EHRM, 04-06-2019, nr. 12096/14, nr. 39335/16

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.

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.

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.

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.

Decides, unanimously, to join the applications;

. Joins to the merits, unanimously, the Government's objection that the complaint under Article 7 is incompatible ratione materiae with the Convention;

Declares, unanimously, the complaints concerning Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible;

Declares, by a majority, the remainder of the application inadmissible;

Holds, by four votes to three, that Article 7 is not applicable in the case and that there has accordingly been no violation of this provision.

Holds, unanimously, that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

Holds, unanimously,

Dismisses, by four votes to three, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 4 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli

Registrar

Jon Fridrik Kjølbro

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

J.F.K.

M.T.

Although we voted for finding a violation of Article 1 of Protocol No. 1, we do not agree with the assessment that the revocation of the applicant's liquidator's licence was not lawful within the meaning of Article 1 of Protocol No. 1 (paragraphs 95 to 99 of the judgment). In our view and as explained below, the interference was a lawful but disproportionate measure.

Any interference by a public authority with the peaceful enjoyment of possessions has to be lawful, and the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004-V). However, the Court has limited power to review compliance with domestic law (see Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000-I). It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, and unless the interpretation is arbitrary or manifestly unreasonable, the Court's role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Beyeler, cited above, § 108; Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, § 86, ECHR 2005-VI; and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018).

The applicant's liquidator's licence was revoked in 2011 as a consequence of his conviction in 2010 for criminal offences that had been committed in 2003 and 2004 (see paragraph 9 of the judgment). The revocation was based on sections 108 and 109 of the Financial Operations Act, which had entered into force on 1 October 2008, and in accordance with which the Minister of Justice ‘must revoke’ a licence if the person ‘has been convicted … of a publicly prosecutable criminal offence committed with intent’ (see paragraph 29). It transpires from the transitory provisions that liquidator licences issued under the Bankruptcy Act were to be considered as equivalent to licences issued under the Financial Operations Act (see paragraph 32).

The applicant was convicted of a publicly prosecutable criminal offence committed with intent (see paragraph 6) and it is undisputable that the applicant's liquidator's licence had to be revoked if sections 108 and 109 of the Financial Operations Act were to be applied.

Before the domestic authorities, the applicant argued that sections 108 and 109 of the Financial Operations Act could not be applied retrospectively and that the question of revocation had to be assessed on the basis of the legislation applicable when the criminal offences were committed. The applicant's arguments were dismissed by the Ministry of Justice and subsequently by the Administrative Court, the Supreme Court and the Constitutional Court (see paragraphs 9, 11, 13 and 14 of the judgment).

If revocation of a liquidator's licence is to be regarded as a ‘legal consequence of conviction’ within the meaning of the Criminal Code, there may seem to be a certain contradiction between Article 99 of the Criminal Code (paragraph 34 of the judgment) and sections 108 and 109 of the Financial Operations Act (see paragraph 29 of the judgment). Thus, Article 99 § 2 of the Criminal Code clearly stipulates that legal consequences cannot be imposed if the person is sentenced to a ‘suspended sentence’ 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. Likewise, Article 99 § 4 stipulates that only those legal consequences that were prescribed by statute at the time the crime was committed can be imposed, while revocation in the applicant's situation does not seem to have been possible under the provisions of the Bankruptcy Act (see paragraph 28 of the judgment).

That being stated, and having regard to the Court's limited power to review compliance with domestic law, we find it difficult to characterise the interpretation and application of domestic law by the Ministry of Justice, the Administrative Court, the Supreme Court and the Constitutional Court as arbitrary or manifestly unreasonable. The wording of sections 108 and 109 of the Financial Operations Act is unambiguous. The transitory provisions clearly indicate that the provisions of the Financial Operations Act were to be applied, even though the applicant's licence had been issued prior to the entry into force of the Act. Therefore, if the question of revocation of the applicant's liquidator's licence was to be assessed under sections 109 and 108 of the Financial Operations Act as decided by the domestic authorities, the outcome was more than foreseeable, and the interplay between the provisions of the Financial Operations Act and the Criminal Code is a question concerning the interpretation of domestic law which falls to be decided by the domestic authorities.

Thus, we cannot subscribe to the reasoning and conclusion according to which the interference was not lawful within the meaning of Article 1 of Protocol No. 1.

Consequently, and accepting that the measure pursued the legitimate aim of protecting the public by ensuring the integrity of those carrying out the function of liquidator, it is necessary for us to proceed with an assessment of proportionality.

Article 1 of Protocol No. 1 requires of any interference that there should be a reasonable relationship of proportionality between the means employed and the aim pursued. This fair balance will be upset if the person concerned has to bear an individual and excessive burden (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 300, 28 June 2018).

In the present case, the revocation of the applicant's liquidator's licence was applied as an automatic consequence of the fact that he had been convicted of a publicly prosecutable criminal offence committed with intent. The relevant provisions in the domestic law did not require or allow for a concrete assessment of the specific circumstances of the case, including the nature and the seriousness of the offence, the time elapsed since the offence was committed, whether the offence was related to or had a bearing on the exercise of the function of liquidator and the appropriate duration of the revocation compared to the gravity of the offence. In other words, the relevant domestic provisions did not allow for any concrete assessment of proportionality.

As regards the specific circumstances of the applicant's case, there is no indication that his criminal conviction for violent behaviour was related to his professional activities. Furthermore, his licence was revoked more than six years after the offence in question had been committed, although he had been able to perform his job during that time without any legal repercussions. What is more, the revocation was of a permanent nature, since he was unable to reapply for a liquidator's licence even after the conviction had been expunged from his criminal record.

Having regard to the foregoing and to the seriousness of the consequences for the applicant, who was unable as a result of the impugned measure ever to resume employment as a liquidator, we consider that a fair balance was not struck between the interference and the aim it pursued. There has therefore been a violation of Article 1 of Protocol No. 1.

I voted against three points of the operative part: the fourth, the fifth and the eighth. In my opinion, Article 4 of Protocol No. 7 to 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. Also, the applicant's complaint under Article 4 of Protocol No. 7 to the Convention cannot be assessed as incompatible ratione materiae with the provisions of the Convention. What is more, had a proper examination of these two aspects been undertaken, a violation of at least one of the said Articles (or even both) should have been found. A higher amount of money therefore had to be awarded to the applicant by way of just (if this word means what it should mean) satisfaction for the infringement of his Convention rights.

As to the applicant's complaint under Article 1 of Protocol No. 1 to the Convention, I concur with the finding that there has been a violation of that Article. Still, I am not fully comfortable with the reasoning on which that finding is based. The reasons for that discomfort are to some extent similar to those expounded in the separate opinion of Judges Kjølbro and Ranzoni. I shall not expand further on these matters.

In addition to this partly concurring and partly dissenting opinion, I also have joined the partly dissenting opinion of Judges Pinto de Albuquerque and Bošnjak, with whom I share the views on the outcome of this case, as well as on the flaws of legal analysis and reasoning which have led to such an outcome. In my own separate opinion I will deal with some of the points of my disagreement with the majority, which are sometimes to no small extent parallel to those noted in the separate opinion of my distinguished colleagues, as well as with some additional considerations, in particular as regards the methodology of the majority's reasoning. The underlying problem lies in their approach to the applicant's complaint under Article 7; the finding regarding the complaint under Article 4 of Protocol No. 7 is a mere sequel to the finding regarding the complaint under Article 7. I will therefore deal mostly with the latter.

It is duly pointed out in the judgment — and this is a starting-point for the majority's analysis — that the concept of a ‘penalty’ in Article 7 has an autonomous meaning and that ‘to render the protection offered by this Article effective, the Court must be 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’ (paragraph 53 of the judgment). Paragraph 90 contains a similar reminder regarding Article 4 of Protocol No. 7: it is stated 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’ (for the sake of accuracy, Article 4 of Protocol No. 7 does not actually contain the words ‘criminal procedure’, but the words ‘criminal proceedings’, ‘penal procedure’ and ‘previous proceedings’ are used). It is also rightly reiterated that in any assessment of the existence of a ‘penalty’ account may be taken not only of the impugned measure's imposition following a decision that a person is guilty of a criminal offence, but also other factors, in particular the nature and the severity of the measure in question. It is stated in paragraph 54 that the factors to be considered in determining whether or not there was a ‘penalty’ (for the purposes of Article 7 § 1) ‘resemble’ the so-called Engel criteria (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82–83, Series A no. 22). As is rightly noted in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 105, 15 November 2016), those criteria were ‘previously developed’ (that is to say, as early as in 1976, the year of Engel and Others) for the purposes of Article 6 (i.e. to establish the existence of a ‘criminal charge’), but since then they have been effectively applied also for the purposes of Article 7 and Article 4 of Protocol No. 7. This jurisprudential advancement is deservedly paid heed to in the judgment.

Although references to the relevant case-law are provided in the above-mentioned paragraph, the Engel criteria themselves are not rehearsed. It is therefore worthwhile to do so here. I am copying the following from the rather recent Grand Chamber judgment of A and B v. Norway (cited above, § 105), which is but one (and not even the latest) of numerous authorities on this matter:

In the above-cited case of A and B, being called upon to clarify the applicability of the Engel criteria for the purposes of Article 7 and Article 4 of Protocol No. 7, the Grand Chamber saw no reason to depart from the approach that these criteria were ‘the model test for determining whether the proceedings concerned were ‘criminal’ for the purposes of Article 4 of Protocol No. 7’ (ibid., § 107). The Grand Chamber also stated that, although the ne bis in idem principle was ‘mainly concerned with due process, which [was] the object of Article 6, and [was] less concerned with the substance of the criminal law than Article 7’, it would be ‘more appropriate, for the consistency of interpretation of the Convention taken as a whole, for the applicability of the principle to be governed by the same, more precise criteria as in Engel’ (ibid.).

Hardly anyone would disagree that, although ‘previously developed’ (ibid. § 105) for the purposes of the Article of which the ‘object’ is ‘due process’ (that is to say, Article 6), the Engel criteria point directly to the very ‘substance of the criminal law’, because they invoke the two determinative elements of substantive criminal law: the offence, for which the person concerned is sanctioned, and the penalty (or ‘punishment’, as both terms are employed interchangeably in the Convention, including Article 7) which may be incurred by the offender.

It should also be noted that in the above-cited case of A and B the Grand Chamber had not departed (as regards the doctrinal statements, and I will pass over the concrete finding in that case) from the principled stance (as formulated earlier in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, § 53, ECHR 2009) that, although a cumulative approach cannot be excluded, the second and the third criteria are ‘alternative, not necessarily cumulative’ (A and B, cited above, § 105). This stance was recently confirmed in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and two others, 6 November 2018), with a caveat (which, in turn, had been stipulated in the Court's case-law since the mid-1980s) that a cumulative approach was allowed ‘where separate analysis of each criterion [did] not make it possible to reach a clear conclusion as to the existence of a criminal charge’ (ibid., § 122).

It is therefore obvious that the alternative approach is a rule, and the cumulative approach is an exception. Fairness and transparency of judicial decision-making requires that a serious substantiation of each and every instance of departure from the rule in favour of the exception is provided. Needless to say, it should be made clear to the parties in the case and other readership — if possible explicitly, even in a succinct manner, — that a ‘separate analysis of each criterion’ is not sufficient to form ‘a clear conclusion as to the existence of a criminal charge’.

What inferences should one draw from all this?

In plain language (and not the sinuous and multi-layered legalese of A and B, cited above), it means at least three things (for the purposes of the instant case):

Correspondingly (and by way of summing up), 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. This, however, does not mean that these factors may not be described by means of wording which would be different from that by which the Engel criteria are defined. Also, this inclusion does not preclude (at least hypothetically) the set of factors to be considered for the purposes of Article 7 or Article 4 of Protocol No. 7 from not being limited to the three Engel criteria. Some of these factors (whatever their doctrinal description) may be (and indeed are) covered, in full or in part, by one or more of the Engel criteria, whereas there may be others which fall outside the ambit of the latter. In the context of the instant case, it is sufficient to address one of these factors, which is also the third Engel criterion: the degree of severity of the impugned measure (even though this measure is not called ‘penalty’ or ‘punishment’, or ‘criminal sanction’ in domestic law), that is to say, the permanent revocation of the applicant's licence and, as a sequel, the refusal to grant him a new one.

The Chamber examined the five most relevant factors for the determination of whether or not there was a ‘criminal charge’ (i.e. ‘penalty’, ‘punishment’) for the purposes of Article 7. The list of these factors is provided in paragraph 60:

It is evident that the first three factors are a particular dispersion of the first Engel criterion (albeit perhaps wider than the latter), and the fourth and fifth factors more or less correspond respectively to the second and third Engel criteria.

I have no qualms (at least no essential expostulations) as regards the examination, by the majority, of the first three of the above-listed factors. It is rightly noted that the disputed measure was imposed on the applicant as a result of his criminal conviction for a ‘publicly prosecutable’ offence, but separately from the ordinary sentencing procedure (‘a measure that prevented a person from obtaining a licence to practise a certain profession amounted to a ‘legal consequence’ of a conviction’); that the proceedings, in which that measure was imposed, ‘fall within the ambit of administrative law’; and that the impugned measure was ‘not set out in criminal law’ (paragraphs 61–63). These considerations are supported by some other arguments which are spelt out in the context of the examination of the fourth factor (perhaps because they are related to the ‘nature’ of the measure complained of), namely that ‘the measure … was imposed solely on the objective basis of a final criminal conviction’, and the institutions which imposed it, as well as the courts which reviewed the case ‘had no discretion as regards the imposition of the measure’ and did not carry out any ‘assessment of culpability’ (paragraph 65).

In other words, from the perspective of the first three factors, which, as noted, correspond to no small extent to the first Engel criterion, the measure in question is not a ‘penalty’, not only owing to the fact that it is not a criminal sanction under domestic law, but also because it is not a sanction at all: it is an additional outcome, which the conviction entails alongside a criminal sanction. Even if a criminal sanction is not imposed on a convicted person (I would like to believe that this is possible under Slovenian law, as in many other systems), that additional outcome is nevertheless incurred.

However, this assessment is by no means conclusive; not only does it not exclude the need to look into the issue from the perspective of the fourth and the fifth factors, which correspond to the second and the third Engel criteria, it actually requires this. But before turning to the remaining two factors (in paragraphs 18–38 below) I have one more observation to make.

In the context of the examination of the third factor, the Constitutional Court's decision of 1 June 1995 is noted and given some significance. That decision is interpreted as having affirmed 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’ under Slovenian law (paragraph 63). However, the assessment provided by the national Constitutional Court is not binding on the Strasbourg Court.

Firstly, the aforesaid decision of the Constitutional Court concerned — and upheld — the constitutionality of a prohibitive condition for a public-service job (in that case of a notary), namely a ‘lack of criminal conviction for [a] crime which would render him or her morally unworthy to be a notary’ (paragraph 37; emphasis added). The moral unworthiness clause is quite different from — even if to some extent comparable to — the clauses stipulating the prohibitive conditions dealt with in the instant case, which are (i) a lack of criminal conviction for any ‘publicly prosecutable’ offence committed with intent, which has not been expunged from the person's criminal record, and (ii) a lack of previous revocation of the licence, whatever the grounds for that revocation might have been (paragraphs 29 and 30). (The relationship between the two conditions, in particular, the nullification, by the second condition, of the rehabilitative force of the expunction of the offence from the person's criminal record, as consolidated in the first condition, would merit critical consideration from several perspectives, but that would go beyond the scope of this opinion.)

Secondly, as explicitly expounded by the Chamber, ‘it cannot be ignored that the Constitutional Court [itself] considered the revocation of a licence following a criminal conviction to be a ‘legal consequence of conviction’ … 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’’ (paragraph 83). It is fair to say that this consideration appears quite belatedly, in the context of the applicant's complaint under Article 1 of Protocol No. 1, and not in the context of Article 7 (see also paragraphs 28 and 33 below; compare also paragraphs 35 and 42 below). Still, it is clear that, from the perspective of the Convention, the provision applied, while not being formally part of domestic criminal law, is nevertheless not so simply detachable from it (although the majority do their best not to mention in any direct manner that the impugned measure has any retributive, let alone punitive, dimension).

Thirdly, while the Constitutional Court's view is noted, the Court's own duty to interpret the concept of a ‘penalty’ in an autonomous manner is also explicitly acknowledged (paragraph 63). A measure which is not a ‘criminal sanction’ and not even a sanction at all from the perspective of domestic law, thus could still be assessed as being a ‘penalty’ from the perspective of the Convention — for the purposes of Article 7 (and, by extension, Article 4 of Protocol No. 7). In other words, a measure which is not a sanction under domestic law may nevertheless be a sanction — and a criminal one — under the Convention.

In order to ascertain whether or not that was so in the instant case, the fourth and fifth factors had to be taken into account. However, things do not go so smoothly from this point.

The examination of the fourth factor is where the first difficulty is encountered. In assessing whether the nature and purpose of the impugned measure allowed for its classification as one of a non-criminal nature, the majority note that ‘the purpose of [the] legal provision [applied] … aimed at ensuring public confidence in the profession of liquidator’. However, they consider that the ascertaining of this purpose, which is perfectly legitimate in itself, is sufficient for them to declare that the purpose of the provision in question ‘does not appear to be to inflict a punishment in relation to a particular offence of which a person has been convicted’ and that ‘the revocation of the licence did not have a punitive and dissuasive aim pertaining to criminal sanctions’ (paragraph 64). From the methodological perspective, the reasoning of the majority thus suggests that once the purpose of a legislative provision, as such, is not ‘typical’ of ‘traditional’ substantive criminal law (that is to say, to determine criminal offences and to establish penalties for them), it simply cannot play any punitive role.

Hic iacet lepus. Such reasoning, however plausible on the surface, is manifestly wrong. Its methodological fallacy lies in the fact that two faculties of law are jumbled, although they must be contradistinguished: the purpose of law and its function — and, by extension, the purpose and function of the legal provision in question. The distinction between the purpose of law and its function comes from the sociology of law primer. The purpose of law (legislative provision) belongs to the domain of wishful normativity; but its function points to its real impact on individuals and society at large. Moreover, the impact on individuals may diverge from the impact on society as a whole. The function of a legal provision may correspond to its purpose, but often it does not. Many legal provisions in fact perform not one but a number of functions. Even if a provision achieves its purpose and in this sense its function corresponds to its purpose, it often also brings about certain intended or unintended results — just like virtually any medicine produces some side effects.

The majority, alas, fail to recognise that in the applicant's case the application of the provision in question not only (presumably) achieves its purpose and in this sense performs a function corresponding to that purpose, but also brings about at least one other result and in this sense performs one more function. These two functions differ as regards their ‘addressees’ and purport. The provision applied not only ensures that the professional corps of liquidators is composed exclusively of persons with no criminal record containing ‘publicly prosecutable’ offences and thus enhances public confidence in this profession, but also safeguards the said profession from such persons who have ever, in their lives, committed such criminal offences with intent, because they are prohibited for life from practising this profession even after they have served their court-imposed sentences, and furthermore, even after the convictions have been expunged from their criminal record. For such persons, any redemption from their criminal offences appears to be ‘mission impossible’. The court-imposed sentence may be served, but the additional outcome is to stay forever. The conviction may be formally expunged from the convicted person's criminal record, but for the purposes of taking up the profession of a liquidator it is never expunged, as if it is set in stone.

And this is so irrespective of any conditions: the type of the ‘publicly prosecutable’ criminal offence; the circumstances, in which it was committed; its relation or the absence thereof to the profession of liquidator; the type and the severity of criminal penalty imposed on the convicted person; the lapse of time since the offence was committed; the personal or family situation of the person concerned; any merit that a person may have, etc. (see also paragraphs 33–37 and 39 below). Nothing matters. Nothing can mitigate the rigidity (‘objectivity’) of the provision. La loi, c’est la loi. Dura lex sed lex.

The purpose of the legal provision in question and the function which it performs and which corresponds to it thus may well be preventive, aimed at the society at large (‘ensuring the public confidence in the profession of liquidator’). However, the additional outcome entailed by the conviction and, consequently, the additional function performed by the said provision is aimed at the respective individual and is retributive. It is therefore simply wrong to hold, as the majority do, that ‘the revocation of the licence did not have a punitive and dissuasive aim pertaining to criminal sanctions’ (see paragraph 19 above). This a fortiori applies to the authorities’ refusal to grant the applicant a new licence.

To sum up, the measure which is not a sanction according to its purpose, is still a sanction according to its function.

It remains therefore to be ascertained whether the impugned measure — despite its classification in domestic law as being of a non-criminal nature and not even a sanction, as well as a similar assessment from the perspective of the first three factors and even that based on the flawed application of the fourth factor — is nevertheless ‘criminal’ for the purposes of the Convention (Article 7 and Article 4 of Protocol No. 7) according to the fifth factor indicated by the Chamber (which is also the third Engel criterion).

This last factor is the stone, on which the majority stumbled, like (as will be shown further) the Slovenian Constitutional Court before them.

The majority have devoted three sentences (one single paragraph 66) to an examination of the fifth factor. Their reasoning is the following:

Firstly, what is meant by stating that ‘this factor is not decisive’ is in fact the majority's reliance on the exception rather than the rule (see paragraph 7 above). Notwithstanding the doctrinal principle of Sergey Zolotukhin, as confirmed not long ago in, inter alia, A and B and Ramos Nunes de Carvalho e Sá v. Portugal (all cited above), the cumulative approach is preferred to the alternative. Why? It is nowhere explained. A proper reference would do, but the reference to Welch (cited above) does not help at all. That reference is a camouflage. Yes, the phrase, which the majority cite, is in Welch. But of much more importance is the point that in that case the Court found a violation of Article 7 § 1! (I will pass over a range of both similarities and differences between the situation examined in that case and the instant applicant's situation.) The reference to Welch therefore does not prove the majority's position — it rather effectively disproves it, if only one can spare a few minutes to cast an eye not only at the citation, but also at the judgment cited.

No less confusing is the mention, in the context of the first argument, of ‘many non-penal measures of a preventive nature’. The Court's Guide on Article 7 of the EUR opean Convention on Human Rights (as updated on 31 December 2018 and available urbi et orbi at https://www.echr.coe.int/Documents/Guide_Art_7_ENG.pdf) mentions a number of measures of a preventive nature which are excluded from the concept of ‘penalty’; however it does not mention even once any preventive measure which would in any way be related to a revocation of or a refusal to grant a licence to practise a given professional activity. In contrast, it mentions as falling within the scope of the notion of ‘penalty’ the ‘permanent prohibition on engaging in an occupation ordered by a trial court as a secondary penalty’ and refers in this context to the rather recent case of Gouarré Patte v. Andorra (no. 33427/10, 12 January 2016). Gouarré Patte is referred to in the instant judgment in a different context, noting that, unlike in the instant case, that prohibitive measure was set out in criminal law and was not imposed separately from the sentencing procedure (paragraphs 62 and 63). What is noteworthy indeed is that in Gouarré Patte the Court found a violation of Article 7. Despite the difference between the nature of the measure examined in Gouarré Patte and that of the measure examined in the instant case, the case of Gouarré Patte is perhaps the closest to the instant one in the sense that it deals with a conviction-related prohibition. And yet it is ignored in the instant judgment in the sense that it is not referred to at the juncture where it may be relevant (although it is referred to in other contexts).

Secondly, the majority acknowledge that the permanent effect of the revocation of the applicant's licence is a ‘rather severe consequence’. It would be difficult to find to the contrary. It is common sense, and it must be commended that the legal assessment does not go against common sense. In my opinion, this assessment alone should have sufficed for it to be concluded that the impugned measure amounted to a ‘penalty’ in the sense of Article 7, followed by a proportionality analysis. Otherwise, the fifth factor, or the third Engel criterion, would be totally unimportant, virtually not a criterion at all. And had the proportionality analysis been undertaken by the Chamber, the finding that the measure in question was disproportionate to the legitimate aim pursued would have been consequential.

The majority, however, stop immediately after admitting that the consequence was ‘rather severe’. What do they make of this important acknowledgement? Nothing.

Or, frankly speaking, — not even as little as ‘nothing’. The next sentence, which comes immediately after this admission and which (this is particularly noteworthy) begins with the word ‘however’ and refers to unidentified ‘circumstances of the present case’ (paragraph 66), serves no other purpose than that of neutralising the acknowledgement. What the left hand giveth, the right hand taketh away, as if the giving was meant only to tease (see also paragraphs 16 above and 33, 35 and 42 below).

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 (see also paragraphs 16 above and 35 below).

Thirdly, the conclusion (at the end of the third, final, sentence, of paragraph 66) that ‘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’ is based on three premises (compare paragraph 25 above). As we shall see, they are all very shaky. These premises are:

In this list, ‘the above principle’ is nothing other than the quotation from Welch (cited above). Its dubious appropriateness and no less dubious relevance to the applicant's situation have already been dealt with (see paragraph 26 above).

‘The considerations made in respect of other factors’ include — alongside the least contentious issues of the formally non-criminal nature, under the domestic law, of the legal provision applied and the procedure of its application — the confusion of the purpose of the provision with any other (that is to say, not directly related to that purpose) functions it may perform. This also has been dealt with (see paragraphs 19–23 above).

But even the issue of the non-criminal nature, under the domestic law, of the legal provision applied, is referred to by the majority only in the context of ‘the considerations made’ (emphasis added). Words matter. At that stage one very important consideration has not yet been ‘made’. It is the one identified in paragraph 14 above — regarding the close relationship between the impugned formally non-criminal measure and the substantive criminal law. At that stage, at which ‘the considerations made in respect of other factors’ have been mentioned, that particular consideration has yet to be ‘made’. It will be ‘made’ in the further pages of the judgment, namely in its paragraph 83, in the context of the applicant's complaint under Article 1 of Protocol No. 1, and not in the context of Article 7 (or, for that matter, Article 4 of Protocol No. 7). But it is precisely that consideration which emasculates so substantially the overly formal(istic) classification — not only in domestic law, but also from the perspective of the fourth factor (the second Engel criterion), as erroneously applied in this case, — of the measure in question as not belonging to the domain of criminal law (see also paragraphs 16 and 28 above; compare also paragraphs 35 and 42 below).

One cannot therefore assert that the applicant erroneously equated, in his application, the non-punitive measure imposed on him with the criminal sanction. On the contrary, the majority chose to ignore the perdurable relationship between that measure and the applicant's criminal conviction — and did this at the stage of the examination of the instant case at which that relationship was most relevant. In the judgment, this relationship is noted — in a different context — only after the crucial issue of (non-)applicability of Article 7 has been decided (see also paragraphs 14 and 33 above).

It is noteworthy that the list of three premises, in which the reference is made only to the ‘other factors’, effectively excludes and thereby dodges one factor, which many (including myself) would see as the most relevant one: the severity of the impugned measure. The majority admit that the measure was ‘rather severe’, but utter these words as if by the way, then neutralise the acknowledgment immediately, thus giving it no prominence whatsoever (see paragraph 28 above).

Nor do the majority give any prominence to the concrete circumstances of the applicant's situation — and this notwithstanding the explicit reference to ‘the circumstances of the present case’, in which they conclude that the impugned measure is not to be regarded as a ‘penalty’ within the meaning of Article 7! ‘The circumstances of the present case’ are not dealt with. The reference to them is therefore obscure. In particular, in the context of the applicant's complaint under Article 7 there is no consideration whatsoever of: the fact that the criminal offence for which the applicant was convicted, bore no relation to the profession of liquidator; the fact that his sentence was suspended; his family situation — not only at the time when the applicant's licence was revoked, but also when a new licence was not granted; his inability to find other professional employment (perhaps not owing to a failure to search for it); and — last but not least — the fact that although the applicant was found guilty of domestic violence, he (and not the other parent) appeared in the end to be in sole custody of his children, etc. These circumstances are not at all irrelevant from various perspectives. They clearly call for a proportionality analysis, the outcome of which would indeed be not unpredictable. But the majority attribute no significance to any of them. Or, to be more precise, they briefly mention some of them only later on, in the context of the applicant's complaint under Article 1 of Protocol No. 1, that is to say, they do this only after the issue of (non-)applicability of Article 7 has been decided unfavourably for the applicant (see also paragraphs 28 above and 42 below; compare also paragraphs 16 and 33 above).

Instead, the majority confer what seems a disproportionately great prominence on the third of the above-listed premises (see paragraph 30 above). The latter merits attention, especially as it is the last point before the interim conclusion that the revocation of the applicant's licence is not a penalty within the meaning of Article 7 (paragraph 66) and then the final conclusion that Article 7 is not applicable in the present case (and that there has accordingly been no violation of that provision) (paragraph 67).

That third premise is ‘the fact that the revocation of the applicant's licence did not prevent him from practising any other profession within his field of expertise’.

This is so wobbly! What is the ‘field of expertise’ of a liquidator in insolvency proceedings? Well, insolvency proceedings, of course. The judgment does not shed any light on what prohibitive conditions are stipulated in Slovenian legislation as regards other jobs in this field, but as far as one can infer from the legal provision applied in the instant case and the comparable (although not identical) prohibitive clause of the Notary Act (which was upheld by the Constitutional Court's decision of 1 June 1995; see paragraphs 14–16 above), it is most likely there are some — and most likely they are no less severe. If not, how come the applicant was (still is?) unemployed (at least in the capacity of a professional), was receiving unemployment benefit, found it difficult to provide for his children, and was able to be employed only ‘through a programme for older workers’ (paragraphs 16, 20 and 70)? The majority are not concerned by this at all. The allusion to the possibilities of ‘practising any other profession within his field of expertise’ is a mere smokescreen with no identifiable content.

All in all, the reasoning, on which the conclusion that Article 7 is not applicable in the present case (and that there has accordingly been no violation of that provision) is based, is (to put it mildly) inaccurate.

This reasoning disregards the importance and the strength of the fifth factor (the third Engel criterion). It undeservedly favours the cumulative approach (over the alternative one) to the application of the Engel criteria and the similar factors to be taken into account in examining the complaints under Article 7 (and, for that matter, Article 4 of Protocol No. 7). At the same time, the preference given to the cumulative approach has not been substantiated in any way — in that sense it has not been demonstrated that a ‘separate analysis of each criterion’ is not sufficient to form ‘a clear conclusion as to the existence of a criminal [penalty]’ (see paragraphs 7 and 8 above). This is especially striking in view of the finding of the non-application of Article 7 (and, by extension, of Article 4 of Protocol No. 7) to the applicant's situation.

The above-analysed reasoning also overplays the formal non-attribution to the domain of criminal law of a prohibitive and retributive (which virtually amounts to punitive) provision in question and thus displays one of the most compromising fallacies of the legalistic thinking.

On top of that, the majority's reasoning gives prominence to dubious factual circumstances (and even artificially invents one of them, namely that which pertains to ‘practising any other profession within [the applicant's] field of expertise’; see paragraphs 36–37 above), while at the same time neglecting others, among them the important ones.

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.

In the latter regard the majority's reasoning and the finding based on it follows in the footsteps of the two judgments of the Slovenian Constitutional Court, which the latter adopted with regard to the applicant's constitutional complaints.

The Slovenian Constitutional Court was seized twice of the issue of the severity of the impugned measure. First it decided not to consider the applicant's constitutional complaint regarding the revocation of his licence (on 6 November 2013, paragraph 15). Then it rejected the applicant's second constitutional complaint regarding the refusal to grant him a new licence as inadmissible (on 14 December 2015, paragraph 26).

The second paragraph of section 55(b) of the Constitutional Court Act, on which the Constitutional Court relied in both these cases, commands it to be ascertained, for the consideration of a constitutional complaint, whether the alleged violation of human rights or fundamental freedoms has had ‘significant consequences for the complainant’ or if it concerns ‘an important constitutional question which goes beyond the importance of the actual case’ (paragraph 36). It is not indicated which of the two alternative conditions for the consideration of constitutional complaints the Constitutional Court found not to be met. One perhaps could concede (albeit grudgingly) that these complaints may have not raised ‘an important constitutional question which goes beyond the importance of the actual case’ (after all, domestic courts are better placed to interpret the provisions of domestic law, especially against the factual background of a respective country). But they clearly met the condition of ‘significant circumstances’. The Chamber has explicitly confirmed this by assessing the revocation of the applicant's licence as a ‘rather severe consequence’. This is even more evident from the Chamber’s dismissal of the respondent Government's objection, based on the Constitutional Court's decisions, that ‘the applicant had suffered no significant disadvantage’. The Chamber found ‘it undisputed that in losing his licence to act as a liquidator in bankruptcy proceedings, the applicant also lost his main source of income’. It also noted that ‘the Constitutional Court's decisions dismissing the applicant's complaints … contain no explanation as to the financial or other impact that the contested measures had on the applicant’ (paragraphs 41 and 44). But, as has been shown, these considerations have no bearing on the majority's finding as regards the (non-)applicability of Article 7 in the instant case (see also paragraphs 28 and 35 above; compare also paragraphs 16 and 33 above).

In this context it should be noted that the applicant complained not only under the Articles explicitly indicated in the judgment, but also under Article 6 § 1. That complaint was not communicated to the respondent Government, for it was declared inadmissible by another judicial formation. Even assuming that the reasons for its dismissal might have been valid at that stage, I have serious doubts as to their convincingness now, in the light of the above considerations. However, the Chamber has held that at this stage of proceedings it is precluded from examining the applicant's complaint under Article 6. The reluctance to re-communicate the case to the Government under that Article is regrettable, especially in the light of the Court's self-assumption, with an increasingly high count of cases, of its role as ‘master of the characterisation to be given in law to the facts of the case’, even contrary to ‘the characterisation [of these matters] given by an applicant [or] a government’ (see, among abundant authorities, Radomilja and Others v. Croatia, [GC], nos. 37685/10 and 22768/12), 20 March 2018).

It follows, however, that, having found that Article 7 is inapplicable in the instant case, the majority have also found that the complaint under Article 4 of Protocol No. 7 is incompatible ratione materiae with the provisions of the Convention (paragraph 91; point 4 of the operative part, where the ‘remainder’ of the application is declared inadmissible). The brief reasoning underlying this conclusion, as provided in one short paragraph, boils down to the reliance on the finding of the inapplicability of Article 7, which is based on the assessment of the impugned measure as such, which is not only of a non-criminal nature, but not even a sanction at all (paragraph 90). Indeed, if a measure entailed by a conviction is not a criminal sanction not only under domestic law, but also in the autonomous meaning of Article 7 (‘the revocation of the applicant's licence did not amount to a criminal punishment’; ibid.), it hardly makes sense to speak of a person being ‘punished twice’.

Be that as it may, 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.

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

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

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

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

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

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

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

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

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

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

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

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

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