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Criminal Matter [ECHR]

Criminal Charge

Article 6 § 1 of the Convention
“1. In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by [a] tribunal …”

The concept of a “criminal charge” has an “autonomous” meaning, independent of the categorisations employed by the national legal systems of the member States (Blokhin v. Russia [GC], 2016, § 179; Adolf v. Austria, 1982, § 30). This is true both for the determination of the “criminal” nature of the charge and for the moment from which such a “charge” exists.

In using the terms “criminal charge” and “charged with a criminal offence”, the three paragraphs of Article 6 refer to identical situations. Therefore, the test of applicability of Article 6 under its criminal head will be the same for the three paragraphs.

The existence of a “charge”

The concept of “charge” has to be understood within the meaning of the Convention. The Court takes a “substantive”, rather than a “formal”, conception of the “charge” contemplated by Article 6 (Deweer v. Belgium, 1980, § 44). Charge may thus be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (ibid., §§ 42 and 46; Eckle v. Germany, 1982, § 73, and also Ibrahim and Others v. the United Kingdom [GC], 2016, § 249; Simeonovi v. Bulgaria [GC], 2017, § 110).

The Court held that a person arrested on suspicion of having committed a criminal offence (Heaney and McGuinness v. Ireland, 2000, § 42; Brusco v. France, 2010, §§ 47-50), a suspect questioned about his involvement in acts constituting a criminal offence (Aleksandr Zaichenko v. Russia, 2010, §§ 41-43; Yankov and Others v. Bulgaria, 2010, § 23; Schmid-Laffer v. Switzerland, 2015, §§ 30-31) and a person who has been questioned in respect of his or her suspected involvement in an offence (Stirmanov v. Russia, 2019, § 39), irrespective of the fact that he or she was formally treated as a witness (Kalēja v. Latvia, 2017, §§ 36-41) as well as a person who has been formally charged with a criminal offence under procedure set out in domestic law (Pélissier and Sassi v. France [GC], 1999, § 66; Pedersen and Baadsgaard v. Denmark [GC], 2004, § 44) could all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention.

On the other hand, a person questioned in the context of a border control, in the absence of a need to determine the existence of a reasonable suspicion that she had committed an offence, was not considered to be under a criminal charge (Beghal v. the United Kingdom, 2019, § 121). In Sassi and Benchellali v. France, 2021, §§ 70-78, concerning statements given by the applicants to certain French authorities on a US base at Guantánamo, the Court did not consider that the questioning in the context of administrative missions, unrelated to the judicial proceedings, with the aim of identifying the detainees and collecting intelligence, not for the purpose of gathering evidence of an alleged criminal offence, amounted to the existence of a criminal charge.

In Deweer v. Belgium, 1980 (§§ 41-47), a letter sent by the public prosecutor advising the applicant of the closure of his business establishment and soliciting him to pay a sum of money as a settlement for avoiding prosecution amounted to the existence of a “criminal charge” triggering the applicability of Article 6 of the Convention.

Similarly, in Blaj v. Romania, 2014 (§§ 73-74), the Court examined the context in which actions were taken against the applicant who had been caught in the very act of committing an offence of a corruptive nature (in flagrante delicto). For the Court, the taking of forensic samples on the crime scene and from the applicant and inviting the applicant to open an envelope in his office suggested that the authorities had treated the applicant as a suspect. In these circumstances, the information communicated to the applicant during the ensuing questioning had implicitly and substantially affected his situation, triggering the applicability of Article 6.

The “criminal” nature of a charge

As regards the autonomous notion of “criminal”, the Convention is not opposed to the moves towards “decriminalisation” among the Contracting States. However, offences classified as “regulatory” following decriminalisation may come under the autonomous notion of a “criminal” offence. Leaving States the discretion to exclude these offences might lead to results incompatible with the object and purpose of the Convention (Öztürk v. Germany, 1984, § 49).

Moreover, the Court has held that the Convention allows States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. Such a choice, which has the effect of rendering applicable Articles 6 and 7, in principle escapes supervision by the Court. The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a “mixed” offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction under Article 6 to satisfy itself that the disciplinary does not improperly encroach upon the criminal sphere (Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], 2020, § 76).

The starting-point for the assessment of the applicability of the criminal aspect of Article 6 of the Convention is based on the criteria outlined in Engel and Others v. the Netherlands, 1976 (§§ 82-83):

  • classification in domestic law;
  • nature of the offence;
  • severity of the penalty that the person concerned risks incurring.

Criteria

The first criterion is of relative weight and serves only as a starting-point. If domestic law classifies an offence as criminal, then this will be decisive. Otherwise the Court will look behind the national classification and examine the substantive reality of the procedure in question (Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], 2020, §§ 85 and 77-78).

In evaluating the second criterion, which is considered more important (Jussila v. Finland [GC], 2006, § 38), the following factors can be taken into consideration:

  • whether the legal rule in question is directed solely at a specific group or is of a generally binding character (Bendenoun v. France, 1994, § 47);
  • whether the proceedings are instituted by a public body with statutory powers of enforcement (Benham v. the United Kingdom, 1996, § 56);
  • whether the legal rule has a punitive or deterrent purpose (Öztürk v. Germany, 1984, § 53;Bendenoun v. France, 1994, § 47);
  • whether the legal rule seeks to protect the general interests of society usually protected by criminal law (Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia, 2018, § 42);
  • whether the imposition of any penalty is dependent upon a finding of guilt (Benham v. the United Kingdom, 1996, § 56);
  • how comparable procedures are classified in other Council of Europe member States (Öztürk v. Germany, 1984, § 53).

The third criterion is determined by reference to the maximum potential penalty for which the relevant law provides (Campbell and Fell v. the United Kingdom, 1984, § 72; Demicoli v. Malta, 1991,
§ 34).

The second and third criteria laid down in Engel and Others v. the Netherlands, 1976, are alternative and not necessarily cumulative; for Article 6 to be held to be applicable, it suffices that the offence in question should by its nature be regarded as “criminal” from the point of view of the Convention, or that the offence rendered the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (Lutz v. Germany, 1987, § 55; Öztürk v. Germany, 1984, § 54). The fact that an offence is not punishable by imprisonment is not in itself decisive, since the relative lack of seriousness of the penalty at stake cannot divest an offence of its inherently criminal character (ibid., § 53; Nicoleta Gheorghe v. Romania, 2012, § 26).
A cumulative approach may, however, be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (Bendenoun v. France, 1994, § 47).

Disciplinary Proceedings

Offences against military discipline, carrying a penalty of committal to a disciplinary unit for a period of several months, fall within the ambit of the criminal head of Article 6 of the Convention (Engel and Others v. the Netherlands, 1976, § 85). On the contrary, strict arrest for two days has been held to be of too short a duration to belong to the “criminal law” sphere (ibid.).

With regard to professional disciplinary proceedings, in Albert and Le Compte v. Belgium, 1983 (§ 30) the Court considered it unnecessary to give a ruling on the matter, having concluded that the proceedings fell within the civil sphere. It stressed, however, that the two aspects, civil and criminal, of Article 6 are not necessarily mutually exclusive (ibid.). By contrast, as regards disciplinary proceedings before sport federation tribunals, the Court held that the criminal limb of Article 6 did not apply (Ali Rıza and Others v. Turkey, 2020, § 154).

In Müller-Hartburg v. Austria, 2013 (§§ 42-49), which concerned disciplinary proceedings against a lawyer, the Court did not find the criminal limb of Article 6 to be applicable. It took into account the fact that the applicable disciplinary provision did not address the general public but the members of a professional group possessing a special status and that it was intended to ensure that members of the bar comply with the specific rules governing their professional conduct. It thus did not have the elements of a criminal but rather disciplinary nature. Moreover, the deprivation of liberty was never at stake for the applicant and the fine which he risked incurring, although reaching the amount which could be regarded as punitive, was not in itself sufficient to qualify the measure as criminal. The same was true for the sanction of striking the applicant off the register of lawyers, which did not necessarily have a permanent effect and did not render the charges “criminal” in nature.

In the case of disciplinary proceedings resulting in the compulsory retirement or dismissal of a civil servant, the Court has found that such proceedings were not “criminal” within the meaning of Article 6, inasmuch as the domestic authorities managed to keep their decision within a purely administrative or labour sphere (Moullet v. France (dec.), 2007; Trubić v. Croatia (dec.), 2012, § 26; Pişkin v. Turkey, 2020, §§ 105-109; Čivinskaitė v. Lithuania, 2020, §§ 98-99). It has also excluded from the criminal head of Article 6 a dispute concerning the discharge of an army officer for breaches of discipline (Suküt v. Turkey (dec.), 2007) as well as military disciplinary proceedings for the imposition of a promotion ban and a salary cut (R.S. v. Germany (dec.), 2017, § 33).

The Court also held that proceedings concerning the dismissal of a bailiff (Bayer v. Germany, 2009,§ 37) and a judge (Oleksandr Volkov v. Ukraine, 2013, §§ 93-95; Kamenos v. Cyprus, 2017, §§ 51-53) did not involve the determination of a criminal charge, and thus Article 6 was not applicable under its criminal head. Similarly, disciplinary proceedings against a judge where the imposition of a substantial fine was at stake did not amount to the determination of a criminal charge (Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, §§ 124-128). Similarly, in the context of the dismissal of a judge resulting from a vetting process, the Court did not consider that the criminal limb of Article 6 applied despite the fact that the dismissal entailed a permanent bar to rejoining the judicial service (Xhoxhaj v. Albania, 2021, § 245).

While making “due allowance” for the prison context and for a special prison disciplinary regime, Article 6 may apply to offences against prison discipline, on account of the nature of the charges and the nature and severity of the penalties (forty and seven additional days’ custody respectively in Ezeh and Connors v. the United Kingdom [GC], 2003, § 82; conversely, see Štitić v. Croatia, 2007, §§ 51-63). However, proceedings concerning the prison system as such do not in principle fall within the ambit of the criminal head of Article 6 (Boulois v. Luxembourg [GC], 2012, § 85). Thus, for example, a prisoner’s placement in a high-supervision unit does not concern a criminal charge; access to a court to challenge such a measure and the restrictions liable to accompany it should be examined under the civil head of Article 6 § 1 (Enea v. Italy [GC], 2009, § 98).

Contempt

Measures ordered by a court under rules concerning disorderly conduct in proceedings before it (contempt of court) are normally considered to fall outside the ambit of Article 6, because they are akin to the exercise of disciplinary powers (Ravnsborg v. Sweden, 1994, § 34; Putz v. Austria, 1996,§§ 33-37). However, the nature and severity of the penalty can make Article 6 applicable to a conviction for contempt of court (Mariusz Lewandowski v. Poland, 2012, §§ 29-31, concerning the sentence of solitary confinement against a prisoner), particularly when classified in domestic law as a criminal offence (Kyprianou v. Cyprus [GC], 2005, §§ 61-64, concerning a penalty of five days’ imprisonment).

In Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], 2020, §§ 84-98, the Court found, as regards the first and second Engel criteria, that it had not been demonstrated that the contempt-of- court sanction had been classified as “criminal” under domestic law; nor was it clear, despite the seriousness of the breach of professional duties in question, whether the applicants’ offence was to be considered criminal or disciplinary in nature. As regards the third Engel criterion, namely the severity of the sanction, the Court clarified that the absence of an upper statutory limit on the amount of the fine is not of itself dispositive of the question of the applicability of Article 6 under its criminal limb. In this connection, the Court noted, in particular, that the fines at issue could not be converted into a deprivation of liberty in the event of non-payment, unlike in some other relevant cases; the fines had not been entered on the applicants’ criminal record; and the size of the fine had not been excessive.

With regard to contempt of Parliament, the Court distinguishes between the powers of a legislature to regulate its own proceedings for breach of privilege applying to its members, on the one hand, and an extended jurisdiction to punish non-members for acts occurring elsewhere, on the other hand. The former might be considered disciplinary in nature, whereas the Court regards the latter as criminal, taking into account the general application and the severity of the potential penalty which could have been imposed (imprisonment for up to sixty days and a fine in Demicoli v. Malta, 1991,§ 32).

Administrative, Proceedings

The following administrative offences may fall within the ambit of the criminal head of Article 6:

  • road-traffic offences punishable by fines or driving restrictions, such as penalty points or disqualifications (Lutz v. Germany, 1987, § 182; Schmautzer v. Austria, 1995; Malige
    v. France, 1998; Marčan v. Croatia, 2014, § 33; Igor Pascari v. the Republic of Moldova, 2016,§§ 20-23; by contrast, Matijašić v. Croatia (dec.), 2021);
  • minor offences of causing a nuisance or a breach of the peace (Lauko v. Slovakia, 1998; Nicoleta Gheorghe v. Romania, 2012, §§ 25-26; Şimşek, Andiç and Boğatekin v. Turkey (dec.), 2020, which the Court declared inadmissible on the grounds that there had been no significant disadvantage);
  • offences against social-security legislation (Hüseyin Turan v. Turkey, 2008, §§ 18-21, for a failure to declare employment, despite the modest nature of the fine imposed);
  • administrative offence of promoting and distributing material promoting ethnic hatred, punishable by an administrative warning and the confiscation of the publication in question (Balsytė-Lideikienė v. Lithuania, 2008, § 61);
  • administrative offence related to the holding of a public assembly (Kasparov and Others v. Russia, 2013, § 39-45; Mikhaylova v. Russia, 2015, §§ 50-75).

Article 6 does not apply to ordinary tax proceedings, which do not normally have a “criminal connotation” (Ferrazzini v. Italy [GC], 2001, § 20). However, Article 6 has been held to apply to tax surcharges proceedings (Jussila v. Finland [GC], 2006, § 38; Steininger v. Austria, 2012, §§ 34-37; Chap Ltd v. Armenia, 2017, § 36; Melgarejo Martinez de Abellanosa v. Spain, 2021, § 25).

Tax

When deciding on the applicability of the criminal limb of Article 6 to tax surcharges, the Court in particular took into account the following elements:

  • the law setting out the penalties covered all citizens in their capacity as taxpayers;
  • the surcharge was not intended as pecuniary compensation for damage but essentially as punishment to deter reoffending;
  • the surcharge was imposed under a general rule with both a deterrent and a punitive purpose;
  • he surcharge was substantial (Bendenoun v. France, 1994; conversely, see the interest for late payment in Mieg de Boofzheim v. France (dec.), 2002).

The criminal nature of the offence may suffice to render Article 6 applicable, notwithstanding the low amount of the tax surcharge (10% of the reassessed tax liability in Jussila v. Finland [GC], 2006, § 38).

The applicability of the criminal limb of Article 6 to tax surcharges may have implications for other related tax proceedings which may not per se come within the scope of that provision. The Court has explained that it may be particularly difficult to distinguish the aspects of the proceedings concerning the “criminal charge” from those that concerned other matters. Accordingly, examining the proceedings in relation to the tax surcharge may inevitably require the Court to take into consideration those aspects of the proceedings concerning other tax matters (Vegotex International S.A. v. Belgium [GC], 2022, §§ 71-74).

Article 6 under its criminal head has been held to apply to customs law (Salabiaku v. France, 1988) to penalties imposed by a court with jurisdiction in budgetary and financial matters (Guisset v. France, 2000) and to certain administrative authorities with powers in the spheres of economic, financial and competition law (Lilly France S.A. v. France (dec.), 2002; Dubus S.A. v. France, 2009; A. Menarini Diagnostics S.r.l. v. Italy, 2011; Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia, 2018, §§ 45-46; by contrast Prina v. Romania (dec.), 2020), including market manipulations (Grande Stevens and Others v. Italy, 2014, §§ 94-101).

Juvenile

In Blokhin v. Russia [GC], 2016 (§§ 179-182) the Court found Article 6 to be applicable in the proceedings for placement of a juvenile in a temporary detention centre for juvenile offenders. It took into account the nature, duration and manner of execution of the deprivation of liberty that could have been, and which actually was, imposed on the applicant. The Court stressed that the applicant’s deprivation of liberty created a presumption that the proceedings against him were “criminal” within the meaning of Article 6 and that such a presumption was rebuttable only in entirely exceptional circumstances and only if the deprivation of liberty could not be considered “appreciably detrimental” given its nature, duration or manner of execution. In the case at issue, there were no such exceptional circumstances capable of rebutting that presumption.

Committal

In some instances, the criminal limb of Article 6 may be applicable to the proceedings for placement of mentally disturbed offenders in a psychiatric hospital. This will depend on the special features of domestic proceedings and the manner of their operation in practice (Kerr v. the United Kingdom (dec), 2003, and Antoine v. the United Kingdom (dec.), 2003, where the criminal limb did not apply; contrast them with Valeriy Lopata v. Russia, 2012, § 120; Vasenin v. Russia, 2016, § 130; Hodžić
v. Croatia, 2019, §§ 48-51; and Gaggl v. Austria, 2022, where the criminal limb did apply).

Prosecution

Lastly, the criminal limb of Article 6 does not apply to private criminal prosecution. The right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to “good reputation” (Perez v. France [GC], 2004, § 70; Arlewin v. Sweden, 2016, §§ 51-52).

Political Issues

Article 6 has been held not to apply in its criminal aspect to proceedings concerning electoral sanctions (Pierre-Bloch v. France, 1997, §§ 53-60); the dissolution of political parties (Refah Partisi (the Welfare Party) and Others v. Turkey (dec.), 2000); parliamentary commissions of inquiry (Montera
v. Italy (dec.), 2002); public finding of a conflict of interests in elected office (Cătăniciu v. Romania (dec.), 2018, §§ 38-41); and to impeachment proceedings against a country’s President for a gross violation of the Constitution (Paksas v. Lithuania [GC], 2011, §§ 66-67, by contrast, Haarde v. Iceland, 2017, concerning the proceedings against a former Prime Minister in the Court of Impeachment). The Court has also found that disqualification from standing for election and removal from elected office on account of criminal convictions for corruption and abuse of power is not equivalent to criminal penalties (Galan v. Italy (dec.), 2021, §§ 80-96).

With regard to lustration proceedings, the Court has held that the predominance of aspects with criminal connotations (nature of the offence – untrue lustration declaration – and nature and severity of the penalty – prohibition on practising certain professions for a lengthy period) could bring those proceedings within the ambit of the criminal head of Article 6 of the Convention (Matyjek v. Poland (dec.), 2007; conversely, see Sidabras and Diautas v. Lithuania (dec.), 2003, and Polyakh and Others
v. Ukraine, 2019, §§ 56-59).

Expulsion and Extradition

Procedures for the expulsion of aliens do not fall under the criminal head of Article 6, notwithstanding the fact that they may be brought in the context of criminal proceedings (Maaouia v. France [GC], 2000, § 39). The same exclusionary approach applies to extradition proceedings (Peñafiel Salgado v. Spain (dec.), 2002) or proceedings relating to the European arrest warrant (Monedero Angora v. Spain (dec.), 2008).
Conversely, however, the replacement of a prison sentence by deportation and exclusion from national territory for ten years may be treated as a penalty on the same basis as the one imposed at the time of the initial conviction (Gurguchiani v. Spain, 2009, §§ 40 and 47-48).

Different Stages of Criminal Proceedings,

Measures adopted for the prevention of disorder or crime are not covered by the guarantees in Article 6 (Raimondo v. Italy, 1994, § 43 and De Tommaso v. Italy [GC], 2017, § 143, for special supervision by the police; R. v. the United Kingdom (dec.), for or a warning given by the police to a juvenile who had committed indecent assaults on girls from his school).

As regards the pre-trial stage (inquiry, investigation), the Court considers criminal proceedings as a whole, including the pre-trial stage of the proceedings (Dvorski v. Croatia, 2015, § 76). In its early jurisprudence, the Court stressed that some requirements of Article 6, such as the reasonable-time requirement or the right of defence, may also be relevant at this stage of proceedings insofar as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them (Imbrioscia v. Switzerland, 1993, § 36). Although investigating judges do not determine a “criminal charge”, the steps taken by them have a direct influence on the conduct and fairness of the subsequent proceedings, including the actual trial. Accordingly, Article 6 § 1 may be held to be applicable to the investigation procedure conducted by an investigating judge, although some of the procedural safeguards envisaged by Article 6 § 1 might not apply (Vera Fernández-Huidobro v. Spain, 2010, §§ 108-114).

Article 6 § 1 is applicable throughout the entirety of proceedings for the determination of any “criminal charge”, including the sentencing process (for instance, confiscation proceedings enabling the national courts to assess the amount at which a confiscation order should be set, in Phillips v. the United Kingdom, 2001, § 39; see also Aleksandr Dementyev v. Russia, 2013, §§ 23-26, concerning the determination of the aggregate sentence involving the conversion of the term of community work into the prison term). Article 6 may also be applicable under its criminal limb to proceedings resulting in the demolition of a house built without planning permission, as the demolition could be considered a “penalty” (Hamer v. Belgium, 2007, § 60). However, it is not applicable to proceedings for bringing an initial sentence into conformity with the more favourable provisions of the new Criminal Code (Nurmagomedov v. Russia, 2007, § 50), although it may apply to the procedure for rectification of a sentence if that affects the overall length of an applicant’s imprisonment (Kereselidze v. Georgia, 2019,
§§ 32-33).

Execution

Proceedings concerning the execution of sentences – such as proceedings for the application of an amnesty (Montcornet de Caumont v. France (dec.), 2003), parole proceedings (A. v. Austria, Commission decision of 7 May 1990), transfer proceedings under the Convention on the Transfer of Sentenced Persons (Szabó v. Sweden (dec.), 2006, but see, for a converse finding, Buijen v. Germany, 2010, §§ 40-45) – and exequatur proceedings relating to the enforcement of a forfeiture order made by a foreign court (Saccoccia v. Austria (dec.), 2007) do not fall within the ambit of the criminal head of Article 6.

In principle, forfeiture measures adversely affecting the property rights of third parties in the absence of any threat of criminal proceedings against them do not amount to the “determination of a criminal charge” (seizure of an aircraft in Air Canada v. the United Kingdom, 1995, § 54; forfeiture of gold coins in AGOSI v. the United Kingdom, 1986, §§ 65-66). Such measures instead fall under the civil head of Article 6 (Silickienė v. Lithuania, 2012, §§ 45-46).

The Article 6 guarantees apply in principle to appeals on points of law (Meftah and Others v. France [GC], 2002, § 40), and to constitutional proceedings (Gast and Popp v. Germany, 2000,
§§ 65-66; Caldas Ramírez de Arrellano v. Spain (dec.), 2003; Üçdağ v. Turkey, 2021, § 29) where such proceedings are a further stage of the relevant criminal proceedings and their results may be decisive for the convicted persons.

Extraordinary Remedies

Lastly, Article 6 does not normally apply to proceedings concerning extraordinary remedies, such as the reopening of a case. The Court reasoned that a person whose sentence has become final and who applies for his case to be reopened is not “charged with a criminal offence” within the meaning of that Article (Moreira Ferreira v. Portugal (no. 2) [GC], 2017, §§ 60-61; Fischer v. Austria (dec.), 2003). Only the new proceedings, after the request for reopening has been granted, can be regarded as concerning the determination of a criminal charge (Löffler v. Austria, 2000, §§ 18-19). This approach was also followed in cases concerning a request for the reopening of criminal proceedings following the Court’s finding of a violation (Öcalan v. Turkey (dec.), 2010).

However, should an extraordinary remedy lead automatically or in the specific circumstances to a full reconsideration of the case, Article 6 applies in the usual way to the “reconsideration” proceedings. Moreover, the Court has held that Article 6 is applicable in certain instances where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings, the national characterisation of the proceedings not being regarded as decisive for the issue of applicability. In sum, the nature, scope and specific features of the relevant extraordinary procedure in the legal system concerned may be such as to bring that procedure within the ambit of Article 6 § 1 (Moreira Ferreira v. Portugal (no. 2) [GC], 2017, §§ 60-72; see further, for instance, Serrano Contreras v. Spain (no. 2), 2021, §§ 27-28).

Similarly, supervisory review proceedings resulting in the amendment of a final judgment do fall under the criminal head of Article 6 (Vanyan v. Russia, 2005, § 58).
53. Lastly, it should be noted that the Court may examine an Article 6 complaint – which had earlier been struck-out from the list of cases on the basis of an unilateral declaration acknowledging a violation of that provision – in the event of its restoration of the case to the list of cases due to the fact that the domestic courts failed to give effect to the unilateral declaration by reopening the relevant domestic proceedings (Willems and Gorjon v. Belgium, 2021, §§ 54-66).

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