Information Note on the Court’s case-law 230

June 2019

Rola v. Slovenia - 12096/14 and 39335/16

Judgment 4.6.2019 [Section IV]

Article 7

Article 7-1

Nulla poena sine lege

Revocation of licence to act in bankruptcy proceedings resulting from criminal conviction for violent behaviour: no violation

Facts – The applicant’s licence to act as a liquidator in insolvency proceedings was permanently revoked in 2011, as a direct consequence of his criminal conviction for violent behaviour committed in 2003 and 2004. The applicant unsuccessfully challenged this measure.

Law – Article 7: The Court ascertained whether the impugned measure, namely the revocation of the applica nt’s liquidator’s licence, should be regarded as a penalty within the autonomous meaning of Article 7.

(i) The relationship between the decision in which the person was found guilty and the measure in question : The disputed measure had been indeed imposed as a result of the applicant’s criminal conviction, after it had become final, in accordance with the relevant statutory provision providing that a liquidator convicted of a publicly prosecutable offence committed with intent had to be divested of his or her licence.

(ii) The procedure involved for the adoption and enforcement of the measure in question: The measure had been imposed by the Ministry of Justice and subsequently reviewed by the Administrative Court in proceedings which essentially fell withi n the ambit of administrative law. The measure had been imposed completely separately from the ordinary sentencing procedure.

(iii) The characterisation of the measure in domestic law: The measure was not set out in criminal law, but in a provision of the Financial Operations Act aimed at regulating the profession of liquidators in insolvency proceedings. Moreover, in the Constitutional Court’s opinion, although a measure that prevented a person from obtaining a licence to practise a certain profession amou nted to a “legal consequence” of a conviction, it was not to be considered a sanction that was criminal in nature.

(iv) The nature and purpose of the measure : The purpose of the relevant provision of the Financial Operations Act did not appear to impose a punishment in relation to a particular offence of which a person had been convicted, but to ensure public confidence in the profession in question. It was ai med at members of a professional group possessing a special status, specifically liquidators in insolvency proceedings. Therefore, the revocation of the licence did not have a punitive and dissuasive aim pertaining to criminal sanctions.

The measure in the instant case had been imposed solely on the objective basis of a final criminal conviction. The Ministry of Justice and subsequently the courts reviewing the case seemed to have had no discretion as regards the imposition of the measure, and no assessment of culpability had been carried out in the impugned proceedings.

(v) The severity of the measure : Bearing in mind the fact that the revocation of the applicant’s licence had not prevented him from practising any other profession within his field of expert ise, the mere fact that the impugned measure had been of a permanent nature did not suffice for it to be regarded as a penalty within the meaning of Article 7.

Article 7 was therefore not applicable.

Conclusion : no violation (four votes to three).

Article 1 of Protocol No. 1: The applicant’s professional practice amounted to a “possession” within the meaning of Article 1 of Protocol No. 1. The revocation of his licence constituted a measure of control of the use of property.

The domestic authorities had relied on the provisions of the Financial Operations Act as the basis for revoking the applicant’s licence, without addressing the applicability of the relevant criminal‑law provisions. While the Criminal Code set out measures which had to be regarded as “legal consequences of conviction”, it limited their imposition to cases of a custodial sentence and explicitly provided that they could not be imposed if a person had been given a suspended sentence. It further provided that only a statute could presc ribe “legal consequences of conviction” and that the latter should not be applied retrospectively.

Given that the applicant had committed criminal offences in 2003 and 2004, when the Financial Operations Act – on which the revocation was based – had not ye t been applicable, and that he had received a suspended sentence, he could not have reasonably foreseen that his conviction would have automatically led to the revocation of his licence.

The impugned measure had thus not been lawful within the meaning of A rticle 1 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

(See also Gu ide on Article 7 ; Welch v. the United Kingdom , 17440/90 , 9 February 1995; Van der Velden v. the Netherlands (dec.), 29514/05, 7 December 2006, Information Note 92 ; Vagenas v. Greece (dec.), 53372/07 , 23 August 2011; Gouarré Patte v. Andorra, 33427/10, 12 January 2016, Information Note 192 ; Biagioli v. San Marino (dec.), 8162/13 , 13 September 2016; G.I.E.M. S.R.L. and Others v. Italy (merits) [GC], 1828/06 and al., 28 June 2018, Information Note 219 ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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