Chapter i Fair Trial Standards: Scope of Application
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1.1.3 Purpose and severity of penalty
The final, alternative, criterion for deciding whether or not a charge is “criminal” concerns
the degree of severity of the penalty that the person concerned risks incurring, or actually
incurred. Key to this issue is the aim of the penalty, i.e., whether or not it is intended to
“punish” a person for wrongdoing and/or deter reoffending.47 Account must be had, in this
regard, to the seriousness of what is at stake, and the nature, duration or manner of execution of the penalty imposed.48
In almost all instances, a penalty which involves the deprivation of liberty will amount to
a “punishment” and will mean that the charge is treated as a criminal one, even in those
cases where a pecuniary penalty is ordered instead.49 In Demicoli v Malta, for example, the
Court took note of the fact that although the House of Representatives imposed a fine on
the applicant, the maximum penalty he risked was imprisonment for a period not exceeing
60 days. What was at stake was thus sufficiently important to warrant classifying the matter as a criminal one.50
In Ezeh and Connors v the United Kingdom, the applicants were convicted prisoners and
challenged the “disciplinary” classification of prison rules. The European Court of Human
Rights explained that the realities of each situation should be considered. In that case, the
applicants were awarded additional days of non-parole. Although this did not increase their
sentence as a matter of domestic law, it meant that the possibility of early release for good
behaviour was delayed. Finding that this amounted to a criminal punishment, the European Court concluded that: “The reality of awards of additional days was that prisoners were
detained in prison beyond the date on which they would otherwise have been released, as
a consequence of separate disciplinary proceedings which were legally unconnected to the
original conviction and sentence.”51
There may be circumstances, however, where the deprivation of liberty does not by itself
render the proceedings criminal in nature, such as the detention of an alien pending her/
his expulsion (See also 1.3).
High financial penalties aimed at deterring reoffending will often also be considered to be
punitive in nature, as in Lauko v Slovakia.52 The freezing of assets of persons listed as terrorist entities was not, however, considered by the Human Rights Committee in Sayadi
47 Ravnsborg v Sweden [1994] ECHR 11, para 35; A. P., M. P. and T. P. v Switzerland [1997] ECHR 50, para 41;
and Lauko v Slovakia [1998] ECHR 82, para 58; Bendenoun v France [1994] ECHR 7, para 47.
48 Engel and Others v the Netherlands [1976] ECHR 3, para 81.
49 Engel and Others v the Netherlands [1976] ECHR 3, para 81.
50 Demicoli v Malta [1991] 14 EHRR 47, para 34.
51 Ezeh and Connors v the United Kingdom [2002] ECHR 595, para 123.
52 Lauko v Slovakia [1998] ECHR 82, para 58.
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