Unlawful revocation of a professional license constitutes a violation of the right to property

JUDGMENT 

Rola v. Slovenia 04.06.2019 (no. 12096/14)

see here

SUMMARY 

Revocation of a license and deprivation of profession.  Liquidator ‘s complaint that his permission to act in bankruptcy proceedings after his conviction for violent behavior was revoked. The revocation had interfered with the peaceful enjoyment of his property because he was no longer entitled to exercise his profession, which was his main source of income. Moreover, that intervention was not lawful, since it was based on a law which had not entered into force at the time when the applicant had committed the criminal offense and therefore could not reasonably foresee that his conviction would automatically lead to the withdrawal of the license of. Moreover, the applicable law had expressly provided that such a measure could not be imposed if the sentence imposed had been suspended, as in the case of the applicant. Thus, there was a violation of the applicant’s right to property.

The ECtHR also found that the withdrawal of the applicant’s license did not amount to criminal punishment. Consequently, Article 7 (no punishment without law) was violated.

PROVISIONS

Article 7

Article 1 par. 1 of the First Additional Protocol

PRINCIPAL FACTS 

The applicant, Štefan Rola, is a Slovenian national who was born in 1960 and lives in Zgornja Korena
(Slovenia).

In 2004 Mr Rola was granted a licence to work as a liquidator in insolvency proceedings.
However, in 2011 the Minister of Justice revoked his licence because he had been convicted of two
counts of violent behaviour committed in 2003 and 2004. He was thus struck off the register of
liquidators and could no longer be assigned any insolvency proceedings.

He brought an administrative action before the Slovenian courts against this decision. He argued
that at the time he had acquired the licence the law had not provided for revocation if convicted for
a criminal offence. The revocation of his licence had been based on new legislation introduced in
2008. He therefore argued that at the time he had committed the criminal offence he could not have
foreseen such a sanction and that the new legislation should not have been applied retrospectively.
The courts dismissed his action in 2012, finding that the revocation had been entirely lawful. They
also pointed out that that measure was related to the final conviction in 2011 and that the argument about not applying the law retrospectively was therefore irrelevant. The Supreme Court rejected his
appeal on points of law as inadmissible.

In 2013, he applied for a new liquidator’s licence, which the Ministry of Justice rejected because,
under the new 2008 legislation, a licence could not be granted once it had been revoked. He lodged
another administrative action, which was also ultimately unsuccessful, in a decision before the
Supreme Court in 2015.

He unsuccessfully challenged the above decisions before the Constitutional Court.

THE DECISION OF THE COURT 

Article 7 (no punishment without law)

The Court examined whether the revocation of Mr Rola’s licence should be regarded as a “penalty”
within the meaning of Article 7 of the Convention. It noted that the revocation of Mr Rola’s licence
had been imposed following his criminal conviction. However, that measure had been imposed
under administrative law, completely separately from the ordinary sentencing procedure.

Furthermore, it had not been characterised in the domestic law, namely the Financial Operations,
Insolvency Proceedings and Compulsory Dissolution Act (“the Financial Operations Act”), as a
sanction that was criminal in nature. Nor did the relevant provision under that Act, providing that a
person must have no prior conviction to be considered suitable as a liquidator, have the punitive or
dissuasive purpose of a criminal sanction, but aimed to ensure public confidence in the profession.
Neither the Ministry of Justice nor the courts reviewing the case seemed to have had any discretion
as to the imposition of the measure, and no assessment of culpability had been carried out.

Lastly, although the measure had been rather severe, as Mr Rola’s licence had in effect been
revoked permanently, there had been nothing to prevent him from finding work within his field of
expertise.

The Court therefore found that the revocation of Mr Rola’s licence had not amounted to a criminal
punishment and Article 7 was not applicable. There had therefore been no violation of that
provision.

Article 1 of Protocol No. 1 (protection of property)

The Court found that Mr Rola’s professional practice, which he had exercised for more than seven
years prior to the decision revoking his licence and which had been his main source of income, had
amounted to a possession within the meaning of Article 1 of Protocol No. 1.
Revoking his licence had therefore amounted to an interference with the peaceful enjoyment of his
possessions.

The Court further found that the domestic criminal law which should have been applied had limited
the “legal consequences of conviction” to cases of a custodial sentence and had explicitly provided
that the measure could not have been imposed if the person had been given a suspended sentence,
as was the case for Mr Rola.

Moreover, the Court noted that Mr Rola had committed the criminal offences in 2003 and 2004,
when the applicable law concerning his professional practice had been the Compulsory Composition,
Bankruptcy and Liquidation Act, not the Financial Operations Act on which the revocation had been
based. The Court therefore considered that Mr Rola could not have reasonably foreseen that his
conviction would have automatically led to the revocation of his licence.

The revocation had thus not been lawful, in violation of Article 1 of Protocol No. 1.

Article 4 of Protocol No. 7 (right not to be punished twice for the same offence)

The Court rejected, by a majority, as inadmissible Mr Rola’s complaint that the revocation of his
licence and his conviction for violent behaviour had constituted double jeopardy. For the same
reasons explained in the context of Article 7, the Court found that the revocation of his licence had
not amounted to a criminal punishment and that Article 4 of Protocol No. 7 was not therefore
applicable in his case.

Article 41 (just satisfaction)

The Court held, unanimously, that Slovenia was to pay Mr Rola 5,000 euros (EUR) in respect of nonpecuniary damage and EUR 3,387 in respect of costs and expenses. It dismissed, by four votes to
three, the remainder of the applicant’s claim for just satisfaction.

Separate opinions

Judges Kjølbro and Ranzoni expressed a joint partly concurring opinion. Judge Kūris expressed a
partly concurring and partly dissenting opinion. Judges Pinto de Albuquerque and Bošnjak, joined by
Judge Kūris, expressed a joint partly dissenting opinion. These opinions are annexed to the
judgment(echrcaselaw.com editing).


ECHRCaseLaw

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