Chapter i Fair Trial Standards: Scope of Application
23
by the corresponding test of whether “the situation of the suspect has been substantially
affected”.26
Based on this autonomous approach, the European Court of Human Rights has developed
a well-established case law concerning the meaning of a criminal charge, or offence. Its case
law sets out three criteria, often referred to as the “Engel criteria” from the leading case of
Engel and Others v the Netherlands, requiring consideration of:
1) the domestic classification of the act as criminal or otherwise (See also 1.1.1);
2) the nature of the offence (See also 1.1.2); and
3) the purpose and severity of the penalty (See also 1.1.3).27
Although the Human Rights Committee has used much less precise language in its description of “criminal charges”, it too has referred to three corresponding factors, namely:
1) acts declared to be punishable under domestic criminal law (comparable to Engel criterion (1)),
2) with the potential that this may extend to acts that are criminal in nature (comparable
to Engel criterion (2)),
3) accompanied by sanctions that, “regardless of their qualification in domestic law, must
be regarded as penal because of their purpose, character or severity” (comparable to
Engel criterion (3)).28
One possible difference between the approaches of the European Court and the Human
Rights Committee is that the Committee’s description appears to require factors (2) and (3)
to be cumulative, whereas the European Court has stated that the second and third criteria
are alternative and not necessarily cumulative.29 As stated by the European Court of Human
Rights in Jussila v Finland:
“It is enough that the offence in question is by its nature to be regarded as criminal
or that the offence renders the person liable to a penalty which by its nature and
degree of severity belongs in the general criminal sphere… The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character… This does not exclude a cumulative approach where separate analysis of each
26 Eckle v Germany [1982] ECHR 4, para 73.
27 Engel and Others v the Netherlands [1976] ECHR 3, paras 80–85. As reaffirmed, for example, in Ezeh and
Connors v the United Kingdom [2002] ECHR 595, para 56.
28 UN Human Rights Committee, CCPR General Comment 32 (2007), para 15; and Perterer v Austria, HRC
Communication 1015/2001, UN Doc CCPR/C/81/D/1015/2001 (2004), para 9.2.
29 Lutz v Germany [1987] ECHR 20, para 55; Kadubec v Slovakia [1998] ECHR 81, para 51; Ziliberberg
v Moldova [2005] ECHR 51, para 31.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents