CYIL vol. 15 (2024)

JIŘÍ MULÁK of the administrative court’s judgment. In his view, this constituted a violation of Article 2 of Protocol No. 7 to the ECHR. The Government’s objection was ratione materiae , i.e., that the proceedings were not criminal, since that conduct had previously been deleted from the Criminal Code. Furthermore, the Government argued that the sanction provided for was not a permissible sentence of imprisonment and that Article 2 of Protocol No. 7 to the ECHR was therefore inapplicable. The ECtHR therefore addressed the question whether the proceedings under review were criminal in nature and whether the type of proceedings should be examined in the light of the so-called Engel criteria (legal qualification of the offence under domestic law; the nature of the offence; the degree of severity of the most serious sanction to be imposed for its commission). The applicant’s situation was assessed as a quasi-criminal offence. First of all, the ECtHR rejected the Government’s argument that the applicant’s right to appeal was preserved as he could have brought an administrative action before the courts against the decision of the administrative authority. Authorities which are not courts within the meaning of Article 6 ECHR cannot be regarded as courts for the purposes of Article 2 of Protocol No. 7 to the ECHR. The administrative authority which decided the applicant’s case at first instance was not sufficiently independent because it was part of the Ministry of Finance. The ECtHR further held that the review jurisdiction of the Constitutional Court is limited to examining the compatibility of the measure in question with fundamental rights, i.e., questions of constitutionality. The applicant therefore did not have access to a higher court which could have fully reviewed the judgment of the administrative court, thus violating Article 2 of Protocol No. 7 to the ECHR. The ECtHR concluded that there had been a violation of the applicant’s right of appeal under Article 2 of Protocol No. 7 to the ECHR, since the customs offence proceedings for which the applicant was fined were criminal in nature and the applicant nevertheless had no access to a higher court. The ECtHR emphasised that the higher level of judicial review cannot be considered to be the Constitutional Court, whose review jurisdiction is limited to questions of constitutionality. 50 In case of Kindlhofer v. Austria , 51 the ECtHR dealt with a complaint by an Austrian applicant concerning the withdrawal of an appeal against a decision of an administrative court in a misdemeanour case. At the heart of the case was a finding by the Austrian police that the applicant had been driving a passenger vehicle involved in a traffic accident. The police then imposed a sanction on him under the Road Traffic Act, namely a fine of €200, and at the same time decided that if he failed to pay it, the penalty would be converted into an unconditional prison sentence of four days. The applicant appealed against this administrative sanction, which also threatened him with an unconditional prison sentence, to the Administrative Court. In his appeal, the applicant argued that he had not driven the car in question because he had consumed alcohol and that he did not know who else had driven the car that evening. The administrative court dismissed the applicant’s appeal. The applicant subsequently lodged a complaint with the Constitutional Court. He argued that it was unconstitutional that a cassation complaint could not be lodged with the Supreme Administrative Court if the fine was less than €400. The applicant considered this to be a violation of Article 2 of Protocol No. 7 to the ECHR,

50 ECtHR decision in Saquetti Iglesias v. Spain , of 30 June 2020, application no. 50514/13, §§ 32–61. 51 ECtHR decision in Kindlhofer v. Austria , of 26 October 2021, application no. 20962/15.

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