Improving Participatory Rights: the ECHR Case Law
2. Protection of participatory rights through the ECHR.
Protecting the citizens through an actual participation in the administrative decision-making process can be deemed as one of the main goals pursued by the European Court in its implementation of the Convention provisions.
For such purposes the European Court worked out a modern approach to the traditional conventional rights in to-day framework of the relationships between individuals and public powers through the development autonomous meanings of the ECHR rules concerned [8]. This process may be described as a creative interpretation’s activity whose aim is to draw new rules from the Conventional provisions with the purpose of setting down further guarantees for the issue of participative democracy. For instance art. 6 ECHR (right to a fair trail) was originally limited to the determination either of a “civil rights and obligations” or of a “criminal charge”. Thanks to the European Court it became a right to a “fair administrative proceedings” [9]. But the main vehicle used by the Court to apply the principle of art. 6 to administrative proceedings not judicial in nature under national law was the concept of “criminal charge”. In the Engel case the Court underlined that the character of a procedure under domestic law cannot be decisive in the question of whether art. 6 might apply[10]. Thus, the principle of fair trial has been applied to several proceedings which are administrative in domestic law: they concerned for instance customs offences, disciplinary sanctions imposed to prisoners[11], traffic offences[12] and fiscal penalties[13]. The wide interpretation of the concept of “criminal charge” led the Court to include the administrative proceedings concerning sanctions imposed by Independent Administrative Authorities among those to which art. 6 applies[14].
The application of the principle of the fair trial in proceedings both disciplinary and concerning sanctions or fines before administrative authorities shows the need to provide important guarantees, such as, for instance, the impartiality and independence of the Authority’s decision maker [15], the respect of equality of arms, the guarantee of a reasonable time and the right to be heard [16].
Sometimes, when it is not possible to refer to the text of art. 6 because no civil right or criminal charge is involved, the Court tries to guarantee the fairness of the administrative proceedings through other Conventional rights relevant in the case concerned.
For instance, the European Court appealed art. 8 ECHR (right to respect for private and family life) to scrutinise the decision-making process to ensure that due weight be accorded to the Conventional rights in the administrative proceedings. In several judgments concerning the field of health protection, the Strasbourg Court has pointed out the need to determine whether, having regard to the peculiar circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process to a degree sufficient to provide her or him with the required protection of their interests[17].
Thus the Conventional rights, which have a substantive nature, receive in the European case law protection through procedural guarantees, which are not formally provided in the text of the European Convention on human rights.
Art. 8 ECHR, for instance, does not contain any reference to procedural guarantees to ensure the right to respect for private and family life, home and correspondence.
In paragraph 2 a fair balance is provided between the fundamental right and the possible interference of a public authority with the exercise of such right, be it in accordance with the law and or, if required, «in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others» (art. 8 ECHR, Subsection 2). But there is no reference to the participatory rights of individuals, such as the right to be heard in a proceeding concerning their private and family life.
But the Court draws the right to participate in the decision-making process concerning interests safeguarded by art. 8 ECHR from a general principle of a democratic society, such as the rule of law.
Thus the aim to guarantee participatory rights in the administrative proceedings is achieved by the Strasbourg Court without referring to the only one “procedural” provision in the European Convention (i.e. art. 6 ECHR). The aim is also achieved through a creative interpretation of art. 8, which includes the instrumental right to a fair proceeding as a relevant part of the substantive right to the respect for private and family life.
In the case Tysiac v. Poland, the Court stressed the importance of a procedural instrument by which the applicant could have vindicated the right to respect for private life[18].
Note
8. About the “autonomous meanings” created by the Court F. Sudre, Le recours aux «notions autonomes», in F. Sudre (dir.), L’interpretation de la Convention européenne des droits de l’homme, Bruxelles, 1998, 93.↑
9. Interpreting the notion of “civil rights and obligations”, the Court held that the mere fact that the right or obligation at issue is governed by public law in national legislation does not exclude the applicability of the first paragraph of Article 6. The leading case is the judgment of 16 July 1971, Michael Ringeisen v. Autriche, A, No. 13. See also the judgment of 28 June 1978, König v. Germany, A, No. 27; and judgment 23 October 1985, Benthem v. Netherlands, A, No. 97.↑
10. Judgment of 8 June 1976, Engel v. Netherlands, A, No. 22, concerning a disciplinary proceeding under military law. In particular the case deals with the violation of Article 6 ECHR under the aspect of reasonable time.↑
11. See the judgment of 28 June 1984, Campbell and Fell v. United Kingdom, A, No. 80. See also the judgment of 9 October 2003, Ezeh and Connors v. United Kingdom, relating to a disciplinary sanction of two additional days of prison imposed to the two applicant prisoners.↑
12. See for example the leading judgment of 21 February 1984, Oztürk v. Germany, A, No. 73; and also the next judgments of 23 October 1995, Schmautzer v. Austria; Umlauft v. Austria; Grandinger v. Austria, A, No. 328; judgment of 23 September 1998, Malige v. France, in www.echr.coe.int and in JCP-La Semaine juridique, 1999, G, II, 10086, note F. Sudre, Le retrait de points du permis de conduire au regard de l’Article 6, § 1, de la Convention EDH.↑
13. In this field the European Court has adopted the position that those penalties which are not compensatory in nature, but are of a punitive character give the proceedings a criminal character for the purpose of Article 6. See for example judgment of 7 October 1988, Salabiaku, A, No. 141-A; the mentioned judgment of 24 February 1994, Bendenoun v. France, and recently judgment of 11 gennaio 2000, Meignen v. France, in www.echr.coe.int.↑
14. In the judgment of 27 August 2002, Didier v. France, in www.echr.coe.int and in Revue de droit public, 2003, 3, note G. Gonzales, the Court has found that the Conseil des marchés financiers has the nature of “tribunal” falling under the scope of Article 6. The Conseil is a French administrative authority holding disciplinary powers, which has taken the place of Conseil des bourses de valeurs and of Conseil des marché à terme and now is transformed, by the Law of 1st August 2003, No. 706, in Autorité des marché financiers. When the Authority imposes administrative sanctions of a punitive nature it should be considered, according to the opinion of the Court, a tribunal which must guarantee fairness of treatment.↑
15. See the judgment of 27 October 1987, Pudas v. Sweden, A, No. 125-A; and judgment of 22 October 1984, Sramek v. Austria, A, No. 84↑
16. See the judgment of 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, A, No. 43; Judgment of 29 May 1986, Deumeland v. Germany, A, No. 100. A more complete analysis bout this case law could be found in S. Mirate, Protection of ECHR rights in administrative proceedings, in R. Caranta (Ed. by), Interest representation in administrative proceedings, Napoli, 2007, 235 ff.↑
17. See the judgment of 8 July 2003, Hatton and others v. United Kingdom, in www.echr.coe.int, § 99 ff.↑
18. Judgment of 20 March 2007, Tysiac v. Poland, in www.echr.coe.int. See also, in the same sense, the next judgments 1st December 2008, X v. Croatia; 7 April 2009, Brânduse v. Romania, both in www.echr.coe.int. ↑
