TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): We agree with the submission that was made by Denmark in its written submissions as to the relevant IHL obligations, and it's paragraph 28 of the Danish written submissions, where they say that investigations must live up to the standards under IHL and human rights law of independence, impartiality, thoroughness, effectiveness, promptness, transparency.
AP1 (Applicant): That's the Danish government's written submissions.
AP1 (Applicant): Third point on this issue, the relationship between IHL standards and the convention standards.
AP1 (Applicant): Even in Hassan, where this court interpreted Article V in the light of IHL, the court was clear that the rules of the normal convention standards do not disappear.
AP1 (Applicant): So in particular, in relation to the procedural obligations under Article V, the court was clear that there must be sufficient guarantees of impartiality, independence, and fairness.
AP1 (Applicant): And we would argue that even if IHL were to apply, the normal convention standards would continue to operate in the background.
AP1 (Applicant): Finally, in relation to Judge Turkovich's question about the ICC statute, I think here we can agree with the submissions that were made by Professor Krieger, which is to say that what that provision emphasizes is an obligation on the German government to investigate with respect to issues that would fall within the scope of the ICC statute.
AP1 (Applicant): And so if you apply the Guzel-Yutlu case and one thinks about the special features that might create a jurisdictional link, the fact that there are these international law obligations is emphasized by the ICC statute.
Linos-Alexandre Sicilianos (JudgeP): The third party intervenors, do they wish to reply to certain elements?
Linos-Alexandre Sicilianos (JudgeP): We, Sir James, please.
TP1 (ThirdParty): Mr President, Members of the Court, only very briefly. I am going to make some submissions
TP1 (ThirdParty): on behalf of both the United Kingdom and France in relation to the questions that you posed that Deputy President Spano posed. Then my friend Mr Allerbrun is going to deal very briefly with
TP1 (ThirdParty): the ICC question that Judge Tukovic raised. So far as the question raised by the President and
TP1 (ThirdParty): the Deputy President, our submission is that Article 3 of the Status of Forces document deals with criminal and disciplinary matters. That is what is being dealt with. It
TP1 (ThirdParty): is unsurprising that that provision exists and is being dealt with in that way, because neither the UN or ISAF, nor indeed the local jurisdiction, have any criminal or disciplinary jurisdiction over the servicemen and women that serve in that body. But given that that is the basis for Article
TP1 (ThirdParty): 3 and the limited basis for Article 3, it is simply dealing with crime and disciplinary and the preservations that it creates for that purpose. It is very difficult indeed, we respectfully
TP1 (ThirdParty): submit, to see how you can then use this to create any broader conclusion beyond that limited carve out that it creates. A limited conclusion either that, for example, all operations by the states
TP1 (ThirdParty): as part of ISAF are in some way now attributable to the states themselves rather than to the UN because of Article 3. It cannot possibly have that effect. Or, we would respectfully submit,
TP1 (ThirdParty): that this has or creates some special jurisdiction feature when you come to the Article 1 analysis. Of course, if the criminal or disciplinary proceedings occur in, say,
TP1 (ThirdParty): Germany or any other nation state, then in relation to those proceedings there will be convention obligations that attach under, for example, Article 6 for the benefit of the accused in either of those processes. But it cannot possibly be used, given its limited focus,
TP1 (ThirdParty): to create a special jurisdictional feature so as to enable you to reach a conclusion on jurisdiction you would not otherwise reach or to reach a conclusion on attributability that you would not otherwise reach. So that is what we say about the limited nature of the Article 3 and its limited
TP1 (ThirdParty): significance for the purpose of those two arguments. But the question, I think, went a bit
TP1 (ThirdParty): further. Judge Spano raised the question as to whether or not there is a difference because we
TP1 (ThirdParty): are here dealing with an investigative obligation. The question that was raised is whether or not,
TP1 (ThirdParty): assuming for this purpose, that the premise is that the conduct itself is not attributable per barame, the question then, as we understood it, was does that same logic automatically transpose to create attributability to the UN of the investigative obligation? So far as that is
TP1 (ThirdParty): concerned, we submit that you have perhaps three things to think about. The first of them is
TP1 (ThirdParty): whether or not, given the premise, the investigative obligation imposed on a nation state could possibly survive. So the premise for the question is that the action, the act, the airstrike,
TP1 (ThirdParty): is in fact attributable to the UN. We do submit that that does raise the question as to whether
TP1 (ThirdParty): or not you could then, as it were, have an adjectival investigative obligation created on a nation state in relation to an act which is in fact attributable to the UN. I fully appreciated
TP1 (ThirdParty): making that submission or raising that possibility, that for some purposes, including in particular the temporal limits of the convention—I am thinking of cases like Janowicz and Szilagyi—the court has split out those two aspects of article 2, but we do submit that in this context it is rather different. If the act itself, which is to be investigated, is not in fact attributable to
TP1 (ThirdParty): the nation state at all, because it is attributable to the UN, where then does the investigative obligation lie? That is the first thing we would invite you to think about. These are in, as it were,
TP1 (ThirdParty): descending order. The second thing to think about is, if that is not right, then what is the
TP1 (ThirdParty): alternative answer of principle? The alternative answer of principle, it might be thought, if that
TP1 (ThirdParty): is not right, that first submission, is that you apply the ultimate authority test or effective control. Again, we were asked to assume that that argument is parked for this purpose, and so we do.
TP1 (ThirdParty): But then the question that arises is, how do you test it? The answer is, you apply the ultimate
TP1 (ThirdParty): authority or the effective control test to the activity. What that enables you to do is precisely
TP1 (ThirdParty): to draw the sort of distinctions, which my learned friend the Professor Akrandi has just referred to, between, on the one hand, things that are being done in the space of Afghanistan with all the constraints that ISAF and the UN impose on investigations, and on the other hand, the thing which plainly is not attributable to the United Nations, which is the thing reserved by Article 3 of the Status of Forces Agreement. In other words, domestic German criminal investigation
TP1 (ThirdParty): and prosecution and or internal domestic German disciplinary proceedings. So you can ask that
TP1 (ThirdParty): Barami question is the second thing we would invite you to think about. The third thing we
TP1 (ThirdParty): would invite you to think about, and the last of the alternatives, is that on any view, and even if one and two don't work, these legal constraints imposed both by the UN through ISAF in relation to investigations on the ground in Afghanistan and indeed imposed by the rigours of local Afghan law are a critical component when you come to consider what the nature and content the Article 2 procedural obligation should be. Those provide, as it were, the practical application
TP1 (ThirdParty): the principle often espoused by the court that the Article 2 procedural investigations are not merely context-specific, their particular content is not really determined by the content, but they have to be realistically applied. So that is the third way in which it might be relevant.
TP1 (ThirdParty): That perhaps takes one, because it naturally flows then, into the question that Judge Seibert-Fohr asked, which is what is the content of IHL? Because my submission, as you'll recall in
TP1 (ThirdParty): opening to you, was that IHL also performs the same role. It is the lex specialis, we submit.
TP1 (ThirdParty): It's the lex specialis because it's designed to govern and to regulate these sorts of things, both the activities that can be done, the controls over the activities that can be done in an armed conflict, and also the investigative obligation. Your question was directly about the content.
TP1 (ThirdParty): You asked what is the content of IHL. I made detailed submissions about that in my oral
TP1 (ThirdParty): submissions, but we've set out at least a summary of those relevant principles, that content, our written submissions in rather more detail, between paragraphs 53 and 64. You will recall
TP1 (ThirdParty): that the punchline of all of that is that the IHL obligations, bespoke as they are, lex specialis as they are, cannot be squared, however tempting and attractive it may appear to be, with simply a transposition of the ordinary rules governing Article 2 investigative obligations developed in peacetime. They just don't mesh. Of course, it's interesting to say that IHL sits
TP1 (ThirdParty): alongside international human rights law, and the ICJ has frequently said that, but that also requires you to analyse how the two can possibly mesh. The thrust of the submissions that I made
TP1 (ThirdParty): was that in our context, an armed conflict, with IHL entering the field and governing with its own bespoke rules, they don't and they can't. That was the reason for the submission I made to you.
Linos-Alexandre Sicilianos (JudgeP): M. Alabrune, merci beaucoup, M. James.
Linos-Alexandre Sicilianos (JudgeP): M. Alabrune.
TP3 (ThirdParty): Merci, Monsieur le Président.
TP3 (ThirdParty): Je partage entièrement les remarques qui viennent d'être faites par Sir James.
TP3 (ThirdParty): Et je voudrais, si vous me permettez, très brièvement revenir sur la question posée par la juge Turkovitch qui concernait la portée du statut de la Cour pénale internationale, particulièrement de son article 12 B pour le débat qui nous occupe.
TP3 (ThirdParty): Je voudrais simplement rappeler que cette disposition du statut de la Cour pénale internationale concerne les conditions d'exercice de la compétence de la Cour pénale internationale.
TP3 (ThirdParty): C'est donc des critères de compétence d'une Cour pénale.
TP3 (ThirdParty): Et cet article 12 prévoit que la Cour pénale internationale peut avoir compétence si un Etat sur le territoire duquel un crime a été commis ou si un Etat dont un ressortissant a commis un crime ou son parti au statut.
TP3 (ThirdParty): Et l'article 12 B, je crois, qui a été cité par le juge Turkovitch, concerne la nationalité et le cas où un ressortissant d'un Etat parti a commis un crime.
TP3 (ThirdParty): Ce que je voudrais indiquer, c'est qu'à nos yeux, la nationalité d'une personne accusée d'un crime ne peut pas avoir de pertinence pour l'appréciation de la juridiction d'un Etat au sens de l'article 1 de la Convention.
TP3 (ThirdParty): Il n'existe pas, à nos yeux, de fondement dans la jurisprudence de la Cour pour soutenir une telle interprétation.
TP3 (ThirdParty): Et à nos yeux, la responsabilité pénale d'un individu ne peut être confondue avec la responsabilité internationale d'un Etat au titre de la Convention européenne des droits de l'homme.
TP3 (ThirdParty): S'éloigner d'une telle distinction et mélanger, si je puis dire, à la fois la responsabilité d'un Etat au titre d'un instrument tel que la Convention européenne des droits de l'homme et la responsabilité pénale d'un individu risque de conduire, encore une fois, à une extension considérable de la compétence de la Cour et de l'applicabilité de la Convention à tous les cas dans lesquels il peut y avoir compétence d'une juridiction pénale telle que la Cour pénale internationale qui, je le rappelle, a une compétence sur certains crimes parce que les juridictions nationales pénales des Etats-partis peuvent avoir compétence.
TP3 (ThirdParty): Et c'est le principe de la complémentarité qui amène à cette compétence de la Cour.
TP3 (ThirdParty): Donc, nous souhaiterions, de ce point de vue-là, appeler la Cour à bien faire sa distinction.
TP3 (ThirdParty): Merci beaucoup.
Linos-Alexandre Sicilianos (JudgeP): Do any of the judges wish to ask for clarifications to the answers which were given by the parties?
Linos-Alexandre Sicilianos (JudgeP): I don't see any.
Linos-Alexandre Sicilianos (JudgeP): So we have now come to the end of the hearing.
Linos-Alexandre Sicilianos (JudgeP): I thank the parties for their submissions and answers to the Court's questions.
Linos-Alexandre Sicilianos (JudgeP): The Court will now deliberate on the admissibility and merits.
Guido Raimondi (JudgeP): I declare open the public hearing on the merits in the case of Lekic versus Slovenia.
Guido Raimondi (JudgeP): The application was lodged with the court on 4 August 2007 on the Article 34 of the convention by a Slovenian national, Mr. Ljubomir Lekic.
Guido Raimondi (JudgeP): The application was allocated to the fourth section of the court pursuant to Rule 52, paragraph 1 of the rules of the court.
Guido Raimondi (JudgeP): On 14 February 2017, a chamber constituted within that section delivered a judgment in the case.
Guido Raimondi (JudgeP): On 12 May 2017, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the convention.
Guido Raimondi (JudgeP): And the panel of the Grand Chamber accepted the request on 18 September 2017.
Guido Raimondi (JudgeP): On 15 December 2017, the president of the Grand Chamber granted the civil initiatives against forcefully erased companies and the Malta Institute of Management leave under Rule 44, paragraph 3 of the rules of the court to submit written comments at third parties.
Guido Raimondi (JudgeP): The government are represented by their agents, Mrs. Bojana Jovin Hrastnik and Mrs. Nataša Pintar  Gosenca.
Guido Raimondi (JudgeP): The applicant is represented by Mr. Andrea Saccucci, Mrs. Giulia  Borgna and Mr. Matteo Zamboni, counsel, assisted by Mr. Davor Lekić, advisor.
Guido Raimondi (JudgeP): I would also like to welcome a group of visiting judges and prosecutors from the European Judicial Training Network and a group of visiting judges from the East African Court of Justice and ECOWAS Community Court of Justice.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Albanian has been authorized for the benefit of a delegation from Albania.
Guido Raimondi (JudgeP): Having consulted the agents of the government and the representatives of the applicant, I have determined the order of addresses as follows.
Guido Raimondi (JudgeP): Mr. Saccucci, Mrs.  Borgna, and Mr. Zamboni for the applicant will speak first, and then Mrs. Jovin Hrastnik for the government.
Guido Raimondi (JudgeP): I call Mr. Saccucci, please.
AP3 (Applicant): Mr. President, distinguished judges of the court,
AP3 (Applicant): the main issues raised by the present case transcends the personal interests of the applicant.
AP3 (Applicant): They originate in a domestic legislation that has no precedent in the European legal landscape and that give rise to important questions of general interest not only for Slovenia, but also for other states' parties to the convention.
AP3 (Applicant): Following the enactment in 1999 of the Financial Operations of Companies Act, the so-called FOCA, over 24,000 companies incorporated under Slovenian law was struck off ex officio from the court's register of companies.
AP3 (Applicant): And the shareholders were automatically exposed to personal and unlimited liability for any outstanding debt of the struck off company.
AP3 (Applicant): Without any prior notice, the personal assets were seized by creditors, their business ruined, the families destroyed.
AP3 (Applicant): The present case is not just about piercing the corporate veil in exceptional circumstances.
AP3 (Applicant): It is about a massive and outright erasure of companies literally blowing to pieces the life of tens of thousands of individual shareholders irrespective of their role in the companies and of any established abuse of corporate veil.
AP3 (Applicant): The government will argue that these measure was absolutely necessary in order to tackle the problem of inactive companies and to ensure an adequate protection to the company's creditors.
AP3 (Applicant): However, this problem is no different in any other European state.
AP3 (Applicant): And yet, none of them has ever resorted to such a draconian measure so profoundly offending the life and property of around 2.5
AP3 (Applicant): of the national population.
AP3 (Applicant): The truth is, as the government conceded, that it would have been particularly burdensome for the judicial system to open bankruptcy proceedings against thousands of allegedly inactive companies.
AP3 (Applicant): Their massive erasure was then a much easier arrangement.
AP3 (Applicant): And the need to protect the company's creditor became just a convenient camouflage.
AP3 (Applicant): The facts of the case as established in the chamber's judgment are not in dispute between the parties.
AP3 (Applicant): I will briefly recall them for the court's assistance.
AP3 (Applicant): In 1992, Mr. Lakic acquired a share of 11.11%
AP3 (Applicant): in the company LE, which at that time was in full operation.
AP3 (Applicant): In 1993, the Railway of Slovenia initiated enforcement proceedings against the company for collecting an alleged pre-existing claim relating to transportation services.
AP3 (Applicant): While the enforcement proceedings were pending, the applicant and the other shareholders applied for voluntary bankruptcy in order to wind up the company.
AP3 (Applicant): But their application was rejected.
AP3 (Applicant): Therefore, they decided to wait for the opening of ex officio bankruptcy proceedings, which as accepted by the government, should have been initiated by the District Court of Ljubljana on its own motion under the 1993 Companies Act, then in force.
AP3 (Applicant): However, such proceedings were never opened.
AP3 (Applicant): It was only in 2001, after the entry into force of the FOCA, that the District Court instituted on its own motion the new striking of proceedings against the company.
AP3 (Applicant): At that time, the applicant did not hold any position in the company, as he had resigned as managing director nearly five years before.
AP3 (Applicant): The striking of proceedings were conducted swiftly without the applicant and the other shareholders being aware of it.
AP3 (Applicant): As a result, on 25 September 2001, the company, LE, ceased to exist as a legal entity.
AP3 (Applicant): Meanwhile, on 22 November 2000, the District Court of Ljubljana granted the Railways of Slovenia's application for enforcement against the company.
AP3 (Applicant): But after its striking off, the Railways of Slovenia sought to enforce its claims against the applicant and the other former shareholders in person, according to Article 27, Paragraph 4 of the FOCA.
AP3 (Applicant): The applicant challenged this provision up to the Constitutional Court, alleging that it was unforeseeable and disproportionate.
AP3 (Applicant): However, that was to no avail.
AP3 (Applicant): And ultimately, he was forced to enter into an out-of-court settlement with the Railways of Slovenia.
AP3 (Applicant): Those bare facts give rise to the injustice that Mr. Leckage brings to this court.
AP3 (Applicant): When the fourth section looked at the matter, it did not have the benefit of the comparative law analysis, and it failed to consider four major factors which carry particular weight, both in terms of foreseeability and proportionality.
AP3 (Applicant): First, the excessive burden imposed on the applicant as a minority shareholder.
AP3 (Applicant): Second, the unprecedented character of the contested legislation.
AP3 (Applicant): Third, the influence of the repeated changes of the legislative framework.
AP3 (Applicant): Fourth, the massive and devastating effects of the measure on the Slovenian population.
AP3 (Applicant): When pondered together against the public interest allegedly pursued, these four factors warrant a complete reversal of the findings made by the chamber.
AP3 (Applicant): My colleagues will address the applicant's complaint in Article 6 and Article 1, Protocol 1, while I will briefly deal with these four factors.
AP3 (Applicant): It is our first submission that the chamber failed to consider that the Foka regime of shareholders liability caused the applicant to bear the entire burden of the company's erasure to the advantage of its creditors.
AP3 (Applicant): When Mr. Lekic acquired a share in the company in 1992,
AP3 (Applicant): the Railway of Slovenia had already a claim against that company.
AP3 (Applicant): The applicant had no influence in the making of such claim, and the creditor had no legitimate expectation to be entitled to collect their claims against company's individual shareholders.
AP3 (Applicant): 18 years later, in 2011, the applicant was held personally liable for the outstanding debt of the company, and ultimately forced it to pay entirely out of his pocket.
AP3 (Applicant): A shift of liability from the company to the applicant in person was the result of the swift implementation of the Chapter 3 of the Foka.
AP3 (Applicant): The new legislation was therefore applied in a retroactive fashion to the applicant's detriment when the enforcement proceedings instituted by the Railway of Slovenia were still pending.
AP3 (Applicant): We therefore submit that the applicant's convention rights have been breached because the new legislation has been applied with retroactive effect, and even in proceedings that were already pending, as this court already found in the case of Presto's Companhia Naviera versus Belgium.
AP3 (Applicant): As my colleagues will explain in detail, the shareholders' personal and unlimited liability is the automatic effect of a pure legal fiction introduced by the Foka.
AP3 (Applicant): And its implementation in the applicant's case is the result of a chain of presumptions which runs counter the convention requirements.
AP3 (Applicant): Turning to my second point, it is to be noted that the draconian measuring question does not find an equivalent in any of the legal system of the other contracting states.
AP3 (Applicant): This factor weighs strongly against the government attempt to justify the interference as being proportionate to the general interest pursuit.
AP3 (Applicant): In Pockisch versus Latvia, this court stated that, and I quote, it has always been mindful of the separate legal personality of companies authorizing the piercing of corporate bail only in exceptional circumstances, end of quote.
AP3 (Applicant): And since agrotexting and others, such principle has been consistently reiterated in numerous judgments to which we referred in our written submissions.
AP3 (Applicant): The court's position is perfectly consonant with the well-established state's practice and international jurisprudence on the matter.
AP3 (Applicant): As highlighted by most authoritative scholars, the firm distinction between the separate entity of the company and that of the shareholder is a universal principle of company law.
AP3 (Applicant): As such, it has been recognized by the International Court of Justice in Barcelona Traction and more recently by the European Court of Justice in the preliminary ruling delivered in 2010 in the case C81-09.
AP3 (Applicant): As pointed out by the advocate general of the ECJ, this principle reflects one of the common features of companies incorporated with limited liability in different member states.