QUESTIONING THE PENAL CHARACTER OF DISCIPLINARY SANCTIONS IN THE EUROPEAN COURT OF HUMAN RIGHTS' CASE LAW

Abstract

Since the European Court of Human Rights (Court) has autonomously redefined the concept of penalty, it has extended its jurisdiction. However, unless they deprive of liberty, disciplinary sanctions are excluded from this autonomous definition. In this respect, this case law study depicts the Court's approach to disciplinary sanctions and particularly focuses on problems arising from the implementation. From a descriptive point of view, exceptional status for disciplinary sanctions depends on two factors: The first factor is the criteria that was developed by the Court to assess whether autonomous penalties contain a structural incompatibility. In order to prove this argument, the practices indicating the discrepancy between the criteria of the nature of offence and the nature of sanction will be examined. A critical analysis of this situation shows that if these criteria are used in their current form, the problem will persist, and therefore a reinterpretation is needed. The second factor is the definition of disciplinary sanction undertaken by the Court. The phrase special in this definition creates uncertainty in terms of scope, and has controversial results. Therefore, these two factors need to be reviewed in order to ensure that the Court's case law on disciplinary sanctions yields more objective and consistent results.