JOINT PARTLY DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND BOŠNJAK, JOINED BY JUDGE KŪRIS

1. We cannot agree with the majority that Article 7 of the Convention is inapplicable in the present case. Furthermore, we are of the opinion that the case at hand discloses a violation of Article 7 of the Convention. On this point, we wish to acknowledge the separate opinion of Judge KÅ«ris, who voted with us on the issue of the Article 7 complaint and with whom we largely share the views on this particular matter.

2. In respect of the applicant’s complaint under Article 7 of the Convention, we agree with the majority that the applicability of that provision depends upon whether the impugned measure constituted a “penalty” within its autonomous meaning. According to the principles stated in the judgment, which ultimately reformulate the Engel criteria, the Court needed to examine (i) the relationship between the decision in which the person was found guilty and the measure in question; (ii) the procedure involved; (iii) the characterisation of the measure in domestic law; (iv) the nature and purpose of the measure; and (v) the severity of the measure.

3. Regarding the first criterion, namely the relationship between the applicant’s conviction and the impugned measure, we note that the Ministry of Justice revoked the applicant’s licence pursuant to section 109 of the Financial Operations Act after being informed that his conviction for criminal offences committed in 2003 and 2004 had become final (see paragraphs 6 and 9 of the judgment). The disputed measure was imposed as an automatic consequence of the applicant’s final criminal conviction. No assessment of the relevance of the criminal offence in question to the applicant’s suitability for the profession of liquidator was carried out by the competent administrative authority and the applicable legislation in fact left no room for such assessment. In this connection, the legislation, that is the Financial Operations Act, contained an irrebuttable presumption ( praesumptio iuris et de iure ) that a person convicted of any publicly prosecutable criminal offence committed with intent was to be considered unfit to be a liquidator and was to be divested of his or her licence (see, by contrast, Müller-Hartburg v. Austria , no. 47195/06, § 44, 19 February 2013). This criterion speaks unequivocally for the penal nature of the measure.

4. As regards the second criterion, the measure was imposed by the Ministry of Justice and subsequently reviewed by the Administrative Court in proceedings which fall within the ambit of administrative law. However, the administrative authority and the domestic courts were not called to consider the applicant’s particular circumstances, but had to merely rely on the fact that he had been criminally convicted by way of a final judgment and, based on that fact alone, to apply the measure in question. We therefore consider that the nature of the proceedings cannot in the present case carry any particular weight in the determination of the existence of a “penalty”.

5. Regarding the third criterion, namely the legal characterisation in domestic law, the measure in question admittedly did not fall within any of the formal categories of criminal sanctions as so characterised by the Criminal Code or the Old Criminal Code. Instead, as rightly and unanimously held by the Chamber in the framework of its examination of the applicant’s complaint under Article 1 of Protocol No. 1, the measure is to be characterised as a “legal consequence of conviction”. However, this issue alone does not detach the impugned measure from the applicability of the provisions of criminal law, i.e. in the specific context of the domestic law of the respondent State, of its Criminal Code or Old Criminal Code. Notably, the basis, incurrence and limits of a “legal consequence of conviction” were set out in the criminal law. In particular, Article 100 of the Old Criminal Code (as well as Article 79 of the Criminal Code) set out measures which were to be regarded as “legal consequences of conviction”, including termination of authorisation to perform a public function and a bar to the acquisition of certain rights, such as the right to hold public office and to practise certain professions. Furthermore, Article 99 of the Old Criminal Code (as well as Article 78 of the Criminal Code) limited the incurrence of a “legal consequence of conviction” to cases of a custodial sentence. It further provided that only a statute could prescribe “legal consequences of conviction” and that the latter should not be applied retroactively (ibid.). We wish to highlight that these requirements are expressions of two fundamental principles of criminal law, namely the principle of legality and the prohibition of retroactive application of law, as embodied in Article 7 of the Convention (see Del Río Prada v. Spain [GC], no. 42750/09, § 78, ECHR 2013).

6. The intrinsic link between the impugned measure and the provisions of criminal law has been acknowledged by the Government in their assertion that the Financial Operations Act had been “a partial implementation act within the framework of the Criminal Code or the Old Criminal Code” (see paragraph 52 of the judgment). Nevertheless, the domestic authorities failed to address whether the impugned measure was of a criminal-law nature or to determine whether the relevant provisions of the Criminal Code were applicable to the applicant’s case.

7. As regards the fourth criterion, namely the nature and purpose of the measure, we note the fact that the applicant was unable to reapply for a licence once the criminal conviction had been expunged from his criminal record. This feature of the measure is in our view the decisive factor, because it shows that the measure’s purpose was not merely to ensure the applicant’s suitability for the professional activity in question. Maintaining an inability to reapply for the licence beyond the time limit of legal rehabilitation clearly indicates that the measure’s purpose was essentially punitive, adding another, and in many respects much heavier, legal burden upon the applicant than the imposed criminal sanction itself.

8. Last but not least, in respect of the fifth criterion, we emphasise the particular severity of the measure imposed on the applicant. Such severity obviously impacts upon the characterisation of a measure as a penalty under Article 7 of the Convention. The Court has held that lifelong disqualification from a profession or withdrawal of a licence, which constitute the primary means of subsistence of an individual, are particularly grave (see, for example, Rivard v. Switzerland , no. 21563/12, § 24, 4 October 2016).

9. We therefore consider that the strict and automatic link between the criminal conviction and the contested measure, leaving no room to the competent authorities for an assessment of circumstances or the exercise of discretionary powers, together with the essentially punitive purpose of the measure and its rather severe consequences for the applicant, lead to the conclusion that the impugned revocation of his licence is a “penalty” within the meaning of Article 7. We accordingly believe that the Court should have dismissed the Government’s objection and concluded that Article 7 is applicable in the present case.

10. Turning to the assessment of whether the contested measure complied with the requirements of Article 7 of the Convention, we reiterate that this provision prohibits the retrospective application of criminal law to the detriment of the accused person. More generally, it embodies the principle that only the law can define a crime and prescribe a penalty (see Koprivnikar v. Slovenia , no. 67503/13, § 46, 24 January 2017).

11. We further observe that in the present case at the time the criminal offences in question were committed, under the applicable law, that is to say the Bankruptcy Act, the relevant conditions for a liquidator’s licence were limited to the absence of a criminal conviction which would render the person morally unfit to perform the functions of a liquidator. It is undisputed that this law was not applied to the applicant’s case, but instead a later law (the Financial Operations Act) extending the condition to, inter alia , the absence of any publicly prosecutable criminal offences committed with intent, was applied. This, in our opinion, amounted to a retrospective application of the law to the applicant’s disadvantage and was therefore in violation of Article 7 of the Convention (see Del Río Prada , cited above, § 116).

12. In addition, we observe that, pursuant to both the Old Criminal Code and the Criminal Code, a suspended prison sentence, which was the sentence imposed on the applicant by the criminal court, could not have entailed any legal consequences. We think that the applicant should not have been made to face a “penalty” which had been explicitly proscribed by the criminal law when the offence in question had been committed.

13. In sum, we consider that for all of the above reasons, the revocation of the applicant’s licence contravened the principle of legality embodied in Article 7 of the Convention and that there has been a violation of that Convention provision.