NGOs under European Convention on Human Rights / Tymofeyeva

by a superior court of the fine imposed invoking Article 2 of § 1 of Protocol No. 7 to the Convention in this respect. The Court was not able to declare an infringement of the Convention in the instant case because the parties reached a friendly settlement agreement and the case was struck off the Court’s list. Nevertheless, in its decision 1258 on 7 September 1999, the Court declared the application of this Article 34 NGO admissible and rejected the objections of the respondent government in the 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 Labour 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 a fine imposed, the government considered that it had no serious consequences for the financial status of the applicant company. The Article 34 NGO did not agree with such conclusions and provided the Court with information on the legislation in issue. It noted that the Labour 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. Therefore, it cannot be considered compensation, but is definitely a penalty. Having considered the parties’ submissions, the Court came to 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. Finalnd , 1259 the Court held that Article 2 of Protocol No. 7 was not violated. The applicant company complained of an inability to have the Supreme Administrative Court’s decision of 1995 reviewed by a higher tribunal in so far it had been ordered to pay the fine 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 1260 in which the applicant company complained that the appeals 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 circumstance did not disclose any appearance of a breach of the rights and freedoms set out in the Convention or its Protocols.

1258 Siglfirðingur ehf (dec.), cited above. 1259 Fortum Oil and Gas Oy (dec.), cited above. 1260 OOO Torgovyi Dom “Politeks” v. Russia of 3 July 2003, no. 72145/01.

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