Administrative sanctions never fall out of fashion; their use has been nothing but increasing over the recent years. The academic discourse tries to catch up even if it primarily takes place within the framework of EU law. Under the ECHR law, the most important provision is beyond doubt Article 6 ECHR applied autonomously towards administrative sanctions (See the so-called Engel criteria as developed in Engel and Others v Netherlands (5100/71, 5101/71, 5102/71, 5354/72, 5370/72) 8 June 1976 ECtHR). By means of this provision, an array of ‘fair trial’ standards is attached to administrative sanctions. However, the European Court of Human Rights (‘ECtHR’) has made it clear on numerous occasions that Article 6 ECHR offers only ‘procedural’ and not ‘substantive’ protection, i.e. it cannot control the content of a State’s national (punitive) law. In concrete terms, this means that the ECtHR might condemn a Member State for excessive length of sanctioning procedure but leave the – purportedly unjust – merits of the same sanctions unexamined. In fact, only in extremely rare cases, the ECtHR will be prone to use this provision to adjudicate on merits of the impugned national decisions.
Thus, the ‘residual’, for lack of a better word, yardsticks to measure the substantive dimension of penalties are the proportionality and legality principles underpinning the whole structure of the ECHR. While the application of the former principle to administrative sanctions is of general nature and, thus, scattered under articles 8 – 11 ECHR as well as Article 1 of Protocol No. 1 ECHR, the latter has a clear normative basis in Article 7 ECHR enshrining that no punishment is possible without law. Notwithstanding this fact, its use has so far attracted only limited scholarly attention, mostly exploring it within the paradigm of criminal law. This seems unwarranted since the level of coercion in some (administrative law) fields, like competition or data protection law, may be excessive compared to those in criminal law.
The recent article entitled “The Principle of Legality and Administrative Punishment under the ECHR: A Fused Protection” endeavours to fill in this academic gap by exploring the relation of this principle to administrative punishment and the implications stemming therefrom. This was done by dissecting the rationale and notion of this principle in the normative sources of the Council of Europe (CoE) with a special emphasis on Article 7 ECHR and its (autonomous) application in the case-law of the ECtHR as well as identifying the shortcomings of the current perception of the legality principle in the context of administrative punishment.
The analysis of relevant CoE sources (Article 7 and CoE Recommendation No. R (91) 1 on administrative sanctions and its explanatory notes) has left no doubt that legality is a salient and non-derogable concept facilitating a fight against arbitrary punitive practices invoked by some Member States. In the specific punitive context, it implies, among other things, several important requirements in line with the general duty for public authorities to have a legal basis for any infringement of individual rights: first, a separation between (legislative) bodies stipulating administrative sanctions and the (executive) ones imposing them has to be maintained. Secondly, the scale of pecuniary sanctions must be laid down (lex certa of penalties). Finally, sanctions that may impinge upon fundamental rights have to be especially clearly defined.
The closer study of the ECtHR’s case law, for its part, revealed Article 7 ECHR to be autonomous and capable of providing a bulwark against the ever-enticing possibility of Member States watering down standards of individual protection by ‘mislabelling’ punitive measures. It has successfully been invoked in cases concerning administrative detention, annulment of a driving licence, and the impounding of a car. What is more, further declinations of this principle came to the fore and can broadly be classified into three categories:
1) regulatory quality: the absence of regulation (as well as convoluted legal provisions), overly broad provisions or overly broad discretion given to the executive, ambiguities and vagueness can be indicated as examples of what the ECtHR will not tolerate regarding the legality requirement;
2) non-retrospective application of administrative punishment – a ‘trivial’ but often forgotten precept in administrative punishment; and
3) the need for personal liability requiring “material and mental elements” to the offence by the transgressor and ensuring that a person cannot be punished for an act engaging the liability of another person.
At the same time, this study has somewhat paradoxically shown that the tendency to invoke Article 7 ECHR is marked by parsimony. The ECtHR tends to reserve applying Article 7 ECHR to the most severe punitive measures with dense retributory content be they criminal or administrative. By doing so, however, it excludes from its scope such sanctions as, for example, professional bans by overemphasizing their preventive goals but overlooking the actual deleterious effects of a punitive character on the individual as seen from the intrinsic viewpoint of punishment. This may lead to the weakening of individual protection and not providing effective safeguards against arbitrary punishment practices. In extremis, this also results in a jurisprudential ‘cacophony’, i.e. attributing procedural safeguards to these types of sanctions when it comes to applying Article 6 ECHR but not fully granting the substantive protection enshrined in Article 7 ECHR.
Finally, our research has also revealed that not all relevant questions have conclusively been answered in the case-law of the ECtHR so far. More precisely, many vexing questions touching upon the ‘nulla poena’ side of the notion of the principle of legality, i.e. connected to the precision and proportionality of penalties themselves, are still looming. However, it seems to be only a matter of time before they will have to be confronted as more and more punitive powers are making their way into the modern regulatory state in the guise of administrative sanctions. The burgeoning field of data protection and the exorbitant fines prescribed therein, for example, is a point in fact. In the future, adjudication on the ‘human rights’ dimension’ of these fines is likely to spill over to the ECtHR, as has happened with, for example, competition law.
Posted by Agnė Andrijauskaitė, LL.M.
Agnė Andrijauskaitė, LL.M is a research associate at the German Research Institute for Public Administration as well as a PhD Student at the Vilnius University and the German University of Administrative Sciences Speyer. Her main areas of research include European Administrative Law, Administrative Punishment, and European Human Rights Law.
Suggested citation: A. Andrijauskaitė, “The Principle of Legality as a Way to Control Sanctioning ‘Content’ under ECHR?”, published on REALaw.blog at https://realaw.blog/2021/10/26/the-principle-of-legality-as-a-way-to-control-sanctioning-content-under-echr-by-agne-andrijauskaite/
 See the recent case of Jónsson and Ragnar Halldór Hall v Iceland (68273/14 and 68271/14) 22 December 2020 [GC] as the proverbial tip of an iceberg of this problem, in which the question of administrative penalties having no upper limits and coming to very large amounts was left unexamined by the ECtHR. See also for the comment A. Andrijauskaitė, “The Case of Gestur Jónsson and Ragnar Halldór Hall v Iceland: Between Two Paradigms of Punishment”, (2021) Strasbourg Observers.
 D.J. Harris/M. O’Boyle/E.P. Bates/C.M. Buckley (eds.), Law of the European Convention on Human Rights (OUP, 2009), p. 202; p. 224. See for an exception Mamidakis v Greece (35533/04) 11 January 2007 ECtHR, in which it was stated that the imposition of customs fines in question had dealt such a blow to the applicant’s financial situation that it amounted to a disproportionate measure in relation to the legitimate aim pursued. The ECtHR also condemns the combined use of penalties and confiscation at the same time, see in this regard, e.g., Ismayilov v Russia (30352/03) 6 November 2008 ECtHR at , Tanasov v Romania (65910/09) 31 October 2017 ECtHR at  and El Ozair v Romania (41845/12) 22 October 2019 ECtHR at .
 This means that one has to look for its application within sanctioning context not under Article 6 ECHR but elsewhere: e.g., Article 8 or Article 11 ECHR (media law or the right to freedom of peaceful assembly); see, e.g., Galstyan v Armenia (26986/03) 15 November 2007 ECtHR, in which the ECtHR found that the sanction of deprivation of liberty for three days for participating in an authorised and peaceful street demonstration impaired the very essence of the right to freedom of peaceful assembly.
 See, e.g., for recent scholarship exploring the topic M. Timmerman, Legality in Europe: On the principle nullum crimen, nulla poena sine lege in EU law and under the ECHR (Intersentia, 2018) and C. Peristeridou, The principle of legality in European criminal law (Intersentia, 2015).
 See more on the autonomous nature of ‘penalty’ in Welch v the United Kingdom (17440/90) 9 February 1995.