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ALLA TYMOFEYEVA
CYIL 4 ȍ2013Ȏ
the respondent government in view of the subsequent argumentation. As to the merits
of the complaint, the government of Iceland argued that the applicant company was
not convicted of a criminal charge within the meaning of the Convention because
the Labor Relations Act, under which the legal person was fined, does not presuppose
prosecution, unlike all other criminal sanctions according to Icelandic criminal law.
In its opinion the sanction was of a disciplinary nature. As to the severity of the
fine imposed, the government considered that it had no serious consequences for
the financial status of the applicant company. The NGO did not agree with such
conclusions and provided the Court with information on the legislation at issue. It
noted that the Labor Relations Act adopted in 1983 had the status of an act belonging
to the area of Icelandic criminal law. The maximum fine under this act should be
governed by the provisions of Section 50 of the Penal Code No. 19/1940 and may
reach ISK 4,000,000. Regarding the degree of severity of the penalty the company
pointed out that the amount of the fine imposed, namely ISK 500,000, was among
the highest known in Icelandic court practice apart from statutory fines for tax fraud.
And, therefore, it cannot be considered as compensation, but is definitely a penalty.
Having considered the parties’ submissions, the Court came to the conclusion that
this complaint raised serious questions of fact and law and declared it admissible.
In the case of
Fortum Oil and Gas Oy v. Finland
47
the Court held that Article 2
of Protocol No. 7 was not violated. The applicant company complained of inability
to have the Supreme Administrative Court’s decision of 1995 reviewed by a higher
tribunal in so far as it had ordered that the fine to be imposed by the Competition
Council. The Court, applying one of the exceptions listed in paragraph 2 of Article 2,
decided that the Supreme Administrative Court’s conclusion as to a fine can be
equated with a “conviction following an appeal against acquittal”, and therefore such
a right is not protected by the Convention.
The Court also declared inadmissible an application brought by the NGO in
the case of
OOO Torgovyi Dom “Politeks” v. Russia,
48
in which the applicant company
complained that the appeal court had not examined the substance of its appeal
referring to Article 2 of Protocol No. 7. The Moscow City Court examined the
applicant company’s appeal and ruled that the actions complained about had been
outside the scope of criminal proceedings. The Court found that such circumstances
did not disclose any appearance of a breach of the rights and freedoms set out in the
Convention or its Protocols.
In the case of
Falgest s.r.l. and Others v. Italy
49
the NGO also complained of
a breach of the right to appeal in criminal cases. The Court found this part of the
application incompatible with the Convention
ratione personae
, as the company
could not be considered to be a victim of a violation as it had not taken part in the
47
Fortum Oil and Gas Oy v. Finland
(dec.) of 12 November 2002, Application No. 32559/96.
48
OOO Torgovyi Dom “Politeks” v. Russia
of 3 July 2003, Application No. 72145/01.
49
Falgest s.r.l. and Others v. Italy of 30 April 2013,
Application No. 19029/11.