David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , PERSON , is a NORP national who was born in DATE and lives in LOC . She is represented before the Court by PERSON , a lawyer practising in GPE .

A summary account of historical events in which the present application originated can be found in the ORG ’s decision on admissibility in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ORG CARDINAL- ... ) .

On DATE the applicant ’s family were forced to leave their QUANTITY farm in GPE ( at present Murzynowo in GPE ) by the NORP militia . They were given TIME to pack their barest personal essentials . They marched for DATE towards the PERSON .

This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG and ORG . PERSON , cited above , § CARDINAL ) .

The applicant has still not been allowed to return to her homeland and has been refused restitution of her family property .

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .


Violation of Art. 6-1;Violation of Art. 6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the GPE police initiated criminal proceedings against the applicant on suspicion of having committed extortion under LAW . On DATE the applicant was taken into custody .

The applicant was charged with having threatened , by way of telephone calls , to explode a bomb in the supermarket ORG if his demands for a sum of money were not met .

Following the conclusion of the preliminary investigation the criminal case - file was sent to ORG ( PERSON ) . On DATE witnesses PERSON , NORP and PERSON failed to appear at the hearing in ORG and the hearing was adjourned to DATE . At the hearing of CARDINAL DATE the applicant was questioned . ORG again adjourned the hearing , since the witnesses had not appeared . Subsequently , ORG heard the case on DATE .

According to the record of ORG hearing , which set out the documents disclosed to the prosecution and defence at the public hearing , ORG case - file included , inter alia , written witness statements made during the preliminary investigation by PERSON and NORP , who were both employees of the supermarket . Witness PERSON had stated that the phone calls on CARDINAL and DATE had been made by a male person , probably DATE of age or more . She had submitted that it was possible that she would recognise the voice . Witness NORP had submitted that she had received phone calls from a male person on CARDINAL and DATE . The case - file further contained CARDINAL tapes with recordings of several phone calls made to the supermarket ( from CARDINAL , CARDINAL , DATE , DATE and DATE ) and CARDINAL tape with an undercover recording of a phone call by the applicant from DATE , as well as transcripts of the tape recordings .

According to the written records of witness ORG ’s statements during the preliminary investigation , on DATE the applicant had asked him to dial a phone number of the applicant ’s girl - friend and hand the handset over to the applicant . They tried to make CARDINAL phone calls , but none of the calls was answered . The number called to was a local number , DATE digits containing a combination of “ CARDINAL ” , possibly “ CARDINAL ” or similar .

ORG case - file also included a written statement of witness NORP ’s testimony , according to which , on DATE , she had been presented with an undercover recording of a phone call made by the applicant for recognition . She had been of the opinion that the male voice in the recorded conversation closely resembled the voice of the person who in DATE had made the bomb threats to the supermarket . She had answered CARDINAL phone calls to the supermarket . When the threats were made , the voice had been more nervous , but otherwise the voices were identical .

The case - file further contained a written record of the examination of an anonymous witness “ PERSON , who stated that in DATE he had met the applicant at a party , where the latter had said that he had made the threats to the supermarket . In this way the applicant had had a chance to make good money . The owner of a shop located near the supermarket had asked him to make the threats . Every time after making the threats he had called the owner of the shop . Witness PERSON stated that from the recordings of the bomb threats on six tapes he recognised the applicant ’s voice . Witness PERSON considered that the sound of the voice bore a resemblance to that of the applicant , as did some expressions and the manner of speaking .

In the case - file there was included a written record of an examination of witness NORP , who said that , as of DATE , the information line of the supermarket did not answer calls made from public payphones . Witness NORP stated that , based on the voice , the manner of speaking and the references to earlier phone calls , the threats had been made by CARDINAL person .

All the witnesses failed to appear at ORG hearing of DATE . Witnesses PERSON and NORP submitted that they were unable to attend the hearing but that they maintained the statements given during the preliminary investigation ; witness ORG did not live at the address noted by ORG . At that hearing ORG refused the request of the applicant ’s lawyer to call witnesses PERSON and NORP The record of the hearing does not disclose the reasons why the request was refused .

By a judgment of DATE the ORG convicted the applicant of the charge and sentenced him to DATE imprisonment . It relied on the testimony of the witnesses PERSON , NORP , PERSON and of the anonymous witness PERSON , given during the preliminary investigation , as well as on the transcripts of tape recordings of telephone conversations .

According to the judgment , the anonymous witness PERSON had recognised the applicant ’s voice on the tape and had heard him brag about his bomb threats . Witnesses PERSON and NORP testified that they had received repeated phone calls from the same person , DATE , threatening to explode a bomb and demanding a sum of money . In addition , witness NORP stated that the applicant ’s voice on the tape played to her closely resembled the voice of the man who had made the bomb threats . According to the testimony of witness GPE , the applicant had told him that he was in need of money and asked him to dial a number , using public phones , of which he remembered the first and last digits . In the event that somebody should answer , he was supposed to hand over the phone to the applicant . The first and last digits of the phone number corresponded to the phone number of the supermarket .

On DATE the applicant ’s lawyer filed an appeal against the judgment requesting the applicant ’s acquittal . She argued that ORG had not heard any of the witnesses at its hearing and that her request to summon the witnesses had been denied . ORG had convicted the applicant on the basis of insufficient evidence . The record of the court hearing had stated incorrectly that several items of evidence in the case - file had been disclosed . In fact , this had not been done . As regards the voice identification , the applicant ’s lawyer noted that , as the witness NORP had been presented with only CARDINAL voice for recognition , she had not been able to compare voices . In his appeal the applicant noted that the bomb threats continued in DATE and DATE , after he had been taken into custody .

The applicant ’s lawyer did not request in her appeal that any witnesses be called to the appeal court ’s hearing .

On DATE ORG ( Tallinna GPE ) heard the appeal at a public hearing . The applicant ’s lawyer reiterated that at the hearing in ORG it had not been possible to put questions to the witnesses and that her request to summon the witnesses had been denied .

According to the record of ORG hearing neither the applicant nor his lawyer requested that any witnesses be summoned to the hearing .

ORG dismissed the appeal . It noted in its judgment :

“ The [ Criminal ] Chamber [ of ORG ] finds , as did ORG , that [ the applicant ’s ] guilt has been established on the basis of an aggregate of evidence and that this aggregate [ of evidence ] does not include solely the statements of witnesses ; all the evidence collected during the pre - trial investigation and examined at the court hearing has been taken into account . ”

ORG found no substantial infringement of the procedural law which would have entailed a reversal of the lower court judgment .

On DATE the applicant ’s lawyer filed an appeal with ORG ( NORP ) repeating the arguments raised before ORG . She reiterated that , in violation of the law of criminal procedure , ORG had not based its judgment on evidence examined at the hearing . The applicant requested in his appeal that an independent expert assessment of the voice be carried out .

On DATE ORG refused the applicant leave to appeal .

Pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , as in force at the material time , a judge was to preside over court hearings so that all facts were examined thoroughly , from all perspectives and objectively and the truth was ascertained . When hearing a criminal case a court of first instance had to examine the evidence directly by hearing the accused , the victims , witnesses and expert opinions , inspecting physical evidence and disclosing records and other documents . LAW provided that a court judgment had to be based only on evidence that had been heard at a court hearing . LAW provided that the statement of facts and reasons in a court judgment had to set out , inter alia , the facts ascertained in the examination by the court and the evidence on the basis of which the court deemed the facts to be established , the reasons why the court based its judgment on such evidence and deemed other evidence in the case to be unreliable , the charges on which the court convicted each of the defendants and the evidence on which such a conclusion was based .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provided that where a witness failed to appear , the court heard the opinions of the participants in the proceedings as to whether it was possible for the hearing to proceed and ruled on the continuation or adjournment of the hearing .

According to Article CARDINAL of the Code of Criminal Procedure , after a witness had given testimony , he or she could be examined by the participants in the proceedings , including the accused and his or her lawyer . Additional questions could be submitted to a witness to clarify and supplement the testimony previously given by him or her . If a court deemed it necessary to hear a witness who had been granted anonymity , the witness could be heard in the absence of the participants in the proceedings on the basis of the questions submitted by them . The content of the testimony had to be disclosed at a court hearing .

Pursuant to LAW , testimony given by a witness during the pre - trial investigation could be disclosed if the witness failed to appear at a court hearing or if the whereabouts of the witness was unknown , or if the witness had been granted anonymity .

According to LAW , in order to ensure the security of a victim or a witness or persons close to him or her , the person in question could be granted anonymity . Anonymity could be granted in a reasoned order by a preliminary investigator at the request of a witness or a victim , or on the initiative of the preliminary investigator .

According to the criminal procedure law the trial in second instance court was , in substance , trial de novo , within the limits of the appeal and according to what the appeal court considered necessary under the law .

Article CARDINAL of the Code of ORG Cassation Procedure provided that , in an appeal , the appellant had to set out the names and addresses of the persons whom he or she wished to have examined by the court of appeal .

Under LAW Procedure a court of appeal could order expert assessments and demand evidence during pre - trial proceedings . Under LAW § CARDINAL(CARDINAL ) of the LAW , a judge , when assigning a criminal case for hearing by means of a ruling , also decided who should be summoned to the hearing as participants in the proceedings , witnesses or experts . LAW of the Code provided that a court of appeal could , of its own motion , summon to the hearing witnesses and experts and also order expert assessments and demand evidence . LAW of the LAW provided that applications by the participants in the proceedings for the re - summoning of witnesses had to be granted if the court of first instance had denied such applications incorrectly or if a witness or expert summoned had failed to appear in the court of first instance or if the court of appeal found that a further examination of a witness or expert was of material importance .

Article CARDINAL of the Code of ORG Cassation Procedure provided that , in appeal proceedings , the court of appeal had to verify whether a decision of the court of first instance was lawful and reasoned only to the extent set out in the appeal , and an appellant had no right to exceed the limits of an appeal during a court hearing .

Under LAW , insufficiency or CARDINAL - sidedness of the examination of the case by the court of first instance and discrepancy between the conclusions of the court as set out in the judgment and the facts were among the grounds on which a court of appeal could set aside the judgment of a court of first instance .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP / NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant ’s wife died on DATE . In DATE , the applicant made his second claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant appealed and on DATE his appeal was rejected . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The applicant , PERSON Per PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Attorney at the Attorney ORG ) .

The applicant was the Chief Executive Officer and a member of ORG company ORG , which was taken into bankruptcy in DATE . In this context , on DATE , LAW ( skifterett ) inter alia found ( i ) that the applicant had failed to operate advance tax deduction through a separate bank account and had been grossly negligent in this respect , in breach of sections CARDINAL , CARDINAL , ORG and CARDINAL of LAW DATE ( skattebetalingsloven ) ; ( ii ) that there was reasonable ground for suspecting the applicant of having taken up a loan in the company in breach of sections CARDINAL and CARDINAL last sub - section of LAW DATE ( aksjeselskapsloven ) and ( iii ) embezzlement of the estate in breach of Articles CARDINAL and CARDINAL of the Penal Code . ORG found reasonable ground for suspicion that such criminal acts as mentioned in section CARDINAL ) of LAW DATE ( konkursloven ) had occurred . Moreover , under section CARDINAL(CARDINAL ) it found that his business conduct had been inappropriate to such a degree as to make him unsuited to establish a new limited liability company or to take part in such a company . Therefore , under section CARDINAL ) and ( CARDINAL ) , the court ordered that he be disqualified ( konkurskarantene ) for a period of DATE from establishing or taking on responsibilities for the governing board of such a company . In addition , under section CARDINAL ) it extended the order to prohibiting the applicant from continuing existing responsibilities of this nature .

The Probate and Bankruptcy Court ’s judgment contained the following reasoning :

“ Pursuant to section CARDINAL ) item CARDINAL , see sixth sub - section , item CARDINAL , of LAW , a disqualification order may be imposed on [ the applicant ] as day - to - day manager of the company if there is ‘ reasonable ground’ for suspecting him of a criminal act in connection with the bankruptcy or the activities that led to insolvency . Further , a disqualification order may be imposed pursuant to section CARDINAL ( CARDINAL ) item CARDINAL ... if there is reason to presume that , on the ground because of unsound business conduct , the person is unfit to establish a new company , etc . There are sufficient grounds to impose a disqualification order if CARDINAL of the conditions is fulfilled .

The taxation legislation contains provisions requiring separate tax deduction accounts in order to ensure that companies do not make use of funds that belong to the public authorities . Under sections CARDINAL , CARDINAL and CARDINAL of LAW , the amounts that are to be paid into tax deduction accounts are the part of taxable remuneration which is not to be retained by persons liable to pay tax ( i.e. employees , etc ) , but which is to be paid as advance tax deductions . The employer has the responsibility for collecting advance tax deductions from employees . In principle , advance tax deductions should not go through a company ’s operating accounts , but be paid directly into a tax deduction account , see section CARDINAL of LAW . It is therefore insufficient to argue that there was adequate liquidity in the company both before and after the bankruptcy . The point is not whether the company was in a position to meet its obligations , but whether the amounts in question had in fact been set aside . In this connection , it is important to note that the company never had any formal right to make use of the advance tax deductions . Any exemption from criminal liability would have to be based on the grounds that the amounts that were not set aside were in fact paid at the correct time , see section CARDINAL , subsection CARDINAL of LAW . This is not the case here .

The requirements for strict criminal liability under section CARDINAL of LAW must be regarded as being fulfilled . With respect to whether [ the applicant ] ’s actions fulfil the subjective requirements for liability , section CARDINAL of LAW lays down intent or gross negligence . It is established that [ the applicant ] , as general manager , was grossly negligent in not ensuring that the payments in question were actually made . The fact that he delegated the task of deducting tax payments in advance does not exempt him from criminal liability .

As regards the withdrawal of funds for personal use , the court finds that there is reasonable ground for suspecting that loans were raised in contravention of section CARDINAL of ORG . It has been claimed that the loans in question were within the framework of the company ’s free equity , but the court can not see that any security has been provided . This is an offence that is subject to penal sanctions , see section CARDINAL , last sub - section , of LAW . The loans were advanced to [ the applicant ] , and the requirements for both strict and subjective criminal liability must be considered to have been fulfilled .

Furthermore , the court finds that there is just cause for suspecting criminal withholding of assets from the estate pursuant to LAW . Under LAW , an attempt to withhold assets is sufficient to incur criminal liability . The court finds that there is reasonable ground for suspecting [ the applicant ] of attempting to withhold assets from the estate , since it is a fact that the computer equipment has not been transferred to the estate as required . Here too , the requirements for both strict and subjective liability are found to be fulfilled .

As regards the question of embezzlement of funds paid to the company by ORG , the court notes that this has been reported to the police by their letter of DATE . This letter indicates that the police consider there to be reasonable ground for suspecting [ the applicant ] of criminal acts .

As regards whether the company operated at the LOC expense and how this relates to LAW , the court finds that in retrospect , it can be established that the company did operate at the LOC expense . However , the court does not have sufficient information to state with certainty whether there is reasonable ground for suspecting that the requirements for subjective criminal liability for violation of LAW are fulfilled . However , the court has found that there is reasonable ground for suspecting a number of other offences , and therefore does not consider it necessary to make a final decision on this question in order to determine whether or not a disqualification order should be imposed . Another question is whether this type of short trading in electricity can be considered to be sound business practice . In this connection , we can not set such strict standards for documentation of [ the applicant ] ’s subjective view of the matter . The court will return to this question below .

The court finds that there is reasonable ground for suspecting [ the applicant ] of offences such as are mentioned in section CARDINAL ) item CARDINAL , of LAW . It finds that the balance of probability is that [ the applicant ] is liable to punishment for CARDINAL or more of the acts to which the ORG has called attention . Thus , the conditions for imposing a disqualification order on [ the applicant ] pursuant to section CARDINAL(CARDINAL ) item CARDINAL , of LAW are fulfilled .

The court finds that business conduct in this case has been so unsound that [ the applicant ] must be considered unfit to form or take part in the management of a new company , see section CARDINAL ( CARDINAL ) item CARDINAL , of LAW . Particular importance is attached in this respect to the general disregard shown for companies legislation . This applies in particular to the provisions of LAW relating to withdrawal of funds for personal use and borrowing from CARDINAL ’s own company . Furthermore , a number of the financial transactions made in the company ’s name appear to have been carried out in [ the applicant ] ’s personal interest . These include the purchase of a number of vehicles not conventionally used by a limited liability company of this type . For example , expensive motorcycles , sports cars and pleasure boats were purchased . In connection with an evaluation of business conduct , it is of little importance whether these were intended for use by [ the applicant ] himself or by his employees . In the court ’s opinion , such transactions do not give a more favourable impression of the way the company was managed .

Despite the way the power market developed in DATE , [ the applicant ] allowed PERSON to continue trading in electricity , even though the company did not have contracts for purchases of electricity to cover its sales . The company did not have sufficient funds for these transactions . The transactions thus became speculation at the purchaser ’s risk , and in the final analysis at the purchaser ’s expense . The company sold goods that it knew or should have known could not be delivered to the purchaser if electricity prices continued to rise . Short trading of this kind is acceptable if the company is in a strong enough financial position , which was not the case here . If the company does not have sufficient funds , its customers incur losses because they have to go out on the market and buy electricity at a higher price . In the court ’s opinion , this can not be in accordance with sound business practice .

[ The applicant ] has a history of several bankruptcies and is involved in several bankruptcy proceedings at present . He can therefore be described as a serial bankrupt , so that he belongs to the category which disqualification is specifically intended to deal with . The court has found no circumstances indicating that it would be unreasonable to impose a disqualification order . In the assessment of reasonableness it is important that the conditions of both item CARDINAL and item CARDINAL of section CARDINAL ( CARDINAL ) of LAW are deemed to be fulfilled .

Nor can the court see that disqualification would be particularly unreasonable for [ the applicant ] on the grounds that he considers himself to be an entrepreneur and claims that disqualification would deprive him of the right to work . A disqualification order does not prohibit a person from working . [ The applicant ] could take up employment in a company or establish a company with unlimited liability to its creditors . The reason for issuing a disqualification order is that [ the applicant ] is considered unfit to establish a limited liability company .

Since the conditions of section CARDINAL(CARDINAL ) item CARDINAL , are fulfilled , the court further finds that , pursuant to section CARDINAL ) of LAW , [ the applicant ] should be removed from any existing offices in the management of companies , and he is therefore obliged to withdraw from any positions such as those mentioned in LAW ( CARDINAL ) and ( CARDINAL ) of LAW . ”

This was the third time a disqualification order had been imposed on the applicant , who had been involved in several bankruptcies in the past .

On DATE ORG ( lagmannsrett ) rejected an appeal by the applicant against ORG judgment and upheld the latter ’s findings under section CARDINAL ) and ( CARDINAL ) and , apparently also under ( CARDINAL ) , of LAW . ORG stated :

“ ORG does not find it established that ORG has based its decision on erroneous facts or that the decision suffered from other errors that could lead to it being quashed .

Against the background of what emerges from the Administrators’ report , ORG agrees with ORG that there is reasonable ground for suspecting [ the applicant ] of breach of several penal provisions . It relates to breach of Articles CARDINAL ) item CARDINAL and CARDINAL of LAW , LAW and the taking up of loan in breach of LAW CARDINAL , see CARDINAL last sub - section , LAW . The conditions for disqualification under section CARDINAL ) item CARDINAL are therefore present , as the criminal offences refer to the bankruptcy and the activities that led to insolvency .

ORG further agrees with ORG that the management of the company at issue can be characterised as so indefensible that [ the applicant ] must be deemed unsuited to form a new liability company and take part in such a company , with the meaning of section CARDINAL ( CARDINAL ) item CARDINAL .

Having regard to the debtor ’s conduct and the circumstances as a whole , the High Court finds that it seems reasonable , under LAW ( CARDINAL ) , to subject him to a disqualification order . Reference is made to ORG extensive reasoning , with which ORG agrees in the main , and to the fact that [ the applicant ] , according to the Administrators’ report , has been insolvent in also connection with a number of bankruptcies in the past and has also previously been subjected to disqualification .

Therefore the Probate and Bankruptcy Court ’s decision is upheld . ”

The applicant did not appeal against the above judgment by ORG which became final .

Subsequently , on DATE , the applicant was charged on CARDINAL counts of aggravated embezzlement inter alia in breach of Articles CARDINAL , CARDINAL , CARDINAL and FAC of the Penal Code ; section CARDINAL ) of ORG Added Tax ( VAT ) Act DATE ( merverdiavgiftsloven ) ; and section CARDINAL of LAW . On DATE he was in addition charged of aggravated breach of confidence ( grovt utroskap ) under Articles CARDINAL and CARDINAL of the Penal Code .

On DATE , ORG ( byrett ) acquitted the applicant of all but one of the charges mentioned above , namely a charge of aggravated embezzlement , and sentenced him to DATE imprisonment and to loss for DATE of his right to run a business or to occupy a leading position in a company or be a member of a company board ( Article CARDINAL ) of LAW ) .

On appeal by both the prosecution and the defence , ORG , by a judgment of DATE , increased the sentence to DATE , finding the applicant guilty also on the additional count of aggravated breach of confidence .

In his appeal to ORG the applicant requested , firstly , that the case be dismissed ( avvist ) , arguing with reference to LAW that the disqualification order barred the subsequent prosecution in relation to the same matters . Secondly , the applicant appealed against his conviction for aggravated embezzlement under ORG CARDINAL and CARDINAL of the Penal Code , challenging ORG interpretation of the law and reasoning .

On DATE ORG rejected both of his appeal grounds . In so far as the submission under LAW No . CARDINAL was concerned ORG , referring to the reasoning in its judgment pronounced in a similar case on DATE , that the imposition of the disqualification order under sections CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) did not bar subsequent prosecution and conviction .

The parallel judgment became the subject of an application ( no . CARDINAL/CARDINAL ) lodged under the ORG by Mr Yngvar GPE against GPE , which is being dealt with simultaneously with the present case . An LANGUAGE translation of ORG reasoning is reproduced in the ORG ’s decision in the case of PERSON , delivered on DATE as the present decision .

In so far as relevant , section CARDINAL of LAW of DATE No . CARDINAL LAW ) read :

Section CARDINAL -Conditions for imposing a disqualification order

“ If a debtor ’s estate is the subject of bankruptcy proceedings , the district court may impose a disqualification order on the debtor if

CARDINAL ) there is reasonable ground for suspecting the person concerned of a criminal act in connection with the bankruptcy or the activities that led to insolvency , or

CARDINAL ) if it must be presumed that for reasons of unsound business conduct , the person in question is unfit to establish a new company or to serve as a director or general manager ( managing director ) of such a company .

In taking a decision on this matter , importance shall be attached to whether , having regard to the debtor ’s conduct and the circumstances as a whole , it appears reasonable to impose a disqualification order .

The imposition of a disqualification order means that , for DATE from the opening of bankruptcy proceedings , the debtor may not establish such a company as mentioned in the fifth sub - section , or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company . The district court may decide that the DATE period shall start from the date when the court takes its decision .

In cases mentioned in the first sub - section , item CARDINAL , the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub - section held in such companies as mentioned in the fifth sub - section .

The term company in sub - sections CARDINAL and CARDINAL means a limited liability company , a public limited liability company , a branch office of a foreign company , a business foundation , a housing construction cooperative , a housing co - operative , a company aimed at promoting its ORG consumer interests ( consumer co - operative ) , a mutual insurance company or a ORG company . ”

For a summary of the legislative history of the provisions on disqualification under NORP law , reference is made to paragraphs DATE of ORG judgment quoted in the above - mentioned decision in the parallel GPE case .

The Government provided some additional information , inter alia what is summarised here below .

In the individual assessment of reasonableness to be carried out under LAW ) , account was to be had to such factors as the cause of the bankruptcy , the debtor ’s conduct during the bankruptcy proceedings and the time element . In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order , the court might conclude that it would be unreasonable to impose a disqualification order .

In the preparatory works to LAW DATE , ORG had stressed that the rules would make it possible to stop persons who repeatedly were involved in limited liability companies which went bankrupt , and where there was reason to suspect improper business conduct . It had also been emphasised that disqualification orders should function as a supplement to loss of entitlement ( rettighetstap ) , a form of punishment pursuant to LAW . In this context , the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings , whilst it normally would take longer to investigate and prosecute possible criminal offences . The possibility of swift action was necessary to achieve the preventive purpose of the measure .

The duration of disqualification period , ordinarily DATE , could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to sentence the person in question to a loss of entitlement pursuant to LAW . The disqualification period could then be extended until the court had decided the criminal case .

The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information . If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for a disqualification order , or further investigation showed that no such criminal offence had been committed , the public prosecutor was to request that the disqualification order be lifted ( PERSON , ORG of ORG ) .

A disqualification order could be imposed by a court of first instance ( tingretten ) or by the probate and bankruptcy courts ( skifteretten ) . Such a measure was usually taken on the basis of written proceedings . However , the parties had the right to request an oral hearing . In his or her report to the probate and bankruptcy court , the liquidator was to provide information on whether , in his or her opinion , there were circumstances suggesting that a disqualification order should be imposed . Both the bankruptcy estate ( represented by the liquidator ) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order . The opposing party would be the debtor , board member etc . against whom the order would apply . It was rare that the prosecution or the bankruptcy estate intervened as a party to the proceedings . The court ’s decision would , accordingly , normally be taken only on the basis of the information and recommendation in the liquidator ’s report , and the information and objections provided by the defendant .

Under section CARDINALA of LAW , a failure to comply with a disqualification order was a criminal offence punishable by CARDINAL months’ imprisonment and/or fines .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON .

The facts of the case , as submitted by the applicant , may be summarised as follows .

The applicant was accused of having committed CARDINAL criminal offences . The first charge regarded the applicant ’s involvement in the transport of QUANTITY of cocaine and the second charge concerned an amount of QUANTITY of cocaine found in his home . The third charge concerned a doping offence . The applicant denied the first CARDINAL charges but admitted the third . He was deprived of his liberty from DATE to CARDINAL DATE .

On DATE ORG ( tingsrätten ) of ORG gave judgment . Regarding the first charge , ORG found that the applicant ’s involvement in DATE receiving narcotics for the purpose of storing and transferring them – did not correspond to what the applicant was charged with in the bill of indictment . The first offence had not therefore been made out . Regarding the second charge , ORG stated that there was not sufficient evidence to convict the applicant . He was convicted of a doping offence ( dopningsbrott ) and fined . He was thus acquitted by ORG on CARDINAL out of the CARDINAL charges .

The Prosecutor appealed against the acquittals on the CARDINAL charges on DATE , i.e. DATE the ORG gave judgment . In his submissions , the wording of the bill of indictment was amended in regard to the first charge so as to cover applicant ’s involvement in the crime ( i.e. receiving narcotics for the purpose of storing and transferring them ) . Regarding the second charge , the Prosecutor called a new witness .

The applicant was detained on DATE . He claims that after ORG acquittal , he had been working both in GPE and abroad . He alleges that , during this time , i.e. over DATE , he did not receive any summons to appear before ORG . His arrest thus came unexpectedly .

On DATE , during the hearing at ORG ( PERSON hovrätt ) , he was placed under formal arrest ( häkte ) on the basis that he was suspected on reasonable grounds of an attempt to commit an aggravated narcotics offence and that there was a risk that he would run away or seek to escape prosecution or punishment . The applicant opposed his detention arguing that he had not been served with any summons to appear before ORG and that he had not failed to appear . In the judgment , which was pronounced DATE , ORG found that the applicant was guilty on both charges which had been the subject of the appeal and sentenced him to DATE imprisonment . He alleges that it did not examine his defence counsel ’s objection that he had not had sufficient time to meet the applicant before the hearing .

In the written appeal pleadings to ORG ) , the applicant argued that the required evidentiary standards in criminal cases had not been satisfied and that there was no evidence to support the charge that he had been involved in the transport of the narcotics . The only thing he had stated himself before ORG was that he had been supposed to store a package which he thought had contained hash or marijuana . Regarding the narcotics found in his home , he argued that he had not known about the narcotics and that they probably belonged to the person whose passport had been found next to them . He was represented by the same defence counsel throughout the proceedings .

ORG refused leave to appeal on DATE .

The applicant subsequently requested a re - opening of his case arguing that there had been a miscarriage of justice since he had been arrested ( anhållen ) on DATE , over DATE after having been acquitted by ORG , and convicted DATE after without having had a proper opportunity to prepare his defence with his defence counsel . He relied on LAW ( b ) of the LAW . On DATE ORG rejected this request .