a homeless individual (with consequent declaration, by the City Council, that its duty to her had been nevertheless discharged), observing that «Although the County Court did not have jurisdiction to conduct a full rehearing of the facts, the appeal available to the applicant did permit it to carry out a certain review of both the facts and the procedure by which the factual findings of the Officer were arrived at».^[99]

In the light of the judgments examined, two partial conclusions can be reached.

In the first place, in order to deem sufficient the review of the national Courts, the ECtHR does not require them to re-examine the situation on the merits, replacing their own assessments with those of the Administrations. It considers the conventional guarantees to be satisfied with full access, and control, to facts relevant for the judgment.

It is therefore sufficient that the administrative Court has the power, not to substitute its evaluations for that of the administration, but to review the correctness and proportionality of the choices, made by the administrations, and to quash its decisions in the light of the factual elements on which it is based.

In fact, to confirm this point of view, in Zumtobel, the ECtHR, after verifying that the domestic Court had «considered these submissions on their merits, point by point», a statement that would refer to the Court’s power to replace his own assessments with those of the administration, states that respect «must be accorded to decisions taken by the administrative authorities on grounds of expediency».^[100]

Considering, in this way, the review of the domestic Courts, it follows that, although the range of choices left to the administrations is reduced, political decisions aimed at shaping the address lines of the administrative action are still excluded from judicial control.

On the other hand, the intention of the ECtHR not to impose a jurisdiction aimed at substituting its own evaluation to that of the administrations, whenever arises a question on ground of civil rights or criminal charges, is also demonstrated by the fact that, as stated «The European Court should confine itself as far as possible to examining the question raised by the case before it. Accordingly, it should only decide whether, in the circumstances of the case, the scope of the competence of the Administrative Court satisfied the requirements of Article 6 para. 1 (art. 6-1)».^[101]

This last statement readily allows the examination of the rulings concerning cases of applicability of art. 6 par. 1 under its criminal head, in order to verify if the conclusions reached can be also extended to this additional area.

For this purpose, in addition to a brief reference to Menarini, the Sigma Radio Television Ltd^[102] case, previously mentioned, will also be examined.

In Menarini, by confirming that explained above, the ECtHR concludes the sufficiency of the Italian Administrative Court’s review because «Les juridictions administratives ont pu vérifier si, par rapport aux circonstances particulières de l’affaire, l’AGCM avait fait un usage approprié de ses pouvoirs. Elles ont pu examiner le bien-fondé et la proportionnalité des choix de l’AGCM et même vérifier ses évaluations d’ordre technique».^[103] It particularly observes that «le Conseil d’Etat […] s’est livré à une analyse détaillée de l’adéquation de la sanction par rapport aux paramètres pertinents, y compris la proportionnalité de la sanction même».^[104]

Furthermore, the statements of the ECtHR in Sigma Radio Television are particularly significant, while noting that «the power of review of the Supreme Court under Article 146 of the Constitution was not capable of embracing all aspects of the CRTA’s decisions»,^[105] it concludes that, «the Supreme Court could not substitute its own decision for that of the CRTA and its jurisdiction over the facts was limited. […] Such an approach by an appeal tribunal conducting the review of a decision of an administrative body can reasonably be expected, having regard to the nature of review proceedings and the respect which must be given to decisions taken by administrative authorities on grounds of “expediency”».^[106]

Neither it seems correct to argue otherwise referring to the case Silvester’s Horeca Service c. Belgique, deriving from this decision the necessity, for national Courts, to exercise a review of full jurisdiction, that should be able, not only to quash the sanction, but also to replace its own assessments to those of the administration.^[107] Looking at this ruling, some room for doubt can arise considering that the ECtHR, while reiterating that «Parmi les caractéristiques d’un organe judiciaire de pleine juridiction figure le pouvoir de réformer en tous points, en fait comme en droit, la décision entreprise, rendue par l’organe inférieur», with specific reference to the case at hand, declaring insufficient the review exercised by Belgian Courts stating: «la cour d’appel de Bruxelles estima en effet qu’elle était uniquement appelée à examiner la réalité des infractions au code de la TVA et à contrôler la légalité des amendes fiscales réclamées, sans être compétente pour apprécier l’opportunité ou accorder une remise complète ou partielle de cellesci».

Even if the assumptions of the Court lend themselves to different interpretations, it does not seem necessary to draw from them a resolute argument capable of disavowing the conclusions previously reached.

Actually, the real reason why the Court of Strasbourg considers insufficient the review exercised by the Belgian Supreme Court does not seem to depend on the inability of this Judge to replace the administration in the determination of the penalty, but by its inability or the impossibility of ascertaining the proportionality of the sanction (in relationship to the facts of this case).

Therefore, in the ECtHR view, even in the case of sanctions criminal in nature, a review of full stringency on relevance of the facts and on the proportionality of the decision can be considered sufficient, while leaving to contracting State’s legal systems the decision that the Courts may impose their evaluations to the administration, or if they have to be limited to quashing the administrative decision with or without referring the case back.^[108]

This seems to be the reason why in Menarini the Judges of Strasbourg considered the Italian system of administrative justice suitable to remedy the lack of the conventional guarantees during the administrative procedure.^[109] Although the Council of State affirmed that it cannot review the core of the Italian antitrust Agency decision, full control over the facts and circumstances, and on the proportionality of the sanction, convinced the Court on the existence of a syndicate of full jurisdiction.

7 Conclusion

From the reading of the decisions of the ECtHR there does not emerge a well-defined criterion capable of giving evidence, in every individual case, what the correct way of considering the level of sufficient review is. The one mentioned above, relating to the nature of the “civil rights and obligations”, as well as to the policy pursued by domestic laws, is very vague, and in fact is the same Court to hold that «whether the review carried out was sufficient will thus depend on the circumstances of a given case»^[120] without providing further references.

In view of the above and following the opinion expressed before, it’s possible to define, in conclusion, a reconstruction that can explain away the different modulation of the criteria used by the ECtHR to describe the full jurisdiction of the national Courts, and therefore the level of sufficient review, overcoming the excessive uncertainty that emerges from the last rulings examined.

Giving a look to the categories of sanctions, on which the ECtHR has over the years focused, three types can be isolated.

As noted above,^[121] it’s possible to identify sanctions having an eminently punitive purpose, that, regardless of their nature according to national legal systems as criminal or administrative, have an eminently deterrent function, with respect to which the public interest, at most, remains in the background. Then there are sanctions whose main purpose is the realization of a public interest, in a such a way as they present a clear function of policy definition, and finally, disciplinary sanctions whose purpose seems to be the protection of interests related to the administrative organization, since they are connected to the employment relationship that exists between the administration and its employees.

This distinction seems relevant to reconstructing the level of stringency of the judicial review when the sanctions are applied to the outcome of an administrative proceeding not able to fulfill all the guarantees imposed by art. 6 of the ECHR.

Closely considered, when the purpose of a sanction is the punishment of behavior constituting a damage, for purposes of deterrence and (general and particular) prevention, so that they can’t be distinguished, with regard to the function, from those laid down by national penal law, it is necessary to think about a particularly stringent control by the national Courts, not limited to a deferent review of the administrative procedure lawfulness, or aimed to ascertain the sufficiency of the evidentiary material used by the administrations, but that proceed to rehear the evidences, or to acquire new ones even at the request of the accused, in order to verify, in depth, the responsibility of an offender.

These are cases in which it is possible even to doubt the possibility to entrust an administrative body the imposition of such sanctions. As observed by the judge Pinto de Albuquerque in his dissenting opinion in the case Menarini «According to these principles, the imposition of publicly enforceable penalties goes beyond the traditional remit of the administrative authorities and should be a matter for the courts».^[122]

This conclusion is not farfetched, since it can be clearly identified – as it’s been correctly observed with regard to the relations between the sanctioning power of the European Commission and the scope of the jurisdiction of EU Courts – «fines, which fall within the criminal sphere protected by Article 6 ECHR, from other decisions», in respect of which «no room would be left for any particular discretion in the […] decision-making».^[123]

Conversely, the case of disciplinary sanctions and of those designed for the care of a specific sector of administration is completely different. In both cases these sanctions appear to be more properly directed to assume a policy-making function with respect to which the judge’s review will have to submit a greater level of deference. Furthermore, evidence of the correctness of this assumption is found once again by examining the dynamics of the relations between the sanctioning power of the European Commission and the review of EU Courts.

In this respect, the words of Lord Nolan in the Alcombury decision, referred before, appear entirely acceptable:^[124] «To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic».^[125] so that, with respect to decisions having, lato sensu, a policy content «The sufficiency of judicial review […] depends not on safeguards, but on respect for the ministerial decision on matters of policy or expediency».^[126]

In such cases, a judicial review aimed at verifying the reliability of the choices made by the administration may well be performed, not to replace with their decisions the ones of the administration, but to verify that the choice made is the most reliable even in comparison with other possible choices,^[127] all this in order to quash the sanction without having to go into the substance of issue that its underlying.