Disciplinary sanctions against judges:punitive but not criminal for the Strasbourg Court

Resumen

The European Court of Human Rights (ECtHR) sought to extend the guarantees for criminal procedure enshrined in Art. 6 of the European Convention on Human Rights (ECHR) to administrative offences which are criminal in nature when it established the Engel criteria. It aimed to prevent that the states circumvent criminal procedure safeguards by simply labelling such offences as administrative. However, the ECtHR went back on this initial approach in subsequent judgments, denying that sanctions in disciplinary proceedings against judges fall under the criminal limb of Art. 6 ECHR. Hence, further exploration is required to clear the blurring lines between administrative and criminal sanctions with the aim of establishing which procedural safeguards are applicable. This article outlines and reflects on the reasons set out in ECtHR case law for no longer considering disciplinary sanctions against judges as “criminal in nature.” It is argued that the ECtHR’s current approach leaves it unclear which procedural safeguards are applicable in administrative sanctioning proceedings with a punitive nature. What is more, excluding disciplinary proceedings against judges from the guarantees for criminal procedure enshrined in the ECHR lacks a clear legal logic if such sanctions are undoubtedly punitive and could have severe consequences. Moreover, it is stressed that the Court of Justice of the European Union (CJEU) might eventually be called upon to define what should be considered “criminal in nature” when it comes to disciplinary proceedings against judges. Given the relevance of disciplinary proceedings and sanctions for the protection of judicial independence and given the competence established by the Luxembourg Court to decide on this protection, it is of utmost relevance that the approach taken by the Strasbourg Court be revisited.