January 25
2021
Dolores Utrilla
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10th December 2020
Human Rights Justice & Litigation

ECtHR: judicial review exercised with full jurisdiction heals breaches of right to a fair hearing inflicted in administrative proceedings

The European Court of Human Rights (ECtHR) has just given its Chamber judgment in Edizioni Del Roma Societa Cooperativa A.R.L. and Edizioni del Roma S.R.L. v. Italy (application no. 68954/13), finding unanimously that the right to a fair hearing in Article 6(1) of the European Convention on Human Rights (ECHR) was not breached by the way in which the Italian administration imposed financial penalties on the applicants, because there were adequate (full jurisdiction) mechanisms of judicial review of such administrative decisions.

The case concerns the financial penalties imposed on two Italian publishing houses by the Italian Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni, AGCOM), as a result of which both companies lost the public funding on which they had relied, which led to the collapse of one of them. The Rome Administrative Court dismissed the applicants’ actions against AGCOM’s decision, and the Italian Council of State (Consiglio di Stato) dismissed the appeal lodged by the applicants. Later on, the Rome Criminal Court acquitted the directors of the two applicant companies of the offence of fraud.

In its judgment today, the ECtHR found, firstly, that the administrative proceedings before AGCOM did not satisfy all of the requirements of Article 6 ECHR, particularly with regard to the equality of arms between the prosecution and the defence and the holding of a public hearing. Although the obligation to hold a hearing was not absolute and there could be proceedings in which an oral hearing was not necessarily required under Article 6 ECHR, the Strasbourg-based court considered that a public hearing, open and accessible to the applicant companies, had been necessary in the present case, where the facts had been contested by the applicants and the penalties which they were liable to incur were likely to adversely affect their professional honour and reputation. The ECtHR further concluded that AGCOM’s regulations did not provide for sufficient separation between the investigatory bodies and the committee responsible for ruling on whether or not there had been a breach of the rules and for imposing sanctions.

In spite of this, the ECtHR concluded, secondly, that no violation of Article 6(1) ECHR existed because Italian administrative courts had been able to review whether, in the special circumstances of the case, AGCOM had made appropriate use of its powers, and that they further had been able to examine the merits and the proportionality of the administrative decisions at hand. The Strasbourg-based court therefore explicitly noted that the administrative courts’ jurisdiction was not merely confined to reviewing lawfulness, but that they acted with full jurisdiction. Today’s judgment further stresses the fact that hearings were held publicly before Italian courts, and therefore oral confrontation between the parties and compliance with the principle of equality of arms had been possible.

The judgment is available here (in French).

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