The legality of a combination of disciplinary and criminal penalties applied to civil servants in the European legal sphere : an impermissible case of double jeopardy of a legitimate conjunctuon for tackling reprehensible behaviour of public officials?
Faculty of Law
European human rights law review. - London
, p. 474-487
University of Antwerp
This contribution looks into the permissibility of combining disciplinary and criminal penalties in relation to (the misbehaviour of) civil servants from a European legal perspective. It contains a status quaestionis of the relevant European Court of Human Rights case law in the ambit of article 6 of the European Convention, as well as article 4 of Protocol No. 7 to the Convention. It then turns to Belgian positive law, where all three of the highest courts (Court of Cassation, Council of State and Constitutional Court) have recently changed their position in order to align their case law with that of the Strasbourg court. Whereas the courts, quasi-automatically, used to declare the double jeopardy prohibition irrelevant in cases where one of the penalties was qualified as disciplinary (not criminal) pursuant to domestic law, they now adopt a more nuanced approach, taking due account of the criteria put forward by the European Court. Subsequently, the article has a brief look at the prevailing law on this issue in France and Germany, two leading administrative law systems in Europe with a rich tradition of disciplinary law as a separate branch within administrative law.