24 Legal Digest of International Fair Trial Rights riterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge...” 30 Whether or not proceedings are criminal is normally clear. The issue that often arises in this area is the line to be drawn between what are clearly criminal proceedings before criminal courts, versus disciplinary or administrative proceedings. 1.1.1 Domestic classification as an offence under criminal law The first consideration to be had in deciding whether or not the determination of a “charge” involves criminal proceedings is the domestic classification of the charge. The State’s classification will not, however, be decisive.31 As explained by the European Court of Human Rights in Engel and Others v the Netherlands: “[I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value…”32 This means that the autonomy of the State to designate offences as criminal or otherwise operates in one direction only. If the State classifies an offence as criminal, this will be determinative.33 But if the State does not classify an act as criminal, the European Court of Human Rights can conclude that the act is criminal having regard to the nature of the offence (See also 1.1.2) and the purpose and severity of the offence (See also 1.1.3). In Engel and Others v the Netherlands, for example, the determination of disciplinary charges (offences against military discipline) was found to amount to criminal proceedings.34 In Lauko v Slovakia, the classification by Slovakia of a minor offence as an “administrative” offence did not prevent the European Court from concluding that the nature of the offence and the punitive character of the penalty meant that the proceeding was a criminal one for the purpose of Article 6 of the ECHR.35 The rationale behind this approach is that it prevents States Parties from misusing domestic legal nomenclature for the purpose of avoiding the guarantees provided for by Article 6 of 30 Jussila v Finland [2006] ECHR 996, para 31. See also Engel and Others v the Netherlands [1976] ECHR 3, para 81; Lutz v Germany [1987] ECHR 20, para 55; Ravnsborg v Sweden [1994] ECHR 11, paras 31–35; and Lauko v Slovakia [1998] ECHR 82, para 56; Ezeh and Connors v the United Kingdom [2002] ECHR 595, para 58. 31 Ziliberberg v Moldova [2005] ECHR 51, para 30; Kadubec v Slovakia [1998] ECHR 81, para 51. 32 Engel and Others v the Netherlands [1976] ECHR 3, para 81. 33 Engel and Others v the Netherlands [1976] ECHR 3, paras 80–81. 34 Engel and Others v the Netherlands [1976] ECHR 3, para 85. See also, for example, Weber v Switzerland [1990] ECHR 13, paras 33–35. 35 Lauko v Slovakia [1998] ECHR 82, para 58. See also: Bendenoun v France [1994] ECHR 7, para 47 (concerning customs and exchange-control proceedings); and A. P., M. P. and T. P. v Switzerland [1997] ECHR 50, para 41 (concerning proceedings under tax legislation).