AUTONOMOUS INTERPRETATION

Article 6 of the Convention is also applicable when the case concerns a “criminal charge” against an individual. As in the context of other key concepts of the Convention, the concept of criminal charge has also been given its own autonomous interpretation, the content of which is independent of the content given to this concept in the domestic law of Contracting States. The autonomous interpretation by the Court aims at unifying the national case-laws and the procedural norms in different Contracting States. The autonomous interpretation of Article 6 also brings certain procedures, which at the domestic level are regarded as administrative, within the scope of criminal procedural guarantees of Article 6.

A criminal charge consists of two separate concepts, namely “criminal” and “charge”, both of which have to coexist for the criminal limb of Article 6 to apply. Both of these elements will be examined separately.

THREE CRITERIA OF AN OFFENCE (THE ENGEL CRITERIA )

The autonomous interpretation of the concept of “criminal” was developed in the case Engel and Others v. the Netherlands, in which the Court created a test to clarify the concept of an offence. The test is composed of three different criteria which can either alone or together qualify an act as an offence.

These criteria are: classification of the act in the legal system of the respondent State; the nature of the offence; and the degree of severity of penalty that the person concerned risks incurring. The first criterion, if met, is decisive in itself. In situations in which the act has not been classified as an offence in domestic law, the two other criteria become relevant. The criteria are both alternative and cumulative. Therefore, an act can be defined as an offence solely on the basis of its nature or on the basis of the penalties. Even if none of the criteria are fulfilled as such, an act can qualify as an offence and fall within the scope of the criminal limb of Article 6 on the basis of the cumulative effect of all three criteria.