Exploring the penumbra of punishment under the ECHR

AuthorAgnė Andrijauskaitė
Date01 December 2019
Published date01 December 2019
DOI10.1177/2032284419868789
Subject MatterArticles
Article
Exploring the penumbra
of punishment under
the ECHR
Agn _
e Andrijauskait _
e
German University of Administrative Sciences Speyer, Germany; Vilnius University, Lithuania
Abstract
Administrative sanctions can be said to dwell in the periphery of punishment because they do not
require setting the wheels of criminal procedure in motion. This allows States to save public
resources as well as helps them to escape closer scrutiny at the judicial level. At the same time,
the imposition of administrative sanctions usually curtails individual guarantees. Against this
background, this article examines where the European Court of Human Rights (ECtHR) draws
the line between measures belonging to the ‘hard core of criminal law’ and the periphery. After a
presentation of gradual broadening of the ‘criminal limb’ guarantees of Article 6 European
Convention on Human Rights to administrative measure of a punitive nature, it explores where
do these guarantees meet their limits by taking the approach adopted in the landmark Jussila
judgment as a point of departure. Subsequently, a structured analysis of the selected ECtHR case
law in which this approach has been applied or – at least – invoked is provided. The article is
finished with a reflection on the current interpretation of the said penumbra of punishment,
which, among other things, identifies the possible gaps of individual protection, and the outlook
for the future.
Keywords
Administrative sanctions, administrative punishment, ECHR, ECtHR, individual protection
The temptation to ‘outsource’ punishment to the field of administrative law never seems to fall out
of fashion. By imposing administrative sanctions of a punitive nature not only can the desired goals
thereof be achieved, but it all comes at a lesser price too. Namely, ‘outsourcing’ does not require
setting the wheels of criminal procedure in motion and shifts the burden of proof of a particula r
Corresponding author:
Agn_
e Andrijauskait_
e, Faculty of Law, Vilnius University, Sauletekio al. 9 – I block, Vilnius, 10222, Lithuania.
E-mail: aandrijauskaite@gmail.com
New Journal of European Criminal Law
2019, Vol. 10(4) 363–375
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284419868789
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