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"Civil penalties": oxymoron, chimera and stealth sanction

"Civil penalties": oxymoron, chimera and stealth sanction

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Original languageEnglish
Pages593-616
Number of pages24
JournalLaw Quarterly Review
Journal publication dateOct 2010
Issue126
StatePublished

Abstract

“Civil penalties” seems an oxymoron: if something is “civil”, how can “penalties” arise, for do not “penalties” actually define the criminal law? Yet numerous examples exist, and supporters argue for more. And if they do exist, does not the internal contradiction cause difficulty: are they fruitful hybrids or harmful chimeras? And in any case, why were they invented: are they useful new tools, or pernicious new stealth sanctions? Indeed, overall, are they legitimate? Criminal law literature largely ignores “civil penalties”, while “regulation” literature shows lack of analysis, and considerable confusion, nevertheless considering the phenomenon uncontroversial. This article therefore seeks to encourage fuller analysis, by looking at “civil penalties” in the light of the traditional civil/criminal distinction and the European Convention on Human Rights, and examining two recent examples which raised ECHR concerns.

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