Abstract
Abstract The scope of this analysis is to reconstruct, with a brief look to the Italian case, the ‘frame of reference’ within which the rulings of the ECtHR on the Art. 6 of the ECHR, due to the particular strength that Article 46 of the Convention attributes to them, are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg. To this aim the focus will be addressed on the following, and more complex, profiles: (a) independence, impartiality and separation of functions; (b) sanctioning activity and discretionary powers; (c) sufficient judicial review and full jurisdiction, to conclude the investigation trying to verify, in the light of the latest directions taken by the ECtHR; (d) whether, and how, the types of sanctions can affect the conditions of the judicial protection.
Highlights
Published online September 9, 2020. The scope of this analysis is to reconstruct, with a brief look to the Italian case, the ‘frame of reference’ within which the rulings of the ECtHR on the Art. 6 of the ECHR, due to the particular strength that Article 46 of the Convention attributes to them, are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg. To this aim the focus will be addressed on the following, and more complex, profiles: (a) independence, impartiality and separation of functions; (b) sanctioning activity and discretionary powers; (c) sufficient judicial review and full jurisdiction, to conclude the investigation trying to verify, in the light of the latest directions taken by the ECtHR; (d) whether, and how, the types of sanctions can affect the conditions of the judicial protection
Due to the particular strength that Article 46 of the Convention attributes to them, the rulings of the ECtHR, despite their poor linearity, cannot be ignored, so, with a brief look to the Italian case, the scope of this analysis is to reconstruct the ‘frame of reference’ within which these decisions are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg
The one mentioned above, relating to the nature of the “civil rights and obligations”, as well as to the policy pursued by domestic laws, is very vague, and is the same Court to hold that «whether the review carried out was sufficient will depend on the circumstances of a given case»120 without providing further references
Summary
As the examination of ECtHR’s decisions will clearly highlight, in the activity of reconstructing the principles enshrined in the ECHR, the path of their argument does not always proceed in a linear and coherent manner. Due to the particular strength that Article 46 of the Convention attributes to them, the rulings of the ECtHR, despite their poor linearity, cannot be ignored, so, with a brief look to the Italian case, the scope of this analysis is to reconstruct the ‘frame of reference’ within which these decisions are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg. If it is of no doubt that the Engel decision represents the leading case on the topic of the administrative sanctions, the successive step, according to the scope of this analysis, is to verify how the legal principles expressed in this decision have been applied by the successive decisions to define the sphere of influence of art. 6 ECHR, and the possible effects on the exercise of the sanctioning power in the contracting States’ legal systems
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