CASE OF ROLA v. SLOVENIA

1. The case originated in two applications (nos. 12096/14 and 39335/16) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Štefan Rola (“the applicant”), on 4 February 2014 and 4 July 2016 respectively.
2. The applicant was represented by Mr D. Ljubič, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Ms J. Morela, State Attorney.
3. The applicant alleged, in particular, that due to the revocation of his licence, which had had a permanent effect, his rights under Article 7 of the Convention, Article 1 of Protocol No. 1 and Article 4 of Protocol No. 7 had been violated.
4. On 2 December 2016 the Government were given notice of the above complaints. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1960 and lives in Zgornja Korena.
6. On 3 June 2010 the Maribor Local Court found the applicant guilty, pursuant to the (old) Criminal Code (see paragraph 34 below), of two counts of violent behaviour, which had been committed in the periods between 1 May and 29 June 2003, and between 1 July 2003 and 22 November 2004, respectively. The applicant was given a suspended prison sentence. The judgment became final on 17 June 2011.
A. Granting of the liquidator’s licence and its revocation
7. On 9 April 2004 the applicant was granted a licence to work as a liquidator in insolvency proceedings under the Compulsory Composition, Bankruptcy and Liquidation Act (hereinafter “the Bankruptcy Act”) then in force. His name was entered in the Register of Liquidators maintained by the Ministry of Justice. At the time of his appointment the Bankruptcy Act regulated the conditions under which such a licence could be granted and revoked (see paragraph 28 below).
8. On 1 October 2008 a new Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act (hereinafter “the Financial Operations Act”) came into force, replacing the Bankruptcy Act (see paragraph 29 below).
9. On 21 June 2011 the Maribor Local Court informed the Ministry of Justice that the applicant’s conviction for the criminal offences committed in 2003 and 2004 had become final (see paragraph 6 above). Accordingly, on 27 June 2011 the Ministry of Justice revoked the applicant’s licence, based on section 109 of the Financial Operations Act. It stated that pursuant to that provision, the applicant, having been convicted of an offence prosecuted ex officio (hereinafter “publicly prosecutable”) committed with intent, had to be divested of his licence. Three days following the decision the applicant’s name was removed from the registry of liquidators.
10. On 25 July 2011 the applicant lodged an administrative action against the decision revoking his licence. He argued that at the time he had committed the criminal offence he could not have foreseen that it would have entailed such a sanction and that section 109 of the Financial Operations Act should not have been applied retrospectively – an issue which in his view had been entirely disregarded by the Ministry of Justice. The applicant also emphasised that at the time he had acquired the licence the law had not provided for the measure of revocation in a case of conviction for a criminal offence. In this connection, he referred to Article 28 of the Slovenian Constitution, which sets out the principle of legality in criminal law prohibiting, inter alia, any retroactive application of criminal law. Accordingly, he could not have been expected to anticipate that such legal consequences would have arisen from his actions which, furthermore, had no bearing on the performance of his duties as a liquidator. He argued that over the years in this profession, he had gained extensive experience and had built up his reputation. His job as a liquidator had constituted his only source of income and he and his family had thus suffered a grave and unexpected loss of earnings following the revocation of his licence.
11. On 7 November 2012 the Administrative Court dismissed the applicant’s action, finding that the revocation of his licence had been entirely lawful. As regards the applicant’s assertion that the measure should not have been applied retroactively, it found that the time when the offence had been committed was not to be considered relevant since the measure in question pertained to the final conviction, thereby respecting the presumption of innocence.
12. On 21 December 2012 the applicant lodged an appeal on points of law, reiterating the argument that his licence had been unlawfully revoked. He further alleged that the Administrative Court had failed to address that key argument and to provide a reasoned response to his complaints. Moreover, the applicant was of the view that, assuming that the Administrative Court had correctly interpreted the relevant provisions of the Financial Operations Act, those provisions were inconsistent with the Constitution.
13. On 13 February 2013 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible, holding that the question he had raised did not meet the standard of “an important legal question” which should be resolved by the Supreme Court. The relevant provision of section 109 of the Financial Operations Act was unambiguous and did not require any particular interpretation; it was clear from its wording that it applied equally to those liquidators who had acquired their licence prior to the enactment of the Financial Operations Act as well as to those who had acquired it after the new Act had come into force. Moreover, the Act did not specifically provide that the measure in question applied only to convictions for criminal offences committed after it had entered into force. Lastly, the Supreme Court held that the applicant had failed to substantiate that the revocation of his licence had had particularly harmful consequences for him.
14. On 19 April 2013 the applicant lodged a constitutional complaint, relying on several constitutional provisions, including those enshrining equal protection of rights, the right to judicial protection and to enjoy the freedom of work. He complained that the lower courts’ decisions had been very brief and had not answered his arguments and that no evidence concerning, inter alia, his financial situation had been assessed. He continued to aver that when given the licence, he had complied with all the pertinent criteria and that the relevant provisions of the Financial Operations Act were unconstitutional. He also argued that the courts had not applied the more lenient law, which had been the old Bankruptcy Act. Moreover, the courts had disregarded the fact that only a suspended prison sentence had been imposed on him and that the legal distinction to include all criminal offences committed with intent was arbitrary and not relevant to the aim of maintaining public confidence in the profession at issue.
15. On 6 November 2013 the Constitutional Court decided not to consider the applicant’s constitutional complaint, relying on the second paragraph of section 55(b) of the Constitutional Court Act (see paragraph 36 below).
16. In the meantime, as it transpires from a decision granting him unemployment allowance, on 15 April 2012 the applicant was dismissed from the Institute for Insolvency Management. He was subsequently unemployed. From November 2014 to November 2015, he was employed through a programme for older workers.
B. Refusal to grant the applicant a new liquidator’s licence
17. On 28 February 2013 the applicant’s conviction was expunged from his criminal record.
18. On 8 April 2013 the applicant applied for a new liquidator’s licence.
19. On 29 May 2013 the Ministry of Justice rejected his application, citing the Financial Operations Act’s provision, pursuant to which a licence could not be granted once it had been revoked (point 2, paragraph 4 of section 108 of the Financial Operations Act – see paragraph 30 below) and noting that the applicant’s licence had been revoked on 27 June 2011.
20. On 27 June 2013 the applicant lodged an administrative action against the above decision. He argued that the sanction of permanent revocation was absolutely disproportionate and that neither judges nor lawyers were subject to such strict conditions as both were able to reapply for office after they had been dismissed. The applicant further submitted that he had lost his job virtually overnight and that the companies which had provided support services to him, such as accounting, had also been seriously affected by the measure. He also explained that he was unemployed and found it difficult to provide for his children who were in his sole custody.
21. On 5 January 2014 the applicant lodged pleadings referring to a judgment issued in criminal proceedings unconnected with the present case. He argued that a convicted person could successfully apply for a liquidator’s licence after his conviction had been expunged from his criminal record.
22. On 12 March 2014 the Administrative Court dismissed the applicant’s action. It found that the refusal to grant a licence was based on a valid law, which prohibited granting of a licence to an applicant whose previous licence had been revoked. It did not address the applicant’s argument that further to the expungement of his conviction from his criminal record he should have been able to reapply.
23. Subsequently, the applicant lodged an appeal on points of law.
24. On 10 March 2015 the Supreme Court dismissed the applicant’s appeal on points of law on the grounds that he had failed to demonstrate that there was an important legal question, he had not pointed to any inconsistencies in the case-law and he had not shown that he had suffered very severe consequences as a result of the impugned measure, which the court pointed out had been a refusal to grant him a licence and not the earlier revocation.
25. On 27 May 2015 the applicant lodged a constitutional appeal, relying on several provisions of the Constitution including equal protection of rights, the right to judicial protection, freedom of work, as well as Articles 6, 7 and 14 of the Convention. He argued that his case was an important one and that if the current position of the courts remained in effect, he would never be able to work as a liquidator again. The applicant disputed the Supreme Court’s decision, which had required him to show that there had been inconsistencies in the case-law. The Supreme Court ignored his argument to the effect that the relevant provisions were unconstitutional and instead took a position that only a departure from case ‑ law would merit the examination of his appeal. The applicant furthermore argued that the interpretation of the relevant legislation had not yet been settled.
26. On 14 December 2015 the Constitutional Court rejected the applicant’s constitutional complaint as inadmissible, citing the second paragraph of section 55(b) of the Constitutional Court Act (see paragraph 36 below). The decision was served on the applicant on 4 January 2016.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Republic of Slovenia
27. Article 28 of the Constitution enshrines the principle of legality in criminal law and reads as follows:
“No one may be punished for an act which had not been declared a criminal offence under law or for which a penalty had not been prescribed at the time the act was performed.
Acts that are criminal shall be established and the resulting penalties pronounced according to the law that was in force at the time the act was performed, except where a more recent law adopted is more lenient towards the offender.”
B. Bankruptcy Act and Financial Operations Act
28. Pursuant to the Bankruptcy Act (Official Gazette no. 67/1993 with the relevant amendments), which was in force at the time the applicant was granted his liquidator’s licence and at the time the criminal offences in question were committed, such a licence was not to be granted if the candidate had been “convicted for a criminal offence which would render him or her morally unfit to perform [this] function ...” (section 78b). The Bankruptcy Act also set out the conditions for the revocation of the licence, namely breach of duties or abuse of position.
29. On 1 October 2008 the Financial Operations Act (Official Gazette no. 126/07) came into force, replacing the Bankruptcy Act. The Financial Operations Act introduced, in its section 108 (3), certain new conditions for the performance of the role of liquidator. Notably, a person is not considered worthy of public confidence to perform such a role if, inter alia, he or she has been convicted, by way of a final judgment, of a publicly prosecutable criminal offence committed with intent and the conviction has not yet been expunged from the individual’s criminal record. Likewise, he or she is not considered worthy of public confidence if he or she has been convicted of certain criminal offences committed by negligence, such as manslaughter, infliction of a serious injury, money laundering, or disclosure of State secret. In such cases, section 109 provides that the Minister of Justice must revoke the individual’s licence.
30. Pursuant to section 108(4)(2) of the Financial Operations Act, the Minister of Justice must reject an application for a liquidator’s licence if the applicant has previously had a licence revoked.
31. The Financial Operation Act further specifies the management of the register of liquidators and the order of their appointment to specific cases. Section 116 provides that every case is allocated to a new liquidator, respecting the order of their appearance on the aforementioned register.
32. In its transitional provisions the Financial Operations Act provides that the liquidator licences which had been issued under the Bankruptcy Act should on 1 October 2008 be considered, with some exceptions (not applicable to the applicant’s situation), equal to licences issued under the Financial Operations Act.
33. Under the Financial Operations Act, a liquidator is a particular official in insolvency proceedings who carries out tasks set out in law with the aim of protecting creditors’ interests. In bankruptcy proceedings, he or she conducts affairs on behalf of the insolvent debtor. He or she assumes the role of representing the debtor the moment the liquidation proceedings against it start. In compulsory receivership proceedings, the liquidator’s role is of a supervisory character. The liquidator also acts as an authority that carries out certain official duties, such as examining the order of claims against the debtor. He or she is obliged to act with diligence, to defend the creditors’ interests and to follow the instructions of the judge where applicable.
C. Criminal Code and Old Criminal Code
34. At the time the crimes at issue were committed the Criminal Code published in Official Gazette no. 63/1994 (“the Old Criminal Code”) was applicable to the case. Its relevant Articles read as follows:
Article 99 (Incurrence of legal consequence of conviction)
“(1) Convictions for particular criminal offences or particular sentences may entail either the termination or forfeiture of certain rights or a bar to the acquisition of certain rights.
(2) Legal consequences cannot be imposed if the person was sentenced to a fine, to a suspended sentence or a court warning or was dispensed from serving the sentence.
(3) Legal consequences may only be prescribed by statute and shall take effect by force of the statute prescribing them.
(4) Only the legal consequences of conviction which were prescribed by statute at the time the crime was committed can be imposed on a convicted person.”
Article 100 (Types of legal consequence of conviction)
“(1) The legal consequences of conviction which refer to the termination or forfeiture of certain rights are termination of authorisation to perform a public function.
(2) Legal consequences which refer to a bar to the acquisition of certain rights include:
1) debarment from the performance of certain public functions or official duties;
2) debarment from entering a certain profession;
3) debarment from obtaining certain permits and endorsements granted by written order of State bodies.
Article 101 (Effect and duration of legal consequences of conviction)
“(1) Legal consequences come into effect on the day the conviction becomes final.
(6) The legal consequences of the conviction shall be discontinued with the removal of the conviction from the criminal record.”
35. On 1 November 2008 the (new) Criminal Code published in Official Gazette no. 55/2008 entered into force. Pursuant to Article 3 § 4, the principle that there should be no crime and punishment without a law applied also to the “legal consequence of conviction” concerning forfeiture or limitation of rights. The relevant parts of other provisions are virtually the same: Article 78 of the Criminal Code resembles Article 99 of the Old Criminal Code, Article 79 of the Criminal Code resembles Article 100 of the Old Criminal Code and Article 80 of the Criminal Code resembles Article 101 of the Old Criminal Code.
36. Subsection (2) of section 55(b) of the Constitutional Court Act, as in force at the material time, reads as follows:
“(2) A constitutional appeal shall be considered:
- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or
- if it concerns an important constitutional question which goes beyond the importance of the actual case.”
E. Constitutional Court’s decision of 1 June 1995
37. On 1 June 1995 the Constitutional Court issued decision no. U ‑ I ‑ 344/94 concerning the compatibility of section 8 of the Notary Act with the Constitution. Section 8(5) of the Notary Act set out three elements which needed to be satisfied in order for a person to be considered worthy of public trust for the performance of the functions of a notary, namely (a) the lack of pending criminal proceedings concerning a crime which would render him or her morally unworthy to be a notary; (b) lack of criminal conviction for crime which would render him or her morally unworthy to be a notary; and (c) lack of conduct which would lead to a conclusion that the person would not conduct his or her function conscientiously and justly. The Constitutional Court found that condition (a) was in breach of, inter alia, the presumption of innocence. However, as regards condition (b) it did not find it unconstitutional. It noted in this connection that “the contested provision [condition (b)] ... represented the legal consequence of conviction because it banned [the person] from accessing a certain profession”. It further noted that this consequence was not a criminal sanction but a condition for a public-service job. It therefore did not concern sentencing for a criminal offence but the question of the personal suitability of the candidate.
F. Supreme Court’s decision of 8 May 2014
38. The Supreme Court found in its decision no. X Ips 12/2013 that when an enforcement officer’s licence was withdrawn on the basis of a conviction for a criminal offence, by way of a final judgment, the authority withdrawing the licence could not reassess the facts or law of the criminal case.
39. Having regard to the related subject matter of the applications, which were lodged by the same applicant, the Court finds it appropriate to examine them jointly (Rule 42 § 1 of the Rules of Court).
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
40. The applicant complained that the revocation of his liquidator’s licence was in breach of Article 7 of the Convention, which reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
41. The Government, relying on the Constitutional Court’s decisions rejecting the applicant’s two constitutional complaints, argued that the applicant had suffered no significant disadvantage.
42. The applicant disputed that argument, submitting that the Court had found a violation of the Convention in a number of cases which had been rejected by the Constitutional Court.
43. The Court notes that the question of whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, § 39, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The Court has held that the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 44, 27 October 2015).
44. Turning to the present case, the Court finds it undisputed that in losing his licence to act as a liquidator in bankruptcy proceedings, the applicant also lost his main source of income. The Government provided nothing to show that the financial impact of the matter was such as to indicate an absence of any significant disadvantage. They merely referred to the Constitutional Court’s decisions dismissing the applicants’ complaints (see paragraphs 15 and 26 above). Those decisions, however, contain no explanation as to the financial or other impact that the contested measures had on the applicant. The Government’s objection must accordingly be dismissed.
45. The Government took the view that the revocation of the applicant’s liquidator’s licence had not constituted a “penalty” within the meaning of Article 7 of the Convention and that the complaint should be declared inadmissible.
46. The applicant disputed that argument.
47. The Court finds that the objection as to its lack of jurisdiction ratione materiae, in the circumstances of the case, is closely linked to the substance of the applicant’s complaint under Article 7 of the Convention. It thus decides to join it to the merits.
48. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
49. The applicant argued that the revocation of his licence, which was of a permanent nature, had constituted a form of oppression which had stemmed from his conviction. He alleged that a penalty had not been provided for by law at the time of the offence and had been retroactively imposed on him. He also argued that because his prison sentence had been suspended, it should not have entailed any legal consequences. Article 99 of the Criminal Code applicable at the time the criminal offences had been committed had clearly stated that no legal consequences would apply if the convicted person was given, inter alia, a suspended prison sentence. The aforementioned provision of the Criminal Code could not have been overridden by another statute. This meant that the punishment imposed on him had had no basis in law.
50. Referring to the Constitutional Court’s decision no. U-I-344/94 of 1 June 1995 (see paragraph 37 above), the Government submitted that the revocation of the applicant’s licence had been a “legal consequence of conviction” but had not had the nature of a criminal sanction. It had been a measure taken in response to the fact that having been criminally convicted, the applicant had no longer fulfilled the criteria for the job. In particular, no criminal convictions had been one of the conditions which had to have been fulfilled by any candidate – it had related to the suitability of the candidate for the position of a liquidator, which had required a high level of public trust. Liquidators had exercised public powers and therefore had had to have the confidence of debtors, creditors and the public in general.
51. The Government further argued that in any event the measure had not had a retroactive effect. It had been imposed in administrative, not criminal, proceedings. The purpose of the measure had been to ensure that the functions of the liquidator would be carried out by a suitable person; when the crime had been committed had been irrelevant in this regard. The Government also submitted that the applicant’s licence had been withdrawn on the basis of the Financial Operations Act because licences acquired under the previous legislation had been treated in the same way as those acquired under the aforementioned Act. They pointed out that the Bankruptcy Act, which had been in force at the time the crimes had been committed, had also included a condition of not having a criminal conviction which would render a person morally unfit to hold such a licence. The competent ministry had been obliged to ensure that those holding a liquidator’s licence had been in compliance with the criteria set out in the law. Referring to the Supreme Court’s judgment of 8 May 2014 (see paragraph 38 above), the Government argued that the ministry had acted lawfully in the present case as it had based its decision on the law as in force at that time and had been bound by the findings of the criminal court.
52. The Government also submitted that pursuant to the Criminal Code and the Old Criminal Code, “legal consequences of conviction” could be prescribed only by statute. The Financial Operation Act was thus not to be considered lex specialis but was merely a partial implementation act within the framework of the Criminal Code or the Old Criminal Code. Sections 108 and 109 of the Financial Operations Act were not in contradiction with the aforementioned Codes.
53. The Court reiterates that the concept of a “penalty” in Article 7 has an autonomous meaning. To render the protection offered by this Article effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see G.I.E.M. S.R.L. and Others v. Italy (merits) [GC], nos. 1828/06 and 2 others, § 210, 28 June 2018).
54. The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a “penalty” is whether the measure in question is imposed following a decision that a person is guilty of a criminal offence. However, other factors may also be taken into account as relevant in this connection, namely the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see G.I.E.M. S.R.L. and Others, cited above, § 211). These factors resemble the criteria to be considered in determining whether or not there was a “criminal charge”, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22), which apply also to Article 7 of the Convention and Article 4 of Protocol No. 7 (see Lázaro Laporta v. Spain (dec.), no. 32754/16, § 17, 3 July 2018, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 105-07, 15 November 2016).
55. As to the case-law to date, the Court has found that the automatic dismissal of a customs official who had been definitively sentenced for offences relating to smuggling had not amounted to a penalty within the meaning of Article 7 (see Vagenas v. Greece (dec.), no. 53372/07, 23 August 2011). It noted that the dismissal had been imposed solely on the objective basis of a final criminal conviction. The purpose of the dismissal had not been to punish the applicant for the offence he had committed but had been based on the fact that the applicant had no longer possessed, as a result of his conviction, the qualities and guarantees necessary to carry out his job. The Court later noted in Kapetanios and Others v. Greece (nos. 3453/12 and 2 others, § 87, 30 April 2015) that in cases such as Vagenas (decision cited above) the disciplinary proceedings had had a certain autonomy vis ‑ à ‑ vis the criminal proceedings, in particular as regards the manner in which they had been carried out and their purpose.
56. Assessing the question under the criminal limb of Article 6, the Court similarly found in Müller-Hartburg v. Austria (no. 47195/06, 19 February 2013) and Biagioli v. San Marino ((dec.), no. 8162/13, 13 September 2016) that the offences brought against the applicants – a lawyer, and both a notary public and a lawyer respectively – in the disciplinary proceedings had not been criminal but disciplinary in nature. It observed that the fact that acts which could have led to a disciplinary sanction had also constituted criminal offences (specifically in those particular cases fraudulent conversion and making false declarations in public documents respectively) had not been sufficient to consider a person responsible under disciplinary law as having been “charged” with a crime. As regards the nature of the disciplinary offences in question, the Court further noted that the offences had related solely to professional misconduct and the applicable disciplinary law had not been aimed at the general public but to members of a professional group possessing a special status (see Müller-Hartburg, cited above, § 44, and Biagioli, decision cited above, § 54). In both cases the purpose of the proceedings had been to protect the public trust in, and the reputation of, the profession (see Müller-Hartburg, cited above, § 45, and Biagioli, decision cited above, § 55). The Court further observed in Müller ‑ Hartburg that the disciplinary authorities had been required to have particular regard not only to the degree of culpability but to the damage resulting from the commission of the offence, in particular to members of the public (cited above, § 45).
57. As regards the nature and degree of severity of the sanction, the Court noted in Biagioli (decision cited above) that although the sanction of disbarment had been severe, its aim had been to restore the confidence of the public by showing that in cases of serious professional misconduct the relevant disciplinary body would prohibit the lawyer or notary concerned from practising. The Court went on to note that, although not crucial to this finding, being disbarred did not necessarily have a permanent effect because a professional who had been disbarred might be reinstated if he or she had been rehabilitated and it were shown that his or her conduct had not been reprehensible (ibid., § 56).
58. On the other hand, in Welch v. the United Kingdom (9 February 1995, § 33, Series A no. 307 ‑ A) the Court considered that a confiscation order imposed following the applicant’s criminal conviction had amounted to a penalty taking into account, in particular, that it had resulted from sweeping statutory assumptions that all property passing through the offender’s hands over a certain period had been the fruit of drug trafficking unless he had been able to prove otherwise; that the confiscation order had been directed to the proceeds involved in drug dealing and had not been limited to actual enrichment or profit; that the trial judge had had discretion in fixing the amount of the order, taking into consideration the degree of culpability of the accused; and that there had been the possibility of imprisonment in default of payment by the offender.
59. In Nilsson v. Sweden ((dec.), no. 73661/01, 12 December 2005), which concerned the revocation of the applicant’s driving licence as a direct consequence of his conviction for driving offences, the Court, considering the complaint under Article 4 of Protocol No. 7, likewise concluded that although under Swedish law this had traditionally been regarded as an administrative measure designed to protect road safety, it had constituted a “criminal” matter. It took into account, inter alia, the fact that the licence had been withdrawn a while after the relevant driving offences had been committed, which had meant that prevention and deterrence for the protection of the safety of road users could not have been the only purposes of the measure, and that the severity of the measure, namely suspension of the applicant’s driving licence for eighteen months, had been in itself so significant, regardless of the context of his criminal conviction, that it could ordinarily be viewed as a criminal sanction. In a similar, more recent, case ( Rivard v. Switzerland, no. 21563/12, § 24, 4 October 2016) the Court, finding under Article 4 of Protocol No. 7 that the revocation of the applicant’s driving licence was of a criminal nature, took account of the potential seriousness of the measure, including a possibility of revocation for an unlimited period.
(b) Application of the relevant principles to the present case
60. The Court must now ascertain whether in the present case the impugned measure, namely the revocation of the applicant’s liquidator’s licence, should be regarded as a penalty within the autonomous meaning of Article 7 (see paragraph 53 above). In this connection, the Court will 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 (see paragraph 54 above).
61. The Court notes first of all that the disputed measure was indeed imposed as a result of the applicant’s criminal conviction. It observes 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 above). Pursuant to the aforementioned provision, a liquidator convicted of a publicly prosecutable offence committed with intent had to be divested of his or her licence (see paragraph 29 above).
62. As regards the procedures for the adoption and enforcement of the measure in question, the Court notes that the measure was imposed by the Ministry of Justice and subsequently reviewed by the Administrative Court in proceedings which essentially fall within the ambit of administrative law (see paragraphs 9 and 11 above, and contrast G.I.E.M. S.R.L. and Others, cited above, §§ 228-32). The measure in question was imposed completely separately from the ordinary sentencing procedure (see paragraph 55 above; see also Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 ‑ X, and contrast Gouarré Patte v. Andorra, no. 33427/10, § 30, 12 January 2016).
63. Regarding the legal characterisation of the measure in domestic law, as noted above, it was prescribed by the Financial Operations Act in a provision aimed at regulating the profession of liquidators in insolvency proceedings (see paragraph 29 above). The measure was thus not set out in criminal law (contrast Gouarré Patte, cited above, § 30). Moreover, the Court appreciates from the Constitutional Court’s decision of 1 June 1995 that although a measure that prevented a person from obtaining a licence to practise a certain profession amounted to a “legal consequence” of a conviction, it was not to be considered to be a sanction that was criminal in nature (see paragraph 37 above). Having said that, the Court must interpret the concept of a “penalty” in an autonomous manner (see G.I.E.M. S.R.L. and Others, cited above, § 216). It must thus consider whether any other factors (see paragraphs 53 to 54 above) lead to the conclusion that Article 7 is applicable in the present case.
64. In this connection, the Court notes that the relevant provision of the Financial Operations Act provides that in order to be considered suitable to perform the functions of a liquidator, a person must have no prior conviction for, inter alia, any publicly prosecutable criminal offence committed with intent (see paragraph 29 above). The purpose of this legal provision does not appear to be to inflict a punishment in relation to a particular offence of which a person has been convicted, but is rather aimed at ensuring public confidence in the profession in question. It is aimed at members of a professional group possessing a special status, specifically liquidators in insolvency proceedings (compare Müller-Hartburg, cited above, § 45, and Biagioli, decision cited above, § 54). Therefore, the revocation of the licence did not have a punitive and dissuasive aim pertaining to criminal sanctions.
65. The Court further notes that as in the case of Vagenas (decision cited above), where the automatic dismissal had not amounted to a penalty within the meaning of Article 7, the measure in the present case was imposed solely on the objective basis of a final criminal conviction (see paragraphs 9 and 29 above). The Ministry of Justice and subsequently the courts reviewing the case seem to have had no discretion as regards the imposition of the measure, and no assessment of culpability was carried out in the impugned proceedings (contrast Welch, cited above, § 33).
66. Lastly, as regards the severity of the measure, the Court reiterates that this factor is not in itself decisive, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32). In the present case, the Court observes that as a result of his criminal conviction the applicant’s licence was revoked with permanent effect, which in itself appears to be a rather severe consequence (see paragraphs 18 to 26 and 29 above). However, bearing in mind the above principle and taking into account the considerations made in respect of other factors mentioned in paragraphs 62 to 65 above and the fact that the revocation of the applicant’s licence did not prevent him from practising any other profession within his field of expertise (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 93, ECHR 2013), the Court finds that, in the circumstances of the present case, the mere fact that the impugned measure was of a permanent nature does not suffice for the revocation of the applicant’s licence to be regarded as a penalty within the meaning of Article 7.
67. It follows from the above considerations that Article 7 is not applicable in the present case. There has accordingly been no violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
68. The applicants complained that the revocation of his liquidator’s licence and the bar on reapplying for the licence had been in violation of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
69. The Government argued that the applicant had no legitimate expectations to possess the licence given that he had failed to satisfy the applicable criteria. The licence included an authorisation to carry out a public service and could not amount to a possession. It had been revoked on the basis of valid law and this could thus not amount to an interference with property. The Government further submitted that the applicant’s property had not in any way been affected by the contested measure. Although he could no longer work as a liquidator, he could exercise other professions.
70. The applicant argued that he had exercised the profession of liquidator as his only profession and that as a result of the revocation of his licence, he had remained temporarily unemployed. He also argued that under domestic law, liquidators did not exercise public powers but only acted on behalf of other participants in the relevant proceedings.
71. The Court reiterates at the outset that Article 1 of Protocol No. 1 applies only to a person’s existing possessions; it does not guarantee the right to acquire possessions (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31, and Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II (extracts)). In previous cases involving professional practices, the Court has taken the view that a restriction on applicants’ right to practise the profession concerned, such as a refusal to register an applicant on a professional list, significantly affected the conditions of their professional activities and reduced the scope of those activities. Where, as a consequence of the restrictions, the applicant’s income and the value of his clientele and, more generally, his business, had fallen, the Court held that there had been an interference with the right to peaceful enjoyment of possessions (see Malik v. the United Kingdom, no. 23780/08, § 90, 13 March 2012). In cases concerning the granting of licences or permits to carry out a business, the Court has indicated that the revocation or withdrawal of a permit or licence had interfered with the applicants’ right to the peaceful enjoyment of their possessions, including the economic interests connected with the underlying business (see Malik, cited above, § 91 and the cases cited therein).
72. Turning to the present case, the Court notes that it has not been disputed that due to the revocation of his licence, the applicant was struck off the Register of Liquidators (see paragraph 9 above) and could no longer be assigned any insolvency cases, and that consequently he lost his main source of income (see, by contrast, Malik, cited above, §§ 106, 107 and 110).
73. The fact that the applicant’s licence had included also permission to carry out certain public services and the fact that after its revocation he could have possibly worked in other professions (see paragraph 69 above) are not in the Court’s view sufficient to divest the licence in question of its economic nature. The Court finds it significant in this connection that the licence allowed the applicant to carry out professional practice for which he was paid. He carried out such practice for more than seven years prior to the impugned decision (see paragraphs 7 to 9 above).
74. Furthermore, in so far the Government refer to the legal basis for the withdrawal of the applicant’s licence (see paragraph 69 above), this essentially relates to the merits of the case. As regards the applicability, the Government did not put forward any other argument calling into question the existence, in the present case, of an underlying professional practice of a certain worth that had the nature of a private right and thus constituted an asset (see Malik, cited above, § 96). The Court therefore concludes that the applicant’s professional practice amounted to a possession within the meaning of the first sentence of Article 1 of Protocol No. 1.
75. The Court further notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
76. The applicant argued that in view of the criminal-law provisions, his licence should not have been revoked because he had only been given a suspended sentence.
77. The applicant further argued that the withdrawal of the licence had been a disproportionate measure. It was unrelated to the performance of his duties as a liquidator, was harsher than the sanctions applied to judges, public prosecutors and lawyers in similar situations and had worse consequences than those provided for in criminal law. In particular, criminal law allowed for rehabilitation, whereas the revocation of his licence appeared to be for life. The applicant pointed out that someone applying for the first time for a licence could get it even if he or she had previously been convicted, provided that his or her conviction had been expunged from the criminal record, whereas the applicant, who had had his licence revoked, could never get it back.
78. The Government submitted that sections 108 and 109 of the Financial Operations Act were not in contradiction with the Old Criminal Code or the Criminal Code. The purpose of the measure, that is the revocation of the licence, was to ensure that the person exercising the profession of a liquidator was trustworthy. The State could possibly be held responsible for his or her acts in certain situations.
79. According to the Government, the measure had been necessary to achieve the purpose of protecting the public interest. It was based on law and had not placed a disproportionate burden on the applicant. In this connection, they pointed out that other officials exercising public powers, such as judges and public prosecutors, were also subject to conditions concerning their suitability for public office.
(a) Whether there was an interference with the applicant’s possessions
80. Having already established that the applicant had “possessions” within the meaning of Article 1 of Protocol No. 1 (see paragraph 74 above), the Court considers that the revocation of his licence amounted to an interference with the peaceful enjoyment of his possessions.
(b) Whether the interference with the applicant’s possessions was justified
81. The Court finds that the revocation of the applicant’s licence constituted a measure of control of the use of property, which falls to be considered under the second paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Tre Traktörer AB v. Sweden, 7 July 1989, § 55, Series A no. 159, and Capital Bank AD v. Bulgaria, no. 49429/99, § 131, ECHR 2005 ‑ XII (extracts)).
82. The first requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions be lawful. Furthermore, a measure aimed at controlling the use of property can only be justified if it is shown, inter alia, to be “in accordance with the general interest”. An interference must also strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Vékony v. Hungary, no. 65681/13, § 32, 13 January 2015, and Biagioli, decision cited above, § 101).
83. The Court notes that the domestic authorities in the present case relied on the provisions of the Financial Operations Act as the basis for revoking the applicant’s licence (see paragraphs 9, 11, 29 and 30 above), without addressing the applicability of the relevant criminal ‑ law provisions. However, it cannot be ignored that the Constitutional Court considered the revocation of a licence following a criminal conviction to be a “legal consequence of conviction” (see paragraph 37 above) and that the Government themselves acknowledged the pertinence of the criminal-law provisions to the present situation by submitting 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 above).
84. In this connection, the Court observes that Article 100 of the Old Criminal Code (as well as Article 79 of the Criminal Code) sets 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 perform public functions and certain professions (see paragraphs 34 and 35 above). 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 and explicitly provided that the measure could not be imposed if the person had been given a suspended sentence. It further provided that only the statute could prescribe “legal consequences of conviction” and that the latter should not be applied retroactively (ibid.).
85. In view of the foregoing and given that the applicant had committed the criminal offences in 2003 and 2004, when the applicable law had been the Bankruptcy Act (see paragraph 28 above) not the Financial Operations Act (see paragraph 29 above) on which the revocation was based, and had received a suspended sentence (see paragraph 6 above), the Court considers that he could have not reasonably foreseen that his conviction would have automatically led to the revocation of his licence.
86. The impugned measure was thus not lawful within the meaning of Article 1 of Protocol No. 1. This conclusion makes it unnecessary to ascertain whether the other requirements of that provision have been complied with (see Capital Bank AD, cited above, § 139).
87. There has therefore been a violation of Article 1 of Protocol No. 1.
IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION
88. The applicant complained that the revocation of his licence following his conviction for the criminal offences of violent conduct had constituted double jeopardy in breach of Article 4 of Protocol No. 7 to the Convention, which, in so far as relevant, reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
89. The Government disputed this argument.
90. The Court reiterates that the notion of “criminal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention, respectively (see paragraph 54 above; and see Palmén v. Sweden (dec.), no. 38292/15, § 20, 22 March 2016, and Göktan v. France, no. 33402/96, § 48, ECHR 2002 ‑ V). For the reasons explained in the context of Article 7 (see paragraphs 61 to 67 above), the Court finds that the revocation of the applicant’s licence did not amount to a criminal punishment and that Article 4 of Protocol No. 7 is therefore not applicable in the present case.
91. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
92. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
93. The applicant claimed 90,000 euros (EUR) in respect of pecuniary damage, which in his submission amounted to half of the income he would have received for performing the functions of a liquidator in the absence of the violation of the Convention. He submitted that he had been acting as a liquidator in thirty-three cases, which meant that he had lost at least EUR 30,000 for each year in which he had been unable to perform that job. He also claimed EUR 5,000 in respect of non-pecuniary damage.
94. The Government argued that the applicant had failed to substantiate his claim for pecuniary damage as he had failed to prove that he had in fact had thirty-three cases and had not submitted proof of any specific amounts he had received in previous cases. Likewise, they argued that the applicant had failed to explain his claim for non-pecuniary damage.
95. The Court finds the applicant’s claim for pecuniary damage unsubstantiated and does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,000 in respect of non-pecuniary damage.
96. The applicant also claimed EUR 2,316 for the costs and expenses incurred before the domestic courts and EUR 1,680 for those incurred before the Court. As regards the domestic proceedings, he submitted copies of two receipts: one, in the amount of EUR 609, concerning certain undefined legal assistance provided on 5 December 2012, and one, in the amount of EUR 1,707, concerning preparation of the Administrative Court action.
97. The Government disputed the claim as partially unsubstantiated and partly exaggerated.
98. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,707 for costs and expenses in the domestic proceedings and EUR 1,680 for the proceedings before the Court. In total, the applicant should be awarded EUR 3,387 for costs and expenses.
99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Decides, unanimously, to join the applications;