L'art. 6 Cedu e la continuità tra procedimento e processo

The paper addresses the issue of the guarantees laid down in Article 6 of the ECHR, and their applicability implementation in the administrative proceeding and trial. First, the discussion revolves around the general legal principles underpinning the ideas of due process rules´ applicability to the administrative procedural phase, and then analyses the ex post compensation, namely the possibility to compensate judicially the absence of said guarantees during the administrative phase. The main uncertainties in the implementation of this approach are subject of review. In particular, the analysis outlines how in issues falling within the “civil law” domain, the Strasbourg Court reveals some flexibility, and leans towards allowing a fulfilment of the guarantees allocated between proceeding and trial. Thus, clear parameters to determine when a guarantee shall be granted already at the beginning, and, on the contrary, when it can be compensated ex post, are not available.The “criminal law” domain as well reveals some concerns: first, the ex post compensation mechanism seems inherently unsuited to be applied to specific guarantees. Second, the Strasbourg jurisprudence at times proposes an ambiguous difference: on one hand it acknowledges “minor offences”, where ex post compensation is extensively allowed; on the other hand, it recognises more serious offenses which would call for a full implementation of the guarantees already during the phase of imposition of a sanction within the proceeding. However, in many cases very serious administrative sanctions have been conceived as “minor” by definition. Concluding, considering some allegedly “minor” administrative sanctions, because they do not imply a “significant degree of social stigma (o disapproval)”, the Strasbourg Court has gone as far as envisaging the possibility to bypass in toto some of the guarantees typical of the “criminal law” domain.