iv. “A criminal charge”

The notion of a criminal charge has an autonomous meaning within the scope of Article 6 of the ECHR. The domestic positive and legal determination of a sanction or an objection cannot exclude the application of Article 6 of the ECHR if, in accordance with the meaning of this notion defined in the Convention, it relates to a criminal charge. The substantive contents of the relevant law are decisive so that, besides criminal charges, in a narrower sense of the word, the disciplinary and minor offence proceedings may be included within the scope of Article 6 of the ECHR.¹⁰⁹⁸ This is determined, primarily, based on the manner in which a certain objection, i.e., a criminal charge, is shaped by the domestic law. If the domestic law characterises the offence as criminal, then it is criminal in nature within the meaning of Article 6 of the ECHR. If the domestic law characterises the offence as disciplinary or administrative, then it represents only certain indications for the applicability of Article 6, paragraph 1 of the ECHR.¹⁰⁹⁹ Account must be taken of the scope of applicability and the goal of a criminal prosecution, as well as the character, severity and purpose of a sanction.¹¹⁰⁰ The positive answer to all the mentioned elements, under the criteria of the ECHR, is not conditioned by the criminal legal classification of a charge. Nevertheless, two elements must be cumulatively fulfilled: the scope of applicability of the violated rule of conduct and its purpose must relate to a criminal charge in terms of the ECHR.¹¹⁰¹ As to the scope of applicability of the rule of conduct, the following dividing line must be created: while the criminal provisions may be characterised as general, which means they are applicable to all persons and operate in the general interest of a society, the provisions characterised as disciplinary are usually applicable only to a certain group of people, which is to act in compliance with the stipulated rules of conduct.¹¹⁰² In this regard, it is necessary to observe whether the mode of conduct stipulated by the disciplinary provisions for a certain group is typical or atypical. For example, if incorrect or false information or forged documents in the Army are defined as a disciplinary offence, it supports the view that this offence, in accordance with the ECHR, is characterised as criminal since it does not relate to a specific failure of the Army but relates to conduct which is subject to sanction anywhere in the world.¹¹⁰³ The purpose of a criminal sanction, in general, is the prevention or punishment of certain conduct and, therefore, the regulations allowing a removal of danger cannot be classified as criminal. As to the character and severity of a sanction, it may be said that it relates to a criminal sanction if an injured party is deprived of liberty,¹¹⁰⁴ or if the fine imposed under the Civil Procedure Code is considerable,¹¹⁰⁵ or if there is a threat of being registered in the criminal record even if the fine, unless paid, is replaced by imprisonment.¹¹⁰⁶

Pursuant to the consistent case-law established by the Strasbourg organs, a removal from a position and dismissal from employment or similar employment sanctions cannot be said to be of a criminal nature.¹¹⁰⁷ Contrary to this view and without tackling the case-law of the ECHR, the Constitutional Court perceived a removal of one judge from the Supreme Court of the Republika Srpska after disciplinary proceedings were instituted for false information as “criminal”.¹¹⁰⁸ Afterwards, the Constitutional Court, without drawing any reference to the mentioned decision, exempted the judges, as civil servants, from the protection of Article 6 paragraph 1 of the ECHR¹¹⁰⁹ in terms of the decision in the Pellegrin case.¹¹¹⁰ However, irrespective of this exemption in accordance with the case- law established in Pellegrin, there remains the position that a dismissal of a judge through disciplinary proceedings cannot be regarded as a criminal sanction but as a typical disciplinary sanction. The fact that, in disciplinary proceedings, the judge has guaranteed almost all the procedural standards typical for criminal proceedings makes no difference.

Regulatory offences may also be of a “criminal” nature within the meaning of Article 6 of the ECHR. This is the case where there are offences determined on the basis of the Customs Law,¹¹¹¹ the Road Traffic Safety Law,¹¹¹² the Law on Minor Offences¹¹¹³ or the Law on Excise Duty and Sales Tax,¹¹¹⁴ and if the amount of the fine imposed is considerable and has a preventive character. In addition, it is not essential that the stipulated sanction is characterised as criminal. Moreover, economic offences, determined on the basis of the Economic Code, may be characterised as criminal within the meaning of Article 6 of the ECHR.¹¹¹⁵

It cannot be said that it concerns a criminal charge in terms of Article 6 of the ECHR where a high-ranking military official is sent into early retirement because of a breach of SFOR-Instructions to the Parties, due to his political engagement and a failure related to his support of the Dayton Peace Agreement.¹¹¹⁶ Also, there is no criminal charge in the procedure of decertification of policemen and their subsequent dismissal from their positions,¹¹¹⁷ or in decisions regarding the entry, stay, deportation or expulsion of aliens.¹¹¹⁸