July 09, 2019
This post was written by Bas van Bockel, Senior Lecturer of EU law, at Utrecht University.
In a judgment delivered on June 4 by the 4th Chamber of the ECtHR, no less than 3 separate opinions – both partly dissenting and partly concurring – were delivered by 5 of the 7 judges sitting on the case. The facts of the case appear unremarkable, making it all the more surprising that the judges ostensibly found it so difficult to reach agreement between them. What is particularly concerning is that the Court appears to disagree fundamentally on one of the most well-established doctrines from its own case law, the Engel doctrine. The result is puzzling, and raises the question of how the national judiciary can be persuaded to follow the case law of the ECtHR if the Court itself appears so divided on its proper interpretation and implications.
Background and facts of the case
The case concerned a Slovenian national, Mr. Rola, who had worked as a liquidator in insolvency proceedings since 2004. In a judgment from 2010 the applicant was found guilty of several counts of violent behaviour committed in 2003 and 2004, and was given a suspended prison sentence. The Ministry of Justice thereupon revoked his license. The original Slovenian Bankruptcy act in force at the time Mr. Rola had been granted his license, had since been replaced by a new act, the Financial Operations Act (2008), with more stringent provisions in this regard. According to the provisions of this newer act a person is not considered “worthy of public confidence” to perform the role of liquidator if he or she has been convicted of a “publicly prosecutable criminal offence committed with intent”, and the conviction has not yet been expunged from the individual’s criminal record. The applicant unsuccessfully challenged the decision to revoke his license before subsequent national courts.
In 2013, his criminal conviction was expunged from the applicants’ criminal record, after which he re-applied for a license as a liquidator. His application was however refused, because the Financial Operations Act also stipulates that a license cannot be granted once it has been revoked. The applicant brought proceedings against this decision, explaining that he was unemployed and found it difficult to provide for his children who were in his sole custody. This claim was rejected by subsequent Slovenian courts, including the highest, constitutional court. In the proceedings before the Strasbourg court, the applicant complained of a violation of Article 7 ECHR (“the principle that only the law can define a crime and prescribe a penalty” or principle of legality), Article 1 of Protocol No. 1 to the ECHR (“the right to property”), and Article 4 of Protocol No. 7 to the ECHR (the “ne bis in idem” principle).
As regards Article 7 ECHR, the Court first reiterated that “the concept of a “penalty” in Article 7 has an autonomous meaning, and that the criteria applied in order to establish whether there is a penalty “resemble” the criteria applied in order to establish whether there is a criminal charge (the “Engel criteria”). It noted that in several cases under Article 7 ECHR (“penalty”), the dismissal of an official had not been found to constitute a penalty. A difference with the case beforehand was that the proceedings leading to dismissal in those cases had a certain degree of autonomy vis-à-vis the criminal proceedings. In a number of cases under the criminal head of Article 6 ECHR (“criminal charge”), the Court earlier considered that disciplinary proceedings for conduct that also amounted to a criminal offence had the aim of protecting “the public trust in, and the reputation of, the profession” (it concerned lawyers and notaries public). As for the severity of the sanction, the Court had previously held (in the decision in Biagioli) that
“although the sanction of disbarment had been severe (…) 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”.
The Court then goes to discuss the Welch case, in which it found a violation of Article 7 ECHR. In Welch, all property belonging to the applicant had been made subject to a confiscation order under a “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”. Unsurprisingly, the Court found that such a measure constituted a “penalty”. Finally, the Court calls to mind the often-cited judgment in Nilsson v. Sweden in which a taxi drivers’ driving license was suspended as a consequence of road traffic offences. The case concerned the ne bis in idem principle (Article 4 of Protocol No. 7 ECHR). The Court held in that case that although the withdrawal of a driving license was regarded as a measure to protect road safety, it was at least partly of a punitive nature. Amongst other considerations, the Court placed particular emphasis on the severity of the measure (a driving ban for 18 months) in this regard. This was, according to the Court “so severe” that it could ordinarily be regarded as a criminal measure.
Applying these observations to the facts of the case, the Court ruled that the purpose was not “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.” In reaching this finding, the Court emphasized (amongst other things) that “the revocation of the applicant’s license did not prevent him from practising any other profession within his field of expertise”. Based on this assessment, the Court, by four votes to three, found no violation of Article 7 ECHR.
As regards Article 1 of Protocol 1 ECHR, the Court reiterated its ruling in Malik in which it held that the “the revocation or withdrawal of a permit or license had interfered with the applicant’s right to the peaceful enjoyment of their possessions” and that the applicant’s “professional practice amounted to a “possession”. Interestingly, the Court in this regard does conclude that the applicant “could have not reasonably foreseen that his conviction would have automatically led to the revocation of his license”, given that the law in force at the time was the (old) bankruptcy act (which did not foresee in such a consequence of a criminal conviction), rather than the current Financial Operations Act (which was retrospectively applied when the license was withdrawn). For this reason, the Court unanimously found a violation of Article 1 of Protocol 1 to the ECHR. Finally, as regards the ne bis in idem principle of Article 4 of Protocol No. 7 ECHR, the Court summarily reiterated 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”, and that the revocation of the license failed to qualify as such. In contrast with the earlier two complaints, the judgment fails to mention the vote count as regards Article 4 of Protocol no. 7 to the ECHR.
The Separate Opinions
Three separate opinions were delivered by Judges Kjølbro and Ranzoni (first opinion), Kūris (second opinion), and Pinto de Albuquerque and Bošnjak, joined by Judge Kūris (third opinion). Judges Kjølbro and Ranzoni explained in their opinion that although they voted for finding a violation of Article 1 of Protocol No. 1, they did “not agree with the assessment that the revocation of the applicant’s liquidator’s license was not lawful within the meaning of Article 1 of Protocol No. 1”. In their view, the interference was “a lawful but disproportionate measure”. The argument turns (in part) on some of the observations concerning different provisions of Slovenian law raised in the case. In particular, the Slovenian criminal code stipulates that “legal consequences cannot be imposed if the person is sentenced to a suspended sentence” (which was the case here), while sections 108 and 109 of the Financial Operations Act “provide for revocation in the event of a conviction for a crime committed with intent, even if the sentence is suspended”. The judges considered that although the revocation of the license had been lawful “a fair balance was not struck between the interference and the aim it pursued”. The reasons for this were that the decision to revoke the license was taken without any consideration of the facts or circumstances of Mr Rola’s case, at a much later point in time, and without any indication “that his criminal conviction for violent behaviour was related to his professional activities”.
In his opinion, Judge Kūris explained that “Article 7 of the Convention, which enshrines the ne bis in idem principle, is applicable to the applicant’s situation – or, at least, its inapplicability is not duly substantiated in the judgment”. It must be assumed that there was some confusion here, as Article 7 ECHR does not enshrine the ne bis in idem principle but the principle of legality. The Judge laments “the flaws of legal analysis and reasoning which have led to such an outcome”, and points to the well-established case law that has developed from the Engel-judgment. This body of case law “effectively applied also for the purposes of Article 7 and Article 4 of Protocol No. 7”. Summing up the case law, and in particular the recent judgment of the Grand Chamber in A and B vs. Norway, the judge concludes that “the factors which have to be considered in determining whether or not there was a “criminal charge” (or rather “penalty”, “punishment”) for the purposes of Article 7 or Article 4 of Protocol No. 7, not only “resemble” (compare paragraph 4 above) the Engel criteria: they effectively include and encompass the latter”. The opinion proceeds to argue that these criteria have been misinterpreted and misapplied by the majority of the judges sitting on the case, because the “additional outcome (the revocation of a liquidator’s license) entailed by the conviction is retributive” and that it is “therefore simply wrong to hold, as the majority do, that the revocation of the license did not have a punitive and dissuasive aim pertaining to criminal sanctions”. Summing up, the judge concludes that in this case, the revocation of the license, although not a “sanction according to its purpose, is still a sanction according to its function”.
The rest of the Opinion in different ways underscores the considerable extent of the judicial discontent within the chamber in this case. The Judge, for example, points out that the majority of judges admit that the measure in question is rather severe, but:
“stop immediately after admitting that the consequence was “rather severe”. What do they make of this important acknowledgement? Nothing.”
“And not only that. The majority persistently avoid – and this is so throughout the whole text of the judgment – even a hint that the impugned measure had any retributive (which effectively would mean punitive) effect and that by it the applicant was additionally sanctioned for his criminal offence”
“What is most important (and disappointing) is that the reasoning criticised here vividly shows, how insensitive law can be and how its “relative autonomy” (on which there are volumes of legal-sociological literature) may be misused or even abused. This insensitivity – if not loftiness – appears to be incidental not only to statutory law (la loi, c’est la loi; dura lex sed lex), but also to judge-made law. Alas, even judge-made human rights law.”
The Judge concludes that there is “hopefully still some sense in pointing out the fundamental flaws of the overly legalistic, applicant-unfriendly reasoning, in which the findings of inapplicability of Article 7 and, by extension, incompatibility ratione materiae with the provisions of the Convention of the complaint under Article 4 of Protocol No. 7, are rooted”.
The third opinion, delivered by Judges Pinto de Albuquerque and Bošnjak and joined by Judge Kūris concerns in particular Article 7 ECHR and expresses similar doubts and misgivings, although more concisely. The judges conclude that “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”, and therefore that the chamber should have found a violation of Article 7 ECHR.
The judgment certainly invites criticism for all the reasons convincingly cited by the judges who delivered separate opinions in this case. There is little need to repeat every one of those criticisms here. The automatic, permanent and unconditional revocation of a liquidators’ license (which remains in effect even after the criminal conviction on which it is based was expunged from the applicants’ criminal record), surely amounts to a “penalty”, or a “criminal charge”. There is also no doubt that this consequence was not foreseeable because the law on which the revocation of the license was based was not yet in force at the time that the crimes were committed. As far it concerns Articles 7 ECHR and 4 of Protocol no. 7 ECHR, one can therefore only agree with the opining judges that the judgment neither follows logically either from the case law that preceded it, nor from the reasoning presented in it. In particular, the judgment seems to fly in the face of several Grand Chamber judgments including Zolotukhin vs Russia and A and B vs Norway. The court’s argument that “the revocation of the applicant’s license did not prevent him from practising any other profession within his field of expertise” (implying that the measure is somehow less severe for that reason) is simply laughable. As Judge Kūris rightfully points out in his opinion: what is, after all, the expertise of an insolvency liquidator?
Although this is certainly concerning, what is perhaps even more concerning is the sheer extent of the controversy between the judges. After all, the strength of a human rights court like the ECHR lies in its persuasive voice, in the enlightened example that it sets for the national judiciary, and in its ability to look beyond (or ‘pierce the veil’ of) the countless -and at times fortuitous- national legal particularities and peculiarities that often dictate the outcome of judicial procedures -and sometimes do so to the detriment of justice. In this regard, the ECHR has shown this strength on many occasions through clear and persuasive legal reasoning in ground-breaking judgments like Zolotukhin vs Russia and many others, and through legal innovations that have developed out of those judgments like the Engel-criteria, which have changed the landscape of human rights protection in Europe in important and enduring ways. This begs the question: how must national judges be persuaded to follow the example of the ECHR’s case law if that very court itself is so fundamentally divided on its interpretation and application?
To conclude: the impression that Rola v. Slovenia leaves is one of a court in some kind of existential crisis, but the cause of such crisis, for now, remains hidden. We can only hope that the judges will find some common ground before more applicants like Mr Rola suffer from it.