370. 'Penalty'.

'Penalty' has an autonomous meaning for the purposes of Article 71 and is a matter for the European Court of Human Rights to determine2. The court remains free to go behind appearances and to assess the substance of a measure3 irrespective of the characterisation of the measure by the state in question4. Relevant factors when considering if a measure amounts to a penalty include: whether the measure was imposed following conviction for a criminal offence; whether the measure is administered by a criminal court; the nature and purpose of the measure (ie whether it is punitive or preventative/reparative); its