EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

may assess whether the same Article is also applicable under its criminal head ( Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 121, 6 November 2018). The Court considers that it has jurisdiction to examine of its own motion the question of the applicability of Article 6 even if the respondent Government have not raised this issue before it ( Selmani and Others v. the former Yugoslav Republic of Macedonia , no. 67259/14, § 27, 9 February 2017). The concepts of “civil rights and obligations” and “criminal charge” have an “autonomous” meaning that is independent of the categorisations employed by the national legal systems of the member States ( Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 43, ECHR 2015; Blokhin v. Russia [GC], no. 47152/06, § 179, 23 March 2016). The applicability of Article 6 § 1 in civil matters firstly, depends on the existence of a “dispute”. Secondly, the dispute must relate to a “right” that can be said, at least on arguable grounds, to be recognised under domestic law irrespective of whether it is protected under the Convention. The dispute must be genuine and serious since it may relate; not only to the actual existence of a right, but also to its scope and the manner of its exercise. Finally, the result of the proceedings must be directly decisive for the “civil” right in question because mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play ( Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017). The starting-point for an assessment of the applicability of the criminal aspect of Article 6 of the Convention is based on criteria outlined in the Engel case ( Engel and Others v. the Netherlands , 8 June 1976, § 82-83, Series A no. 22): 1] classification in domestic law; 2] nature of the offence; and 3] severity of the penalty that the person concerned risks incurring. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring ( Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). In the latter connection, the Court has also considered the nature of the penalty (see, for example, Öztürk v. Germany , 21 February 1984, § 50, Series A no. 73). The second and third criteria are alternatives and not necessarily cumulative. However, this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge ( Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006-XIV). The fact that an offence is not punishable by imprisonment is not by itself decisive for the purposes of the applicability of the criminal limb of Article 6 of the Convention since, as the Court has stressed on numerous occasions, the relative lack of seriousness of the penalty at stake cannot deprive an offence of its inherently criminal character (see Ramos Nunes de Carvalho e Sá , cited above, § 122). In considering that the third criterion did not bring the matter into the “criminal” sphere, the Court has had regard to factors such as the following: that the amount imposed as a fine had not been substantial or had corresponded to the minimum provided for by domestic law; that, although the size of the potential fine (approximately EUR 36,000) was such that it must be regarded as having a punitive effect, the severity of this sanction did not bring the matter into the criminal sphere (see Müller-Hartburg v. Austria , no. 47195/06, § 47, 19 February 2013); that a ceiling had been provided for by domestic law; that the fines were not entered in the criminal record, and the court could only convert them into a prison sentence if they were unpaid; that an appeal lay against such decisions (ibid.); or that the penalty could only be converted into a prison sentence in limited circumstances and then subject to the defendant being summoned to appear before the court for an oral hearing in separate proceedings. Under Article 6 § 1 of the Convention, a court or tribunal must always be “established by law”. This expression reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and its Protocols, and which is expressly mentioned in the preamble to the Convention ( Jorgic v. Germany , no. 74613/01, § 64, ECHR 2007-III (extracts)). A tribunal that is not established in conformity with the intentions of the legislature

EUROPEAN COURT OF HUMAN RIGHTS IN ACTION

71