NGOs under European Convention on Human Rights / Tymofeyeva

companies, Exor s.p.a. and Giovanni Agnelli & C. s.a.s., their chairman (Gianluigi Gabetti), the authorised representative of Giovanni Agnelli (Virgilio Marrone), and a lawyer from the Agnelli group (Franzo Grande Stevens), together called ‘the applicants’. The Court unanimously ruled that their rights under Article 4 of Protocol No. 7 had been violated. In addition, it required that the respondent state ensure that the new criminal proceedings brought against the applicants, in violation of Article 4 of Protocol No. 7, were closed as rapidly as possible. The case concerned the issue of the administrative penalty imposed on the applicants by the Stock Exchange Commission and the criminal proceedings to which they are currently subject after having been accused of market manipulation in the context of a financial operation involving the car manufacturer FIAT. Since the possible administrative fine amounted to 5 million euros, together with the confiscation of goods, the Court came to the conclusion that this sanction is rather ‘criminal’. 1282 Following the test of Zolotukhin , the Court held that this Article does not allow prosecuting twice for the same offence. There are a number of cases where the applicants, Article 34 NGOs, alleged a violation of Article 4 of Protocol No. 7 before the Court, but unsuccessfully. For example, in the case of K.S. and K.S. AG v. Switzerland, 1283 two applicants lodged the application with the Court. The first applicant was a Swiss national who had the function of the chairman and main shareholder of the second applicant, a company selling painters’ equipment. The applicants complained that the proceedings before the Zürich Administrative Court were not in compliance with the Convention, namely that the principle ne bis in idem was breached, as both of them were punished for the same offence. The case was decided by the predecessor of the Court, the Commission, which declared the application inadmissible for failure to exhaust domestic remedies. In particular, it was mentioned that the second applicant had failed to raise the complaints under Article 4 of Protocol No. 7 in the proceedings before the Zürich Administrative Court. The case Saarekallas OÜ and Others v. Estonia 1284 contained the complaints of eight applicants, among them the Saarekallas OÜ, a private limited company registered in Estonia. The Court admitted the victim status of the applicant company, but in light of all the material in its possession, the Court ruled that these complaints did not disclose any appearance of a violation of the rights and freedoms set out in the invoked Article 4 of Protocol No. 7 and declared the application manifestly ill-founded. The Article 34 NGO was not a victim of a violation of Article 4 of Protocol No. 7 in the case of Mihai Gângă et Le Syndicat Indépendant Des Juristes De Roumanie v. Romania , 1285 which concerned two applicants, namely Mr. M. Mihai Gângă and the company «Le syndicat indépendant des juristes de Roumanie». Here, the Court noted that the applicant company was not a party to the criminal proceeding relating to the applicant individual and, therefore, its complaints were dismissed.

1282 Ibid., § 99. 1283 K.S. and K.S. AG (dec.), cited above. 1284 Saarekallas OÜ (dec.), cited above. 1285 Mihai Gângă et Le Syndicat Indépendant Des Juristes De Roumanie, cited above.

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